Certification for interlocutory appeal

Notion(s) Filing Case
Decision on Amici Curiae Appeal - 20.01.2004 MILOŠEVIĆ Slobodan

4. […] The amici do not act as representatives of the Accused at trial, but solely as assistants to the Trial Chamber.[1] Not being a party to the proceedings, the amici are not entitled to use Rule 73 to bring an interlocutory appeal. […]

See also paragraph 5.

[1] See Prosecutor v. Milošević, IT-02-54-T, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, para. 3 (“the role of the Amicus Curiae would not be to represent the Accused, but to assist the court”); Transcript of the 30 August 2001 Status Conference, at 6–7.

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ICTR Rule Rule 73 ICTY Rule Rule 73
Notion(s) Filing Case
Appeal Judgement - 17.07.2008 STRUGAR Pavle

34. The Appeals Chamber is of the opinion that the issue of an accused’s fitness to stand trial is of such importance that it may generally be regarded as “an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial” under Rule 73(B) of the Rules.[1] Absent certain exceptions, such as when an accused’s submissions in support of his inability to stand trial are frivolous or manifestly without merit, the immediate resolution by the Appeals Chamber of any question of fitness would appear to be essential in that any decision that an accused is not fit to stand trial would necessarily materially advance the proceedings. Correspondingly, the prejudice to the accused resulting from continuing the trial while he or she is unfit to stand would amount to a miscarriage of justice.[2]

[1] The Appeals Chamber notes that in a different case, Trial Chamber III also denied a request for certification against a decision concerning the accused’s fitness to stand trial (Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Motion Re Fitness to Stand Trial, 10 March 2008 (confidential and ex parte) (“Stanišić Decision of 10 March 2008”)) on the grounds that the Defence in that case did not show that the criteria of Rule 73(B) of the Rules had been met - Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Defence Motion Requesting Certification for Leave to Appeal, 16 April 2008, paras 4-6.

[2] Cf. R. v. Podola [1959] Cr. App. 3 W.L.R. 718: “If a convicted person appeals against his conviction on the ground that the hearing of the preliminary issue was open to objection for error in law, so that he should never have been tried on the substantive charge at all, we are of opinion that this court has jurisdiction to entertain the appeal. […] [A] convicted person is entitled to contend […] that he 'should not have been given in charge to the jury as he was, or have been made the subject of any verdict at all, but should have had the proceedings stopped at the outset.’”

Ngatayi v. R [1980] 147 CLR 1, High Court of Australia, p. 14: “Before any trial on an issue of guilt, the issue of capacity is to be decided by a jury empanelled specially to try that issue of capacity […] The question of whether Mr Ngatayi was capable of understanding the proceedings was not an issue on the trial of his guilt. It is not satisfactory to excuse the holding of a trial at which this would be the issue because of conclusions based on evidence given at trial in which it was not an issue, Special leave to appeal should be granted. Because the statutory procedure intended for the applicant’s protection has not been followed, the appeal should be allowed.”

Kesavarajah v. R [1994], 181 CLR 230, High Court of Australia, pp. 246-248: “There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused’s fitness to be tried. Of course, that is not to exclude from the jury’s consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise. […] For our part, although the charge to the jury was almost complete, we do not consider that the appellant’s fitness to be tried became an immaterial consideration. […] Notwithstanding that the trial was drawing to its close, the possibility remained that the appellant might be called upon to participate in the proceedings to protect his own interests. […] Consequently, at this late stage of the trial, a serious question as to the appellant’s fitness to be tried again arose, requiring the determination of a jury. […] The object of s 393 is to ensure that a trial does not proceed in the case of an accused who is unfit to be tried; in other words, a person who is unfit to be tried should not be subject to trial resulting in the risk of his or her conviction. […] In the result, the appeal should be allowed, the conviction quashed and a new trial ordered.”

Malaysia, High Court of Muar, Public Prosecutor v. Misbah Bin Saat [1997] 3 MLJ 495, p. 504: “It should be observed that though s 342(1) of the CPC appears to cover a situation where the question of the accused's unsoundness of mind arises when the trial has already commenced, the inquiry by the court as to the fitness of the accused person ought to be determined forthwith when it comes to the knowledge of the court, and ought not to be postponed until after the close of the prosecution's case. It is the duty of the court either at the commencement of the trial, or at any stage during the course of the trial, when the question of fitness to stand trial is raised, to determine that issue immediately.”

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ICTR Rule Rule 73(B) ICTY Rule Rule 73(B)
Notion(s) Filing Case
Decision Regarding Leave to Amend Indictment - 12.02.2004 BIZIMUNGU et al. (Government II)

9.       […] The Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, dated 16 September 2002 (“Practice Direction”), provides that responses to interlocutory appeals governed by the Practice Direction are due ten days after the filing of the appeal.[1]  The Appeals Chamber notes, however, that the Practice Direction does not specifically provide a deadline for responses to appeals that follow certification of the Trial Chamber, although the Appeals Chamber has recently suggested that the response time of ten days should also apply to appeals following certification.[2]  The Appeals Chamber affirms this interpretation of the Practice Direction. […]

[1] Practice Direction, arts. II.2, III.8.

[2] Prosecutor v. Bagosora et al., No. ICTR-98-41-AR93, Decision on Application for Extension of Time to File Response to Interlocutory Appeal, 3 November 2003, pp. 2-3.

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Other instruments The Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal
Notion(s) Filing Case
Rule 98bis Appeal Decision - 04.10.2005 KRAJIŠNIK Momčilo

2. It has been the practice in this Tribunal that appeals against decisions of a Trial Chamber denying an accused’s Rule 98bis motion require certification of the Trial Chamber for the Appeals Chamber to be properly seised.[1] Motions to the Trial Chamber to acquit an accused at the end of the Prosecution case are other motions falling within the purview of Rule 73 of the Rules.

3. In this Appeal, however, the Appellant says that the amendment to Rule 98bis removes the requirement of certification.[2] The Appellant grounds this argument on the removal of the word “motion” from Rule 98bis. He says that under the previous Rule the accused would move the Trial Chamber by way of motion to enter a judgement of acquittal. The amended version of the Rule does not require the submission of a motion by a party. Instead it places an obligation on a Trial Chamber, “after hearing the oral submissions of the parties, to enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction”.[3] The Appellant claims that the practical effect of the amendment is that any appeal pursuant to the amended version of Rule 98bis falls within the scope of Rule 108.[4] That Rule states:

 A party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgment was pronounced, file a notice of appeal, setting forth the grounds. The Appellant shall also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought. The Appeals Chamber may, on good cause being shown by the motion, authorise a variation of the grounds of appeal.


5. The amendment to Rule 98bis was not intended to impinge upon the already established practice of the Tribunal that appeals against judgements denying acquittal require certification of a Trial Chamber. The Appellant is correct to point out that under the old Rule 98bis the accused was required to submit a motion to the Trial Chamber to enter a judgement of acquittal and that there is no such requirement under the amended Rule. However, the logical extension of the Appellant’s argument is that every time a Trial Chamber acts (or declines to act) propio motu an accused would have a right to appeal. That is clearly not the case. Under the Rules of the Tribunal the only time a party has a right of interlocutory appeal is under the specific grounds identified in Rule 72 or when another rule specifically so provides. All other interlocutory appeals have to go through the certification procedure set forth by Rule 73.

[1]           Prosecutor v Brđanin, Case No: IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004.

[2]           Prior to the amendment adopted on 8 December 2004, the Rule read: (A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85(A)(ii). See Rules, IT/32/Rev.32.

[3]           Amended Rule 98bis, as amended on 8 December 2004: At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgment of acquittal on any count if there is no evidence capable of supporting a conviction; Appeal [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR98bis.1, Appeal Against Judgment Pursuant to Rule 98bis, 16 September 2005], para. 7.

[4]           Appeal, para. 8.

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ICTR Rule Rule 73;
Rule 98 bis;
Rule 108
ICTY Rule Rule 73;
Rule 98 bis;
Rule 108
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

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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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