2. The Appeal purports to proceed as an interlocutory appeal as of right under Rule 72(B)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), which states that preliminary motions are without interlocutory appeal, except “in the case of motions challenging jurisdiction.”[1] Rule 72(D) of the Rules expands on this provision by stating that, for purposes of Rule 72(B)(i) of the Rules, a “motion challenging jurisdiction refers exclusively to a motion which challenges an indictment on the ground that it does not relate to” the personal, territorial or temporal jurisdiction of the Tribunal, or to any of the violations enumerated in Articles 2, 3, 4, 5 and 7 of the Statute.

7. The decisions of the Appeals Chamber, as well as the decisions of the Appeals Chamber of the International Criminal Tribunal for Rwanda under an identical provision of that Tribunal’s Rules of Procedure and Evidence, make clear that an appeal concerning an issue whether a charge in an indictment falls within a statutory grant of jurisdiction meets the requirements of Rule 72(D) of the Rules and may proceed.[2] This Appeal satisfies the requirements of Rule 72(D)(iv) of the Rules and may therefore proceed.

18. [I]n spite of the Trial Chamber’s Certification Decision, certification was not required in this case. The Appeals Chamber remained seized of the issues raised by the Prosecution in its Interlocutory Appeal having remanded the Impugned Decision for the purpose of obtaining the Trial Chamber’s renewed assessment and further substantiation of the reasoning underpinning its decision to reduce the Prosecution’s remaining allocated time for the presentation of its case.[1]

19. Thus, regardless of the Certification Decision, the Appeals Chamber considers itself seized of the original Interlocutory Appeal as well as of the Interlocutory Appeal Following Remand in which the Prosecution takes further issue with the sufficiency of the reasoning provided by the Trial Chamber in the Impugned Decision on Remand in support of maintaining the Impugned Decision. […]

35.     […] [T]he Appeals Chamber turns to the argument that it may order the termination of proceedings and release of an accused after interlocutory review of a denial of an accused’s rights, including during appellate proceedings. The doctrine of “abuse of process” allows a court to decline to exercise jurisdiction either because it will be impossible to give the accused a fair trial or because it offends the court’s sense of justice and propriety to try the accused in the circumstances of a particular case.[1] The question in cases of abuse of process is not whether it is “necessary” for a court to issue an interlocutory decision terminating proceedings (as for Rule 54 of the Rules examined above), but whether a court should continue to exercise jurisdiction over a case in light of serious and egregious violations of the accused’s rights that would prove detrimental to the court’s integrity.[2] The discretionary power of a court to stay or terminate proceedings by reason of abuse of process applies during the trial phase of a case, and is mostly concerned with prosecutorial misconduct, since its main purposes are to prevent wrongful convictions and preserve the integrity of the judicial system.[3] An allegation of partiality of a trial judge is a ground to appeal a conviction on the basis that it is unsafe.[4]

See also para. 22.

5. The Appeals Chamber considers that the issue in the present case is not whether it is competent to issue a writ of mandamus but rather whether the Trial Chamber complied with the Appeals Chamber’s Decision. It is established case-law before the International Tribunal that “a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers”.[1] When remanding the 9 October 2008 Decision to the Trial Chamber for reconsideration, the Appeals Chamber did not request that the Trial Chamber review its entire decision, but rather that it review it in light of the two errors identified by the Appeals Chamber. 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 2008 Decision was originally granted, the Appeals Chamber remains competent to address the Joint Request.[2]

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] 

The Appellant requested that the Appeals Chamber also take into account arguments and references included in the motion and reply he had filed before the Trial Chamber. In light of the following considerations, the Appeals Chamber rejected the Appellant’s request.

13. The Appeals Chamber notes that paragraph 9(d) of the Practice Direction states that an interlocutory appeal shall contain “the grounds on which the appeal is made”. It further notes that, in the well-established practice of the Tribunal, appellants substantiate their arguments in support of each ground of appeal in their appeal briefs and not by reference to submissions made elsewhere. In addition, the Appeals Chamber recalls that, “[o]n appeal, a party may not merely repeat arguments that did not succeed at trial, unless the party can demonstrate that the Trial Chamber’s rejection of them constituted such an error as to warrant the intervention of the Appeals Chamber”. It further considers that the Appeal and the Reply autonomously contain the grounds on which the appeal is made and are not defective in any respect. Accordingly, while the Appeals Chamber will take into consideration the Preliminary Motion and Preliminary Reply as part of the record of the case, the Appeals Chamber will not treat the arguments put forward in the Preliminary Motion and Preliminary Reply as incorporated in the Appeal.

9.       Rule 73(C) of the Rules, pursuant to which this appeal is brought, entitles a “party” to appeal a trial chamber’s decision after having requested and obtained certification. Rule 2 of the Rules defines “parties” as “[t]he Prosecutor and the Defence”. The Impugned Decision was issued in the Karadžić case and Tolimir is neither part of the Prosecution nor the Defence in that case. Thus, sensu stricto, he is not entitled to use Rule 73(C) of the Rules to bring an interlocutory appeal.

10.     However, the Appeals Chamber recalls the Milošević Appeal Decision[1] in which it decided to consider an interlocutory appeal filed by amici curiae in that case.[2] The Appeals Chamber determined that, although amici curiae operate in proceedings “solely as assistants” to the court and not as actual parties, it would nonetheless adjudicate the amici curiae’s interlocutory appeal on the basis that, in the circumstances of the particular case, consideration of the appeal served the interests of justice.[3] Additional factors underlying the Appeals Chamber’s decision to adjudicate the matter included: (i) the existence of an alignment of interests between the amici curiae and the accused in that case; (ii) the fact that consideration of the appeal would not infringe the accused’s interests; (iii) that there was no “danger of unfairness to the Prosecution”; and (iv) that the Prosecution did not oppose consideration of the appeal and in fact expressed “its willingness to accept the amici as a party for these purposes”.[4] The Appeals Chamber also notes the Brđanin Appeal Decision in which it adjudicated an interlocutory appeal, filed by a non-party to the proceedings, against a subpoena decision.[5]

11.     The Appeal raises concerns regarding, inter alia, Tolimir’s right against self-incrimination under Article 21(4)(g) of the Statute of the Tribunal (“Statute”).[6] Neither Karadžić nor the Prosecution have objected to the filing of the Appeal and in fact both have indicated their willingness to accept Tolimir as having standing to appeal the Impugned Decision.[7] Thus, neither the interests of Karadžić nor the Prosecution stand to be compromised by adjudication of the Appeal. In these circumstances and emphasising in particular that the Appeal raises concerns about a fundamental right of an accused before the Tribunal, the Appeals Chamber finds that consideration of the Appeal serves the interests of justice.

The Appeals Chamber found that, when the Trial Chamber does not expressly limit its certification to appeal a decision to a particular issue, the Appeals Chamber may decide to resolve other issues, provided that they “materially advance the proceedings” and that the purported error is not “inconsequential”.

The relevant paragraphs read:

16. It is not illogical or impermissible for a Trial Chamber to grant certification to appeal an entire decision on the basis of one issue which, in its view, satisfies the Rule 73(B) criteria.  To the contrary, such an approach is consistent with the text of that Rule, which requires only that the Trial Chamber identify “an issue” satisfying certain criteria in order to certify interlocutory review of a decision, but does not state that the review must be limited to the identified issue.  Thus, although the Appeals Chamber has found that the Trial Chamber can limit review to the issue(s) that it has found to specifically satisfy the Rule 73(B) criteria, it is not obligated to do so.

17. This approach is consistent with Rule 73’s objective of advancing the fair and expeditious conduct of the proceedings.  Interlocutory appeals under Rule 73 interrupt the continuity of trial proceedings and so should only be allowed when there is a significant advantage to doing so—that is, when, in the Trial Chamber’s judgement, there is an important issue meriting immediate resolution by the Appeals Chamber.  But once one such issue is identified and an interlocutory appeal is certified, allowing the Appeals Chamber to resolve related issues at the same time may cause little additional interruption and may ultimately serve the goals of fairness and expeditiousness.

21. […] the Appeals Chamber will not, in considering an interlocutory appeal that extends beyond the issues that the Trial Chamber found to specifically satisfy the Rule 73(B) standard, address matters in which its consideration will not, in fact, materially advance the proceedings.  The Appeals Chamber notes the related argument of Mr. Karemera that the Prosecution has as a general matter failed to demonstrate errors invalidating the Trial Chamber’s decision or occasioning a miscarriage of justice within the meaning of Article 24(1) of the Statute.[1]  Although the Article 24(1) standard applies specifically to post-trial appeals from final Trial Chamber decisions, it is likewise true that in interlocutory appeals, even where certification under Rule 73(B) has been granted, it is not the Appeals Chamber’s practice to pass on purported errors that are inconsequential.[2]  The Appeals Chamber will keep this standard in mind in addressing the individual allegations of error raised by the Prosecution.

122. This Appeals Chamber is of the view that there is no reason why interlocutory decisions of the Appeals Chamber should be considered, as a matter of principle, as having any lesser status than a final decision on appeal.  The purpose of an appeal, whether on an interlocutory or on a final basis, is to determine the issues raised with finality.[1]

14. In addition, the Appellant requests an oral hearing for the purpose of advancing arguments relating to this ground of appeal. In view of the extensive submissions made and filed by the parties before both the Trial Chamber and the Appeals Chamber and the substantial discussion in the First and Second Impugned Decisions of the issues now under appeal, the Appeals Chamber does not consider it necessary to hold an oral hearing on the Appeal.

4. While the Prosecution relies upon the authority of Šainović and Ojdanić as supporting its procedural right to bring a Rule 115 application, the observation made by the Appeals Chamber in that decision is not a clear statement that Rule 115 applies to interlocutory appeals made pursuant to Rule 65. However, the Appeals Chamber notes that past practice in previous decisions by the Appeals Chamber clearly indicates that Rule 115[1] is to be applied to interlocutory appeals made pursuant to Rule 65[2]. In each of those decisions, the Appeals Chamber proceeded on the basis that additional evidence could be admissible upon an appeal pursuant to Rule 65.[3]

5. A plain reading of the Rule suggests that the mechanism of additional evidence on appeal is only available on an appeal from judgment and is not applicable to interlocutory appeals. Rule 115(A), which specifies the time limits in which to file a Rule 115 application speaks of “the date of the judgment,” [NOTE: THE WORDS “THE DATE OF JUDGEMENT” DO NOT APPEAR IN RULE 115(A) OF THE ICTY RULES, AS AMENDED ON 21 JULY 2005.] and Rule 115(B), which specifies the test to be applied for that additional evidence to be admissible, speaks of the Appeals Chamber considering that evidence in order to arrive at a “final judgment”.

6. Further, Rule 107, which provides that:

The rules of procedure and evidence that govern proceedings in the Trial Chamber shall apply mutatis mutandis to proceedings in the Appeals Chamber.

is of no assistance here as the Prosecution is not seeking to apply a rule that applies to proceedings in a Trial Chamber to an appellate proceeding, but to apply an appellate proceeding applicable to appeals from judgment to an interlocutory appeal.

7. While the Rule does not on its face appear to be applicable to Rule 65 interlocutory appeals, the Appeals Chamber has, as noted above, considered it to be applicable in previous decisions. The Appeals Chamber finds that justification for this practice is to be found in the appellate function in reviewing Trial Chamber decisions for error. Where the Appeals Chamber does find an error in a Trial Chamber decision, and where it is sufficiently apprised of the issues in the case, the Appeals Chamber is free to substitute its own decision rather than sending it back to the Trial Chamber for reconsideration.[4] Where the Appeals Chamber adopts this approach to an error of the Trial Chamber, it is appropriate for the Appeals Chamber to receive evidence that was not available before the Trial Chamber.

9. The Appeals Chamber observes that the Rules of Procedure and Evidence of the Mechanism (“Rules”) do not provide for interlocutory appeal as of right of a decision taken by a trial chamber concerning the admission of evidence. Furthermore, pursuant to Rule 80(B) of the Rules, decisions by the trial chamber, other than those for which appeal as of right is provided in the Rules, are without interlocutory appeal save with certification by the trial chamber.[1] Consequently, appellate review of decisions related to the admission of evidence is limited to where the issue arises in an interlocutory appeal certified by a trial chamber or in an appeal against a conviction or acquittal.[2]