| Text search | Notions | Case | Filing | Date range | Tribunal |
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Showing 2493 results (20 per page)
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| Appeal Judgement - 29.09.2014 |
NZABONIMANA Callixte (ICTR-98-44D-A) |
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477. As correctly recalled by the Trial Chamber, acts other than physical perpetration can constitute direct participation in the actus reus of a crime.[1] The question is whether an accused’s conduct “was as much an integral part of the genocide as were the killings which it enabled”.[2] In the cases where the Appeals Chamber has concluded that an accused’s role constituted an integral part of the crimes, the accused were present at the scene of the crime and participated, supervised, directed, played a leading role, or otherwise fully exercised influence over the perpetrators.[3] However, in this case, the Trial Chamber did not find that Nzabonimana was present during the attack and, further, did not find that he supervised, played a leading role, or fully exercised influence over the perpetrators. 478. Consequently, the Prosecution has failed to demonstrate that the Trial Chamber erred in not concluding that Nzabonimana committed genocide and extermination, or alternatively murder, as a crime against humanity at the Nyabikenke commune office. [1] [Nzabonimana] Trial Judgement, para. 1696. See Munyakazi Appeal Judgement, para. 135; Seromba Appeal Judgement, para. 161; Gacumbitsi Appeal Judgement, para. 60. [2] Gacumbitsi Appeal Judgement, para. 60. See also Munyakazi Appeal Judgement, para. 135; Seromba Appeal Judgement, para. 161. [3] See Seromba Trial Judgement, paras. 239, 269; Seromba Appeal Judgement, para. 171; Gacumbitsi Appeal Judgement, para. 60. See also Munyakazi Appeal Judgement, para. 136. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
| Notion(s) | Filing | Case |
| Decision on Reconsideration - 24.07.2014 |
STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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15. [...] The Appeals Chamber emphasises that it will make its own assessment of the issues. Indeed, it will consider the arguments of the parties on whether, and to what extent, the finding regarding Judge Harhoff's partiality in the Šešelj Decisions has an impact on the present case. However, the Appeals Chamber will do so as part of the normal appellate process, and only after the parties have fully litigated the matter.1 In these circumstances, the Appeals Chamber considers that it was neither necessary nor appropriate to assess any impact of the Šešelj Decisions in the Impugned Decision. [...] 1 The Appeals Chamber notes in this respect that the parties have been given an opportunity to fully litigate this matter in their additions to their appeal briefs. [...] |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 30.06.2014 |
BIZIMUNGU Augustin (ICTR-00-56B-A) |
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102. The Trial Chamber found that Bizimungu failed to prevent the crimes for which he was convicted or to punish his subordinates for their roles in these crimes.[1] 103. Bizimungu submits that the Indictment does not state how it could be inferred from his conduct that he failed to take the necessary and reasonable measures to prevent the crimes or punish his subordinates as it merely reproduced the wording of Article 6(3) of the Statute.[2] He asserts that neither the Prosecution Pre-Trial Brief nor its opening statement remedied this defect.[3] The Prosecution responds that Bizimungu’s submissions lack merit.[4] 104. The Appeals Chamber recalls that, in respect of this element of superior responsibility, in many cases it will be sufficient to plead that the accused did not take any necessary and reasonable measures to prevent or punish the commission of criminal acts.[5] This stems from the fact that the accused’s failure to prevent or punish may often be inferred from the continuing or widespread nature of the violations committed by his subordinates as alleged in the indictment.[6] The Appeals Chamber finds the Indictment sufficient in this respect, particularly in light of the Indictment’s further qualification that Bizimungu did not “use his statutory powers to punish the perpetrators or to institute proceedings against them”.[7] Accordingly, this argument is dismissed. [1] Trial Judgement, para. 1994. [2] Bizimungu Appeal Brief [Mémoire d’appel du Général Augustin Bizimungu, 23 January 2012 (English translation filed on 4 June 2012)], para. 267. See also Bizimungu Reply Brief [Mémoire du Général Augustin Bizimungu en réplique au « Prosecution’s Respondent’s Brief in Response to Augustin Bizimungu’s Appellant’s Brief », 20 March 2012 (English translation filed on 5 July 2012)], paras. 70, 71. [3] Bizimungu Appeal Brief, paras. 268, 269. [4] Prosecution Response Brief (Bizimungu) [Prosecution’s Respondent’s Brief in Response to Augustin Bizimungu’s Appellant’s Brief, 5 March 2012], paras. 113, 114. [5] Ntabakuze Appeal Judgement, para. 123; Renzaho Appeal Judgement, paras. 54, 118; Nahimana et al. Appeal Judgement, para. 323. [6] See Ntabakuze Appeal Judgement, para. 123. [7] Indictment [The Prosecutor v. Augustin Bizimungu et al., Case No. ICTR-2000-56-I, Amended Indictment (Joinder), 23 August 2004], para. 70. See also Indictment, paras. 59, 61, 78, 109, 110, 118, 119. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 30.06.2014 |
BIZIMUNGU Augustin (ICTR-00-56B-A) |
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18. The Appeals Chamber recalls that, under Article 22(2) of the Statute and Rule 88(C) of the Rules, trial chambers are required to provide a reasoned opinion.[1] Accordingly, a trial chamber should set out in a clear and articulate manner the factual and legal findings on the basis of which it reached the decision to convict or acquit an accused.[2] A reasoned opinion in the trial judgement is essential to ensuring that the Tribunal’s adjudications are fair, and, inter alia, allows for a meaningful exercise of the right of appeal by the parties, and enables the Appeals Chamber to understand and review the trial chamber’s findings.[3] 19. The Appeals Chamber finds that the absence of any relevant legal findings in the Trial Judgement constitutes a manifest failure to provide a reasoned opinion. Indeed, the Appeals Chamber considers the magnitude of this error to be unprecedented in the history of the Tribunal. Rather than engaging in “the most careful of analyses”, as it was required to do,[4] the Trial Chamber failed to even attempt to address in the Trial Judgement the most fundamental of issues: whether the evidence adduced was sufficient to prove Bizimungu’s individual criminal responsibility for genocide.[5] 20. In light of these omissions and to safeguard Bizimungu’s right to an effective appeal, the Appeals Chamber ordered that the appeals concerning Bizimungu be severed.[6] For these same reasons, the Appeals Chamber also ordered additional submissions from the parties on the evidentiary basis for Bizimungu’s conviction for genocide.[7] […] 23. The Appeals Chamber recalls that a trial chamber’s failure to provide a reasoned opinion constitutes an error of law which allows the Appeals Chamber to consider the relevant evidence and factual findings in order to determine whether a reasonable trier of fact could have established beyond reasonable doubt the findings challenged by the appellant.[8] 24. Mindful of the extraordinary nature of the Trial Chamber’s omissions and the gravity of a conviction for genocide, the Appeals Chamber shall assess the findings and evidence relevant to each incident supporting Bizimungu’s genocide conviction to determine whether the elements of genocide are established beyond reasonable doubt.[9] In light of the additional submissions, Bizimungu has had a full and focused opportunity to appeal his genocide conviction and to respond to the Prosecution’s case in this regard. In these circumstances, considerations of fairness do not preclude the Appeals Chamber from conducting this review, and, given the Trial Chamber’s conclusions that genocide was committed and that Bizimungu was responsible for this crime, it is necessary in the interests of justice for the Appeals Chamber to determine whether such findings are sustained by the record.[10] [1] See, e.g., Nchamihigo Appeal Judgement, para. 165; Krajišnik Appeal Judgement, para. 139; Muvunyi I Appeal Judgement, para. 144. [2] See Hadžihasanović and Kubura Appeal Judgement, para. 13. [3] Hadžihasanović and Kubura Appeal Judgement, para. 13. See also Nchamihigo Appeal Judgement, para. 165; Karera Appeal Judgement, para. 20. [4] Zigiranyirazo Appeal Judgement, para. 75. [5] By contrast, the Trial Chamber did enter relevant legal findings with respect to other convictions. See, e.g., Trial Judgement [The Prosecutor v. Augustin Ndindiliyimana, Case No. ICTR-00-56-T, Judgement and Sentence, pronounced on 17 May 2011, filed in writing on 17 June 2011], paras. 2077-2085 (making legal findings on the crime of genocide in relation to Ndindiliyimana). [6] Order for Further Submissions and Severance, 7 February 2014, p. 2. [7] Order for Further Submissions and Severance, 7 February 2014, pp. 1, 2. [8] Ndindiliyimana et al. Appeal Judgement, para. 293. See also supra para. 11. [9] Such course of action has precedent. See, e.g., Ndindiliyimana et al. Appeal Judgement, paras. 292-312; Bagosora and Nsengiyumva Appeal Judgement, paras. 683-689; Rukundo Appeal Judgement, paras. 174, 175; Kalimanzira Appeal Judgement, paras. 89-91. See also Kordić and Čerkez Appeal Judgment, paras. 392-409. The Appeals Chamber undertakes this assessment below in paragraphs 195-201, 272-277, 309-314, and 343-348 of the judgement. [10] See Kordić and Čerkez Appeal Judgment, paras. 384-388. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 30.06.2014 |
BIZIMUNGU Augustin (ICTR-00-56B-A) |
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369. The Appeals Chamber considers that the Prosecution has not demonstrated any error in the Trial Chamber’s conclusion that it was bound by the Hadžihasanović et al. Appeal Decision of 16 July 2003 in its consideration of Bizimungu’s liability pursuant to Article 6(3) of the Statute. Article 6(3) of the Statute reflects verbatim the language of Article 7(3) of the Statute of the ICTY, and the Appeals Chambers of both the ICTR and ICTY have taken a consistent approach to interpreting the provisions.[1] 370. In addition, the Appeals Chamber is not satisfied that the Prosecution has demonstrated cogent reasons for departing from the principle set forth in the Hadžihasanović et al. Appeal Decision of 16 July 2003. In this respect, the Prosecution points principally to criticism of the majority position in the Hadžihasanović et al. Appeal Decision of 16 July 2003 in the dissenting opinions of that decision as well as declaratory statements attached to the Orić Appeal Judgement. However, the Appeals Chamber recalls that once the law applicable to a particular issue has been determined on appeal, it should in principle be followed, in the interests of certainty and predictability of the law.[2] Moreover, the Prosecution fails to appreciate that the Appeals Chambers of the ICTR and ICTY have consistently applied the principle that a commander is only responsible for the crimes of his subordinates if he has effective control over them at the time of commission.[3] [1] See, e.g., Nahimana et al. Appeal Judgement, paras. 485, 486; Kayishema and Ruzindanda Appeal Judgement, para. 294. Divergences in the jurisprudence of the Appeals Chambers of the ICTY and ICTR result primarily from differences between Rules or the Statutes of the ICTY or ICTR. Where such differences are not present, the jurisprudence of the Appeals Chambers of the ICTR and ICTY has developed consistently. See, e.g., Bagosora and Nsengiyumva Appeal Judgement, para. 414 (adopting ICTY Appeals Chamber jurisprudence in determining whether persecution and murder as crimes against humanity possess materially distinct elements); Karera Appeal Judgement, para. 24 (interpreting Rule 90(G)(ii) of the Rules consistent with the interpretation by the ICTY Appeals Chamber of similarly worded Rule 90(H)(ii) of the ICTY Rules of Procedure and Evidence); Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006, para. 6 (following the approach of the ICTY Appeals Chamber in relation to the reconsideration of final judgements); Niyitegeka Appeal Judgement, paras. 193-199, 201 (stating the law on notice principles in a manner consistent with preceding jurisprudence from the ICTY Appeals Chamber); Musema Appeal Judgement, paras. 185, 186 (adopting the standard of review applicable to evidence admitted on appeal as stated by the ICTY Appeals Chamber). [2] Rutaganda Appeal Judgement, para. 26; Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, originally filed in French, English translation filed on 4 July 2001, para. 92, fn. 125, citing Aleksovski Appeal Judgement, paras. 107-109. [3] See, e.g., Ntabakuze Appeal Judgement, para. 174; Blagojević and Jokić Appeal Judgement, para. 303. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 30.06.2014 |
BIZIMUNGU Augustin (ICTR-00-56B-A) |
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133. The Appeals Chamber recalls that the material ability to prevent or punish can only amount to effective control over the perpetrators if it is premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators.[1] The Trial Chamber did not explicitly find the existence of a superior-subordinate relationship between Bizimungu and the Interahamwe who it found committed the criminal acts which formed the basis of his related convictions, that is, attacks at the École des sciences infirmières de Kabgayi (ESI), the Musambira Commune office and dispensary, the Butare Prefecture office and EER, or the Cyangugu stadium.[2] Nonetheless, the Appeals Chamber considers that the Trial Chamber implicitly found that there was a pre-existing hierarchical relationship based on the same factors it relied upon in establishing that the Interahamwe were under his effective control.[3] The Appeals Chamber will therefore consider Bizimungu’s challenges to the Trial Chamber’s assessment in the context of both Bizimungu’s effective control of, and his superior-subordinate relationship with the Interahamwe. [1] See Halilović Appeal Judgement, para. 210. [2] See Trial Judgement, paras. 1984-1986. [3] See Trial Judgement, paras. 1978-1983. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 30.06.2014 |
BIZIMUNGU Augustin (ICTR-00-56B-A) |
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63. The Appeals Chamber recalls that it is within a trial chamber’s discretion to rely on the evidence of accomplice witnesses.[1] However, the trial chamber must exercise appropriate caution in assessing such evidence and carefully consider the totality of the circumstances in which it was tendered.[2] Of the several factors relevant to a cautious assessment, consideration should be given to circumstances showing that the witness may have motives or incentives to incriminate the accused or to lie.[3] 64. The Appeals Chamber recalls that “[u]nder some circumstances, a reasoned explanation of the Trial Chamber’s assessment of a particular witness’s credibility is a crucial component of a ‘reasoned opinion’ – for instance, where there is a genuine and significant dispute surrounding a witness’s credibility and the witness’s testimony is truly central to the question whether a particular element is proven”.[4] The Appeals Chamber considers the Trial Chamber’s analysis to be inadequate given the existence of a genuine and significant dispute surrounding Witness GAP’s credibility in light of his status as an accomplice witness and evidence suggesting that he may have had a motive to lie. In particular, the Trial Chamber failed to expressly consider evidence that Witness GAP had been pressured by Rwandan authorities to implicate Bizimungu in order to receive a more lenient sentence.[5] It failed to expressly address other evidence which alleged that Witness GAP facilitated the fabrication of evidence against accused before the Tribunal generally and Bizimungu specifically.[6] These omissions must be viewed in light of the Trial Chamber’s further failure to expressly consider that Witness GAP never mentioned this meeting or Bizimungu’s involvement in it in his statements to the Tribunal prior to 2003,[7] and that he failed to report this when confessing to his crimes before Rwandan authorities in 2002.[8] Mindful that trial chambers enjoy broad discretion in assessing evidence[9] and that they need not articulate every step of their reasoning for each finding they make,[10] the Appeals Chamber finds that the absence of any express consideration of these circumstances reflects a failure to apply necessary caution in light of the particular circumstances surrounding Witness GAP’s evidence. [1] Gatete Appeal Judgement, para. 154; Munyakazi Appeal Judgement, para. 93; Setako Appeal Judgement, para. 143. See also Lukić and Lukić Appeal Judgement, para. 128; Krajišnik Appeal Judgement, para. 146. [2] Gatete Appeal Judgement, para. 154; Setako Appeal Judgement, para. 143; Nchamihigo Appeal Judgement, para. 305. See also Lukić and Lukić Appeal Judgement, para. 128. [3] See Kanyarukiga Appeal Judgement, para. 181; Setako Appeal Judgement, para. 143; Muvunyi II Appeal Judgement, para. 37. See also Lukić and Lukić Appeal Judgement, para. 128. [4] Kajelijeli Appeal Judgement, para. 61 (emphasis in original). [5] The Appeals Chamber observes that Witness GAP retracted that he had been pressured by Rwandan authorities to implicate Bizimungu when he appeared before the Karemera et al. trial chamber in January 2010. See, e.g., Defence Exhibit 699a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness GAP, T. 26 January 2010 pp. 32, 33, 36, 37, 43, 44). Other evidence reflects that pressure was applied on other inmates in Ruhengeri prison to fabricate evidence against several accused before the Tribunal and that fabricated evidence was given in this regard. See, e.g., Defence Exhibit 689a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 10 April 2008 pp. 50-60); Defence Exhibit 690a (The Prosecutor v. Édouard Karemera et al., ICTR-Case No. 98-44-T, Witness BTH, T. 14 April 2008 pp. 2-53, 57-60, 62, 63); Defence Exhibit 691a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 15 April 2008 pp. 16-19, 21-35); Defence Exhibit 692a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 16 April 2008 pp. 13, 14, 26-36, 41-46, 48-51, 55-57, 61, 62, 64-71); Defence Exhibit 693a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 17 April 2008 pp. 21, 22, 25-28, 30). See also Witness DB11-2, T. 12 June 2007 pp. 42, 43 (closed session); T. 13 June 2007 pp. 16, 22, 23 (closed session); Witness CBP99, T. 3 March 2008 pp. 45, 46, 57, 58, 61, 62, 65-69. The Appeals Chamber observes that the Trial Chamber only generally discussed that Witness GFA was confronted with statements taken from other witnesses who he testified had provided false testimony before the Tribunal, indicating that they had not lied. See Trial Judgement, paras. 178, 179. The Trial Chamber provided no indication that it found Witness GFA’s testimony to lack credibility on this issue. [6] Defence Exhibit 689a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 10 April 2008 pp. 58, 59) (referring to individual number 3); Defence Exhibit 690a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 14 April 2008 pp. 5, 8, 19, 20) (referring to individual number 2); Defence Exhibit 691a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 15 April 2008 pp. 22, 23, 30-34) (referring to individual number 2); Defence Exhibit 692a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 16 April 2008 pp. 61, 62) (referring to individual number 2); Defence Exhibit 693a (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Witness BTH, T. 17 April 2008 p. 31) (referring to individual number 2). To identify that the individual referred to in Witness BTH’s testimony in the Karemera et al. proceeding as Witness GAP, Defence Exhibits 689a, and 690a must read in conjunction with Defence Exhibits 666 and 668, respectively, while Defence Exhibits 691a, 692a, and 693a must be read in conjunction with Defence Exhibit 678. All of these exhibits were admitted pursuant to Rules 89(C) and 92bis(D) of the Rules through The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for the Admission into Evidence of the Transcripts and Exhibits of Witness BTH’s Testimony in the Karemera et al. Case Pursuant to Rule 92bis, 4 December 2008, paragraph 1 of which identifies Witness BTH in the Karemera et al. case as being Witness GFA in the present case. [7] See Witness GAP, T. 16 February 2005 pp. 22-27, 33, 37, 62, 63; T. 17 February 2005 pp. 6, 49; T. 22 February 2005 p. 47. [8] See Witness GAP, T. 15 February 2005 pp. 4-6, 11, 12 (closed session), 36, 42-44; T. 16 February 2005 pp. 11, 12, 19-21, 27, 30, 33, 63. [9] See, e.g., Kanyarukiga Appeal Judgement, para. 121; Ntawukulilyayo Appeal Judgement, para. 21; Nchamihigo Appeal Judgement, para. 47. [10] See, e.g., Ntabakuze Appeal Judgement, para. 161; Bagosora and Nsengiyumva Appeal Judgement, para. 269; Nchamihigo Appeal Judgement, para. 165. |
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| Decision on Request to Stay Proceedings - 27.06.2014 |
PRLIĆ et al. (IT-04-74-A) |
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16. The Appeals Chamber considers that the delays that would inevitably result from allowing Praljak to represent himself will negatively affect the right of Praljak, as well as that of his Co-Appellants (all of whom are represented by counsel) to fair and expeditious proceedings. As a trial chamber of the Special Court for Sierra Leone has held, ensuring adequate legal representation of each defendant is of particular importance in the context of a multi-accused case.[1] The Appeals Chamber notes that this consideration is relevant to the case at hand.[2] Praljak himself has stated on several occasions that his interests would be better served through assistance of counsel, in particular during appeal proceedings.[3] The Appeals Chamber is therefore satisfied, given the specific circumstances of this case, that Praljak should not be allowed to represent himself in these proceedings and considers proprio motu that the assignment of counsel to Praljak would be in the interests of justice pursuant to Rule 45ter of the Rules. Accordingly, the Appeals Chamber finds that there is no reason to stay proceedings as requested by Praljak. [1] See Prosecutor v. Sam Hinga Norman et al., Case No. SCSL-04-14-T, Decision on the Application of Samuel Hinga Norman for Self Representation Under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004, paras 13-14, 26 (evaluating a request for self-representation in a multi-accused case and taking into account the “complexities of the judicial process and the gravity of the alleged crimes”, as well as the “disruption to the Court's timetable and calendar”). [2] Cf. Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010, para.7 [3] [Prosecutor v. Prlić et al., Case No. IT-04-74-A, Slobodan Praljak's Motion for Assignment of Counsel in the Interest of Justice, 4 October 2013 (public with public and confidential annexes)], paras 16-19. |
ICTR Rule Rule 45quater ICTY Rule Rule 45ter | |
| Notion(s) | Filing | Case |
| Decision on Continuation of Proceedings - 06.06.2014 |
ŠEŠELJ Vojislav (IT-03-67-AR15bis) |
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20. […] [T]he Rules do not explicitly regulate whether proceedings may be continued with a substitute Judge following the disqualification of a Judge at a more advanced stage, namely the deliberations stage. The Appeals Chamber observes that the guarantees provided for in Rules 15bis(C) and 15bis(D) of the Rules have been consistently applied or referred to in the present situation.[1] The Appeals Chamber considers that these Rules are designed to ensure that an accused’s right to a fair trial is sufficiently safeguarded, and that the fair trial guarantees provided for in these Rules apply mutatis mutandis to the present situation. Under Rule 15bis(D) of the Rules, when a decision is taken to continue the proceedings with a substitute Judge even though the accused has withheld his consent, such a decision “is subject to appeal directly to a full bench of the Appeals Chamber by either party”. 21. Therefore, for the purposes of the admissibility of the Appeal, and in light of the spirit of these Rules, the Appeals Chamber considers that the same protection as that provided for by Rule 15bis(D) of the Rules should apply in the present case. The Appeals Chamber further observes that the interests of neither Šešelj nor the Prosecution are prejudiced by the adjudication of this Appeal. 22. In these particular circumstances, the Appeals Chamber holds that the Impugned Decision is subject to appeal directly to a full bench of the Appeals Chamber. […] 35. […] [T]he Appeals Chamber recalls that a decision to continue the proceedings with a substitute Judge is a discretionary decision to which the Appeals Chamber owes deference: The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the [Judges’] ruling may have resulted in injustice to the [appellant]”.[2] 36. In reaching its decision, the Trial Chamber must determine whether, taking all the circumstances into account, the continuation of proceedings would serve the interests of justice.[3] The parties “bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice”,[4] and accordingly taking into account whether a party has discharged this burden would be an immaterial consideration constituting an error.[5] Other errors previously identified by the Appeals Chamber include requiring the substitute Judge to evaluate whether the record itself – including the availability of video- or audio-recording – is compatible with the requirements of a fair trial.[6] 37. The Appeals Chamber further recalls that: There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[7] In light of the discretion inherent in a decision to continue proceedings with a substitute Judge, the Appeals Chamber has “not consider[ed] it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge”, as “[t]he stage reached in each case need not always be the same”.[8] […] 41. The Appeals Chamber therefore considers that neither the Statute nor the Rules prevented the Trial Chamber from exercising its discretion to determine, within the circumstances of the particular case before it, whether it would serve the interests of justice to continue the proceedings with a substitute Judge. […] […] 44. […] [T]he Appeals Chamber recalls that the need for a substitute Judge to certify his or her familiarity with the record is among the “safeguards ensur[ing] that fair trial rights are not compromised”.[9] Moreover, the Appeals Chamber has previously confirmed that proceedings could continue even in the absence of video-recordings of previous testimony for the substitute Judge to review.[10] […] With regard to the possibility of recalling witnesses, this too has been previously treated by the Appeals Chamber as being a material consideration to be taken into account.[11] [1] See Order of 3 September 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Following Decision of the Panel to Disqualify Judge Frederik Harhoff, 3 September 2013 (“Order of 3 September 2013”)], p. 2. (stating that “the interests of fairness and transparency” warrant the application of Rules 15bis(C) and 15bis(D) of the Rules mutatis mutandis to the present case); Order of 31 October 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Assigning a Judge Pursuant to Rule 15, 31 October 2013 (“Order of 31 October 2013”)], p. 2; Decision of 13 November 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision Inviting the Parties to Make Submissions on Continuation of Proceedings, 13 November 2013 (English translation filed on 18 November 2013) (“Decision of 13 November 2013”)], p. 3. (providing Šešelj with an opportunity to withhold his consent to the continuation of proceedings); Impugned Decision [See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Continuation of Proceedings (rendered in French on 13 December 2013, and filed in English and BCS on 23 December 2013) “Impugned Decision”], Separate Opinion of Judge Mandiaye Niang, paras 7-10, 12-14 (emphasizing that the two remaining Judges of the Trial Chamber were unanimous that the proceedings should be continued in the interests of justice); Impugned Decision, para. 51 and p. 22 (indicating that the newly appointed Judge must first become familiar with the proceedings and declare his familiarity with the record, before the proceedings continue); Motion [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Appeal of Professor Vojislav Šešelj Against the Decision of Trial Chamber III on Continuation of Proceedings Dated 13 December 2013”, filed on 30 December 2013 (“Motion”)], para. 5 (disputing the general applicability of Rule 15bis of the Rules, but in an appeal filed directly before the Appeals Chamber as would have been provided for in Rule 15bis(D) of the Rules); Response [Response to Appeal Against Decision on Continuation of the Proceedings, 20 January 2014 (“Response”)]., paras 3, 11 (referring twice to the Impugned Decision as comporting with “the object and purpose of Rule 15bis of the Rules”). [2] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003 (“Nyiramasuhuko et al. Decision of 24 September 2003”), para. 23. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals Pursuant to Rule 15bis (D), 20 April 2007 (“Karemera et al. Decision of 20 April 2007”), para. 19. [3] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004 (“Karemera et al. Reasons filed on 22 October 2004”), paras 52, 54. Judge Shahabuddeen and Judge Schomburg each provided a declaration in relation to this matter. See Karemera et al. Reasons filed on 22 October 2004, Declaration of Judge Shahabuddeen (“Karemera et al. Declaration of 22 October 2004”); The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Declaration of Judge Schomburg in Relation to Reasons for Decision of Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, dated 23 October 2004 (“Karemera et al. Declaration dated 23 October 2004”). [4] Karemera et al. Reasons filed on 22 October 2004, paras 52, 54. [5] Karemera et al. Reasons filed on 22 October 2004, paras 52, 54. [6] Karemera et al. Reasons filed on 22 October 2004, para. 58 (“[T]he remaining Judges erred in considering that the substitute Judge should evaluate the ‘compatibility’ of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings. This observation is incorrect because […] the substitute Judge is to ‘familiarise’ himself or herself with ‘the record’ of the proceedings, whatever that record may contain. In any event, this is done after the [decision] to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial.”). The Appeals Chamber observes that this standard is not clearly reflected in the Nyiramasuhuko et al. case, in which it was considered that “the adequacy of the record of proceedings is a matter for the substitute judge to pass on” and that if the substitute Judge does not feel adequately acquainted with the proceedings, then he or she “will not give the required certificate”. Nyiramasuhuko et al. Decision of 24 September 2003, para. 33. Given that this issue is not material to the resolution of the present Motion, the Appeals Chamber will not address it further. See also Karemera et al. Reasons filed on 22 October 2004, paras 59, 61 (finding “the fact that the testimonies were given in a language not understood by the Bench” to be an immaterial consideration that should not have been taken into account). [7] Karemera et al. Decision of 20 April 2007, para. 42; Nyiramasuhuko et al. Decision of 24 September 2003, para. 25. [8] Nyiramasuhuko et al. Decision of 24 September 2003, para. 27. [9] Karemera et al. Decision of 20 April 2007, para. 43. See also Nyiramasuhuko et al. Decision of 24 September 2003, para. 33. [10] See Nyiramasuhuko et al. Decision of 24 September 2003, paras 29-35, 37-38. [11] See Nyiramasuhuko et al. Decision of 24 September 2003, paras 34-35, 37-38. |
ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis | |
| Notion(s) | Filing | Case |
| Decision on Continuation of Proceedings - 06.06.2014 |
ŠEŠELJ Vojislav (IT-03-67-AR15bis) |
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51. The Appeals Chamber recalls that the parties to a case have a right to be heard before a decision is made which can affect their rights.[1] […] [1] See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 21 June 2004, para. 9. |
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| Notion(s) | Filing | Case |
| Decision on Denial of Revocation - 21.05.2014 |
STANKOVIĆ Radovan (MICT-13-51) |
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14. The Appeals Chamber turns first to Stanković’s challenge to the composition of the Referral Bench. Rule 11bis of the ICTY Rules does not require that a request for revocation be considered by a differently composed bench than the one that referred the case to a national jurisdiction. Indeed, Rule 11bis of the ICTY Rules simply refers to the “Referral Bench” throughout, which is defined in Rule 11bis(A) of the ICTY Rules as “a bench of three Permanent Judges selected from the Trial Chambers”. […] |
ICTY Rule Rule 11 bis IRMCT Rule Rule 14 | |
| Notion(s) | Filing | Case |
| Decision on Denial of Revocation - 21.05.2014 |
STANKOVIĆ Radovan (MICT-13-51) |
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9. The Appeals Chamber further observes that Rule 11bis(I) of the ICTY Rules and Rule 14(E) of the MICT Rules expressly provide for an appeal as of right from a decision of a trial chamber on the referral of a case. However, Rule 11bis of the ICTY Rules and Rule 14 of the MICT Rules are silent on appeals from a decision of a trial chamber concerning revocation of a case. Notwithstanding, decisions on revocation concern, among other things, fundamental questions related to whether the Mechanism should exercise jurisdiction over a case and the fairness of the proceedings of the referred case.[1] In the absence of any provision limiting the right of appeal,[2] the Appeals Chamber considers that a decision on whether or not to revoke a case should be subject to appellate review.[3] For reasons of consistency, the Appeals Chamber considers that such appeals should follow the same procedure as provided for in cases involving appeals from decisions on referral set out in Rule 14(E) of the MICT Rules.[4] [1] The Appeals Chamber recalls that decisions taken pursuant to Rule 11bis of the ICTY Rules, and by extension Rule 14 of the MICT Rules, are treated as akin to interlocutory appeals from decisions on preliminary motions challenging jurisdiction. See Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, para. 14. [2] See, e.g., Rule 80(B) of the MICT Rules (which precludes interlocutory appeals on certain decisions absent certification granted by a trial chamber). [3] Cf. Ntagerura Appeal Decision, para. 12; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008, para. 14 (“Rule 75(G) of the Rules, which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the [ICTR] Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal. However, because issues related to access to confidential material by a convicted person concern the important question of balance between the right of the convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses,the Appeals Chamber considers, proprio motu, that an applicant is entitled to challenge a decision by a Trial Chamber, pursuant to Rule 75(G) of the [ICTR] Rules, rendered after the close of trial and appeal proceedings before the Appeals Chamber.”) (internal citation omitted); André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Prosecution’s Notice of Appeal and Scheduling Order, 18 April 2007, paras. 2-4, 8-9 (allowing an appeal from a decision concerning the compensation of an acquitted person and setting out a scheduling order in the absence of procedural rules for disposing of such an appeal). [4] See Rule 14(E) of the MICT Rules (“Notice of appeal shall be filed within fifteen days of the decision unless the accused was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the accused is notified of the decision. The appellant shall file an appeal brief within fifteen days after filing the notice of appeal. The opposite Party shall file a response within ten days of the filing of the appeal brief, and the appellant may file a reply within four days of the filing of the response.”). |
ICTY Rule Rule 11 bis IRMCT Rule Rule 14 | |
| Notion(s) | Filing | Case |
| Decision on Denial of Revocation - 21.05.2014 |
STANKOVIĆ Radovan (MICT-13-51) |
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12. Where an appeal is filed against a decision denying a request for revocation of a referral, the issue before the Appeals Chamber is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but whether the Referral Bench has correctly exercised its discretion in reaching that decision.[1] A party challenging such a decision must show that the Referral Bench: (i) misdirected itself either as to the legal principle to be applied, or as to the law which is relevant to the exercise of its discretion; (ii) gave weight to irrelevant considerations or failed to give sufficient weight to relevant considerations; (iii) made an error as to the facts upon which it has exercised its discretion; or (iv) its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.[2] [1] See Prosecutor v. Vladimir Kovačević, Case No. IT-01-42/2-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 28 March 2007 (“Kovačević Rule 11bis Decision”), para. 9, citing Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal Against Decision on Referral Under Rule 11bis, 7 April 2006 (“Mejakić et al. Rule 11bis Decision”), para. 10. See also Prosecutor v. Paško Ljubičić, Case No. IT-00-41-AR11bis.1, Decision on Appeal Against Decision on Referral Under Rule 11bis, 4 July 2006 (“Ljubičić Rule 11bis Decision”), para. 6. [2] See Uwinkindi Rule 11bis Decision, para. 23; The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008, para. 5, citing The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 30 October 2008, para. 5; Kovačević Rule 11bis Decision, para. 9; Ljubičić Rule 11bis Decision, para. 6; Mejakić et al. Rule 11bis Decision, para. 10. |
ICTY Rule Rule 11 bis IRMCT Rule Rule 14 | |
| Notion(s) | Filing | Case |
| Decision on Denial of Revocation - 21.05.2014 |
STANKOVIĆ Radovan (MICT-13-51) |
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7. Rule 11bis(F) of the ICTY Rules provides: At any time after an order has been issued pursuant to this Rule and before the accused is found guilty or acquitted by a national court, the Referral Bench may, at the request of the Prosecutor and upon having given to the State authorities concerned the opportunity to be heard, revoke the order and make a formal request for deferral within the terms of Rule 10. 8. Pursuant to this provision, only the ICTY Prosecution has standing to seek the revocation of a referral made pursuant to Rule 11bis of the ICTY Rules. However, as the matter at hand relates to the fairness of the proceedings, the Appeals Chamber is satisfied that the Referral Bench had inherent jurisdiction to consider a direct request from Stanković for the revocation of his referral.[1] [1] Cf. In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008 (“Ntagerura Appeal Decision”), para. 12 (“The Applicant seeks leave of the Appeals Chamber to appeal against the Decision of the President and the Decision of the Trial Chamber. While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof.”); Miscellaneous-Kabuga Family-01-A, Decision (Appeal of the Family of Félicien Kabuga Against Decisions of the Prosecutor and President of the Tribunal), 22 November 2002, p. 3 (“CONSIDERING moreover that the action of the Prosecutor was taken pursuant to a Rule made by the Judges and that, by implication, the Judges, through the appropriate mechanism of a Trial Chamber, retain responsibility to review the working of such action […];”). The Appeals Chamber observes, however, that accused before the International Criminal Tribunal for Rwanda (“ICTR”) have been expressly granted standing to seek revocation in the terms of the decisions ordering their referral. See, e.g., Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Uwinkindi Rule 11bis Decision”), paras. 79, 85. The Appeals Chamber observes that Rule 11bis(F) of the ICTR Rules of Procedure and Evidence tracks the language of Rule 11bis(F) of the ICTY Rules quoted above. In addition, Rule 14(C) of the MICT Rules allows the President to assign, proprio motu or at the request of the Prosecution, a trial chamber to decide whether to revoke a request for referral. |
ICTY Rule Rule 11 bis IRMCT Rule Rule 14 | |
| Notion(s) | Filing | Case |
| Decision on Denial of Revocation - 21.05.2014 |
STANKOVIĆ Radovan (MICT-13-51) |
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15. Turning to Stanković’s challenges to the Impugned Decision, the Appeals Chamber notes that the Referral Bench considered that Stanković filed the Revocation Request after the Appellate Panel in Bosnia and Herzegovina had affirmed his conviction.[1] The Referral Bench noted, however, that it “may revoke a referral order proprio motu in the circumstance of a grave violation left unchallenged by the Prosecution or untimely submitted”.[2] Thus, having examined Stanković’s submissions, the Referral Bench concluded that: [i]n the absence of previously unidentified or grave violations of Stanković’s right to a fair trial, the Referral Bench considers that it would be contrary to the intention of Rule 11bis to order a case referred to the authorities of a State to be sent back to the Tribunal after the trial and appeal proceedings have concluded in that State.[3] 16. The Appeals Chamber notes that Rule 11bis(F) of the ICTY Rules, Article 6(6) of the MICT Statute, and Rule 14(C) of the MICT Rules unequivocally provide that revocation of a referral order may occur only before the accused has been found guilty or acquitted by a national court. As recalled above, the proceedings against Stanković before the courts of Bosnia and Herzegovina were completed in April 2007.[4] The Appeals Chamber further notes that, contrary to Stanković’s submission,[5] the panel of the State Court and the Appellate Panel of Bosnia and Herzegovina were composed of different judges.[6] Therefore, to the extent that Stanković argues that there is no final judgement against him due to irregularities in the composition of the Appellate Panel, his submission is unsubstantiated. 17. Accordingly, the Appeals Chamber finds that the Referral Bench correctly considered that it would be contrary to the intention of Rule 11bis of the ICTY Rules to revoke a referral order after the legal proceedings in the respective State have been completed. Absent any explicit legal basis for such revocation, the Appeals Chamber finds that it need not consider further whether the Referral Bench committed a discernible error in finding that there were no grounds to revoke the referral of Stanković’s case to the authorities of Bosnia and Herzegovina. [1] Impugned Decision [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Decision on Radovan Stanković’s Motion of 21 January 2013, 12 June 2013 (confidential)], para. 16. [2] Impugned Decision, para. 16. See also Impugned Decision, para. 10, citing Prosecutor v. Gojko Janković, Case No. IT-96-23/2-PT, Decision on Gojko Janković’s Motion of 12 April 2010, 21 June 2010, para. 14. [3] Impugned Decision, para. 16. [4] See supra, para. 4. [5] Appeal, para. 15. [6] See Sixth Progress Report [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Prosecutor’s Sixth Progress Report, 20 March 2007], Annex B; Seventh Progress Report [Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-PT, Prosecutor’s Seventh Progress Report, 27 June 2007], Annex B. |
ICTY Rule Rule 11 bis IRMCT Rule Rule 14 | |
| Notion(s) | Filing | Case |
| Order on Recovery of Legal Funds - 13.05.2014 |
PRLIĆ et al. (IT-04-74-A) |
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21. […] The Appeals Chamber is not at liberty to revisit the Registrar’s and the President’s findings as to Praljak’s ability to reimburse the Tribunal for the funds incurred for his defence. […] [1] The Appeals Chamber recalls that only the organ issuing a ruling possesses the inherent discretionary power to reconsider it (provided that certain conditions are met). See, e.g., Prosecutor v. Vujadin Popović et al., Case No. IT-05- 88-A, Decision on Prosecution Motion for Reconsideration of Filing Status of the Appeals Chamber’s Decision on Vinko Pandurević’s Provision Release of 11 January 2012, 17 January 2012 (originally filed as confidential; made public per the Appeals Chamber’s decision on 22 February 2012. See Prosecutor v. Vujadin Popović et aI., Case No. IT-OS-88-A, Decision on Prosecution’s Motion for Order Issuing Public Redacted Version of the Appeals Chamber’s Reconsideration Decision of 17 January 2012, 22 February 2012, p. 2), p. 2 and references cited therein. In this case, the Appeals Chamber notes that Praljak has already sought further review of the President’s Decision on Motion for Review, but his request was rejected by the President. See [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Decision on Slobodan Praljak’s Request for Further Review, 7 October 2013]], p. 2. |
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| Notion(s) | Filing | Case |
| Order on Recovery of Legal Funds - 13.05.2014 |
PRLIĆ et al. (IT-04-74-A) |
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21. […] The Appeals Chamber is not at liberty to revisit the Registrar’s and the President’s findings as to Praljak’s ability to reimburse the Tribunal for the funds incurred for his defence. […] [1] The Appeals Chamber recalls that only the organ issuing a ruling possesses the inherent discretionary power to reconsider it (provided that certain conditions are met). See, e.g., Prosecutor v. Vujadin Popović et al., Case No. IT-05- 88-A, Decision on Prosecution Motion for Reconsideration of Filing Status of the Appeals Chamber’s Decision on Vinko Pandurević’s Provision Release of 11 January 2012, 17 January 2012 (originally filed as confidential; made public per the Appeals Chamber’s decision on 22 February 2012. See Prosecutor v. Vujadin Popović et aI., Case No. IT-OS-88-A, Decision on Prosecution’s Motion for Order Issuing Public Redacted Version of the Appeals Chamber’s Reconsideration Decision of 17 January 2012, 22 February 2012, p. 2), p. 2 and references cited therein. In this case, the Appeals Chamber notes that Praljak has already sought further review of the President’s Decision on Motion for Review, but his request was rejected by the President. See [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Decision on Slobodan Praljak’s Request for Further Review, 7 October 2013]], p. 2. |
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| Notion(s) | Filing | Case |
| Decision on Stay of Procedure and Assignment of Counsel - 04.04.2014 |
PRLIĆ et al. (IT-04-74-A) |
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17. […] The Appeals Chamber acknowledges that neither the Rules nor the relevant Practice Directions require the inclusion of a word count or provide for a time-limit for the filing of Registry submissions pursuant to Rule 33(B) of the Rules. However, the Appeals Chamber has previously imposed time-limits and required the inclusion of a word count in Registry submissions where it found it necessary for the efficient administration of the proceedings and for ensuring equality.[1] Guided by the same considerations, the Appeals Chamber requests the Registry to include a word count in future Rule 33(B) submissions in response to motions filed in the present case and to make such submissions within ten days of the filing of the respective motion. [1] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007, paras 23, 25. |
ICTR Rule Rule 33(B) ICTY Rule Rule 33(B) | |
| Notion(s) | Filing | Case |
| Mistrial Decision - 02.04.2014 |
STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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35. […] [T]he Appeals Chamber turns to the argument that it may order the termination of proceedings and release of an accused after interlocutory review of a denial of an accused’s rights, including during appellate proceedings. The doctrine of “abuse of process” allows a court to decline to exercise jurisdiction either because it will be impossible to give the accused a fair trial or because it offends the court’s sense of justice and propriety to try the accused in the circumstances of a particular case.[1] The question in cases of abuse of process is not whether it is “necessary” for a court to issue an interlocutory decision terminating proceedings (as for Rule 54 of the Rules examined above), but whether a court should continue to exercise jurisdiction over a case in light of serious and egregious violations of the accused’s rights that would prove detrimental to the court’s integrity.[2] The discretionary power of a court to stay or terminate proceedings by reason of abuse of process applies during the trial phase of a case, and is mostly concerned with prosecutorial misconduct, since its main purposes are to prevent wrongful convictions and preserve the integrity of the judicial system.[3] An allegation of partiality of a trial judge is a ground to appeal a conviction on the basis that it is unsafe.[4] See also para. 22. [1] R. v. Horseferry Road Magistrates' Court, Ex p. Bennett (No.1) [1994] 1 A.C. 42, H.L.(E.), 74G; Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], paras 74-75. [2] Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 74. [3] See, e.g., Barayagwiza Decision [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], para. 112; Prosecutor v. Radoslav Brđanin & Momir Talić, Case No. IT-99-36-PT, Decision on Second Motion by Brđanin to Dismiss the Indictment, 16 May 2001, para. 5 (“[If a] Trial Chamber is satisfied that the absence of such resources will result in a miscarriage of justice, it has the inherent power and the obligation to stay the proceedings until the necessary resources are provided, in order to prevent the abuse of process involved in such a trial”). [4] See R. v. A. (No. 2) [2002] 1 A.C. 45; [2001] UKHL 25, in which Lord Steyn observed that it was well-established that the right to a fair trial was absolute in the sense that a conviction obtained in breach of it cannot stand (at p. 65, para. 38). See also R. v. Forbes [2001] 1 A.C. 473, 487; [2000] UKHL 66, para. 24; R. v. Togher & Ors [2001] 3 All E.R. 463; [2000] EWCA Crim 111, para. 33 (“if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe”). |
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| Notion(s) | Filing | Case |
| Mistrial Decision - 02.04.2014 |
STANIŠIĆ & ŽUPLJANIN (IT-08-91-A) |
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23. [...] [T]he Applicants contend that the Appeals Chamber is authorised or at least not precluded by the Rules to issue an interlocutory decision that would terminate proceedings because of a violation of an accused’s rights. They rely on Rule 54, which, in conjunction with Rule 107 of the Rules, permits the Appeals Chamber to issue orders as necessary for the conduct of proceedings.[1] The Appeals Chamber notes that the application of Rule 54 is discretionary and dependent upon the necessity of the relevant order for the conduct of the proceedings.[2] The Appeals Chamber therefore finds that it has the authority to consider an allegation of judicial bias in an interlocutory decision at this stage in the appeal proceedings under this rule. [1] See, e.g., Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Stay of “Decision on Defence Motion of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005”, 16 December 2005. [2] Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001, para. 558; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision sur la Requête de Ferdinand Nahimana aux fins de Communication d’Éléments de Preuve Disculpatoires et d’Investigations sur l’Origine et le Contenu de la Pièce à Conviction P 105, 12 September 2006, para. 13. |
ICTR Rule
Rule 54; Rule 107 ICTY Rule Rule 54; Rule 107 |
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