| Text search | Notions | Case | Filing | Date range | Tribunal |
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Showing 2505 results (20 per page)
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| Decision on Obtaining and Disclosing Statements - 10.05.2016 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Page. 2: RECALLING that the Appeals Chamber may, in exceptional circumstances, facilitate investigations at the appeal stage if the moving party demonstrates, for instance, that it is in possession of specific information that needs to be further investigated in order to avoid a miscarriage of justice and that this specific information was not available at trial and could not have been discovered at trial through the exercise of due diligence;[1] [1] Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR-00-55B-A, Decision on Ildephonse Hategekimana’s Motion for Cooperation and Judicial Assistance, 5 May 2011, para. 4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Jean-Bosco Barayagwiza’s Extremely Urgent Motion for Leave to Appoint an Investigator, 4 October 2005, p. 4. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, para. 3. |
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| Decision on Motion for Extension of Time to File Notice of Appeal - 21.04.2016 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Pages 1-2: CONSIDERING that, pursuant to Rule 133 of the Rules of Procedure and Evidence of the Mechanism (“Rules”), parties seeking to appeal a trial judgement are to file a notice of appeal no later than 30 days from the date on which the written judgement was filed; RECALLING that, pursuant to Rule 154 of the Rules, the time limits prescribed in the Rules may be enlarged on good cause being shown; […] CONSIDERING the length of the Trial Judgment and the significant complexity of this case; CONSIDERING FURTHER that is in the interests of justice to ensure that parties have sufficient time to prepare meaningful notices of appeal in full conformity with the applicable provisions; […] CONSIDERING the need to weigh carefully the interests in safeguarding expeditious proceedings before the Mechanism and allowing sufficient time for the parties to prepare their respective cases; […] CONSIDERING that the reasons justifying an extension to file Karadžić’s notice of appeal also apply to the Prosecution and that a synchronised schedule for filing any notices of appeal in this case will assist the effective case management and is, therefore, in the interests of justice; [1] See Trial Judgement, para. 6 (“The prodigious amount of evidence in this case included the testimony of 434 witnesses who appeared before the Chamber, the evidence in writing of 152 other witnesses and a total of 11, 469 exhibits representing 191, 040 pages. A total of 48, 121 transcript pages recorded the daily proceedings and 94, 917 pages of filings were submitted to the Chamber. The scope of the Indictment and the high profile of the Accused conjointly contributed to the unprecedented nature of this case.”). In addition, the Trial Judgment is 2,607 pages long, including annexes. |
IRMCT Rule Rule 133; Rule 154 | |
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| Decision on Continuation of Proceedings - 04.03.2016 |
HADŽIĆ Goran (IT-04-75-AR73.1) |
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20. The Appeals Chamber is of the view that Hadžić cannot be permitted to challenge findings of an impugned decision in a response to a Prosecution appeal. Hadžić has chosen to refrain from seeking certification to appeal and thus does not have standing as an appellant. Accordingly, to the extent Hadžić’s challenges are aimed at appealing the Trial Chamber’s finding on Hadžić's fitness to stand trial, the Appeals Chamber will not consider them. […] |
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| Decision on Continuation of Proceedings - 04.03.2016 |
HADŽIĆ Goran (IT-04-75-AR73.1) |
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24. […] The Appeals Chamber notes that, having concluded that Hadžić could not be physically present at trial,[1] the Trial Chamber did not then proceed to assess whether a restriction of Hadžić’s right to be present at trial was in service of a sufficiently important objective and whether that restriction would impair Hadžić’s right to be present no more than necessary to accomplish the identified objective.[2] The Appeals Chamber cannot agree with the Trial Chamber’s approach. Recalling the law as set out above,[3] the Appeals Chamber, Judge Afanđe dissenting, considers that, only once the Trial Chamber had determined whether a proportionate means of continuing the trial existed, i.e. in such a way as to impair Hadžić’s rights no more than necessary to accomplish the objective of a fair and expeditious completion of the proceedings, should the Trial Chamber have considered whether the circumstances of this case “[militate] against the continuation of proceedings and in favour of terminating or staying the case”.[4] As such, the Appeals Chamber, Judge Afanđe dissenting, finds that by failing to apply the proportionality principle, the Trial Chamber erred in law. 25. […] it follows from the above that it was imperative for the Trial Chamber to explicitly address and give due consideration to all modalities proposed to it which may have assisted in limiting the impairment of Hadžić’s right to be present at trial no more than necessary to accomplish the objective of a fair and expeditious completion of the proceedings. […] [1] Impugned Decision [Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Consolidated Decision on the Continuation of Proceedings, 26 October 2015], paras 62-63. The Appeals Chamber notes that the Prosecution does not challenge this aspect of the Impugned Decision. [2] The Appeals Chamber observes that despite recalling the correct law in this respect, the Trial Chamber failed to apply the proportionality principle when considering whether the trial could be resumed even in Hadžić’s absence. See Impugned Decision, para. 61, fn. 284. [3] See supra, para. 8. [4] Impugned Decision, para. 56. [5] See supra, paras 8, 24. |
ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) | |
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| Decision Regarding False Testimony - 02.03.2016 |
NTAKIRUTIMANA and NTAKIRUTIMANA (MICT-12-17) |
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9. Rule 108(B) of the Rules provides: If a Chamber or Single Judge has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it shall refer the matter to the President who shall designate a Single Judge who may: (i) direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony; or (ii) where the Prosecutor, in the view of the Single Judge, has a conflict of interest with respect to the relevant conduct, direct the Registrar to appoint an amicus curiae to investigate the matter and report back to the Single Judge as to whether there are sufficient grounds for instigating proceedings for false testimony. 10. What constitutes “strong grounds” represents a heightened threshold for initiating investigations into allegations of false testimony,[1] and has been distinguished from the “sufficient grounds” standard applied to initiating the prosecution of an individual for false testimony or contempt.[2] […] 11. A party seeking to institute proceedings for false testimony bears “the onus to prove the alleged falsehood”.[3] Despite having been instructed to provide references to transcripts from the Ntakirutimana case that, in his view, amounted to false testimony,[4] Ntakirutimana does not specify which portions of Witness HH’s testimony he alleges are false. This omission weighs against establishing that strong grounds exist for believing that Witness HH knowingly and wilfully gave false testimony before the ICTR. See also paragraph 17 and footnote 57. [1] See The Prosecutor v. Eliézer Niyitegeka, Case No. MICT-12-16, Decision on Request to Initiate Proceedings against Witness GGH in Niyitegeka for Giving False Testimony under Solemn Declaration and for Interfering with the Administration of Justice, 26 February 2014 (“Niyitegeka Decision of 26 February 2014”), para. 10; The Prosecutor v. Eliézer Niyitegeka, Case No. MICT-12-16, Decision on Request to Initiate Proceedings against Witness KJ in Niyitegeka for Giving False Testimony under Solemn Declaration and for Interfering with the Administration of Justice, 28 January 2014 (“Niyitegeka Decision of 28 January 2014”), para. 17. [2] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR.91, Decision on “Joseph Nzirorera’s Appeal from Refusal to Investigate [a] Prosecution Witness for False Testimony” and on Motion for Oral Arguments, 22 January 2009 (“Karemera et al. Decision of 22 January 2009”), paras. 17-20. [3] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004, para. 253. [4] See Order of 13 October 2015 [Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. MICT-12-17, Order for Submissions, 13 October 2015 (confidential)], para. 10; Order of 12 November 2014 [Prosecutor v. Elizaphan and Gérard Ntakirutimana, Case No. MICT-12-17, Order for Submissions in Relation to the Motion to Appoint an Amicus Curiae to Investigate the Apparent Recantation of a Witness Testifying before the ICTR Pursuant to Rule 108(B), 12 November 2014 (confidential)], paras. 12, 13. |
IRMCT Rule Rule 108(B) | |
| Notion(s) | Filing | Case |
| Decision Regarding False Testimony - 02.03.2016 |
NTAKIRUTIMANA and NTAKIRUTIMANA (MICT-12-17) |
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10. […] False testimony has been defined by the Appeals Chamber of the ICTR as “a deliberate offence which requires wilful intent on the part of the perpetrator to mislead the Judge and thus to cause harm”.[1] [1] Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007, n. 68. The elements of false testimony have also been defined by trial chambers of the ICTR and the International Criminal Tribunal for the former Yugoslavia (“ICTY”) as: (i) the witness must make a solemn declaration; (ii) a false statement must be contrary to the solemn declaration; (iii) the witness must believe at the time that it was false; and (iv) there must be a relationship between the statement and a material matter within the case. See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Defence Motion for Investigation of Prosecution Witness Ahmed Mbonyunkiza for False Testimony, 29 December 2006, para. 6; Prosecutor v. Mile Mrkšić et al., Case No. IT-95-13/1-T, Decision on Reconsideration of the Decision on Protective Measures for Witness P024 and Initiation of the Proceedings pursuant to Rule 91, 13 July 2006 (confidential), para. 3. |
IRMCT Rule Rule 108(B) | |
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| Decision on Provisional Release - 23.02.2016 |
TOLIMIR Zdravko (MICT-15-95-ES) |
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7. Neither the Statute nor the Rules explicitly regulate the provisional release of convicted persons awaiting transfer to an enforcement State.[1] The Appeals Chamber recalls, however, that, in certain limited circumstances, the ICTY has authorized provisional release to convicted persons prior to their transfer to the State where they would serve their sentence.[2] In doing so, the ICTY Appeals Chamber has relied on Rule 65(I) of the ICTY Rules of Procedure and Evidence (“ICTY Rules”) which mirrors Rule 68(I) of the Mechanism’s Rules.[3] The Appeals Chamber recalls that it is bound to interpret the Statute and the Rules in a manner consistent with the relevant jurisprudence of the ICTY.[4] Bearing this practice in mind, the Appeals Chamber considers that Rule 68 of the Rules applies, mutatis mutandis, to convicted persons who are in the custody of the Mechanism pending transfer to an enforcement State. 8. Accordingly, provisional release may be granted if the Appeals Chamber is satisfied that: (i) the convicted person, if released, will surrender into detention at the conclusion of the fixed period; (ii) the convicted person, if released, will not pose a danger to any victim, witness, or other person; and (iii) special circumstances exist warranting such release.[5] These requirements must be considered cumulatively and the discretionary assessment of these requirements is to be made on a case-by-case basis. [6] Furthermore, “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[7] [1] Rule 68(I) of the Rules relates to granting provisional release to appellants and provides, in relevant part, that “the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that: (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the appellant, if released, will not pose a danger to any victim, witness, or other person, and (iii) special circumstances exist warranting such release.” [2] See, e.g., Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-ES, Decision on Krajišnik’s Application for Custodial Visit, 17 June 2009 (“Krajišnik Decision”), paras. 1, 22. See also Prosecutor v. Ljubomir Borovčanin, Case No. IT-05-88-AR65.12, Decision on Appeal from Decision on Ljubomir Borovčanin’s Request for Provisional Release, 1 March 2011 (“Borovčanin Decision”), paras. 2, 3, 9; Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Motion on Behalf of Haradin Bala for Temporary Provisional Release, 14 February 2008 (“Limaj et al. Decision”), paras. 2, 4, 5. The Appeals Chamber notes that, in one case, the President of the Mechanism proprio motu provisionally released a convicted person who was in the custody of the Mechanism pending transfer to an enforcement State. See Nikolić Decision [Prosecutor v. Drago Nikolić, Case No. MICT-15-85-ES.4, Public Redacted Version of the 20 July 2015 Decision of the President on the Application for Early Release or Other Relief of Drago Nikolić, 13 October 2015], paras, 4, 39. [3] Rule 65(I) of the ICTY Rules provides, in relevant part, that “the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that: (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the appellant, if released, will not pose a danger to any victim, witness or other person, and (iii) special circumstances exist warranting such release.” See also Borovčanin Decision, para. 9; Limaj et al. Decision, paras. 4, 5. [4] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, paras. 4-6. [5] Borovčanin Decision, para. 9; Limaj et al. Decision, para. 5. [6] Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Third Motion for Provisional Release on Compassionate Grounds, 3 September 2010 (“Šainović et al. Decision of 3 September 2010”), para. 5; Borovčanin Decision, para. 9. See also Limaj et al. Decision, para. 5. [7] Borovčanin Decision, para. 9; Limaj et al. Decision, para. 5. |
IRMCT Rule Rule 68(I) | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 23.02.2016 |
TOLIMIR Zdravko (MICT-15-95-ES) |
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9. The Appeals Chamber recalls that special circumstances warranting provisional release related to humane and compassionate considerations have been found to exist where there is an “acute justification”, such as a medical need, a memorial service for a close family member, or a visit to a close relative in extremely poor health whose death is believed to be imminent.[1] Requests premised solely on the combination of advanced age and poor health, for example, have not met the threshold of “acute justification” in the absence of demonstration of the existence of an acute crisis or a life threatening medical condition.[2] […] 11. […] [T]he fact that Tolimir is away from his family in this present situation also does not constitute “special circumstances”.[3] In this respect, the Appeals Chamber recalls that, in accordance with the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal (“Rules Governing Detention”),[4] Tolimir is entitled to communicate with his family or other persons and to receive visits from them subject to certain restrictions and conditions.[5] […] [1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Public Redacted Version of the “Decision on Valentin ]orić’s Motion Seeking Provisional Release” Issued on 12 March 2015, 14 May 2015 (“Prlić et al. Decision”), para. 12; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release, 13 May 2013 (“Šainović et al. Decision of 13 May 2013”), p. 2; Borovčanin Decision [Decision on Appeal from Decision on Ljubomir Borovčanin’s Request for Provisional Release, 1 March 201], para. 10. [2] See, e.g., Prlić et al. Decision, para. 12. This standard has also been applied in the context of a convicted person’s request to visit a close family member with medical conditions. See Borovčanin Decision, para. 10; Prosecutor v Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Application for Provisional Release pursuant to Rule 65(I), 29 April 2008 (public redacted version), paras. 5, 7; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on Grounds of Compassion, 2 April 2008 (public redacted version) (“Strugar Decision”), paras. 5, 13; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Radoslav Brđanin’s Motion for Provisional Release, 23 February 2007, para. 6. [3] Cf. Šainović et al. Decision of 3 September 2010 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Third Motion for Provisional Release on Compassionate Grounds, 3 September 2010], para. 11; Prosecutor v. Milan Milutinović et al., Public Redacted Version of the “Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion” Issued on 21 May 2009, 22 May 2009, para. 9; Strugar Decision, para. 12. [4] IT38/Rev.9, 21 July 2005. The Rules Governing Detention of the ICTY apply mutatis mutandis to individuals subject to the jurisdiction of the Mechanism. [5] Rules 58, 61 of the Rules Governing Detention. |
IRMCT Rule Rule 68(I) | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 23.02.2016 |
TOLIMIR Zdravko (MICT-15-95-ES) |
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10. The Appeals Chamber recalls that an applicant for provisional release on medical grounds bears the burden of establishing that appropriate medical treatment is unavailable or cannot be performed in the Netherlands.[1] An applicant’s preference to obtain medical care in a hospital where he had been formerly treated does not satisfy this requirement.[2] […] [1] See Šainović et al. Decision of 13 May 2013 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release, 13 May 2013], p. 2; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Motion for Provisional Release, 3 April 2013 (“Šainović et al. Decision of 3 April 2013”), p. 2; Prosecutor v. Vujadin Popović et al., Case No. IT-88-AR65.8, Decision on Prosecution’s Appeal Against Decision on Gvero’s Motion for Provisional Release, 20 July 2009 (public redacted version), para. 13. [2] See, e.g., Šainović et al. Decision of 3 April 2013, p. 2. |
IRMCT Rule Rule 68(I) | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 23.02.2016 |
TOLIMIR Zdravko (MICT-15-95-ES) |
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Footnote 45: […] The Rules Governing Detention of the ICTY apply mutatis mutandis to individuals subject to the jurisdiction of the Mechanism. See also para. 7. |
Other instruments Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal | |
| Notion(s) | Filing | Case |
| Decision on Leave to Appeal - 17.02.2016 |
ORIĆ Naser (MICT-14-79) |
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14. […] In the absence of special circumstances, a party cannot raise arguments for the first time on appeal where it could have reasonably done so in the first instance.[1] […] [1] See Andre Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Prosecution’s Notice of Appeal and Scheduling Order, 18 April 2007, para. 6. See also Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Judgement, 19 May 2010, para. 244. |
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| Decision on Leave to Appeal - 17.02.2016 |
ORIĆ Naser (MICT-14-79) |
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6. […] The Appeals Chamber observes that the Rules do not expressly provide for an appeal as of right from a decision of a trial chamber or a single judge applying the non bis in idem principle set out in Article 7 of the Statute and Rule 16 of the Rules.[1] Notwithstanding, Article 7(1) of the Statute prescribes that “[n]o person shall be tried before a national court for acts constituting serious violations of international humanitarian law under the present Statute, for which he or she has already been tried by the ICTY, the ICTR or the Mechanism” and Rule 16 of the Rules provides for a remedy in the event of a violation of this principle. The Appeals Chamber considers that, in order to give full effect to the statutory principle of non bis in idem, it is necessary to recognize that decisions by a trial chamber or a single judge that affect a party’s right to the protections afforded in Article 7 of the Statute and Rule 16 of the Rules are subject to appellate review as of right.[2] […] [1] See also Article 12(1) of the Statute and Rule 2(C) of the Rules. [2] Cf. Prosecutor v. Radovan Stanković, MICT-13-51, Decision on Stanković’s Appeal against Decision Denying Revocation of Referral and on the Prosecution’s Request for Extension of Time to Respond, 21 May 2014 (“Stanković Decision”), para. 9, and references contained therein. |
IRMCT Statute Article 7 IRMCT Rule Rule 16 | |
| Notion(s) | Filing | Case |
| Decision on Leave to Appeal - 17.02.2016 |
ORIĆ Naser (MICT-14-79) |
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11. The Appeals Chamber observes that, in the Impugned Decision, the Single Judge compared the acts on the basis of which Orić was charged and tried before the ICTY with the acts for which he is charged in Bosnia and Herzegovina and concluded that these acts differ fundamentally with respect to the alleged victims and the nature, time, and location of the alleged criminal conduct. […] The Appeals Chamber finds that […] Orić fails to demonstrate that the Single Judge incorrectly interpreted the governing law. The ICTR Appeals Chamber’s discussion [of non bis in idem] in Ntakirutimana [referenced by the Single Judge] is consistent with the clear language of the Statute and relevant jurisprudence holding that a defendant shall not be tried before a national jurisdiction for the same acts on the basis of which he has already been tried before the relevant international jurisdiction.[1] […] 13. Similarly unpersuasive is Orić’s contention that the Single Judge erred in dismissing his abuse of process argument because the allegations in the case against him in Bosnia and Herzegovina concern matters of which the ICTY Prosecutor was aware. The Appeals Chamber considers that nothing in Article 7(1) of the Statute prohibits prosecutions in national jurisdictions in such circumstances. Rather, Article 7(1) of the Statute stipulates that a person cannot be tried in a national jurisdiction for acts for which he was already tried in the relevant international jurisdiction. It expressly refers to acts on the basis of which the person was tried, in the sense that a final judgment was rendered,[2] not circumstances in which certain acts may have been investigated but upon which the person concerned was not tried. […] [1] See, e.g., Laurent Semanza v. The Prosecutor, Case No. ICTR-97-23-A, Decision, dated 31 May 2000, filed 4 July 2001 (“Semanza Decision”), para. 74 (noting that the “non bis in idem principle applies only where a person has effectively been ‘tried’’’ and that the “term ‘tried’ implies that proceedings in the national Court constituted a trial for acts covered by the indictment brought against the Accused by the Tribunal”) (first emphasis in original; second emphasis added). See also Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-S, Sentencing Judgement, 30 March 2004, para. 31 (observing that the plea agreement only concerned crimes committed “during the attack in Glogova” and noting that the accused “can still be indicted for all other possible crimes which he might have been involved, including, e.g. Srebrenica, before [the ICTY] or in other countries which have jurisdiction as well”); Prosecutor v. Duško Tadić a/k/a/ “Dule”, Case No. IT-94-1-T, Decision on the Defence Motion on the Principle of Non-Bis-in-Idem, 14 November 1995 (“Tadić Decision”), para. 9 (“Whether characterized as non-bis-in-idem, double jeopardy or autrefois acquit, autrefois convict, this principle normally protects a person from being tried twice or punished twice for the same acts.”) (emphasis added). Cf. The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-AR73, Decision on the Prosecutor’s Appeal concerning the Scope of Evidence to be Adduced in the Retrial, 24 March 2009 (“Muvunyi Decision”), para. 16 (referring to Article 14(7) of the International Covenant on Civil and Political Rights) (“The non bis in idem principle aims to protect a person who has been finally convicted or acquitted from being tried for the same offence again”) (emphasis added). [2] See Muvunyi Decision, para. 16; Semanza Decision, para. 74. See also Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion for Finding of Non-bis-in-Idem, 16 November 2009, para. 13; The Prosecutor v. Joseph Nzabirinda, Case No. ICTR-2001-77-T, Sentencing Judgement, 23 February 2007, para. 46; Tadić Decision, paras. 9-11, 20, 22, 24, 30. |
IRMCT Statute Article 7 IRMCT Rule Rule 16 | |
| Notion(s) | Filing | Case |
| Decision on Leave to Appeal - 17.02.2016 |
ORIĆ Naser (MICT-14-79) |
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9. Orić contends that the Single Judge committed errors of law and fact when deciding that his prosecution in Bosnia and Herzegovina does not violate the non bis in idem principle.[…] The Appeals Chamber considers that, to succeed on appeal, Orić would have to demonstrate that the Single Judge committed a discernible error in his decision because this was based on an incorrect interpretation of the governing law, a patently incorrect conclusion of fact, or because it was so unfair or unreasonable as to constitute an abuse of discretion.[1] [1] See, e.g., Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.5, Decision on Interlocutory Appeal against the 27 March 2015 Trial Chamber Decision on Modality for Prosecution Re-Opening, 22 May 2015, para. 6; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14. See also Stanković Decision, para. 12; Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Mu[n]yarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 19. |
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| Order on Assignment of Counsel - 17.02.2016 |
NGIRABATWARE Augustin (MICT-12-29) |
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Page.1: CONSIDERING that, in general, the Appeals Chamber only authorizes the assignment of counsel at the expense of the Mechanism where it cannot exclude the likelihood of success of a potential ground of review;[1] CONSIDERING that such a determination necessarily relates to the potential merits of the request for review and as corollary the Prosecution should have the opportunity to respond;[2] [1] See, e.g., Niyitegeka Decision of 13 July 2015 [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Review and Assignment of Counsel, 13 July 2015], para. 12; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R, Decision on Motion for Legal Assistance, 21 July 2009, para. 18. [2] In this respect, the Appeals Chamber further notes that, at the review stage, the assignment of counsel under the legal aid system has never been authorized on an ex parte basis by the Mechanism or the International Criminal Tribunal for Rwanda. |
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| Order on Assignment of Counsel - 17.02.2016 |
NGIRABATWARE Augustin (MICT-12-29) |
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Page. 2: CONSIDERING that, in limited circumstances, particularly sensitive material could be included in an ex parte annex so long as the motion is prepared in such a way to allow for a meaningful response;[1] [1] The Appeals Chamber notes that the requirement that an applicant provide information as to the potential grounds for review in the context of a request for the assignment of counsel at the expense of the Mechanism necessarily involves revealing certain aspects of the applicant’s strategy in connection with the eventual request for review. |
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| Decision on Motions to Strike - 04.02.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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6. The Appeals Chamber observes that the Rules are silent on the procedure for filing appeals from decisions on requests for revocation of referral.[1] However, it has held that such appeals should follow the same procedure as provided for in cases involving appeals from decisions on referral as set out in Rule 14(E) of the Rules.[2] In relevant part, Rule 14(E) of the Rules provides that the “[n]otice of appeal shall be filed within fifteen days of the decision”. This Rule is mirrored in paragraph 21 of the Practice Direction on Appeals, which provides that “[a] party wishing to appeal from a decision of […] a Trial Chamber pursuant to Rule 14 […] of the Rules shall file a notice of appeal within 15 days of the decision”.[3] [1] The Appeals Chamber has held that a decision on whether or not to revoke the referral of a case is subject to appellate review. See Stanković Decision of 21 May 2014 [Prosecutor v. Radovan Stanković, Case No. MICT-13-51, Decision on Stanković’s Appeal against Decision Denying Revocation of Referral and on the Prosecution’s Request for Extension of Time to Respond, 21 May 2014], para. 9. Consequently, the Appeals Chamber finds that an appeal lies as of right from the Impugned Decision, which dismissed Uwinkindi’s request to revoke the order referring his case to Rwanda. [2] Stanković Decision of 21 May 2014, para. 9. [3] Practice Direction on Requirements and Procedures for Appeals, MICT/10, 6 August 2013 (“Practice Direction on Appeals”). See also Practice Direction on Appeals, paras. 22-24. |
ICTR Rule Rule 11 bis(H) ICTY Rule Rule 11 bis(I) IRMCT Rule Rule 14(E) | |
| Notion(s) | Filing | Case |
| Decision on Motions to Strike - 04.02.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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9. The Appeals Chamber notes that Uwinkindi understands neither English nor French.[1] However, the Pre-Appeal Judge has previously found that Uwinkindi’s counsel can work in English and is able to discuss the contents of legal documents with his client.[2] Moreover, the Appeals Chamber reiterates that, on appeal, counsel bear the main burden in preparing submissions,[3] allowing sufficient time to discuss relevant issues with their clients,[4] as well as ensuring the timely submission of all pleadings. The determination of potential grounds of appeal falls primarily within the purview of counsel and good cause for extending a deadline to file a notice of appeal is normally not present where the judicial determination, which is the subject of the appeal, is made in a language in which counsel can work.[5] Accordingly, Uwinkindi has not shown the existence of good cause warranting the late filing of his Notice of Appeal. [1] Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-R14.1, Decision on Jean Uwinkindi’s Motion for Translation of the Prosecution’s Response, 16 September 2015, p. 1. [2] [Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-AR14.1,] Decision on Applications for Translations and Extensions of Time, 17 December 2015, p. 3. [3] See Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Bizimungu’s Motion for Extension of Time to File His Reply Brief, 8 March 2012, p. 2, referring to, inter alia, Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motions for Extension of Time, 9 December 2004, p. 3. [4] Cf. Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Prosper Mugiraneza’s Motion for Extension of Time to File His Appellant’s Brief, 26 January 2012, para. 10. [5] Cf. Augustin Ndindiliyimana et al. v. The Prosecutor, Case No. ICTR-00-56-A, Decision on Motions for Extension of Time for the Filing of Appeal Submissions, 11 July 2011, paras. 9, 15; 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. |
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| Notion(s) | Filing | Case |
| Decision on Motions to Strike - 04.02.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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10. Nonetheless, even where good cause has not been demonstrated, the Appeals Chamber may recognize submissions as validly filed where they are of such substantial importance to the appeal that doing so is in the interests of justice.[1] The Appeals Chamber considers that the Notice of Appeal is of substantial importance to Uwinkindi’s appeal: to refuse to consider it would deny Uwinkindi the opportunity to challenge the Impugned Decision. The subject-matter of Uwinkindi’s appeal concerns the fairness of criminal proceedings in Rwanda in which he is charged, inter alia, with genocide, a crime that is punishable with a sentence of life imprisonment.[2] Furthermore, as the deadline for appealing decisions on requests for revocation is not set forth explicitly in the Rules and has only been clarified by the Appeals Chamber in a single decision, the principle of in dubio pro actionis and the interests of justice weigh in favor of recognizing the Notice of Appeal as validly filed despite the failure of Uwinkindi’s counsel to file it on time or seek an extension. Additionally, accepting the Notice of Appeal will not prejudice the Prosecution, which will have sufficient time to respond to the submissions that form the basis of Uwinkindi’s appeal. Consequently, the Appeals Chamber finds that it is in the interests of justice to recognize the Notice of Appeal as validly filed. [1] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 12. [2] See Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25, Monitoring Report for November 2015, 21 December 2015, para. 23 (“The [Rwandan] Prosecution request was that Mr. Uwinkindi be sentenced to life imprisonment for the genocide, as well as for crime against humanity with the sentences running concurrently”). The Appeals Chamber is not persuaded by the Prosecution’s contention that the Haxhiu Decision of 4 September 2008 is controlling with respect to the circumstances of this proceeding. That decision concerned an appeal against conviction for contempt of court that resulted in a punishment of a fine of 7,000 Euros. See Haxhiu Decision of 4 September 2008, para. 2. Uwinkindi is charged, inter alia, with the crime of genocide, which is materially of greater gravity and can be punishable with a sentence of life imprisonment. |
IRMCT Rule Rule 154(A)(ii) | |
| Notion(s) | Filing | Case |
| Decision re Prosecution Witnesses - 29.01.2016 |
NIYITEGEKA Eliézer (MICT-12-16) |
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9. […] Given that the proceedings against Niyitegeka have been concluded, the only legitimate forensic purpose for obtaining access to this material is to establish a “new fact” capable of constituting the basis for a review of Niyitegeka’s convictions.[1] In this regard, Niyitegeka merely advances a broad and speculative assertion that any evidence provided by the witnesses in other proceedings before the ICTR necessarily serves a legitimate forensic purpose.[2] It follows from jurisprudence that the requesting party may not engage in a “fishing expedition”.[3] In the absence of more particularized submissions, the mere fact that witnesses may have testified in more than one case does not necessarily reflect that their evidence is relevant to establishing a “new fact” in the context of review proceedings, or demonstrate that any related material may be of material assistance to the preparation of a review application. […] [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. 16. See also Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33-R86.2, Second Decision on Motion for Access to Confidential Material from the Nshogoza Case, 9 November 2015, para. 5. [2] [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Urgent Request for Orders Relating to Prosecution Witnesses, 21 December 2015 (public with public and confidential annexes) (“Motion”)], paras. 35-36. [3] See Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Radovan Karadžić’s Motion for Access to Confidential Material in the Dragomir Milošević Case, 19 May 2009, para. 11, referring to Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR73, Decision on Appeal from Refusal to Grant Access to Confidential Material in Another Case, 23 April 2002, p. 3. |
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