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Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

12.     Even where counsel has failed to demonstrate good cause justifying the late filing, the Appeals Chamber may recognize submissions as validly filed where they are of such substantial importance to the appeal that doing so is in the interests of justice.[1] Extensions may also be granted where counsel’s conduct has not sufficiently protected the rights of the appellant.[2] The Appeals Chamber considers that the Appeal Brief is of substantial importance to the protection of the rights of the appellant. To reject it could result in the dismissal of Munyarugarama’s appeal.[3] Moreover, recognizing the Appeal Brief as validly filed would not prejudice the Prosecution, which responded to the Appeal Brief, or impact the timely consideration of this appeal.[4] Consequently, the Appeals Chamber finds that it is in the interests of justice to recognize the Appeal Brief as validly filed. 

[1] See Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Decision on Matthieu Ngirumpatse’s Motion for an Extension of Time for the Filing of his Brief in Reply, 22 August 2012 (“Karemera Decision of 22 August 2012”), para. 7. See also Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, para. 8; Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-AR65.3, Decision on Ljube Boškoski’s Interlocutory Appeal on Second Motion for Provisional Release, 28 August 2006, para. 9.

[2] See Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Prosper Mugiraneza’s Motion for Extension of Time to File his Appellant’s Brief, 26 January 2012, para. 10.

[3] Rule 14(E) of the Rules states that an appellant “shall” file an appeal brief within fifteen days after the filing of the notice of appeal. Likewise, the ICTR Practice Direction, which applies mutatis mutandis to appeals filed before the Mechanism, states that an appellant “must” file the appeal brief within 15 days after the filing of the notice of appeal. See ICTR Practice Direction, para. 5; Practice Direction, para. 1. Failure to file an appeal brief may lead the Appeals Chamber to consider that the right of appeal has been waived. Cf. The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement (Reasons), 1 June 2001 (“Kayishema and Ruzindana Appeal Judgement”), para. 46.

[4] See Karemera Decision of 22 August 2012, para. 7; Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Appeal against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Uwinkindi Decision of 16 December 2011”), para. 16.

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Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

4.       The Appeals Chamber recalls that the Mechanism was established pursuant to United Nations Security Council Resolution 1966 (2010) and possesses the material, territorial, temporal, and personal jurisdiction of the ICTR.[1] The Mechanism’s current mandate is to continue the jurisdiction, rights and obligations, and essential functions of the ICTR.[2] On 1 July 2013, this mandate shall expand to include the same responsibilities with respect to the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“ICTY”).[3]

5.       In this vein, the Statute and the Mechanism’s Rules of Procedure and Evidence (“Rules”) reflect normative continuity with the Statute of the ICTR (“ICTR Statute”), the Statute of the ICTY (“ICTY Statute”) as well as the ICTR Rules and the ICTY Rules of Procedure and Evidence (“ICTY Rules”). These parallels are not simply a matter of convenience or efficiency but serve to uphold principles of due process and fundamental fairness, which are the cornerstones of international justice.

6.       The Appeals Chamber accordingly considers that it is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ICTR and ICTY, which developed for over a decade prior to the establishment of the Mechanism. Likewise, where the respective Rules or Statutes of the ICTR or ICTY are at issue, the Appeals Chamber is bound to consider the relevant precedent of these tribunals when interpreting them. The Appeals Chamber will bear these principles in mind when considering the parties’ submissions.

[1] United Nations Security Council Resolution 1966, U.N. Doc. S/RES/1966, 22 December 2010 (“Security Council Resolution 1966”), paras. 1, 4, and Annex 2; Statute of the Mechanism (“Statute”), preamble, Art. 1.

[2] Security Council Resolution 1966, paras. 1, 4; Statute, preamble, Arts. 1, 2.

[3] Security Council Resolution 1966, paras. 1, 4; Statute, preamble, Arts. 1, 2.

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Notion(s) Filing Case
Decision on Referral - 05.10.2012 MUNYARUGARAMA Pheneas
(MICT-12-09-AR14)

18.     The Referral Chamber transferred Munyarugarama’s case to Rwanda pursuant to Rule 11bis of the ICTR Rules.[1] Rule 11bis of the ICTR Rules allows a designated trial chamber to refer a case to a competent national jurisdiction for trial if it is satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out. In assessing whether a State is competent within the meaning of Rule 11bis of the ICTR Rules to accept a case from the ICTR, a designated trial chamber must consider whether the accused will be accorded the fair trial rights set out in Article 20 of the ICTR Statute, whether the State in question has a legal framework which criminalizes the alleged conduct of the accused, and whether it provides an adequate penalty structure.[2] The penalty structure within the State must provide an appropriate punishment for the offences for which the accused is charged, and conditions of detention must accord with internationally recognized standards.[3]

19.     In considering an appeal from a decision under Rule 11bis of the ICTR Rules, the Appeals Chamber of the ICTR has stated:

The trial chamber has the discretion to decide whether to refer a case to a national jurisdiction, and the Appeals Chamber will only intervene if the trial chamber’s decision was based on a discernible error. To demonstrate such error, an appellant must show that the trial chamber: misdirected itself either as to the legal principle to be applied or as to the law which is relevant to the exercise of its discretion; gave weight to irrelevant considerations; failed to give sufficient weight to relevant considerations; made an error as to the facts upon which it has exercised its discretion; or reached a decision that was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the trial chamber must have failed to exercise its discretion properly.[4]

The Appeals Chamber of the Mechanism adopts this standard of review in considering the present appeal.

[1] Impugned Decision [The Prosecutor v. Phénéas Munyarugarama, Case No. ICTR-02-79-R11bis, Decision on the Prosecutor’s Request for Referral of the Case to the Republic of Rwanda, 28 June 2012 ], pp. 15, 16.

[2] Uwinkindi Decision of 16 December 2011, para. 22; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 4 December 2008 (“Hategekimana Decision of 4 December 2008”), para. 4; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 30 October 2008 (“Kanyarukiga Decision of 30 October 2008”), para. 4. See also The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecution’s Appeal against Decision on Referral under Rule 11bis, 9 October 2008 (“Munyakazi Decision of 9 October 2008”), para. 4.

[3] Uwinkindi Decision of 16 December 2011, para. 22; Hategekimana Decision of 4 December 2008, para. 4; Kanyarukiga Decision of 30 October 2008, para. 4; Munyakazi Decision of 9 October 2008, para. 4.

[4] Uwinkindi Decision of 16 December 2011, para. 23 (internal citations omitted).

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Notion(s) Filing Case
Amicus Curiae Decision - 21.09.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

At pages 3-4 of the Decision, the Appeals Chamber denied the application for leave to submit an amicus curiae brief.

CONSIDERING that, although the victims of Karadžić’s alleged crimes may have a valuable “human and historical” perspective to offer[1] and have “a special interest in seeing that history accurately records their suffering and the reasons they suffered”,[2] a proposed amicus curiae’s “contentious application of th[e] law to the facts of the case and its conclusions that the Trial Chamber erred in a number of areas is not helpful to the Appeals Chamber”;[3]

CONSIDERING that the Applicants’ proposed amicus curiae brief is not limited to questions of law, but provides interpretations of evidence and repeats the task undertaken by the Trial Chamber and the parties in their submissions on appeal;[4]

FINDING, therefore, that the proposed amicus curiae brief does not assist the Appeals Chamber in the determination of the present appeal and, thus, is not admissible under Rule 74 of the Rules;

[1] Application [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR98bis.1, Application for Leave to Submit an Amicus Brief on Behalf [of] Satko Mujagić, Fikret Alić and the Association of Witnesses and Survivors of Genocide Concerning Judgement of Acquittal Under Rule 98 bis, 31 August 2012], para. 9.

[2] Application, para. 14.

[3] Hartmann Decision [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Decision on Application for Leave to File Amicus Curiae Brief, 5 February 2010], para. 7. See also Gotovina Decision [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Decision on Application and Proposed Amicus Curiae Brief, 14 February 2012], para. 11.

[4] See Application, paras 7-13. See also Gotovina Decision, para. 11.

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ICTR Rule Rule 74 ICTY Rule Rule 74
Notion(s) Filing Case
Amicus Curiae Decision - 21.09.2012 KARADŽIĆ Radovan
(IT-95-5/18-AR98bis.1)

CONSIDERING that although the principal mandate of the Appeals Chamber is to consider legal errors invalidating the Trial Chamber’s Judgement or factual errors occasioning a miscarriage of justice,[1] it has repeatedly held that it may also consider legal issues that are “of general significance to the Tribunal’s jurisprudence,”[2] even if they do not affect the verdict, so long as they have a “nexus with the case at hand,”[3] and that such determinations do not constitute impermissible “advisory opinions,”[4] but are instead necessary means of moving forward this ad hoc International Tribunal’s jurisprudence within the limited time in which it operates and contributing meaningfully to the overall development of international criminal law;[5]

[1] Statute of the International Tribunal, Art. 25.

[2] Prosecutor v. Tadi}, Case No. IT-94-1-A, Judgement, 15 July 1999, paras 247 and 281; Prosecutor v. Jean-Paul Akeyesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement), para. 19; Prosecutor v. Delali}, Muci}, Deli}, and Land`o et al., Case No. IT-96-21-A, Judgement, 20 February 2001, paras. 218 and 221.

[3] Akayesu Appeal Judgement, para. 24.

[4] Id. para 23.

[5] Id. paras. 21-22.

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Notion(s) Filing Case
Decision on Lawyer-Client Privilege - 16.07.2012 POPOVIĆ et al.
(IT-05-88-A)

In this decision, the Appeals Chamber dealt with the Prosecution’s requests to appoint an independent counsel to review potentially privileged material received from the Serbian Authorities on 22 January 2010 and 9 March 2010 for the limited purpose of determining whether any lawyer-client privilege.

7. The Appeals Chamber recalls that, pursuant to Rule 97 of the Rules, all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure in the absence of the client’s consent or voluntary disclosure to a third party. This privilege is vital to the defence of an accused or appellant by allowing for the open communication between attorney and client necessary for effective legal assistance as guaranteed under Article 21(4)(d) of the Statute. […]

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 97 ICTY Rule Rule 97
Notion(s) Filing Case
Decision on Lawyer-Client Privilege - 16.07.2012 POPOVIĆ et al.
(IT-05-88-A)

7. […] In the circumstances of this case, the Appeals Chamber finds that should the Prosecution take steps to fulfil its disclosure obligations, a risk would arise that privileged communications would be exposed to the Prosecution to the detriment of the Defendants. This creates a conflict for the Prosecution, which must meet its disclosure obligations under Rules 66 and 68 of the Rules while currently in possession of the Potentially Privileged Material [the potentially privileged material received from the Serbian Authorities on 22 January 2010 and 9 March 2010].

8. Despite it being within the ambit of the Appeals Chamber to review the Potentially Privileged Material, there also exists a risk that communications between any of the Defendants and their legal counsel could be revealed to the Appeals Chamber. Additionally, as the Potentially Privileged Material comprises a voluminous amount of documentation,[1] should the Appeals Chamber review the Potentially Privileged Material there will be a considerable delay in the appellate proceedings. In light of the above, and out of concern for efficiency and expeditiousness, the Appeals Chamber considers that the best course of action under the circumstances presented is for a Judge of the Tribunal not sitting on the Popović et al. Bench to review the Potentially Privileged Material in order to determine whether lawyer-client privilege attaches to any of the material in question.

[1] See OTP Report of 29 January 2010 [Confidential OTP Report of Investigator Blaszczyk Tomasz [REDACTED] dated 29 January 2010, annexed to the Motion [Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege, 18 November 2011 (confidential with confidential annexes)], paras 2, 10.

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ICTR Rule Rule 97 ICTY Rule Rule 97
Notion(s) Filing Case
Decision on Lawyer-Client Privilege - 16.07.2012 POPOVIĆ et al.
(IT-05-88-A)

9. The Appeals Chamber recalls the function of the President of the Tribunal (“President”) to coordinate the work of the Chambers, which includes the power to assign the resolution of judicial matters to a Trial Chamber, a bench of three judges, or a single judge.[1]

[1] Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, para. 69.

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Notion(s) Filing Case
Decision on Access - 17.05.2012 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

The Appeals Chamber reiterated that that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction and that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction. Nonetheless, the Appeals Chamber specifies for the first time that, while any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

12. Rule 75(F)(i) of the Rules provides that “[o]nce protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the ‘first proceedings’), such protective measures […] shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the ‘second proceedings’) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule”. Pursuant to Rule 75(G) of the Rules, “[a] party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply: (i) to any Chamber, however constituted, remaining seised of the first proceedings; or (ii) if no Chamber remains seised of the first proceedings, to the Chamber seised of the second proceedings.”

13. In this case, variation is not sought for a case before the Tribunal, and Mr. Mungwarere is not “a party to the second proceedings” within the meaning of Rule 75 of the Rules. However, while Rule 75 of the Rules does not provide for such variation, the Appeals Chamber has held that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction, as in the present case.[1] The Appeals Chamber has also considered that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction.[2]

14. However, the Appeals Chamber considers that a distinction must be drawn between requests from a judge or a court from another jurisdiction, and requests emanating from a party to proceedings before another jurisdiction. While any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, the Appeals Chamber considers that a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

16. The Appeals Chamber notes that Mr. Mungwarere expressly refers to the legal standard applicable to requests for access to confidential material by an accused in another case before the Tribunal.[3] However, the Appeals Chamber emphasizes that, in the present instance, access to confidential material is not sought by an accused in another case before the Tribunal, but by an accused before another jurisdiction.

17. In such a case, the Appeals Chamber considers that the material sought should be specifically identified.[4] In addition, as is the case with requests by an accused in proceedings before the Tribunal, the applicant seeking access to confidential material for proceedings before another jurisdiction must demonstrate a legitimate forensic purpose. The Appeals Chamber recalls in this regard that consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the applicant’s case and the case from which such material is sought.[5] The applicant must further establish that this material is likely to assist his case materially, or that there is at least a good chance that it would.[6]

18. Moreover, the Appeals Chamber has repeatedly underscored the importance of the protected witness’s consent to the disclosure of confidential material for proceedings before another jurisdiction.[7] In the absence of such consent, variation of protective measures may only be granted where the applicant demonstrates that the protective measures are no longer justified or that exceptional circumstances warrant the variation sought.[8]

[1] See, e.g., Dominique Ntawukulilyayo v. The Prosecutor, Case No. ICTR-05-82-A, Decision on Prosecutor’s Motion to Rescind Protective Measures for Witnesses, ex parte and confidential, 17 May 2011, para. 3; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Order in Relation to Prosecutor’s Motion to Vary Protective Measures for Witnesses [redacted], ex parte and confidential, 23 July 2010, para. 3; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Order in Relation to Prosecutor’s Motion to Rescind Protective Measures for Witness [redacted], ex parte and confidential, 26 February 2010 (“Bagosora et al. Order of 26 February 2010”), para. 3.

[2] See, e.g., The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Order in Relation to Prosecution Motion to Vary Protective Measures for Witnesses [redacted], ex parte and confidential, 8 February 2012 (“Nyiramasuhuko et al. Order”), para. 2; Jean-Baptiste Gatete v. The Prosecutor, Case No. ICTR‑00-61-A, Decision on Prosecution’s Motion for Variation of Protective Measures Relating to German Proceedings, confidential, 15 July 2011 (“Gatete Decision of 15 July 2011”), para. 6; Jean-Baptiste Gatete v. The Prosecutor, Case No. ICTR-00-61-A, Order in Relation to [redacted] Application for Variation of Protective Measures and Disclosure of Documents, confidential, 1 June 2011 (“Gatete Order of 1 June 2011”), p. 2; Bagosora et al. Order of 26 February 2010, para. 4. The Appeals Chamber emphasizes that, while it has stated on several occasions that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested, inter alia, by a party, it has never granted a request for variation of protective measures which was not from State authorities.

[3] See Motion [Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case, 22 March 2012], paras. 10, 11; Reply to Kanyabashi [Reply to Joseph Kanyabashi’s Response to ‘Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case’, 27 March 2012], para. 3; Reply to the Prosecution [Reply to Prosecutor’s Response to Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case, 10 April 2012], para. 12. The legal standard applicable to requests for access to confidential material from an accused in another case before the Tribunal as defined by the Appeals Chamber is as follows:

A party [before the Tribunal] is entitled to seek material from any source, including another case before the Tribunal, to assist in the preparation of its case. Where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose must be demonstrated. Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought. Further, the requesting party must establish that this material is likely to assist its case materially, or that there is at least a good chance that it would. Once it is determined that confidential material filed in another case may materially assist an applicant, the Chamber shall determine which protective measures shall apply to the material, as it is within the Chamber’s discretionary power to strike the balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information.

See, e.g., Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Decision on Ildephonse Nizeyimana’s Request for Access to Closed Session Transcripts, 31 March 2011, para. 3 (internal references omitted), referring to Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Michel Bagaragaza’s Motion for Access to Confidential Material, 14 May 2009, para. 7. See also, e.g., Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Augustin Ngirabatware’s Motion for Disclosure of Confidential Material Relating to Witness DAK, 23 July 2010, paras. 10, 11.

[4] The date of the witness’s testimony, the pseudonym used to identify the witness, and/or the exhibit number should, for example, be provided.

[5] See supra, fn. 36 [equivalent to fn. 3 here].

[6] See supra, fn. 36 [equivalent to fn. 3 here].

[7] See, e.g., Nyiramasuhuko et al. Order, para. 5; Gatete Order of 1 June 2011, p. 2; Bagosora et al. Order of 26 February 2010, para. 7. See also Gatete Decision of 15 July 2011, paras. 7, 10, 11.

[8] Cf. Nizeyimana Trial Decision [The Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-T, Decision on Defence Motion for Variance of Witness Protective Measures and International Cooperation of the Government of Canada, 23 June 2011], paras. 14, 18; The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Decision on Prosecutor’s Urgent Ex Parte Motion to Vary Protective Measures for Prosecution Witness CNAT, 16 September 2010, para. 11; Simba Trial Decision [The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-R75, Decision on Charles Munyaneza’s Motion for Disclosure of Documents Related to Protected Witnesses Before the Tribunal, 9 April 2008], para. 8. Cf. also Rule 81(B) of the Rules (“The Trial Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering the non disclosure no longer exist.”).

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Appeal Judgement - 08.05.2012 HATEGEKIMANA Idelphonse
(ICTR-00-55B-A)

13. At a ceremony held at the Tribunal on 25 October 2010, the Tribunal named the winners of the “Essays and Drawings Competition”, which involved students from schools in five East African countries. Some of the drawings entered into this competition were then displayed at the Tribunal.[1] According to Hategekimana, one of the first prizes in the competition was awarded to a 12-year old girl from Butare Prefecture, whose drawing depicts a Judge from the Tribunal pointing his finger at an accused and saying the words: “You Hategekimana […] tell what you have done in genocide. You, Hategekimana you will go in prison 30 years”, while the accused is shown uttering the words: “I have killed 77 people”.[2] Hategekimana contends that this drawing, which was exhibited in the corridors of the Tribunal before the delivery of the Trial Judgement, could be admired by the Judges of the Trial Chamber and that a legal officer involved in the drafting of the Trial Judgement was part of the competition’s jury.[3] At the pronouncement of the Trial Judgement, Hategekimana complained about the exhibition of the drawing and the Trial Chamber ordered that it be placed under seal.[4]

16. Article 20(3) of the Statute guarantees that an accused person shall be presumed innocent until proven guilty. In addition, the Statute and Rules guarantee an accused’s right to be tried by impartial Judges.[5] Rule 15(A) of the Rules specifically provides that “[a] Judge may not sit in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality.” In particular, a Judge must withdraw from a case if it is shown that actual bias exists or if the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[6] The Appeals Chamber has also emphasized that there is a presumption of impartiality which attaches to any judge of the Tribunal and which cannot be easily rebutted.[7] Accordingly, it is for the appealing party alleging bias to adduce reliable and sufficient evidence to rebut that presumption.[8] The Appeals Chamber cannot entertain sweeping or abstract allegations that are neither substantiated nor detailed to rebut the presumption of impartiality.[9]

17. The Appeals Chamber acknowledges that it was highly improper to have a drawing of such nature on display in the corridors of the Tribunal during an ongoing trial and that this should have been avoided. However, it considers that Hategekimana provides no support for his allegation that the Judges in his case saw the drawing containing the handwritten inscriptions or posed for a photograph in front of it. The Appeals Chamber observes that none of the Trial Chamber’s Judges features in the photographs referred to by Hategekimana.[10] In any event, even if the Trial Chamber’s Judges had viewed the drawing, this would not be sufficient to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of those Judges.

[1] Appeal Brief [Corrigendum au mémoire d’appel d’Ildephonse Hategekimana déposé le 30/05/11, 2 June 2011], Annex A (ICTR Newsletter, October 2010, pp. 1, 2; ICTR Newsletter, May-June 2010, p. 7; ICTR Newsletter, July-August 2010, p. 7; ICTR Newsletter, September 2010, pp. 1, 2).

[2] Appeal Brief, para. 9; Reply Brief [Mémoire en réplique de l’appelant Ildephonse Hategekimana, 27 July 2011], para. 36. See also Appeal Brief, Annex A; AT. 15 December 2011 p. 8.

[3] Notice of Appeal [Acte d’appel amendé du Lieutenant Ildephonse Hategekimana conformément à la décision intitulée «Order for the Filing of Ildephonse Hategekimana’s Proposed Amended Notice of Appeal rendue par le Juge de mise en état en appel le 23 mai 2011, 30 May 2011], para. 26; Appeal Brief, paras. 10, 11, 13.

[4] T. 6 December 2010 pp. 2, 3. See also AT. 15 December 2011 p. 4.

[5] Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.15, Decision on Joseph Nzirorera’s Appeal Against a Decision of Trial Chamber III Denying the Disclosure of a Copy of the Presiding Judge’s Written Assessment of a Member of the Prosecution Team, 5 May 2009 (“Karemera et al. Decision of 5 May 2009”), para. 9; Nahimana et al. Appeal Judgement, para. 47.

[6] Karemera et al. Decision of 5 May 2009, para. 9. See also Nahimana et al. Appeal Judgement, para. 49, citing Akayesu Appeal Judgement, para. 203 (“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.”). See also Furundžija Appeal Judgement, para. 189.

[7] Renzaho Appeal Judgement, para. 21; Nahimana et al. Appeal Judgement, para. 48; Galić Appeal Judgement, para. 41; Akayesu Appeal Judgement, para. 91; Karemera et al. Decision of 5 May 2009, para. 11; Delalić et al. Appeal Judgement, para. 707; Furundžija Appeal Judgement, paras. 196, 197.

[8] Renzaho Appeal Judgement, para. 23; Karera Appeal Judgement, para. 254; Nahimana et al. Appeal Judgement, para. 48; Niyitegeka Appeal Judgement, para. 45. See also Rutaganda Appeal Judgement, para. 42; Furundžija Appeal Judgement, para. 197.

[9] Renzaho Appeal Judgement, para. 23; Rutaganda Appeal Judgement, para. 43; Ntagerura et al. Appeal Judgement, para. 135.

[10] Appeal Brief, Annex A (ICTR Newsletter, October 2010, pp. 2, 11).

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ICTR Rule Rule 15 ICTY Rule Rule 15
Notion(s) Filing Case
Appeal Judgement - 08.05.2012 HATEGEKIMANA Idelphonse
(ICTR-00-55B-A)

20. The Appeals Chamber considers that Hategekimana’s submissions are based on the erroneous premise that legal officers play a controlling role in judicial decision-making.[1] The Appeals Chamber has previously held that “[j]udicial decision-making is the sole purview of the Judges and legal officers […] play no role in it.”[2] The Appeals Chamber further considers that “mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves”,[3] to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges. The Appeals Chamber does not find that the role of the legal officer in the competition is “so problematic” as to impugn the impartiality of the Judges or the appearance thereof.[4] Therefore, there is no merit to Hategekimana’s contention that the Trial Chamber erred in allowing the legal officer to be involved in the drafting process of the Trial Judgement.

[1] Bizimungu et al. Decision of 17 December 2009 [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR-73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], para. 9.

[2] Bizimungu et al. Decision of 17 December 2009, para. 9.

[3] Bizimungu et al. Decision of 17 December 2009, para. 10.

[4] Bizimungu et al. Decision of 17 December 2009, para. 11. The Appeals Chambers further observes that it is not apparent whether the handwritten dialogue appearing on the drawing, which mentions Hategekimana, formed part of the original drawing that was entered into the competition or whether it was added later when the drawing was on display after the competition. See T. 6 December 2010 pp. 2-4. Compare Hategekimana Appeal Brief, para. 9 with Hategekimana Reply Brief, para. 36. The two drawings are annexed to a motion contained in Appeal Brief, Annex A (The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Requête en extrême urgence du Lieutenant Ildephonse Hategekimana aux fins de nullité de procédure et de sa mise en liberté avec arrêt définitif des poursuites pour violation grave de son droit à la présomption d’innocence, 17 December 2010, Annex, Registry pagination 293/A, 292/A). Consequently, the Appeals Chamber is not persuaded that the Trial Chamber’s legal officer observed the handwritten inscription concerning Hategekimana’s guilt when judging the competition.

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Appeal Judgement - 08.05.2012 HATEGEKIMANA Idelphonse
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62. Article 3 of the Statute requires that the crimes be committed “as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.”[1] Hategekimana fails to appreciate that the Trial Chamber did not situate Rugomboka’s murder in the context of a widespread and systematic attack that was limited to Ngoma Commune or Butare Prefecture. Rather, the Trial Chamber found that this killing formed part of “a systematic attack against the civilian population on political grounds” occurring “throughout Rwanda, including various parts of Butare [Prefecture].”[2] In view of this finding, it is immaterial that the Trial Chamber did not point to evidence that there was a widespread and systematic attack specifically in Ngoma Commune or Butare Prefecture as of 7 April 1994.[3] Hategekimana has not challenged on appeal the reasonableness of the Trial Chamber’s finding that this murder related to a systematic attack on political grounds which took place throughout Rwanda.

[1] Emphasis added. See also Mrkšić and Šljivančanin Appeal Judgement, para. 41; Kunarac et al. Appeal Judgement, para. 100.

[2] Trial Judgement [The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-T, Judgement and Sentence, pronounced on 6 December 2010, filed in writing on 14 February 2011], para. 710 (emphasis added).

[3] See Bagosora and Nsengiyumva Appeal Judgement, para. 390 (“Nsengiyumva’s argument that the Trial Chamber erred in ‘taking the country of Rwanda as one crime scene’ implies that, in order to qualify as crimes against humanity, the attacks in Gisenyi should have been shown to have been widespread or systematic independently of attacks taking place elsewhere in Rwanda. Such a suggestion is, however, erroneous, as the requirement is that the attacks be committed within a broader context, that is, as part of a widespread or systematic attack.”).

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162. The Appeals Chamber is satisfied that the Trial Chamber reasonably relied on Witness Sezirahiga’s testimony in finding that the actus reus of rape was established. It follows from the Trial Judgement that Witness Sezirahiga observed the commission of the crime from a distance of four meters.[1] Although the witness was not specifically asked about the penetration of his daughter, he clearly and constantly used the word “rape” throughout his testimony to describe what happened to her.[2] The Appeals Chamber is satisfied that this term was reasonably understood in the context of this case as sexual penetration by the witness, the Trial Chamber, and the parties.[3] In this respect, the Appeals Chamber notes that Hategekimana did not dispute at trial that Nura Sezirahiga was raped.[4] The Appeals Chamber therefore finds no merit in his challenge to this aspect of the Trial Chamber’s finding on appeal.

[1] Trial Judgement, para. 459.

[2] T. 6 April 2009 pp. 8, 41. In addition, as accepted by the Trial Chamber, Witness Sezirahiga clearly recounted that Murigande immobilized his daughter during the rape. See T. 6 April 2009 p. 41; Trial Judgement, para. 461. See also infra para. 199.

[3] The Appeals Chamber recalls that in the Kordić and Čerkez case, the ICTY Appeals Chamber considered that a trial chamber reasonably found that a woman was sexually assaulted even though the victim’s testimony was limited to answering in the affirmative to a question posed by the Prosecution as to whether or not she had suffered sexual assault. See Kordić and Čerkez Appeal Judgement, para. 462.

[4] Rather, Hategekimana focused principally on the credibility of the evidence implicating him and soldiers from the Ngoma Military Camp in the attack. See Defence Closing Brief [Mémoire final de la défence d’Ildephonse Hategekimana, 1 February 2012 (the Englsih translation was filed on 23 March 2012)], paras. 455-473; T. 26 April 2010 p. 61. The Appeals Chamber further observes that Hategekimana referred to the perpetrator of the crime as a “rapist” in his Closing Brief. See Defence Closing Brief, para. 462 (“It emerges clearly from the testimony of this witness that although he claimed that his daughter, Nura Sezirahiga, was raped by a soldier, on the orders of Michel Muligande, nothing in his testimony identifies the rapist. In the presentation of its evidence, the Prosecution was never able to prove the identity of the person who raped the witness’s daughter.”).

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

26. It is well established that trial chambers exercise discretion in relation to trial management, which includes decisions on adjournments.[1] The Appeals Chamber’s examination is therefore limited to establishing whether the Trial Chamber abused its discretionary power by committing a discernible error when it refused Kanyarukiga’s request to adjourn the start of the trial.[2] With respect to the laissez-passers, Kanyarukiga submitted to the Trial Chamber that the trial would move forward in a different manner if these documents were to be retrieved and that he was willing to “wait a few more weeks” until the Prosecution presented the results of its inquiry.[3] These arguments did not show that Kanyarukiga needed a postponement of the trial to prepare his defence. He has thus failed to demonstrate that the Trial Chamber abused its discretion in declining his adjournment request.

52. […] the Appeals Chamber notes that the timing of the Trial Chamber’s rulings on the admissibility of Prosecution evidence related to the general conduct of trial proceedings and was thus a matter within the discretion of the Trial Chamber. […]

[1] See, e.g., Šešelj Decision of 16 September 2008 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.8, Decision on Prosecution’s Appeal Against the Trial Chamber’s Order Regarding the Resumption of Proceedings, 16 September 2008], para. 3; Prlić et al. Decision of 1 July 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants Appeal Against “Décision portent attribution du temps à la Défense pour la présentation des moyens à décharge, ” 1 July 2008], para. 15. See also Ngirabatware Decision of 12 May 2009 [Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009], para. 22; Karemera et al. Decision of 28 April 2006 [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006], paras. 7, 8.

[2] See Šešelj Decision of 16 September 2008, para. 3.

[3] T. 31 August 2009 pp. 4, 5, 7. In his motion for certification to appeal the Trial Chamber’s dismissal of his adjournment request, Kanyarukiga further explained that he was willing to accept a temporary infringement of his right to a speedy trial in order to ensure that the Prosecution provided the necessary answers to his queries before proceeding to trial. See The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-T, Motion for Certification to Appeal the Trial Chamber’s Decision on the Defence Motion to Adjourn Proceedings, 7 September 2009 (“Motion for Certification of 7 September 2009”), para. 7. He also stated that “it would be unfair to proceed before having given the Prosecution every chance to find the documents and/or to provide an adequate explanation for their absence.” See Motion for Certification of 7 September 2009, para. 6.

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52. The Appeals Chamber recalls that when a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the trial chamber violated a provision of the Statute and/or the Rules and that this violation caused prejudice which amounts to an error of law invalidating the trial judgement.[1] […] The Appeals Chamber would only reverse such a decision [related to the general conduct of trial proceedings] where it was demonstrated that the Trial Chamber committed a discernible error in rendering the decision, based on an incorrect interpretation of the governing law or a patently incorrect conclusion of fact, or where the decision was so unfair or unreasonable so as to constitute an abuse of the Trial Chamber’s discretion.[2]

[1] Haradinaj et al. Appeal Judgement, para. 17; Krajišnik Appeal Judgement, para. 28.

[2] See, e.g., Kalimanzira Appeal Judgement, para. 14; Rukundo Appeal Judgement, para. 147.

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42. The Appeals Chamber recalls that under Rule 90(F) of the Rules, the trial chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) [m]ake the interrogation and presentation effective for the ascertainment of the truth; and (ii) [a]void needless consumption of time.” Trial chambers therefore enjoy discretion in setting the parameters of cross-examination.[1] When addressing a submission concerning the modalities of cross-examination, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

[1] Rukundo Appeal Judgement, para. 133; Nahimana et al. Appeal Judgement, para. 182. See also Prlić et al. Decision of 4 July 2006 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006], p. 3.

[2] Nahimana et al. Appeal Judgement, para. 182, referring to Rutaganda Appeal Judgement, paras. 99, 102.

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187. […] It is well established that trial chambers have the discretion to accept some but reject other parts of a witness’s testimony.[1] The Appeals Chamber therefore dismisses Kanyarukiga’s assertion that the Trial Chamber was precluded from relying on Witness CDL with respect to the 16 April 1994 meeting because it rejected other parts of his evidence. The Trial Chamber’s rejection of portions of his testimony rather demonstrates that it was fully aware of credibility concerns relating to this witness and that it adopted a cautious approach to his evidence.

[1] Bagosora and Nsengiyumva Appeal Judgement, para. 243; Setako Appeal Judgement, paras. 31, 48; Haradinaj et al. Appeal Judgement, para. 201.

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238. The Appeals Chamber recalls that collusion has been defined as an agreement, usually secret, between two or more persons for a fraudulent, unlawful, or deceitful purpose.[1] If an agreement between witnesses for the purpose of untruthfully incriminating an accused were indeed established, their evidence would have to be excluded pursuant to Rule 95 of the Rules.[2] However, a mere risk of collusion is insufficient to exclude evidence under Rule 95 of the Rules.

[1] Setako Appeal Judgement, para. 137; Renzaho Appeal Judgement, para. 275, referring to Karera Appeal Judgement, para. 234.

[2] Setako Appeal Judgement, para. 137; Renzaho Appeal Judgement, para. 275, referring to Karera Appeal Judgement, para. 234. Rule 95 of the Rules states: “No evidence shall be admissible if obtained by methods which cast substantial doubt on its reliability or if its admission is antithetical to, and would seriously damage, the integrity of the proceedings”.

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76. The Trial Chamber referred to the conversation when assessing Kanyarukiga’s actus reus of planning.[1] Moreover, the Trial Chamber concluded in this context that it was “satisfied beyond reasonable doubt that Gaspard Kanyarukiga, Grégoire Ndahimana, Fulgence Kayishema, Télesphore Ndungutse, Joseph Habiyambere and others planned the destruction of the Nyange [c]hurch on 15 and 16 April 1994 and that the church was destroyed on the afternoon of 16 April 1994, killing those inside.”[2] Accordingly, in the Trial Chamber’s view, Kanyarukiga planned the destruction of the church on both days, his criminal conduct on 15 April 1994 consisting of his conversation with Kayishema.[3] This conversation thus amounted to a material fact that, along with others, underpinned Kanyarukiga’s conviction for planning. Recalling that when the accused is charged with planning, the Prosecution is required to identify the “particular acts” or the “particular course of conduct” on the part of the accused which forms the basis for the charge in question,[4] the Appeals Chamber finds that the conversation should have been pleaded in the Amended Indictment. In this respect, the Amended Indictment was defective.

77. However, as will be discussed below, Kanyarukiga was also held responsible for participating in a meeting at the Nyange parish on the morning of 16 April 1994 where the demolition of the Nyange church was discussed and agreed to as well as for making a remark after the meeting about the need to destroy the church. This conduct was adequately pleaded in the Amended Indictment and is a sufficient basis for Kanyarukiga’s convictions. Therefore, by partly relying on Kanyarukiga’s conversation on 15 April 1994, the Trial Chamber did not commit an error which would invalidate the verdict. The Appeals Chamber therefore declines to consider the issue further[5] and will instead simply disregard the conversation as a basis for Kanyarukiga’s liability.

[1] Trial Judgement [The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-T, Judgement and Sentence, pronounced on 1 November 2010, issued in writing on 9 November 2010], para. 644.

[2] Trial Judgement, para. 645 (emphasis added).

[3] The Appeals Chamber notes that Kanyarukiga was not convicted for crimes which occurred on 15 April 1994. See Trial Judgement, paras. 466-474, 491-496, 499, 633, 643-645.

[4] Uwinkindi Interlocutory Decision, paras. 36, 57; Renzaho Appeal Judgement, para. 53; Karera Appeal Judgement, para. 292; Blaškić Appeal Judgement, para. 213.

[5] See supra, para. 7 (setting out the standards of appellate review [in the Kanyarukiga Appeal Judgement]).

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97. The Appeals Chamber recalls that Rule 67(A)(ii)(a) of the Rules requires the Defence to notify the Prosecution before the commencement of trial of its intent to rely on an alibi. The notification is to “specify the place or places at which the accused claims to have been present at the time of the alleged crime and the names and addresses of the witnesses and any other evidence upon which the accused intends to rely to establish the alibi”.[1] In certain circumstances, failure to raise an alibi in a timely manner can impact a trial chamber’s findings, as the trial chamber may take such failure into account when weighing the credibility of the alibi.[2] The Appeals Chamber recalls that it has previously upheld trial chambers’ inferences that the failure to raise an alibi in a timely manner suggested that the alibi was invented to respond to the Prosecution case.[3]

[1] Rule 67(A)(ii)(a) of the Rules [Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda].

[2] Munyakazi Appeal Judgement, para. 18; Nchamihigo Appeal Judgement, para. 97; Kalimanzira Appeal Judgement, para. 56; Ndindabahizi Appeal Judgement, para. 66.

[3] Cf. Kalimanzira Appeal Judgement, paras. 54-58; Nchamihigo Appeal Judgement, paras. 94-99.

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