Miscarriage of justice

Notion(s) Filing Case
Review Decision - 14.07.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 3 and 4, the Appeals Chamber stated:

CONSIDERING FURTHER that, although the Panić New Fact was discoverable through due diligence by Šljivančanin’s counsel, review of the Mrkšić and Šljivančanin Appeal Judgement is necessary because the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice;

[1] Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and Šljivančanin Appeal Judgement”), para. 62.

[2] Application on Behalf of Veselin Šljivančanin for Review of the Appeals Chamber Judgment of 5 May 2009, 28 January 2010.

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ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Review Judgement - 08.12.2010 ŠLJIVANČANIN Veselin
(IT-95-13/1-R.1)

32. The Appeals Chamber recalls its prior conclusion that “the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice”.[1] In this respect, the Appeals Chamber notes that the Additional Conviction was premised on both a delineation of Šljivančanin’s duty to protect the Prisoners,[2] and the Appeals Chamber’s finding that Šljivančanin possessed the mens rea to aid and abet murder as a violation of the laws or customs of war.[3] The Appeals Chamber further observes that its finding concerning Šljivančanin’s mens rea rested on the conclusion that the only reasonable interpretation from the available circumstantial evidence was that Mrkšić informed Šljivančanin of the Withdrawal Order during the Conversation. The Panić New Fact renders this latter inference untenable, and thus undermines the Mrkšić and Šljivančanin Appeal Judgement’s finding that Šljivančanin was guilty of aiding and abetting murder as a violation of the laws or customs of war.[4] Accordingly, the Appeals Chamber vacates the Additional Conviction.[5]

See also para. 31.

[1] [Decision with Respect to Veselin Šljivančanin’s Application for Review, 14 July 2010], p. 4.

[2] See [Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Judgement, 5 May 2009 (“Mrkšić and [ljivančanin Appeal Judgement”)], para. 74. The Appeals Chamber observes that this conclusion of the Mrkšić and [ljivančanin Appeal Judgement is not at issue in these review proceedings.

[3] Id., para. 63. See also id., para. 75.

[4] Id., para. 103, p. 169.

[5] In light of this determination, the Appeals Chamber will not entertain Šljivančanin’s request to call his own military expert. See [Reply on Behalf of Veselin [ljivančanin to Prosecution Response, 3 November 2010], para. 32.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Decision on Review - 19.03.2009 NALETILIĆ Mladen
(IT-98-34-R)

The Appeals Chamber addressed the Applicant’s submission that he was unlawfully detained in Croatia before being brought before the Tribunal and that this should have been taken into account as a mitigating factor in his sentence. After having found that this allegation did not constitute a new fact, the Appeals Chamber considered whether ignoring this allegation would amount to a miscarriage of justice and concluded for the negative.

31. Neither does the Appeals Chamber consider that ignoring the alleged new facts submitted by the Applicant would result in a miscarriage of justice. The Appeals Chamber finds that none of the alleged new facts submitted by the Applicant demonstrate that his detention by the Croatian authorities prior to 18 October 1999 should be impugned to the International Tribunal. The Trial Chamber was thus not under the obligation to take that detention into account as a mitigating factor in sentencing. In this regard, the Appeals Chamber notes that in a letter dated 21 May 1999, the Croatian authorities informed the International Tribunal that the Applicant had been detained in Croatia on the basis of serious charges unrelated to the crimes over which the International Tribunal has jurisdiction.[1] The Appeals Chamber considers that the Applicant has failed to substantiate his claims to the contrary.

[1] Letter, Prof. Zvonimir Separović, President of the Council for the Cooperation with ICTY, Republic of Croatia Ministry of Justice, to Ms. Dorothee de Sampayo-Garrido Nijgh, Registrar, International Tribunal, 21 May 1999.

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ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120;
Rule 121
ICTY Rule Rule 119;
Rule 120
Notion(s) Filing Case
Decision on Review - 31.03.2000 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

65.     In the wholly exceptional circumstances of this case, and in the face of a possible miscarriage of justice, the Chamber construes the condition laid down in Rule 120, that the fact be unknown to the moving party at the time of the proceedings before a Chamber, and not discoverable through the exercise of due diligence, as directory in nature. In adopting such a position, the Chamber has regard to the circumstance that the Statute itself does not speak to this issue.

66.     There is precedent for taking such an approach. Other reviewing courts, presented with facts which would clearly have altered an earlier decision, have felt bound by the interests of justice to take these into account, even when the usual requirements of due diligence and unavailability were not strictly satisfied. While it is not in the interests of justice that parties be encouraged to proceed in a less than diligent manner, “courts cannot close their eyes to injustice on account of the facility of abuse”[1].

[1] Berggren v Mutual Life Insurance Co., 231 Mass. at 177. The full passage reads:

“The mischief naturally flowing from retrials based upon the discovery of alleged new evidence leads to the establishment of a somewhat stringent practice against granting such motions unless upon a survey of the whole case a miscarriage of justice is likely to result if a new trial is denied. This is the fundamental test, in aid of which most if not all the rules upon the matter from time to time alluded to have been formulated. Ease in obtaining new trials would offer temptations to the securing of fresh evidence to supply former deficiencies. But courts cannot close "their eyes to injustice on account of facility of abuse’."

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ICTR Statute Article 25 ICTY Statute Article 25 ICTR Rule Rule 120
Rule 121
ICTY Rule Rule 119
Rule 120
Notion(s) Filing Case
Decision on Interlocutory Appeal - 26.02.2002 KRAJIŠNIK Momčilo
(IT-00-39&40-AR73.2)

20. The issue which the Appeals Chamber must now determine is whether the duty judge, had he not made the erroneous finding in relation to urgency, would have proceeded to grant the application for provisional release.  If the application would have been dismissed in any event, there can be no miscarriage of justice because it had been dismissed upon a wrong basis.  If a Trial Chamber acquits an accused upon a wrong basis (even a grossly unfair basis), but should have done so on another basis, there has been no miscarriage of justice, and the acquittal would not be reversed.[1]  In determining this issue, the Appeals Chamber is entitled to have regard to the events which have occurred following the duty Judge’s decision.

[1] Statute of the Tribunal, Article 25.1(b).

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