18. The Appeals Chamber reiterates that a party seeking the admission of additional evidence on appeal must provide the Appeals Chamber with the evidence sought to be admitted.[1] […]

4. Pursuant to Rule 102(A) of the Rules, “as soon as notice of appeal is given, the enforcement of a judgement shall thereupon be stayed until the decision on the appeal has been delivered, the convicted person meanwhile remaining in detention”.[1] Haraqija and the Prosecution filed notices of appeal on 2 January 2009, respectively challenging his conviction and sentence. As a result, the remainder of the sentence imposed by the Trial Chamber against Haraqija will not have expired on 10 April 2009 since it has been stayed pending the disposition of the appeal. Therefore, contrary to Haraqija’s submissions, in these circumstances, the fact that his sentence as imposed by the Trial Chamber would have expired on 10 April 2009 does not itself provide a basis for his release.

8. The Appeals Chamber notes that Haraqija has not submitted any State guarantees in support of his Motion and requests the Appeals Chamber to direct the Registry to enquire about the willingness and ability of the United Nations Interim Administration in Kosovo (“UNMIK”) to ensure compliance with any conditions imposed on release.[1] While the submission of State guarantees is not a pre-requisite for provisional release, it is generally advisable for an applicant seeking provisional release to submit guarantees in order to satisfy the International Tribunal that he will appear when required.[2] In the instant case, the Appeals Chamber understands that UNMIK has indicated in consultations with the Registry that it would be prepared to provide similar guarantees for Haraqija as imposed on his co-accused Bajrush Morina and to honour any directions provided by the Appeals Chamber in the event of provisional release. The Appeals Chamber accepts this as a sufficient guarantee of compliance.

14. The Appeals Chamber notes that, although at the time of his release, Haraqija would have already served the entire sentence imposed by the Trial Chamber, he still maintains the status of a convicted person pursuant to Rule 102 of the Rules. As such, he is not in the same position as a person who has finished serving his sentence after completion of criminal proceedings against him. Further, an appeal against his sentence is still pending which may result in an increase in his sentence. Given these circumstances, the Appeals Chamber finds that there is a need to have in place conditions restricting his movement so as to ensure that Haraqija will be available to surrender into detention when required to do so by the Appeals Chamber. Thus, the Appeals Chamber denies Haraqija’s requests relating to his conditions of provisional release. Instead, the Appeals Chamber considers it appropriate to impose on Haraqija the same conditions of provisional release in force during the trial.[3]

14. In addition, the Appeals Chamber emphasizes that the humanitarian and medical grounds advanced by Ngirumpatse in support of his application[1] were relevant factors in deciding whether he will return for trial.[2] As such, they deserved consideration in the assessment of whether Ngirumpatse is a flight risk. In limiting itself to concluding that Ngirumpatse would not receive a better medical treatment in Europe or anywhere else without considering the humanitarian and medical grounds put forward by Ngirumpatse,[3] the Trial Chamber erred in the exercise of its discretion.

15. The Appeals Chamber therefore finds that the Trial Chamber erred in failing to take into account all the factors which were relevant to its taking a fully informed and reasoned decision as to whether, pursuant to Rule 65 of the Rules, Ngirumpatse will appear for trial if provisionally released and, more generally, as to whether or not he should be granted provisional release. […]

15. With regard to the Motion for Sur-Reply, the Appeals Chamber recalls that full answers to issues raised in motions should be provided at the response stage and that no provision of the Rules nor the Practice Direction authorizes a party to file a sur-reply.[1]  However, leave to file a sur-reply may be granted “where the reply raises a new issue to which the respondent has not already had the opportunity to respond”.[2]  In the present case, the issue of waiver was implicitly raised by the Prosecution in its Response and Motion to Strike[3] and Tarčulovski had the opportunity to respond to it.[4]  Therefore, the issue of waiver does not require leave to file a sur-reply. Given that the proposed Amended Notice of Appeal was filed as an annex to Tarčulovski’s Reply and Response to Motion to Strike, the Appeals Chamber considers that the Prosecution could only have raised matters related to it in its Reply to Motion to Strike.  Therefore, the Appeals Chamber accepts the Sur-Reply as validly filed to the extent that it refers to the compliance of the proposed Amended Notice of Appeal with the Practice Direction.

17. The Appeals Chamber may authorise leave to amend a notice of appeal upon the showing of “good cause”. The concept of “good cause” covers 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 phrased) in the original notice of appeal.[1] The “good cause” requirement is assessed on a case by case basis,[2] and several factors can be taken into account.[3] The Appeals Chamber has summarized these factors as follows:

These have included the fact that the variation is so minor that it does not affect the content of the notice of appeal; the fact that the opposing party would not be prejudiced by the variation or has not objected to it; and the fact that the variation would bring the notice of appeal into conformity with the appeal brief. Where the appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” might also, under some circumstances, be established. The Appeals Chamber notes that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted. [4]

18. The Appeals Chamber recalls that the good cause requirement is to be interpreted more restrictively at later stages in the appeal proceedings when variations to the grounds of appeal may substantially affect the efficient administration of justice.[5] 

In the present case, the Appeals Chamber was seized of a motion to reorganise the grounds of appeal listed in Tarčulovski’s Appeal Brief in an order different from that set forth in his Notice of Appeal. Tarčulovski contended that good cause existed to amend his Notice of Appeal because two of his current counsels were appointed after it was filed. At the time the motion was filed, Tarčulovski believed that his Defence team had just received a fresh perspective on the significance of the alleged errors committed by the Trial Chamber because his entire team was then able to review the extensive record and transcript in the case.

25. The Appeals Chamber considers that, in the circumstances of this case, the change of counsel constitutes good reason for showing why those grounds were not included in the original Notice of Appeal. In addition, it takes note of the fact that the proposed variation to the Notice of Appeal would bring it into conformity with the Appeal Brief, that any potential prejudice caused to the Prosecution is cured through the Appeals Chamber’s decision to grant the Prosecution’s request for an extension of time to file its Respondent’s Brief,[6] and that the inclusion of these grounds of appeal in an amended notice of appeal would not unduly interfere with the expeditious administration of justice as these arguments do not reflect a change to an appeal strategy by Tarčulovski subsequent to reading the Prosecution’s Respondent’s brief, which has not yet been filed.[7] Therefore, the Appeals Chamber finds that Tarčulovski has shown good cause for amending his notice of appeal.

5. Rule 108 of the Rules provides that the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in a notice of appeal. Motions for variation of the notice of appeal should be submitted as soon as possible after identifying the new alleged error of the Trial Chamber to be included in the notice of appeal or after discovering any other basis for seeking variation of the notice of appeal.[1] Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each amendment, the ‘good cause’ requirement of Rule 108 is satisfied”.[2] It is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[3] The “good cause” requirement under Rule 108 encompasses both good reason for including the new or amended grounds of appeal sought and good reason as to why those grounds were not included in the original notice of appeal.[4]

6. In its previous determinations that proposed variations to the notice of appeal may be authorized within the scope of the good cause requirement, the Appeals Chamber has considered the following factors to be of relevance: (i) the variation is minor but clarifies the notice of appeal without affecting its content;[5] (ii) the opposing party has not opposed the variation or would not be prejudiced by it; (iii) the variation would bring the notice of appeal into conformity with the appeal brief; (iv) the variation does not unduly delay the appeal proceedings; or (v) the variation could be of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[6]

8. Nevertheless, the Appeals Chamber is not satisfied that there is good cause to allow Morina to amend his Notice of Appeal and as a corollary his Appellant’s brief to add the proposed new ground of appeal. The briefing in this case is complete, and the proposed variation would therefore unduly delay the appeal proceedings by requiring additional submissions on this point from the parties. Moreover, Morina fails to substantiate his claim that by excluding it, this would equate to a miscarriage of justice. In this sense, he has not identified any aspect of his criminal responsibility or his sentence that is implicated by the alleged error. Rather, his concern is mainly for his professional reputation[7] because, in his view, the language employed by the Trial Judgement leaves the impression that he was arrested by force. This does not amount to good cause.

7. The Appeals Chamber notes the Applicant’s failure to comply with the formal requirements for filings before the International Tribunal and to follow the instructions provided by the Registry and reminds the Applicant of the importance of respecting these requirements. The Appeals Chamber is further compelled to observe that the three letters of submission from the Applicant fall far below the average standard for motions to the International Tribunal. Finally, the Appeals Chamber notes the poor language of the Application and reminds the Applicant that it may lodge submissions in any of the official languages of the International Tribunal.

8. Nevertheless, in the interests of justice and specifically in order to avoid prejudice arising to the Applicant from the poor diligence of Counsel, the Appeals Chamber decided to examine the merits of the Application.

The Appeals Chamber addressed the Applicant’s submission that he was unlawfully detained in Croatia before being brought before the Tribunal and that this should have been taken into account as a mitigating factor in his sentence. After having found that this allegation did not constitute a new fact, the Appeals Chamber considered whether ignoring this allegation would amount to a miscarriage of justice and concluded for the negative.

31. Neither does the Appeals Chamber consider that ignoring the alleged new facts submitted by the Applicant would result in a miscarriage of justice. The Appeals Chamber finds that none of the alleged new facts submitted by the Applicant demonstrate that his detention by the Croatian authorities prior to 18 October 1999 should be impugned to the International Tribunal. The Trial Chamber was thus not under the obligation to take that detention into account as a mitigating factor in sentencing. In this regard, the Appeals Chamber notes that in a letter dated 21 May 1999, the Croatian authorities informed the International Tribunal that the Applicant had been detained in Croatia on the basis of serious charges unrelated to the crimes over which the International Tribunal has jurisdiction.[1] The Appeals Chamber considers that the Applicant has failed to substantiate his claims to the contrary.

11. The Appeals Chamber recalls that the term “new fact” refers to new evidentiary information supporting a fact that was not at issue during the trial or appeal proceedings.[1] The requirement that the fact was not at issue during the proceedings means that “it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] Essentially, the moving party must show that the Chamber did not know about the fact in reaching its decision.[3]