Postponement of an appeal hearing

Notion(s) Filing Case
Decision on Postponement of Appeal Hearing - 15.01.2007 NAHIMANA et al. (Media case)

The Appeals Chamber dismissed the Appellant’s motion seeking a postponement of the appeal hearing due to the assignment of a new Co-Counsel, considering that:

Pp. 4-5: CONSIDERING that pursuant to Article 15 of the Directive on the Assignment of Defence Counsel (“Directive”), the Lead Counsel “shall deal with all stages of procedure” and “has primary responsibility for the Defence”, while the Co-Counsel may intervene “under the authority of Lead Counsel”;

CONSIDERING that the Appellant’s Lead Counsel was put on notice of the date of the Appeals Hearing on 16 November 2006, and […] he has not to date informed the Appeals Chamber of any justified unavailability for the Appeals Hearing;

RECALLING that the Letter of Assignment was offered to the current Co-Counsel by the DCDMS on the understanding that this would not result in any delay of the appellate proceedings;

CONSIDERING that the Lead Counsel, who, in the absence of any assistance from the former Co-Counsel, has had ample time to prepare for the Appeals Hearing in the present case,[1] and is in a position to brief the current Co-Counsel as to matters that may require his assistance during the Appeals Hearing;

CONSIDERING that, in light of the fact that the current Co-Counsel is a qualified lawyer, the Appellant’s argument that the verbal undertaking of the current Co-Counsel is of no significance to the latter’s ability to prepare for the Appeals Hearing is a mere assertion;[2]

CONSIDERING, therefore, that the Appellant has not shown that any postponement of the Appeals Hearing as scheduled by the Scheduling Order is required in the interests of justice.

[1] The Appeals Chamber notes that Mr. Bharat Chadha was assigned to the Appellant’s case on 5 May 2004 as Co-Counsel and was appointed Lead Counsel on 17 November 2004.

[2] See the Appellant’s arguments on p. 4 para. 2.

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Notion(s) Filing Case
Decision on Scheduling Order - 05.12.2006 NAHIMANA et al. (Media case)

P. 3: NOTING that in the Motion, the Appellant provides reasons in support of his argument that the Appeals Hearing should be scheduled for a later date than provided in the Scheduling Order including, inter alia, his intention to file a new motion under Rule 115 of the Tribunal’s Rules of Procedure and Evidence (“Rules”) as well to invite the Bar Counsel of England and Wales Human Rights Committee to attend and observe the Appeals Hearing;[1]

CONSIDERING that under Rule 115(A) of the Rules, the parties may file motions for admission of additional evidence on appeal after the appeal hearing, provided that cogent reasons are shown for such a delay;

CONSIDERING that a party’s intention to invite a third-party observer to the appeals hearing and the availability of that third-party on certain dates are not factors that the Appeals Chamber is required to take into consideration when setting the date for an appeals hearing;

CONSIDERING that since the Appeals Chamber’s Decision of 23 November 2006[2] upheld the President’s decision to refuse the withdrawal of the Appellant’s Co-Counsel, the arguments in the Motion in relation to the absence of the Co-Counsel[3] are moot;

CONSIDERING that in light of the amendments to the Rules, which entered into force on 10 November 2006, the Appellant’s arguments with respect to logistical problems in relation to the preparation of the Appeal Books on or before 18 December 2006[4] are moot, since the Rules no longer place such an obligation on the parties;[5]

FINDING therefore that the Appellant has failed to establish good cause for the Appeals Chamber delaying the Appeals Hearing as set in the Scheduling Order […]

[1] Motion, paras 2 and 3.

[2] Decision on Appellant Jean-Bosco Barayagwiza’s Motion Contesting the Decision of the President Refusing to Review and Reverse the Decision of the Registrar Relating to the Withdrawal of Co-Counsel, 23 November 2006.

[3] Motion, paras 4-7.

[4] Motion, para. 7.

[5] Cf. Decision on the Prosecutor’s Motion to Be Relieved from Filing the Appeal Book and Book of Authorities, 27 November 2006, p. 2. 

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