Judicial Supplement 21 - The Prosecutor v. Dusko Tadic

25 octobre 2000
Bench of the Appeals Chamber (Judges Jorda [Presiding], Bennouna and Pocar)

The Bench of the Appeals Chamber first "granted the Application for leave to appeal" and then reiterated "that the filing of appeals submissions is governed by the provisions set down in the 'Practice Direction on the Procedure for the filing of Written Submissions in Appeals Proceedings before the International Tribunal (IT/155)' dated 1 October 1999."

Milan Vujin submitted that because the Judges did not correctly assess the facts of the case or properly evaluate the facts presented at the hearing, a miscarriage of justice occurred. He also contended that striking him from the list of assigned counsel was not consonant with Rule 77. Lastly, the Appellant held that the provisions of Rules 77(J) run contrary to the "principles of penal legislature recognized throughout the world" since they do not authorise him to lodge an appeal directly with the Appeals Chamber without prior authorisation. Milan Vujin was of the opinion that he had thus advanced the grounds to justify granting his Application for leave to appeal.

The Bench first noted "that the Judgement was rendered by the Judges of the Appeals Chamber" ruling in the first instance. It also referred to Rules 1073 and 77(J) and pointed out that these do not suppress all right of appeal.

The Judges considered that the notion of "good cause" which appears in Rule 724 and that of "good grounds" which appears in Rule 77 share a common purpose: a clearly ungrounded appeal need not be reviewed by the full bench of the Appeals Chamber.

The Bench also reiterated that in accordance with the case-law of the Tribunal, in order to be granted leave to appeal on the basis of Rule 72, "the requesting party must demonstrate that there is, inter alia, a 'basis [...] for suggesting [...] error on the part of the Trial Chamber in reaching its decision'5". It thereby concluded that "the notion of 'good grounds' in Rule 77 of the Rules must be interpreted in the light of this case-law".

It also considered that in view of his arguments in respect of errors of law and fact, the Appellant "has sufficiently demonstrated the existence of good grounds within the meaning of Rule 77(J)".

The Bench thereby concluded "that the arguments advanced in support of the Application for leave to appeal justify a more thorough review by the Appeals Chamber".

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question,
(ii) discloses information relating to those proceedings in knowing violation of an order of a Chamber, or
(iii) without just excuse fails to comply with an order to attend before or produce documents before a Chamber, commits a contempt of the Tribunal.

(B) Any person who threatens, intimidates, causes any injury or offers a bribe to, or otherwise interferes with, a witness who is giving, has given, or is about to give evidence in proceedings before a Chamber, or a potential witness, commits a contempt of the Tribunal.
(C) Any person who threatens, intimidates, offers a bribe to, or otherwise seeks to coerce any other person, with the intention of preventing that other person from complying with an obligation under an order of a Judge or Chamber, commits a contempt of the Tribunal.
(D) Incitement to commit, and attempts to commit, any of the acts punishable under this Rule are punishable as contempts of the Tribunal with the same penalties.
(E) Nothing in this Rule affects the inherent power of the Tribunal to hold in contempt those who knowingly and wilfully interfere with its administration of justice.
(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.
(G) Any person so called upon shall, if that person satisfies the criteria for determination of indigency established by the Registrar, be assigned counsel in accordance with Rule 45.
(H) The maximum penalty that may be imposed on a person found to be in contempt of the Tribunal:

(I) Payment of a fine shall be made to the Registrar to be held in a separate account.
(J) Any decision rendered by a Trial Chamber under this Rule shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good grounds being shown. 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."

2. "(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.
(B) A list of counsel who, in addition to fulfilling the requirements of Rule 44, have shown that they possess reasonable experience in criminal and/or international law and have indicated their willingness to be assigned by the Tribunal to any person detained under the authority of the Tribunal lacking the means to remunerate counsel, shall be kept by the Registrar.
(C) In particular circumstances, upon the request of a person lacking the means to remunerate counsel, the Registrar may assign counsel whose name does not appear on the list but who otherwise fulfils the requirements of Rule 44.
(D) If a request is refused, a further request may be made by a suspect or an accused to the Registrar.
(E) The Registrar shall, in consultation with the Judges, establish the criteria for the payment of fees to assigned counsel.
(F) Where a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, 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."
3. "The rules of procedure and evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber."
4. Rule 72(B)(ii) provides that "Decisions on preliminary motions are without interlocutory appeal save […] in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber."
5. The Prosecutor v. Momcilo Krajisnik ("Bosnia and Herzegovina"), Case No. IT-00-39-AR72, Decision on Application for Leave to Appeal the Trial Chamber's Decision concerning Preliminary Motion on the Form of the Indictment (summarised and analysed in Judicial Supplement No. 18). On the definition of the test to be applied in order to show "good cause", see also The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-AR72.2, Bench of the Appeals Chamber, Decision on Request to Appeal (summarised and analysed in Judicial Supplement No. 15), in which the Judges considered that no ground had been shown for suggesting any error on the part of the Trial Chamber in reaching its Decision.