45. As the parties note, the jurisprudence of the Tribunal has relied in several instances on the common law rooted doctrine of abuse of process.[1] In the Barayagwiza case, the Appeals Chamber recalled that under the doctrine of abuse of process “proceedings that have been lawfully initiated may be terminated after an indictment has been issued if improper or illegal procedures are employed in pursuing an otherwise lawful process”.[2] The Appeals Chamber specified that the doctrine of abuse of process may be relied on by a court, as a matter of discretion, in two distinct situations: (i) where a fair trial for the accused is impossible, usually for reasons of delay; and (ii) where in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice, due to pre-trial impropriety or misconduct.[3] The applicable standard was further clarified by stating that a court may discretionally decline to exercise jurisdiction “where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity”.[4] The Barayagwiza Review Decision confirmed the applicable law on abuse of process as stated in the Barayagwiza Appeal Decision.[5]

46. In the Nikolić Appeal Decision, the Appeals Chamber contextualised the doctrine of abuse of process by the Tribunal in the following conceptual framework: 

Universally Condemned Offences[6] are a matter of concern to the international community as a whole. There is a legitimate expectation that those accused of these crimes will be brought to justice swiftly. Accountability for these crimes is a necessary condition for the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries and societies torn apart by international and internecine conflicts.[7] 

It then considered how this legitimate expectation should be addressed in two distinct hypotheses, relevant to the case before it: (i) under what circumstances a violation of State sovereignty requires jurisdiction to be set aside, when the violation is brought about by the apprehension of fugitives from international justice;[8] and (ii) under what circumstances a human rights violation requires jurisdiction to be set aside.[9] As to the former question, the Appeals Chamber did not identify any hypothesis justifying that jurisdiction be set aside.[10] As to the latter, the Appeals Chamber considered that, apart from “exceptional cases” of serious violations of human rights, the remedy of setting aside jurisdiction will usually be disproportionate, as “the correct balance must be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.[11]  

47. The Appeal Chamber considers that the Appellant correctly submitted that the jurisprudence of the Appeals Chamber did not introduce a dual standard for the abuse of process doctrine, depending on the nature of the entity which carried out the alleged misconduct. The Appeals Chamber also notes however that, in addressing the Appellant’s submission, the Trial Chamber adopted the common standard established by the Appeals Chamber in the Barayagwiza Decision and in the Nikolić Appeal Decision, and not a higher one, by considering whether the Appellant suffered a serious mistreatment or if there was any other egregious violation of his rights. The jurisprudence of the Appeals Chamber does not allow the abuse of process doctrine to deploy a standard lower than this, irrespective of the author of the alleged misconduct.

[…]

49. The Appeals Chamber recalls that the Appellant is charged with genocide, crimes against humanity and war crimes.[12] The public interest in the prosecution of an individual accused of such offences, universally condemned, is unquestionably strong. Against the legitimate interest of the international community in the prosecution of the Appellant for Universally Condemned Offences stands the alleged violation of the Appellant’s expectation that he would not be prosecuted by the Tribunal, pursuant to the alleged Agreement.

[…]

52. The Appeals Chamber recalls that one of the fundamental aims of international criminal courts and tribunals is to end impunity and ensure that serious violations of international humanitarian law are prosecuted and punished.[13] Individuals accused of such crimes can have no legitimate expectation of immunity from prosecution. The Appeals Chamber considers that the facts that allegedly gave rise to the Appellant’s expectations of impunity do not constitute an exception to this rule.

53. In light of the foregoing, the Appeals Chamber considers that the Appellant’s allegations, even if proved, would not trigger the doctrine of abuse of process justifying a stay of the proceedings against the Appellant.

6. […] when the Appeals Chamber becomes seised of an appeal against a trial judgement, it becomes the Chamber “seised of the first proceedings” within the meaning of Rule 75(G)(i) of the Rules.[1] The Appeals Chamber, therefore, finds that the Applicant, as a party to the second proceedings,[2] properly filed his Motion before the Appeals Chamber.

7. The Appeals Chamber further recalls that, pursuant to Rule 75(F) of the Rules, protective measures that have been ordered in any proceedings before the Tribunal continue to have effect mutatis mutandis in any other proceedings before the Tribunal unless and until they are rescinded, varied or augmented. Rule 75(G) confers the competence to consider requests to vary protective measures on the Chamber seised of the first proceedings.[3] As previously observed by the Appeals Chamber, if the Chamber seised of the first proceedings were to transfer this competence to the Chamber seised of the second proceedings by way of a general referral, “the regulatory regime of Rule 75(G)(i) of the Rules would be frustrated and an important protection feature for victims and witnesses before the Tribunal would be circumvented”.[4]

8. The Krajišnik Decisions do not contradict the above interpretation.[5] These decisions concerned applications to, inter alia, rescind or vary the measure of delayed disclosure to the accused of witness identities, ordered by the Chamber seised of the first proceedings pursuant to Rule 69 of the Rules.[6] The question addressed in the Krajišnik Decisions is materially different from the present situation, where the Applicant seeks a general referral that any protective measure ordered by the Chamber seised of the first proceedings pursuant to Rule 75 of the Rules may subsequently be varied by the Chamber seised of the second proceedings.[7]

9. On the basis of the above, the Appeals Chamber reiterates that Rule 75(G) of the Rules clearly defines the procedure to be followed if a party seeks to vary protective measures ordered in previous proceedings.[8] As the Motion seeks a de facto circumvention of this Rule, it shall be denied without further consideration.

The Appellant, Nchamihigo, sought the admission on appeal of proffered evidence pursuant to Rule 115 of the Rules, which he unsuccessfully sought to have admitted at trial. The Appeals Chamber stated:

13. […] It is thus clear that the material sought for admission was available at trial, and the Appeals Chamber is satisfied that Mr. Nchamihigo exercised due diligence in his attempts to have this evidence admitted at trial. 

14. However, the Appeals Chamber observes that Mr. Nchamihigo has not appealed the Trial Chamber’s denial of his requests to admit this material either in his Notice of Appeal or Appeal Brief.[1] As such, the Appeals Chamber finds that Mr. Nchamihigo has failed to exercise due diligence in relation to these documents.[2] It remains to be considered whether denial of the admission of this evidence would result in a miscarriage of justice.

The Appeals Chamber then established that Nchamihigo had not demonstrated that the admission of the evidence in question “would have had an impact on the Trial Chamber’s findings” (paras 15-18) and concluded “that the denial of the admission of the proposed additional evidence on appeal will not result in a miscarriage of justice.” (para. 19).

16. The Appeals Chamber notes however, that in certain exceptional circumstances it has allowed amendments even in the absence of good cause being shown.[1] In this respect, it observes that the arguments presented under the seventh ground of Ojdanić’s Amended Notice of Appeal which Pavković seeks to adopt, generally allege that the Trial Chamber erroneously expanded the definition of the crimes against humanity with regard to (i) the mens rea requirement for crimes against humanity, and (ii) the individual whose knowledge of the context of the offence would suffice for criminal responsibility for crimes against humanity to be attributed to the perpetrator.[2] The Appeals Chamber recalls that Pavković has been convicted of the crimes of deportation, other inhumane acts (forcible transfer), murder and persecutions as crimes against humanity under Article 5 of the Statute.[3] Accordingly, and without pronouncing itself on the merits of the appeal, the Appeals Chamber finds that allowing Pavković to vary further his Amended Notice of Appeal in order to join the merits of Ojdanić’s seventh ground of appeal is of substantial importance to the success of his appeal such as to lead to a miscarriage of justice if denied. The Appeals Chamber further finds that the failure to assert these arguments earlier constitutes negligence on the part of Pavković’s counsel.

18. In light of these requirements, a party may not dispose of its burden on appeal by merely referring to another party’s submissions. Moreover, allowing such reference would incorrectly suggest that in multi-appellant proceedings the parties are relieved of their obligations to comply with the Rules and the relevant Practice Directions. The Appeals Chamber is also concerned that permitting such broad reference would effectively allow Pavković to circumvent the word limit established for his appellant’s brief. Therefore, whereas the Appeals Chamber acknowledges that in the circumstances of the present case it may not be necessary for Pavković to replicate in his Notice of Appeal and subsequently in his appellant’s brief, all of Ojdanić’s legal arguments that he seeks to adopt, it emphasises that in order to meet his burden on appeal Pavković must comply with the requirements recalled above.

19.     In his Third Motion, Mr. Bikindi seeks leave to admit extracts of legislation from various domestic jurisdictions and two Rwandan judgements[1] which relate to his appeal against sentencing.[2] The Appeals Chamber notes that both parties agree that the Third Motion should be considered moot on the basis that the material does not fall within the scope of Rule 115 of the Rules.[3] The Appeals Chamber agrees that Rule 115 of the Rules does not apply to case law or legislation used for the purpose of illustrating sentencing practices in national jurisdictions.[4] The Appeals Chamber will consider this material when determining the merits of the case.

16. The Appeals Chamber recalls that because Milošević filed his Motion on 3 August 2009, that is, after the Appeals Hearing, he must show cogent reasons for the delayed filing.[1] In this respect, the Appeals Chamber observes that the evidence sought to be admitted was obtained by Milošević on 14 July 2009,[2] seven days before the Appeals Hearing and 21 days before the date of filing of the Motion. The Appeals Chamber notes Milošević’s claim that the Order was unavailable during trial on account of his having recently received it from the Ministry of Defence of Serbia and Montenegro.[3] It recalls, however, that in order to have additional evidence admitted at this highly advanced stage of the proceedings, Milošević has the responsibility of demonstrating that he (i) could not have obtained the proffered material despite the exercise of the due diligence and (ii) submitted the present motion as soon as possible after he became aware of the existence of the evidence he seeks to admit.[4] Milošević fails to elaborate on the due diligence requirement and does not provide any reasons whatsoever for the delay of 21 days following the receipt of the document, a delay which occurred despite the clarifications provided to him by the Presiding Judge during the Appeals Hearing urging him to tender the material.[5] Consequently, the Appeals Chamber finds that Milošević has not demonstrated cogent reasons for the delayed filing of the Motion.

18. The Appeals Chamber recalls however that an appellant should not be held responsible for the negligence of his counsel. The Appeals Chamber further recalls that it invited the parties to elaborate during the Appeals Hearing on the issue of Milošević’s temporary replacement.[2] Considering that the tendered material appears relevant to this issue and that the trial record does not contain a similar source, the Appeals Chamber finds that in order to avoid a possible miscarriage of justice, it should examine whether, if the Order had been before the Trial Chamber, it would have affected the verdict.

4. Pursuant to Rule 108 of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Appeals Chamber “may, on good cause being shown by motion, authorize a variation of the grounds of appeal” contained in the notice of appeal. Such a motion should be submitted “as soon as possible after identifying the new alleged error” or after discovering any other basis for seeking a variation of the notice of appeal.[1] It is the appellant’s burden to explain precisely what amendments are sought and to demonstrate that each proposed amendment meets the “good cause” requirement of Rule 108.[2]

5. The jurisprudence of the Tribunal establishes that the concept of “good cause” encompasses both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly articulated) in the original notice of appeal.[3] The Appeals Chamber has considered, inter alia, the following factors in determining whether “good cause” exists: (i) the variation is minor and it does not affect the content of the notice of appeal; (ii) the opposing party would not be prejudiced by the variation or has not objected to it; and (iii) the variation would bring the notice of appeal into conformity with the appeal brief.[4] Where an appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” may also, under certain circumstances, be established.[5] The Appeals Chamber recalls that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted.[6] Rather, each proposed amendment is to be considered in light of the particular circumstances of the case.[7]

6. In certain exceptional cases, notably where the failure to include the new or amended grounds of appeal resulted from counsel’s negligence or inadvertence, the Appeals Chamber has allowed variations even though “good cause” has not been shown by the appellant, provided that the variation sought is of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[8] In such limited circumstances, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his counsel.[9] However, it must be shown that the previous pleadings failed to address the issue adequately and that the amendments sought would correct that failure.[10]

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis