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| Appeal Judgement - 29.09.2014 |
KAREMERA & NGIRUMPATSE (ICTR-98-44-A) |
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259. […] presence is not required for superior responsibility pursuant to Article 6(3) of the Statute, […] See also para. 585. |
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| Appeal Judgement - 29.09.2014 |
KAREMERA & NGIRUMPATSE (ICTR-98-44-A) |
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52. The Appeals Chamber further recalls that decisions of individual trial chambers have no binding force on other trial chambers.[1] A trial chamber must make its own final assessment of the evidence on the basis of the totality of the evidence presented in the case before it.[2] Consequently, two reasonable triers of facts may reach different but equally reasonable conclusions when determining the probative value of the evidence presented at trial.[3] Likewise, the Appeals Chamber considers that an assessment as to whether the defence has been prejudiced by the Prosecution’s disclosure violations and whether a remedy is appropriate depends on the particular circumstances of the case.[4] An error cannot be established by simply demonstrating that other trial chambers have exercised their discretion in a different way.[5] See also paras 257, 262, 439, 543. [1] Lukić and Lukić Appeal Judgement, para. 260; Aleksovski Appeal Judgement, para. 114. See also The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73 and ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 33. [2] Lukić and Lukić Appeal Judgement, para. 260; Stakić Appeal Judgement, para. 346. [3] Lukić and Lukić Appeal Judgement, para. 396; Krnojelac Appeal Judgement, paras. 11, 12. [4] See, e.g., Mugenzi and Mugiraneza Appeal Judgement, paras. 39, 43-46, 54, 55; Kalimanzira Appeal Judgement, paras. 18-22. [5] Lukić and Lukić Appeal Judgement, para. 396. See also Krnojelac Appeal Judgement, para. 12. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 29.09.2014 |
KAREMERA & NGIRUMPATSE (ICTR-98-44-A) |
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623. The Appeals Chamber recalls that convictions for deviatory crimes that are not part of the joint criminal enterprise’s common purpose are possible pursuant to the third or extended form of joint criminal enterprise. Convictions for such crimes require that the additional deviatory crimes were a “foreseeable” possible consequence of carrying out “the actus reus of the crimes forming part of the common purpose”, and that “the accused, with the awareness that such a [deviatory] crime was a possible consequence of the implementation of th₣eğ enterprise, decided to participate in that enterprise”.[1] […] 627. The Appeals Chamber recalls that an accused can be held responsible for crimes beyond the common purpose of a joint criminal enterprise if they were a natural and foreseeable consequence thereof.[2] However, as recalled by the Appeals Chamber, what is natural and foreseeable to one person participating in a joint criminal enterprise, might not be natural and foreseeable to another, depending on the information available to them.[3] Thus, participation in a joint criminal enterprise does not necessarily entail criminal responsibility for all crimes which, though not within the common purpose of the enterprise, were a natural or foreseeable consequence of the enterprise.[4] […] 629. A trial chamber must be satisfied that the only reasonable inference is that the accused, through his knowledge and through the level of his involvement in the joint criminal enterprise would foresee that the extended crime would possibly be perpetrated.[5] […] See also para. 564. [1] Gotovina and Markač Appeal Judgement, para. 90; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009 (“Karadžić Appeal Decision of 25 June 2009”), paras. 15-18. [2] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR72.4, Decision on Prosecution’s Motion Appealing Trial Chamber’s Decision on JCE III Foreseeability, 25 June 2009, paras. 15, 16; Kvočka et al. Appeal Judgement, para. 86; Krstić Appeal Judgement, paras. 148-151. See also Appeal Decision of 12 April 2006, para. 17. [3] Kvočka et al. Appeal Judgement, para. 86. [4] Kvočka et al. Appeal Judgement, para. 86. [5] Kvočka et al. Appeal Judgement, para. 86; Krstić Appeal Judgement, paras. 147-151. The Appeals Chamber further recalls that the third form of joint criminal enterprise mens rea standard does not require an understanding that a deviatory crime would probably be committed. It does, however, require that the possibility that a crime could be committed is sufficiently substantial as to be foreseeable to an accused. See Karadžić Appeal Decision of 25 June 2009, para. 15. See also Gotovina and Markač Appeal Judgement, para. 90. |
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| Appeal Judgement - 29.09.2014 |
NZABONIMANA Callixte (ICTR-98-44D-A) |
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121. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).[1] Such intent in itself presupposes a genocidal intent.[2] […] 124. […] The Appeals Chamber observes that the Kalimanzira Appeals Chamber did not rule on the definition of the public element given by the Kalimanzira Trial Chamber, which recalled the definition from the Akayesu Trial Judgement, and did not specify whether the number of persons present is an essential factor. On the one hand, the Kalimanzira Appeals Chamber concluded that the Tribunal’s jurisprudence and other sources indicated mass communication to be a factor, implying that the public element of direct and public incitement corresponds to a large audience.[3] On the other hand, the Kalimanzira Appeals Chamber reversed the convictions on the basis that recipients of the incriminating message were not intended to be the general public.[4] It is thus unclear whether the Kalimanzira Appeals Chamber considered the size of the audience to be a requirement of public and direct incitement as opposed to whether the audience can also be selected or limited. In fact, in both the Nahimana et al. and Kalimanzira cases, the Appeals Chamber opined that the “general public” was not the recipient of the message or considered that the message was not intended to be for the general public.[5] 125. Considering that the jurisprudence of the Appeals Chamber does not specify whether a large audience is a requirement for direct and public incitement to commit genocide, the Appeals Chamber will turn to the definition given by trial chambers,[6] which recalls the definition from the Akayesu Trial Judgement. Referring to various sources of international law, the Akayesu Trial Chamber elaborated on the definition of the public element of the crime of incitement to commit genocide. It noted a 1996 report of the International Law Commission that defined “public incitement” as “a call for criminal action to a number of individuals in a public place or to members of the general public at large by such means as the mass media, for example, radio or television”.[7] It also considered that the Civil Law systems understood words as being public when “spoken aloud in a place that were [sic] public by definition”.[8] 126. […] [T]he Appeals Chamber does not consider that the incitement must necessarily be communicated through mass communication in order to amount to “public” incitement within the meaning of Article 2(3)(c) of the Statute. The number of individuals in the audience is not an element of the crime of direct and public incitement to commit genocide. Though the Kalimanzira Appeal Judgement noted that the Tribunal’s jurisprudence includes convictions involving “speeches made to large, fully public assemblies”, in the Appeals Chamber’s view, it does not foreclose convictions based on communications to smaller audiences when the incriminating message is given in a public space to an unselected audience. The Appeals Chamber notes that the travaux préparatoires of the Genocide Convention do not contradict, but support this position by stating that public incitement was understood as “public speeches or in the press, through the radio, the cinema or other ways of reaching the public”, though it expressly excluded “private” incitement.[9] The International Law Commission confirmed that the indispensable element of public incitement requires communicating “the call for criminal action to a number of individuals in a public place or to members of the general public at large. Thus, an individual may communicate the call for criminal action in person in a public place or by technical means of mass communication, such as by radio or television”.[10] 127. Consequently, the Appeals Chamber detects no error in the Trial Chamber applying the definition of “public” as stated in the Muvunyi, Niyitegeka, Kajelijeli, and Akayesu Trial Judgements. Indeed, though most convictions for direct and public incitement involve mass communication, a smaller audience is also consistent with international law according to which: [The Trial] Chamber may consider the surrounding circumstances, such as the place where the incitement occurred and whether the audience was selective [sic] or limited. Incitement is ‘public’ when conducted through speeches shouting or threats uttered in public places or at public gatherings[11] […] 231. The Appeals Chamber recalls that a person may be found guilty of direct and public incitement to commit genocide, pursuant to Article 2(3)(c) of the Statute, if he or she directly and publicly incited the commission of genocide (actus reus) and had the intent to directly and publicly incite others to commit genocide (mens rea).[12] The Appeals Chamber recalls that when assessing the “public” element of the incitement, factors such as the place where the incitement occurred and whether the attendance was selected or limited can be taken into account.[13] It also recalls that the number of persons present is not an essential factor in this assessment.[14] The Appeals Chamber considers that, though not required, the number of persons and the medium through which the message is conveyed may be relevant in assessing whether the attendance was selected or limited, thereby determining whether or not the recipient of the message was the general public.[15] […] 386. The Appeals Chamber is also not persuaded by the Prosecution’s submission that an inciting speech, which discussed public matters, delivered to a gathering of public officials, addressed in their function as public officials, is necessarily public. In support of this argument the Prosecution underlines that, in light of the purpose and object of the crime of incitement, inciting public officials rather than “a gathering of random members of the population” creates a greater risk that genocide will actually occur because public officials “have the authority and the means to trigger massacres”. While this may be the case, the Appeals Chamber fails to see how this supports the public nature of the incitement at the Murambi meeting. See also paras. 129, 381, 384. [1] Kalimanzira Appeal Judgement, para. 155; Bikindi Appeal Judgement, para. 135; Nahimana et al. Appeal Judgement, para. 677. [2] Nahimana et al. Appeal Judgement, para. 677, citing Akayesu Trial Judgement, para. 560. See also Mugenzi and Mugiraneza Appeal Judgement, para. 135; Bikindi Appeal Judgement, para. 135. [3] Kalimanzira Appeal Judgement, paras. 156, 160, fn. 410. [4] Kalimanzira Appeal Judgement, paras. 161-165. [5] Nahimana et al. Appeal Judgement, para. 862; Kalimanzira Appeal Judgement, paras. 161, 164. [6] Muvunyi II Trial Judgement, para. 27. This Trial Judgement was rendered on retrial. The Appeals Chamber further notes that this passage of the Muvunyi Trial Judgement was in turn based on the Kalimanzira Trial Judgement. See Muvunyi II Trial Judgement, fn. 42, referring to Kalimanzira Trial Judgement, para. 515. The Kalimanzira Trial Judgement is in turn based on Akayesu Trial Judgement. See Kalimanzira Trial Judgement, para. 515, referring to Akayesu Trial Judgement, paras. 556, 559. See also Niyitegeka Trial Judgement, para. 431. [7] Akayesu Trial Judgement, para. 556 (emphasis added), citing Draft Code of Crimes against the Peace and Security of Mankind. [8] Akayesu Trial Judgement, para. 556. The Appeals Chamber also notes that a court in a common law jurisdiction interpreted “public incitement” as a message “delivered in a public place at a public meeting”. See Mugesera v. Canada (Minister of Citizenship and Immigration) [2005] 2 SCR 100, para. 94, where the Supreme Court of Canada stated that Mugesera’s “message was delivered in a public place at a public meeting and would have been clearly understood by the audience”. [9] Hirad Abtahi & Philippa Webb, The Genocide Convention: The Travaux Préparatoires (Leiden-Boston: Martinus Nijhoff Publishers, 2008), p. 986 (emphasis added). However, this exclusion does not result in the non-criminalisation of incitement on a smaller scale per se. [10] See Draft Code of Crimes Against the Peace and Security of Mankind, p. 22, commentary on Article 2(3)(f) (emphasis added). The International Law Commission also specifies that the “public appeal for criminal action increases the likelihood that at least on individual will respond to the appeal and, moreover, encourages the kind of ‘mob violence’ in which a number of individuals engage in criminal conduct”. See idem. [11] [Nzabonimana] Trial Judgement, para. 1755. See also Muvunyi II Trial Judgement, para. 27; Kajelijeli Trial Judgement, para. 851; Niyitegeka Trial Judgement, para. 431; Ruggiu Judgement and Sentence, para. 17; Akayesu Trial Judgement, para. 556. [12] See supra, para. 121. [13] See supra, para. 127. [14] See supra, para. 126. [15] Cf. Muvunyi I Trial Judgement, para. 503; Akayesu Trial Judgement, para. 556. |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 29.09.2014 |
NZABONIMANA Callixte (ICTR-98-44D-A) |
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234. […] [T]he Appeals Chamber recalls that direct and public incitement is an inchoate crime and that it is punishable even if no act of genocide has resulted therefrom.[1] In light of this, the actus reus of direct and public incitement is satisfied when a person directly and publicly incites the commission of genocide, irrespective of whether his or her acts were likely to cause the crime of genocide.[2] Accordingly, the Appeals Chamber rejects Nzabonimana’s contention that, to establish direct and public incitement to commit genocide, it must be proven that the accused’s actions were likely to cause the commission of the crime of genocide. [1] Nahimana Appeal Judgement, para. 678. [2] See Nahimana Appeal Judgement, para. 678. |
ICTR Statute Article 2(3)(c) ICTY Statute Article 4(3)(c) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 29.09.2014 |
NZABONIMANA Callixte (ICTR-98-44D-A) |
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146. […] The Appeals Chamber is also not convinced that the Trial Chamber was specifically required to determine that assailants of the Night and Day Attacks heard what he said at the Cyayi centre. The Appeals Chamber recalls that the actus reus of “instigating” is to prompt another person to commit an offence.[1] It is not necessary to prove that the crime would not have been perpetrated without the involvement of the accused; it is sufficient to demonstrate that the instigation was a factor substantially contributing to the conduct of another person committing the crime.[2] Similarly, it is not required that the individuals who were instigated be the same as those who committed the crimes.[3] [1] See, e.g., Nchamihigo Appeal Judgement, para. 188; Karera Appeal Judgement, para. 317; Kordić and Čerkez Appeal Judgement, para. 27. [2] See, e.g., Karera Appeal Judgement, para. 317; Nahimana et al. Appeal Judgement, para. 480; Kordić and Čerkez Appeal Judgement, para. 27. [3] The Appeals Chamber observes that, while previous cases have examined whether individuals who were instigated were the same as those who committed the crimes (see Karera Appeal Judgement, para. 318; Nahimana et al. Appeal Judgement, para. 513; Ndindabahizi Appeal Judgement, para. 116. See also Boškoski and Tarčulovski Appeal Judgement, para. 75), the Appeals Chamber has not explicitly made it a requirement under instigation. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
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| Appeal Judgement - 29.09.2014 |
NZABONIMANA Callixte (ICTR-98-44D-A) |
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93. […] The Appeals Chamber again recalls that a trial chamber has full discretion to assess witness credibility,[1] and notes that a witness’s criminal history may be a factor in assessing credibility.[2] […] [1] See supra, para. 45. [2] Cf. Bagosora and Nsengiyumva Appeal Judgement, para. 264; Kamuhanda Appeal Judgement, para. 142. |
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| Appeal Judgement - 29.09.2014 |
NZABONIMANA Callixte (ICTR-98-44D-A) |
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398. The Appeals Chamber is not persuaded that premeditation or the existence of a pre-existing agreement is an element of the crime of conspiracy to commit genocide […]. See also paras. 255, 391, 448. |
ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b) | |
| Notion(s) | Filing | Case |
| 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) | |
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| 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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| 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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| 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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| 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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| Notion(s) | Filing | Case |
| 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 | |