3. Mr. Renzaho now requests an extension of time to file his Appellant’s Brief within 75 days from the service to him and his Counsel of the French translation of the Trial Judgement.[1] In support of his request, Mr. Renzaho submits that because he is francophone and can neither speak nor read English, he is incapable of fully understanding the Trial Judgement, properly discussing grounds of appeal, and actively participating in the drafting of his Appellant’s Brief, particularly with respect to factual issues.[2] […]

4. Rule 116(A) of the Rules allows for the extension of time of any deadline on a showing of good cause. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. This provision may provide a basis for an extension of time, upon request, for the filing of the convicted person’s Appellant’s Brief pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[3]

5. Mr. Renzaho’s circumstances constitute good cause to extend the time for the filing of his Appellant’s Brief from the filing of the French translation of the Trial Judgement.

6. Mr. Renzaho’s Lead Counsel has the ability to work in both English and French,[4] and may therefore discuss the draft of the Appellant’s Brief with Mr. Renzaho, subject to his final approval once the French translation of the Trial Judgement is filed. It is therefore appropriate in this instance to allow a limited extension of time. 

See also, the “Decision on Tharcisse Renzaho’s Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply” rendered in this case on 22 September 2009, where the Appeals Chamber held:

4. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. In practice, Rule 116(B) of the Rules does not provide a basis for an extension of time for the filing of a Notice of Appeal where the convicted person’s counsel can work in the language in which the Trial Judgement was pronounced.[5] This provision may, however, provide a basis for an extension of time, upon request, for the filing of the convicted person’s brief on appeal (“Appellant’s Brief”) pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[6]

5. In the present case, the information provided by the Registry shows that Mr. Renzaho’s Lead Counsel has indicated that French is his mother tongue and that he has a “good” knowledge of English, with the ability to read, speak, and write it fluently.[7] He is therefore able to discuss the contents of the Trial Judgement as well as any possible grounds of appeal with Mr. Renzaho. The determination of potential grounds of appeal falls primarily within the purview of Defence Counsel and, if an application is made after the Trial Judgement becomes available in French and good cause is shown, leave may be granted to vary the grounds of appeal under Rule 108 of the Rules.[8] For these reasons, Mr. Renzaho has not demonstrated good cause for an extension of time for the filing of his Notice of Appeal.

19. [R]ather than establishing that the calculation of pre-trial preparation time is a mechanically “objective” task,[1] the Ngirabatware Decision underscores that “it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case”.[2] A Trial Chamber’s assessment of the amount of pre-trial preparation required in each case is a fact-intensive exercise but also involves an exercise of the Trial Chamber’s judgement. The factors cited in the Ngirabatware Decision and addressed by both Karadžić and the Prosecution are specifically described as examples of indicia that might impact a Trial Chamber’s assessment of the pre-trial preparation period,[3] rather than constituting a required “objective” checklist for Trial Chambers.  

20. […] The Appeals Chamber reiterates that assessing the amount of pre-trial preparation required is not a mechanical duty, and also that “[w]hile a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail”.[4] […] The Appeals Chamber underscores that “[i]n examining whether the Trial Chamber has considered appropriate factors in sufficient measure” with regard to pre-trial preparation, “the Appeals Chamber is not limited to the text of the order issued by the Trial Chamber”. Instead, it will look to relevant decisions and transcripts of recent status and pre-trial conferences in order to determine “whether the Trial Chamber gave the issues involved due consideration”.[5]

The Appeals Chamber then considered the Trial Chamber’s demand that the Prosecution file a “marked-up version of the indictment and its schedules”[1] including footnotes explaining all changes of the indictment, subsequent to an invitation of the Trial Chamber pursuant to Rule 73bis(D) of the Rules. It assessed whether this required a delay in the start of the trial:

26. [T]he Trial Chamber reduced the size of the case Karadžić faced by accepting the propositions of the Prosecution’s 31 August 73bis(D) Submission.[[2]] However, the amount of time provided to Karadžić for reviewing the marked-up indictment is exceedingly short and risks rendering the trial unfair, even when the only potential changes are reductions in the Prosecution’s charges. In the context of this case, the Trial Chamber was obligated to ensure that Karadžić had sufficient time to read the marked-up and clarified indictment before the commencement of trial. Its failure to do so constitutes an abuse of discretion.

35. The Appeals Chamber considers that the Statute of the Tribunal can only be amended or derogated by means of UNSC resolution. This plainly derives from the actus contrarius doctrine, is established in the jurisprudence of the Tribunal,[1] and is confirmed by the practice of the UNSC.[2]

36. […] Therefore, contrary to what the Trial Chamber appears to concede,[3] the mere involvement of the UNSC in concluding the alleged Agreement [agreement allegedly reached between the accused Radovan Karadžić and Mr. Richard Holbrooke on 18-19 July 1996], without a ratification of the alleged Agreement by a UNSC resolution, could not limit the jurisdiction of the Tribunal. The Appeals Chamber notes that there is no UNSC resolution excluding the Appellant from the ambit the Tribunal’s jurisdiction.

37. In light of the foregoing, the Appeals Chamber finds that under no circumstance would the alleged Agreement in and of itself, even if its existence was proved, limit the jurisdiction of the Tribunal.

38. The Appellant’s argument that the applicability of the doctrine of apparent authority would prove that no UNSC resolution is necessary to amend the jurisdiction of the Tribunal is misplaced. As explained above, in the absence of a UNSC resolution, the alleged Agreement could not have any impact on the Tribunal’s jurisdiction, even if it were made with the actual authority of the UNSC. […] Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. A fortiori, even if one considered that the alleged Agreement was made with the apparent authority of the UNSC could not affect in any event the ambit of the Tribunal’s jurisdiction. In his submissions, the Appellant attempts to rely on analogy with jurisdictional matters in international criminal law a theory typical of contract law protecting the legitimate expectations of a contracting party believing without fault that a contract was validly concluded with a legitimate representative of the other party.[4] However, the Appellant ignores that one of the requirements for applying a doctrine by analogy is the existence of an eadem ratio, that is, the existence of sufficient similarities between two cases. The field of contract law is so distant from the question of jurisdiction in international criminal law that the two are effectively incomparable. Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. The Appeals Chamber considers that the Appellant’s submissions on apparent authority fall more squarely under the question of the applicability of the doctrine of abuse of process.[5]

45. As the parties note, the jurisprudence of the Tribunal has relied in several instances on the common law rooted doctrine of abuse of process.[1] In the Barayagwiza case, the Appeals Chamber recalled that under the doctrine of abuse of process “proceedings that have been lawfully initiated may be terminated after an indictment has been issued if improper or illegal procedures are employed in pursuing an otherwise lawful process”.[2] The Appeals Chamber specified that the doctrine of abuse of process may be relied on by a court, as a matter of discretion, in two distinct situations: (i) where a fair trial for the accused is impossible, usually for reasons of delay; and (ii) where in the circumstances of a particular case, proceeding with the trial of the accused would contravene the court’s sense of justice, due to pre-trial impropriety or misconduct.[3] The applicable standard was further clarified by stating that a court may discretionally decline to exercise jurisdiction “where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity”.[4] The Barayagwiza Review Decision confirmed the applicable law on abuse of process as stated in the Barayagwiza Appeal Decision.[5]

46. In the Nikolić Appeal Decision, the Appeals Chamber contextualised the doctrine of abuse of process by the Tribunal in the following conceptual framework: 

Universally Condemned Offences[6] are a matter of concern to the international community as a whole. There is a legitimate expectation that those accused of these crimes will be brought to justice swiftly. Accountability for these crimes is a necessary condition for the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries and societies torn apart by international and internecine conflicts.[7] 

It then considered how this legitimate expectation should be addressed in two distinct hypotheses, relevant to the case before it: (i) under what circumstances a violation of State sovereignty requires jurisdiction to be set aside, when the violation is brought about by the apprehension of fugitives from international justice;[8] and (ii) under what circumstances a human rights violation requires jurisdiction to be set aside.[9] As to the former question, the Appeals Chamber did not identify any hypothesis justifying that jurisdiction be set aside.[10] As to the latter, the Appeals Chamber considered that, apart from “exceptional cases” of serious violations of human rights, the remedy of setting aside jurisdiction will usually be disproportionate, as “the correct balance must be maintained between the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law”.[11]  

47. The Appeal Chamber considers that the Appellant correctly submitted that the jurisprudence of the Appeals Chamber did not introduce a dual standard for the abuse of process doctrine, depending on the nature of the entity which carried out the alleged misconduct. The Appeals Chamber also notes however that, in addressing the Appellant’s submission, the Trial Chamber adopted the common standard established by the Appeals Chamber in the Barayagwiza Decision and in the Nikolić Appeal Decision, and not a higher one, by considering whether the Appellant suffered a serious mistreatment or if there was any other egregious violation of his rights. The jurisprudence of the Appeals Chamber does not allow the abuse of process doctrine to deploy a standard lower than this, irrespective of the author of the alleged misconduct.

[…]

49. The Appeals Chamber recalls that the Appellant is charged with genocide, crimes against humanity and war crimes.[12] The public interest in the prosecution of an individual accused of such offences, universally condemned, is unquestionably strong. Against the legitimate interest of the international community in the prosecution of the Appellant for Universally Condemned Offences stands the alleged violation of the Appellant’s expectation that he would not be prosecuted by the Tribunal, pursuant to the alleged Agreement.

[…]

52. The Appeals Chamber recalls that one of the fundamental aims of international criminal courts and tribunals is to end impunity and ensure that serious violations of international humanitarian law are prosecuted and punished.[13] Individuals accused of such crimes can have no legitimate expectation of immunity from prosecution. The Appeals Chamber considers that the facts that allegedly gave rise to the Appellant’s expectations of impunity do not constitute an exception to this rule.

53. In light of the foregoing, the Appeals Chamber considers that the Appellant’s allegations, even if proved, would not trigger the doctrine of abuse of process justifying a stay of the proceedings against the Appellant.

6. […] when the Appeals Chamber becomes seised of an appeal against a trial judgement, it becomes the Chamber “seised of the first proceedings” within the meaning of Rule 75(G)(i) of the Rules.[1] The Appeals Chamber, therefore, finds that the Applicant, as a party to the second proceedings,[2] properly filed his Motion before the Appeals Chamber.

7. The Appeals Chamber further recalls that, pursuant to Rule 75(F) of the Rules, protective measures that have been ordered in any proceedings before the Tribunal continue to have effect mutatis mutandis in any other proceedings before the Tribunal unless and until they are rescinded, varied or augmented. Rule 75(G) confers the competence to consider requests to vary protective measures on the Chamber seised of the first proceedings.[3] As previously observed by the Appeals Chamber, if the Chamber seised of the first proceedings were to transfer this competence to the Chamber seised of the second proceedings by way of a general referral, “the regulatory regime of Rule 75(G)(i) of the Rules would be frustrated and an important protection feature for victims and witnesses before the Tribunal would be circumvented”.[4]

8. The Krajišnik Decisions do not contradict the above interpretation.[5] These decisions concerned applications to, inter alia, rescind or vary the measure of delayed disclosure to the accused of witness identities, ordered by the Chamber seised of the first proceedings pursuant to Rule 69 of the Rules.[6] The question addressed in the Krajišnik Decisions is materially different from the present situation, where the Applicant seeks a general referral that any protective measure ordered by the Chamber seised of the first proceedings pursuant to Rule 75 of the Rules may subsequently be varied by the Chamber seised of the second proceedings.[7]

9. On the basis of the above, the Appeals Chamber reiterates that Rule 75(G) of the Rules clearly defines the procedure to be followed if a party seeks to vary protective measures ordered in previous proceedings.[8] As the Motion seeks a de facto circumvention of this Rule, it shall be denied without further consideration.

The Appellant, Nchamihigo, sought the admission on appeal of proffered evidence pursuant to Rule 115 of the Rules, which he unsuccessfully sought to have admitted at trial. The Appeals Chamber stated:

13. […] It is thus clear that the material sought for admission was available at trial, and the Appeals Chamber is satisfied that Mr. Nchamihigo exercised due diligence in his attempts to have this evidence admitted at trial. 

14. However, the Appeals Chamber observes that Mr. Nchamihigo has not appealed the Trial Chamber’s denial of his requests to admit this material either in his Notice of Appeal or Appeal Brief.[1] As such, the Appeals Chamber finds that Mr. Nchamihigo has failed to exercise due diligence in relation to these documents.[2] It remains to be considered whether denial of the admission of this evidence would result in a miscarriage of justice.

The Appeals Chamber then established that Nchamihigo had not demonstrated that the admission of the evidence in question “would have had an impact on the Trial Chamber’s findings” (paras 15-18) and concluded “that the denial of the admission of the proposed additional evidence on appeal will not result in a miscarriage of justice.” (para. 19).

16. The Appeals Chamber notes however, that in certain exceptional circumstances it has allowed amendments even in the absence of good cause being shown.[1] In this respect, it observes that the arguments presented under the seventh ground of Ojdanić’s Amended Notice of Appeal which Pavković seeks to adopt, generally allege that the Trial Chamber erroneously expanded the definition of the crimes against humanity with regard to (i) the mens rea requirement for crimes against humanity, and (ii) the individual whose knowledge of the context of the offence would suffice for criminal responsibility for crimes against humanity to be attributed to the perpetrator.[2] The Appeals Chamber recalls that Pavković has been convicted of the crimes of deportation, other inhumane acts (forcible transfer), murder and persecutions as crimes against humanity under Article 5 of the Statute.[3] Accordingly, and without pronouncing itself on the merits of the appeal, the Appeals Chamber finds that allowing Pavković to vary further his Amended Notice of Appeal in order to join the merits of Ojdanić’s seventh ground of appeal is of substantial importance to the success of his appeal such as to lead to a miscarriage of justice if denied. The Appeals Chamber further finds that the failure to assert these arguments earlier constitutes negligence on the part of Pavković’s counsel.

18. In light of these requirements, a party may not dispose of its burden on appeal by merely referring to another party’s submissions. Moreover, allowing such reference would incorrectly suggest that in multi-appellant proceedings the parties are relieved of their obligations to comply with the Rules and the relevant Practice Directions. The Appeals Chamber is also concerned that permitting such broad reference would effectively allow Pavković to circumvent the word limit established for his appellant’s brief. Therefore, whereas the Appeals Chamber acknowledges that in the circumstances of the present case it may not be necessary for Pavković to replicate in his Notice of Appeal and subsequently in his appellant’s brief, all of Ojdanić’s legal arguments that he seeks to adopt, it emphasises that in order to meet his burden on appeal Pavković must comply with the requirements recalled above.

19.     In his Third Motion, Mr. Bikindi seeks leave to admit extracts of legislation from various domestic jurisdictions and two Rwandan judgements[1] which relate to his appeal against sentencing.[2] The Appeals Chamber notes that both parties agree that the Third Motion should be considered moot on the basis that the material does not fall within the scope of Rule 115 of the Rules.[3] The Appeals Chamber agrees that Rule 115 of the Rules does not apply to case law or legislation used for the purpose of illustrating sentencing practices in national jurisdictions.[4] The Appeals Chamber will consider this material when determining the merits of the case.