Retrospective and prospective application

Notion(s) Filing Case
Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)

13. Statutes which make alterations in procedure regulate secondary rather than primary conduct; they apply to existing proceedings even though these were commenced before the statutes were made and in that sense may be regarded as retrospective. By contrast, there is a presumption that enactments affecting substantive rights are intended to be prospective. This presumption is however a rebuttable one; if it is rebutted, an amendment, though affecting substantive rights, applies retrospectively (barring any impediment of a constitutional nature) and so can affect existing proceedings.

14. Evidence capable of rebutting the presumption is furnished through Rule 6(C), which states that “an amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case”. It is true that a provision stipulating that a statute is to commence at a certain time does not necessarily mean that the statute is to govern previous conduct into which an inquiry is pending at that time. But it depends on the language of the commencement provision. Here there is one commencement provision; it applies to amendments of all kinds. Therefore, every amendment enters into force “immediately”, i.e., whether substantive or procedural, it applies to all cases of which the Tribunal is then or may in future be seised, the sole qualification being that the amendment, of whatever kind, must not “operate to prejudice the rights of the accused in any pending case”. So, the real and only question under the Rules, as they have been crafted, is whether the new amendment to Rule 15bis will operate to prejudice the rights of the Appellants.

[1] See for example, Rex v.Chandra [1905], 2 K.B.335 ; and Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974).

[2] See Turnbull v. Forman (1885) 15 Q.B.D 234, per Bowen L.J at p.238: “Where the legislature mean to take away or lessen rights acquired previously to the passing of an enactment, it is reasonable to suppose that they would use clear language for the purpose of doing so, or, to put the same thing in a somewhat different form, if the words are not unequivocally clear to the contrary, a provision must be construed as not intended to take away or lessen existing rights. A converse rule is that, where the legislature is dealing with matters of procedure as distinguished from substantive rights, the same presumption does not apply”.

[3] The presumption was not rebutted in Landgraf v. USI Film Products, 511 U.S. 244 (1994), which contains a number of helpful statements on the subject.

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ICTR Rule Rule 6(C) ICTY Rule Rule 6(D)
Notion(s) Filing Case
Decision Regarding Pleadings in Appeal - 24.11.2005 BLAGOJEVIĆ & JOKIĆ

21.  Rule 6(D) of the Rules provides that amendments to the Rules “shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case”.  The Appeal Chamber considers that the same principle applies to changes in the procedural requirements set out by the Tribunal’s practice directions.  […]

[1] See Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-21-1-T, Decision in the Matter of Proceedings under Rule 15 bis, 24 September 2003, paras. 13-14; Prosecutor v. Blaškić, Case No. IT-95-14-AR108bis, Decision on Prosecution Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997, 12 August 1997, paras. 12-13.

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ICTR Rule Rule 6(C) ICTY Rule Rule 6(D) Other instruments ICTY Practice Directions