Showing 2496 results (20 per page)

Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

22. The Appeals Chamber further observes that in several instances, the Trial Chamber uses confusing language which could be viewed as shifting of the burden of proof onto the Defence to disprove the Prosecution’s case. In such instances, the Trial Chamber stated that “nothing in the evidence suggests” that a conclusion opposite to the one adopted by the Trial Chamber could be reached.[1] The Appeals Chamber finds this language misleading and stresses that the Trial Chamber is required not only to apply the appropriate standard but also to articulate it correctly. That said, the Appeals Chamber considers that, subject to the analysis of the parties’ specific challenges below, the Trial Chamber in fact meant to state that all reasonable doubt was eliminated on the basis of the evidence cited in all such instances.

231. […] It recalls that the Prosecution bears the burden of establishing beyond reasonable doubt facts material to the guilt of an accused and suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[2] […]

[1] E.g., Trial Judgement, paras 250, 266, 276, 289, 310, 324, 341, 354, 364, 393.

[2] See supra, Section III.A.1.

Download full document
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

Having concluded that the Trial Chamber’s findings that Milošević planned and ordered the crimes resulting from the sniping incidents were unreasonable, the Appeals Chamber proceeded to analyse whether he could be held responsible for the same crimes as a superior for having failed to prevent and punish them.

278. However, the Appeals Chamber notes that its findings above do not exclude Milošević being held responsible for the sniping incidents under Article 7(3) of the Statute. The Appeals Chamber notes that the Indictment alleges Milošević’s responsibility for planning and ordering the crimes charged (and in addition or in the alternative, for aiding and abetting the planning, preparation and/or execution of the crimes), as well as for the crimes committed by his subordinates which he knew or had reason to know about and failed to take reasonable and necessary measures to prevent or punish.[1]

279. The Trial Chamber concluded that there was a conflict between the Indictment and the Prosecution Closing Brief as to whether Milošević was charged under Article 7(3) in the alternative, or in addition to, Article 7(1).[2] The Trial Chamber did not pursue the discussion with respect to Milošević’s alleged responsibility under Article 7(3) given that it found him guilty under Article 7(1).[3] The Appeals Chamber recalls that both cumulative and alternative charging on the basis of the same conduct are generally permissible[4] and is satisfied that Milošević’s responsibility under Article 7(3) was correctly pleaded in the present case.

281. The Appeals Chamber is satisfied that, although the Trial Chamber did not convict Milošević under Article 7(3) of the Statute, it made the findings necessary for the establishment of his responsibility under this provision for the sniping incidents. […] Having applied the correct legal framework to the conclusions of the Trial Chamber,[5] the Appeals Chamber is satisfied that Milošević’s responsibility under Article 7(3) of the Statute for having failed to prevent and punish the said crimes committed by his subordinates is established beyond reasonable doubt.

[1] Indictment, paras 19-21.

[2] Trial Judgement, paras 982-984.

[3] Trial Judgement, para. 984, referring to Blaškić Appeal Judgement, para. 91; Krštić Trial Judgement, paras 605, 652 and Krštić Appeal Judgement, fn. 250; Kordić and Čerkez Appeal Judgement, para. 34; Kvočka et al. Appeal Judgement, para. 104; Kajelijeli Appeal Judgement, paras 81, 82; Naletilić and Martinović Appeal Judgement, para. 368.

[4] Naletilić and Martinović Appeal Judgement, paras 102-103.

[5] Cf. Stakić Appeal Judgement, paras 63, 104.

Download full document
ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

57. […] The Appeals Chamber recalls that the protection from attacks afforded to individual civilians by Article 51(2) of Additional Protocol I is suspended pursuant to Article 51(3) of Additional Protocol I when and for such time as they directly participate in hostilities. Accordingly, to establish that the crimes of terror and unlawful attacks against civilians had been committed, the Trial Chamber was required to find beyond reasonable doubt that the victims of individual crimes were civilians and that they were not participating directly in the hostilities.[1] […]

[1] Strugar Appeal Judgement, paras 172, 187; Galić Appeal Judgement, para. 100. See also Galić Trial Judgement, paras 47, 48, 132-133.

Download full document
Other instruments Additional Protocol I: Article 51(2)
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

264. […] In any case, his argument that the attack against Hrasnica could be legitimate as it anticipated concrete and direct military advantage[1] must fail because, due to its disproportionate and indiscriminate nature, it was unlawfully directed against the civilian population in the area.[2] […]

[1] Strugar Appeal Judgement, para. 179, referring to Additional Protocol I, Articles 51(5)(b), 57(2)(a)(iii) and 57(2)(b); Galić Trial Judgement, para. 58 (and sources cited therein); Galić Appeal Judgement, paras 191-192.

[2] See supra, Section VII.B, para. 142. As consistently held by the Appeals Chamber, “whether an attack was ordered as pre-emptive, defensive or offensive is from a legal point of view irrelevant […]. The issue at hand is whether the way the military action was carried out was criminal or not.” (Martić Appeal Judgement, para. 268, quoting Kordić and Čerkez Appeal Judgement, para. 812). See also supra, para. 250.

Download full document
Notion(s) Filing Case
Appeal Judgement - 12.11.2009 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

268. […] [T]he Appeals Chamber recalls that the actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[1] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.[2] The mens rea for this mode of responsibility entails the intent to plan the commission of a crime or, at a minimum, the awareness of the substantial likelihood that a crime will be committed in the execution of the acts or omissions planned.[3]

274. […] [T]he Appeals Chamber notes that the Trial Chamber’s conclusions that Milošević planned the shelling incidents are based on essentially the same set of facts. In the circumstances of this case, the Appeals Chamber proprio motu finds that Milošević’s responsibility for ordering fully encompasses his criminal conduct and thus does not warrant a conviction for planning the same crimes.[4]

[1] Nahimana et al. Appeal Judgement, para. 479, referring to Kordić and Čerkez Appeal Judgement, para. 26.

[2] Kordić and Čerkez Appeal Judgement, para. 26. Although the French version of the Judgement uses the terms “un élément déterminant”, the English version – which is authoritative – uses the expression “factor substantially contributing to”.

[3] Nahimana et al. Appeal Judgement, para. 479, referring to Kordić and Čerkez Appeal Judgement, paras 29, 31.

[4] Cf., with respect to ordering and aiding and abetting, Kamuhanda Appeal Judgement, para. 77, referring to Semanza Appeal Judgement, paras 353, 364; and, with respect to planning and committing, Brđanin Trial Judgement, para. 268, referring to Blaškić Trial Judgement, para. 278; Kordić and Čerkez Trial Judgement, para. 386.

Download full document
ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Decision on Motions to Strike and Word Limit - 06.11.2009 HARTMANN Florence
(IT-02-54-R77.5-A)

13. […] the Appeals Chamber considers that the Appellant’s persistent and pervasive use of alternative formulations for alleged errors of law and alleged errors of fact throughout the Notice of Appeal leads to imprecision and confusion and does not give the Amicus Prosecutor sufficient notification of the scope of the appeal.  If the Appellant is of the view that an issue is one of law, then this should be stated.  If it is one of fact, then it should be stated as such.  Only where there is a genuine issue of mixed law and fact, or where there is a real uncertainty, should an alternative formulation be used. 

14. Finally, the Appeals Chamber recalls that “[t]he only formal requirement under the Rules is that the notice of appeal contains a list of the grounds of appeal; it does not need to detail the arguments that the parties intend to use in support of the grounds of appeal, the place for detailed arguments being in the Appellant’s brief.”[1]  The Appeals Chamber notes that the Notice of Appeal is so long and complex that it is difficult for the Appeals Chamber to separate out the grounds and sub-grounds of appeal therein from what might be argumentation.  Moreover, the Notice of Appeal contains sections that are clearly argumentation […]. The Appellant is reminded that a notice of appeal requires her to clearly specify the alleged error in question and then identify the challenged finding or ruling in the judgement or decision.  Detailed argumentation is to be included in the appeal brief.  In light of the foregoing, the Appellant is instructed to re-file the Notice of Appeal in conformity with the above requirements.

[1] Prosecutor v. Mrkšić and Šljivančanin, Case No. IT-95-13/1-A, Decision on the Prosecution’s Motion to Order Veselin Šljivančanin to Seek Leave to File an Amended Notice of Appeal and to Strike New Grounds Contained in His Appeal Brief, 26 August 2008, para. 8.

Download full document
ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Motions to Strike and Word Limit - 06.11.2009 HARTMANN Florence
(IT-02-54-R77.5-A)

23. The Appeals Chamber finds that the Appellant has failed to demonstrate that the factors cited in support of her Motion to Exceed Word Limit constitute exceptional circumstances. She has asserted the complexity of the legal and factual issues on appeal[1] without defining exactly what these complexities are. It is also well established that the number of grounds and sub-grounds of appeal,[2] the number of authorities cited,[3] and the extensiveness of the trial record and length of the trial[4] do not inevitably impede an appellant’s ability to present salient and cogent appeal briefs within the prescribed word limit, and that these factors do not therefore, in and of themselves, constitute exceptional circumstances. Regarding the Appellant’s assertion that an extension of the word limit is also necessitated by the Trial Chamber’s refusal to grant the Appellant’s requests for leave to appeal three of the Trial Chamber’s preliminary decisions, the Appeals Chamber notes that the Appellant has failed to explain precisely why this is the case. The mere fact that the Trial Chamber denied the requests for leave to appeal these three decisions does not invariably prevent the Appellant from concisely discussing the most relevant aspects of these decisions within the prescribed word limit.

24. While a number of the issues on appeal, including an examination of European and international law on freedom of expression, are important issues, the significance of the issues on appeal does not in and of itself prevent an appellant from presenting sound submissions on those issues within the set word limit.[5] The quality and effectiveness of an appellant’s brief are not contingent on the length of the submissions, but on the cogency and clarity of the arguments presented.[6] In the instant case the Appeal is somewhat unnecessarily repetitive.[7] Also, the discussion of certain related issues extending over numerous paragraphs could be consolidated into fewer paragraphs, and more concise phrasing used throughout the Appeal as a whole.[8]  In view of the foregoing therefore, the Appellant’s request for extension of the word limit is, by majority, Judge Morrison dissenting, denied.

[1] In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Motion Seeking Extension of Word Limit for Appeals Brief, 9 October 2009, para. 9.

[2] Prosecutor v. Enver Hadžihasanović, Amir Kubura, IT-01-47-A, Decision on Defence Motion on Behalf of Enver Hadžihasanović Seeking Leave to Exceed Words [sic] Limit for the Appeal Brief, 22 January 2007, p. 3; Prosecutor v. Naser Orić, Case No. IT-03-68-A, Decision on Defence Motion for Extension of Word Limit for Defence Appellant’s Brief, 6 October 2006, p. 3 (“Orić Decision”).

[3] Prosecutor v. Sefer Halilović, Decision on Motion for Extension of Number of Words for Respondent’s Brief, 14 July 2006, pp. 3-4.

[4] Prosecutor v. Radoslav Brđanin, IT-99-36-A, Decision on Appellant’s Motion for Extension of Time Limit to File a Consolidated Brief and For Enlargement of Page Limit, 22 June 2005, para. 12.

[5] In the Orić Decision, the Appeals Chamber stated at p. 3 that “[…] although this appeal raises important legal and factual issues, the Defence is required to demonstrate exceptional circumstances which distinguish this case and necessitate an extension of the prescribed word limits.”

[6] Id.

[7] Thus, for example, para. 62 of the Appeal Brief in essence repeats para. 57. Similarly, as the Prosecution correctly observes at para. 20 of the Amicus Curiae Prosecutor’s Response, para. 196 of the Appeal Brief repeats verbatim an extract from an interview previously quoted at para. 172.

[8] For example, paras 57, 59, 63 and 64 are somewhat repetitive in substance and the phrasing used could be more concise.

Download full document
Other instruments Practice Direction on the Length of Briefs and Motions (ICTY).
Notion(s) Filing Case
Decision on Motions to Strike and Word Limit - 06.11.2009 HARTMANN Florence
(IT-02-54-R77.5-A)

16. The Appeals Chamber does not agree with the Appellant that the participation of the Amicus Prosecutor would have the “incongruous effect of allowing a proxy of the Trial Chamber to defend on appeal the case that it has prosecuted on its behalf”.[1]  This argument is based upon the faulty premise that the Amicus Prosecutor and the Trial Chamber were one and the same entity.  Having been appointed by the Registrar, upon order of the Trial Chamber, the Amicus Prosecutor proceeded to prosecute the case on behalf of the Chamber without becoming an “agent” or “proxy” thereof.  Moreover, the Appeals Chamber has already stated that the participation of the Amicus Prosecutor would assist it in its consideration of the appeal.[2]

18. The Appeals Chamber notes that it is not uncommon for a party to challenge on appeal the actions of an opposing party during trial, and that such a challenge does not preclude the Appeals Chamber from presenting questions to the opposing party on appeal in relation to the actions being challenged. The Appeals Chamber thus finds no merit in the Appellant’s contention that the involvement of the Amicus Prosecutor in the Appeal proceedings would preclude the Defence and/or the Appeals Chamber from hearing evidence potentially relevant to this case.  Furthermore, the Appeals Chamber reminds the Appellant that the Appeals Chamber determines an appellant’s grounds of appeal after the Appeals Chamber has had the benefit of reviewing the submissions of both parties and hearing their oral arguments.  The Appeals Chamber accordingly finds no basis in the Appellant’s argument that allowing the Amicus Prosecutor to participate in the appeal proceedings would create the appearance that the Appeals Chamber condones the alleged improper contacts challenged under Ground 3 of the Appeal.

[1] In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Motion to Strike Motion by Former Amicus Prosecutor, 5 October 2009, para. 14.

[2] In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5-A, Order to the Registrar to Serve Appeal Related Filings on the Amicus Curiae Prosecutor, 9 October 2009.

Download full document
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

13. As the Appellant has noted, pursuant to Guidelines 9(a)(iii) and 9(a)(vi) issued by the Trial Chamber, in seeking the admission of the documents, the party is required to provide references to the relevant paragraphs of the Indictment and reasons why it considered the documents important for the determination of the case. […] However, the Appeals Chamber underscores that the Guidelines must be interpreted in the light of the Rules and the jurisprudence. When introducing documentary evidence pursuant to Rule 89(C) of the Rules, the parties must explain how the content of the document relates to a material issue.[1] This issue is a question of fact and depends upon the circumstances of each case. The Appeals Chamber must accord considerable deference to the Trial Chamber’s discretion in its evaluation of the relevance of the documentary evidence.

[1] See Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.13, Decision on Jadranko Prlić’s Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prlić 12 January Decision”), para. 17, citing Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellants Jean-Bosco Barayagwiza’s and Ferdinand Nahimana’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115, 12 January 2007, paras 7, 13, 18-20 and The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Pauline Nyiramasuhuko’s Request for Reconsideration, 27 September 2004, para. 12.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

32. The Appeals Chamber notes that the Appellant’s assertion that authenticity is an issue wholly divorced from the admissibility of evidence is based on a misapprehension of the Tribunal’s case law. In support of his submission that the Trial Chamber erroneously “refused reconsideration for documents initially rejected for lack of authenticity under the heading of reliability”,[1] the Appellant cites an Appeals Chamber decision in the Delalić case.[2] 

34. Authenticity may be similarly viewed in terms of the distinction between prima facie proof and definite proof. Prima facie proof of authenticity is appropriate at the admissibility stage, whereas definitive proof of authenticity is relevant to evidentiary weight later on in the proceedings. Authenticity relates to whether a document is what it professes to be in origin or authorship. It may therefore be relevant in assessing whether a document is prima facie reliable. Thus, whether a document bears basic features indicative of prima facie authenticity may, in the individual circumstances facing a Trial Chamber, be relevant to the underlying factor of prima facie reliability. Conversely, definitive proof of authenticity is an issue relevant to the evidentiary weight to be assigned to a document after admission. [3]

35. The Delalić Decision upon which the Appellant relies does not support his position. Rather, the Delalić Decision clarifies that it is erroneous to claim that strict proof of authenticity constitutes a separate and distinct requirement to the prerequisites of relevance and probative value of Rule 89(C) of the Rules.  The Delalić Decision states that:

The Applicant submits that where the tendering party has not proven the authenticity of a document then that document is necessarily irrelevant and of no probative value; hence it should be excluded. Sub-rule 89(E), whereby “[a] Chamber may request verification of the authenticity of evidence obtained out of court”, cited by the Applicant, does not operate as a pre-condition to bar the admissibility of evidence under Sub-rule 89(C). There is no legal basis for the Applicant’s argument that proof of authenticity is a separate threshold requirement for the admissibility of documentary evidence.[4]

With regard to the notion that definitive proof of authenticity is an element of admissibility:

The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value. To require absolute proof of a document’s authenticity before it could be admitted would be to require a far more stringent test than the standard envisioned by Sub-rule 89(C).[5]

36. The Appeals Chamber notes that the Trial Chamber correctly applied the foregoing standards.  The Appellant’s submission that the Trial Chamber refused reconsideration due to the fact that it erroneously subsumed authenticity under the heading of reliability is therefore unmeritorious.

[1] See Appeal [Jadranko Prlić’s Interlocutory Appeal Against the Decision on Prlić Defence Motion for Reconsideration of the Decision on Admission of Documentary Evidence, 23 July 2009], para. 35.

[2] Appeal, fn. 57. The Appellant cites Prosecutor v. Zejnil Delalić, Zdravko Mucić (aka “Pavo”), Hazim Delić and Esad Landžo (aka “Zenga”), Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998 (“Delalić Decision”).

[3] Id.

[4] Delalić Decision, para. 25. (Emphasis inserted).

[5] Id., para. 20. (Emphasis inserted). See also the Naletilić Appeal Judgement which states at para. 402 that “[t]here is no separate threshold requirement for the admissibility of documentary evidence.” (Emphasis inserted).

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

27. Contrary to the arguments of the Appellant, the Trial Chamber did not require strict proof of reliability, but some indicia of prima facie reliability. The Trial Chamber considered that crucial to an informed assessment of the prima facie relevance of proposed documentary evidence is the provision of such basic information as the sources and dates of the documents in question, information which, in essence, allows the entities responsible for the contents of the documents and the periods in time to which those contents relate, to be identified.  It found that the documents excluded on this basis did “not contain the indicia necessary for the Chamber to rule on the admission of a piece of evidence.”[1] This finding was well within the exercise of the Trial Chamber’s discretion and the Appellant has failed to demonstrate any error in that regard.

33. Relevance and probative value are the two prerequisites of admissibility under Rule 89(C) of the Rules. In order to assess whether proposed evidence satisfies both prerequisites, consideration is given to an item of evidence’s prima facie reliability.[2] Prima facie reliability does not however constitute a separate and additional prerequisite under Rule 89(C) of the Rules, but is an underlying factor relevant in determining whether the prerequisites of relevance and probative value have been met. Thus, prima facie reliability “is a factor in the assessment of its relevance and probative value”.[3] Also, definitive proof of reliability is not required at the admissibility stage.[4] Rather, it is an issue to be assessed at a later stage in the course of determining the weight to be attached to the evidence after its admission.[5]

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Prlić Defence Motion for Admission of Documentary Evidence, 6 March 2009, para. 28. Thus, for example, proposed exhibit 1D02359 comprises a newspaper article, which lists only the names of its three authors. It does not provide the name of the publication with which the authors were affiliated, nor does it refer to the publication date, or a date or period in time to which the events and issues discussed in the article relate.

[2] Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 33 and 266; Delalić Decision, para. 20; Prlić 12 January Decision, para. 15; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.2, Decisión on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008, (“Popović Decisión”), para. 22.

[3] Prosecutor v. Mladen Naletilić, a.k.a. “Tuta”, Vinka Matinović, a.k.a. “[tela”, Case No. IT-98-34-A, Judgement, 3 May 2006,  para. 402. (Emphasis inserted). See also Delalić Decision, para. 20.

[4] Popović Decision, para. 22.

[5] Id.

Download full document
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C)
Notion(s) Filing Case
Reconsideration Appeal Decision - 03.11.2009 PRLIĆ et al.
(IT-04-74-AR73.16)

18. The Appeals Chamber recalls that for an applicant to succeed in a request for reconsideration, “he must satisfy the [Trial] Chamber of the existence of a clear error of reasoning in the [impugned decision], or of particular circumstances justifying its reconsideration in order to avoid injustice”.[1] Particular circumstances include new facts or new arguments.[2] However, to succeed on this basis, an applicant must demonstrate how any new facts or arguments submitted in a request for reconsideration justify reconsideration.[3]

19. […]  It was well within the exercise of the Trial Chamber’s discretion to refuse reconsideration in circumstances where in submitting new information the appellant patently failed to demonstrate that it was of such a nature that it constituted a new circumstance warranting the Trial Chamber’s reconsideration.

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence’s Request for Reconsideration, 16 July 2004 (“Galić Decision”), p. 2. See also Prosecutor v. Enver Hadžihasanović, Amir Kubura, Case No. IT-01-47-A, Decision on Appellant’s Motion for Reconsideration and Extension of Time Limits, 30 January 2007 (“Hadžihasanović Decision”), para. 9.

[2] Galić Decision, p. 2.

[3] Galić Decision, p. 2, Hadžihasanović Decision, para. 9. See also Milošević Decision on Joinder [Prosecutor v. Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002], paras 4-5.

Download full document
Notion(s) Filing Case
Decision on Extension of Time - 21.10.2009 RENZAHO Tharcisse
(ICTR-97-31-A)

3. Mr. Renzaho now requests an extension of time to file his Appellant’s Brief within 75 days from the service to him and his Counsel of the French translation of the Trial Judgement.[1] In support of his request, Mr. Renzaho submits that because he is francophone and can neither speak nor read English, he is incapable of fully understanding the Trial Judgement, properly discussing grounds of appeal, and actively participating in the drafting of his Appellant’s Brief, particularly with respect to factual issues.[2] […]

4. Rule 116(A) of the Rules allows for the extension of time of any deadline on a showing of good cause. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. This provision may provide a basis for an extension of time, upon request, for the filing of the convicted person’s Appellant’s Brief pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[3]

5. Mr. Renzaho’s circumstances constitute good cause to extend the time for the filing of his Appellant’s Brief from the filing of the French translation of the Trial Judgement.

6. Mr. Renzaho’s Lead Counsel has the ability to work in both English and French,[4] and may therefore discuss the draft of the Appellant’s Brief with Mr. Renzaho, subject to his final approval once the French translation of the Trial Judgement is filed. It is therefore appropriate in this instance to allow a limited extension of time. 

See also, the “Decision on Tharcisse Renzaho’s Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply” rendered in this case on 22 September 2009, where the Appeals Chamber held:

4. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. In practice, Rule 116(B) of the Rules does not provide a basis for an extension of time for the filing of a Notice of Appeal where the convicted person’s counsel can work in the language in which the Trial Judgement was pronounced.[5] This provision may, however, provide a basis for an extension of time, upon request, for the filing of the convicted person’s brief on appeal (“Appellant’s Brief”) pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[6]

5. In the present case, the information provided by the Registry shows that Mr. Renzaho’s Lead Counsel has indicated that French is his mother tongue and that he has a “good” knowledge of English, with the ability to read, speak, and write it fluently.[7] He is therefore able to discuss the contents of the Trial Judgement as well as any possible grounds of appeal with Mr. Renzaho. The determination of potential grounds of appeal falls primarily within the purview of Defence Counsel and, if an application is made after the Trial Judgement becomes available in French and good cause is shown, leave may be granted to vary the grounds of appeal under Rule 108 of the Rules.[8] For these reasons, Mr. Renzaho has not demonstrated good cause for an extension of time for the filing of his Notice of Appeal.

[1] Requête en Demande de Délai, 9 October 2009 (“Motion”), paras. 7, 11, p. 4.

[2] Motion, para. 9.

[3] See The Prosecutor v. Tharcisse Renzaho, Case No. ICTR-97-31-A, Decision on Tharcisse Renzaho’s Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply, 22 September 2009, para. 4. See also Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for Leave to File an Amended Notice of Appeal and for an Extension of Time for the Filing of his Appellant’s Brief, 31 August 2009, para. 5; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Respondent’s Brief, 10 March 2009, paras. 4, 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Extension of Time for Filing Appeal Submissions, 2 March 2009, pp. 4-6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time, 28 January 2009, p. 3. However, once a French version of the Trial Judgement is filed, Rule 116(B) does not contemplate good cause for an extension of time to file briefs on appeal where the convicted person’s counsel can work in the language in which it was filed. See also Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Decision on Defence Motion for a French Translation of the Prosecutor’s Respondent’s Brief and for Extension of Time for the Filing of the Reply Brief, 8 July 2009, paras. 5, 6, 9; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Reply Brief, 3 July 2009, paras. 4-6, 9.

[4] See Form IL2 filed by Mr. Cantier, along with a copy of his attached curriculum vitae, on 15 September 2009.

[5] See, e.g., Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for an Extension of Time for the Filing of Notice of Appeal, 20 July 2009, para. 5 (“Kalimanzira Appeal Decision”); The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Extension of Time for Filing Appeal Submissions, 2 March 2009, pp. 4, 5 (“Bagosora et al. Appeal Decision”); François Karera v. The Prosecutor, Case No. ICTR-01-74-A, Decision on François Karera’s Motion for an Extension of Time for Filing the Notice of Appeal, 21 December 2007, pp. 2, 3 (“Karera Appeal Decision”).

[6] See, e.g., Callixte Kalimanzira v. The Prosecutor, Case No. ICTR-05-88-A, Decision on Callixte Kalimanzira’s Motion for Leave to File an Amended Notice of Appeal and for an Extension of Time for the Filing of his Appellant’s Brief, 31 August 2009, para. 5; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Respondent’s Brief, 10 March 2009, paras. 4, 6; Bagosora et al. Appeal Decision, pp. 5, 6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time, 28 January 2009, p. 3. However, once a French version of the Trial Judgement is filed, Rule 116(B) does not contemplate good cause for an extension of time to file briefs on appeal where the convicted person’s counsel can work in the language in which it was filed. See also Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Decision on Defence Motion for a French Translation of the Prosecutor’s Respondent’s Brief and for Extension of Time for the Filing of the Reply Brief, 8 July 2009, paras. 5, 6, 9; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for an Extension of Time for the Filing of the Reply Brief, 3 July 2009, paras. 4-6, 9.

[7] See Form IL2 filed by Mr. Cantier, along with a copy of his attached curriculum vitae, on 15 September 2009.

[8] Kalimanzira Appeal Decision, para. 6; Bagosora et al. Appeal Decision, p. 5; Karera Appeal Decision, p. 3. 

Download full document
ICTR Rule Rule 116 ICTY Rule Rule 127
Notion(s) Filing Case
Order on Notice of Appeal - 14.10.2009 RENZAHO Tharcisse
(ICTR-97-31-A)

3. The Notice of Appeal sets forth 13 grounds of appeal. The final ground of appeal, which relates to sentencing, states only that in the alternative, should the Appeals Chamber […] uphold Mr. Renzaho’s responsibility, the Trial Chamber erred in imposing a life sentence.

4. This ground of appeal does not indicate the substance of the alleged error and the relief sought, thereby failing to fully comply with Rule 108 of the Rules of Procedure and Evidence of the Tribunal (“Rules”)[1] and the Practice Direction on Formal Requirements for Appeals from Judgement of 4 July 2005 (“Practice Direction”).[2]

5. For these reasons, and in accordance with Rule 108bis (B) of the Rules and Paragraph 13 of the Practice Direction, I hereby ORDER Mr. Renzaho to clarify the substance of his 13th Ground of Appeal, should he wish to maintain it, no later than 23 October 2009.     

[1] Rule 108 of the Rules requires a notice of appeal to identify “the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought”.

[2] Pursuant to paragraph 1(C)(i) to (v) of the Practice Direction, a notice of appeal shall clearly specify in respect of each ground of appeal “any alleged error on a question of law invalidating the decision and/or any alleged error of fact which has occasioned a miscarriage of justice” and shall identify “the finding or ruling challenged in the judgement, with specific reference to the page number and paragraph number”; any other “order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page”; and the precise relief sought.

Download full document
ICTR Rule Rule 108 ICTY Rule Rule 108
Notion(s) Filing Case
Decision on Trial Date - 13.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.5)

19. [R]ather than establishing that the calculation of pre-trial preparation time is a mechanically “objective” task,[1] the Ngirabatware Decision underscores that “it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case”.[2] A Trial Chamber’s assessment of the amount of pre-trial preparation required in each case is a fact-intensive exercise but also involves an exercise of the Trial Chamber’s judgement. The factors cited in the Ngirabatware Decision and addressed by both Karadžić and the Prosecution are specifically described as examples of indicia that might impact a Trial Chamber’s assessment of the pre-trial preparation period,[3] rather than constituting a required “objective” checklist for Trial Chambers.  

20. […] The Appeals Chamber reiterates that assessing the amount of pre-trial preparation required is not a mechanical duty, and also that “[w]hile a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail”.[4] […] The Appeals Chamber underscores that “[i]n examining whether the Trial Chamber has considered appropriate factors in sufficient measure” with regard to pre-trial preparation, “the Appeals Chamber is not limited to the text of the order issued by the Trial Chamber”. Instead, it will look to relevant decisions and transcripts of recent status and pre-trial conferences in order to determine “whether the Trial Chamber gave the issues involved due consideration”.[5]

[1] See Appeal [Appeal of Decision on Commencement of Trial, 25 September 2009], para. 31.

[2] Ngirabatware Decision [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. 28; see also Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Appeal Judgement, 28 November 2007, para. 220.

[3] Ngirabatware Decision, para. 28.

[4] Milošević Decision [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation of the Defence Case, 20 January 2004], para. 7 (internal citations omitted).

[5] Milošević Decision, para. 7.

Download full document
Notion(s) Filing Case
Decision on Trial Date - 13.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.5)

21. Reviewing the Trial Chamber’s reasoning as set out in both the Impugned Decision and various pre-trial proceedings demonstrates that it was well aware of the key issues impacting pre-trial preparation time: first, the size and scope of the Prosecution case, and the issues of disclosure and document review this raises, and, second, Karadžić’s decision to represent himself. In the 20 August 2009 and 8 September 2009 Status Conferences, and the 6 October 2009 Pre-Trial Hearing, the Trial Chamber specifically concerned itself with the parameters of the Prosecution case,[1] eventually reducing its scope and capping the number of hours for the Prosecution’s presentation.[2] These decisions were taken in the context of diverse efforts during the pre-trial period to facilitate document disclosure[3] and specific reminders to Karadžić that he prepare for trial[4] and request resources he needed to do so.[5] Given the Trial Chamber’s explicit consideration of the case’s size and the actions it took to reduce this, Karadžić’s contention that it ignored issues such as the case’s complexity, number of counts and charges, the gravity of the crimes and the status and scale of the disclosure process is not convincing.

24. Insofar as the Impugned Decision relied on reduced sitting times during trial to justify the October trial date, Karadžić fails to show that the Trial Chamber erred. The Appeals Chamber has included preparation time during trial as one factor in its assessment of whether defence teams were given adequate total preparation time,[6] and it was a valid factor for the Trial Chamber to take into consideration. […] While Karadžić’s defence team may have taken some time to recruit and may not be able to work on every trial issue he would wish them to, these advisors are a source of significant support, and their limitations are linked to Karadžić’s choice to be self-represented. The Appeals Chamber has explained that while “a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair” to self-represented defendants, “[a] defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel”.[7]

[1] See Status Conference, T. 20 August 2009, pp. 400-403; Status Conference, T. 8 September 2009, pp. 445-452; Pre-Trial Hearing, T. 6 October 2009, pp. 467-68.

[2] Pre-Trial Hearing, T. 6 October 2009, p. 468.

[3] See, e.g., Pre-Trial Conference, T. 6 October 2009, pp. 479-82. The Trial Chamber also ordered that it be provided with periodic reports on the status of disclosure. Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Order on Proposed Disclosure Report, 19 December 2008. It actively managed disclosure efforts as they progressed. See, e.g, Status Conference, T. 2 April 2009, pp. 148-56.

[4] See, e.g., Status Conference, T. 20 August 2009, p. 434; see also Status Conference, T. 3 June 2009, p. 275.

[5] Status Conference, T. 20 August 2009, p. 432.

[6] See Krajišnik Decision [Prosecutor v. Momćilo Krajišnik, Case No. IT-00-39-AR73.1, Decision on Interlocutory Appeal of Decision on Second Defence Motion for Adjournment, 25 April 2005], para. 23. The Trial Chamber’s rough calculations concerning the Prosecution case during the pre-trial conference, which assumed sittings five days a week, were obviously meant to be for estimation purposes only. See Pre-Trial Conference, T. 6 October 2009, pp. 467-68. As the Trial Chamber noted at the 8 September 2009 Status Conference, logistical considerations will prevent sitting five days a week during some periods of the Prosecution case. See Status Conference, T. 8 September 2009, pp. 449-50.

[7] Milošević Decision, para. 19. 

Download full document
ICTR Statute Article 20(4)(b) ICTY Statute Article 21(4)(b)
Notion(s) Filing Case
Decision on Trial Date - 13.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.5)

The Appeals Chamber then considered the Trial Chamber’s demand that the Prosecution file a “marked-up version of the indictment and its schedules”[1] including footnotes explaining all changes of the indictment, subsequent to an invitation of the Trial Chamber pursuant to Rule 73bis(D) of the Rules. It assessed whether this required a delay in the start of the trial:

26. [T]he Trial Chamber reduced the size of the case Karadžić faced by accepting the propositions of the Prosecution’s 31 August 73bis(D) Submission.[[2]] However, the amount of time provided to Karadžić for reviewing the marked-up indictment is exceedingly short and risks rendering the trial unfair, even when the only potential changes are reductions in the Prosecution’s charges. In the context of this case, the Trial Chamber was obligated to ensure that Karadžić had sufficient time to read the marked-up and clarified indictment before the commencement of trial. Its failure to do so constitutes an abuse of discretion.

 

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.5, Decision on Radovan Karadžić’s Appeal of the Decision on Commencement of Trial, 13 October 2009, para. 25.

[2] [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution Submission Pursuant to Rule 73bis(D), 31 August 2009].

Download full document
Notion(s) Filing Case
Decision on Holbrooke Agreement - 12.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.4)

34. The Appeals Chamber recalls that the UNSC, acting under Chapter VII of the UN Charter, has adopted the Statute by means of resolution and established the Tribunal as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.[1] The Statute, as the constitutive instrument of the Tribunal, defines the scope and limits of the Tribunal’s substantive jurisdiction.[2] In particular, Articles 1 to 9 of the Statute define the Tribunal’s jurisdiction ratione materiae, personae, loci and temporis. Article 1 of the Statute confers a general power for the Tribunal to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991”. There is no provision of the Statute which excludes any specific individual from the jurisdiction of the Tribunal.

[1] UNSC Resolution 808, S/RES/808(1992), 22 February 1993. See also, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 (“Tadić Decision on Jurisdiction”), paras 37-38; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR73.2, Decision on Krajišnik’s Appeal Against the Trial Chamber’s Decision Dismissing the Defense Motion for a Ruling that Judge Canivell is Unable to Continue Sitting in This Case, 15 September 2006, (“Krajišnik Decision”), para. 15.

[2] For the distinction between the notions of “substantive” and “inherent” jurisdiction, see Tadić Decision on Jurisdiction, para. 14. 

Download full document
ICTY Statute Article 1
Notion(s) Filing Case
Decision on Holbrooke Agreement - 12.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.4)

35. The Appeals Chamber considers that the Statute of the Tribunal can only be amended or derogated by means of UNSC resolution. This plainly derives from the actus contrarius doctrine, is established in the jurisprudence of the Tribunal,[1] and is confirmed by the practice of the UNSC.[2]

36. […] Therefore, contrary to what the Trial Chamber appears to concede,[3] the mere involvement of the UNSC in concluding the alleged Agreement [agreement allegedly reached between the accused Radovan Karadžić and Mr. Richard Holbrooke on 18-19 July 1996], without a ratification of the alleged Agreement by a UNSC resolution, could not limit the jurisdiction of the Tribunal. The Appeals Chamber notes that there is no UNSC resolution excluding the Appellant from the ambit the Tribunal’s jurisdiction.

37. In light of the foregoing, the Appeals Chamber finds that under no circumstance would the alleged Agreement in and of itself, even if its existence was proved, limit the jurisdiction of the Tribunal.

38. The Appellant’s argument that the applicability of the doctrine of apparent authority would prove that no UNSC resolution is necessary to amend the jurisdiction of the Tribunal is misplaced. As explained above, in the absence of a UNSC resolution, the alleged Agreement could not have any impact on the Tribunal’s jurisdiction, even if it were made with the actual authority of the UNSC. […] Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. A fortiori, even if one considered that the alleged Agreement was made with the apparent authority of the UNSC could not affect in any event the ambit of the Tribunal’s jurisdiction. In his submissions, the Appellant attempts to rely on analogy with jurisdictional matters in international criminal law a theory typical of contract law protecting the legitimate expectations of a contracting party believing without fault that a contract was validly concluded with a legitimate representative of the other party.[4] However, the Appellant ignores that one of the requirements for applying a doctrine by analogy is the existence of an eadem ratio, that is, the existence of sufficient similarities between two cases. The field of contract law is so distant from the question of jurisdiction in international criminal law that the two are effectively incomparable. Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. The Appeals Chamber considers that the Appellant’s submissions on apparent authority fall more squarely under the question of the applicability of the doctrine of abuse of process.[5]

[1] See Krajišnik Decision, where the Appeals Chamber considered that a UNSC resolution is necessary for altering the norms contained in the Statute. In this instance Krajišnik argued that ad litem Judge Canivell should not continue sitting in his case; paras 1, 4. Although Judge Canivell’s four-year mandate was due to expire, the UNSC Resolution 1581/2005 of 18 January 2005 and the General Assembly by its 20 January 2005 Decision decided that Judge Canivell could finish the case to which he was assigned before the expiry of his term of office; para. 5. When it became clear that the case could not be completed before the expiration of Judge Canivell’s cumulative three-year term, the Security Council further adopted Resolution 1668/2006 which confirmed that Judge Canivell could continue to sit on the case; para. 6. In dismissing the appeal, the Appeals Chamber noted that the Security Council is not required to amend the Tribunal’s Statute in order to reflect all of its resolutions; para. 17. The Appeals Chamber held that the Security Council can address an administrative matter either by amending the Statute or simply adopting a resolution; para. 17. The Appeals Chamber further considered the UNSC Resolution 1668/2006 was directed to administrative matters and did not interfere with the Tribunal’s judicial function; para. 16. In other words, the Appeals Chamber distinguished between the matters interfering within the Tribunal’s judicial functions and those of a mere administrative character. The Appeals Chamber clearly stressed that in case of the latter, the UNSC can address such an issue by either formal amendment of the Statute or merely by way of issuing a resolution. It follows that the form of UNSC resolution is in any event indispensable for ruling on matters disciplined by the Statute. The Appeals Chamber further observes that the issue of jurisdiction is not merely an administrative matter.

[2] The UNSC has always acted by resolution when intervening in matters addressed in the Statute. See UNSC Resolution 827, S/RES/827, 25 May 1993 (establishing the Tribunal); UNSC Resolution 1534, S/RES/1534, 26 March 2005, para. 5 (calling on the Prosecution to focus on the most senior leaders responsible for crimes within the Tribunal’s jurisdiction); UNSC Resolution 1786, S/RES/1786, 28 November 2007 (appointing the Prosecutor); UNSC Resolution 1837, S/RES/1837, 29 September 2008 (extending terms of office of Judges).

[3] See, e.g. Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on The Accused’s Holbrooke Agreement Motion, 8 July 2009], para. 61, where the Trial Chamber observes that “there is no evidence that the UNSC was involved directly in the making or implementation of the Agreement”; see also ibid, para. 62, where the Trial Chamber assumes “for the sake of argument that [...]] the UNSC can limit its jurisdiction by entering into immunity agreements through its agents and without the knowledge of the representatives of the Tribunal or without passing a resolution affirming such agreements(emphasis omitted).  

[4] Appeal [Appeal of Decision on Holbrooke Agreement, 27 July 2009], para. 44; Reply [Reply Brief: Appeal of Decision on Holbrooke Agreement, 10 August 2009, with public annex A and confidential annex B], paras 10-11.

[5] Infra, Section D. 

Download full document
Notion(s) Filing Case
Decision on Holbrooke Agreement - 12.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.4)

39. Additionally, the Appeals Chamber considers that the Appellant is not advancing an argument concerning the scope of the Tribunal’s jurisdiction when he claims that the Prosecution’s discretion not to prosecute an individual demonstrates that no UNSC resolution is necessary in order to limit the jurisdiction of the Tribunal.[1] The Appellant confuses the two distinct notions of jurisdiction and prosecutorial discretion. The scope of the substantive jurisdiction of the Tribunal is entirely contingent upon the constitutive instrument of the Tribunal itself, that is, its Statute. On a different level, in systems of criminal law not based on the rule of compulsory prosecution, like that of the Tribunal, prosecutors possess the discretion not to bring before the court cases that theoretically fall within the court’s jurisdiction. In other words, the fact that the Prosecution may decide not to prosecute an individual does not necessarily mean that, had the Prosecution decided to prosecute that individual, the Tribunal would not have jurisdiction over him or her. Jurisdiction and prosecutorial discretion are two independent issues.

41. The Appeals Chamber considers that, as a logical consequence of the two premises above, it follows that the alleged Agreement could not bind the Tribunal even if it were to be attributed to the Prosecution. The Appeals Chamber recalls that, while “[i]t is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments”,[2] this discretion is not unlimited and must be exercised within the restrictions imposed by the Statute and the Rules.[3] Pursuant to the restrictions to the Prosecution’s discretion provided by Rule 51 of the Rules, the Prosecution was not in a position, at the time of the alleged Agreement, to withdraw the indictment against the Appellant without the leave of a Judge of the Tribunal.[4] Consequently, even if the involvement of the Prosecution in the making of the alleged Agreement were proved, the alleged Agreement would not be binding on the Tribunal, as an indictment against the Appellant had already been confirmed at the time.[5]

[1] Reply, para. 5.

[2] Prosecutor v. Zejnil Delalić et al., Case. No. IT-96-21-A, Judgement, 20 February 2001 (“Čelebići Appeal Judgement”), para. 602.

[3] Čelebići Appeal Judgement, paras 602-603.

[4] At the time of the alleged Agreement, Rule 51(A) of the Rules read as follows: “[t]]he Prosecutor may withdraw an indictment, without leave, at any time before its confirmation, but thereafter only with the leave of the Judge who confirmed it or, if at trial, only with the leave of the Trial Chamber”; UN Doc. IT/32/Rev. 8, 23 April 1995. The current version of Rule 51 of the Rules maintains the same requirements. 

[5] Prosecutor v. Radovan Karadžić and Ratko Mladić, Case No. IT-95-5-I, Indictment, 24 July 1995; Prosecutor v. Radovan Karadžić and Ratko Mladić, Case No. IT-95-18-I, Indictment, 15 November 1995. 

Download full document