Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA

51. The Appeals Chamber agrees that the legal sufficiency test in a decision pursuant to Rule 98bis of the Rules – that is, the question of whether a reasonable trier of fact could convict the accused on the Prosecution evidence – is not applicable in an appeal against judgement. Rather, in an appeal against judgement, the test to be applied in determining whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable trier of fact could have reached.[1] Here, however, the issue raised by Hadžihasanović regards the alleged violation of his right to a fair trial resulting from a wrong statement and the application of the legal sufficiency test by the Trial Chamber in its Rule 98bis Decision. Insofar as an infringement on his right to a fair trial is concerned, this issue is therefore not redundant on appeal.

52. Regarding Hadžihasanović’s second and third grounds of appeal concerning the Rule 98bis Decision, which the Prosecution also contends cannot be raised in an appeal against judgement, the Appeals Chamber notes that an appellant is not, as a matter of law, prevented from challenging a finding of the Trial Chamber in a decision pursuant to Rule 98bis of the Rules. The Prosecution’s reliance to the contrary on the Appeals Chamber’s finding in Čelebići is misplaced. In Čelebići, the Appeals Chamber clarified the applicable test on appeal for alleged errors of fact, for which the legal sufficiency test applied in the Rule 98bis Decision is indeed redundant in an appeal against judgement. The allegation at hand, however, is that the Trial Chamber committed an error in its Rule 98bis Decision, which as a consequence violated Hadžihasanović’s rights to a fair trial.

[1] Vasiljević Appeal Judgement, para. 7. See also Stakić Appeal Judgement, para. 10; Kvočka et al. Appeal Judgement, para. 18; Kordić and Čerkez Appeal Judgement, para. 18; Blaskić Appeal Judgement, para. 16; Čelebići Appeal Judgement, para. 435; Bagilishema Appeal Judgement, para. 13.

[2] Prosecution Response Brief, paras 94, 128.

[3] Prosecution Response Brief, para. 17.

[4] Čelebići Appeal Judgement, para. 435.

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ICTR Rule Rule 98 bis ICTY Rule Rule 98 bis
Notion(s) Filing Case
Decision on Admissibility of Notice of Appeal - 04.09.2008 HAXHIU Baton

Haxhiu filed his notice of appeal against the trial judgement convicting him for contempt 26 days after the date of the trial judgement. The Prosecution asked to strike the notice of appeal as being time-barred. Haxhiu argued that appeals against judgements on appeal are filed not within the time limit prescribed by Rule 77(J) (15 days) but pursuant to the general time-limit for appeal against judgements pursuant to Rule 108 (30 days). The Appeals Chamber held as followed:

12. At the outset, the Appeals Chamber recalls that in Prosecutor v. Marijačić and Rebić it was confronted with a question similar to the one in this case. The Appeals Chamber in that case explicitly rejected the argument, made by one of the appellants in relation to the filing of the appeal brief, that Section III of the Practice Direction is only applicable to interlocutory decisions but not to judgements rendered pursuant to Rule 77. The Appeals Chamber consequently held that “Section III [of the Practice Direction] applies to final decisions of a Trial Chamber under Rule 77.”[1]

13. The same reasoning applies to Rule 77(J) of the Rules, which is mirrored in paragraph 4 of the Practice Direction. Indeed, in Prosecutor v. Šešelj, the Appeals Chamber stated that “Rule 77(J) of the Rules shall be interpreted as allowing for appeals against decisions disposing of contempt cases only.”[2]

14. Accordingly, the Appeals Chamber finds that Haxhiu’s Notice of Appeal was filed outside the prescribed time-limits. […]

[1] Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 14.

[2] Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR77.1, Decision on Vojislav Šešelj’s Appeal Against the Trial Chamber’s Decision of 19 July 2007, 14 December 2007, p. 2, with further references (emphasis added).

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ICTR Rule Rule 77;
Rule 108
ICTY Rule Rule 77;
Rule 108
Notion(s) Filing Case
Rule 98bis Judgement - 11.07.2013 KARADŽIĆ Radovan

9. The appeals chamber recalls that an appeal against an acquittal entered at the Rule 98 bis stage of a case is an appeal against a judgement.[1] Thus, in an appeal of a rule 98 bis judgement of acquittal, the proceedings are governed by Article 25 of the Statute and by the standards of appellate review for alleged errors of law and alleged errors of fact. The Appeals Chamber further recalls that the test to be applied by the trial chamber at the Rule 98 bis stage is “whether there is evidence (if accepted) upon which a reasonable [trier] of fact could be satisfied beyond reasonable doubt of the guilt of the accused on the particular charge in question”,[2] not whether an accused’s guilt has been established beyond reasonable doubt.[3]

10. The Appeals Chamber does not consider that the parties’ relevant submissions impel adoption of a different standard of review. The passage in the Halilović Appeal Judgement which Karadžić discusses simply confirms that appeals challenging factual findings shall be subject to the same standard of deferential review whether the appeals are lodged by the Prosecution or by a convicted person.[4] The Appeals Chamber’s holding in Halilović does not demonstrate that judgements of acquittal pursuant to Rule 98 bis of the Rules are exclusively reviewed under the standard of review for alleged errors of fact, as Karadžić appears to argue. Likewise, and contrary to the Prosecution’s submission, the Jelisić Appeal Judgement does not hold that the Appeals Chamber must always engage in an evidentiary assessment de novo when reviewing a challenge to a Rule 98 bis judgement of acquittal. In Jelisić, the Appeals Chamber merely concluded that the trial chamber had erred as a matter of law at the Rule 98 bis stage of a trial by failing to take the evidence at its highest, and, in view of this conclusion, proceeded to articulate the correct standard and apply that standard to the evidence on the record.[5]

[1] [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR98bis.1] Decision on Motion to Strike Prosecution’s Brief, 9 November 2012, para. 8. See generally Rule 98 bis of the Rules.

[2] Čelibići Appeal Judgement, para. 434 (emphasis in original). See also Jelisić Appeal Judgement, para. 37.

[3] See Jelisić Appeal Judgement, para. 56.

[4] See Halilović Appeal Judgement, para. 11.

[5] Jelisić Appeal Judgement, paras 55-72. See also Jelisić Appeal Judgement, para. 39. 

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ICTR Rule Rule 98 bis ICTY Rule Rule 98 bis
Notion(s) Filing Case
Decision on Self-Representation - 11.05.2007 KRAJIŠNIK Momčilo

11.    To begin with, Article 21(4)(d) of the Statute draws no distinctions between the trial stage and the appeal stage of a case.  There is thus no textual basis for concluding that the guarantee to self-representation therein (as recognized in the Milošević Decision) evaporates with the issuance of the trial judgement.  Moreover, there is no obvious reason why self-representation at trial is so different in character from self-representation on appeal as to require an a priori distinction between the two.  Self-representation on appeal may be a complex and tricky business, but on its face it is no more difficult (and indeed perhaps less difficult) than self-representation at trial.  Both stages involve complicated factual and legal issues and require familiarity with a daunting set of procedural rules.  It may never be in an individual’s interests to represent himself, either at trial or at appeal, but he nonetheless has a “cornerstone” right to make his own case to the Tribunal.

12.    Finally, a review of the case law of domestic jurisdictions does not support a distinction between the trial and appeal stages for purposes of self-representation.  In the course of substantial research, as supplemented by the helpful submissions of the parties, the Appeals Chamber has come across only one jurisdiction – the United States – that finds a right to self-representation at trial but not on appeal.[2]  Moreover, in concluding that the United States federal Constitution grants defendants a right to self-representation at trial but not on appeal, the United States Supreme Court relied heavily on the fact that the relevant constitutional provision “does not include any right to appeal” and thus that “[i]t necessarily follows that [this provision] does not provide any basis for finding a right to self-representation on appeal.”[3]  Such reasoning has no force in the situation at hand, since Article 25 of the Statute of the Tribunal plainly provides a right of appeal.  The Appeals Chamber thus declines to rely on the distinction drawn in United States jurisprudence.  The Appeals Chamber further considers it noteworthy that no other jurisdiction appears to draw such a distinction.[4]

[1] See Further Submissions, para. 4 (making this point). 

[2] See Faretta v. California, 422 U.S. 806 (1975) (finding a federal constitutional right to self-representation at trial); Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152 (2000) (finding no federal constitutional right to self-representation on appeal).

[3] Martinez, 528 U.S., at 160. 

[4] Indeed, the Prosecution’s extensive research led it to conclude affirmatively that common law systems which permit self-representation at trial also typically permit self-representation on appeal.  Prosecution’s Corrigendum, para. 39 (“Most common law systems studied allow self-representation on appeal”).  

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on an Appeal of a Decision Rendered by a Single Judge - 06.10.2017 KAMUHANDA Jean de Dieu

12.     […] Requiring Kamuhanda to appeal an interim order before being able to demonstrate any prejudice resulting from that order would necessarily inhibit his ability to appeal the discretionary determination at issue and would result in a needless expenditure of judicial resources.[1]

[1] In order to successfully challenge a discretionary decision, an applicant must demonstrate that the Single Judge committed a discernible error resulting in prejudice to the applicant. See infra para. 11. 

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