The Appeals Chamber discussed for the first time whether the provisions of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal[1] governing the content of a response apply identically to Interlocutory appeals “as of right and interlocutory appeals “with leave to appeal”. It held (Decision, footnote 7):

The Practice Direction on Written Submissions distinguishes between appeals that lie “as of right” and those that lie “only with the leave of a bench of three judges of the Appeals Chamber”.  Appeals that have been certified by a Trial Chamber—pursuant to a procedure established by amendment to the Rules after the Practice Direction’s issuance—are not specifically mentioned, but the Appeals Chamber considers that, after the required certification has been issued, they lie “as of right”, in that they are authorized by Rule 73(B) of the Rules and the appellant need not apply to the Appeals Chamber for further leave to file them.  In any event, the provisions of the Practice Direction governing the content of a response are the same for all categories of interlocutory appeal.

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. The Appeals Chamber recalls that the Appeals Chamber of the ICTR had ruled in Niyitegeka’s case that Rule 73 of the ICTR Rules concerning the requirement of certification prior to appeal applies only to interlocutory appeals during an applicant’s proceedings before a trial chamber and had held that an applicant is entitled to appeal as of right a decision pursuant to Rule 75(G) of the ICTR Rules rendered by another trial chamber after the close of that applicant’s trial and appeal proceedings.[1] Subsequently, Rule 75 of the ICTR Rules – the equivalent of Rule 86 of the Rules – was amended to provide for an express right of appeal of decisions taken under that rule when issued after the conclusion of an applicant’s trial proceedings.[2] However, Rule 86 of the Rules does not provide the same express right of appeal of decisions issued under it after the close of trial proceedings. In addition, only after Niyitegeka filed his Request for Certification did the Appeals Chamber clarify that the requirement of certification to appeal is not applicable to decisions under Rule 86 of the Rules rendered after the close of an applicant’s trial and appeal proceedings and that there lies a right of appeal in such circumstances.[3]

[…]

12.     […] [T]he Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[4]