Lessons Learned by the OTP in the Conduct of Appeals

By

Dr. Obote Odora

Chief of Appeals and Legal Advisory Division

Office of the Prosecutor – ICTR

1. Introduction
2. Within the Office of the Prosecutor of the ICTR (OTP), the Appeals and Legal Advisory Division (ALAD) is responsible for the conduct of appeals. However, the essential mandate of ALAD is threefold: (a) to handle appeals, including providing guidance and assistance on interlocutory appeals, on the Prosecutor’s behalf; (b) to provide legal advice to the Prosecutor and the OTP, especially to trial teams; and (c) to deliver in-house continuing legal education within the OTP. Nevertheless, handling appeals from final judgement at trial remains at the heart of ALAD’s mandate, together with taking a leading role in interlocutory appeals and handling other appeals that are in the nature of interlocutory appeals, such as appeals from Rule 11 bis (on transfer of cases to national jurisdictions), Rule 77 (on contempt of the Tribunal) and Rule 91(on false testimony under solemn declaration) decisions. In addition, ALAD deals with requests for review of final judgements, pursuant to Rule 120, and requests for reconsideration of decisions, which involve a remedy not specifically provided for in the Statute or the Rules of Procedure and Evidence (Rules).
3. Most of the work done by ALAD within the ambit of the appellate process is in writing, and is governed by timelines and procedural and formal requirements set out in the Rules and different Practice Directions issued by the Appeals Chamber. In order to understand the working practices of the appellate process, it is necessary to read the Rules together with the Practice Directions issued by the Appeals Chamber[1], as the timelines and stringent requirements are spread out over these different legal instruments.
4. The purpose of this paper is, on the basis of the lessons learned by ALAD in the conduct of appeals, to:

• Review the current set of rules governing appeal proceedings, as prescribed by the Rules and the Practice Directions;
• Make recommendations on how to improve the procedure and practice relating to the areas of operation of the Appeals Chamber; and
• Make recommendations regarding the practical aspects of managing appeals within the OTP. [2]

To that end, the paper will first address the legal framework set by the Rules, and thereafter assess the specific requirements prescribed by the Practice Directions. However, since some of the set of rules prescribed by the Rules and the Practice Directions overlap regarding certain appeals, for ease of reference, the system set by the Practice Directions will already be discussed under the legal framework set by the Rules. Moreover, under each heading, an assessment will be made, in the form of a recommendation, on areas that need amendment, and, more specifically, the question will be addressed whether there are aspects that should be deleted and new ones introduced. Finally, the paper will deal with the practical aspects of managing appeals, and formulate recommendations in this respect.

4. The ‘lessons learned’ by the OTP in the conduct of appeals are unique. The recommendations based on this distinct experience will certainly be beneficial to the OTP in the completion of its mandate. It is further hoped that they will be constructive to the work of the interested parties, such as other international judicial bodies and the international community as a whole.
5. Rules of Procedure and Evidence

• Interlocutory Appeals

5. The current interlocutory appeal regime is governed by Rules 72 and 73, and functions satisfactorily. These Rules have built in a control over interlocutory appeals, given that an appeal as of right exists only with respect to motions challenging jurisdiction, and, with respect to all other motions, the test for certification by the Trial Chamber to appeal is reasonably stringent. To that effect, the Appeals Chamber is able to control appeals as of right regarding motions challenging jurisdiction by dismissing those which do not satisfy the basic requirements of such motions.[3] Also Trial Chambers are able to control interlocutory appeals through an appropriate exercise of their discretion.[4]
6. Interlocutory appeals are normally decided on the basis of written briefs, without the necessity of an oral hearing. In addition, the briefing of interlocutory appeals is not as complex as the filings relating to appeals from final judgement. The legal framework designed by the Rules and Practice Directions (regarding the applicable time limits and length of such filings)[5] is expeditious, avoiding delays in trial proceedings. It allows the parties to present their interlocutory appeals in a timely and focused way.
7. However, the Rules and the relevant Practice Direction provide for a 7 day time limit for the filing of the actual appeal, once the Trial Chamber grants certification to appeal motions other than those challenging jurisdiction.[6] In the experience of the OTP, this time limit is too short. Therefore, the recommendation is to allow more time to file such an appeal in order to give the appellant a better opportunity to properly present its case. Ultimately, this would assist the Appeals Chamber in its determination of the appeal.

• A time limit of 15 days from certification for filing an appeal allows for a better presentation of the appeal by the appellant, given the importance of the written material which forms the basis of the decision on the appeal;[7]
• The time limits of 10 days to respond and of 4 days to reply as prescribed by the Practice Direction seem to be fair to both the respondent and the appellant.[8]

Recommendation

8. The relevant Rule/Practice Direction is amended to allow more time to file an interlocutory appeal, where certification has been granted: 15 days from certification to file the interlocutory appeal.

• Appeals from Final Judgements

9. While the current legal framework set by the Rules with respect to appeals from final Judgements functions satisfactorily, the following topics have been identified during the work of ALAD which would support modifications:

• The briefing schedule for filing notices of appeal, appellant’s brief and respondent’s brief;
• The scheduling for Rule 115 related motions;
• Disclosure issues relating to the application of Rule 111 (B) and Rule 112 (B);
• Specific factors that have contributed to delays in the appeals process, such as translation issues, and failure to comply with the Rules and Practice Directions;
• Powers of the Pre-Appeal Judge and the creation of a process of active case management.

10. These topics will be separately dealt with below. In addition, the current procedure and practice regarding the scheduling of appeal hearings will be discussed.
11. Briefing Schedule for Filing of Notice of Appeal, Appellant’s Brief and Respondent’s Brief
12. The experience within ALAD shows that the briefing schedule provided in the Rules for the filing of the notice of appeal, appellants brief and respondent’s brief requires minor modifications.

Notice of Appeal

12. With respect to the notice of appeal, Rule 108 provides that a notice of appeal is filed within 30 days from the date on which the judgement or the sentence was pronounced. However, since 2006 Trial Chambers have adopted the practice to first pronounce oral judgements, and to file the written judgements, including the reasoned opinion, at a later time. For example, in Bagosora et al., Trial Chamber I pronounced its oral judgement on 18 December 2008, and filed the written judgement almost 2 months later, on 9 February 2009.[9] In these circumstances, it is problematic for the appealing party to comply with the formal requirements set out in Rule 108 in filing a notice of appeal. A party cannot reasonably be expected to set out the grounds of appeal and indicate the alleged errors and the relief sought until the written judgement is filed.[10]
13. In order to reduce the filing of such motions, an amendment to Rule 108 is recommended to the effect that the filing of the written judgement is the starting point for the applicable deadline. This means that a notice of appeal would have to be filed within 30 days within the filing of the written judgement or sentence.

Appellant’s Brief and Respondent’s Brief

14. Rule 111 (A) states that the appellant’s brief shall be filed within 75 days of the filing of the notice of appeal, while, pursuant to Rule 112 (A), the respondent’s brief shall be filed within 40 days of the filing of the appellant’s brief. ALAD would support modifications to the time delays for the filing of appellant’s briefs and respondent’s briefs to achieve a briefing schedule which is more balanced and fairer to the parties. From ALAD’s experience, it is often difficult to adequately respond to appellant’s briefs within the 40 day time limit provided for in Rule 112, especially when numerous errors of facts are alleged. On the other hand, ALAD’s practice has shown that 75 days is often not needed to draft an appellant’s brief, as prescribed within Rule 111. This may be a result of ALAD’s practice to draft detailed internal memorandum to the Prosecutor identifying possible grounds on whether to appeal. Where ALAD recommends an appeal, arguments on appeal are already thoroughly developed when the notice of appeal is prepared. Likewise, ALAD attempts to focus the appeals process by identifying few and relevant grounds of appeal.
15. Consequently, to better assist the Appeals Chamber, the recommendation is made to expand the time limit for the filing of the respondent’s brief to be the same as the time limit for the filing of the appellant’s brief, being a time limit for filing of 60 days.[11] Such a recommendation would result in a short increase in the time required for filing an appeals brief (i.e. 5 days), but at the same time would ensure the Appeals Chamber that it receives the best possible assistance from both parties to the proceedings. Moreover, such a modification would be consistent with the briefing schedule for sentencing appeals, which prescribes the same time limit for the filing of the briefs of the appellant and the respondent.[12] This further acknowledges the principle of equality between the parties. Similarly the Practice Direction on Length acknowledges the same principle, by providing an identical word limit for briefs of an appellant and respondent, for both appeals from judgement and sentencing appeals.[13]

Multi-Accused Cases

16. ALAD has faced some problems with respect to filing briefs in multi-accused cases. These problems do not relate as such to the prescribed maximum length of these briefs, but to the time limit to file briefs in such cases.
17. As an Appellant, the Prosecutor will have the option to file separate appellant’s briefs or a consolidated one in an appeal with multiple respondents. The same option is available for brief(s) in reply. As a respondent, the Prosecutor can choose to file separate respondent’s briefs or a consolidated brief to an appeal from multiple co-appellants.
18. The only set of rules prescribed for multi-accused cases is to be found in the Practice Direction on Length. This Practice Direction incorporates a specific system for the filing of consolidated briefs in multi-accused cases, but does not regulate the filing of separate briefs in such cases. It recognizes a proportional increase in time delay and in length for the filing of consolidated briefs. Although the proportional increase in length for the filing of such consolidated briefs functions satisfactorily,[14] the regime set out for the proportional increase in time delay for filing a consolidated appellant’s/respondent’s brief and brief in reply is not adequate. Moreover, as noted above, no special set of rules is foreseen for a proportional increase in time delay in case the Prosecutor opts to file separate appellant’s briefs and briefs in reply, when he acts as appellant, or separate respondent’s briefs, when the Prosecutor is respondent.
19. Regarding consolidated briefs, the Practice Direction on Length provides that, when the Prosecutor acts as an appellant, the time limit for filing a consolidated appellant’s brief shall run from the filing date of the last notice of appeal.[15] Since the Prosecutor is required to be able to work in both working languages of the Tribunal, and therefore will not be granted an extension of time in the briefing schedule in light of a translation request,[16] the notices of appeal in respect of each appellee will in practice be filed on the same day. As a result, the alleged proportional increase in the time delay is non-existent. Similarly, the corresponding proportional increase in time allowed to prepare and file a consolidated brief in reply might be non-existent, since the time limit for filing such a brief shall run from the filing date of the last appellee’s response (in casu if the defence teams of the appellees work in the same language as the one in which the Prosecutor’s appellant’s briefs are filed, all appellees’ responses will be filed on the same day).[17] The same reasoning applies where the Prosecutor opts to file separate appellant’s briefs and briefs in reply. Although the Practice Direction on Length does not entail a specific regime for such filings, the time limit for filing the different briefs, in the circumstances described above, would also expire on the same day.
20. Furthermore, when the Prosecutor is respondent, according to the same Practice Direction, the time limit for filing a consolidated respondent’s brief shall run from the filing of the last appellant’s brief.[18] In the case of a consolidated response to an appeal from multiple co-appellants, in which the co-appellants do not require a translation of the final judgement in another working language of the Tribunal, all appellant’s briefs will be filed on the same day, and the Prosecutor will only have 40 days to file his consolidated respondent’s brief pursuant to Rule 112. Similarly, in case the Prosecutor chooses to file separate respondent’s briefs, the time limit to file such briefs would equally expire on the same day, in the circumstances described above.
21. Therefore, regarding multi-accused cases, ALAD would support a substantial proportional increase in the time delay to prepare a consolidated or separate appellant’s brief(s) and brief(s) in reply, when the Prosecutor is appellant. The same recommendation is made with respect to the filing of a consolidated or separate respondent’s brief(s), in case the Prosecutor acts as respondent. The suggestion would be to allow an extra 15 days per additional appellee/appellant for the filing of appellate briefs in case the documents triggering the start of the running of the time delay are filed on the same day.[19]

Sentencing Appeals

22. According to Rules 111 to 113, where limited to sentencing, an appellant’s brief/respondent’s brief shall be filed within 30 days of filing of the notice of appeal/appellant’s brief, respectively. A brief in reply shall be filed within 10 days of the filing of the respondent’s brief. In addition, the Practice Direction on Length provides reasonable word limits for the filing of such briefs.[20]
23. As the current Rules function satisfactorily for sentencing appeals, ALAD does not recommend any modifications to Rules 111 to 113 and the Practice Direction on Length in this respect.

Recommendations

24. ALAD recommends that Rule 108 regarding the filing of the notice of appeal should be amended to permit an automatic extension of time in case the written final judgement is filed on a later date than the issuance of the oral judgement: 30 days from the date on which the written judgement or sentence was filed.
25. Rule 111 and Rule 112 should be amended to provide as follows:

• The appellant’s brief shall be filed within 60 days of filing of the notice of appeal [reduced from the current rule allowing 75 days];
• The respondent’s brief shall be filed within 60 days of filing of the appellant’s brief [increased from the current rule allowing only 40 days].

26. Regarding multi-accused cases, the relevant Rules/Practice Direction should be amended to allow more time for the Prosecutor to file appellate briefs, both where the Prosecutor acts as either appellant or respondent. The proposal is to allow an extra 15 days per additional appellee/appellant for the filing of appellate briefs in the event the documents triggering the start of the running of the time delay are filed on the same day.
27. Scheduling for Rule 115 related Motions
28. ALAD has experienced some difficulties due to the timing of Rule 115 motions in the appeal process. The Rules have always provided a timeline for bringing a motion for additional evidence, and currently, pursuant to Rule 115 (A), the time limit is 30 days from the date of filing of the brief in reply. While this alone may not create a problem, experience has shown that the Appeals Chamber’s decisions on Rule 115 motions are issued very late in the appeal process, even around the time of the hearing on appeal itself.[21] Nevertheless, such a practice is in compliance with Rule 115 (C), which states that “[t]he Appeals Chamber may decide the motion prior to the appeal, or at the time of the hearing on appeal.”
29. Allowing the decision to be rendered so late prejudices the parties in terms of their ability to properly prepare for the hearing. Further prejudice is caused by the uncertainty of whether the evidence has been admitted or not. It would assist the appeals process if the parties would receive decisions on Rule 115 applications well in advance of the appeal hearing. This way, they could appear at those hearings properly prepared with all the necessary material at hand.
30. Similarly, the Prosecutor often finds himself as the respondent to these motions. Where evidence is admitted on appeal, the Prosecutor then has the right to seek the admission of rebuttal evidence. However, when such decisions on the admission of the evidence are rendered so late, this restricts the Prosecutor’s ability to effectively address and rebut the evidence admitted. For all of these reasons, ALAD would support an amendment to Rule 115 (C) to the effect that the Appeals Chamber has to decide the motion prior to the appeal hearing. To that extent, ALAD submits that while it recognizes the Chamber’s exercise of discretion, it would assist the parties if the Appeals Chamber renders its decisions within reasonable time prior to appeal hearing thus, taking into account that a party seeking to introduce rebuttal evidence requires reasonable time to prepare and submit such evidence.
31. ALAD notes that the Rules presently do not regulate the filing of rebuttal evidence. Although Rule 115 (A) indicates that rebuttal material may be presented by any party affected by the motion, and refers to “the time limit set for the filing of rebuttal material”, neither the Rules nor the Practice Directions provide specific timelines for filings relating to rebuttal evidence. The only clarity provided in this respect can be found in a footnote of a confidential Appeal Chamber’s decision issued in the Nahimana et al. case[22], in which the Appeals Chamber implies that the normal timetable for the briefing of motions during appeals from judgement applies to motions for admission of rebuttal material.[23] It would be desirable to formalize this practice.[24] In order to keep the timetable for the consideration of motions related to Rule 115 additional evidence as short as possible, it is suggested to create a separate rebuttal phase after the Appeals Chamber would have decided to actually admit the additional evidence on appeal. In that way, rebuttal material will only have to be identified with respect to evidence that is actually admitted on appeal.
32. With respect to the length of filings related to Rule 115 additional evidence and Rule 115 rebuttal material, the word limits provided in the Practice Direction on Length functions satisfactorily. As a result, ALAD does not suggest any modification in this regard.[25]

Recommendations

32. Rule 115 should be amended to require the Appeals Chamber to decide a motion related to Rule 115 additional evidence prior to the appeal hearing: the Appeals Chamber shall decide the Rule 115 motion within reasonable time of the filing of the reply to the Rule 115 motion and prior to appeals hearing.
33. The relevant Rule/Practice Direction should be amended to provide a separate briefing schedule for the filing of motions for the admission of rebuttal material, in the event the Appeals Chamber decides to actually admit the additional evidence on appeal:

• If the Appeals Chamber determines that the Rule 115 evidence is admissible, the opposite party would have a further 20 days in which to tender any rebuttal evidence under Rule 115;
• A response to the motion to present rebuttal evidence would have to be filed within 10 days of the filing of the rebuttal evidence;
• Any reply to the response would have to be filed within 4 days of the filing of the response.

Disclosure Issues relating to the Application of Rule 111 (B) and Rule 112 (B)

34. Rules 111 (B) and 112 (B) require ALAD to declare that disclosure has been completed with respect to the material available to the Prosecutor at the time of filing the appellant’s brief and respondent’s brief, respectively. This is a serious obligation placed on ALAD that requires ALAD to actively search the evidence database in order to put itself in a position to comfortably make this declaration.
35. However, ALAD has experienced problems in meeting its disclosure obligations. Most decisions regarding the application of Rule 68 are difficult and taken under time constraints, particularly so at trial. In this context, coordination between the trial teams and ALAD in meeting OTP’s disclosure obligations is crucial. At the ICTR, for example, the failure to disclose material in the Ndindibahizi case during trial resulted in the admission of this evidence during the appeal stage.[26] In the end, it did not have an effect on Ndindabahizi’s conviction,[27] but it shows that late disclosure might be problematic for ensuring the successful completion of cases.
36. In addressing disclosure issues identified above, the Prosecutor issued an OTP Protocol on the Handover of Cases from Trial Teams to ALAD, which includes a specific and efficient procedure for trial teams and ALAD to follow regarding Rule 68 when a case is handed over after the close of trial.[28] This procedure assists the OTP in meeting its Rule 68 disclosure obligations, and will assist ALAD in making its Rule 111 (B) and Rule 112 (B) declarations.

Recommendation

37. Trial teams and appeal teams within the OTP should adhere to the Rule 68 procedures set out in the OTP Protocol on the Handover of Cases from Trial Teams to This will assist ALAD in complying with its obligations under Rule 111 (B) and Rule 112 (B).
38. Specific Factors Contributing to Delays in the Appeals Process
39. In the experience of ALAD, the following factors are critical in delaying appeals proceedings and should be addressed accordingly:

Translation Issues

39. The need to translate documents, such as judgements, decisions, briefs and other filings, from one of the Tribunal’s working languages into the other, based on the language requirements of the defence team and accused, causes delay in the appeals process. The current practice of the Appeals Chamber is to routinely grant Defence request for extensions of time on the basis of such language requirements, taking into account the composition of the appellant’s (or respondent’s) legal team.[29]
40. Although the Appeals Chamber’s practice in this respect functions satisfactorily, the question arises whether the briefing schedule should be adjusted to automatically accommodate genuine language requirements of the accused. This would reduce not only the number of filings on appeal (each motion for extension of time filed by the defence requires a response by the Prosecutor), but also the workload of the Tribunal’s translation services, which usually translate such filings. A suggestion could be to amend Rule 108, and to place an obligation on the Tribunal’s Defence Counsel and Detention Management Section (DCDMS) to indicate, at the moment the Trial Chamber’s Judgement is issued, whether it is delivered in the other official working language of the Tribunal than the one the defence team works in. Where indicated by DCDMS that the defence team works in the other official working language of the Tribunal than the one the Trial Chamber’s Judgement is rendered in, all time limits should run from the date the Judgement is filed in the working language of the defence team.
41. However, such an amendment would only solve part of the problems relating to the filing of requests for extension of time. Often, such requests are filed in cases where lead counsel works, for example, in English, and the accused only understands French, while the Trial Chamber’s Judgement is issued in English. In such cases, according to the Appeals Chamber, there is no justification to grant an extension of time for filing the notice of appeal until the receipt of the French translation of the Judgement, since it lies within lead counsel’s primary responsibility to determine the potential grounds of appeal. Nevertheless, in such cases, the Appeals Chamber routinely grants an extension of time for the filing of the appellant’s brief, and fixes a shorter period of time (than the normal 75 days pursuant to Rule 111) for the filing of the appellant’s brief from the date of the filing of the French translation of the Judgement. The practice of the Appeals Chamber, though, as to how much time to grant defence teams has varied.[30]
42. For these reasons, ALAD does not favour a Rule change to permit automatic extensions of time. Decisions relating to delays for filings should be taken by the Appeals Chamber, and preferably the Pre-Appeal Judge in the context of active case management.[31] On the other hand, ALAD makes the following recommendations with respect to the Tribunal’s translation services in order to contribute better to management of existing resources and to reduce delays:

• In consultation with the Pre-Appeal Judge and the parties, the Tribunal’s translation services should set priorities for translation.[32] Only documents critical to the appeal should be translated, namely documents necessary to the appeal process. This includes documents which trigger the running of a time delay affecting a party, such as a Trial Chamber’s Judgement or an appellant’s brief. Moreover, where for example a decision on a motion has already been issued, the decision itself should be translated as a matter of priority, not the underlying filings;
• The Tribunal’s translation services should regularly report to the Pre-Appeal Judge and the parties on the status of translations, in order to sustain proper accountability.

Compliance with Rules and Practice Directions

43. Although the Rules and the Practice Directions establish clear formal requirements for filings on appeal, a number of motions filed in appellate proceedings concern non-compliance with those requirements, such as filing of oversized briefs or non compliance with time limits. In order to expedite appeals, and to scale down the number of motions in this respect, ALAD makes the following recommendations:

• Although parties are already required to include information regarding the number of words in the form of a word count in each document they file on appeal,[33] they should also be required to notify the Registry, when they file documents on appeal, if they have been granted extensions of word or time limits;
• Counsel failing egregiously to comply with the Rules or Practice Directions should be sanctioned by summarily dismissal of the filing in question, and by, for example, non-payment of fees associated with the filing[34].

Powers of Pre-Appeal Judge and Active Case Management

44. The powers of the Pre-Appeal Judge are described in the provisions of Rule 108 bis. This Rule also contemplates active case management and includes a legislative framework to that effect. Although in the early years of ALAD’s existence, the procedure and practice of pre-appeal management of cases was evolving,[35] nowadays Pre-Appeal Judges seem to be less involved in active management of appeal cases.[36] Nevertheless, a key component in reducing some of the problems during the appeals process identified above, such as translation delays and non-compliance with Rules and Practice Directions, could be achieved by active case management.
45. To that end, ALAD suggests that the Pre-Appeal Judge should attempt to determine himself or herself as much as possible matters necessary to the preparation of the case for a fair and expeditious hearing. Only in exceptional circumstances, he/she should defer matters to the whole bench. Moreover, the Pre-Appeal Judge could ensure the following issues in the context of individual case management:

• Matters pertaining to the administration of the case, such as translations, enforcement of compliance with the Rules and Practice Directions, swift appointment of counsel;
• Efficient scheduling, involving consultation with parties and other Tribunal’s services;
• Focusing of issues to be heard and determined in the appeal.

1. Appeal Hearing
2. Rule 114 states that, after the expiry of the time limits for filing the parties’ briefs, the Appeals Chamber shall set a date for the hearing. However, ALAD has experienced delays in the scheduling of appeal hearings on appeal.[37] The sooner appeal hearings can be scheduled, after appeals have been briefed, the better:

• Expeditious scheduling of appeal hearings is desirable in the context of Article 21 (4) (c) of the Statute, namely the right of the accused to be tried without undue delay;
• Developments in the law may require the filing of supplemental briefs;
• It takes less time to prepare for hearings for counsel who have the issues fresh in their minds close to the end of the briefing;
• The possibility exists that, if there are long delays between the end of the briefing and the hearing on appeal, staff who have not worked on the case have to familiarise themselves with the case from fresh, because of  the high rate of ICTR staff turnover.

47. On the other hand, the current practice of the Appeals Chamber pertaining to time limitations on oral argument functions satisfactorily, for both appeals from final judgement and sentencing appeals.[38] ALAD has therefore no further recommendations to make in this respect.[39] In addition, ALAD encourages the practice adopted by the Appeals Chamber in a few appeals to issue a scheduling order, inviting the parties to address specific issues of concern to the bench.[40] ALAD recommends that this practice is adopted in all appeals, as it focuses the issues during the appeal hearing and contributes to the efficiency of such hearing.

Recommendation

48. Appeal hearings should be scheduled as close as possible to the completion of the written briefing on appeal.
49. Before each appeal hearing, the Appeals Chamber should issue a scheduling order, inviting the parties to address specific issues of concern to the bench.

• Review Proceedings and Requests for Reconsideration

50. Both Article 25 of the Statute and Rules 120 and 121 provide for the mechanism to apply to a Chamber for review of a judgement. The combined effect of these provisions of the Statute and the Rules establish not only the criteria that must be satisfied, but also the procedure that must be followed by the moving party. The concept of review is considered to be an exceptional procedure which is not meant to provide an opportunity for a party to remedy its failings at trial and on appeal.[41] In this context, the moving party (Prosecution or Defence) must demonstrate that:
    1. there is a new fact;
    2. the new fact must not have been known to the moving party at the time of the proceedings before the Trial Chamber or the Appeals Chamber;
    3. the lack of discovery of the new fact must not have been through the lack of diligence on the part of the moving party; and
    4. the new fact, if proved, could have been a decisive factor in reaching the decision.[42]

The Appeals Chamber decided that a Chamber, in order to prevent a miscarriage of justice, may step in and grant a motion for review, even if the cumulative criteria set out above are not satisfied, but only provided that the new fact is of such strength that it would affect the verdict.[43]

51. Pursuant to Rule 120 (A), the Defence may seek review at any time, even many years after the final judgement, while the Prosecution may only make a motion for review within one year after the final judgement has been pronounced. ALAD does not suggest an amendment in this respect. Furthermore, Rule 121 prescribes a two-stage procedure. First, the competent body (Trial Chamber or Appeals Chamber) has to determine whether the preliminary requirements under the Rules are met. Rule 121 explicitly provides that the review Chamber, first, has to agree that the new fact, if proved, could have been a decisive factor in reaching a decision. Only after the review Chamber has made this determination, through a preliminary examination, the Chamber is competent, in a second stage, to review the judgement and pronounce a further judgement after hearing from the parties.
52. The review Chamber conducts the first preliminary phase on the basis of the parties’ written briefs.[44] Rule 120 provides for a time limit of 40 days for the responding party to file a brief in response[45], and 15 days for the applicant to file a brief in reply[46]. This regime functions satisfactorily, and no modifications are therefore suggested.
53. Both the Rules and the Practice Directions are silent with respect to the word limits for requests for review, responses and replies thereto. In absence of guidance of the Rules, the Appeals Chamber has reasoned that the word limit for requests for review and responses should not be greater than the longest brief permitted under the Practice Direction for an appeal from judgement.[47] In other words, briefs and responses may not exceed 30,000 words, and replies may not exceed 9,000 words.[48] This word limit functions satisfactorily, but should be explicitly incorporated in the relevant Rule/Practice Direction.
54. With respect to requests for reconsideration, neither the Statute nor the Rules provide for the remedy of reconsideration. However, it is well established that the Appeals Chamber has inherent discretionary power to reconsider its own previous decisions (but not final judgements).[49] A Chamber may reconsider a previous interlocutory decision under ‘its inherent discretionary power’:

• if a clear error of reasoning has been demonstrated, or
• if it is necessary to do so to prevent an injustice.[50]

55. Since no specific procedure is provided for in the Rules, ALAD recommends that the Rules should specifically provide for the remedy of reconsideration during the appeals process, as established within settled jurisprudence. The proposal is to fix a time limit within which a party can seek reconsideration of a decision issued by the Appeals Chamber, in order to prevent parties from endlessly relitigating an issue decided by the Appeals Chamber.[51] The recommendation is that requests for reconsideration shall be filed within 10 days of the filing or the oral pronouncement of the impugned decision, unless good cause has been shown for an extension of the time limit pursuant to Rule 116 (A). The normal briefing schedule for motions during appeals from judgement should further apply, meaning that the opposite party should file a response within 10 days of the filing of the request for reconsideration, and the moving party should file a reply, if any, within 4 days of the filing of the response.[52] This should be made clear in the relevant Rule/Practice Direction.
56. In addition, the Practice Direction on Length should clarify that the word the Rules regarding motions during appeals from judgement also applies to filings relating to requests for reconsideration.[53] Although this already seems to apply in practice, such practice should be formalized for sake of clarity.

Recommendations

57. The relevant Rule/Practice Direction should be amended to provide a separate Rule regulating the filing of briefs relating to review proceedings, as follows:

• A motion for review of the final judgement shall not exceed 30,000 words;
• Any brief in response to a request for review shall not exceed 30,000 words;
• Any brief in reply shall not exceed 9,000 words.

58. The Rules should be amended to specifically provide for the remedy of reconsideration in appellate proceedings. The relevant Rule/Practice Direction should include the following time limits:

• A request for reconsideration shall be filed within 10 days of the filing or the oral pronouncement of the impugned decision;
• The opposite party shall file a response within 10 days of the filing of the request for reconsideration;
• The moving party may file a reply within 4 days of the filing of the response.

59. The relevant Practice Direction should clarify that the word limit regime for motions during appeals from judgement applies to filings regarding requests for reconsideration:

• Motions, responses and replies relating to requests for reconsideration will not exceed 3,000 words.

1. Practice Directions
2. The Appeals Chamber has issued three Practice Directions, which are crucial with respect to the filing of written submissions on appeal, and, thus, critical to the work of ALAD. These Practice Directions have already been addressed above in part under the discussion regarding the Rules, where appropriate, and this discussion is incorporated by reference. In addition, ALAD would like to make the following comments:

• Practice Direction on Formal Requirements

61. This Practice Direction of 4 July 2005 addresses the formal requirements for, respectively, notice of appeal, motion for variation of grounds of appeal, appellant’s brief, respondent’s brief, appellant’s brief in reply and motions to admit additional evidence pursuant to Rule 115. Each section of the Practice Direction contains detailed instructions, which ought to be applied by the filing party. The formal requirements regarding other filings in appeal proceedings are, however, contained in a different Practice Direction, namely the Practice Direction on the Filing of Written Submissions. This Practice Direction includes formal requirements for appeals from decisions where appeal lies of right; appeals from Rule 11 bis, Rule 77 and Rule 91 decisions; appeals from decisions where certification has been granted by a Trial Chamber; and motions during appeals from judgement. Since the formal requirements are thus spread out over two different legal instruments, ALAD suggests harmonizing this regime within one consistent document.
62. In addition, ALAD recommends introducing model standard formats for briefs on appeal and pre-appeal applications, which the filing parties are required to follow during the appellate process. Such formats provide guidance to the parties on what the Appeals Chamber expects from written submissions. At the same time, it would contribute to the quality of written submissions, and reinforce the provisions already existing in the Practice Directions mentioned above, which are designed to compel the parties to address the issues that must be addressed on appeal. Model standard formats for appellant’s brief, respondent’s brief, appellant’s brief in reply and pre-appeal applications are attached.[54] These formats include and closely follow the formal requirements set by the Practice Directions. They are based upon existing frameworks used by ALAD staff to present ALAD’s written submissions to the Appeals Chamber.

Recommendation

63. ALAD recommends the adoption of model standard formats for briefs on appeal and pre-appeal applications, in accordance with the attached models (see Annexes III-VI).

• Practice Direction on Length

64. This Practice Direction of 8 December 2006 contains requirements both with respect to page length and format. The page length is expressed as a ‘word limit’. The Practice Direction contains specific requirements for briefs regarding appeals from Judgement (including consolidated briefs and briefs relating to sentencing appeals); filings regarding interlocutory appeals; and other motions, responses and replies during appeals from Judgement (including filings related to Rule 115 additional evidence and Rule 115 rebuttal material).[55]
65. However, the Practice Direction does not include a specific Rule regarding the length for filings related to review proceedings and Rule 11 bis, Rule 77 and Rule 91 proceedings.[56] For Rule 11 bis’ appeals, and Rule 77 and Rule 91 appeals, direction can be found in the Practice Direction on Filing of Written Submissions. It includes a separate heading for appeals pursuant to Rule 11 bis (H), Rule 77 (J) and Rule 91 (I). This Practice Direction states that the word limitation for ‘interlocutory appeals’ is applicable to such appeals.[57] This means that the word limit for motions and responses is 9,000 words, and, for replies, 3,000 words. Again, a harmonized document for easy-reference would be practical, which incorporates in one legal instrument all the word limits regarding filings on appeal, and is therefore recommended.

• Practice Direction on Filing of Written Submissions

66. This Practice Direction of 8 December 2006, as noted above, provides formal requirements for different categories of appeals and sets time limits for the relevant filings. The Practice Direction contains a specific regime for appeals from decisions where appeal lies of right; appeals from Rule 11 bis, Rule 77 and Rule 91 decisions; appeals from decisions where certification has been granted by a Trial Chamber; and motions during appeals from Judgement (including a motion pursuant to Rule 115, but not filings regarding Rule 115 rebuttal material).[58]
67. However, it is noteworthy that the calculation of the time limits set in the Practice Directions is different from the one provided for in the Rules. The Practice Directions state that the time limits shall run from, but shall not include the day upon which the relevant document is filed.[59] This is a different calculation than the calculation provided for in the Rules. Rule 7 ter (A) holds that any time limit prescribed under the Rules shall run “as from the occurrence of the events”, being, for example, the day upon which the relevant document is filed.[60] As a result, the time limits prescribed in the Rules for the filing of the notice of appeal, appellant’s brief, respondent’s brief, brief in reply run from the “occurrence of the events”. The calculation of time regime set out in the Rules also applies to time limits set for Rule 115 filings and filings related to review proceedings, pursuant to Rule 120.
68. In this respect, ALAD recommends a harmonization of the different Rules for calculating time limits.

Recommendation

69. It should be made clear, in the Rules and Practice Directions, that time delays begin to run from the date following the filing of the document triggering the start of the running of the time delay.

• Practice Direction on Withdrawal of Pleadings

70. This Practice Direction of 24 April 2004 regulates the withdrawal of pleadings during the trial stage. The Appeals Chamber has applied the same Practice Direction during appellate proceedings.[61] If a party seeks to withdraw a pleading or a ground of appeal, it is not necessary to file a motion requesting leave of the Appeals Chamber to do so. A simple notice of withdrawal filed with Registry is sufficient. The party concerned can also communicate this orally to the Appeals Chamber, for example, during the appeals hearing.[62] Since this Rule functions satisfactorily, the only recommendation would be that the Practice Direction be adjusted to specifically indicate that it also applies during appellate proceedings.
71. Practical Aspects of Managing Appeals within OTP
72. Within the OTP, ALAD has experienced the following practical issues regarding managing appeals:

• Maintaining Compliance with Deadlines

72. The Appeals Chamber is not inclined to “forgive” the OTP for missing a deadline. In the early years, it has happened that Prosecution appeals have not been heard due to the OTP not filing a notice of appeal in time (this happened in both the Ruzindana and Kajelijeli cases)[63]. Therefore, an efficient tickler system is necessary internally to ensure that all deadlines are immediately noted and prescribed to.
73. Further, the Appeals Chamber refuses to grant the OTP an extension of time on the basis of translation needs.[64] As such, in order for ALAD to be able to meet its deadlines, a fully functioning and dedicated team of translators needs to be assigned to ALAD to ensure that translations can be provided to ALAD counsels who are not able to work in both official working languages of the Tribunal.
74. In order to ensure that deadlines are adhered to, the Prosecutor and the Chief of ALAD have issued an ALAD Protocol on the Timelines for the Filing of Appeal Briefs before the Appeals Chamber.[65] It provides minimum requirements for meeting deadline expectations. Moreover, it strongly encourages counsel of ALAD “to provide drafts that are completed to the highest standard of written advocacy and that respect and strictly adhere to the standards of formatting and style that have been developed by ALAD.”[66] If indeed adhered to internally within ALAD, this Protocol should guarantee that deadlines are being complied with.

• Handover of Cases from Trial Teams to ALAD

75. It has proven to be a prudent management decision within the OTP to have a separate team of lawyers handling an appeal than those that handled the trial. The substitution in lawyers allows for the necessary change in perspective, which follows from the new lawyers being able to review the case with “fresh eyes” for purposes of appeal. This ensures that an appeal does not descend into a re-litigation of the trial. ALAD would recommend that future tribunals adopt this practice.
76. However, difficulties arise if ALAD counsel are not able to properly familiarize themselves with the trial record and trial issues prior to the pronouncement of the Trial Judgement. As noted above, the OTP has instituted a Handover Protocol[67] to try to institutionalize the manner in which all cases are handed over in order to improve the flow of knowledge. However, members of trial teams sometimes struggle for a whole variety of reasons to fully cooperate with ALAD on these matters. The Prosecution Division, just as ALAD, faces problems based on restrictions in personnel resources. In addition, the time constraints at trial are generally more pronounced than on appeal.
77. The Handover Protocol stipulates that, before the receipt of the trial judgement, a monitoring arrangement will be put in place whereby a team of ALAD will be designated to work with a trial team on a case in order to familiarize itself with the case, which also includes reviewing the closing brief to provide any suggestions or feedback prior to it being filed. In this respect, ALAD suggests to “attach” one of its members to a trial team at the end of the trial to familiarize him or herself with the case and to assist with the Closing Brief.[68] This would have two significant beneficial effects. First, the trial teams would benefit from the knowledge that the ALAD member would be able to contribute to the Closing Brief with respect to the recent jurisprudence on the relevant issues. The second advantage would be that an ALAD member, who would then stay with that case through the appeal, would be in a position to fully familiarize him or herself with the case and to be able to assist in the preparation of the handover of the case to ALAD. This would be a way to ensure a more seamless transition of the case to ALAD.
78. A successful Office depends on the cooperation between the different divisions, namely the Prosecution Division and ALAD within OTP. An efficient coordination between these divisions will ensure that ALAD receives the required material and assistance from trial teams within a reasonable amount of time before and after the close of the trial.

• Management of Staff – Ensuring ‘Quality Control’

79. The work of ALAD requires top quality counsels who are able to research and write effectively. As noted above, most of ALAD’s work is by way of written briefs. As such, special care and attention during recruitment ought to go into ensuring that counsels are able to draft written briefs well.
80. To assist in maintaining high quality work, ALAD ought to produce and update practice protocols on the manner in which all written briefs should be formatted and styled. In addition, continuing legal education within ALAD, including training in effective oral and written appellate advocacy, assists in improving ALAD’s performance and in maintaining its standards of excellence. Consequently, it is important to keep the continuing legal education aspect ‘alive’, also when the OTP is completing its mandate and there seems to be less time to invest in continuous learning.

• Specific Assistance to Trial Teams

81. Due to the nature of its work, ALAD tends to have a broader view of the jurisprudence of the Tribunal, and an overview of all of the cases of the Tribunal. ALAD is therefore in an exceptional position to advise trial teams, especially with respect to indictment reviews and interlocutory appeals.
82. Difficulties sometimes arise at the appeal stage with respect to the manner in which indictments are pleaded. In order to address this issue, ALAD ought to be directly involved in internal indictment reviews, which takes place prior to the submission of the indictment for confirmation. ALAD can assist in ensuring that the pleadings give sufficient notice to the Defence of the material facts underpinning the charges and that the crimes are charged in accordance with Appeals Chamber jurisprudence. Such a practice would contribute to the efficacious prosecution of cases and reduce the risk of losing convictions at the appeal stage, as occurred, for example, in Muvunyi.[69]
83. Interlocutory appeals often raise issues of significance to the whole of the OTP. The involvement of ALAD in such appeals is therefore advisable. Interlocutory appeals ought to remain the main responsibility of trial teams.  ALAD can, however, play an important role, in order to:

• Ensure a coherent and consistent approach to issues arising in interlocutory appeals across the board within OTP;
• Assist trial teams with advice based on the most up-to-date legal research; and
• Ensure that trial teams adhere to broad policy positions developed by the Prosecutor, in dealing with interlocutory appeals.

84. Such a role implies that ALAD would monitor the trials conducted by the Prosecution Division with the aim to provide assistance and advice primarily with respect to interlocutory appeals. In addition, ALAD may support trial teams in the drafting of requests for certification to appeal, appeals or responses to appeals.  The Prosecution Division and ALAD need to cooperate in handling interlocutory appeals, so that they could be dealt with in the most efficient manner within the tight deadlines that apply.
85. Conclusion
86. The ‘lessons learned’ within ALAD suggests that, although the appellate legal framework functions mainly satisfactorily, certain modifications are required to streamline the appeals process and to facilitate ALAD’s work. This would also ensure that appellate proceedings are both expeditious and fair. ALAD hopes that the recommendations formulated above will assist future tribunals in conducting their appellate proceedings in such a way.
87. However, not all the lessons are yet learned. ALAD is still expanding, as the OTP work load shifts from trial to appeals, and will thus continue to confront new challenges. It is hoped that some of the proposals made, not only with respect to procedure and practice, but also regarding practical aspects of managing appeals, will support ALAD to meet its challenges with success within the OTP.

SUMMARY OF RECOMMENDATIONS

Interlocutory Appeals

87. The relevant Rule/Practice Direction should be amended to allow more time to file an interlocutory appeal, where certification has been granted: 15 days from certification to file the interlocutory appeal.

Appeals from Final Judgements

88. Rule 108 regarding the filing of the notice of appeal should be amended to permit an automatic extension of time in case the written final judgement is filed on a later date than the issuance of the oral judgement: 30 days from the date on which the written judgement or sentence was filed.
89. Rule 111 and Rule 112 should be amended to provide as follows:

• The appellant’s brief shall be filed within 60 days of filing of the notice of appeal [reduced from the current rule allowing 75 days];
• The respondent’s brief shall be filed within 60 days of filing of the appellant’s brief [increased from the current rule allowing only 40 days].

90. Regarding multi-accused cases, the relevant Rules/Practice Direction should be amended to allow more time for the Prosecutor to file appellate briefs, both where the Prosecutor acts as either appellant or respondent. The proposal is to allow an extra 15 days per additional appellee/appellant for the filing of appellate briefs in the event the documents triggering the start of the running of the time delay are filed on the same day.
91. Rule 115 should be amended to require the Appeals Chamber to decide a motion related to Rule 115 additional evidence prior to the appeal hearing: the Appeals Chamber shall decide the Rule 115 motion within reasonable time of the filing of the reply to the Rule 115 motion.
92. The relevant Rule/Practice Direction should be amended to provide a separate briefing schedule for the filing of motions for the admission of rebuttal material, in the event the Appeals Chamber decides to actually admit the additional evidence on appeal:

• If the Appeals Chamber determines that the Rule 115 evidence is admissible, the opposite party would have a further 20 days in which to tender any rebuttal evidence under Rule 115;
• A response to the motion to present rebuttal evidence would have to be filed within 10 days of the filing of the rebuttal evidence;
• Any reply to the response would have to be filed within 4 days of the filing of the response.

93. Trial teams and appeal teams within the OTP should adhere to the Rule 68 procedure set out in the OTP Protocol on the Handover of Cases from Trial Teams to ALAD. This will also assist ALAD in complying with its obligations under Rule 111 (B) and Rule 112 (B).
94. In order to reduce delays due to translation issues and to contribute better to management of existing resources, ALAD makes the following recommendations with respect to the Tribunal’s translation services:

• In consultation with the Pre-Appeal Judge and the parties, the Tribunal’s translation services should set priorities for translation. Only documents critical to the appeal should be translated, namely documents necessary to the appeal process. This includes documents which trigger the running of a time delay affecting a party, such as a Trial Chamber’s Judgement or an appellant’s brief. Moreover, where for example a decision on a motion has already been issued, the decision itself should be translated as a matter of priority, not the underlying filings;
• The Tribunal’s translation services should regularly report to the Pre-Appeal Judge and the parties on the status of translations, in order to sustain proper accountability.

95. To ensure full compliance with the formal requirements (including timelines) set by the Rules and Practice Directions, ALAD makes the following recommendations:

• Although parties are already required to include information regarding the number of words in the form of a word count in each document they file on appeal, they should also be required to notify the Registry, when they file documents on appeal, if they have been granted extensions of word or time limits;
• Counsel failing egregiously to comply with the Rules or Practice Directions should be sanctioned by summarily dismissal of the filing in question, and by, for example, non-payment of fees associated with the filing.

96. In compliance with Rule 108 bis, the powers of the Pre-Appeal Judge should be reinforced to ensure the following issues in the context of active case management:

• Matters pertaining to the administration of the case, such as translations, enforcement of compliance with the Rules and Practice Directions, swift appointment of counsel;
• Efficient scheduling, involving consultation with parties and other Tribunal’s services;
• Focusing of issues to be heard and determined in the appeal.

To that end, the Pre-Appeal Judge should attempt to determine himself or herself as much as possible matters necessary to the preparation of the case for a fair and expeditious hearing. Only in exceptional circumstances, he/she should defer matters to the whole bench.

97. Appeal hearings should be scheduled as close as possible to the completion of the written briefing on appeal. Before each appeal hearing, the Appeals Chamber should issue a scheduling order, inviting the parties to address specific issues of concern to the bench.
98. ALAD recommends the adoption of model standard formats for briefs on appeal and pre-appeal applications, in accordance with the attached models (see Annexes III-VI).
99. It should be made clear, in the Rules and Practice Directions that time delays begin to run from the date following the filing of the document triggering the start of the running of the time delay.

Review Proceedings and Requests for Reconsideration

100. The relevant Rule/Practice Direction should be amended to provide a separate word limit regime for the filing of briefs relating to review proceedings, as follows:

• A motion for review of the final judgement shall not exceed 30,000 words;
• Any brief in response to a request for review shall not exceed 30,000 words;
• Any brief in reply shall not exceed 9,000 words.

101. The Rules should be amended to specifically provide for the remedy of reconsideration in appellate proceedings. The relevant Rule/Practice Direction should include the following time limits:

• A request for reconsideration shall be filed within 10 days of the filing or the oral pronouncement of the impugned decision;
• The opposite party shall file a response within 10 days of the filing of the request for reconsideration;
• The moving party may file a reply within 4 days of the filing of the response.

102. The relevant Practice Direction should clarify that the word limit regime for motions during appeals from judgement applies to filings regarding requests for reconsideration:

• Motions, responses and replies relating to requests for reconsideration will not exceed 3,000 words.

ANNEX I: PRACTICE DIRECTION ON LENGTH

 

	Brief	Response	Reply
Appeals from judgement (para. C, 1)	30.000	30.000	9.000
Appeals from judgement: Prosecutor files consolidated briefs (para. C, 1)	30.000 + 10.000 in respect to each additional appellee	30.000 + 10.000 in respect to each additional appellant	9.000 + 3.000 in respect of each appellee
Sentencing appeals (para. C, 1)	12.000	12.000	3.000
Interlocutory appeals [also Rule 11bis appeals] (para. C, 2)	9.000	9.000	3.000
Other motions, responses and replies during appeals from judgement (para. C, 3)	3.000	3.000	3.000
Rule 115 motion (para. C, 3)	9.000	9.000	3.000
Rule 115 rebuttal material (para. C, 3)	3.000	3.000	3.000
Rule 11 bis, Rule 77 or Rule 91 decisions[70]	9.000	9.000	3.000

 

ANNEX II: PRACTICE DIRECTION ON FILING OF WRITTEN SUBMISSIONS

	Notice of appeal	Appeal brief	Response	Reply
Appeals from decisions where appeal lies as of right	N/A	15 days from filing of impugned decision (Rule 72 (C))	10 days (para. II, 2)	4 days (para. II, 3)
Rule 11bis, Rule 77 and Rule 91 decisions	15 days from decision (para. III, 4)	15 days (para. III, 5)	10 days (para. III, 6)	4 days (para. III, 7)
Appeals from decisions where certification has been granted by a Trial Chamber	N/A	7 days of the filing of certification (Rule 72 (C), Rule 73 (C), para. IV, 9)	10 days (para. IV, 10)	4 days (para. IV, 11)
Motions during appeals from judgement	N/A	N/A	10 days (para. V, 13)	4 days (para. V, 14)
Motion pursuant to Rule 115 (not rebuttal motions)	N/A	30 days from the filing of the brief in reply during appellate proceedings (Rule 115 (A)	30 days (para. V, 13)	14 days (para. V, 14)

 

ANNEX III: FORMAT FOR APPELLANT’S BRIEF

Except in an appeal from sentence only,[71] the Appellant’s Brief[72] shall consist of the following Parts, each containing the headings, subheadings, and information described herein:

PART I—STATEMENT OF THE CASE ON APPEAL

1. Issues on Appeal

A statement identifying the appellant and the Trial Chamber appealed from, the nature of the charge or charges, the result of the trial, and whether the appeal is from conviction, conviction and sentence,[73] acquittal, or other disposition shall appear here.

A further statement briefly describing the essential facts of the case, in summary form, may appear here.

A further statement succinctly describing the grounds of appeal, and summarizing the errors of law invalidating the decision, or the errors of fact that have occasioned a miscarriage of justice, shall appear here.

1. Factual Background

(i)         Facts

A concise outline of the facts found by the Trial Chamber, which are relevant to the appeal, with references to paragraphs in the trial Judgment, or to the trial record, shall appear here.  [To the extent that no such facts were found, as may be in the case of an appeal from acquittal, then a concise summary of the relevant allegations, with references to recitals in the trial Judgment, or to the trial record, or to the indictment, as required, may be used.]

 (ii)       Procedural History

A concise outline of the procedural history of the case, with references to paragraphs in the trial Judgment, or to the record of the proceedings, shall appear here.

1. Rule 111 (B) Declaration[74]

PART II—APPELLANT’S ISSUES

A statement of each ground of appeal shall appear here, under an appropriate heading, in the order that it appears in the Notice of Appeal.  Each statement shall identify the error of law or fact that is raised, with specific reference to the trial Judgment, or ruling, or other record of the proceedings, pertaining to the error, and shall explain why the error invalidates the decision, or has occasioned a miscarriage of justice, as the case may be.  Each statement shall contain a concise statement of the law and authorities relating to the issue.  Subheadings may be used, as necessary, to organize the argument.

PART III—RELIEF SOUGHT

A statement of the order that the Appeals Chamber will be asked to make, stipulating the nature of the relief sought, shall be set out here.

The date of the Appellant’s Brief, the location at which it was produced, and the signature(s) of counsel shall follow here.

Appendix A—Authorities Cited

Full citations of authorities relied upon shall appear here.

Appendix B—Tables and Charts

Any necessary tables or charts shall be attached here, as further appendices.

ANNEX IV: FORMAT FOR RESPONDENT’S BRIEF

Except in an appeal from sentence only,[75] the Respondent’s Brief[76] shall consist of the following Parts, each containing the headings, subheadings, and information described herein:

PART I—OVERVIEW OF APPEAL AND FACTUAL BACKGROUND

1. Overview of Appeal

A concise statement of the Respondent’s position on the grounds of appeal raised by the Appellant shall appear here.  A further statement briefly describing the essential facts of the case, in summary form, from the Respondent’s perspective, may appear here.

1. Factual Background

 (i)        The Facts

A statement of the facts in Part I (B) (i) of the Appellant’s Brief that the Respondent accepts as correct, or substantially correct, and those facts, with which the Respondent disagrees, shall appear here, by reference to the relevant pages or paragraphs in the Appellant’s Brief, and shall be followed by a concise summary of any additional facts relied upon, with references to paragraphs in the trial Judgment, or to the trial record.  [To the extent that no such facts were found, as may be in the case of an appeal from acquittal, then the same approach, but in relation to the relevant allegations, with references to recitals in the trial Judgment, or to the trial record, or to the indictment, as required, may be used.]

 (ii)       Procedural History[77]

A statement of the facts in Part I (B) (ii) of the Appellant’s Brief that the Respondent accepts as correct, or substantially correct, and those facts, with which the Respondent disagrees, shall appear here, by reference to the relevant pages or paragraphs in the Appellant’s Brief, and shall be followed by a concise summary of any additional procedural facts relied upon, with references to paragraphs in the trial Judgment, or to the trial record.

1. Rule 112 (B) Declaration[78]
   

PART II—RESPONSE TO APPELLANT’S ISSUES

A statement containing the position of the Respondent, with respect to each ground of appeal raised by the Appellant, shall appear here, under an appropriate heading.  In each case, the paragraphs in the Appellant’s Brief, to which response is being made, shall be identified.  The statement shall explain, where necessary with specific references to the trial Judgment, or ruling, or other record of the proceedings, why there is no error that invalidates the decision, or that has occasioned a miscarriage of justice, as the case may be.  Each statement shall contain a concise statement of the law and authorities relating to the issue.  Subheadings may be used, as necessary, to organize the argument.

PART III—RELIEF REQUESTED

A statement of the order that the Appeals Chamber will be asked to make, stipulating the nature of the relief sought, shall be set out here.

The date of the Respondent’s Brief, the location at which it was produced, and the signature(s) of counsel shall follow here.

Appendix A—Authorities Cited

Full citations of authorities relied upon shall appear here.

Appendix B—Tables and Charts

Any necessary tables or charts shall be attached here, as further appendices.

ANNEX V: FORMAT FOR APPELLANT’S BRIEF IN REPLY

Except in an appeal from sentence only,[79] the Appellant’s Brief in Reply[80] shall consist of the following Parts, each containing the headings, subheadings, and information described herein:

PART I—REPLY TO RESPONDENT’S ISSUES

A statement containing a reply to each of the Respondent’s arguments, pertaining to the arguments made in the Appellant’s Brief, to which the Appellant wishes to reply, shall appear here, under an appropriate heading, in the order that it appears in the Respondent’s Brief.  In each case, the paragraphs in the Respondent’s Brief, to which reply is being made, shall be identified.  Each statement shall identify the error of law or fact that is in issue, with specific reference to the Respondent’s Brief, the trial Judgment, or ruling, or other record of the proceedings, pertaining to the error, as the case may be.  Each statement shall contain a concise statement of the law and authorities relating to the issue, as required.  Subheadings may be used, as necessary, to organize the argument.

PART II—RELIEF SOUGHT

A statement of the order that the Appeals Chamber will be asked to make, stipulating the nature of the relief sought, shall be set out here.

The date of the Appellant’s Brief, the location at which it was produced, and the signature(s) of counsel shall follow here.

Appendix A—Authorities Cited

Full citations of authorities relied upon shall appear here.

Appendix B—Tables and Charts

Any necessary tables or charts shall be attached here, as further appendices.

ANNEX VI: FORMAT FOR PRE-APPEAL APPLICATIONS—APPLICANT

A pre-appeal motion or application[81] shall consist of the following parts, each containing the headings, subheadings, and information described herein:

A.—NATURE OF THE APPLICATION [OR MOTION][82]

(i)         Nature of the Application [or Motion]

Under this heading, every application [or motion] shall commence with a statement providing the following information:

1. the identity of the party making the application,[83]
2. whether the application is made to the Pre-Appeal Judge or the Appeals Chamber [if the Pre-Appeal Judge defers a matter to the Appeals Chamber],
3. the precise relief sought,
4. the Rule(s) of Procedure and Evidence, under which the application is brought,
5. the precise grounds of the application,
6. the documentary or other evidence, upon which the application is based, and
7. whether any order is required abridging or extending the time for filing the application or supporting materials or evidence.

The documentary or other evidence, upon which the application is based, must be appended in full to the application.

(ii)        Factual Background[84]

A concise outline of the facts, procedural or otherwise, which are relevant to the application [or motion], with references to the record of the proceedings, shall appear here.

B.—SUBMISSIONS IN SUPPORT OF THE APPLICATION [OR MOTION]

A statement of each ground in support of the application shall appear here, under an appropriate heading.  Each statement shall explain the factual and legal basis for the relief sought, with a concise statement of the law and authorities relating to the issue.  Subheadings may be used, as necessary, to organize the argument.

With respect to applications for the admission of additional evidence on appeal, under Rule 115, the matters which shall be addressed in the application shall include the following:

1. the relevance of the evidence to a material issue in the appeal;
2. the credibility and reliability of the evidence;
3. whether the evidence was unavailable in any form during the trial, and whether, or not, it could have been discovered through the exercise of due diligence;
4. if the evidence was unavailable in any form during the trial, and could not have been discovered by the exercise of due diligence, how it could affect the decision under appeal;
5. if the evidence was available in some form during the trial, and could have been discovered by the exercise of due diligence, how it would affect the decision under appeal, and why it is necessary to admit it, in order to avoid a miscarriage of justice.

With respect to applications alleging a breach of the Prosecutor’s disclosure obligations under Rule 68, the matters which shall be addressed in the application shall include the following:

1. The nature of the Prosecutor’s disclosure obligation and the basis, including the nature of the evidence or information in issue, for the argument in support of the submission that the obligation was breached; and
2. The material prejudice suffered by the applicant, as the result of the breach.

C.—RELIEF SOUGHT

A statement of the order that the Pre-Appeal Judge or the Appeals Chamber will be asked to make, stipulating the nature of the relief sought, shall be set out here.

The date of the application [or motion], the location at which it was produced, and the signature(s) of counsel shall follow here.

Appendix A—Evidence

In the case of an application, pursuant to Rule 115, the documentary or other evidence shall be appended here.

[1] See Practice Direction on Formal Requirements for Appeals from Judgement, 4 July 2005 (Practice Direction on Formal Requirements); Practice Direction on the Length of Briefs and Motions on Appeal, 8 December 2006 (Practice Direction on Length), an overview of the word limits prescribed by this Practice Direction is attached to this paper as Annex I; Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the Tribunal, 8 December 2006 (Practice Direction on Filing of Written Submissions), an overview of the time limits prescribed by this Practice Direction is attached to this paper as Annex II.

[2] It should be noted though that this experience is still ongoing and will further develop while the Tribunal is completing its mandate, as the focus of judicial proceedings is shifting to appeals. In that sense, ALAD will be confronted, for example, increasingly with appeals in multi-accused cases, which will contribute to and ultimately affect in their own way the lessons learned.

[3] Rule 72 (D).

[4] Rule 72 (B) (ii) and Rule 73 (B).

[5] For the length of briefs relating to interlocutory appeals (both appeals as of right and interlocutory appeals requiring certification), see Practice Direction on Length, which provides in paragraph C, 2 that the briefs of an appellant and respondent will not exceed 9,000 words; and the reply brief of an appellant will not exceed 3,000 words (Annex I).

For the applicable time limits and formal requirements to file the respective briefs, see Practice Direction on Filing of Written Submissions (Annex II):

• Heading II, Appeals from decisions where appeals lies of right, paras. 1-3: 15 days from the filing of the impugned decision to file an appeal (Rule 72 (C)); 10 days of the filing of the appeal to file a response and 4 days to file a reply;
• Heading IV, Appeals from decisions where certification has been granted by a Trial Chamber, paras. 9-11: 7 days of the filing of the decision to certify to file interlocutory appeal, 10 days of the filing of the interlocutory appeal to file a response and 4 days of the filing of the response to file a reply.

[6] Rule 72 (C); Rule 73 (C) and Practice Direction on Filing of Written Submissions, heading IV, para. 9 (Annex II).

[7] This time limit seems to be reasonable, see also recent amendment to Rule 75 (J), which states that appeals against decisions issued under Rule 75 (G) shall be filed within 15 days of the filing of the impugned decision.

[8] Practice Direction on Filing of Written Submissions, heading IV, paras. 10-11 (Annex II).

[9] Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Judgement and Sentence, dated 18 December 2008 and filed 9 February 2009. Similarly, other Trial Chambers have adopted the same practice: in Muvunyi (Case No. ICTR-00-55A-T) oral judgement pronounced on 12 September 2006 and written judgement issued on 18 September 2006; in Seromba (Case No. ICTR-2001-66-T) oral judgement pronounced on 13 December 2006 and written judgement issued on 19 December 2006; in Nchamihigo (Case No. ICTR-01-63-T) oral judgement pronounced on 24 September 2008 and written judgement issued on 12 November 2008; in Rukundo (Case No. ICTR-2001-70-T) oral judgement pronounced on 27 February 2009 and written judgement issued on 13 March 2009; in Renzaho (Case No. ICTR-97-31-T) oral judgement pronounced on 14 July 2009 and written judgement filed 14 August 2009.

[10] It is noteworthy that, out of caution, ALAD routinely files such a motion for extension of time in order to preserve its right to lodge an appeal.

[11] The time limit provided in Rule 113 for the filing of the brief in reply, namely 15 days after the filing of the respondent’s brief, functions satisfactorily.

[12] Rule 111 (A) and Rule 112 (A).

[13] Practice Direction on Length, para. C, 1: 30,000 words for appeals from judgement; 12,000 words for sentencing appeals (see Annex I).

[14] Practice Direction on Length, para. C, 1 (a)(i), (b), (c)(i): a proportional increase in length of 30,000 words + 10,000 words in respect to each additional appellee/appellant for a consolidated appellant’s brief/respondent’s brief; a proportional increase in length of 9,000 words + 3,000 words in respect of each additional appellee for a consolidated brief in reply (see Annex I).

[15] Practice Direction on Length, para. C, 1 (a) (ii).

[16] See, e.g., The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-A, Decision on Prosecution Urgent Motion for an Extension of Time to File Notice of Appeal, 17 December 2003 (Kajelijeli Decision).

[17] Practice Direction on Length, para. C, 1 (c) (ii).

[18] Practice Direction on Length, para. C, 1 (b).

[19] This would also reduce the need for multiple motions for extensions of time in multi-accused cases, as the practice at the ICTY has already demonstrated. See, e.g., Prosecutor v. Nikola Sainovic et al., Case No. IT-05-87-A, Decision on the Prosecution’s Motion for an Extension of Time to File Respondent’s Briefs, 1 October 2009.

[20] Practice Direction on Length, para. C, 1: 12,000 words for appellant’s/respondent’s brief; 3,000 words for brief in reply  (see Annex I)

[21] See, e.g., Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Confidential Decision on Siméon Nchamihigo’s First Motion for Leave to Present Additional Evidence, 28 September 2009 and Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Decision on Siméon Nchamihigo’s Second Motion for Leave to Present Additional Evidence, 28 September 2009 (motions dismissed, but both decisions issued only 1 day before the hearing on appeal on 29 September 2009); Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Zigiranyirazo’s Second Motion for Admission of Additional Evidence on Appeal, 24 September 2009 (additional evidence admitted; decision issued only 4 days before the hearing on appeal on 28 September 2009).

[22] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Confidential Decision on Prosecution’s Motion for Leave to Call Rebuttal Material, 13 December 2006, p. 2, footnote 1.

[23] Practice Direction on Filing of Written Submissions, heading V, paras. 13-14: a response should be filed within 10 days of the filing of the motion, and a reply should be filed within 4 days of the filing of the response (Annex II).

[24] The suggestion would thus be to apply the normal timetable for the briefing of motions during appeals from judgement, as provided under heading V of the Practice Direction on Filing of Written Submissions to motions for admission of rebuttal material. This is in line with the Practice Direction on Length, which prescribes the same word limits for motions, responses and replies during appeals from judgement (other than Rule 115 motions) as for motions, responses and replies related to Rule 115 rebuttal material. See Practice Direction on Length, para. C, 3 (Annex I).

[25] Practice Direction on Length, para. C, 3: motions and responses related to Rule 115 additional evidence shall not exceed 9,000 words, and replies 3,000 words; filings related to Rule 115 rebuttal material shall not exceed 3,000 words (see Annex I).

[26] Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-A, Decision on the Admission of Additional Evidence, 14 April 2005.

[27] Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-A, Judgement, 16 January 2007, paras. 61-73.

[28] OTP Protocol on the Handover of Cases from Trial Teams to ALAD, 22 May 2008, paras. 10-11.

[29] See, e.g., the Military I case in which the Trial Chamber’s Judgement was issued in English: Prosecutor v. Théoneste Bagosora, Case No. ICTR-98-41B-A, Decision on Théoneste Bagosora’s Motion for Extension of Time for Filing Appeal Submissions, 15 January 2009 (the normal time delays for briefing appeals from final judgement starts running from the date of the filing of the French translation of the trial Judgement, on the basis of the fact that the accused does not understand English and his Counsel’s working language is French); The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Extension of Time for Filing Appeals Submissions, 2 March 2009 (Nsengiyumva Decision) (appellant’s brief should be filed no later than 45 days from the date of the filing of French translation of the trial Judgement and brief in reply no later than 15 days from the date of the filing of the French translation of the Prosecutor’s respondent’s brief, on the basis of the fact that the accused does not understand English and his Counsel’s working language is English).

[30] See, e.g., Nsengiyumva Decision (45 days from the date of the filing of the French translation of the trial Judgement); Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Protais Zigiranyirazo’s Motion for Extension of Time, 28 January 2009 (40 days from the date of the filing of the French translation of the trial Judgement).

[31] See submissions below with respect Powers of the Pre-Appeal Judge and Active Case Management.

[32] This could be implemented through active case management by the Pre-Appeal Judge, which will be discussed below.

[33] Practice Direction on Length, para. C, 7.

[34] See, e.g., Rule 73 (F), which pursuant to Rule 107 applies mutatis mutandis to proceedings before the Appeals Chamber.

[35] See, e.g., the status conferences organized during appellate proceedings in the Ndindabahizi case (ICTR-01-71; 8 March 2005) and the Nahimana et al. case (ICTR-99-52-A; 9 March 2005, 1 April 2005 (through video-link), 7 April 2006).

[36] Although the recent scheduling order in Zigiranyirazo appeal for the delivery of the judgement, 6 weeks after the appeal hearing, seem to suggest otherwise. See Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Scheduling Order, 26 October 2009.

[37] This is of course partly due to logistical factors, since the ICTR Appeals Chamber resides in The Hague.

[38] See, e.g., for appeals from final judgement: Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-2001-63-A, Scheduling Order, 22 July 2009; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Scheduling Order, 20 July 2009 (Zigiranyirazo Scheduling Order); Simon Bikindi v. The Prosecutor, Case No. ICTR-01-72-A, Scheduling Order, 20 July 2009 (Bikindi Scheduling Order) (1 hour 30 minutes each for submissions of appellant and respondent, 30 minutes for reply of appellant); for sentencing appeals: Zigiranyirazo Scheduling Order; Bikindi Scheduling Order (30 minutes each for submissions of appellant and respondent, 10 minutes for reply of appellant).

[39] Moreover, ALAD welcomed the abolition of Rule 117 bis, as a result of the amendments adopted at the ICTR 16^th Plenary Session of the Judges on 7 July 2006. The production of Parties’ Books, such as the Appellant’s Appeal Book and the Respondent’s Appeal Book, added very little of value to the handling of the appeal and constituted a waste of time and resources.

[40] See, e.g., Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Order for the Preparation of the Appeal Hearing, 27 August 2009; Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-A, Interoffice Memorandum – Questions to the Parties for Appeals Hearing on 6 July 2006, 26 June 2006.

[41] See, e.g., Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 43 (Barayagwiza Decision).

[42] See, e.g., Prosecutor v. Mlado Radic, Case No. IT-98-30/1-R.1, Decision on Request for Review (Public Redacted Version), 31 October 2006, para. 10; The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-A, Decision on Aloys Simba’s Request for Suspension of Appeal Proceedings and Review, 9 January 2007, para. 8; Eliézer Niyitegeka v. the Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008, para. 13.

[43] Barayagwiza Decision, para. 66.

[44] If the review Chamber is satisfied that the requirements of Rule 120 are met, the review Chamber will order the parties to appear before it to hear their arguments on establishing proof of the new facts and their resulting impact on the final judgement which is being challenged. Logically, the second stage consists of the actual review of the final judgement, and deals with arguments relating to the weight and probative value of the new fact in issue. After having heard the parties, the review Chamber will examine and weigh the evidence, and, where necessary, review the judgement. This judgement may then be appealed according to Rule 122.

[45] Rule 120 (B).

[46] Rule 120 (C).

[47] See, e.g., Prosecutor v. Tihomir Blaskic, IT-95-14-R, Decision on Word Limits in Review Proceedings, 1 February 2006. This ICTY regime is also applicable to briefs filed before the ICTR in review proceedings, since the legal framework set by both the ICTY and ICTR Rules is the same.

[48] See Practice Direction on Length, para. C, 1 (Annex I).

[49] See Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44-A-A, Judgement, 23 May 2005, para. 203 (Kajelijeli Appeals Judgement); Prosecutor v. Zoran Zigic, Case No. IT-98-30/1-A, Decision on Zoran Zigic’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A delivered on 28 February 2005”, 26 June 2006, para. 9; Eliézer Niyitegeka v. The Prosecutor, ICTR-96-14-R, Decision on Request for Reconsideration of the Decision on Request for Review, 27 September 2006, p. 2-3.

[50] Kajelijeli Appeals Judgement, para. 203. See also Karemera et al., in which the Appeals Chamber re-stated these particular circumstances as follows: “Reconsideration is permissible when a new fact has been discovered that was not known to the Chamber at the time it made its original decision, there has been a material change in circumstances since it made its original decision, or there is reason to believe that its original decision was erroneous or constituted an abuse of power on the part of the Chamber, resulting in an injustice.” (The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.14, Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008, 30 January 2009, para. 13).

[51] The remedy of reconsideration is an exception to the principle that the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case to all issues definitely decided by those decisions. See Kajelijeli Appeals Judgement, para. 202.

[52] Practice Direction on Filing of Written Submissions, heading V, paras. 13-14 (Annex II).

[53] Practice Direction on Length, para. C, 3: motions, responses and replies will not exceed 3,000 words (Annex I).

[54] See Annexes III-VI, attached to this paper.

[55] See Annex I.

[56] The rule applicable to review proceedings is discussed above, together with the recommendations made in this respect.

[57] See Practice Direction on Filing of Written Submissions, para. 8, with reference to Practice Direction on Length, para. C, 2.

[58] See Annex II.

[59] Practice Direction on Filing of Written Submissions, heading VI; see also Practice Direction on Formal Requirements, para. 11 (although no time-limit is included in this Practice Direction). The Practice Directions add that, should the last day of a time prescribed fall upon a non-working day of the Tribunal, it shall be considered as falling on the first working day thereafter.

[60] Rule 7 ter applies mutatis mutandis to time limits prescribed in the Rules for the filing of appellate submissions, in accordance with Rule 107.

[61] See, e.g., Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR72.7, Decision on Prosecution Motion to Withdraw Appeal Regarding the Pleading of Joint Criminal Enterprise in a Count of Complicity in Genocide, 25 August 2006.

[62] In Semanza, the Prosecutor abandoned Ground 1 (Commission of genocide, extermination and murder) and Ground 3 (Elements of aiding and abetting genocide and complicity in genocide) of its appeal. The Prosecution took this position in light of the Appeals Chamber’s judgement in Ntakirutimana issued the same day as the appeals hearing in Semanza (13 December 2004). See Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005, para. 348.

[63] The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgment (Reasons), 1 June 2001; Kajelijeli Appeals Judgement, para. 328.

[64] See, e.g., Kajelijeli Decision.

[65] ALAD Protocol on the Timelines for the Filing of Appeal Briefs before the Appeals Chamber, 3 November 2008.

[66] Protocol on the Timelines for the Filing of Appeal Briefs before the Appeals Chamber, p. 1.

[67] OTP Protocol on the Handover of Cases from Trial Teams to ALAD, 22 May 2008.

[68] OTP Protocol on the Handover of Cases from Trial Teams to ALAD, para. 5 (i).

[69] Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Judgement, 29 August 2008.

[70] See Practice Direction on Written Submissions, para. 8, which states that the word limitation for ‘interlocutory appeals’ (Practice Direction on Length, para. C, 2) is applicable to filings on appeal in Rule 11 bis, Rule 77, Rule 91 proceedings.

[71] If the same format is to be used for appeals against sentence only, then this qualification can be removed.

[72] Rule 111.

[73] If the same format is used for sentence appeals, then this sentence should be amended to include, at this point, the words: “sentence only”.

[74] Where the Prosecutor is the Appellant.

[75] If the same format is to be used for appeals against sentence only, then this qualification can be removed.

[76] Rule 112.

[77] According to the current Practice Direction on Formal Requirements, the inclusion of the procedural history is not a formal requirement for a Respondent’s Brief (see para. 5). Nevertheless, it is suggested to include such a section even in a Respondent’s Brief.

[78] Where the Prosecutor is the Respondent.

[79] If the same format is to be used for appeals against sentence only, then this qualification can be removed.

[80] Rule 113.

[81] Rules 54, 107, 115, and 116.

[82] Choose the appropriate description, i.e., Application or Motion.

[83] That is, “The Applicant, AB, applies [or moves]…”, or “The Prosecutor applies [or moves]…”.

[84] The Factual Background is only necessary, where there are background facts, procedural or otherwise, that relate to the application.