Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

8.       […] the Appeals Chamber recalls that, in its Decision on Third Request for Review, it stated that the closed session material submitted by the Applicant in support of his Third Request for Review had been “obtained in direct violation of Trial Chambers’ orders”.[2] The Appeals Chamber was well aware that the Applicant was not a party to the proceedings in which the protective measures were ordered. However, it considered that, by obtaining and making use of closed session material to which he undoubtedly knew that he was not authorized to have access, the Applicant took part in the breach of the Trial Chambers’ orders committed by those who were directly bound by them. The Applicant therefore participated in the violation of the orders for protective measures imposed by the Trial Chambers and, thereby, “seriously undermine[d] the integrity of the Tribunal’s proceedings”.[3]    

11.     […] the Appeals Chamber clarifies that, although the Applicant was not a party to the cases in which the protective measures were ordered, he was bound by the Trial Chambers’ orders not to disclose confidential material from the moment it came into his possession. Similar to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia found in respect of closed session orders,[4] the Appeals Chamber considers that the orders of protective measures apply to all persons coming into possession of protected information. This is necessary, in particular, in order to comply with the Tribunal’s obligation pursuant to Article 21 of the Statute to protect witnesses on whose behalf protective measures have been ordered. Such orders would be meaningless if third parties were allowed to disclose confidential information on the sole ground that the orders were not expressly directed to them.

10.     As to the scope of Rule 77 of the Rules raised in point (b), the Appeals Chamber notes that, while the rule does not specifically provide for holding in contempt those who are in possession of confidential material to which they were not granted access or make “confidential use” of unauthorized confidential material, it does generally provide for holding in contempt “those who knowingly and willfully interfere with [the Tribunal’s] administration of justice”.[1]

Following a request for guidance presented by amicus curiae as to how he should respond to a request by Momčilo Krajišnik for a meeting at the United Nations Detention Unit (“UNDU”) in which Mr. Krajišnik asked the Registry to arrange a meeting between him and amicus curiae for the purpose of discussing one of amicus curiae’s submissions, the Pre-Appeal Judge clarified:

p. 1: RECALLING that “the Appeals Chamber invite[d] the participation of a particular amicus curiae to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests”;

RECALLING that the Appeals Chamber made explicit that “amicus curiae is not a party to the proceedings” and that “[a]micus curiae is to work independently from Mr. Krajišnik”;

CONSIDERING that a meeting between Mr. Krajišnik and amicus curiae about an issue within the purview of amicus curiae’s assignment would violate both the terms and spirit of amicus curiae’s appointment;

HEREBY CLARIFIES that amicus curiae remains under an obligation to work independently from Mr. Krajišnik and that the meeting sought by Mr. Krajišnik would consequently be inappropriate.[5]

Subsequently, in a Motion filed on 26 June 2008, Mr. Krajišnik sought review of the Decision of 11 June 2008 and an order obliging amicus curiae to visit him at the UNDU. The Pre-Appeal Judge considered that the Motion was best construed as a request for reconsideration of the Decision, since it did not meet the standards for a request for review laid out in Rule 119(a) of the Rules.[6] The Pre-Appeal Judge denied the Motion, finding that Mr. Krajišnik had not met the standard that would justify granting his request for reconsideration because he had not shown that the 11 June 2008 Decision was based on clearly erroneous reasoning or that it would result in an injustice.

15. The Appeals Chamber recalls that in the Impugned Decision, the Trial Chamber found that derogation from the right of the Accused to be present at trial was warranted given that his health condition regularly interferes with the right to a fair and expeditious trial.  The Prosecution correctly points out that derogation from the right to be present is reasonable under some circumstances and that derogation may be justified even on the basis of substantial trial disruptions on the part of an accused that are unintentional in nature.  The question before the Appeals Chamber is whether derogation from the right to be present through the establishment of a video-conference link that enables the Accused to participate in his trial from the UNDU was reasonable under the circumstances of this case.

16. The Appeals Chamber observes that in determining whether derogation from the Accused’s right to be present at trial was justified, the Trial Chamber considered the proportionality principle.[3]  Specifically, the Trial Chamber noted that any restrictions on a fundamental right “must be the least intrusive instrument amongst those which might achieve the desired result.”[4]  The Trial Chamber further considered that in the Zigiranyirazo Decision, the Appeals Chamber held that the need to ensure a reasonably expeditious trial is an objective of general importance and accordingly concluded that its task in the instant case was to “strike an appropriate balance between the reasonably expeditious resolution of the case and the need to protect the Accused’s right to be present at his trial.”[5]

18. The Appeals Chamber considers that in determining the future course of the proceedings in this case, the Trial Chamber’s decision to balance the right of the Accused to be present with the right of both the Accused and his co-Accused to an expeditious trial was reasonable. […] 

19. The Appeals Chamber emphasizes that the right to be present is a fundamental right, and although the Prosecution correctly points out that derogation from this right may be warranted in light of substantial trial delays, the Appeals Chamber agrees with the Defence that derogation is not appropriate when reasonable alternatives exist.  The Appeals Chamber notes that in choosing to establish the video-conference link, the Trial Chamber excluded other potential options, including, as the Prosecution observes, allowing the case to remain in the pre-trial phase for three to six months.[6]  The Appeals Chamber considers that, given the existence of this reasonable alternative, which could potentially secure the Accused’s ability to fully exercise his right to be present at trial within a relatively short period of time, the Trial Chamber erred in choosing an alternative that restricted this right. 

20. The Appeals Chamber further notes that in establishing the video-conference link to enable the Accused to participate in the proceedings from the UNDU when he is too unwell to physically attend court, the Trial Chamber failed to consider whether, given his physical and mental state, he would nevertheless be able to effectively participate in his trial via the video-conference link.  The Appeals Chamber finds that a reasonable Trial Chamber would have considered this factor in its decision and accordingly finds that the Trial Chamber’s failure to do so amounts to a discernible error.

22. The Appeals Chamber notes that when considering the impact of a 98bis ruling on the flight risk of an accused pursuant to Rule 65(B) of the Rules, a Trial Chamber may deem it necessary to address the arguments raised by the accused in his motion for acquittal in order to assess his perception of the strength of the case against him. However, contrary to the Prosecution’s inference, such an assessment does not constitute a fixed requirement of the Rules. The Appeals Chamber accordingly finds that the Trial Chamber did not commit a discernible error when it concluded that the 98bis Decision did not increase Gvero’s flight risk without addressing the arguments he made in his motion for acquittal.

23. […] Only after weighing all of the aforementioned factors along with the 98bis Decision did the Trial Chamber conclude that Gvero did not pose a flight risk or a threat to witnesses, victims or other persons in the case.[1] Accordingly, the Appeals Chamber is not satisfied that the Trial Chamber committed a discernible error when it concluded that the 98bis Decision did not increase Gvero’s flight risk.

24. Nevertheless, the Appeals Chamber recalls that when considering a provisional release motion at the post-98bis stage of the proceedings, even when a Trial Chamber is satisfied that sufficient guarantees exist to offset the flight risk of the accused, it should not exercise its discretion to grant provisional release unless sufficiently compelling humanitarian reasons tip the balance in favour of allowing provisional release.[2] The Appeals Chamber accordingly finds, Judges Güney and Liu dissenting, that a Trial Chamber properly exercising its discretion would have denied Gvero’s provisional release request given that he did not propose any compelling humanitarian justifications for release. Gvero points out that in the 7 December 2007 Decision, the Trial Chamber did not consider his personal circumstances relevant to its decision to grant his provisional release motion, and that in the Impugned Decision, the Trial Chamber granted him provisional release in accordance with previous Trial and Appeal Chamber decisions.[3] However, the Appeals Chamber notes that each of the decisions relied upon by Gvero were rendered before the 98bis Decision in this case.

30. The Appeals Chamber disagrees with the Prosecution’s assertion that the Trial Chamber did not conduct a clear assessment of the impact of the 98bis Decision on Miletić’s flight risk. Rather, the Trial Chamber explicitly noted that in light of the Prlić Decision of 11 Marcy 2008, it was required to conduct such an assessment.[4] […] The Trial Chamber concluded that based on all of the aforementioned factors, it was not satisfied that the 98bis Decision increased Miletić’s flight risk. It further concluded that the Miletić did not pose a flight risk or a threat to witnesses, victims or other persons in the case.

See also the Partly Dissenting Opinions of Judges Güney and Liu.

The Appeals Chamber was seized of a consolidated appeal by the Office of the Prosecutor against three decisions rendered by Trial Chamber II, in which a custodial visit was granted to Ljubomir Borovčanin and provisional release to Milan Gvero and Radivoje Miletić.[1] The Trial Chamber had ordered the Impugned Decision to be stayed in accordance with Rule 65(F) of the Rules, following the Prosecution’s submission that it intended to file an appeal should the Trial Chamber grant provisional release to the Accused. [2]

17. Turning to the sufficiency of the humanitarian grounds provided in support of Borovčanin’s motion, the Trial Chamber observed that Borovčanin requested both to see his ailing father and to address other personal matters.[3] In granting the visit, the Trial Chamber considered that Borovčanin’s father is elderly, has been sick for an extended period of time, and according to the medical report accompanying Borovčanin’s motion, is in critical condition.[4] The Trial Chamber surmised that under the circumstances, there could be few opportunities left for Borovčanin to see his father.[5] The Trial Chamber concluded that “the humanitarian grounds are sufficiently compelling” to justify “some form of provisional release.”[6] The Appeals Chamber, having considered the evidence before the Trial Chamber, finds that the Trial Chamber did not commit a discernible error in considering that the serious health condition of Borovčanin’s father justified his provisional release for a short duration.

See also, para. 31.

9. The Appeals Chamber notes that Rule 68(A) of the Rules imposes an obligation on the Prosecution to disclose to the Defence, as soon as practicable, any material which, in the actual knowledge of the Prosecution, may suggest the innocence or mitigate the guilt of an accused or affect the credibility of the evidence led by the Prosecution in that particular case. The determination of which materials are subject to disclosure under this provision, is a fact-based enquiry made by the Prosecution.[1] If an appellant wishes to show that the Prosecution is in breach of its disclosure obligation, he or she must (1) identify specifically the material sought; (2) present a prima facie showing of its probable exculpatory nature; and (3) prove that the material requested is in the custody or under the control of the Prosecution. [2]

7. In previous cases, the Appeals Chamber has found special circumstances where there is an acute justification, such as the applicant’s medical need or a memorial service for a near family member.[1] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[2] Where a convicted person simply “wishes to spend time with his family”[3] or seeks to visit a close relative in poor health,[4] the Appeals Chamber has refused the application upon the grounds that such reasons are not sufficient to establish special circumstances. In the present case, the medical evidence presented by Mr. Milošević indicates that [REDACTED].[5] The Appeals Chamber considers that even if [REDACTED], there is no suggestion of an acute crisis or of life-threatening medical condition that constitutes a “special circumstance” warranting provisional release. Further, Mr. Mi1ošević’s request to attend his son’s wedding is not a “special circumstance” within the meaning of Rule 65(I)(iii) of the Rules and under the Appeals Chamber’s jurisprudence. In light of the foregoing, the Appeals Chamber finds that Mr. Milošević fails to show the existence of “special circumstances” under Rule 65(I)(iii) of the Rules and does not therefore deem it necessary to assess whether the requirements of Rule 65(I)(i)-(ii) are satisfied.

The Appeals Chamber upheld the Trial Chamber’s finding that the humanitarian reasons identified by the Accused were sufficiently compelling to grant provisional release at a late stage of the proceedings. However, the Appeals Chamber considered that a proportion must exist between the nature and weight of the humanitarian grounds and the duration of provisional release. On this basis, the Appeals Chamber remanded the Impugned Decision to the Trial Chamber for a de novo adjudication of the duration of the provisional release granted to the Accused.

Muvunyi made two additional written submissions, after the appeal hearing, relating to (i) a response to a question raised by one of the Judges about whether the omission of a certain fact from the Indictment rendered it defective for lack of notice; and (ii) mitigating factors in sentencing. The Prosecution objected to these submissions and requested that they be expunged from the record.

5. In the Appeals Chamber’s view, Muvunyi’s submission in this respect does not constitute an attempt to vary the grounds of appeal pursuant to Rule 108 of the Rules, but is instead an attempt to clarify and expand upon an existing ground of appeal based on the question raised by a Judge during the Appeals Hearing. The Appeals Chamber further notes that, if it had considered that additional submissions were necessary for the fair determination of the appeal, it would have asked Counsel to provide further submissions on that question. However, in the absence of a specific request by the Appeals Chamber or prior leave granted by it, there is no provision in the Rules under which a party may make written submissions after the hearing of the appeal for the purpose of clarifying issues raised during the hearing. Counsel for Muvunyi had the opportunity of addressing this issue during the Appeals Hearing in response to the question, but did not do so. The Appeals Chamber did not request further submissions nor did Counsel for Muvunyi seek leave to make additional submissions on this point.[1] The Appeals Chamber is therefore satisfied that this submission should not be considered further.

6. [. .  .] Muvunyi has not previously raised this issue[2] nor was it raised during the Appeals Hearing by the Judges or either of the parties. In the Appeals Chamber’s view, this therefore constitutes a new submission going beyond the existing grounds of appeal.

7. The Appeals Chamber recalls that pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal”. Such requests must be made “as soon as possible after identifying the new alleged error”[3] of the Trial Chamber, and must “at least, explain precisely what amendments are sought and why, with respect to each such amendment, the ‘good cause’ requirement of Rule 108 [of the Rules] is satisfied”.[4] In the present case, the Appeals Chamber is not convinced that Muvunyi has properly sought leave to amend his grounds of appeal, nor that he has shown good cause. The Appeals Chamber is therefore satisfied that this submission should not be considered further.