19. […] Therefore, it is apparent that the Motion of 6 March 2006 is devoid of any arguments in relation to the requirements prescribed by Rule 108 of the Rules and the jurisprudence of the Appeals Chamber. In this respect, the Appeals Chamber finds that the Motion of 6 March 2006 is frivolous.

51. […] The Appeals Chamber reiterates that unjustified amendments would result in appellants being free to change their appeal strategy after they have had the advantage of reviewing the arguments in a response brief, interfering with the expeditious administration of justice and prejudicing the other parties to the case, […] which is unacceptable. In this sense, the Appeals Chamber finds the Motion of 5 July 2006 frivolous.

56. For the foregoing reasons, the Appeals Chamber [...], FINDS both Motions to be frivolous […] and imposes sanctions against the Appellant’s Counsel, pursuant to Rule 73(F), in the form of non-payment of fees associated with both Motions; and GRANTS the Motion of 7 July 2006.

26. The Appeals Chamber recalls that neither the Statute nor the Rules provide a right of appeal from sanctions imposed pursuant to Rule 46 of the Rules.[1] Accordingly, a Trial Chamber’s exercise of its discretion under that rule is not subject to review by the Appeals Chamber. However, in the instant case, the Counsel not only challenges the particulars of the Trial Chamber’s exercise of its discretion to impose the impugned sanctions, but also questions the Trial Chamber’s jurisdiction to impose pecuniary sanctions at all under Rule 46 of the Rules. While the Appeals Chamber has no jurisdiction to entertain the appeal from sanctions per se, it does have jurisdiction to consider this latter issue.

27. Rule 46(A) does not explicitly specify the scope for sanctions applied under its authority. The measures identified in paragraphs B and C of Rule 46 are only specific examples of potential means by which a Chamber may sanction a counsel. Nonetheless, the absence of explicit limitations on the sanctions deployed under Rule 46 of the Rules does not mean that the Trial Chamber is free to pronounce any disciplinary measures it deems appropriate.

28. In order to identify the scope of sanctions permitted under Rule 46 of the Rules, it is necessary to consider the rule’s context. The text of Rule 46 itself contains no reference to pecuniary sanctions, even though it does list several potential disciplinary measures. Similarly, the equivalent ICTY rule addressing “Misconduct of Counsel” explicitly limits sanctions to particular penalties which do not include fines.[2] By contrast, other rules, such as Rule 77(G) of the Rules (addressing contempt of the Tribunal), specifically provide for fines in cases of misconduct by individuals, including attorneys.[3] Likewise, Rule 73(F) of the Rules provides that a Chamber may order the non-payment of fees if a counsel brings a motion that is frivolous or an abuse of process.  

29. This examination demonstrates that pecuniary sanctions are not within the permitted scope of penalties that may be applied under Rule 46 of the Rules. The text of the rule itself does not refer to pecuniary sanctions, while provisions such as Rule 77(G) of the Rules provide the means for punishing an attorney’s misconduct through fines where that is deemed appropriate.[4] Given the absence of clear parameters regarding the scope of sanctions permitted under Rule 46, and the context of the Rules, the Appeals Chamber finds that the Trial Chamber acted outside its jurisdiction in imposing pecuniary sanctions on the Counsel pursuant to Rule 46(A) of the Rules.