Notion(s) Filing Case
Nobilo Contempt Appeal Judgement - 30.05.2001 ALEKSOVSKI Zlatko

55. There has been some debate concerning the procedure laid down by Rule 77(F)[1] under which it is for a Chamber, proprio motu, to initiate the proceedings whereby a person is called upon to answer the allegations against him when the Chamber has reason to believe he may be in contempt.  This is in contrast with the procedure laid down by Rule 91[2], whereby a Chamber may direct the Prosecutor to investigate whether a witness has knowingly and wilfully given false testimony, with a view to the preparation and submission of an indictment for false testimony.  The suggestion has been made that it should be for the Prosecutor to initiate proceedings for contempt by way of indictment or, where the alleged contemnor is associated with the prosecution, for an amicus curiae appointed by a Chamber to do so.

56. It is not the intention of the Appeals Chamber to enter this debate, but its existence underlines the danger of a Chamber being both the prosecutor and the judge in relation to a charge of contempt, and the possibility in such a case that the ordinary procedures and protections for the parties are overlooked. […] It is therefore essential that, where a Chamber initiates proceedings for contempt itself, it formulates at an early stage the nature of the charge with the precision expected of an indictment, and that it gives the parties the opportunity to debate what is required to be proved. It is only in this way that the alleged contemnor can be afforded a fair trial.[3]


(F) When a Chamber has reason to believe that a person may be in contempt of the Tribunal, it may, proprio motu, initiate proceedings and call upon that person that he or she may be found in contempt, giving notice of the nature of the allegations against that person. After affording such person an opportunity to appear and answer personally or by counsel, the Chamber may, if satisfied beyond reasonable doubt, find the person to be in contempt of the Tribunal.


(B) If a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony.

[3]    An example of what is required may be found in Prosecutor v Simić et al, Case IT-95-9-R77, Scheduling Order in the Matter of Allegations Against Accused Milan Simić and his Counsel, 7 July 1999, pp 3-6.

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ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Decision on Voir Dire and Statements of the Accused - 27.10.2006 NTAHOBALI & NYIRAMASUHUKO

Paragraphs 12 and 13 of the Interlocutory Appeal contain the ratio of the Decision, finding that the Trial Chamber had not gone beyond the discretion allocated to it on evidentiary and procedural matters:

12. The Defence for Mr. Ntahobali argues that this procedure adopted by the Trial Chamber was impermissibly informal[1] since prior statements of an accused should be subject to an inquiry conducted “in accordance with pre-established rules of law which are known to the parties”[2] and not by merely requiring the parties to indicate their views on whether the Rules were complied with in taking the Previous Statements.[3] The Defence for Mr. Ntahobali has not identified any error in the procedure adopted by the Trial Chamber. The voir dire procedure originates from the common law and does not have a strictly defined process in this Tribunal.[4] There are no provisions in the Rules which direct Trial Chambers to adopt a formal procedure for determining whether they should conduct a voir dire. Instead, Rule 89(B) of the Rules provides that reference may be made to evidentiary rules “which will best favour a fair determination of the matter”. This discretion can extend to the conduct of a voir dire procedure when it is determined appropriate by the Trial Chamber.[5] The procedure conducted by the Trial Chamber permitted the parties to make submissions as to whether the Prosecution and Co-Accused could use the Previous Statements to impeach Mr. Ntahobali. The Trial Chamber considered the submissions of the parties on whether it was necessary to grant the request for a voir dire procedure by the Defence of Mr. Ntahobali, and after finding that it was not necessary, the Trial Chamber determined the admissibility of the Previous Statements on the basis of the submissions made by the parties. At several stages during the hearing[6] the Trial Chamber affirmed that this was the procedure to be followed, in particular when it stated:

We would like to hear the challenge, the basis of the challenge [to the admissibility of the Previous Statements]. And in the process, certainly, the Trial Chamber will examine the [admissibility] issue, including whether to determine the issue as presently presented, or whether there would be any need for voir – for trial within a trial, voir dire.[7]   

13. Therefore, the parties were informed of the procedure the Trial Chamber was adopting and made submissions pursuant to this procedure.[8] Indeed, the procedure adopted by the Trial Chamber, while characterised as one adopted to determine whether a voir dire procedure was necessary, was very similar to a voir dire. The Trial Chamber heard the parties on the circumstances surrounding the taking of the Previous Statements, admitting a written affidavit from Mr. Ntahobali into evidence on that issue, and decided that no further evidence was required to determine whether the Previous Statements were in accordance with the Rules. The Appeals Chamber does not see any abuse of the Trial Chamber’s discretion in the way that it chose to proceed.

[1] [The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73 (Joint Case No. ICTR-98-42-T), Appel de l’Accusé Arsène Shalom Ntahobali à l’Encontre de la Décision Intitulée “Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 8 June 2006 (“Interlocutory Appeal”)], para. 5.

[2] Interlocutory Appeal, para. 8.

[3] Interlocutory Appeal, para. 6.

[4] As an example of the flexibility with which the voir dire procedure is utilised at trial, voir dire examinations have previously been deferred to the cross-examination stage in determining a Witness’s qualification as an Expert Witness: Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, Decision on the Prosecutor’s Motion for Admission of Testimony of Expert Witness Rule 92bis of the Rules, 24 March 2005, para. 27. See also [ The Prosecutor v. [efer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, para. 5 (“Halilović Decision”)], para. 46 finding that a voir dire procedure is not necessarily required for identifying the voluntariness of an interview of an accused, although “there may be certain advantages in doing so.”

[5] Halilović Decision, para. 46.

[6]T. 9 May 2006, pp. 3, 16, 42; T. 15 May 2006, p. 16.

[7]T. 9 May 2003, p. 16.

[8] See the full submissions on T. 8 May 2006 pp. 76-78; T. 9 May 2006; T. 15 May 2006. 

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ICTR Rule Rule 89(B)
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Jurisdiction Decision - 09.01.2007 BOŠKOSKI & TARČULOVSKI

The Appeals Chamber dismissed Boškoski’s Appeal on Jurisdiction on procedural grounds, giving the following reasoning:

3. The Appeals Chamber does not consider that Boškoski’s Appeal is admissible as there is no basis upon which he could have properly filed his jurisdictional challenge before the Trial Chamber. The Appeals Chamber recalls that Rule 72(A)(i) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) requires that challenges to jurisdiction must be “brought not later than thirty days after disclosure by the Prosecutor to the defence of all material and statements referred to in Rule 66(A)(i)”. Since disclosure for this case was completed in 2005, this Rule did not apply in this instance. Similarly, Rule 50(C) of the rules, which accords the accused “a further period of thirty days in which to file preliminary motions pursuant to Rule 72 in respect of new charges” did not apply since the amended indictment did not add new charges. Accordingly, Boškoski cannot be considered as now having the right to file an appeal under Rule 72(B)(i) of the Rules. Furthermore, the Appeals Chamber questions the Trial chamber’s decision to recognize this motion under Rule 54 of the Rules, which effectually allowed for the circumvention of the clear provisions of Rule 72 and the time limits therein. Seeing, however, that the Impugned Decision was considered on the basis of Rule 54, only Rule 73 of the rules would have been applicable, necessitating certification.[1]

In his Partially Dissenting Opinion, Judge Pocar was of the view that it was within the Trial Chamber’s discretion to allow Boškoski’s motion under Rule 54. He continues:

In my opinion, as a challenge to jurisdiction under rule 72(B) gives rise to an appeal as of right, when such a challenge arises under any other rule from a Trial Chamber, it should also be treated as allowing a right of appeal. Any other interpretation would create the possibility of an accused standing trial on charges that are not properly brought before this Tribunal. As was stated by the Appeals Chamber in Prosecutor v. Tadić, in its decision on jurisdiction, “[s]uch a fundamental matter as the jurisdiction of the International Tribunal should not be kept for decision at the end of a potentially lengthy, emotional and expensive trial”.[2] While that statement was made in relation to whether the International Tribunal had any jurisdiction at all, it is equally applicable to whether the Tribunal’s jurisdiction pursuant to Article 7(3) extends to all types of criminal activity of subordinates.[3]  […] I do not consider that the accused’s challenge to the issue as constituting a defect in the form of the indictment should preclude his challenge of the same issue as on of jurisdiction.[4]

[1] Decision, para. 3

[2] Prosecutor v Duško Tadić, Case No. IT-94-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 6

[3] Decision, Partially Dissenting Opinion of Judge Pocar, para. 2

[4] Ibid., para. 3

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ICTR Rule Rule 54;
Rule 72
ICTY Rule Rule 54;
Rule 72
Notion(s) Filing Case
Decision on Access to Confidential Information - 09.09.2005 BLAGOJEVIĆ & JOKIĆ

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[…] [C]ounsel participating in appeals proceedings are expected to familiarize themselves with the relevant procedural requirements;

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