5. Rule 108 of the Rules provides that the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in a notice of appeal. Motions for variation of the notice of appeal should be submitted as soon as possible after identifying the new alleged error of the Trial Chamber to be included in the notice of appeal or after discovering any other basis for seeking variation of the notice of appeal.[1] Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each amendment, the ‘good cause’ requirement of Rule 108 is satisfied”.[2] It is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[3] The “good cause” requirement under Rule 108 encompasses both good reason for including the new or amended grounds of appeal sought and good reason as to why those grounds were not included in the original notice of appeal.[4]

6. In its previous determinations that proposed variations to the notice of appeal may be authorized within the scope of the good cause requirement, the Appeals Chamber has considered the following factors to be of relevance: (i) the variation is minor but clarifies the notice of appeal without affecting its content;[5] (ii) the opposing party has not opposed the variation or would not be prejudiced by it; (iii) the variation would bring the notice of appeal into conformity with the appeal brief; (iv) the variation does not unduly delay the appeal proceedings; or (v) the variation could be of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[6]

8. Nevertheless, the Appeals Chamber is not satisfied that there is good cause to allow Morina to amend his Notice of Appeal and as a corollary his Appellant’s brief to add the proposed new ground of appeal. The briefing in this case is complete, and the proposed variation would therefore unduly delay the appeal proceedings by requiring additional submissions on this point from the parties. Moreover, Morina fails to substantiate his claim that by excluding it, this would equate to a miscarriage of justice. In this sense, he has not identified any aspect of his criminal responsibility or his sentence that is implicated by the alleged error. Rather, his concern is mainly for his professional reputation[7] because, in his view, the language employed by the Trial Judgement leaves the impression that he was arrested by force. This does not amount to good cause.

13. […] The Appeals Chamber recalls that pursuant to Rule 108 of the Rules, the Appeals Chamber “may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in the notice of appeal. Such motions should be submitted “as soon as possible after identifying the new alleged error”[1] of the Trial Chamber or after discovering any other basis for seeking a variation to the notice of appeal. Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the ‘good cause’ requirement of Rule 108 is satisfied.”[2]

17. The Appeals Chamber may authorise leave to amend a notice of appeal upon the showing of “good cause”. The concept of “good cause” covers both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] The “good cause” requirement is assessed on a case by case basis,[2] and several factors can be taken into account.[3] The Appeals Chamber has summarized these factors as follows:

These have included the fact that the variation is so minor that it does not affect the content of the notice of appeal; the fact that the opposing party would not be prejudiced by the variation or has not objected to it; and the fact that the variation would bring the notice of appeal into conformity with the appeal brief. Where the appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” might also, under some circumstances, be established. The Appeals Chamber notes that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted. [4]

18. The Appeals Chamber recalls that the good cause requirement is to be interpreted more restrictively at later stages in the appeal proceedings when variations to the grounds of appeal may substantially affect the efficient administration of justice.[5] 

In the present case, the Appeals Chamber was seized of a motion to reorganise the grounds of appeal listed in Tarčulovski’s Appeal Brief in an order different from that set forth in his Notice of Appeal. Tarčulovski contended that good cause existed to amend his Notice of Appeal because two of his current counsels were appointed after it was filed. At the time the motion was filed, Tarčulovski believed that his Defence team had just received a fresh perspective on the significance of the alleged errors committed by the Trial Chamber because his entire team was then able to review the extensive record and transcript in the case.

25. The Appeals Chamber considers that, in the circumstances of this case, the change of counsel constitutes good reason for showing why those grounds were not included in the original Notice of Appeal. In addition, it takes note of the fact that the proposed variation to the Notice of Appeal would bring it into conformity with the Appeal Brief, that any potential prejudice caused to the Prosecution is cured through the Appeals Chamber’s decision to grant the Prosecution’s request for an extension of time to file its Respondent’s Brief,[6] and that the inclusion of these grounds of appeal in an amended notice of appeal would not unduly interfere with the expeditious administration of justice as these arguments do not reflect a change to an appeal strategy by Tarčulovski subsequent to reading the Prosecution’s Respondent’s brief, which has not yet been filed.[7] Therefore, the Appeals Chamber finds that Tarčulovski has shown good cause for amending his notice of appeal.

9. The Appeals Chamber recalls that in granting extensions of time for the filing of appellants’ notices of appeal, the Pre-Appeal Judge in the present case held, inter alia, that:

[…] Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules […][1]

10. The Appeals Chamber considers that pending the receipt of the translation of the Trial Judgement, Pavković has been trying to understand the latter with the assistance of his defence team so that he can effectively contribute to the Appeal Brief.[2] Pavković asserts that the requested amendment of his Notice of Appeal became apparent to his defence team only as a result of this review process.[3] The Appeals Chamber notes that the variation sought concerns an alleged error of fact in the Trial Chamber’s finding that as a member of the Joint Command, Pavković “by-passed the chain of command.”[4] As such, it can be reasonably inferred that Pavković’s understanding of the Trial Judgement has been central to the identification of the alleged error, and that the unavailability of the B/C/S translation of the Trial Judgement at the time the Notice of Appeal was filed had prevented him from instructing his counsel to that effect.[5] The Appeals Chamber is therefore satisfied that good reason for not including the alleged error in the Notice of Appeal has been shown.

Cf. Ojdanić Decision on Amending Notice of Appeal, refusing to recognize good cause for not including the newly alleged error of law in the original notice of appeal.

6.  Rule 108 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) states that the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal.”  In addition, paragraph 12 of Practice Direction IT/155/Rev. 3 provides:

Where an appeal has been filed from a judgement, a party wishing to move the Appeals Chamber for a specific ruling or relief ("moving party") shall file, in accordance with the Rules, a motion containing:

(a) the precise ruling or relief sought;

(b) the specific provision of the Rules under which the ruling or relief is sought;

(c) the grounds on which the ruling or relief is sought.

7.  Together, these requirements mean that a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each such amendment, the “good cause” requirement of Rule 108 is satisfied. […] 

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RECALLING that the filing of a notice of appeal marks the commencement of the appeal proceedings in a case, and, since the time limits for the filing of subsequent briefs are calculated from the date on which the notice of appeal is filed, any delay at such an early stage will affect subsequent filings;[1]

RECALLING FURTHER that parties may have the opportunity, after the filing of the notice of appeal, to request variation of their grounds of appeal provided that they show good cause under Rule 133 of the Rules;[2]