Reconsideration of pre-appeal decisions

Notion(s) Filing Case
Decision on Motions to Present Additional Evidence - 07.07.2005 NALETILIĆ & MARTINOVIĆ
(IT-98-34-A)

20.    The Appeals Chamber endorses the position of the ICTR Appeals Chamber that “the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case as to all issues definitively decided by those decisions” in order to “allow certain issues to be finally resolved before proceedings continue on other issues.” The only exception to this principle is that the Appeals Chamber may “reconsider a previous interlocutory decision under its ‘inherent discretionary power’ to do so ‘if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.’” This exception allows the Appeals Chamber a “meaningful opportunity” to “correct any mistakes it has made.” The Appeals Chamber finds that this same principle and exception are applicable to its pre-appeal decisions on motions filed before the Appeals Chamber prior to the appeals hearing. […]

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[1] Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 202.

[2] Ibid., para. 203 (internal citation omitted).

[3] Ibid.

[4] Cf. Nahimana et al., Case No. ICTR-99-52-A, Decision on Jean-Bosco Baryagwiza’s Request for Reconsideration of Appeals Chamber Decision of 19 January 2005, 4 February 2005 (denying the Appellant’s request for reconsideration of the Appeals Chamber’s pre-appeal decision on appointment of counsel). The Appeals Chamber notes that the Rules and Practice Directions of the International Tribunal distinguish between interlocutory appeal and pre-appeal decisions by the Appeals Chamber. Interlocutory appeals are generally filed before the Appeals Chamber under Rules 72 and 73 when a case is at trial against a Trial Chamber’s interlocutory decision prior to the issuance of the trial judgement. On the other hand, pre-appeal decisions are those made on motions, such as Rule 115 motions, filed before the Appeals Chamber when a case is already on appeal and pending before the Appeals Chamber. See generally Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT/155 Rev. 2), 21 February 2005.

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Notion(s) Filing Case
Decision on a Motion for Reconsideration and Certification to Appeal Decision on a Request for Provisional Release - 08.06.2018 MLADIĆ Ratko
(MICT-13-56-A)

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RECALLING that the Appeals Chamber treats its pre-appeal and interlocutory decisions as binding in ongoing proceedings as to all issues decided therein, and that, in the interests of justice, this principle forecloses re-litigation of such issues;[1]

OBSERVING that the only exception to this principle is where the Appeals Chamber may reconsider its prior decision;[2]

CONSIDERING, therefore, that there is no legal basis for appealing an order or a decision of the Appeals Chamber;

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FINDING, therefore that, Mladić’s request for certification to appeal the Impugned Decision to be without merit; 

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[1] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 127; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Naletilić’s Amended Second Rule 115 Motion and Third Rule 115 Motion to Present Additional Evidence, 7 July 2005 (“Naletilić and Martinović Decision”), para. 20; Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005 (“Kajelijeli Appeal Judgement”), para. 202.

[2] See Nyiramasuhuko et al. Appeal Judgement, para. 127; Naletilić and Martinović Decision, para. 20; Kajelijeli Appeal Judgement, para. 203. In a tribunal such as the Mechanism with only one tier of appellate review, the exception providing for reconsideration of appeal decisions is important to give the Appeals Chamber a meaningful opportunity to correct any mistakes it may have made. See Naletilić and Martinović Decision, para. 20; Kajelijeli Appeal Judgement, para. 203.

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