19. The Appeals Chamber agrees that it retains jurisdiction over a matter which it remanded to a Trial Chamber where the question as to whether the Trial Chamber complied with its instructions is at issue. In the present case, a reading of the Decision on Remand on Continuation of Trial,[1] in particular of its outcome, clearly shows that the question as to whether the Trial Chamber complied with the Appeals Chamber’s instructions is not at issue. The Appeals Chamber remanded the matter of severance to the Trial Chamber “for further consideration consistent with [the] opinion [set forth in the Appeal Decision on Severance]”:[2] not only did the Trial Chamber further consider the remanded matter but it also found that there was no basis to sever Ngirumpatse from the proceedings. The instant case is, as a result, distinguishable from the ICTY decision Ngirumpatse relies on, where the ICTY Appeals Chamber concluded that it remained competent to address the appeal “to the extent” that the applicants were alleging that the Trial Chamber had failed to comply with the Appeals Chamber’s decision.[3] 

15. The Appeals Chamber recalls that an appellant seeking variation of the grounds of appeal contained in a notice of appeal bears the burden of demonstrating that each proposed amendment meets the “good cause” requirement of Rule 108 of the Rules.[1] With respect to Pavković’s submission that the sought amendment is the result of the ongoing discussions between him and his counsel, as well as the analysis of the other appellants’ notices of appeal,[2] the Appeals Chamber reiterates that further analysis undertaken over the course of time, taken alone, cannot constitute good cause for an amendment as this would effectively amount to allowing the appellant to restart the appeal process at will.[3] Moreover, an appellant’s counsel is the one primarily responsible for the identification of potential legal errors in a trial judgement.[4] These considerations are equally applicable in multiple-appellants proceedings. The Appeals Chamber therefore finds that Pavković has failed to demonstrate good cause for not having included in his Notice of Appeal the allegations of errors contained in the seventh ground of Ojdanić’s Amended Notice of Appeal.

17. Nonetheless, the Appeals Chamber recalls that pursuant to the Practice Direction on Formal Requirements for Appeals from Judgement,[1] a notice of appeal should clearly specify with respect to each ground of appeal the challenged findings in the trial judgement, providing reference to the page and paragraph number.[2] Similarly, in an appellant’s brief, one is required to present arguments in support of each ground of appeal announced in the notice of appeal, including precise references to any relevant exhibit, transcript page, decision, or paragraph number in the judgement.[3] The Appeals Chamber further recalls that it is settled jurisprudence of this Tribunal that a party alleging an error of law must, in addition to identifying the alleged error and presenting arguments in support of its claim, explain how the error invalidates the decision.[4] Finally, if the Appeals Chamber agrees with such allegation and finds that the Trial Chamber applied a wrong legal standard, “it is open to the Appeals Chamber to articulate the correct legal standard and to review the relevant findings of the Trial Chamber accordingly”, applying the correct legal standard to the evidence contained in the trial record and determining whether it is itself convinced beyond reasonable doubt as to the affected factual finding. Therefore, the party alleging an error of law also has the burden to plead with precision how correcting such an error would affect the relevant conclusions underlying the findings of guilt.

10. […] The allocation of investigative resources is a matter of trial strategy which rests squarely within the discretion of Counsel: it cannot provide the basis for claiming that material was “not available” for the purposes of Rule 115 of the Rules. […] Finally, the Appeals Chamber is not convinced by Mr. Bikindi’s claim that ineffective assistance of counsel explains the failings in earlier investigations. In this respect, the Appeals Chamber notes that Mr. Bikindi changed Lead Counsel during the course of the trial. His suggestion that a further investigative mission would not have been approved is simply speculation.[1]

25. The Appeals Chamber is not satisfied that Mr. Bikindi exercised due diligence in obtaining and presenting this material at trial. As stated above, the allocation of defence resources cannot justify a delay in bringing evidence before the Tribunal.[2] While it is true that the records of the Gacaca proceedings which occurred after Mr. Bikindi’s trial were not available, Mr. Bikindi has not justified why the underlying evidence could not have been obtained at trial. Mr. Bikindi has also failed to demonstrate why he could not have raised his concerns with respect to the ineffective assistance of counsel at trial, in particular bearing in mind that he obtained a new Lead Counsel during the course of the proceedings. Finally, Mr. Bikindi made no submissions related to the availability of the evidence concerning Witness AKK’s schooling or the distances between Kayove and Kivumu.

9. The Appeals Chamber recalls that in granting extensions of time for the filing of appellants’ notices of appeal, the Pre-Appeal Judge in the present case held, inter alia, that:

[…] Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules […][1]

10. The Appeals Chamber considers that pending the receipt of the translation of the Trial Judgement, Pavković has been trying to understand the latter with the assistance of his defence team so that he can effectively contribute to the Appeal Brief.[2] Pavković asserts that the requested amendment of his Notice of Appeal became apparent to his defence team only as a result of this review process.[3] The Appeals Chamber notes that the variation sought concerns an alleged error of fact in the Trial Chamber’s finding that as a member of the Joint Command, Pavković “by-passed the chain of command.”[4] As such, it can be reasonably inferred that Pavković’s understanding of the Trial Judgement has been central to the identification of the alleged error, and that the unavailability of the B/C/S translation of the Trial Judgement at the time the Notice of Appeal was filed had prevented him from instructing his counsel to that effect.[5] The Appeals Chamber is therefore satisfied that good reason for not including the alleged error in the Notice of Appeal has been shown.

Cf. Ojdanić Decision on Amending Notice of Appeal, refusing to recognize good cause for not including the newly alleged error of law in the original notice of appeal.

17. Moreover, the Appeals Chamber notes that the Motion contains no arguments as to the conditions of admissibility of additional evidence on appeal recalled above. The general assertion that the proffered material is relevant to an argument raised on appeal and is likely to prove a fact that the Trial Chamber considered immaterial for the conviction, does not suffice for these purposes. […]

See remainder of para. 17, para. 21.

17. […] The Appeals Chamber finds that Milošević’s Counsel’s failure to at least attempt to satisfy any of the requirements of Rule 115 of the Rules, especially after his previous motions filed under the same provision were rejected for similar reasons,[1] amounts to professional negligence. The Appeals Chamber thus finds the Motion frivolous in the sense of Rule 73(D) of the Rules[2] and issues a warning to Milošević’s counsel under Rule 46(A) of the Rules.

[…]

21. For the foregoing reasons, the Appeals Chamber DISMISSES the Motion in its entirety, FINDS the Motion to be frivolous and IMPOSES A SANCTION against Milošević’s Counsel, pursuant to Rule 73(D) of the Rules, in the form of non-payment of fees associated with the Motion.

15. […] The Appeals Chamber recalls that “further analysis undertaken over the course of time”[1] cannot, in and of itself, constitute good cause for an amendment as this would effectively amount to allowing the appellant to “restart the appeal process at will.”[2] In addition, the Motion fails to explain how the newly alleged error resulted from Ojdanić’s personal insight. The alleged error concerns an issue of law and Ojdanić’s counsel is principally responsible for the assessment of potential legal errors in the Trial Judgement.[3] The Appeals Chamber therefore finds that Ojdanić fails to demonstrate good cause for not having alleged this error in his Notice of Appeal. Rather, the Appeals Chamber finds that the failure to present it in the Notice of Appeal constitutes inadvertence or negligence on the part of Ojdanić’s counsel.[4]

Cf. Pavković Decision on First Amended Notice of Appeal, recognizing the existence of good cause for a newly alleged error of fact.

16. In the circumstances of the present case, the Appeals Chamber observes that if Ojdanić indeed prevails on the merits of his argument, this would lead to the conclusion that the Trial Chamber convicted him on the basis of a legally erroneous interpretation of the mens rea element of crimes against humanity, which could have a direct implication on his criminal responsibility. Without pronouncing itself on the merits of the appeal, the Appeals Chamber concurs with Ojdanić’s submission that the amendment sought is “of substantial importance to the success” of his appeal, such that disallowing it would be prejudicial. It is therefore in the interests of justice that the proposed amendment be granted. The Appeals Chamber is further cognisant of the fact that none of the parties opposed the requested variation and that allowing for such variation would not unduly interfere with the expeditious administration of justice.

RECALLING, however, that the extension of time for the filing of the Defence appellant’s briefs was granted in light of the fact that “the volume of the trial record, including the length of the Trial Judgement, is unprecedented and that this case raises issues of significant complexity”;[1]

CONSIDERING that there is a considerable and unusual temporal overlap in the current deadlines for the submission of the Defence appellant’s briefs and their respondent’s briefs, which may have the effect of reducing the benefits of the extension of time accorded by the Decision of 29 June 2009;

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful respondent’s briefs in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis

29.     The Appeals Chamber considers that in light of the specific circumstances of the case, the prolongation of Ntabakuze’s appeal by approximately ten months does not amount to an undue delay capable of causing serious prejudice. The trial proceedings were highly complex, encompassing a vast amount of alleged crimes in different locations, and corresponding evidence assessed at trial. All three co-Appellants were high-ranking military staff and were convicted for a number of crimes for which they received substantial sentences. It can be expected that the Appeals Chamber will have to assess a large amount of different grounds of appeal of all co-Appellants, encompassing a variety of issues.

30.     The Appeals Chamber further considers that Ntabakuze fails to substantiate how the delay could infringe on his right to make his appeal submissions adequately. Likewise, he fails to demonstrate how the fact that the Prosecution would de facto have 11 months to respond instead of the statutory 40 days would cause him prejudice serious enough to warrant the severance of his case.