Factors for consideration

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Decision Refusing Leave to Appeal - 26.06.2003 ŠAINOVIĆ & OJDANIĆ

NOTING that [...] the Appeals Chamber has laid down a non-exhaustive list of factors which a Trial Chamber must take into account before granting provisional release;

CONSIDERING that all these factors need to be considered when the Trial Chamber decides to grant provisional release, not when it decides to refuse it;

CONSIDERING in particular that all factors need not to be reviewed by a Trial Chamber if, for instance, the consideration of one of them is sufficient to satisfy the Chamber that, if released, the accused would not appear for trial;

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Decision Regarding Leave to Amend Indictment - 12.02.2004 BIZIMUNGU et al. (Government II)

16.     The Prosecution is certainly correct that the Trial Chamber must consider all of the circumstances bearing on a motion to amend the indictment.  Interference with the orderly scheduling of trial, however, is one such circumstance.  The Appeals Chamber stated in Karemera that “a postponement of the trial date and a prolongation of the pretrial detention of the Accused” are “some, but not all”[1] of the considerations relevant to determining whether a proposed amendment would violate the right of the accused to a trial “without undue delay,”[2] which in turn bears on the broader question whether the amendment is justified under Rule 50 of the Rules. The Trial Chamber should also consider such factors as the nature and scope of the proposed amendments, whether the Prosecution was diligent in pursuing its investigations and in presenting the motion, whether the Accused and the Trial Chamber had prior notice of the Prosecution’s intention to seek leave to amend the indictment, when and in what circumstances such notice was given, whether the Prosecution seeks an improper tactical advantage,[3]and whether the addition of specific allegations will actually improve the ability of the Accused to respond to the case against them and thereby enhance the overall fairness of the trial.[4] Likewise, the Trial Chamber must also consider the risk of prejudice to the Accused and the extent to which such prejudice may be cured by methods other than denying the amendment, such as granting adjournments or permitting the Accused to recall witnesses for cross-examination.[5] The above list is not exhaustive; particular cases may present different circumstances that also bear on the proposed amendments.

 17.     […] [T]he Trial Chamber is not required to enumerate and dispose of all of the arguments raised in support of a motion.  Absent a showing that the Trial Chamber actually refused to consider any factors other than the determination that the amendment would delay the start of trial, or a showing that the Trial Chamber’s conclusion was so unreasonable that it cannot have considered all pertinent factors, the Appeals Chamber must conclude that the Trial Chamber took account of all of the arguments put to it.


19. […] Although the Prosecution may seek leave to expand its theory of the Accused’s liability after the confirmation of the original indictment, the risk of prejudice from such expansions is high and must be carefully weighed. On the other hand, amendments that narrow the indictment, and thereby increase the fairness and efficiency of proceedings, should be encouraged and usually accepted.

[1] [Prosecutor v. Karemera et al., No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003 (“Karemera”)]], para. 19.

[2] Ibid., para. 13 (quoting Statute of the International Tribunal, Art. 20(4)(c)).

[3] See ibid., paras. 15, 20-30; Prosecutor v. Kovačević, No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, dated 2 July 1998, paras 29, 31.

[4] See Karemera, para. 27.

[5] See ibid., para. 28. 

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c) ICTR Rule Rule 50 ICTY Rule Rule 50
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Decision Regarding Indictment and Speedy Trial - 27.02.2004 MUGIRANEZA Prosper

Considering that the Appeals Chamber takes the view that it is necessary to consider, inter alia, the following factors when determining whether there has been a violation of the right to be tried without undue delay:

(1)     The length of the delay;

(2)     The complexity of the proceedings, such as the number of charges, the number of accused, the number of witnesses, the volume of evidence, the complexity of facts and law;

(3)     The conduct of the parties;

(4)     The conduct of the relevant authorities; and

(5)     The prejudice to the accused, if any;

 CONSIDERING that the Trial Chamber erred in considering the factor of the fundamental purpose of the Tribunal in its determination of whether the delay was undue;

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c)