p. 3: NOTING that Pavković’s and Lukić’s Motions seek authorization to file their notices of appeal within 60 days from the filing of the B/C/S translation of the Trial Judgement on the ground that neither of them understand English;[1]

CONSIDERING that Counsel for Pavković and Lukić work in English;

RECALLING that, pursuant to Rule 108 of the Rules, the Appeals Chamber may, after the filing of the notice of appeal by a party and on good cause being shown by motion, authorize a variation of grounds of appeal;

CONSIDERING therefore that Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules;

FURTHER CONSIDERING that it would be unreasonable to delay the appellate proceedings until the filing of the B/C/S translation of the Trial Judgement;

FINDING therefore that Pavković and Lukić have not shown good cause for the requested extension;

pp. 3-4: CONSIDERING that the length of the Trial Judgement is unprecedented and that, in conjunction with the other factors referred by the Joint Motion, this case raises issues of significant complexity;[2]

CONSIDERING that it is in the interests of justice to ensure that the parties have sufficient time to prepare meaningful notices of appeal in full conformity with the applicable provisions;

FINDING that good cause exists for granting an extension on that basis[.]

See also, Decision on Joint Defence Motion Seeking Extension of Time to File Appeal Briefs, 29 June 2009.

After the Appeal Hearing was held in this case, Muvunyi requested that the Appeals Chamber consider the Appeal Judgement in Prosecutor v. Hadžihasanović, rendered on 22 April 2008, as it represented new authority on superior responsibility that was applicable in assessing Muvunyi’s liability.

6. The Appeals Chamber may consider post-hearing submissions if they relate to a variation of the grounds of appeal[1] or if it has made a specific request to the parties for further information.[2] Muvunyi argues that a new jurisprudential development demands that the Appeals Chamber consider his post-hearing submissions. The Appeals Chamber notes that in preparing a Judgement, it considers all relevant jurisprudence, including decisions issued after the hearing of an appeal. If additional submissions from the parties on the Hadžihasanović Appeal Judgement had been necessary for a fair determination of the appeal in this case, the Appeals Chamber would have requested Counsel to provide further submissions. The Appeals Chamber has not done so.

5. Rule 108 of the Rules provides that the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal” contained in a notice of appeal. Motions for variation of the notice of appeal should be submitted as soon as possible after identifying the new alleged error of the Trial Chamber to be included in the notice of appeal or after discovering any other basis for seeking variation of the notice of appeal.[1] Generally, “a request to amend a notice of appeal must, at least, explain precisely what amendments are sought and why, with respect to each amendment, the ‘good cause’ requirement of Rule 108 is satisfied”.[2] It is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[3] The “good cause” requirement under Rule 108 encompasses both good reason for including the new or amended grounds of appeal sought and good reason as to why those grounds were not included in the original notice of appeal.[4]

6. In its previous determinations that proposed variations to the notice of appeal may be authorized within the scope of the good cause requirement, the Appeals Chamber has considered the following factors to be of relevance: (i) the variation is minor but clarifies the notice of appeal without affecting its content;[5] (ii) the opposing party has not opposed the variation or would not be prejudiced by it; (iii) the variation would bring the notice of appeal into conformity with the appeal brief; (iv) the variation does not unduly delay the appeal proceedings; or (v) the variation could be of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[6]

8. Nevertheless, the Appeals Chamber is not satisfied that there is good cause to allow Morina to amend his Notice of Appeal and as a corollary his Appellant’s brief to add the proposed new ground of appeal. The briefing in this case is complete, and the proposed variation would therefore unduly delay the appeal proceedings by requiring additional submissions on this point from the parties. Moreover, Morina fails to substantiate his claim that by excluding it, this would equate to a miscarriage of justice. In this sense, he has not identified any aspect of his criminal responsibility or his sentence that is implicated by the alleged error. Rather, his concern is mainly for his professional reputation[7] because, in his view, the language employed by the Trial Judgement leaves the impression that he was arrested by force. This does not amount to good cause.

3. The Notice of Appeal sets forth 13 grounds of appeal. The final ground of appeal, which relates to sentencing, states only that in the alternative, should the Appeals Chamber […] uphold Mr. Renzaho’s responsibility, the Trial Chamber erred in imposing a life sentence.

4. This ground of appeal does not indicate the substance of the alleged error and the relief sought, thereby failing to fully comply with Rule 108 of the Rules of Procedure and Evidence of the Tribunal (“Rules”)[1] and the Practice Direction on Formal Requirements for Appeals from Judgement of 4 July 2005 (“Practice Direction”).[2]

5. For these reasons, and in accordance with Rule 108bis (B) of the Rules and Paragraph 13 of the Practice Direction, I hereby ORDER Mr. Renzaho to clarify the substance of his 13^th Ground of Appeal, should he wish to maintain it, no later than 23 October 2009.     

14. Finally, the Appeals Chamber notes that it is the Appellant’s burden to demonstrate that each amendment should be permitted under the standards outlined above, including establishing lack of prejudice to the Prosecution.[1]

12. In the interest of protecting the right of convicted defendants to a fair appeal, the Appeals Chamber has, in limited circumstances, permitted amendments even where there was no good cause for failure to include the new or amended grounds in the original notice—that is, where the failure resulted solely from counsel negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which are of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if they were excluded.[1] In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of counsel.

19. The Appeals Chamber notes that the Appellant does not request to amend any of his grounds of appeal in the Notice of Appeal and Appellant’s Brief, but simply submits that the seven additional grounds should be included anew. The Appeals Chamber further notes that instead of seeking to demonstrate “good cause” for submitting the additional grounds of appeal at this late stage of the proceedings on appeal, the Appellant simply attaches the new grounds of appeal that he seeks to have admitted as part of the briefing.[2] […] 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.

20. However, in fairness to the Appellant, who should not be prejudiced because of any negligence or inadvertence by his Counsel in failing to include the submitted additional grounds,[3] the Appeals Chamber will examine them in order to determine whether they should be included because they are of substantial importance to the success of the appeal or are likely to otherwise correct ambiguity or error in the previous filings without unduly delaying the appeal proceedings.

10. It has been held that the concept of “good cause” under this provision encompasses both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] In its cases, the Appeals Chamber has relied upon a variety of factors in determining whether “good cause” exists, including (i) the fact that the variation is so minor that it does not affect the content of the notice of appeal; (ii) the fact that the opposing party would not be prejudiced by the variation or has not objected to it; and (iii) the fact that the variation would bring the notice of appeal into conformity with the appeal brief.[2] Where an appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” might also, under some circumstances, be established.[3] In such instances, each amendment is to be considered in light of the particular circumstances of the case.[4]

11. The jurisprudence of the Tribunal establishes that the “good cause” requirement must be interpreted restrictively at late stages in the appeal proceeding when amendments would necessitate a substantial slowdown in the progress of the appeal – for instance, when they would require briefs already filed to be revised and resubmitted.[5] To hold otherwise, would leave appellants free to change their appeal strategy and essentially restart the appeal process at will (including 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.[6]

15. Although the Appeals Chamber has concluded that the Appellant has not shown “good cause” justifying the amendments to his grounds of appeal at this stage in the appeals proceedings, the Appeals Chamber recalls having under limited circumstances permitted amendments even where there was no good cause shown for failure to include the new or amended grounds in the original notice – that is where the failure resulted from counsel’s negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which could be of substantial importance to the success of an appeal such as to lead to a miscarriage of justice if they were excluded.In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his or her counsel. In the instant case, the Appeals Chamber concludes that the failure on the part of the Appellant’s Counsel to articulate these grounds at an earlier stage should not bar the Appellant from raising those grounds of appeal here. […]

15. […] The Appeals Chamber notes that each of these grounds goes to the issue of the sufficiency of the Indictment brought against the Appellant, which directly impacts upon his due process right under Article 21(4)(a) of the Statute “to be informed promptly and in detail […] of the nature and cause of the charge against him.” Protection of this right is considered to be of such importance that the issue of alleged defects in the indictment falls into the limited category of issues considered to be excepted from the waiver doctrine. In this case, therefore, the Appeals Chamber finds that the proposed new amendments, whether or not they are likely to succeed, could be of substantial importance to the Appellant’s appeal such that their exclusion would lead to a miscarriage of justice.[4]

96. As a preliminary matter, the Appeals Chamber notes that the alleged error in failing to keep a proper record of the site visit was not properly pleaded in the Appellant’s Notice of Appeal, which only refers to the alleged error in failing to take judicial notice of Operation Turquoise.[1] The Notice of Appeal thus fails to indicate the substance of the alleged errors and the relief sought, as required by Rule 108 of the Rules.[2] However, because the Prosecution did not object to this failure, the Appeals Chamber, exercising its discretion,[3] will consider whether the Trial Chamber erred in law by failing to include the video recording and any observations from the site visit in the official record of this case.

244. The Appeals Chamber recalls that a party is required to raise formally any issue of contention before the Trial Chamber either during trial or pre-trial;[1] failure to do so may result in the complainant having waived his right to raise the issue on appeal.

17. The Appeals Chamber may authorise leave to amend a notice of appeal upon the showing of “good cause”. The concept of “good cause” covers both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly phrased) in the original notice of appeal.[1] The “good cause” requirement is assessed on a case by case basis,[2] and several factors can be taken into account.[3] The Appeals Chamber has summarized these factors as follows:

These have included the fact that the variation is so minor that it does not affect the content of the notice of appeal; the fact that the opposing party would not be prejudiced by the variation or has not objected to it; and the fact that the variation would bring the notice of appeal into conformity with the appeal brief. Where the appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” might also, under some circumstances, be established. The Appeals Chamber notes that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted. [4]

18. The Appeals Chamber recalls that the good cause requirement is to be interpreted more restrictively at later stages in the appeal proceedings when variations to the grounds of appeal may substantially affect the efficient administration of justice.[5] 

In the present case, the Appeals Chamber was seized of a motion to reorganise the grounds of appeal listed in Tarčulovski’s Appeal Brief in an order different from that set forth in his Notice of Appeal. Tarčulovski contended that good cause existed to amend his Notice of Appeal because two of his current counsels were appointed after it was filed. At the time the motion was filed, Tarčulovski believed that his Defence team had just received a fresh perspective on the significance of the alleged errors committed by the Trial Chamber because his entire team was then able to review the extensive record and transcript in the case.

25. The Appeals Chamber considers that, in the circumstances of this case, the change of counsel constitutes good reason for showing why those grounds were not included in the original Notice of Appeal. In addition, it takes note of the fact that the proposed variation to the Notice of Appeal would bring it into conformity with the Appeal Brief, that any potential prejudice caused to the Prosecution is cured through the Appeals Chamber’s decision to grant the Prosecution’s request for an extension of time to file its Respondent’s Brief,[6] and that the inclusion of these grounds of appeal in an amended notice of appeal would not unduly interfere with the expeditious administration of justice as these arguments do not reflect a change to an appeal strategy by Tarčulovski subsequent to reading the Prosecution’s Respondent’s brief, which has not yet been filed.[7] Therefore, the Appeals Chamber finds that Tarčulovski has shown good cause for amending his notice of appeal.

4. Pursuant to Rule 108 of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Appeals Chamber “may, on good cause being shown by motion, authorize a variation of the grounds of appeal” contained in the notice of appeal. Such a motion should be submitted “as soon as possible after identifying the new alleged error” or after discovering any other basis for seeking a variation of the notice of appeal.[1] It is the appellant’s burden to explain precisely what amendments are sought and to demonstrate that each proposed amendment meets the “good cause” requirement of Rule 108.[2]

5. The jurisprudence of the Tribunal establishes that the concept of “good cause” encompasses both good reason for including the new or amended grounds of appeal sought and good reason showing why those grounds were not included (or were not correctly articulated) in the original notice of appeal.[3] The Appeals Chamber has considered, inter alia, the following factors in determining whether “good cause” exists: (i) the variation is minor and it does not affect the content of the notice of appeal; (ii) the opposing party would not be prejudiced by the variation or has not objected to it; and (iii) the variation would bring the notice of appeal into conformity with the appeal brief.[4] Where an appellant seeks a substantive amendment broadening the scope of the appeal, “good cause” may also, under certain circumstances, be established.[5] The Appeals Chamber recalls that it has never established a cumulative list of requirements that must be met each time a substantive amendment is to be granted.[6] Rather, each proposed amendment is to be considered in light of the particular circumstances of the case.[7]

6. In certain exceptional cases, notably where the failure to include the new or amended grounds of appeal resulted from counsel’s negligence or inadvertence, the Appeals Chamber has allowed variations even though “good cause” has not been shown by the appellant, provided that the variation sought is of substantial importance to the success of the appeal such as to lead to a miscarriage of justice if it is excluded.[8] In such limited circumstances, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his counsel.[9] However, it must be shown that the previous pleadings failed to address the issue adequately and that the amendments sought would correct that failure.[10]

9. The Appeals Chamber recalls that in granting extensions of time for the filing of appellants’ notices of appeal, the Pre-Appeal Judge in the present case held, inter alia, that:

[…] Pavković and Lukić will have the opportunity, if they so wish, to request variation of their grounds of appeal after having read the B/C/S translation of the Trial Judgement, provided that they show good cause under Rule 108 of the Rules […][1]

10. The Appeals Chamber considers that pending the receipt of the translation of the Trial Judgement, Pavković has been trying to understand the latter with the assistance of his defence team so that he can effectively contribute to the Appeal Brief.[2] Pavković asserts that the requested amendment of his Notice of Appeal became apparent to his defence team only as a result of this review process.[3] The Appeals Chamber notes that the variation sought concerns an alleged error of fact in the Trial Chamber’s finding that as a member of the Joint Command, Pavković “by-passed the chain of command.”[4] As such, it can be reasonably inferred that Pavković’s understanding of the Trial Judgement has been central to the identification of the alleged error, and that the unavailability of the B/C/S translation of the Trial Judgement at the time the Notice of Appeal was filed had prevented him from instructing his counsel to that effect.[5] The Appeals Chamber is therefore satisfied that good reason for not including the alleged error in the Notice of Appeal has been shown.

Cf. Ojdanić Decision on Amending Notice of Appeal, refusing to recognize good cause for not including the newly alleged error of law in the original notice of appeal.

16. The Appeals Chamber notes however, that in certain exceptional circumstances it has allowed amendments even in the absence of good cause being shown.[1] In this respect, it observes that the arguments presented under the seventh ground of Ojdanić’s Amended Notice of Appeal which Pavković seeks to adopt, generally allege that the Trial Chamber erroneously expanded the definition of the crimes against humanity with regard to (i) the mens rea requirement for crimes against humanity, and (ii) the individual whose knowledge of the context of the offence would suffice for criminal responsibility for crimes against humanity to be attributed to the perpetrator.[2] The Appeals Chamber recalls that Pavković has been convicted of the crimes of deportation, other inhumane acts (forcible transfer), murder and persecutions as crimes against humanity under Article 5 of the Statute.[3] Accordingly, and without pronouncing itself on the merits of the appeal, the Appeals Chamber finds that allowing Pavković to vary further his Amended Notice of Appeal in order to join the merits of Ojdanić’s seventh ground of appeal is of substantial importance to the success of his appeal such as to lead to a miscarriage of justice if denied. The Appeals Chamber further finds that the failure to assert these arguments earlier constitutes negligence on the part of Pavković’s counsel.

18. In light of these requirements, a party may not dispose of its burden on appeal by merely referring to another party’s submissions. Moreover, allowing such reference would incorrectly suggest that in multi-appellant proceedings the parties are relieved of their obligations to comply with the Rules and the relevant Practice Directions. The Appeals Chamber is also concerned that permitting such broad reference would effectively allow Pavković to circumvent the word limit established for his appellant’s brief. Therefore, whereas the Appeals Chamber acknowledges that in the circumstances of the present case it may not be necessary for Pavković to replicate in his Notice of Appeal and subsequently in his appellant’s brief, all of Ojdanić’s legal arguments that he seeks to adopt, it emphasises that in order to meet his burden on appeal Pavković must comply with the requirements recalled above.

5.       […] [O]rdinarily the filing of a Supplementary Notice of Appeal does not itself constitute good cause for an extension of time,[1] […]

Pages 1-2:

CONSIDERING that, pursuant to Rule 133 of the Rules of Procedure and Evidence of the Mechanism (“Rules”), parties seeking to appeal a trial judgement are to file a notice of appeal no later than 30 days from the date on which the written judgement was filed;

RECALLING that, pursuant to Rule 154 of the Rules, the time limits prescribed in the Rules may be enlarged on good cause being shown;

[…]

CONSIDERING the length of the Trial Judgment and the significant complexity of this case;

CONSIDERING FURTHER that is in the interests of justice to ensure that parties have sufficient time to prepare meaningful notices of appeal in full conformity with the applicable provisions;

[…]

CONSIDERING the need to weigh carefully the interests in safeguarding expeditious proceedings before the Mechanism and allowing sufficient time for the parties to prepare their respective cases;

[…]

CONSIDERING that the reasons justifying an extension to file Karadžić’s notice of appeal also apply to the Prosecution and that a synchronised schedule for filing any notices of appeal in this case will assist the effective case management and is, therefore, in the interests of justice;