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Decision on Statement of Deceased Witness - 21.07.2000 KORDIĆ & ČERKEZ
(IT-95-14/2-AR73.5)

20. Rule 89(C) grants the Trial Chambers broad discretion. The bounds of this discretion, however, are suggested by Rule 89(B), which provides that “[i]n cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.” A Trial Chamber’s exercise of discretion under Rule 89(C) ought, pursuant to Rule 89(B), to be in harmony with the Statute and the other Rules to the greatest extent possible.

[…]

22. […] Rule 89(C) must be interpreted so that safeguards are provided to ensure that the Trial Chamber can be satisfied that the evidence is reliable. A starting point is the requirements of these other rules [Rules 71, 71bis, 94bis, 94ter] that expressly allow for departures from the principle of live evidence. Rule 89(C) may indeed permit some relaxation of these requirements, but it would be odd to find that a statement that met none of the requirements of those other rules was nonetheless admissible under Rule 89(C) without any other compensating evidence of reliability.  […]

[…]

24. […] [T]he reliability of a statement is relevant to its admissibility, and not just to its weight. A piece of evidence may be so lacking in terms of the indicia of reliability that is not “probative” and is therefore inadmissible.

 

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ICTR Rule Rule 89 ICTY Rule Rule 89
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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

120. […] Where the act of one accused contributes to the purpose of the other, and both acted simultaneously, in the same place and within full view of each other, over a prolonged period of time, the argument that there was no common purpose is plainly unsustainable. 

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

In paragraphs 74–78 the Appeals Chamber considered the Appellant’s contention “that, by preventing him from introducing the testimony of [two witnesses] when the proceedings were re-opened, the Trial Chamber violated his right, under Article 21(4) of the Statute, to examine, and obtain the attendance of, relevant witnesses on his behalf”. The Appeals Chamber held:

75. Article 21(4)(e) of the Statute grants an accused the right “to obtain the attendance and examination of witnesses on his behalf”.  This right is, for obvious reasons, subject to certain conditions, including a requirement that the evidence should be called at the proper time.[1]  In this regard, the Appeals Chamber observes that the Appellant was obliged, under the applicable rules, to present all available evidence at trial.  However, it should be noted that the proceedings were re-opened due to the exceptional circumstance of the Prosecutor’s late disclosure of material which, in the view of the Trial Chamber, “clearly had the potential to affect the 'credibility of prosecution evidence’”.[2] […] 

At paragraph 78, the Appeals Chamber concluded that “the Trial Chamber did not err when it decided to deny the Appellant the right to call [the witnesses] on the ground that the proposed testimony fell outside the scope of the re-opened proceedings.”

[1] Rule 85 of the Rules provides that evidence at trial shall be presented in a certain sequence unless otherwise directed by the Trial Chamber in the interests of justice. 

[2] Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Decision, 16 July 1998, para. 17 (original emphasis).

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

61. Article 18(4) of the Statute and Rule 47(C) of the Rules require that an indictment contain a concise statement of the facts of the case and of the crime with which the suspect is charged.  That requirement does not include an obligation to state in the indictment the evidence on which the Prosecution has relied.  Where evidence is presented at trial which, in the view of the accused, falls outside the scope of the indictment, an objection as to lack of fair notice may be raised and an appropriate remedy may be provided by the Trial Chamber, either by way of an adjournment of the proceedings, allowing the Defence adequate time to respond to the additional allegations, or by excluding the challenged evidence. 

See also para. 147.

The Appeals Chamber further found:

153. […] the Appeals Chamber considers as correct the distinction made in Krnojelac between the material facts underpinning the charges and the evidence that goes to prove those material facts.  In terms of Article 18 of the Statute and Rule 47, the indictment need only contain those material facts and need not set out the evidence that is to be adduced in support of them.  In the instant case, the Appeals Chamber can find nothing wrong in the Trial Chamber’s admission of this evidence which supports the charge of torture, even though it was not specified in the Amended Indictment.  It would obviously be unworkable for an indictment to contain all the evidence that the Prosecutor proposes to introduce at the trial.

See also para. 162.

[1] Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment, 24 Feb. 1999, para. 12.  See also Prosecutor v. Kvočka et al., Case No. IT-98-30-PT, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 Apr. 1999, para. 14.

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ICTR Statute Article 17(4) ICTY Statute Article 18(4) ICTR Rule Rule 47(C) ICTY Rule Rule 47(C)
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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

177. The fundamental human right of an accused to be tried before an independent and impartial tribunal is generally recognised as being an integral component of the requirement that an accused should have a fair trial.  Article 13(1) of the Statute reflects this, by expressly providing that Judges of the International Tribunal “shall be persons of high moral character, impartiality and integrity”.[1]  This fundamental human right is similarly reflected in Article 21 of the Statute, dealing generally with the rights of the accused and the right to a fair trial.[2]  As a result, the Appeals Chamber need look no further than Article 13(1) of the Statute for the source of that requirement.  

Having consulted Article 6 of the European Convention of Human Rights and examined the interpretation by the European Court of Human Rights and national legal systems of the requirement of impartiality [for detailed analysis, see paras. 181-188], the Appeals Chamber proceeded to analyse how this requirement of impartiality should be interpreted and applied by the Appeals Chamber:

189. […] the Appeals Chamber finds that there is a general rule that a Judge should not only be subjectively free from bias, but also that there should be nothing in the surrounding circumstances which objectively gives rise to an appearance of bias.  On this basis, the Appeals Chamber considers that the following principles should direct it in interpreting and applying the impartiality requirement of the Statute:

A.  A Judge is not impartial if it is shown that actual bias exists.

B. There is an unacceptable appearance of bias if:

i) a Judge is a party to the case, or has a financial or proprietary interest in the outcome of a case, or if the Judge’s decision will lead to the promotion of a cause in which he or she is involved, together with one of the parties.  Under these circumstances, a Judge’s disqualification from the case is automatic; or

ii) the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[3]

190.    In terms of the second branch of the second principle, the Appeals Chamber adopts the approach that the “reasonable person must be an informed person, with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.”[4]

191. The Appeals Chamber notes that Rule 15(A) of the Rules provides:

A Judge may not sit on a trial or appeal in any case in which the Judge has a personal interest or concerning which the Judge has or has had any association which might affect his or her impartiality.  The Judge shall in any such circumstance withdraw, and the President shall assign another Judge to the case. [5]

The Appeals Chamber is of the view that Rule 15(A) of the Rules falls to be interpreted in accordance with the preceding principles.  

The Appeals Chamber also considered

196. In the view of the Appeals Chamber, there is a presumption of impartiality which attaches to a Judge. This presumption has been recognised in the jurisprudence of the International Tribunal,[6] and has also been recognised in municipal law. […]

197. […] [I]n the absence of evidence to the contrary, it must be assumed that the Judges of the International Tribunal “can disabuse their minds of any irrelevant personal beliefs or predispositions.”  It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that Judge Mumba was not impartial in [the Appellant’s] case. There is a high threshold to reach in order to rebut the presumption of impartiality. As has been stated, “disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgement and this must be ‘firmly established.’”[7]

The Appeals Chamber further concluded:

205.    The Appeals Chamber does not consider that a Judge should be disqualified because of qualifications he or she possesses which, by their very nature, play an integral role in satisfying the eligibility requirements.  The possession of [experience in international law, including human rights law,] is a statutory requirement for Judges to be elected to this Tribunal.  It would be an odd result if the operation of an eligibility requirement were to lead to an inference of bias.  Therefore, Article 13(1) should be read to exclude from the category of matters or activities which could indicate bias, experience in the specific areas identified.  In other words, the possession of experience in any of those areas by a Judge cannot, in the absence of the clearest contrary evidence, constitute evidence of bias or partiality.[8]

[1] (Emphasis added). Article 13(1) provides: “The Judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.” [NOTE: PURSUANT TO AMENDMENTS INTRODUCED BY UN SECURITY COUNCIL RESOLUTION 1329 (2000), ARTICLE 13 OF THE ICTY STATUTE NOW PROVIDES: “The permanent and ad litem judges shall be persons of high moral character, impartiality and integrity who possess the qualifications required in their respective countries for appointment to the highest judicial offices. In the overall composition of the Chambers and sections of the Trial Chambers, due account shall be taken of the experience of the judges in criminal law, international law, including international humanitarian law and human rights law.”] See also Arts. 2 and 11 of Statute of the International Tribunal for the Law of the Sea (Annex VI of United Nations Convention on the Law of the Sea of 10 December 1982); Art. 19 of Statute of the Inter-American Court of Human Rights (adopted by Resolution 448 by the General Assembly of the Organisation of American States at its ninth regular session held in La Paz, Bolivia, October 1979); Arts. 36(3)(a), 40 and 41 of the Rome Statute [Rome Statute of the International Criminal Court, adopted at Rome on 17 July 1998, U.N. Doc. A/CONF. 183/9].

[2] Under Article 21(2) of the Statute, the accused is entitled to “a fair and public hearing” in the determination of the charges against him.  Paragraph 106 of the Report of the Secretary General provides that “[i]t is axiomatic that the International Tribunal must fully respect internationally recognised standards regarding the rights of the accused at all stages of its proceedings.  In the view of the Secretary-General, such internationally recognised standards are, in particular, contained in Article 14 of the International Covenant on Civil and Political Rights.” (Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808(1993)). Article 14(1) of the ICCPR provides in relevant part: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The fundamental human right of an accused to be tried before an independent and impartial tribunal is also recognised in other major human rights treaties. The Universal Declaration of Human Rights provides in Art. 10 that “[e]veryone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the full determination of his rights and obligations of any criminal charge against him”. Art. 6(1) of the European Convention on Human Rights protects the right to a fair trial and provides inter alia that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Art. 8(1) of the American Convention provides that “[e]very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, previously established by law”. Art. 7(1)(d) of the African Charter on Human and Peoples’ Rights provides that every person shall have the right to have his case tried “within a reasonable time by an impartial court or tribunal.”

[3] In the Talić Decision [Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-PT, Decision on Application by Momir Talić for the Disqualification and Withdrawal of a Judge, 18 May 2000], it was found that the test on this prong is “whether the reaction of the hypothetical fair-minded observer (with sufficient knowledge of the actual circumstances to make a reasonable judgement) would be that [the Judge in question]… might not bring an impartial and unprejudiced mind” (para. 15).

[4] R.D.S. v. The Queen (1997) Can. Sup. Ct., delivered 27 September 1997.

[5] Rule 14 also provides that a Judge must make a solemn declaration before taking up  duties, in the following terms: “I solemnly declare that I will perform my duties and exercise my powers as a Judge of the International Tribunal…honourably, faithfully, impartially and conscientiously.”

[6] See e.g., Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-PT, Decision of the Bureau, 4 May 1998, p. 2.

[7] Mason J, in Re JRL; Ex parte CJL (1986) CLR 343 at 352. Adopted in the subsequent Australian High Court decision in Re Polities; Ex parte Hoyts Corporation Pty Ltd (1991) 65 ALJR 444 at 448.

[8] Such a statutory requirement for experience of this general nature is by no means novel to this Tribunal. See e.g., Art. 36 of the Rome Statute; Art. 34 of the American Convention; Art. 39(3) of the European Convention; Art. 2 of the Statute of the International Court of Justice.

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ICTR Rule Rule 15 ICTY Rule Rule 15
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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

69. The right of an accused under Article 23 of the Statute to a reasoned opinion is an aspect of the fair trial requirement embodied in Articles 20 and 21 of the Statute.  The case-law that has developed under the European Convention on Human Rights establishes that a reasoned opinion is a component of the fair hearing requirement, but that “the extent to which this duty . . . applies may vary according to the nature of the decision” and “can only be determined in the light of the circumstances of the case.”[1]  The European Court of Human Rights has held that a “tribunal’ is not obliged to give a detailed answer to every argument.[2]

[1] See Case of Ruiz Torija v. Spain, Judgment of 9 December 1994, Publication of the European Court of Human Rights (“Eur. Ct. H. R.”), Series A, vol. 303, para. 29.

[2] Case of Van de Hurk v. The Netherlands, Judgment of 19 April 1994, Eur. Ct. H. R., Series A, vol. 288, para. 61.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

250. The sentencing provisions in the Statute and the Rules provide Trial Chambers with the discretion to take into account the circumstances of each crime in assessing the sentence to be given.  A previous decision on sentence may indeed provide guidance if it relates to the same offence and was committed in substantially similar circumstances; otherwise, a Trial Chamber is limited only by the provisions of the Statute and the Rules.  It may impose a sentence of imprisonment for a term up to and including the remainder of the convicted person’s life.[1]  As a result, an individual convicted of a war crime could be sentenced to imprisonment for a term up to and including the remainder of his life, depending on the circumstances.

See also paras 251-252.

[1] Article 24 of the Statute and Rule 101(A) of the Rules.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

253. Guilt or innocence is a question to be determined prior to sentencing.  In the event that an accused is convicted, or an Appellant’s conviction is affirmed, his guilt has been proved beyond reasonable doubt.  Thus a possibility of innocence can never be a factor in sentencing.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

The Appeals Chamber proceeded to analyse first whether crimes against humanity attract harsher penalties than war crimes and second whether crimes resulting in loss of life are to be punished more severely than other crimes.                                                        

241. […] the Appellant relies on, inter alia, certain decisions of this Tribunal.[1]  In particular, he draws attention to the judgement of the Appeals Chamber in the Erdemović case in which the majority of the Appeals Chamber found that crimes against humanity should attract a harsher penalty than war crimes.[2]

242. This Chamber notes that, when the Appellant’s Amended Brief was filed on 14 September 1999, the Judgement of the Appeals Chamber in the Tadić Sentencing Appeals Judgement was yet to be delivered.[3]  In this latter case, the Chamber considered the case law now relied upon by the Appellant, but reached a conclusion, by majority, contrary to that which the Appellant now advocates:

[T]here is in law no distinction between the seriousness of a crime against humanity and that of a war crime. The Appeals Chamber finds no basis for such a distinction in the Statute or the Rules of the International Tribunal construed in accordance with customary international law; the authorized penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case.[4]

243. This Chamber notes that the same arguments now advanced by the Appellant were considered and rejected by the Appeals Chamber in the Tadić Sentencing Appeals Judgement. The question arises whether this Chamber should follow the ratio decidendi on this issue set out in that Judgement.  In the recent Aleksovski Appeals Judgement the Appeals Chamber held that:

[w]here, in a case before it, the Appeals Chamber is faced with previous decisions that are conflicting, it is obliged to determine which decision it will follow, or whether to depart from  both decisions for cogent reasons in the interests of justice.[5]

The Appeals Chamber will follow its decision in the Tadić Sentencing Appeals Judgement on the question of relative gravity as between crimes against humanity and war crimes.

The Appeals Chamber also concluded:

246. […] The Appeals Chamber considers [the view that crimes resulting in loss of life are to be punished more severely than those not leading to the loss of life] to be too rigid and mechanistic.

247. Since the Tadić Sentencing Appeals Judgement, the position of the Appeals Chamber has been that there is no distinction in law between crimes against humanity and war crimes that would require, in respect of the same acts, that the former be sentenced more harshly than the latter.  It follows that the length of sentences imposed for crimes against humanity does not necessarily limit the length of sentences imposed for war crimes. 

[1] Notably the Tadić Sentencing Judgement and the Joint Separate Opinion of Judge McDonald and Judge Vohrah in Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997.

[2] Joint Separate Opinion of Judge McDonald and Judge Vohrah in Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, para. 20.

[3] Although the Tadić Sentencing Appeal Judgement was pronounced prior to the oral hearings in this case, counsel for the Appellant did not change this line of argument.

[4] Tadić Sentencing Appeals Judgement, para. 69 (emphasis added). Further argument in support of this view was set out in the Separate Opinion of Judge Shahabuddeen in that same judgement.  See also Prosecutor v. Duško Tadić, Case No. IT-94-1-Tbis-R117, Sentencing Judgement, 11 Nov. 1999, Separate Opinion of Judge Robinson, in which Judge Robinson expressed the view that there is no basis for “the conclusion that, as a matter of principle, crimes against humanity are more serious violations of international humanitarian law than war crimes” (ibid., p.10) and Prosecutor v. Dražen Erdemović, Case No. IT-96-22-A, Judgement, 7 Oct. 1997, Separate and Dissenting Opinion of Judge Li, in which Judge Li stated “that the gravity of a criminal act, and consequently the seriousness of its punishment, are determined by the intrinsic nature of the act itself and not by its classification under one category or another”.  Ibid., para. 19.

[5] Aleksovski Appeals Judgement,  para. 111.  See also Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, para. 92.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

249.    In deciding to impose different sentences for the same type of crime, a Trial Chamber may consider such factors as the circumstances in which the offence was committed and its seriousness.  While acts of cruelty that fall within the meaning of Article 3 of the Statute will, by definition, be serious, some will be more serious than others. […]  

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

37. As to an allegation that there was an error of fact, this Chamber agrees with the following principle set forth by the Appeals Chamber for the International Criminal Tribunal for Rwanda (“the ICTR”)[1] in Serushago:

Under the Statute and the Rules of the Tribunal, a Trial Chamber is required as a matter of law to take account of mitigating circumstances. But the question of whether a Trial Chamber gave due weight to any mitigating circumstance is a question of fact. In putting forward this question as a ground of appeal, the Appellant must discharge two burdens. He must show that the Trial Chamber did indeed commit the error, and, if it did, he must go on to show that the error resulted in a miscarriage of justice.[2]

Similarly, under Article 25(1)(b) of the ICTY Statute, it is not any and every error of fact which will cause the Appeals Chamber to overturn a decision of the Trial Chamber, but one which has led to a miscarriage of justice.  A miscarriage of justice is defined in Black’s Law Dictionary as “a grossly unfair outcome in judicial proceedings, as when a defendant is convicted despite a lack of evidence on an essential element of the crime.”[3]  This Chamber adopts the following approach taken by the Appeals Chamber in the Tadić case[4] in dealing with challenges to factual findings by Trial Chambers:

[t]he task of hearing, assessing and weighing the evidence presented at trial is left to the judges sitting in a Trial Chamber.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.  It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber.  It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.[5]

The position taken by this Chamber in the Tadić Appeals Judgement has been reaffirmed in the Aleksovski Appeals Judgement.[6]  The reason the Appeals Chamber will not lightly disturb findings of fact by a Trial Chamber is well known; the Trial Chamber has the advantage of observing witness testimony first-hand, and is, therefore, better positioned than this Chamber to assess the reliability and credibility of the evidence.

[1] International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Neighbouring States between 1 January and 31 December 1994 (“the ICTR”).

[2] Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A,  Reasons for Judgment, 6 Apr. 2000, para. 22.

[3] Black’s Law Dictionary (7th ed., St. Paul, Minn. 1999).

[4] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“the Tadić Appeals Judgement”).

[5] Tadić Appeals Judgement, para. 64.

[6] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“the Aleksovski Appeals Judgement”), para. 63. 

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

40. […] This Chamber does not operate as a second Trial Chamber.  The role of the Appeals Chamber is limited, pursuant to Article 25 of the Statute, to correcting errors of law invalidating a decision, and errors of fact which have occasioned a miscarriage of justice.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

35. Errors of law do not raise a question as to the standard of review as directly as errors of fact.  Where a party contends that a Trial Chamber made an error of law, the Appeals Chamber, as the final arbiter of the law of the Tribunal, must determine whether there was such a mistake.  A party alleging that there was an error of law must be prepared to advance arguments in support of the contention; but, if the arguments do not support the contention, that party has not failed to discharge a burden in the sense that a person who fails to discharge a burden automatically loses his point.  The Appeals Chamber may step in and, for other reasons, find in favour of the contention that there is an error of law.

36. Furthermore, this Chamber is only empowered to reverse or revise a decision of the Trial Chamber on the basis of Article 25(1)(a) when there is an error of law that invalidates that decision. It is not any error of law that leads to a reversal or revision of the Trial Chamber’s decision; rather, the appealing party alleging an error of law must also demonstrate that the error renders the decision invalid.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

111. The Appeals Chamber supports the conclusion of the Trial Chamber that “there is now general acceptance of the main elements contained in the definition set out in Article 1 of the Torture Convention”,[1] and takes the view that the definition given in Article 1 reflects customary international law.[2]  The Appellant does not dispute this finding by the Trial Chamber.  The Trial Chamber correctly identified the following elements of the crime of torture in a situation of armed conflict:

(i)     . . . the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition

(ii)     this act or omission must be intentional;

(iii)    it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person;

(iv)    it must be linked to an armed conflict;

(v)     at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g., as a de facto organ of a State or any other authority-wielding entity.[3]

Under this definition, in order to constitute torture, the accused’s act or omission must give rise to “severe pain or suffering, whether physical or mental.”

[1] Judgement, para. 161.  See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly on 10 December 1984 and entered into force on 26 June 1987.

[2] Article 1 of the Torture Convention defines torture in the following terms: “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[3] Judgement, para. 162.

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Appeal Judgement - 21.07.2000 FURUNDŽIJA Anto
(IT-95-17/1-A)

237. The Appeals Chamber notes that the practice of the Tribunal with regard to sentencing is still in its early stages.  Several sentences have been handed down by different Trial Chambers but these are now subject to appeal.  Only three final sentencing judgements have been delivered: one by a Trial Chamber established for sentencing purposes following a successful appeal by the accused in Erdemović,[1] and the others by the Appeals Chamber in Tadić and Aleksovski,[3] each of which has resulted in a revision of the sentence imposed by the original Trial Chamber.  It is thus premature to speak of an emerging “penal regime”,[4] and the coherence in sentencing practice that this denotes.  It is true that certain issues relating to sentencing have now been dealt with in some depth; however, still others have not yet been addressed.  The Chamber finds that, at this stage, it is not possible to identify an established “penal regime”.  Instead, due regard must be given to the relevant provisions in the Statute and the Rules which govern sentencing, as well as the relevant jurisprudence of this Tribunal and the ICTR, and of course to the circumstances of each case.

[1] Second Erdemović Sentencing Judgement.

[2] Tadić Sentencing Appeals Judgement.

[3] Aleksovski Appeals Judgement.

[4] Even including a decision from the ICTR Appeals Chamber (Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgment, 6 Apr. 2000, which affirmed the sentence imposed by a Trial Chamber), the number of final sentencing decisions from two Tribunals is limited to four. 

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Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

120. The Appeals Chamber would emphasise that Defence Counsel appearing before the Tribunal have a duty of diligence. This duty is expressly set forth in the Code of Professional Conduct for Defence Counsel (the "Code of Conduct") adopted by the Judges of the Tribunal under Article 14 of the Statute. Article 6 of the Code of Conduct states that:

"Counsel must represent a client diligently in order to protect the client’s best interests. Unless the representation is terminated, Counsel must carry through to conclusion all matters undertaken for a client within the scope of his legal representation." (Emphasis added.)

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Other instruments Code of Professional Conduct for Defence Counsel (ICTR);
Article 6
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Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

74. Article 9 of the Statute of the Tribunal sets forth the principle of non bis in idem. The Appeals Chamber accepts the interpretation of this Article and Article 10 of the Statute of ICTY[1] given by various Trial Chambers of the international criminal Tribunals whereby:

- Article 9 (2) of the Statute sets a limit on the extent to which the Tribunal can prosecute persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law;[2]

- The non bis in idem principle applies only where a person has effectively already been tried. The term "tried" implies that proceedings in the national Court constituted a trial[3] for the acts covered by the indictment brought against the Accused by the Tribunal[4] and at the end of which trial a final judgement is rendered.[5]

[1] These provisions of the ICTY and ICTR Statutes are identical for all practical purposes. Moreover, the non bis in idem principle is set out in paragraph 7 of Article 14 of the International Covenant on Civil and Political Rights in the following terms: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country".

[2] Case No. ICTR-96-7-D, The Prosecutor v. Thenoeste Bagosora, "Decision on the Application by the Prosecutor for a Formal Request for Deferral", Trial Chamber I, 17 May 1996, para. 13: "Article 9.2 of the Tribunal’s Statute, concerning the principle of non bis in idem, sets limits to the subsequent prosecution by the Tribunal of persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law". See also Case No. ICTR-96-5-D, The Prosecutor v. Musema, "Decisions on the Formal Request for Deferral Presented by the Prosecutor", Trial Chamber I, 12 March 1996, para. 12.

[3] Case No. IT-94-1-T, The Prosecutor v. Duško Tadić, "Decision on the Defence Motion on the Principle of non bis in idem", Trial Chamber II, 14 November 1995, paras. 9-11.

[4] "[…] There can be no violation of non bis in idem, under any known formulation of that principle, unless the accused has already been tried. Since the accused has not yet been the subject of a judgement on the merits on any of the charges for which he has been indicted, he has not yet been tried for those charges. As a result, the principle of non bis in idem does not bar his trial before this Tribunal" (ibid., para. 24.)

[5] Ibid., para. 22.

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ICTR Statute Article 9 ICTY Statute Article 10
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2. The right of the suspect[1] to be informed promptly of the nature of the charges against him

78. The Appeals Chamber holds that a suspect arrested by the Tribunal has the right to be informed promptly of the reasons for his or her arrest.[2] In accordance with the norms of international human rights law,[3] the Appeals Chamber has also accepted that this right comes into effect from the moment of arrest and detention.[4]

[1] In its consideration of subsections D 2 to D 5 of Part V of this Decision, the Appeals Chamber takes note of the distinction made in the Barayagwiza Decision of 3 November 1999 regarding the Appellant’s status. Under Rule 2, he remains a "suspect" until an indictment against him is confirmed; thereafter he becomes an "accused". The relevance of such a distinction stems from the fact that guaranteed individual rights, in particular as to the permissible length of pre-trial detention, vary depending on the status of the individual concerned (Case No. ICTR-97-19-AR72, Jean-Bosco Barayagwiza v. The Prosecutor, "Decision", Appeals Chamber, 3 November 1999, para. 41).

[2] The Chamber came to an identical conclusion in the Barayagwiza case (ibid., paras. 79-80). Specifically, the right of an arrested individual to be informed promptly of the nature of the charges against him is respected if the indictment against him is served upon him in rapid order. The right to be charged promptly by means of an indictment, as provided for under Article 20 (4) (a) of the Statute, must nevertheless be distinguished from the right to be informed promptly of the nature of the charges on account of which the arrested individual is deprived of his liberty. Confirmation and service of the indictment may follow some time after arrest. However, the individual must be informed in substance of the nature of the charges against him at the time of his arrest or shortly thereafter.

[3] See, in particular, Article 9 (2) of the International Covenant on Civil and Political Rights; Article 5 (2)of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Article 7 (4) of the American Convention on Human Rights.

[4] Op. cit. footnote 103, paras. 81-82. As the Appeals Chamber stresses in these paragraphs of the Barayagwiza Decision, there is no requirement for the Tribunal to provide the suspect with a copy of the arrest warrant or any other document setting forth the charges against him during this initial phase of detention. This right only guarantees the arrested suspect that he will be informed of the reasons why he has been deprived of his liberty.

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ICTR Rule Rule 40 bis
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(ICTR-97-23-A)

107. Under Rule 62, the Appellant’s right to be brought before a Trial Chamber without delay and be formally charged came into effect on the date of his transfer to the Tribunal.[1] […]

[…]

110. The Parties to a case are responsible for the strategies they use in conducting it. […] Counsel for the Appellant consented to having the Appellant’s initial appearance not take place within the shortest possible lapse of time and himself contributed to prolonging it.

111. The Appeals Chamber finds that Counsel’s request has the import of waiving the Appellant’s right to claim violation of his right to be brought before a Trial Chamber without delay and be formally charged.

[1] Rule 62 states that: "Upon his transfer to the Tribunal, the accused shall be brought before a Trial Chamber without delay, and shall be formally charged […]".

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ICTR Rule Rule 62 ICTY Rule Rule 62
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Decision - 01.06.2000 SEMANZA Laurent
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112. Neither the Statute nor the Rules of the Tribunal specifically address writs of habeas corpus. However, the Appeals Chamber has already pointed out that the possibility for a detained individual to have recourse to an independent judicial authority for review of the lawfulness of his detention is "well established by the Statute and Rules".[1] This is a fundamental right and is enshrined in international human rights law,[2] which also provides that the right of an individual to challenge the lawfulness of his detention implies that "a writ of habeas corpus must be heard".[3]

113. The Appeals Chamber wishes to confirm the principle which it laid down in the Barayagwiza case: if an accused files a writ of habeas corpus, the Tribunal must hear it and rule upon it without delay, as principal instruments of international human rights law prescribe.[4] If such a writ is filed but not heard, the Chamber will find that a fundamental right of the accused has been violated.

[1] Case No. ICTR-97-19-AR72, Jean-Bosco Barayagwiza v. The Prosecutor, "Decision", Appeals Chamber, 3 November 1999, para. 88.

[2] Ibid., paras. 88-89. See in particular Article 8 of the Universal Declaration of Human Rights; Article 9 (4) of the International Covenant on Civil and Political Rights; Article 5 (4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and Article 7 (6) of the American Convention on Human Rights.

[3] Ibid., para. 89.

[4] Ibid., para. 88.

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