Trial Chambers

The Prosecutor v. Dusko Tadic - Case No. IT-94-1-R

"Decision on Motion for Review"

30 July 2002
Judges Jorda (President), Güney, Gunawardana, Pocar and Liu

Request for review - Article 26 of the Statute - Rules 119 et 120 of the Rules of Procedure and Evidence - Proper forum for the filing of a request for review - Procedure for a request for review.

1) Proper forum for the filing of a request for review: the competent body to deal with a request for review is the body which rendered the final judgement. In the absence of the Judges who composed the Trial Chamber or the Appeals Chamber which originally rendered the final judgement, a request for review shall still be filed with either of these two bodies and not with the President.

2) Procedure for a request for review: whenever it is presented with a new fact that is of such strength that it would affect the verdict, the Appeals Chamber may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met.

Procedural Background

· On 7 May 1997, Tadic was convicted by Trial Chamber II of eleven counts of crimes against humanity and violations of the laws or customs of war.1

· On 15 July 1999, Tadic was convicted by the Appeal Chambers of graves breaches of the Geneva Conventions of 1949 on nine additional counts of the Indictment.2

· On 26 January 2000 following the "Judgement in Sentencing Appeals",3 Tadic was sentenced to twenty years's imprisonment.4

· On 31 January 2000 in a related matter, the Appeals Chamber rendered its "Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin".5 The Appeals Chamber found Vujin in contempt of the Tribunal for several instances of manipulation of witnesses and evidence.

· On 5 October 2001, the Defence filed a Motion for Review before the President of the International Tribunal6 pursuant to Article 26 of the Statute of the International Tribunal7 and Rule 119 of the Rules of Procedure and Evidence.8

The Decision

The Appeals Chamber dismissed the Motion for Review.

The Reasoning

Following the practice of the International Criminal Tribunal for the former Yugoslavia9 and of the International Criminal Tribunal for Rwanda10 the Appeals Chamber recalled the provisions relevant to motions for reviews (Article 26 of the Statute and Rules 119 and 12011 of the Rules of Procedure and Evidence), which combined effect is that in order for the deciding body to proceed to the review of its decision, the moving party must satisfy four preliminary criteria:

1. there must be a new fact;

2. that new fact must not have been known by the moving party at the time of the original proceedings;

3. the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and

4. the new fact could have been a decisive factor in reaching the original decision.

The proper forum for the filing of a request for review

Since it needed to determine which parts of the case had to be reviewed and, subsequently, which judicial body was competent, the Appeals Chamber clarified the matter.12

As indicated in the above-mentioned Barayagwiza Decision, the proper forum for the filing of a request for review is the judicial body which rendered the final judgement13 - the Trial Chamber (when the parties have not logged an appeal) or the Appeals Chamber. When the Appeals Chamber is seized, it follows Rule 122 of the Rules14 and can, when necessary, refer the case to a Trial Chamber.

The competent body to deal with a request for review is the body which rendered the final judgement. In the absence of the Judges who composed the Trial or the Appeals Chamber which originally rendered the final judgement, a request for review "shall still be filed with either of these two bodies and not with the President".15 Only when a request for review is filed with the competent body does the President appoint Judges to deal with it and the Judges appointed are "those who originally heard the case".16 Should the Judges no longer be at the International Tribunal or be prevented from hearing the requests for review for other reasons, the President will assign new Judges to replace the original ones pursuant to Rule 119.

The procedure for a request for review

Following the findings of the Semanza Appeals Judgement17 the Appeals Chamber stated that a final decision is a pre-requisite to the exercise of review and emphasised the fact that "the review is an extraordinary way of appealing a decision, and its purpose is precisely that of permitting an accused or the Prosecution to have a case re-examined in the presence of exceptional circumstances, even after a number of years have elapsed".18

For a Chamber to conduct a review of a judgement it must be satisfied that all of the four already mentioned criteria be met. As regards the existence of a new act, the Appeals Chamber followed the definition given in the Jelisic case, according to which a new fact may be defined as "new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings".19 It stated that "the requirement that the new fact has not been in issue at trial means that it must not have been among the factors that the deciding body could have taken into account in reaching its verdict".20 Referring to a finding of the Delic case21 which considered that it did not matter whether the new fact existed before or during the original proceedings, the Appeals Chamber declared that whether or not the deciding body and the moving party knew about the fact is what is relevant.

With regard to the second and third criteria, the Appeals Chamber followed the findings of the Barayagwiza decision according to which a Chamber, in order to prevent a miscarriage of justice, may grant a motion for review based solely on the existence of a new fact that could have been decisive in reaching the original decision.22 It then referred to the Delic case when it asserted that "whenever it is presented with a new fact that is of such strength that it would affect the verdict, may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met".23

The Appeals Chamber dismissed the Motion for Review after having considered the alleged new facts presented by the Defence according to the criteria of Rule 119 of the Rules.

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1. Tadic, IT-94-1-T, Opinion and Judgement, 7 May 1997.
2. Tadic, IT-94-1-A, Judgement, 15 July 1999, Judicial Supplement No. 6.
3. Tadic, IT-94-1-A and IT-94-1-A bis, Judgement in Sentencing Appeals, 26 January 2000, Judicial Supplement No. 11.
4. Tadic is serving his sentence in Germany.
5. Tadic, IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, p. 67, Judicial Supplement No. 11. On 27 February 2001 a different bench of the Appeals Chamber upheld this finding (Dusko Tadic, IT-94-1-A-R77, Appeal Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 27 February 2001, Judicial Supplement No. 23). It is partly in light of the findings of the Contempt Judgement and the possibility that his counsel had acted against his interests that Tadic has sought a review of his entire case.
6. Tadic, IT-94-1-R, Motion for Review of the Convictions of Dusko Tadic set out in the Judgements of the Trial Chamber (IT-94-1-T) and of the Appeals Chamber (IT-94-1-A), 5 October 2001.
7. Article 26 (Review proceedings)
Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement.
8. Rule 119 (Request for Review)
Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.
9. Delic, IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, p. 5, Judicial Supplement No. 32. Jelisic, IT-95-10-R, Decision on Motion for Review, 2 May 2002, p. 3.
10. Barayagwiza, ICTR-97-19-AR72, Decision on Prosecutor's Request for Review or Reconsideration, 31 March 2000, para. 41 (hereinafter "Barayagwiza Decision").
11. Rule 120 (Preliminary Examination)
If a majority of Judges of the Chamber constituted pursuant to Rule 119 agree that the new fact, if proved, could have been a decisive factor in reaching a decision, the Chamber shall review the judgement, and pronounce a further judgement after hearing the parties.
12. The Tadic's Defence was seeking the review of the entire case. By contrast the Prosecutor submitted that since Rule 119 of the Rules provides for a review of the final judgement, only the Appeals Chamber's Judgement would be subject to review.
13. See supra note 10, para. 49: "A final judgement is one which terminates the proceedings: only such a decision may be subject to review".
14. Rule 122 (Return of Case to Trial Chamber)
If the judgement to be reviewed is under appeal at the time the motion for review is filed, the Appeals Chamber may return the case to the Trial Chamber for disposition of the motion.
15. Para. 23.
16. Ibid.
17. Semanza, ICTR-97-20-A, Arrêt (Requête en révision de la décision de la Chambre d'appel du 31 mai 2000), 4 May 2001, p. 2.
18. Para. 24.
19. See supra note 9, p. 3.
20. Para. 25.
21. See supra note 9, p. 5.
22. Barayagwiza Decision, para. 65.
23. Para. 27.