Alfred Musema - Appeals Chamber Judgement

1. On 1 March 2000 Musema filed his Notice of Appeal against the Judgement of the Trial Chamber, [1] setting out six grounds of appeal against conviction as well as several arguments against the sentence imposed by the Trial Chamber. [2] On 7 March 2000, the President of the Appeals Chamber designated Judge Lal Chand Vohrah as Pre-Hearing Judge in the instant case. [3] Musema filed his Appellant’s Brief on 23 May 2000 ("Appellant’s Brief"). [4] On 11 and 30 August 2000, the Pre-Hearing Judge granted two of the Prosecutor's motions seeking extension of the time-limit for filing the Respondent's Brief, [5] one of them citing the fact that the Appellant’s Brief was received late and was incomplete, [6] and the other that the Notice on Appeal was not received. [7] The Prosecution finally filed its Respondent’s Brief on 13 September 2000 ("Respondent’s Brief"). [8] On 13 October 2000, Musema filed a motion seeking an extension of the time-limits for filing his reply, [9] which was granted by the Pre-Hearing Judge on 6 November 2000. [10] The Brief in Reply was filed on 26 October 2000 ("Brief in Reply"). [11] On 21 February 2001, the Pre-Hearing Judge issued an order scheduling the hearing on appeal for 28 May 2001. [12] On 28 and 29 May 2001, the Appeals Chamber heard the parties' submissions at the seat of the Tribunal at Arusha.

2. Sometime before the opening of the hearing on appeal, Musema filed a motion requesting the Appeals Chamber to order the Prosecution to disclose exculpatory evidence. To this end, Musema informed the Appeals Chamber that one of the accused persons in detention at the Tribunal’s Detention Facility had given him a statement by a protected witness in the case of The Prosecutor v. Elizaphan Ntakirutimana. Musema contended that the said statement constituted exculpatory evidence with respect to Count 7 on which the Trial Chamber had found him guilty. In his motion, the Appellant requested the Appeals Chamber to order the Prosecution to disclose forthwith to the Defence, all the other statements by Witness II which it may have had in its possession, as well as any other relevant document, pursuant to Rule 68 of the Rules. The Appellant also sought leave to file supplementary grounds of Appeal. [13]

3. On 17 May 2001, the Prosecution filed a notice of intention to disclose three witness statements to Counsel for the Appellant. [14] On 18 May 2001, the Appeals Chamber responded to Musema’s motion, indicating that he had not presented any evidence which suggested to the Appeals Chamber to consider the Prosecution’s decision as "[unjustified]" or that the Prosecution "[failed to fulfil its obligations]". The Chamber added that Musema had not clearly set forth the supplementary grounds of appeal that he intended to submit and that, consequently, the Appeals Chamber could not consider his request. [15]

4. At the opening of the hearing on appeal on 28 May 2001, Musema filed a confidential motion seeking leave to include three witness statements in his Appeal Book (Witnesses CB, EB and AC) as well as a supplementary ground of appeal based on that evidence. [16] In its Decision of 28 September 2001, the Appeals Chamber: (1) denied the motion for leave to file Witness AC’s statement; (2) granted the requests for leave to file the statements of Witnesses EB and CB; (3) denied the request for leave to file a supplementary ground of appeal and ordered that the witnesses whose statements had been accepted be heard before the Appeals Chamber. In that same Order, the Appeals Chamber scheduled the hearing of the said Witnesses for 17 October 2001. [17]

5. On 2 October 2001, the President of the Tribunal issued an order authorizing the Appeals Chamber to hold hearings in the instant case away from the seat of the Tribunal, namely at The Hague (The Netherlands). [18] On 11 October 2001, the President of ICTY ordered that Alfred Musema, upon being transferred to The Hague, be placed in custody at ICTY Detention Facility, and that he remain in custody until an order for his release or his continued detention is issued. [19] As agreed, Witnesses EB and CB as well as the parties’ arguments relating to the said Witnesses were heard by the Appeals Chamber on 17 October 2001.

6. Judgement was delivered on Friday 16 November 2001, at the seat of ICTY at The Hague.

[1] Grounds of Appeal against Conviction and Sentence, filed on 1 March 2000.

[2] The grounds of appeal against the conviction are set out as follows: (1) The burden and standard of proof (errors of law and of fact); (2) Late notice of witnesses; (3) Undue delay; (4) Amendment of the Indictment; (5) Service of the Indictment; and, (6) Cumulative charges.

[3] "[Designation of Pre-Hearing Judges]", filed on 7 March 2000.

[4] "Grounds of Appeal against Conviction and Sentence and Appellant's Brief on Appeal", filed on 23 May 2000. On that occasion, Musema notified the Appeals Chamber of his decision to withdraw the third ground of appeal raised in his Notice of Appeal (relating to undue delay).

[5] "Decision (Prosecution Motion for the Extension of the Time-Limit for Filing the Respondent’s Brief)", rendered on 11 August 2000; "Order (Prosecution supplementary Motion for the Extension of the Time-Limit for filing the Respondent’s Brief), rendered on 30 August 2000.

[6] "Prosecution Motion for the Extension of the Time-Limit for Filing the Respondent's Brief", filed on 18 July 2000. The Appellant responded to the said motion on 2 August 2000. Cf. "Defence Reply to Prosecution Motion dated 17 July 2000 for Extension of Time Limit for Filing the Respondent’s Brief".

[7] "Prosecution Supplementary Motion for the Extension of the Time-Limit for filing the Respondent’s Brief", filed on 24 August 2000.

[8] "Prosecution Respondent's Brief in response to Alfred Musema’s Grounds of Appeal against Conviction and Sentence and Appellant's Brief on Appeal", filed on 13 September 2000.

[9] "Defence Motion requesting Extension of Time Limit for filing of Brief in Reply", filed on 16 October 2000. The Prosecution responded to the said Defence motion on 18 October 2000. Cf. "Prosecution's Response to the Defence Motion requesting an Extension of the Time-Limit for filing of its Brief in Reply".

[11] "Appellant’s Brief in Reply", filed on 26 October 2000.

[12] "Order (hearing on Appeal)", issued on 21 February 2001. The said order was preceded by two others, one describing the organization of the proceedings ("Order (Time for hearing oral submissions"), issued on 28 March 2001 and the other fixing the date of the hearing ("Scheduling Order"), issued on 17 May 2001.

[13] "Defence Motion Under Rule 68 Requesting the Appeals Chamber to Order the Prosecution to Disclose Exculpatory Evidence in its Possession to the Defence; and for leave to File Supplementary Grounds of Appeal", filed on 19 April 2001. The Prosecution responded to the said motion on 4 May 2000. Cf. "Response to Defence Motion Under Rule 68 Requesting the Appeals Chamber to Order the Prosecution to Disclose Exculpatory Evidence in its Possession to the Defence; and for leave to File Supplementary Grounds of Appeal".

[14] "Notification of Intention to Disclose Three Witness Statements to Counsel for the Appellant", filed on 17 May 2001.

[15] "Arr�t (Defence Motion Under Rule 68 Requesting the Appeals Chamber to Order the Prosecution to Disclose Exculpatory Evidence in its Possession to the Defence; and for leave to File Supplementary Grounds of Appeal)", delivered on 18 May 2001.

[16] "Confidential Motion by the Appellant to be filed under seal (i) to file two witness statements served by the Prosecutor on 18 May 2001 under Rule 68 disclosure to the Defence and ; (ii) to file the Statements of Witness II served by the Prosecutor on 18 April 2001 and; (iii) to file a supplemental ground of appeal"; filed on 28 May 2001.

[17] "Decision on the "Confidential Motion by the Appellant to be filed under seal (i) to file two witness statements served by the Prosecutor on 18 May 2001 under Rule 68 disclosure to the Defence and; (ii) to file the Statements of Witness II served by the Prosecutor on 18 April 2001 and; (iii) to file a supplemental ground of appeal"; and Scheduling Order", issued on 28 September 2001.

[18] "President’s authorization to the Appeals Chamber to hold hearings away from the seat of the Tribunal", issued on 2 October 2001.

[19] "[President’s order to have Alfred Musema remanded in custody at the Tribunal's Detention Facility]", issued on 11 October 2001.