Plenary Session

"Amendments to the Rules of Procedure and Evidence"

IT/177

26 July 2000

By decision of the Judges at the twenty-second plenary session of the International Tribunal, the following Rules of Procedure and Evidence (« Rules ») are amended:

 

Rule28 English and French

Rule44 English and French

Rule45 English and French

Rule46 English and French

Rule50 English and French

Rule65 English and French

Rule73 English and French

Rule85 English and French

Rule94 bis English and French

Rule116 bis English and French

The above-mentioned Rules are amended or adopted pursuant to Rule6 of the Rules and Practice Direction IT/143.

Pursuant to Sub-Rule6 (D) of the Rules, these amendments shall enter into force seven days after the date of issue of this official document, i.e., on 2 August 2000. Document IT/32/Rev. 18 will be issued in both languages as soon as possible.

In addition, errors in the reproduction of Rules 73 (English text only) and 85 (English text only) have been corrected to reflect the previous decisions of the plenary. These are shown in italics.

The full texts of the amended and corrected Rules, with the amendments marked in bold and strike-out, are set out in the Annex to this document.

 

Richard May

Judge

Chair of the Rules Committee

Dated this twenty-sixth day of July 2000

At The Hague

The Netherlands

ANNEX

Rule28
Reviewing and Duty Judges

(A) On receipt of an indictment for review from the Prosecutor, the Registrar shall consult with the President who shall designate one of the Trial Chamber Judges for the review.

(B) The President, in consultation with the Judges, shall maintain a roster designating one Judge as duty Judge for the assigned period of seven days. The duty Judge shall be available at all times, including out of normal Registry hours, for dealing with applications pursuant to Sub-rules (C) and (D) but may refuse to deal with any application out of normal Registry hours if not satisfied as to its urgency. The roster of duty Judges shall be published by the Registrar.

(C) All applications in a case not otherwise assigned to a Chamber, other than the review of indictments, shall be transmitted to the duty Judge. Where accused are jointly indicted, a submission relating only to an accused who is not in the custody of the Tribunal shall be transmitted to the duty Judge, notwithstanding that the case has already been assigned to a Chamber in respect of some or all of the co-accused of that accused. The duty Judge shall act pursuant to Rule54 in dealing with applications under this Rule.

(D) The duty Judge may, in his or her discretion, if satisfied as to the urgency of the matter, deal with an application in a case already assigned to a Chamber out of normal Registry hours as an emergency application. In such case, the Registry shall also serve copies of the application and of any order or decision issued by the duty Judge in connection therewith on the Chamber to which the matter is assigned.

(E) During periods of court recess, regardless of the Chamber to which he or she is assigned, the duty Judge may:

(i) take decisions on provisional detention pursuant to Rule40 bis;

(ii) conduct the initial appearance of an accused pursuant to Rule62.

The Registry shall serve a copy of all orders or decisions issued by the duty Judge in connection therewith on the Chamber to which the matter is assigned.

Rule44
Appointment, Qualifications and Duties of Counsel

(A) Counsel engaged by a suspect or an accused shall file a power of attorney with the Registrar at the earliest opportunity. A counsel shall be considered qualified to represent a suspect or accused if the counsel satisfies the Registrar that the counsel is admitted to the practice of law in a State, or is a University professor of law, and speaks one of the two official languages of the Tribunal.

(B) At the request of the suspect or accused and where the interests of justice so demand, the Registrar may admit a counsel who does not speak either of the two working languages of the Tribunal but who speaks the native language of the suspect or accused. The Registrar may impose such conditions as deemed appropriate. A suspect or accused may appeal a decision of the Registrar to the President.

(C) In the performance of their duties counsel shall be subject to the relevant provisions of the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Tribunal, the Host Country Agreement, the Code of Conduct and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defence Counsel.

(D) An Advisory Panel shall be established to assist the President and the Registrar in all matters relating to defence counsel. The Panel members shall be selected from representatives of professional associations and from counsel who have appeared before the Tribunal. They shall have recognised professional legal experience. The composition of the Advisory Panel shall be representative of the different legal systems. A Directive of the Registrar shall set out the structure and areas of responsibility of the Advisory Panel.

Rule45
Assignment of Counsel

(A) Whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the Judges.

(A)(B) A list of counsel who, in addition to fulfilling the requirements of Rule44, have shown that they possess reasonable experience in criminal and/or international law speak one or both of the working languages of the Tribunal, meet the requirements of Rule44 and have indicated their willingness to be assigned by the Tribunal to indigent suspects or accused, any person detained under the authority of the Tribunal lacking the means to remunerate counsel, shall be kept by the Registrar.

(B)(C) In particular circumstances, upon the request of an indigent suspect or accused a person lacking the means to remunerate counsel, the Registrar may assign counsel who speaks the language of the suspect or the accused but does not speak either of the two working languages of the Tribunal whose name does not appear on the list but who otherwise fulfils the requirements of Rule44.

(E)(D) If a request is refused, a further request may be made by a suspect or an accused to the Registrar upon showing a change in circumstances.

(F)(E) The Registrar shall, in consultation with the Judges, establish the criteria for the payment of fees to assigned counsel.

(C) The criteria for determination of indigency shall be established by the Registrar and approved by the Judges.

(D) In assigning counsel to an indigent suspect or accused, the following procedure shall be observed:

(i) a request for assignment of counsel shall be made to the Registrar;

(ii) the Registrar shall enquire into the means of the suspect or accused and determine whether the criteria of indigency are met;

(iii) if the Registrar decides that the criteria are met, the Registrar shall assign counsel from the list; otherwise the Registrar shall inform the suspect or accused that the request is refused.

(H)(F) Where an alleged indigent a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel indigent , the Chamber may make an order of contribution to recover the cost of providing counsel.

(G) A suspect or an accused electing to conduct his or her own defence shall so notify the Registrar in writing at the first opportunity.

Rule46
Misconduct of Counsel

(A) A Chamber may, after a warning, refuse audience to counsel if, in its opinion, the conduct of that counsel is offensive, abusive or otherwise obstructs the proper conduct of the proceedings.

(B) A Judge or a Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in the counsel’s State of admission or, if a professor and not otherwise admitted to the profession, to the governing body of that counsel’s University.

(C) Under the supervision of the President, the Registrar shall publish and oversee the implementation of a Code of Professional Conduct for defence counsel.

Rule50
Amendment of Indictment

 

(A) (i) The Prosecutor may amend an indictment:

(a) at any time before its confirmation, without leave;

(b) between its confirmation and the assignment of the case to a Trial Chamber, with the leave of the Judge who confirmed the indictment, or a Judge assigned by the President; and

(c) after the assignment of the case to a Trial Chamber, with the leave of that Trial Chamber or a Judge of that Chamber, after having heard the parties.

(ii) After the assignment of the case to a Trial Chamber it shall not be necessary for the amended indictment to be confirmed.

(iii) Rule47 (G) and Rule53 bis apply mutatis mutandis to the amended indictment.

(B) If the amended indictment includes new charges and the accused has already appeared before a Trial Chamber in accordance with Rule62, a further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges.

(C) The accused shall have a further period of thirty days in which to file preliminary motions pursuant to Rule72 in respect of the new charges and, where necessary, the date for trial may be postponed to ensure adequate time for the preparation of the defence.

Rule65
Provisional Release

(A) Once detained, an accused may not be released except upon an order of a Trial Chamber.

(B) Release may be ordered by a Trial Chamber only after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.

(C) The Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others.

(D) Any decision rendered under this Ruleby a Trial Chamber shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown. Subject to Sub-Rule(F) below, applications for leave to appeal shall be filed within seven days of the impugned decision. Where such decision is rendered orally, the application shall be filed within seven days of the oral decision, unless

(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or

(ii) the Trial Chamber has indicated that a written decision will follow, in which case, the time-limit shall run from filing of the written decision.

(E) The Prosecutor may apply for a stay of a decision by the Trial Chamber to release an accused on the basis that the Prosecutor intends to appeal the decision, and shall make such an application at the time of filing his or her response to the initial application for provisional release by the accused.

(F) Where the Trial Chamber grants a stay of its decision to release an accused, the Prosecutor shall file his or her appeal not later than one day from the rendering of that decision.

(G) Where the Trial Chamber orders a stay of its decision to release the accused pending an appeal by the Prosecutor, the accused shall not be released until either:

(i) the time-limit for the filing of an application for leave to appeal by the Prosecutor has expired, and no such application is filed;

(ii) a bench of three Judges of the Appeals Chamber rejects the application for leave to appeal;

(iii) the Appeals Chamber dismisses the appeal; or

(iv) a bench of three Judges of the Appeals Chamber or the Appeals Chamber otherwise orders.

(H) If necessary, the Trial Chamber may issue a warrant of arrest to secure the presence of an accused who has been released or is for any other reason at liberty. The provisions of Section 2 of Part Five shall apply mutatis mutandis.

(I) Without prejudice to the provisions of Rule107, the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that:

(i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be;

(ii) the appellant, if released, will not pose a danger to any victim, witness or other person, and

(iii) special circumstances exist warranting such release.

The provisions of Sub-rules 65 (C) and 65 (H) shall apply mutatis mutandis.

 

ENGLISH TEXT ONLY

Text in italics inadvertently omitted in some previous editions

Rule73
Other Motions

(A) After a case is assigned to a Trial Chamber, either party may at any time move before the Chamber by way of motion, not being a preliminary motion, for appropriate ruling or relief. Such motions may be written or oral, at the discretion of the Trial Chamber.

(B) Decisions on such motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave

(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal;

(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally.

(C) Applications for leave to appeal shall be filed within seven days of the filing of the impugned decision. Where such decision is rendered orally, this time-limit shall run from the date of the oral decision, unless

(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or

(ii) the Trial Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision.

 

ENGLISH TEXT ONLY

Text in italics inadvertently duplicated in some previous editions

Rule85
Presentation of Evidence

(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:

(i) evidence for the prosecution;

(ii) evidence for the defence;

(iii) prosecution evidence in rebuttal;

(iv) defence evidence in rejoinder;

(v) evidence ordered by the Trial Chamber pursuant to Rule98; and

(vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment.

(vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment.

(B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness.

(C) If the accused so desires, the accused may appear as a witness in his or her own defence.

Rule94 bis

Testimony of Expert Witnesses

(A) Notwithstanding the provisions of Rule73 bis (B)(iv)(b) and Rule73 ter (B)(iii)(b), Rule65 ter (E)(iv)(b) and Rule65 ter (G)(i)(b), the full statement of any expert witness called by a party shall be disclosed to the opposing party as early as possible and shall be filed with the Trial Chamber not less than twenty-one days prior to the date on which the expert is expected to testify.

(B) Within fourteen days of filing of the statement of the expert witness, the opposing party shall file a notice indicating whether:

(i) it accepts the expert witness statement; or

(ii) it wishes to cross-examine the expert witness.

(C) If the opposing party accepts the statement of the expert witness, the statement may be admitted into evidence by the Trial Chamber without calling the witness to testify in person.

Rule116 bis
Expedited Appeals Procedure

(A) An appeal under Sub-Rule72 (B) or Sub-Rule73 (B) or appeal from a decision rendered under Rule54 bis (C), Rule65, Rule77 or Rule91 shall be heard expeditiously on the basis of the original record of the Trial Chamber. Appeals may be determined entirely on the basis of written briefs.

(B) All delays and other procedural requirements shall be fixed by an order of the Presiding Judge issued on application by one of the parties, or proprio motu should no such application have been made within fifteen days after the filing of the notice of appeal.

(C) Rules 109 to 114 shall not apply to such appeals.

(D) The Presiding Judge, after consulting the members of the Appeals Chamber, may decide not to apply Sub-Rule117(D).