Waiver of right

Notion(s) Filing Case
Appeal Judgement - 21.05.2007 MUHIMANA Mikaeli
(ICTR-95-1B-A)

80. […] The Appeals Chamber has held that, where a Trial Chamber has treated a challenge to an indictment as being adequately raised, the Appeals Chamber should not invoke the waiver doctrine. The Appeals Chamber will therefore treat the Appellant’s objection as having been timely raised. It therefore falls to the Prosecution to prove that the Appellant’s defence was not materially impaired by this defect.

[1] Gacumbitsi Appeal Judgement, para. 54. See also Ntakirutimana Appeal Judgement, para. 23.

[2] Gacumbitsi Appeal Judgement, para. 51.

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Notion(s) Filing Case
Appeal Judgement - 07.07.2006 GACUMBITSI Sylvestre
(ICTR-2001-64-A)

In the present case, the Prosecution contended that the Appellant had waived his right to challenge on appeal any vagueness of the Indictment in respect of the murder of Mr. Murefu as he did not object at trial to the testimony concerning that event. At para. 51, the Appeals Chamber recalled its previous finding in Niyitegeka on whether and under which conditions an appellant can raise an indictment defect for the first time on appeal:

In general, “a party should not be permitted to refrain from making an objection to a matter which was apparent during the course of the trial, and to raise it only in the event of an adverse finding against that party.” Failure to object in the Trial Chamber will usually result in the Appeals Chamber disregarding the argument on grounds of waiver. In the case of objections based on lack of notice, the Defence must challenge the admissibility of evidence of material facts not pleaded in the indictment by interposing a specific objection at the time the evidence is introduced. The Defence may also choose to file a timely motion to strike the evidence or to seek an adjournment to conduct further investigations in order to respond to the unpleaded allegation. [...]

The importance of the accused's right to be informed of the charges against him under Article 20(4)(a) of the Statute and the possibility of serious prejudice to the accused if material facts crucial to the Prosecution are communicated for the first time at trial suggest that the waiver doctrine should not entirely foreclose an accused from raising an indictment defect for the first time on appeal. Where, in such circumstances, there is a resulting defect in the indictment, an accused person who fails to object at trial has the burden of proving on appeal that his ability to prepare his case was materially impaired. Where, however, the accused person objected at trial, the burden is on the Prosecution to prove on appeal that the accused's ability to prepare his defence was not materially impaired. All of this is of course subject to the inherent jurisdiction of the Appeals Chamber to do justice in the case.[1]

In the present case, the Appeals Chamber held the following:

54. Although the Niyitegeka Appeal Judgement referred to the accused’s obligation to interpose a timely objection to a pleading defect when evidence is introduced at trial, it did so in the context of deciding whether and under what conditions it was appropriate for an appellant to challenge such a defect for the first time on appeal. This case presents a different situation. The Appellant repeatedly brought the issue to the Trial Chamber’s attention in its briefing, and the Prosecution never suggested that he had waived his objection by not raising it earlier. And the Trial Chamber actually decided the issue, albeit in the context of murder alone and not genocide. In Ntakirutimana, the Appeals Chamber recognized that where the Trial Chamber has treated a challenge to an indictment as being adequately raised, the Appeals Chamber should not invoke the waiver doctrine.[2] In light of these circumstances, the Appeals Chamber holds that the Appellant did not waive his objection to the pleading defect. It therefore remains the Prosecution’s burden to prove that the Appellant’s defence was not materially impaired by the defect.

[1] Niyitegeka Appeal Judgement, paras. 199, 200 (internal citations omitted).

[2] See Ntakirutimana Appeal Judgement, para. 23.

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Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

25. The Appeals Chamber notes that Karadžić did not raise his arguments about the alleged breach of his right to represent himself during trial or seek reconsideration or certification to appeal the impugned decision.[1] In this respect it recalls that, if a party raises no objection to a particular issue before a trial chamber when it could have reasonably done so, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to raise the issue on appeal.[2] However, in view of the fundamental importance of the right to self-representation, the Appeals Chamber holds that it would not be appropriate to apply the waiver doctrine to Karadžić’s allegation of error and will consider the matter.[3]

See also para. 298.

[1] Karadžić suggests that he linked his right to testify in narrative form with his right to self-representation when litigating the issue before the Trial Chamber. See T. 24 April 2018 p. 241, referring to Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Defence Submission of Order of Witnesses for February and March 2014, 18 December 2013, para. 3, n. 2; T. 20 February 2014 p. 4753[6]. However, the submissions he highlights fail to reflect that Karadžić objected to the manner in which the Trial Chamber decided his testimony would be presented on the basis that it violated his right to self-representation. Indeed, Karadžić did not respond to the Prosecution’s motion that Karadžić not be allowed to testify in narrative form and subsequent submissions were presented on his behalf reflecting acquiescence to the Trial Chamber’s decision on this issue. See T. 27 January 2014 p. 45934; T. 20 February 2014 pp. 47535-47537. When Karadžić indicated that he would not testify, he provided no indication that it was because the Trial Chamber’s decision infringed upon his right to represent himself. See T. 20 February 2014 p. 47541.

[2] See, e.g., Prlić et al. Appeal Judgement, para. 165; Nyiramasuhuko et al. Appeal Judgement, paras. 63, 1060, n. 157; Popović et al. Appeal Judgement, para. 176; Bagosora and Nsengiyumva Appeal Judgement, para. 31. See also Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016 (“Orić Decision of 17 February 2016”), para. 14.

[3] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on the Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 5 March 2007 (“Nahimana et al. Decision of 5 March 2007”), para. 15, n. 47.

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