| Text search | Notions | Case | Filing | Date range | Tribunal |
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Showing 2542 results (20 per page)
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| 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) | |
| Notion(s) | Filing | Case |
| 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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| Notion(s) | Filing | Case |
| 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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| Notion(s) | Filing | Case |
| 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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| Notion(s) | Filing | Case |
| Decision re Prosecution Witnesses - 29.01.2016 |
NIYITEGEKA Eliézer (MICT-12-16) |
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10. […] in order to carry out their duties in full, counsel recognized, assigned, or appointed by the Registrar as acting for an accused or convicted person must, in principle, automatically have access to the complete record of the proceedings to which their client is entitled.[1] […] [1]See Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29, Decision on Request for Access, 16 September 2015, p. 2, referring to Prosecutor v. Radoslav Brđanin, Case No. MICT-13-48, Decision on Request for Access, 3 August 2015, p. 1; The Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Request for Access, 25 June 2015, paras. 11, 14. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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174. Rule 73bis(E) of the Rules provides that after the commencement of the trial, the Prosecutor, if he considers it to be in the interests of justice, may move the trial chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. The rule does not impose a time limit to validly raise a request under this provision. However, the jurisprudence of both the Tribunal and the ICTY indicates that, when assessing whether it is in the interests of justice to permit the Prosecution to vary its witness list, the trial chamber shall take into account the potential prejudice to the Defence and the stage of the proceedings among other factors.[1] The Appeals Chamber nonetheless emphasises that decisions concerning the variation of a party’s witness list are among the discretionary decisions of the trial chamber to which the Appeals Chamber must accord deference.[2] […] 178. […] [T]he purpose of Rule 73bis(E) of the Rules is to allow the Prosecution to correct its prior assessment of which witnesses to call “after the commencement of [t]rial”. Nothing in Rule 73bis(E) of the Rules requires that the addition of new witnesses be conditioned upon the removal of witnesses who were expected to testify about the same facts.[3] […] 179. […] Furthermore, while the Appeals Chamber observes that trial chambers of the ICTY have previously emphasised considerations such as the stage of the proceedings and the justification provided in support of requests for the amendment of witness lists,[4] the Appeals Chamber finds that Ntahobali’s reliance on the Mrkšić et al. decisions is not pertinent. The Appeals Chamber stresses that the manner in which the discretion to manage trials is exercised by a trial chamber should be determined in accordance with the case before it; what is reasonable in one trial is not automatically reasonable in another.[5] The question of whether a trial chamber abused its discretion should not be considered in isolation, but rather by taking into account all relevant circumstances of the case at hand.[6] It can therefore not be held that granting a request for the addition of witnesses in the last stages of a party’s presentation of its case is per se unreasonable and prejudicial to the opposing party; such an assessment rather requires a careful balancing of various interests and circumstances on a case-by-case basis. [1] See Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-T, Decision on Prosecution’s Motion for Leave to Amend the Rule 65ter Witness List and for Disclosure of an Expert Witness Report Pursuant to Rule 94bis, 31 August 2010, para. 4; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Prosecution’s Motion for Leave to Amend Its Witness List to Add Witness KDZ597, 1 July 2010, para. 5; Prosecutor v. Momčilo Perišić, Case No. IT‑04-81-T, Decision on Prosecution’s Motion to Substitute Expert Witness, 30 October 2009 (“Perišić 30 October 2009 Decision”), para. 6; Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-T, Decision on Prosecution’s Motion to Add Milan Đaković to the Rule 65ter Witness List, 21 May 2009 (“Đorđević 21 May 2009 Decision”), para. 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Prosecutor’s Motion for Leave to Vary the Witness List Pursuant to Rule 73bis(E), 21 May 2004, para. 13. See also The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Prosecution Motion to Vary Its List of Witnesses: Rule 73 bis (E) of the Rules, 11 February 2005, paras. 22, 23. [2] See Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-AR73(C), Decision on Ngirabatware’s Appeal of the Decision Reducing the Number of Defence Witnesses, 20 February 2012 (“Ngirabatware Appeal Decision”), para. 12; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007 (“21 August 2007 Appeal Decision”), para. 10; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against Second Decision Precluding the Prosecution from Adding General Wesley Clark to Its 65ter Witness List, 20 April 2007 (“Milutinović et al. Appeal Decision”), paras. 9, 10. [3] See The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Prosecution Motion for Leave to Vary Its Witness List, 28 January 2010, para. 50, referring to The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Sagahutu’s Request to Vary His Witness List, 26 May 2008, paras. 5, 6. [4] See, e.g., Perišić 30 October 2009 Decision, para. 6; Đorđević 21 May 2009 Decision, para. 5; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Decision on Prosecution’s Motion to Amend Prosecution’s Witness List (Dr. Fagel), 3 November 2008, p. 3. [5] Haradinaj et al. Appeal Judgement, para. 39. [6] Haradinaj et al. Appeal Judgement, para. 39. |
ICTR Rule Rule 73bis(E) ICTY Rule Rule 73bis(F) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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295. It is not disputed by the parties that nothing in the Statute or the Rules imposes the mandatory communication to the parties to the main proceedings of an amicus curiae report requested pursuant to Rules 77(C)(ii) or 91(B)(ii) of the Rules.[1] The decision to communicate an amicus curiae report filed before the trial chamber pursuant to Rules 77 or 91 of the Rules to the parties of the main proceedings therefore falls within the discretion of the trial chamber. This discretion must be exercised consistently with Articles 19 and 20 of the Statute, which require trial chambers to ensure that trials are fair and expeditious.[2] […] […] 300. Mindful that the decision to communicate to the parties of the main proceedings an amicus curiae report filed pursuant to Rules 77 or 91 of the Rules falls within the discretion of the relevant chamber and that there may be instances where the communication of such reports is not in the interests of justice, the Appeals Chamber fails to understand why, in this case, the Trial Chamber decided to deprive the parties of information that might have been relevant to their cases in the absence of any circumstances that may have justified its non-communication. The Appeals Chamber therefore finds that the Trial Chamber’s decision not to communicate the Second Amicus Curiae Reports to the parties before the delivery of the Trial Judgement was unreasonable and constituted an abuse of the Trial Chamber’s discretion.[3] [1] Both Rules 77(C)(ii) and 91(B)(ii) of the Rules state that the appointed amicus curiae is to “report back to the Chamber as to whether there are sufficient grounds for instigating” contempt or false testimony proceedings. [2] See, e.g., Nizeyimana Appeal Judgement, para. 286; Ndahimana Appeal Judgement, para. 14; Setako Appeal Judgement, para. 19. [3] In light of this outcome, the Appeals Chamber finds it unecessary to considers Nyiramasuhuko’s and Ntahobali’s contention that the Trial Chamber erred in stating in the Trial Judgement that the investigations against Witnesses QA, QY, and SJ were “on-going”. |
ICTR Rule
Rule 77(C)(ii); Rule 91(B)(ii) ICTY Rule Rule 77(C)(ii); Rule 91(B)(ii) |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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1099. […] The Appeals Chamber recalls that a decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct with which the accused is charged.[1] The Appeals Chamber considers that when the Prosecution intends to prove that an accused ordered particular crimes, it must identify in the indictment, at least by category, to whom the accused is alleged to have given orders[2] and all detail it possesses regarding the location of the incidents. [1] Bagosora and Nsengiyumva Appeal Judgement, para. 150; Ntagerura et al. Appeal Judgement, para. 23; Kupreškić et al. Appeal Judgement, para. 89. [2] Cf. Uwinkindi Appeal Decision [Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR72(C), Decision on Defence Appeal Against the Decision Denying Motion Alleging Defects in the Indictment, 16 November 2011], para. 36 (“When the Prosecution pleads a case of ‘instigation’, it must precisely describe the instigating acts and the instigated persons or groups of persons”), referring to Blaškić Appeal Judgement, para. 226. See also Ndindiliyimana et al. Appeal Judgement, para. 174. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 14.12.2015 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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1405. With respect to Ntahobali’s argument regarding the lack of caution exercised by the Trial Chamber in assessing his co-accused’s evidence, the Appeals Chamber considers that Ntahobali does not demonstrate that the Trial Chamber was required, as a matter of law, to treat all the evidence presented by his co-accused with caution[1] […] See also para. 1292. [1] Ntahobali again simply refers to a paragraph in the Nchamihigo Appeal Judgement, which concerns the treatment of accomplice witness evidence. However, Ntahobali does not demonstrate that any witness he contends the Trial Chamber failed to treat with caution was an accomplice witness whose evidence required a cautious assessment. See Ntahobali Appeal Brief, para. 412, referring to Nchamihigo Appeal Judgement, para. 46. |
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