| Text search | Notions | Case | Filing | Date range | Tribunal |
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Showing 2505 results (20 per page)
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| Decision on Amicus Curiae’s Appeal Against the Order Referring a Case to the Republic of Serbia - 12.12.2018 |
JOJIĆ Petar and RADETA Vjerica (MICT-17-111-R90) |
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11. The Mechanism has the power to prosecute persons who have knowingly and wilfully interfered with the administration of justice by the Mechanism, the ICTY and the ICTR, and to hold such persons in contempt.[44] States are required to cooperate with the Mechanism in the investigation and prosecution of contempt cases and shall comply without undue delay with any order issued by a Single Judge or Trial Chamber, including orders for the surrender or the transfer of the accused to the Mechanism.[45] Before proceeding to try such persons, however, the Mechanism “shall” consider referring a case to the authorities of a competent national jurisdiction, taking into account the interests of justice and expediency.[46] This requirement is mandatory, and the inclusion of this provision in the Statute indicates a strong preference for referral if all relevant conditions are met. Accordingly, the Mechanism may only exercise jurisdiction after it has considered whether the case can be transferred to a national jurisdiction for trial. 12. Articles 6(2) and 12(1) of the Statute provide that a Single Judge may be designated to make this determination.[47] The Single Judge is to consider whether the case should be referred to the authorities of a State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept the case and try it.[48] […] 14. […] The Appeals Chamber recalls that the Statute explicitly contemplates referral to a State “in whose territory the crime was committed”, without requiring that all the alleged acts, omissions, or effects thereof be committed or sustained in the territory of that State.[53] […] [T]o read the Statute as so requiring would effectively render meaningless the provisions that allow for the referral of contempt cases as the impact of the alleged conduct will always be on proceedings that took place in The Hague or Arusha, while the alleged acts or omissions could be committed anywhere. If that impact is to be determinative, the Mechanism would be precluded from transferring any such case to another State for trial. […] 21. […] The Mechanism’s Statute explicitly provides for the referral of contempt cases and requires States to comply with any order for the surrender or the transfer to the Mechanism of any person accused of contempt,[77] whereas the ICTY Statute did not.[78] In light of the specific provisions allowing for referral of contempt cases, the Appeals Chamber considers that where a State expresses a willingness and commitment to try a case over which it has jurisdiction, […] it should be given the opportunity to do so, provided other relevant factors are satisfied. [44] Article 1(4) of the Statute. [45] Articles 1(4), 28(1) of the Statute. [46] Article 1(4) of the Statute. See also Article 6 (1) of the Statute. [47] See also Rule 2(C) of the Rules of Procedure and Evidence (“Rules”). [48] Article 6 (2) of the Statute. [53] Article 6(2)(i) of the Statute. [77] Articles 1(4), 6(1), 28(1) of the Statute. [78] See e.g. ICTY Rules, Rule 11bis; ICTY Statute, Article 29(1) which reads: “[s]tates shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law”. See supra note 69 [Please note that the correct footnote is note 68]. |
IRMCT Statute
Article 6 of the IRMCT Statute Article 28 of the |
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| Notion(s) | Filing | Case |
| Decision on Amicus Curiae’s Appeal Against the Order Referring a Case to the Republic of Serbia - 12.12.2018 |
JOJIĆ Petar and RADETA Vjerica (MICT-17-111-R90) |
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19. […] [T]he Appeals Chamber considers that it was reasonable for the Single Judge to find that the interests of justice were best served by referring the case to Serbia because there appeared to be a far greater likelihood that the case would be brought to trial in Serbia than at the Mechanism. 20. […] The Appeals Chamber observes that […] if the Accused are not brought to trial within a reasonable time, or if a competent Serbian court determines that it does not have jurisdiction to prosecute the Accused for contempt of the ICTY […], a deferral may be sought in the interests of justice.[74] […] [T]he Appeals Chamber considers that it was reasonable […] to have taken into account the availability of revocation procedures under Rule 14 of the Rules when deciding whether or not to refer the case to Serbia.[75] […] 23. […] [G]iven the importance to the trial process of ensuring that witnesses will appear to give evidence when called and of facilitating the attendance of witnesses through the provision of appropriate protective measures,[87] the Appeals Chamber considers these to be important factors […] in the determination of whether it is in the interests of justice to refer this case to Serbia for trial.[88] [74] Cf. The Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands pursuant to Rule 11bis (F) & (G), 17 August 2007, paras. 3, 11, 12, pp. 5-6; Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-11bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, 13 April 2007, paras. 15, 30. [75] See The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision the Prosecution’s Appeal Against Decision on Referral under Rule 11bis, 8 October 2008, para. 30 (“Munyakazi Decision of 8 October 2008”); Prosecutor v. Gojko Jankovic, No. IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005, para. 55; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005 (“Stanković Decision of 1 September 2005”), para. 52. [87] See Article 20 of the Statute, Rule 86 of the Rules. [88] See [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], paras. 61-66, Munyakazi Decision of 8 October 2008, paras. 37, 38, 42; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision the Prosecution’s Appeal Against Decision on Referral under Rule 11bis, 30 October 2008, paras. 26-35; Stanković Decision of 1 September 2005, para. 26. |
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| Decision on Request to be Allowed to Exercise the Right to Appeal and to Have a Deadline Set for the Notice of Appeal - 27.11.2018 |
ŠEŠELJ Vojislav (IRMCT) |
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8. The Appeals Chamber notes that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.[1] However, neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage.[2] Instead, Article 24 of the Statute and Rule 146 of the Rules offer a convicted person the ability to seek a review of an appeal judgement on fulfilment of certain criteria, which have been interpreted broadly where a miscarriage of justice would otherwise result.[3] ₣…ğ [1] See United Nations General Assembly, International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966, entered into force on 23 March 1976, United Nations Treaty Series, Volume 999, p. 177. The Human Rights Committee has clarified that Article 14(5) of the ICCPR also extends to convictions entered on appeal. See United Nations Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32, para. 47. [2] Appeals Chamber jurisprudence at the ICTY and the International Criminal Tribunal for Rwanda similarly do not provide for the possibility to appeal an appeal judgement. This is demonstrated in decisions establishing that, since the Statute only provides for a right of appeal and a right of review, the Appeals Chamber has no power to reconsider its final judgement as an avenue to seek a further appeal. See, e.g., Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6; Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/l-A, Decision on Motion on Behalf of Veselin Šljivančanin Seeking Reconsideration of the Judgement Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy, 8 December 2009 (“Šljivančanin Decision”), p. 2, n. 7, referring to, inter alia, Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s "Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005", 26 June 2006 (“Žigić Decision”), para. 9. [3] See Prosecutor v. Veselin Šljivančanin, Case No. IT-95-13/l-R.1, Review Judgement, 8 December 2010 (“Šljivančanin Review Judgement”), para. 7; Žigić Decision, para. 7, and references cited therein.
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IRMCT Statute Statute Article 24 IRMCT Rule Rule 146 | |
| Notion(s) | Filing | Case |
| Decision on Request to be Allowed to Exercise the Right to Appeal and to Have a Deadline Set for the Notice of Appeal - 27.11.2018 |
ŠEŠELJ Vojislav (IRMCT) |
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8. The Appeals Chamber notes that Article 14(5) of the International Covenant on Civil and Political Rights guarantees that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.[1] However, neither the Statute nor the Rules provide a legal framework for this avenue of relief where a conviction is entered at the appellate stage.[2] Instead, Article 24 of the Statute and Rule 146 of the Rules offer a convicted person the ability to seek a review of an appeal judgement on fulfilment of certain criteria, which have been interpreted broadly where a miscarriage of justice would otherwise result.[3] [...] 9. The ICTY Appeals Chamber has previously stated that it was “satisfied that the existing appeal and review proceedings established under the Statute provide sufficient guarantees to persons convicted before this Tribunal that they have been tried fairly and in accordance with norms of due process”.[4] [...] Šešelj limits his arguments to the impropriety of being convicted on appeal and to asserting his consequent right to appeal[...] without articulating any deficiencies in the existing procedures for review of appeal judgements provided for in the Statute and the Rules or [...] attempt[ing] to demonstrate that the Appeal Judgement contains any errors.[5] [1] See United Nations General Assembly, International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966, entered into force on 23 March 1976, United Nations Treaty Series, Volume 999, p. 177. The Human Rights Committee has clarified that Article 14(5) of the ICCPR also extends to convictions entered on appeal. See United Nations Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32, para. 47. [2] Appeals Chamber jurisprudence at the ICTY and the International Criminal Tribunal for Rwanda similarly do not provide for the possibility to appeal an appeal judgement. This is demonstrated in decisions establishing that, since the Statute only provides for a right of appeal and a right of review, the Appeals Chamber has no power to reconsider its final judgement as an avenue to seek a further appeal. See, e.g., Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Decision on Ferdinand Nahimana’s Motion for Reconsideration of the Appeal Judgement, 30 June 2010, para. 6; Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/l-A, Decision on Motion on Behalf of Veselin Šljivančanin Seeking Reconsideration of the Judgement Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy, 8 December 2009 (“Šljivančanin Decision”), p. 2, n. 7, referring to, inter alia, Prosecutor v. Zoran Žigić, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s "Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2005", 26 June 2006 (“Žigić Decision”), para. 9. [3] See Prosecutor v. Veselin Šljivančanin, Case No. IT-95-13/l-R.1, Review Judgement, 8 December 2010 (“Šljivančanin Review Judgement”), para. 7; Žigić Decision, para. 7, and references cited therein. [4] See Žigić Decision, para. 9. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-R, Decision on Prosecutor’s Request for Review or Reconsideration, 23 November 2006 (public redacted version), para. 79.
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IRMCT Statute Article 24 IRMCT Rule Rule 146 | |
| Notion(s) | Filing | Case |
| Decision on a Motion for Reconsideration and Certification to Appeal Decision on a Request for Provisional Release - 08.06.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 2: RECALLING that the Appeals Chamber treats its pre-appeal and interlocutory decisions as binding in ongoing proceedings as to all issues decided therein, and that, in the interests of justice, this principle forecloses re-litigation of such issues;[1] OBSERVING that the only exception to this principle is where the Appeals Chamber may reconsider its prior decision;[2] CONSIDERING, therefore, that there is no legal basis for appealing an order or a decision of the Appeals Chamber; Page 3: FINDING, therefore that, Mladić’s request for certification to appeal the Impugned Decision to be without merit; [1] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 127; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence, 7 July 2005 (“Naletilić and Martinović Decision”), para. 20; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 (“Kajelijeli Appeal Judgement”), para. 202. [2] See Nyiramasuhuko et al. Appeal Judgement, para. 127; Naletilić and Martinović Decision, para. 20; Kajelijeli Appeal Judgement, para. 203. In a tribunal such as the Mechanism with only one tier of appellate review, the exception providing for reconsideration of appeal decisions is important to give the Appeals Chamber a meaningful opportunity to correct any mistakes it may have made. See Naletilić and Martinović Decision, para. 20; Kajelijeli Appeal Judgement, para. 203. |
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| Notion(s) | Filing | Case |
| Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 3: CONSIDERING that the determination of Mladić’s request for a stay of the proceedings rests on the determination of his [REDACTED] fitness;[1] CONSIDERING that fitness to participate in proceedings is related to Article 19(4)(b) of the Statute of the Mechanism (“Statute”), which stipulates that an accused shall be entitled to, inter alia, “communicate with counsel of his or her own choosing”;[2] RECALLING that the standard of fitness is that of meaningful participation, allowing the accused to exercise his or her fair trial rights to such a degree as to be able to participate effectively in and understand the essentials of the proceedings, and that an accused’s fitness should turn on whether his or her capacities, “viewed overall and in a reasonable and common sense manner, are at such a level that it is possible for him or her to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights” (“Standard of Fitness”);[3] RECALLING that the Standard of Fitness applies mutatis mutandis to appeal proceedings as it involves an appellant’s fitness to exercise his or her right to consult with counsel concerning the preparation of appellate submissions;[4] CONSIDERING that processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients;[5] CONSIDERING that an appellant claiming to be unfit to participate in proceedings bears the burden of so proving by a preponderance of the evidence;[6]
[1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013 (“Popović et al. Decision of 16 January 2013”), paras. 21-30. [2] See Article 19(4)(b) of the Statute (emphasis added). In this regard, the accused’s ability to participate is clearly contingent upon whether he or she possesses the mental capacity to understand the proceedings and the mental and/or physical capacity to communicate, and thus consult, with his or her counsel. Prosecutor v. Vujadin Popović et al., Case No. IT‑05‑88‑A, Public Redacted Version of 13 December 2010 Decision on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et al. Decision of 16 May 2011”), para. 11. [3] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11; Strugar Appeal Judgement, paras. 41, 55. [4] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11. [5] See Popović et al. Decision of 16 January 2013, para. 22. See also Prosecutor v. Pavle Strugar, Case No. IT‑01‑42‑A, Judgement, 17 July 2008 (“Strugar Appeal Judgement”), paras. 55, 60. The ICTY Appeals Chamber in the Strugar case emphasized that “fitness to stand trial should be distinguished from fitness to represent oneself. An accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer. Even persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal”. See Strugar Appeal Judgement, para. 60. See also Popović et al. Decision of 16 May 2011, para. 13, where the ICTY Appeals Chamber considered that counsel may file a notice of appeal on the appellant’s behalf, on the basis that a variation of the grounds of appeal might be sought later in light of the appellant’s alleged present incapacity. [6] See Popović et al. Decision of 16 January 2013, para. 21. See also Strugar Appeal Judgement, para. 56. |
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| Notion(s) | Filing | Case |
| Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 4: CONSIDERING FURTHER that, following the conclusion of the trial proceedings, the means to address an alleged violation of a procedural right – including matters related to fitness to participate in trial proceedings[1] – is an appeal from judgement;[2] [1] See supra, n. 14. [2] Cf. Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Decision on Mi}o Stani{i}’s Motion Requesting a Declaration of Mistrial and Stojan @upljanin’s Motion to Vacate Trial Judgement, 2 April 2014, paras. 21, 26, 33. See also Strugar Appeal Judgement, paras. 25‑64, where the ICTY Appeals Chamber adjudicated the issue of Pavle Strugar’s fitness during trial in the appeal judgement. |
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| Decision Dismissing a Request - 13.04.2018 |
NIYITEGEKA Eliézer (MICT-12-16-R) |
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Pages 1-2: NOTING that Niyitegeka passed away on 28 March 2018, while serving his sentence in the Republic of Mali;[1] RECALLING that the Mechanism continues the personal jurisdiction of the ICTR as set out in Article 5 of the Statute of the ICTR ("ICTR Statute");[2] OBSERVING that Article 5 of the ICTR Statute stipulates that the ICTR "shall have jurisdiction over natural persons"; CONSIDERING that, when read in the context of the object and purpose of the ICTR Statute, "natural persons" is understood as limited to those who are alive;[3] RECALLING that appeal proceedings before the ICTY and trial proceedings before the ICTY and the ICTR have been terminated following the death of the appellant or the accused for lack of personal jurisdiction;[4] CONSIDERING that, to uphold principles of due process and fundamental fairness, the Mechanism's jurisdiction ratione personae, consistent with that of the ICTR and the ICTY, is limited to living persons;[5] FINDING that, in light of. Niyitegeka's death, the Appeals Chamber no longer has jurisdiction to consider the Request; [1] See Registrar’s Submission Pursuant to Rule 31(B), 6 April 2018 (confidential), para. 2, Annex A. See also The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Decision on the Enforcement of Sentence, 4 December 2008, p. 3. See also Request for Review, 27 June 2017 (confidential; French original filed on 7 June 2017), para. 1. [2] Article 1 of the Statute of the Mechanism. [3] See, mutatis mutandis, Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010 (“Delić Decision of 29 June 2010"), para. 6 (interpreting "natural persons" in Article 6 of the Statute of the International Criminal Tribunal for the former Yugoslavia ("ICTY")). [4] See Delić Decision of 29 June 2010, paras. 5, 6, 8, 16, n. 16 and references cited therein. See also Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Order Terminating Proceedings, 22 July 2016, p. 1; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision Relating to Registrar’s Submission Notifying the Demise of Accused Joseph Nzirorera, 12 August 2010, para. 2. Cf. Édouard Karemera et al. v. The Prosecutor, Case No. ICTR‑98‑44‑AR91.3, Decision on Joseph Nzirorera’s Appeal of Decision Not to Investigate Witnesses GAP and BDW for False Testimony, 26 August 2010, p. 1 (dismissing Joseph Nzirorera’s pending interlocutory appeal after his death for lack of jurisdiction). [5] See supra n. 8. See also Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-A.R14, Decision on Appeal Against the Referral of Phénéas Munyarugarama's Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, paras. 5, 6. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 11.04.2018 |
ŠEŠELJ Vojislav (MICT -16-99-A) |
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57. […] The Appeals Chamber observes that, in the present case, the Trial Chamber did not explicitly set out the legal requirements applicable to the chapeau elements of crimes against humanity. However, contrary to the Prosecution’s submission, this per se does not amount to a failure by the Trial Chamber to provide a reasoned opinion. While, in practice, trial chambers usually state the law that they intend to apply, the duty to provide a reasoned opinion does not necessarily entail a formal requirement to set out the applicable law. Accordingly, while it would have been preferable for the Trial Chamber to explicitly set out the chapeau elements of crimes against humanity, the Prosecution fails to show that the Trial Chamber’s omission to do so amounts to an error of law. See also para. 160. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 11.04.2018 |
ŠEŠELJ Vojislav (MICT -16-99-A) |
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124. The Appeals Chamber recalls that the actus reus of “instigating” implies prompting another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2] […] The Trial Chamber, however, added an element – “that it should also be demonstrated that the instigator used different forms of persuasion such as threats, enticement or promises to the physical perpetrators of the crimes” – without citing any authoritative support for it.[3] The Appeals Chamber cannot exclude that proof of threats, enticement, or promises to physical perpetrators may have some relevance in assessing whether a particular conduct amounts to instigation. However, it is not a legal requirement, and the Trial Chamber erred in stating so. […] [1] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3327; Ngirabatware Appeal Judgement, para. 162; Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27. [2] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 3327; Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, paras. 480, 660; Kordić and Čerkez Appeal Judgement, para. 27. [3] Trial Judgement, para. 295. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 11.04.2018 |
ŠEŠELJ Vojislav (MICT -16-99-A) |
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159. The Appeals Chamber recalls that persecution as a crime against humanity under Article 5(h) of the ICTY Statute is an act or omission which: (i) discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and (ii) was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion, or politics (mens rea).[1] In assessing whether speech may constitute an underlying act of persecution, the ICTR Appeals Chamber in the Nahimana et al. case held that “speech inciting to violence against a population on the basis of ethnicity, or any other discriminatory ground, violates the right to security of the members of the targeted group and therefore constitutes ‘actual discrimination’”.[2] It further held that the context in which the underlying act of persecution takes place is particularly important for the purpose of assessing its gravity.[3] […] 163. […] The Appeals Chamber also considers that Šešelj’s speech denigrated the Croatians of Hrtkovci on the basis of their ethnicity, in violation of their right to respect for dignity as human beings. In the Appeals Chamber’s view, Šešelj’s speech rises to a level of gravity amounting to the actus reus of persecution as a crime against humanity. […]. [1] See, e.g., Nahimana et al. Appeal Judgement, para. 985; Kvočka Appeal Judgement, para. 320; Blaškić Appeal Judgement, para. 131. [2] Nahimana et al. Appeal Judgement, para. 986, referring to Article 3 of the Universal Declaration of Human Rights. [3] Nahimana et al. Appeal Judgement, paras. 987, 988. |
ICTY Statute Article 5(h) | |
| Notion(s) | Filing | Case |
| Decision on a Request for Access and Review - 09.04.2018 |
SEMANZA Laurent (MICT-13-36-R) |
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9. […] As to the nexus, […] Given the relatively low threshold for establishing this criterion,[1] […] [1] See Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Decision on Georges A.N. Rutaganda's Appeal Against Decision on Request for Closed Session Testimony and Sealed Exhibits, 22 April 2009, para. 23 ("The Appeals Chamber emphasises that a requesting party is not required to establish a 'significant' overlap between the cases – be it factual, geographic or temporal – in order to demonstrate a legitimate forensic purpose.") |
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| Notion(s) | Filing | Case |
| Decision on a Request for Access and Review - 09.04.2018 |
SEMANZA Laurent (MICT-13-36-R) |
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15. […] while not bound by the jurisprudence of the ICTR or the ICTY, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTR or the ICTY Appeals Chambers and depart from them only for cogent reasons in the interests of justice. |
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| Notion(s) | Filing | Case |
| Decision on a Request for Access and Review - 09.04.2018 |
SEMANZA Laurent (MICT-13-36-R) |
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Footnote 50: […] See also Prosecutor v. Hazim Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, para. 11 (“If the material proffered consists of additional evidence relating to a fact which was in issue or considered in the original proceedings, this does not constitute a ‘new fact’ [...], and the review procedure is not available.”) (Emphasis in original). |
IRMCT Rule
Rule 146 |
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| Notion(s) | Filing | Case |
| Decision on a Request for Access and Review - 09.04.2018 |
SEMANZA Laurent (MICT-13-36-R) |
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23. The Appeals Chamber recalls that an indictment simply contains allegations of facts with which an accused is charged and the Appeals Chamber of the ICTR has found it to have "no evidentiary value" in the context of review proceedings.[1] This conclusion is particularly persuasive when considering the broad discretion the Prosecution has in selecting information and crimes to be included in indictments[2] and the fact that Rugambarara's amended indictment was drafted with the intention of securing a plea agreement. Similarly, the facts relied upon to convict Rugambarara were also agreed to by the parties[3] and "such facts are merely accepted by the Trial Chamber upon a less burdensome level of scrutiny than one applied in instances where the Prosecution must prove facts upon which convictions are based beyond reasonable doubt."[4] Given the particular context in which the Rugambarara Plea Documents were created, the Appeals Chamber finds that they do not constitute new information of an "evidentiary nature" that would support a basis for review of Semenza's convictions.[5] See also paragraph 28. [1] Francois Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Reconsideration and Review, 26 March 2012, para. 30. [2] See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-04-A, Judgement, 23 November 2001 (original French version filed on 1 June 2001), para. 94 and references cited therein. [3] See Rugambarara Sentencing Judgement, paras. 4, 5, 8. [4] Theoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva's Motion for Judicial Notice, 29 October 20 10, para. 11 (emphasis in original). [5] Semenza's attempt to establish a new fact on the basis of the Rugambarara Plea Documents could also be dismissed because the issues raised by them were at issue in Semenza's underlying proceedings. Specifically, although WitnessVA provided evidence that Rugambarara went to Musha church with Semanza and was present during the attack, including the torture and killing of Rusanganwa, the Trial Chamber did not rely on this aspect of Witness VA's evidence. Trial Judgement, paras. 168, 169, 196, 197, 206, 211, 213. Furthermore, Defence Witness MTP testified that she did not see Rugambarara, whom she knew, during the Musha Church Attack. Trial Judgement, para. 192. Consequently, the Rugambarara Plea Documents fail to present new information that was not among the factors the Trial Chamber could have taken into account in reaching its verdict and, therefore, do not support the existence of a new fact. |
IRMCT Rule Rule 146 | |
| Notion(s) | Filing | Case |
| Decision on a Request for Access and Review - 09.04.2018 |
SEMANZA Laurent (MICT-13-36-R) |
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30. […] the Appeals Chamber does not consider any lack of reference to Semanza's activities in a brief statement taken during a separate trial involving a different accused constitutes a new fact for the purposes of review.[1] As previously recalled by the ICTR Appeals Chamber, "to suggest that if something were true a witness would have included it in a statement [...] is obviously speculative".[2] [1] Rutaganda Decision of 8 December 2006 [Georges Anderson Nderubumwe Rutaganda·v. The Prosecutor, Case No. ICTR. 96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and. Clarification, 8 December 2006], para. 13. [2] Rutaganda Decision of 8 December 2006, para. 13, quoting Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 176. |
IRMCT Rule Rule 146 | |
| Notion(s) | Filing | Case |
| Decision on Further Extension of Time to File a Notice of Appeal - 09.03.2018 |
MLADIĆ Ratko (MICT-13-56-A) |
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Page 2: RECALLING that the filing of a notice of appeal marks the commencement of the appeal proceedings in a case, and, since the time limits for the filing of subsequent briefs are calculated from the date on which the notice of appeal is filed, any delay at such an early stage will affect subsequent filings;[1] RECALLING FURTHER that parties may have the opportunity, after the filing of the notice of appeal, to request variation of their grounds of appeal provided that they show good cause under Rule 133 of the Rules;[2] [1] See, e.g., Pauline Nyiramasuhuko et al. v. The Prosecutor, Case No. ICTR-98-42-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 25 July 2011, para. 5 and references cited therein. [2] See also Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Decision on Motions for Extension of Time to File Notices of Appeal, 23 March 2009, p. 3. |
IRMCT Rule Rule 133 | |
| Notion(s) | Filing | Case |
| Decision on Additional Evidence on Appeal - 02.03.2018 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Pages 3-4: 7. Rule 142 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) provides for the admission of additional evidence on appeal. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[1] The applicant must also show that the additional evidence is relevant to a material issue at trial and is credible. [2] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine, in accordance with Rule 142(C) of the Rules, whether it could have been a decisive factor in reaching the verdict.[3] Where the Appeals Chamber finds that the evidence was available at trial, it may still be admissible pursuant to Rule 142(C) of the Rules. However, in such a case, the applicant must demonstrate that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the verdict.[4] 8. In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s verdict.[5] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[6] [1] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24. See also Prosecutor v. Jean Uwinkindi, MICT-12-24-AR14.1, Decision on Requests for Admission of Additional Evidence on Appeal, 22 September 2016 (“Uwinkindi Decision of 22 September 2016”), para. 5. [2] Ngirabatware Decision of 21 November 2014, para. 25. See also Uwinkindi Decision of 22 September 2016, para. 5. Evidence is relevant if it relates to findings material to the conviction or sentence, in the sense that those findings were crucial or instrumental to the conviction or sentence, and is credible if it appears to be reasonably capable of belief or reliance. Ngirabatware Decision of 21 November 2014, para. 25. [3] Ngirabatware Decision of 21 November 2014, para. 26. Cf. Uwinkindi Decision of 22 September 2016, para. 5. [4] Ngirabatware Decision of 21 November 2014. para. 27. Cf. Uwinkindi Decision of 22 September 2016, para. 6. [5] Ngirabatware Decision of 21 November 2014, para. 28. Cf. Uwinkindi Decision of 22 September 2016, para. 7. [6] Ngirabatware Decision of 21 November 2014, para. 28. See also Uwinkindi Decision of 22 September 2016, para. 7. |
IRMCT Rule Rule 142 | |
| Notion(s) | Filing | Case |
| Decision on Additional Evidence on Appeal - 02.03.2018 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Page 5: 12. […] While there may be situations where a party may attempt to use Rule 142 of the Rules for the purpose of remedying tactical errors or oversights at trial, the Appeals Chamber considers that, in this instance, the heightened standard for admission sufficiently protects the interests of justice. [1] Specifically, the Appeals Chamber recalls that the heightened standard for admitting additional evidence on appeal that was available at trial “seeks to ensure the finality of judgements and the application of maximum effort by counsel at trial to obtain and present the relevant evidence, while at the same time, it does not permit a factually erroneous conviction to stand, thereby safeguarding an equally important interest of accuracy in judgements.” Galić Decision of 30 June 2005 [Prosecutor v. Stanilav Galić, Case No. IT-98-29-A, Decision on the First and Third Rule 115 Defence Motions to Present Additional Evidence Before the Appeals Chamber, 30 June 2005], para. 15 (internal quotations omitted). |
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| Notion(s) | Filing | Case |
| Decision on Additional Evidence on Appeal - 02.03.2018 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Footnote 42: As concerns the Supplement [Supplement to Motion to Admit Additional Evidence, 2 December 2017] filed by Karadžić, the Appeals Chamber recalls that a party is to seek leave to file supplemental authorities. See Prosecutor v. Naser Orić, Case No. IT-03-68-A, Decision on Prosecution’s “Notice of Supplemental Authority”, 14 May 2007, p. 2. Furthermore, the Appeals Chamber finds that the Supplement, which concerns factual determinations based on a separate record reviewed by a separate trial chamber of the ICTY, does not present supplemental legal authority that would assist in the adjudication of the Motion. |
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