23. The Appeals Chamber considers that the Trial Chamber erred in finding that the length of Gatete’s pre-trial detention was not undue, given that it explicitly noted that the conduct of the Prosecution and the relevant authorities resulted in instances of pre-trial delay that could not be explained or justified.[1] By identifying such instances of pre-trial delay, the Appeals Chamber considers that the Trial Chamber itself ipso facto recognised that the conduct of the Prosecution and the relevant authorities unduly prolonged Gatete’s pre-trial detention. The Trial Chamber’s subsequent conclusion that “the delay was not undue” is thus incompatible with its prior acknowledgement that there were various pre-trial delays that could not be explained or justified. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in its assessment of the delays occasioned by the conduct of the Prosecution and the relevant authorities.

286. The Appeals Chamber recalls that any violation of a person’s rights entails the provision of an effective remedy pursuant to Article 2(3)(a) of the International Covenant on Civil and Political Rights of 1966. It is satisfied that a term of years, being by its nature a reduced sentence from that of life imprisonment, is the appropriate remedy for the violation of Gatete’s rights. In determining an appropriate remedy, the Appeals Chamber recalls its finding that Gatete has failed to demonstrate that he was prejudiced in either the preparation or the presentation of his case.

287. Having considered the gravity of the crimes for which Gatete’s convictions have been upheld and taking into account the violation of his rights, the Appeals Chamber sets aside Gatete’s sentence of life imprisonment and concludes that his sentence should be reduced to a term of 40 years’ imprisonment.

154. The Appeals Chamber recalls that, while a witness’s status as an accomplice does not render his or her evidence unreliable per se,[1] a trial chamber must exercise appropriate caution in assessing his or her evidence.[2]

14.     An appellant “may” file a reply within four days of the filing of the response.[1] […]

15.     […] Moreover, the Appeals Chamber considers that striking the Reply Brief does not run counter to the interests of justice in the same manner as striking the Appeal Brief would in this case.[2] In this context, the Appeals Chamber considers that a reply is an optional filing and finds that it is not necessary to the consideration of this appeal. In view of the foregoing, the Appeals Chamber grants the Motion to Strike and shall not consider the Reply Brief.

16.     The Appeals Chamber emphasises that procedural time-limits are to be respected as they are indispensable to the proper functioning of the Mechanism.[3] Violations of time-limits, unaccompanied by any showing of good cause, will not be tolerated.[4] The Appeals Chamber warns Duty Counsel that failure to respect filing deadlines may result in a determination that Duty Counsel is ineligible to represent an accused or suspect before the Mechanism.[5]

12.     Even where counsel has failed to demonstrate good cause justifying the late filing, the Appeals Chamber may recognize submissions as validly filed where they are of such substantial importance to the appeal that doing so is in the interests of justice.[1] Extensions may also be granted where counsel’s conduct has not sufficiently protected the rights of the appellant.[2] The Appeals Chamber considers that the Appeal Brief is of substantial importance to the protection of the rights of the appellant. To reject it could result in the dismissal of Munyarugarama’s appeal.[3] Moreover, recognizing the Appeal Brief as validly filed would not prejudice the Prosecution, which responded to the Appeal Brief, or impact the timely consideration of this appeal.[4] Consequently, the Appeals Chamber finds that it is in the interests of justice to recognize the Appeal Brief as validly filed. 

18.     The Referral Chamber transferred Munyarugarama’s case to Rwanda pursuant to Rule 11bis of the ICTR Rules.[1] Rule 11bis of the ICTR Rules allows a designated trial chamber to refer a case to a competent national jurisdiction for trial if it is satisfied that the accused will receive a fair trial and that the death penalty will not be imposed or carried out. In assessing whether a State is competent within the meaning of Rule 11bis of the ICTR Rules to accept a case from the ICTR, a designated trial chamber must consider whether the accused will be accorded the fair trial rights set out in Article 20 of the ICTR Statute, whether the State in question has a legal framework which criminalizes the alleged conduct of the accused, and whether it provides an adequate penalty structure.[2] The penalty structure within the State must provide an appropriate punishment for the offences for which the accused is charged, and conditions of detention must accord with internationally recognized standards.[3]

19.     In considering an appeal from a decision under Rule 11bis of the ICTR Rules, the Appeals Chamber of the ICTR has stated:

The trial chamber has the discretion to decide whether to refer a case to a national jurisdiction, and the Appeals Chamber will only intervene if the trial chamber’s decision was based on a discernible error. To demonstrate such error, an appellant must show that the trial chamber: 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; gave weight to irrelevant considerations; failed to give sufficient weight to relevant considerations; made an error as to the facts upon which it has exercised its discretion; or reached a decision that was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the trial chamber must have failed to exercise its discretion properly.[4]

The Appeals Chamber of the Mechanism adopts this standard of review in considering the present appeal.

CONSIDERING that although the principal mandate of the Appeals Chamber is to consider legal errors invalidating the Trial Chamber’s Judgement or factual errors occasioning a miscarriage of justice,[1] it has repeatedly held that it may also consider legal issues that are “of general significance to the Tribunal’s jurisprudence,”[2] even if they do not affect the verdict, so long as they have a “nexus with the case at hand,”[3] and that such determinations do not constitute impermissible “advisory opinions,”[4] but are instead necessary means of moving forward this ad hoc International Tribunal’s jurisprudence within the limited time in which it operates and contributing meaningfully to the overall development of international criminal law;[5]

7. […] In the circumstances of this case, the Appeals Chamber finds that should the Prosecution take steps to fulfil its disclosure obligations, a risk would arise that privileged communications would be exposed to the Prosecution to the detriment of the Defendants. This creates a conflict for the Prosecution, which must meet its disclosure obligations under Rules 66 and 68 of the Rules while currently in possession of the Potentially Privileged Material [the potentially privileged material received from the Serbian Authorities on 22 January 2010 and 9 March 2010].

8. Despite it being within the ambit of the Appeals Chamber to review the Potentially Privileged Material, there also exists a risk that communications between any of the Defendants and their legal counsel could be revealed to the Appeals Chamber. Additionally, as the Potentially Privileged Material comprises a voluminous amount of documentation,[1] should the Appeals Chamber review the Potentially Privileged Material there will be a considerable delay in the appellate proceedings. In light of the above, and out of concern for efficiency and expeditiousness, the Appeals Chamber considers that the best course of action under the circumstances presented is for a Judge of the Tribunal not sitting on the Popović et al. Bench to review the Potentially Privileged Material in order to determine whether lawyer-client privilege attaches to any of the material in question.

The Appeals Chamber reiterated that that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction and that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction. Nonetheless, the Appeals Chamber specifies for the first time that, while any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

12. Rule 75(F)(i) of the Rules provides that “[o]nce protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the ‘first proceedings’), such protective measures […] shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the ‘second proceedings’) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule”. Pursuant to Rule 75(G) of the Rules, “[a] party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply: (i) to any Chamber, however constituted, remaining seised of the first proceedings; or (ii) if no Chamber remains seised of the first proceedings, to the Chamber seised of the second proceedings.”

13. In this case, variation is not sought for a case before the Tribunal, and Mr. Mungwarere is not “a party to the second proceedings” within the meaning of Rule 75 of the Rules. However, while Rule 75 of the Rules does not provide for such variation, the Appeals Chamber has held that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction, as in the present case.[1] The Appeals Chamber has also considered that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction.[2]

14. However, the Appeals Chamber considers that a distinction must be drawn between requests from a judge or a court from another jurisdiction, and requests emanating from a party to proceedings before another jurisdiction. While any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, the Appeals Chamber considers that a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation.

16. The Appeals Chamber notes that Mr. Mungwarere expressly refers to the legal standard applicable to requests for access to confidential material by an accused in another case before the Tribunal.[3] However, the Appeals Chamber emphasizes that, in the present instance, access to confidential material is not sought by an accused in another case before the Tribunal, but by an accused before another jurisdiction.

17. In such a case, the Appeals Chamber considers that the material sought should be specifically identified.[4] In addition, as is the case with requests by an accused in proceedings before the Tribunal, the applicant seeking access to confidential material for proceedings before another jurisdiction must demonstrate a legitimate forensic purpose. The Appeals Chamber recalls in this regard that consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the applicant’s case and the case from which such material is sought.[5] The applicant must further establish that this material is likely to assist his case materially, or that there is at least a good chance that it would.[6]

18. Moreover, the Appeals Chamber has repeatedly underscored the importance of the protected witness’s consent to the disclosure of confidential material for proceedings before another jurisdiction.[7] In the absence of such consent, variation of protective measures may only be granted where the applicant demonstrates that the protective measures are no longer justified or that exceptional circumstances warrant the variation sought.[8]

20. The Appeals Chamber considers that Hategekimana’s submissions are based on the erroneous premise that legal officers play a controlling role in judicial decision-making.[1] The Appeals Chamber has previously held that “[j]udicial decision-making is the sole purview of the Judges and legal officers […] play no role in it.”[2] The Appeals Chamber further considers that “mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves”,[3] to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges. The Appeals Chamber does not find that the role of the legal officer in the competition is “so problematic” as to impugn the impartiality of the Judges or the appearance thereof.[4] Therefore, there is no merit to Hategekimana’s contention that the Trial Chamber erred in allowing the legal officer to be involved in the drafting process of the Trial Judgement.