Review of a decision on appeal pursuant to Rule 11bis

Notion(s)	Filing	Case
Reconsideration \| Review of a decision on appeal pursuant to Rule 11bis	Reconsideration Decision - 23.02.2012	UWINKINDI Jean (ICTR-01-75-AR11bis)
9. Mr. Uwinkindi seeks either review or reconsideration of the [Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Decision of 16 December 2011”)], a request which he acknowledges is without precedent with regard to a decision under Rule 11bis of the Rules.[1] […] 10. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and by Rules 120 and 121 of the Rules.[2] The Appeals Chamber considers that only a final judgement – a decision which puts an end to proceedings – can be reviewed pursuant to Article 25 of the Statute and Rule 120 of the Rules.[3] Accordingly, the Decision of 16 December 2011 is not subject to review. 11. As Mr. Uwinkindi acknowledges,[4] the Appeals Chamber considers that an appeal pursuant to Rule 11bis of the Rules is more akin to an interlocutory appeal than to an appeal from judgement.[5] The Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so “if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice”.[6] Accordingly, the Appeals Chamber will proceed to consider the Uwinkindi Motion as a request for reconsideration. 15. The Appeals Chamber finds that Mr. Uwinkindi has not demonstrated a clear error of reasoning in the Decision of 16 December 2011 warranting reconsideration. […] show footnotes [1] [Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda, 25 January 2012 (“Uwinkindi Motion”)], paras. 1, 21, 22; [Defence Reply to Opposition to Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Motion to Vacate Interim Order, 7 February 2012 (“Uwinkindi Reply”)], paras. 6, 7. [2] See François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011, para. 9 (and references therein). [3] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 juillet 2000 et réparation pour abus de procédure, 23 June 2006, para. 21; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (English translation of the French original filed on 7 April 2000), para. 49; Rule 120(A) of the Rules. [4] See Uwinkindi Reply, para. 6 (“Rule 11bis proceedings are strictly speaking interlocutory in nature.”). Mr. Uwinkindi contends, however, that such decisions have a “far greater element of finality” than other interlocutory proceedings, given the unlikelihood that revocation would ever be ordered. See Uwinkindi Reply, para. 6. The Appeals Chamber considers that this point of distinction is speculative and, in any event, inconsistent with the Appeals Chamber’s explicit provision for the case to remain trial ready at the Tribunal in the event of any possible revocation. See Decision of 16 December 2011, para. 88. See also, e.g., The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands Pursuant to Rule 11 Bis (F) & (G), 17 August 2007, p. 5 (disposition) (revoking referral of a case to the Kingdom of the Netherlands). [5] See Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, para. 6; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras. 14-16, cited with approval in The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on the Prosecution’s Request for a Scheduling Order, 8 June 2006, paras. 3, 4. [6] Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203 (internal quotation marks omitted). See also, e.g., Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Decision on Peter Erlinder’s Motion to Reconsider Order Imposing Sanctions, 1 September 2011, p. 3 (and references therein). Download full document
Notion(s)	Filing	Case
Referral \| Reconsideration \| Review of a decision on appeal pursuant to Rule 11bis	Reconsideration Decision - 23.02.2012	UWINKINDI Jean (ICTR-01-75-AR11bis)
9. Mr. Uwinkindi seeks either review or reconsideration of the [Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, 16 December 2011 (“Decision of 16 December 2011”)], a request which he acknowledges is without precedent with regard to a decision under Rule 11bis of the Rules.[1] […] 10. The Appeals Chamber recalls that review proceedings are governed by Article 25 of the Statute of the Tribunal (“Statute”) and by Rules 120 and 121 of the Rules.[2] The Appeals Chamber considers that only a final judgement – a decision which puts an end to proceedings – can be reviewed pursuant to Article 25 of the Statute and Rule 120 of the Rules.[3] Accordingly, the Decision of 16 December 2011 is not subject to review. 11. As Mr. Uwinkindi acknowledges,[4] the Appeals Chamber considers that an appeal pursuant to Rule 11bis of the Rules is more akin to an interlocutory appeal than to an appeal from judgement.[5] The Appeals Chamber may reconsider a previous interlocutory decision under its inherent discretionary power to do so “if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice”.[6] Accordingly, the Appeals Chamber will proceed to consider the Uwinkindi Motion as a request for reconsideration. 15. The Appeals Chamber finds that Mr. Uwinkindi has not demonstrated a clear error of reasoning in the Decision of 16 December 2011 warranting reconsideration. […] show footnotes [1] [Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda, 25 January 2012 (“Uwinkindi Motion”)], paras. 1, 21, 22; [Defence Reply to Opposition to Defence Extremely Urgent Motion for Review or Reconsideration of the Decision of 16 December 2011 on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Motion to Vacate Interim Order, 7 February 2012 (“Uwinkindi Reply”)], paras. 6, 7. [2] See François Karera v. The Prosecutor, Case No. ICTR-01-74-R, Decision on Requests for Review and Assignment of Counsel, 28 February 2011, para. 9 (and references therein). [3] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Décision relative à la requête de l’appelant Jean-Bosco Barayagwiza demandant l’examen de la requête de la Défense datée du 28 juillet 2000 et réparation pour abus de procédure, 23 June 2006, para. 21; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (English translation of the French original filed on 7 April 2000), para. 49; Rule 120(A) of the Rules. [4] See Uwinkindi Reply, para. 6 (“Rule 11bis proceedings are strictly speaking interlocutory in nature.”). Mr. Uwinkindi contends, however, that such decisions have a “far greater element of finality” than other interlocutory proceedings, given the unlikelihood that revocation would ever be ordered. See Uwinkindi Reply, para. 6. The Appeals Chamber considers that this point of distinction is speculative and, in any event, inconsistent with the Appeals Chamber’s explicit provision for the case to remain trial ready at the Tribunal in the event of any possible revocation. See Decision of 16 December 2011, para. 88. See also, e.g., The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands Pursuant to Rule 11 Bis (F) & (G), 17 August 2007, p. 5 (disposition) (revoking referral of a case to the Kingdom of the Netherlands). [5] See Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defense Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, para. 6; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras. 14-16, cited with approval in The Prosecutor v. Michel Bagaragaza, Case No. ICTR-05-86-AR11bis, Decision on the Prosecution’s Request for a Scheduling Order, 8 June 2006, paras. 3, 4. [6] Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 203 (internal quotation marks omitted). See also, e.g., Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Decision on Peter Erlinder’s Motion to Reconsider Order Imposing Sanctions, 1 September 2011, p. 3 (and references therein). Download full document