Certification following remand

Notion(s) Filing Case
Decision on Motions - 29.09.2009 KAREMERA et al.

19. The Appeals Chamber agrees that it retains jurisdiction over a matter which it remanded to a Trial Chamber where the question as to whether the Trial Chamber complied with its instructions is at issue. In the present case, a reading of the Decision on Remand on Continuation of Trial,[1] in particular of its outcome, clearly shows that the question as to whether the Trial Chamber complied with the Appeals Chamber’s instructions is not at issue. The Appeals Chamber remanded the matter of severance to the Trial Chamber “for further consideration consistent with [the] opinion [set forth in the Appeal Decision on Severance]”:[2] not only did the Trial Chamber further consider the remanded matter but it also found that there was no basis to sever Ngirumpatse from the proceedings. The instant case is, as a result, distinguishable from the ICTY decision Ngirumpatse relies on, where the ICTY Appeals Chamber concluded that it remained competent to address the appeal “to the extent” that the applicants were alleging that the Trial Chamber had failed to comply with the Appeals Chamber’s decision.[3] 

[1] [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Remand Regarding Continuation of Trial, 10 September 2009.]

[2] Appeal Decision on Severance [The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.16, Decision on Appeal Concerning the Severance of Matthieu Ngirumpatse, 19 June 2009], para. 25. See also ibid., paras. 18-24.

[3] Gotovina Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.3, Decision on Joint Request of Ante Gotovina and Mladen Markač for a Writ of Mandamus, 27 March 2009], para. 5: “To the extent that the Joint Defence now submits that the Trial Chamber failed to address the two errors identified by the Appeals Chamber and thus challenges the same issues for which leave to appeal the 9 October 2009 Decision was originally granted, the Appeals Chamber remains competent to address the Joint request”. The Appeals Chamber notes that in a prior decision, the ICTY Appeals Chamber ruled that certification was not required since it remained seized of the issues raised by the Prosecution in its initial appeal (The Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Following Trial Chamber’s Decision on Remand and Further Certification, 11 May 2007, para. 18). The Appeals Chamber stresses that the ICTY Appeals Chamber’s ruling in this case was case-specific and cannot be interpreted as a general statement of principle that certification is not required in case of remand.

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