Notion(s) Filing Case
Decision on Subpoenaing Tolimir - 13.11.2013 KARADŽIĆ Radovan

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.

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004 (“Milošević Appeal Decision”).

[2] Milošević Appeal Decision, para. 5.

[3] Milošević Appeal Decision, paras 4-5.

[4] Milošević Appeal Decision, para. 5.

[5] Brđanin Appeal Decision, paras 1-3, 6, 8-56.

[6] Appeal, paras 9-36.

[7] Response to the Appeal [Karadzic [sic] Brief on Appeal of Zdravko Tolimir, 17 June 2013], paras 25-31; Prosecution Submissions on Tolimir’s Request to Appeal the Impugned Decision [Prosecution Submission Regarding Tolimir Request to Suspend Subpoena and to Appeal Decision on Accused’s Motion to Subpoena Zdravko Tolimir, 24 May 2013], paras 4-6; Karadžić Submission on Tolimir’s Standing to Appeal the Impugned Decision [Memorandum on Standing of Witness to Seek Leave to Appeal Subpoena Decision, 23 May 2013], paras 1-3.  

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ICTR Rule Rule 2;
Rule 73(A);
Rule 73(B);
Rule 73(C)
ICTY Rule Rule 2;
Rule 73(C)
Notion(s) Filing Case
Decision on Clarification - 08.12.2006 NAHIMANA et al. (Media case)

10. [T]he Appeals Chamber recalls that a request for reconsideration of a decision in one case filed by an appellant who is not party to that case must fail for lack of standing to seek such reconsideration.[1][…]

[1] Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41-AR73, Decision on Motion for Reconsideration, 4 October 2006, paras 14-15. 

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Notion(s) Filing Case
Decision on Review - 17.12.2013 DELIĆ Rasim

CONSIDERING further that Counsel have no standing in their own right in circumstances where the appellant has died and the appellate proceedings before the Tribunal have been terminated;

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Notion(s) Filing Case
Decision on Inter Partes Proceedings in Rule 86 Matters - 09.03.2017 KARADŽIĆ Radovan

7.       As to Karadžić’s request for participation in the Rule 86 proceedings referred to in the Motion, the Appeals Chamber notes that the proceedings concern requests for variation of protective measures granted by the International Criminal Tribunal for the former Yugoslavia with regard to Prosecution witnesses. In these circumstances, when deciding whether to vary the existing protective measures, the Appeals Chamber considered it appropriate to seek information from the Prosecution. The Appeals Chamber did not consider it necessary to lift the ex parte status of the Rule 86 Applications in respect of Karadžić and invite him to make submissions because it did not consider that Karadžić would be in a position to supplement the witness protection information from the Witness Support and Protection Unit of the Mechanism or offer other information relevant to witness protection concerns of Prosecution witnesses. The Appeals Chamber emphasizes that the Rule 86 Applications concern the application of witness protection measures in domestic proceedings, not Karadžić’s appeal. For these reasons, the Appeals Chamber finds that Karadžić has failed to demonstrate that he has standing to participate in the Rule 86 proceedings identified in the Motion.

[1] In addition, the Appeals Chamber observes that the Practice Direction on the Procedure for Variation of Protective Measures allows for applications pursuant to Rule 86 of the Rules to be filed ex parte with regard to one or more of the parties in the proceedings, provided that the applicant provides an explanation of the good cause for filing the application ex parte. See Practice Direction on the Procedure for Variation of Protective Measures, para. 6. The Appeals Chamber is satisfied that the Rule 86 Applications evince good cause for their ex parte status as they contain information identifying domestic investigations and pre-trial proceedings.

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IRMCT Rule Rule 86