Motions to vacate

Notion(s) Filing Case
Mistrial Decision - 02.04.2014 STANIŠIĆ & ŽUPLJANIN

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

[1] Rule 107 of the Rules provides that the rules of procedure and evidence that govern proceedings in the Trial

Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber.

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ICTR Rule Rule 54;
Rule 107
ICTY Rule Rule 54;
Rule 107
Notion(s) Filing Case
Decision on Reconsideration - 24.07.2014 STANIŠIĆ & ŽUPLJANIN

15. [...] The Appeals Chamber emphasises that it will make its own assessment of the issues. Indeed, it will consider the arguments of the parties on whether, and to what extent, the finding regarding Judge Harhoff's partiality in the Šešelj Decisions has an impact on the present case. However, the Appeals Chamber will do so as part of the normal appellate process, and only after the parties have fully litigated the matter.1 In these circumstances, the Appeals Chamber considers that it was neither necessary nor appropriate to assess any impact of the Šešelj Decisions in the Impugned Decision. [...] 

1 The Appeals Chamber notes in this respect that the parties have been given an opportunity to fully litigate this matter in their additions to their appeal briefs. [...]

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Notion(s) Filing Case
Public Redacted Version of the "Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings" Filed on 30 April 2018 - 08.06.2018 MLADIĆ Ratko

Page 3:

CONSIDERING that the determination of Mladić’s request for a stay of the proceedings rests on the determination of his [REDACTED] fitness;[1]

CONSIDERING that fitness to participate in proceedings is related to Article 19(4)(b) of the Statute of the Mechanism (“Statute”), which stipulates that an accused shall be entitled to, inter alia, “communicate with counsel of his or her own choosing”;[2] 

RECALLING that the standard of fitness is that of meaningful participation, allowing the accused to exercise his or her fair trial rights to such a degree as to be able to participate effectively in and understand the essentials of the proceedings, and that an accused’s fitness should turn on whether his or her capacities, “viewed overall and in a reasonable and common sense manner, are at such a level that it is possible for him or her to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights” (“Standard of Fitness”);[3]

RECALLING that the Standard of Fitness applies mutatis mutandis to appeal proceedings as it involves an appellant’s fitness to exercise his or her right to consult with counsel concerning the preparation of appellate submissions;[4]

CONSIDERING that processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients;[5]

CONSIDERING that an appellant claiming to be unfit to participate in proceedings bears the burden of so proving by a preponderance of the evidence;[6]


[1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013 (“Popović et al. Decision of 16 January 2013”), paras. 21-30.

[2] See Article 19(4)(b) of the Statute (emphasis added). In this regard, the accused’s ability to participate is clearly contingent upon whether he or she possesses the mental capacity to understand the proceedings and the mental and/or physical capacity to communicate, and thus consult, with his or her counsel. Prosecutor v. Vujadin Popović et al., Case No. IT‑05‑88‑A, Public Redacted Version of 13 December 2010 Decision on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et al. Decision of 16 May 2011”), para. 11.

[3] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11; Strugar Appeal Judgement, paras. 41, 55.

[4] See Popović et al. Decision of 16 January 2013, para. 21; Popović et al. Decision of 16 May 2011, para. 11.

[5] See Popović et al. Decision of 16 January 2013, para. 22. See also Prosecutor v. Pavle Strugar, Case No. IT‑01‑42‑A, Judgement, 17 July 2008 (“Strugar Appeal Judgement”), paras. 55, 60. The ICTY Appeals Chamber in the Strugar case emphasized that “fitness to stand trial should be distinguished from fitness to represent oneself. An accused represented by counsel cannot be expected to have the same understanding of the material related to his case as a qualified and experienced lawyer. Even persons in good physical and mental health, but without advanced legal education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual nature as those brought before the Tribunal”. See Strugar Appeal Judgement, para. 60. See also Popović et al. Decision of 16 May 2011, para. 13, where the ICTY Appeals Chamber considered that counsel may file a notice of appeal on the appellant’s behalf, on the basis that a variation of the grounds of appeal might be sought later in light of the appellant’s alleged present incapacity.

[6] See Popović et al. Decision of 16 January 2013, para. 21. See also Strugar Appeal Judgement, para. 56.

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