Appeals Chamber

The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic - Case No. IT-95-16-A

"Decision on Motions by Zoran Kupreskic, Mirjan Kupreskic and Vladimir Santic for Leave to Appeal the Decision of the Appeals Chamber dated 29 May 2001"

18 June 2001
Judges Wald [Presiding], Vohrah, Nieto-Navia, Pocar and Liu)

Rules 115 of the Rules of Procedure and Evidence - Manifestly ill-founded and frivolous Motions - Abuse of the court process - Sanctions - Defence Counsel - Payment of fees or costs - Powers of the Registrar.

The Registrar is requested to consider withholding payment of any fees or costs involved in the preparation of manifestly ill-founded and frivolous Motions which constitute an abuse of the court process.

Procedural Background

The Reasoning

The Appeals Chamber considered that there is no provision in the Statute or the Rules which allows for appeals from Decisions of the Appeals Chamber pursuant to Rule 115 of the Rules of Procedure and Evidence. It found that the Motions "are manifestly ill-founded, an abuse of the court process and frivolous".

The Decision

The Appeals Chamber dismissed the Motions of the three co-accused and requested the Registrar to consider withholding payment of any fees or costs involved in the preparation of the Motions2.

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1. "(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.
(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require."
2. Rule 45(E) provides that "[t]he Registrar shall, in consultation with the permanent Judges, establish the criteria for the payment of fees to assigned counsel." Article 22 of the Directive on Assignment of Defence Counsel dated 15 December 2000 (IT/73/Rev. 8) provides that:
"(A) Where counsel has been assigned, the costs of legal representation of the suspect or accused necessarily and reasonably incurred shall be met by the Tribunal subject to the budgetary provisions, rules and regulations, and practice set by the United Nations. […]" (Emphasis added) "
(B) Such costs to be met by the Tribunal shall include all remuneration due to counsel […]." On the inherent power of the Tribunal in the administration of justice, see The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A-R77, Appeals chamber, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000 (summarised in Judicial Supplement No. 11). On the non-payment, in whole or in part, of fees associated with frivolous Motions, see the text box below.

The non-payment of fees and/or costs associated with frivolous Motions was first suggested by the Expert Group in its Report on the Effective Operation and Functioning of the two International Criminal Tribunals on 22 November 1999 (General Assembly, Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, A/54/634). Its members suggested "that the amount of legal fees allowed might properly take into account delays in pre-trial and trial proceedings deemed by the Trial Chamber to have clearly been caused by obstructive and dilatory tactics. This is not to recommend that the Chambers become enmeshed in all of the details of remuneration of assigned counsel, but rather that they simply exercise an oversight supervision in these cases with such direction to the Registrar, as they deem appropriate, for taking matters of this nature into account in arriving at the legal fee to be paid." (Page 31, footnote 24). The Experts stated "that the Chambers should consider the possibility of a rule calling for greater oversight with regard to remuneration when flagrant, frivolous or dilatory conduct on the part of counsel or abuse of the Tribunal's processes is found." (Page 35, footnote 28). The Expert Group recommended that this be done (page 102, recommendation 5).

The Judges of the International Criminal Tribunal for Rwanda added Rule 73(E) to their Rules of Procedure and Evidence at the Seventh Plenary Session held on 21 February 2000. This Rule provides that "[i]n addition to the sanctions envisaged by Rule 46, a Chamber may impose sanctions against Counsel if Counsel brings a motion, including a preliminary motion, that, in the opinion of the Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof."

When the Judges consider that, given the circumstances of the case, the Motions are frivolous, without merit, misconceived, not necessary or reasonable and that their filing constitute an abuse of the process, the Trial Chambers, in the exercise of their inherent powers, direct the Registrar not to award any costs including fees associated to Defence Counsel with respect to the filing of the Motions. In the alternative, the Trial Chambers apply Rule 73(E) with respect to the denial of costs and specify that the sanctions are applied against Defence Counsel.

Most applications of this Rule derive from Trial Chamber III in the case The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case No. ICTR-96-34-I. The Trial Chamber applied it for the first time in its Decision on the Defence Motions Objecting to a Lack of Jurisdiction and Seeking to Declare the Indictment Void Ab Initio rendered on 13 April 2000. It emphasised that there was "no prejudice to the accused's rights" since the accused was "being represented by assigned Counsel" (para. 53).

In the same case, see also Decision on Ntabakuze's Motion for a Declaratory Ruling in order to Determine the Law Applicable to the Prosecutor's Motion for Joinder Filed on 28 October 1999, Prior to Hearing the Said Motion; and Decision on Ntabakuze's Motion Seeking to Have Rule 48 bis Declared Ultra Vires Unlawful, Contrary to the Rules of Procedure and Evidence, and Inapplicable to the Accused, 4 May 2000.

Also in the same case, see Decision on Defence Motion Seeking Clarification of the New Charges (Rule 72 of the Rules of Procedure and Evidence), 18 May 2000.

On that same date, Judge Yacov Ostrosky, designated by Trial Chamber III from among its members pursuant to Rule 73(A), in the same case, rendered a Decision on Preliminary Motion Seeking to Obtain from the New Indictment Clarification Crucial in the Exercise of the Right of the accused to Raise Preliminary Motions (Under Rule 50(C) of the Rules of Procedure and Evidence).

Also in the same case, see Decision on Kabiligi's Motions to Nullify and Declare Evidence Inadmissible, 2 June 2000.

Trial Chamber II applied Rule 73(E) only once in its Decision on Motion for Defects in the Form of the Indictment (Rules 47(B) and (D) and 72(B)(ii) of the Rules) and Lack of Jurisdiction (Rules 5 and 72(B)(i) of the Rules) rendered on 8 May 2000 in The Prosecutor v. Jérôme Clément Bicamumpaka, Case No. ICTR-99-50-0115.

See also The Prosecutor v. Hassan Ngeze, Case No. ICTR-97-27-I, Trial Chamber I, Decision on the Defence's Motion to Dismiss the Indictment in toto for Lack of Subject Matter Jurisdiction and for Lack of Fundamental Fairness for the Accused, 10 May 2000, in which the Trial Chamber denied "the payment to the Defence of all costs" for the Motion.

See also The Prosecutor v. Emmanuel Bagambiki and Samuel Imanishimwe, The Prosecutor v. André Ntagerura, Case No. ICTR-99-46-I, Trial Chamber III, Decision on Imanishimwe's Motion Objecting to Non-Compliance with the Rules and Material Prejudice to the Accused, 10 July 2000.

In the same case, see Decision on the Motion by the Accused André Ntagerura for Revocation of an Order, Pursuant to Rule 73 of the Rules of Procedure and Evidence, Regarding the Order Rendered on 23 August 2000 by Trial Chamber III and Additional Motion by the Accused André Ntagerura to the Motion for Revocation of an Order, Pursuant to Rule 73 of the Rules of Procedure and Evidence, Regarding the Order Rendered on 23 August 2000 by Trial Chamber III, 8 September 2000.

See also The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-I, Trial Chamber III, Decision on the Defence Motion for Dismissal of the Entire Proceedings due to Persistent and Continuing Violations of the Rights of the Accused, Rules of Procedure and Evidence and the Statute of the Tribunal and Abuse of Process, 11 September 2000.

In the same case, see also Decision on the Defence Motion for the Adjournment of the Trial Proceedings, 30 October 2000.

See also The Prosecutor v. Théoneste Bagosora, The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-98-41-I, Trial Chamber III, Decision on Ntabakuze's Preliminary Motion and Motion for the Execution of the Decisions rendered on 5 October 1998 and 8 October 1999, 20 October 2000.

On a recent application of Rule 73(E), see The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Décision de la Chambre concernant la requête de Jean-Paul Akayesu demandant à la Chambre d'appel de reconsidérer un arrêt rendu le 16 mai 2001, 1 June 2001, in which the Appeals Chamber applied the Rule for the first time. It found that the Motion fell under Rule 73 and required "the Registry to forfeit all the professional fees" due in this respect (Transcripts, page 6, lines 14 to 25).