Musema was convicted to life imprisonment and transferred to the Republic of Mali for the enforcement of his sentence. In the context of the preparation for review proceedings, Musema seeks the Appeals Chamber's authorization for him to travel to The Hague in order to meet with his former Defence team and receive legal advice on potential grounds of review. Having considered that (i) an applicant for review may be assisted by a counsel in connection with a request for review at his own expense, at the expense of a third party, or on a pro bono basis, provided that the counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal, and that (ii) the counsel representing the applicant on such a basis would be able to obtain access to the trial and appellate record from the Registry or his client and would also be able to meet with his client at his place of detention at his own expense, the Appeals Chamber held:

p. 3: CONSIDERING that nothing in the Statute, Rules of Procedure and Evidence, or practice of the Tribunal provides for the transfer of a convicted person to another State for purposes of meeting with a counsel;

CONSIDERING that, pursuant to Article 4 of the Agreement, the transfer of a person whose sentence is being enforced in the Republic of Mali is envisioned only in the event that the Tribunal orders that the person appear as a witness before it; 

11. The Appeals Chamber considers it necessary to remind the Registrar of his obligation to ensure efficient communication with detainees and convicted persons, even after they have been transferred to a State in which their sentence is to be served, so as to ensure that they may exercise their rights provided for under the Statute and the Rules in full.[1]  

9. […] Where the convicted person is appealing, the Appeals Chamber will reverse only if it finds that no reasonable trier of fact could have made the particular finding of fact beyond reasonable doubt and the conviction relied on this finding. […]

7.       Neither the Statute nor the Rules explicitly regulate the provisional release of convicted persons awaiting transfer to an enforcement State.[1] The Appeals Chamber recalls, however, that, in certain limited circumstances, the ICTY has authorized provisional release to convicted persons prior to their transfer to the State where they would serve their sentence.[2] In doing so, the ICTY Appeals Chamber has relied on Rule 65(I) of the ICTY Rules of Procedure and Evidence (“ICTY Rules”) which mirrors Rule 68(I) of the Mechanism’s Rules.[3] The Appeals Chamber recalls that it is bound to interpret the Statute and the Rules in a manner consistent with the relevant jurisprudence of the ICTY.[4] Bearing this practice in mind, the Appeals Chamber considers that Rule 68 of the Rules applies, mutatis mutandis, to convicted persons who are in the custody of the Mechanism pending transfer to an enforcement State.

8.       Accordingly, provisional release may be granted if the Appeals Chamber is satisfied that: (i) the convicted person, if released, will surrender into detention at the conclusion of the fixed period; (ii) the convicted person, if released, will not pose a danger to any victim, witness, or other person; and (iii) special circumstances exist warranting such release.[5] These requirements must be considered cumulatively and the discretionary assessment of these requirements is to be made on a case-by-case basis. [6] Furthermore, “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[7]

63. [...] The Appeals Chamber emphasizes, however, that it will not lightly disturb on review a trial chamber’s credibility assessment, which was subjected to appellate review, based on a witness’s subsequent conduct occurring more than five years after their original testimony. To do so, would in fact provide incentives to convicted persons, or individuals close to them, to interfere with susceptible witnesses with the hope that it will not be discovered and the convicted person will be released or, if discovered, that the witnesses will then be so thoroughly discredited that their original testimony cannot be trusted and the convicted person will be released. To put it simply, an applicant bears a heavy burden in showing that the conduct of a witness, occurring significantly post trial testimony, taints their original testimony. [...]