11. […] Finally, if an accused wishes to show that the Prosecution is in breach of these obligations, he/she must identify the material sought, present a prima facie showing as to its probable exculpatory nature, and prove the Prosecution's custody or control thereof.[1] Even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[2]

26. The Appeals Chamber recalls that neither the Statute nor the Rules provide a right of appeal from sanctions imposed pursuant to Rule 46 of the Rules.[1] Accordingly, a Trial Chamber’s exercise of its discretion under that rule is not subject to review by the Appeals Chamber. However, in the instant case, the Counsel not only challenges the particulars of the Trial Chamber’s exercise of its discretion to impose the impugned sanctions, but also questions the Trial Chamber’s jurisdiction to impose pecuniary sanctions at all under Rule 46 of the Rules. While the Appeals Chamber has no jurisdiction to entertain the appeal from sanctions per se, it does have jurisdiction to consider this latter issue.

27. Rule 46(A) does not explicitly specify the scope for sanctions applied under its authority. The measures identified in paragraphs B and C of Rule 46 are only specific examples of potential means by which a Chamber may sanction a counsel. Nonetheless, the absence of explicit limitations on the sanctions deployed under Rule 46 of the Rules does not mean that the Trial Chamber is free to pronounce any disciplinary measures it deems appropriate.

28. In order to identify the scope of sanctions permitted under Rule 46 of the Rules, it is necessary to consider the rule’s context. The text of Rule 46 itself contains no reference to pecuniary sanctions, even though it does list several potential disciplinary measures. Similarly, the equivalent ICTY rule addressing “Misconduct of Counsel” explicitly limits sanctions to particular penalties which do not include fines.[2] By contrast, other rules, such as Rule 77(G) of the Rules (addressing contempt of the Tribunal), specifically provide for fines in cases of misconduct by individuals, including attorneys.[3] Likewise, Rule 73(F) of the Rules provides that a Chamber may order the non-payment of fees if a counsel brings a motion that is frivolous or an abuse of process.  

29. This examination demonstrates that pecuniary sanctions are not within the permitted scope of penalties that may be applied under Rule 46 of the Rules. The text of the rule itself does not refer to pecuniary sanctions, while provisions such as Rule 77(G) of the Rules provide the means for punishing an attorney’s misconduct through fines where that is deemed appropriate.[4] Given the absence of clear parameters regarding the scope of sanctions permitted under Rule 46, and the context of the Rules, the Appeals Chamber finds that the Trial Chamber acted outside its jurisdiction in imposing pecuniary sanctions on the Counsel pursuant to Rule 46(A) of the Rules.

34. […] In this respect, the Appeals Chamber notes that, if an appellant wishes to show that the Prosecution is in breach of these obligations, he/she must identify specifically the materials sought, present a prima facie showing of its probable exculpatory nature, and prove the Prosecutor's custody or control of the materials requested.[1] Finally, even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will still examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[2] The Appeals Chamber is neither satisfied that the document is of prima facie exculpatory nature, nor that the alleged Prosecution’s failure to communicate it to the Appellant would have caused him any prejudice.[3]

21. The Trial Chamber characterized Mr. Nzirorera’s motion as “vexatious” and “frivolous” and noted that it showed disrespect for the Trial Chamber.[1] It then denied fees in addition to dismissing the motion.[2] The Appeals Chamber has held that the power to impose sanctions on counsel should be imposed cautiously.[3] It is most appropriate where a motion is frivolous or an abuse of process. The Appeals Chamber has previously held that there is no appeal from a decision to impose sanctions under Rule 73(F) of the Rules.[4] However, the specific situation in this instance is different. Since Judge Byron was both the Judge and subject of the underlying disclosure dispute, the Appeals Chamber considers that the decision is subject to independent review.[5]

22. A review of the pleadings underlying the Impugned Decision does not reflect that counsel for Mr. Nzirorera submitted a disrespectful or frivolous application.[6] As the Appeals Chamber held above, the Statute and Rules do not foreclose a party from seeking limited disclosure from a Judge on matters related to disqualification. In his submissions at trial and on appeal, Mr. Nzirorera pointed to one jurisdiction where providing an assessment could require a Judge to withdraw. Additionally, the Tribunal has not had the occasion to consider this issue previously. Therefore, it cannot be said that there was no good faith legal basis for making the request for disclosure. Furthermore, the Appeals Chamber has rejected the Trial Chamber’s characterization of the assessment as constituting judicial function, which was one of the reasons for describing the motion as disrespectful. In view of the foregoing, the Appeals Chamber considers that the decision to deny fees associated with the motion was unreasonable. Thus, the Trial Chamber made a discernible error in this respect.

15. […] Considering that the Appellant has not suffered any apparent prejudice as a result of this violation, since these documents were communicated to him more than a month before the appeals hearing, the Appeals Chamber will not impose sanctions on the Prosecution for this violation. However, the Appeals Chamber warns the Prosecution of the possibility of sanctions should it again be found in violation of its disclosure obligations in the present case. 

171. The Respondent is on the list of assigned counsel kept by the Registrar in accordance with Rule 45. The Registrar has power pursuant to Article 20 of the Directive on Assignment of Defence Counsel to strike any counsel off that list where he or she has been refused audience by a Chamber in accordance with Rule 46, and to notify the professional body to which that counsel belongs of the action taken in relation to his or her conduct[1]. The Respondent’s conduct as found by the Appeals Chamber in these proceedings is substantially worse than that which permits the Registrar to strike counsel off the list pursuant to Article 20 of the Directive.

172. In the opinion of the Appeals Chamber, the Registrar has power generally to strike the Respondent off the list of assigned counsel because of his serious professional misconduct as demonstrated by the Appeals Chamber’s findings. A direction will therefore be given to the Registrar to consider striking the Respondent off the list and reporting his conduct as found by the Appeals Chamber to the professional body to which he belongs.

See also para. 166.

NOTE: THE VERSION OF ARTICLE 20 OF THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL IN FORCE AS OF JULY 2013 PROVIDES, INTER ALIA, AS FOLLOWS:

(C) The Registrar shall withdraw the assignment of counsel:

(i) upon a decision of a Chamber under Rule 46(A)(ii); or

(ii) where counsel no-longer satisfies the requirements of Article 14(A); or

(iii) where counsel has been found to be in contempt pursuant to Rule 77 of the Rules, unless the Chamber rules that the assignment should continue.

       Where the assignment of counsel has been withdrawn pursuant to Article 20(C)(ii), counsel may seek review of the Registar’s decision before the President within fifteen days from the date upon which he is notified of that decision.

(D) In such cases, the withdrawal or suspension shall be notified to the accused, to the counsel concerned, to the association of counsel of which he is a member, and to his professional or governing body.