Notion(s) Filing Case
Decision on Stay of Provisional Release - 29.09.2004 STANIŠIĆ & SIMATOVIĆ

23. The Appeals Chamber rejects the Prosecution’s argument that the appeal was incompetently certified by the Trial Chamber pursuant to Rule 73(B). The challenge made by Simatović and Stanišić is to the Trial Chamber’s grant of a stay in circumstances where the Prosecution failed to comply with the proper procedure of Rule 65(E). The main issue was whether the Trial Chamber erred in using Rule 127 to rectify the oversight of the Prosecution. In this circumstance, the Appeals Chamber does not accept the argument of the Prosecution that Rule 65 provides the only avenue of recourse to Simatović and Stanišić. While Rule 65(G) (iv) does provide an avenue for Simatović and Stanišić to seek release where a Trial Chamber has issued a stay of its decision ordering release, it does not operate to prevent an appeal of a stay decision issued by a Trial Chamber where the circumstances are such that the Trial Chamber determines that certification pursuant to Rule 73(B) is appropriate. [RULE 65(G)(iv) WAS DELETED IN THE AMENDMENTS OF THE RULES OF PROCEDURE AND EVIDENCE OF 21 JULY 2005.]

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
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Decision on Judicial Notice - 16.06.2006 KAREMERA et al.

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.

[1]16 September 2002 (“Practice Direction on Written Submissions”).

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B) Other instruments Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal (ICTR).
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Decision on Leave to Appeal (Prosecution) - 14.12.2001 GALIĆ Stanislav

The Prosecution sought leave to appeal from two orders made by the Trial Chamber, neither of which had been sought by Stanislav Gali}, the accused, but rather were made proprio motu.

2. (1) (b) The prosecution has therefore very properly raised for determination an issue as to whether Rule 73, which is concerned with decisions upon all motions other than preliminary motions under Rule 72, is the appropriate rule governing its right to appeal from these two orders.  Although no motion was made by Galić for the relief which was granted, this Bench considers that:

(i) the relief granted proprio motu was nevertheless relief which may have been sought pursuant to Rule 73,

(ii) the fact that it was granted proprio motu cannot reasonably be interpreted as denying the prosecution the right to seek leave to appeal from the orders made, and

(iii) the provisions of Rule 73(D) are accordingly the appropriate ones to apply to this application for leave to appeal.

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ICTY Rule Rule 73(D)
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Decision on Appeals of Decisions Rendered by a Single Judge - 09.08.2017 NIYITEGEKA Eliézer

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]

[1] Niyitegeka Decision of 20 June 2008 [Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008], paras. 13, 14.

[2] Compare ICTR Rules of 14 March 2008 with ICTR Rules of 1 October 2009. Specifically, the ICTR Rules of 1 October 2009. Specifically, the ICTR Rules of 1 October 2009 were amended to include Rule 75J, which states: “Decisions under paragraph (G) and, after the close of trial proceedings, paragraph (A), and under Rule 69, are subject to appeal directly to a full bench of the Appeals Chamber by either party. Appeals shall be filed within fifteen days of the filing of the impugned decision. A responding party shall, thereafter, file any response within ten days from the date of the filling of the appeal. The Appellant may file a reply within four days of the filing of the response. Failure to comply with these time limits shall constitute a waiver of the right to appeal.”

[3]See Kamuhanda Decision of 14 November 2016 [Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness]], para. 6. 

[4] Cf. Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016 (“Orić Decision of 17 February 2016”), para. 6. 

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ICTR Rule Rule 73;
Rule 75
ICTY Rule Rule 73;
Rule 75
IRMCT Rule Rule 73;
Rule 86
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Decision on a Motion for Reconsideration and Certification to Appeal Decision on a Request for Provisional Release - 08.06.2018 MLADIĆ Ratko

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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; 

[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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