Waiver to raise arguments on appeal

Notion(s)	Filing	Case
Notice of appeal \| Waiver to raise arguments on appeal	Appeal Judgement - 19.05.2010	BOŠKOSKI & TARČULOVSKI (IT-04-82-A)
244. The Appeals Chamber recalls that a party is required to raise formally any issue of contention before the Trial Chamber either during trial or pre-trial;[1] failure to do so may result in the complainant having waived his right to raise the issue on appeal. show footnotes [1] Krajišnik Appeal Judgement, para. 654; Blaškić Appeal Judgement, para. 222; Čelebići Appeal Judgement, para. 640. Download full document
Notion(s)	Filing	Case
Waiver \| Waiver to raise arguments on appeal	Decision on Leave to Appeal - 17.02.2016	ORIĆ Naser (MICT-14-79)
14. […] In the absence of special circumstances, a party cannot raise arguments for the first time on appeal where it could have reasonably done so in the first instance.[1] […] show footnotes [1] See Andre Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Prosecution’s Notice of Appeal and Scheduling Order, 18 April 2007, para. 6. See also Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Judgement, 19 May 2010, para. 244. Download full document
Notion(s)	Filing	Case
Waiver \| Waiver to raise arguments on appeal \| Right to a fair trial	Appeal Judgement - 14.12.2015	NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A)
63. The Appeals Chamber recalls that, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal.[1] The Appeals Chamber, Judge Agius dissenting, does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeals hearing. In these circumstances, the Appeals Chamber, Judge Agius dissenting, dismisses without further consideration this part of Ground 15 of Ndayambaje’s appeal as well as Ndayambaje’s new allegation of error raised at the appeals hearing. show footnotes [1] See supra, fn. 157. This waiver principle has been applied to allegations of fair trial violations. See Bagosora and Nsengiyumva Appeal Judgement, para. 31 (right to initial appearance without delay); Musema Appeal Judgement, paras. 127 (right to effective cross-examination), 341 (right to have adequate time and facilities for the preparation of the defence); Akayesu Appeal Judgement, paras. 361, 370, 375, 376 (right to be informed promptly and in detail of the nature of the charges); Čelebići Appeal Judgement, paras. 640, 649, 650 (alleged violation of fair trial right to the attention of judges to the proceedings); Kambanda Appeal Judgement, paras. 25, 28 (right to counsel of own choosing); Tadić Appeal Judgement, para. 55 (right to equality of arms). Download full document
Notion(s)	Filing	Case
Judges \| Impartiality \| Waiver to raise arguments on appeal	Appeal Judgement - 19.03.2019	KARADŽIĆ Radovan (MICT-13-55-A)
352. The right of an accused to be tried before an independent and impartial tribunal is an integral component of the fundamental right to a fair trial. Impartiality is a required quality for a judge at the Tribunal, and a judge may not sit in any case in which he has, or has had, any association which might affect his impartiality. The Appeals Chamber observes that, as a general rule, a judge should not only be subjectively free from bias but also that nothing surrounding the circumstances would objectively give rise to an appearance of bias. 353. Rule 15 of the ICTY Rules prescribes a specific procedure for challenging the participation of a judge in a case on the grounds of bias. The Appeals Chamber recalls, however, that a presumption of impartiality attaches to judges of the Tribunal which cannot be easily rebutted. Where allegations of bias are raised on appeal, there is a high threshold to reach in order to rebut the presumption of impartiality and it is for the appealing party alleging bias to set forth substantiated and detailed arguments in support of demonstrating the alleged bias. 354. The Appeals Chamber observes that, shortly after the assignment of [REDACTED] to the case, the Trial Chamber provided Karadžić with specific information concerning [REDACTED], which highlighted the relevance of this information to a potential challenge to the composition of the bench.[6] […] Karadžić did not pursue this matter at trial. The Appeals Chamber finds that Karadžić’s inaction at trial in the face of his awareness of [REDACTED], which was specifically brought to his attention by the Trial Chamber, demonstrates that he did not object to [REDACTED] participation in his case at trial on the basis of an alleged apprehension of bias and could result in the possible waiver of this argument on appeal. Notwithstanding, in view of the fundamental importance of an impartial tribunal, 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. show footnotes [1] Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay, 31 January 2017, para. 11 and references cited therein; Furundžija Appeal Judgement, para. 177. [2] Article 13 of the ICTY Statute; Rule 15(A) of the ICTY Rules. The requirement of impartiality is also explicitly stated in Rule 14(A) of the ICTY Rules, pursuant to which, upon taking up duties, a Judge solemnly declares to perform his duties and exercise his powers “impartially and conscientiously”. [3] Renzaho Appeal Judgement, para. 21; Rutaganda Appeal Judgement, para. 39; Furundžija Appeal Judgement, para. 189; Čelebići Appeal Judgement, para. 682. [4] See, e.g., Renzaho Appeal Judgement, para. 21; Nahimana et al. Appeal Judgement, para. 48; Rutaganda Appeal Judgement, para. 42. [5] Renzaho Appeal Judgement, para. 23, referring to The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009, para. 10, Karera Appeal Judgement, para. 254, Nahimana et al. Appeal Judgement, paras. 47-90, Ntagerura et al. Appeal Judgement, para. 135, Rutaganda Appeal Judgement, para. 43, Furundžija Appeal Judgement, paras. 196, 197. [6] [REDACTED]. [7] Cf. [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], para. 15, referring to Niyitegeka Appeal Judgement, para. 200. Download full document		ICTY Rule Rule 15