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CONSIDERING that the Rules require the holding of a status conference at regular intervals only at the pre-trial stage of the proceedings following the initial appearance of the accused[1] and pending appeal if a convicted person is in custody following the filing of a notice of appeal;[2]

CONSIDERING that, in the absence of an express requirement in the Rules, a status conference or other procedural hearing may be held by a judge or a Chamber if it is in the interests of justice or required for the proper preparation of the hearing;

CONSIDERING that Ngirabatware has not shown that a status conference is necessary because he does not identify any specific issue that he wishes to raise in relation to his mental or physical condition or in relation to the preparation of the review hearing;[3]

CONSIDERING that the conditions of detention of the detainees under the authority of the Mechanism at the United Nations Detention Facility in Arusha are supervised by the President and that, therefore, there is a separate avenue for raising concerns in relation to the detainees’ mental and physical condition;[4]

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CONSIDERING that Šešelj has the right to be present at the upcoming hearing and that his presence is required;

CONSIDERING that Šešelj may waive his right to appear before the Appeals Chamber only if his interests are represented by counsel;

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, if Šešelj is unable to travel to The Hague for the hearing, he may request, pursuant to Rule 96 of the Rules, to participate therein by way of video-conference link;

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. The Appeals Chamber recalls that the Appeals Chamber of the ICTR had ruled in Niyitegeka’s case that Rule 73 of the ICTR Rules concerning the requirement of certification prior to appeal applies only to interlocutory appeals during an applicant’s proceedings before a trial chamber and had held that an applicant is entitled to appeal as of right a decision pursuant to Rule 75(G) of the ICTR Rules rendered by another trial chamber after the close of that applicant’s trial and appeal proceedings.[1] Subsequently, Rule 75 of the ICTR Rules – the equivalent of Rule 86 of the Rules – was amended to provide for an express right of appeal of decisions taken under that rule when issued after the conclusion of an applicant’s trial proceedings.[2] However, Rule 86 of the Rules does not provide the same express right of appeal of decisions issued under it after the close of trial proceedings. In addition, only after Niyitegeka filed his Request for Certification did the Appeals Chamber clarify that the requirement of certification to appeal is not applicable to decisions under Rule 86 of the Rules rendered after the close of an applicant’s trial and appeal proceedings and that there lies a right of appeal in such circumstances.[3]

[…]

12.     […] [T]he Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[4]

Fn. 38. The Appeals Chamber also dismisses Niyitegeka’s further request that it provide guidance as to the appropriate procedures for generally challenging decisions related to confidential material not issued under Rule 86 of the Rules and rendered after the close of an applicant’s trial and appeal proceedings in addition to what has already been stated in this decision. Article 23 of the Statute of the Mechanism (“Statute”) provides that the Appeals Chamber may affirm, reverse or revise the decisions taken by a Single Judge or Trial Chamber. However, the Appeals Chamber does not have advisory power and Niyitegeka’s submission fails to demonstrate that this is an issue of general importance whose adjudication would contribute substantially to the Mechanism’s jurisprudence. See, e.g., Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p.3; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 23 November 2011, para. 23.

14. The Appeals Chamber recalls that decisions related to witness protection and disclosure of evidence are discretionary decisions.[1] In order to successfully challenge such a decision, Niyitegeka must demonstrate that the Single Judge committed a discernible error resulting in prejudice to him.[2] […]

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CONSIDERING that, pursuant to Article 24 of the Statute of the Mechanism (“Statute”) and Rules 146, 147, and 148 of the Rules of Procedure and Evidence of the Mechanism (“Rules”) a request to have the Appeals Chamber review a final judgement will be granted, if the moving party shows that: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the trial or appeal proceedings; (iii) the new fact could not have been discovered through the exercise of due diligence; and (iv) the new fact could have been a decisive factor in reaching the original decision;[1]

CONSIDERING that [REDACTED] contain new information of an evidentiary nature that relates to [REDACTED] that could not have been taken into account at trial or on appeal and therefore constitute a new fact,[2] which, if proved, could have been a decisive factor in reaching the original decision [REDACTED];[3]

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FINDING, therefore, that a review of the Appeal Judgement is warranted;

NOTING that, in these circumstances, Ngirabatware is entitled to assigned counsel at the expense of the Mechanism for the purpose of assisting him in relation to the review proceedings;[1]

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CONSIDERING that, pursuant to Rule 90 of the Rules, the Mechanism in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with the administration of justice;

CONSIDERING, however, that in matters pertaining to State obligations, it is well-established that State officials “are mere instruments of a State and their official action can only be attributed to the State”,[1] that, subject to certain limited exceptions,[2] “[t]hey cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State”, and “cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act”;[3]

CONSIDERING that “[i]t is the State which is bound by [the obligation to cooperate with the Mechanism under Article 28 of the Statute] and it is the State for which the official or agent fulfils his function that constitutes the legitimate interlocutor of the [Mechanism] and “shall therefore incur international responsibility for any serious breach of that provision by their officials”;[4]

CONSIDERING that the Mechanism “is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules” and “also has a power to report this judicial finding to the [United Nations] Security Council”;[5]

CONSIDERING, however, that the Mechanism “is not vested with any enforcement or sanctionary power vis-à-vis States” and that “[i]t is primarily for its parent body, the [United Nations] Security Council, to impose sanctions, if any, against a recalcitrant State”; [6]

[…]

CONSIDERING that the Mechanism has, therefore, taken appropriate measures provided for in the Statute and the Rules to address Republic of Turkey’s non-compliance with the Order of 31 January 2017 and that the procedure envisaged under Rule 90 of the Rules is not applicable in this case;

7.       As to Karadžić’s request for participation in the Rule 86 proceedings referred to in the Motion, the Appeals Chamber notes that the proceedings concern requests for variation of protective measures granted by the International Criminal Tribunal for the former Yugoslavia with regard to Prosecution witnesses. In these circumstances, when deciding whether to vary the existing protective measures, the Appeals Chamber considered it appropriate to seek information from the Prosecution. The Appeals Chamber did not consider it necessary to lift the ex parte status of the Rule 86 Applications in respect of Karadžić and invite him to make submissions because it did not consider that Karadžić would be in a position to supplement the witness protection information from the Witness Support and Protection Unit of the Mechanism or offer other information relevant to witness protection concerns of Prosecution witnesses. The Appeals Chamber emphasizes that the Rule 86 Applications concern the application of witness protection measures in domestic proceedings, not Karadžić’s appeal. For these reasons, the Appeals Chamber finds that Karadžić has failed to demonstrate that he has standing to participate in the Rule 86 proceedings identified in the Motion.

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CONSIDERING that, pursuant to Article 28 of the Statute, States shall comply without undue delay with orders issued by the Mechanism;

[…]

CONSIDERING that, in accordance with Rules 8(A) and 131 of the Rules of Procedure and Evidence of the Mechanism (“Rules”), non-compliance with any order relating to a proceeding before the Appeals Chamber may be reported to the United Nations Security Council;[1]

[…]

FIND that the Government of the Republic of Turkey has failed to comply with its obligations under Article 28 of the Statute to cooperate with the Mechanism in relation to the proceedings in this case and to comply without undue delay with a judicial order issued by the Mechanism; and

DETERMINE that, pursuant to Rules 8(A) and 131 of the Rules, this matter shall be reported to the United Nations Security Council.