Butare

Before :
Judge Theodor MERON, Presiding
Judge Mohamed SHAHABUDDEEN
Judge David HUNT
Judge Fausto POCAR
Judge Inès Monica WEINBERG DE ROCA

THE PROSECUTOR
v/
Pauline NYIRAMASUHUKO & Arsène Shalom NTAHOBALI
Case No. ICTR-97-21-T

Ms. Silvana ARBIA
Mr. Jonathan MOSES
Ms. Adesola ADEBOYEJO
Mr. Manuel BOUWKNECHT

1. These appeals concern a part-heard trial in which one of the three judges of the Trial Chamber was not re-elected; they present an issue as to whether the case should continue or be heard afresh, with a substitute judge being assigned in lieu of the outgoing judge. That being the issue common to all of the appeals, a single decision is being given. The matter arises this way:

2. The joint trial of Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Elie Ndayambje (the “Butare trial”) started on 12 June 2001 in Trial Chamber II before Judge William H. Sekule, Presiding, Judge Winston C. Matanzima Maqutu and Judge Arlette Ramaroson. At the elections of the Tribunal’s judges by the General Assembly of the United Nations on 31 January 2003 for the new mandate beginning on 25 May 2003, Judge Maqutu was not re-elected; the last day of his term of office was 24 May 2003. There are no alternate judges. On 26 March 2003, Judge Navanethem Pillay, then President of the Tribunal, wrote to the Security Council of the United Nations to request the Security Council, among other things, to extend Judge Maqutu’s term at the Tribunal in order to enable him to finish the trial of the Butare, the Kamuhanda and the Kajelijeli cases. In the meantime, President Pillay asked the various Defence Counsel in the Butare trial whether they would give their consent to the possible substitution of a new judge to replace Judge Maqutu for the purposes of continuing that trial. In their responses to Judge Pillay, none of the accused gave their consent. On 19 May 2003, the Security Council adopted Resolution 1482, inter alia, extending Judge Maqutu’s term of office for purposes of finishing the Kamuhanda and Kajelijeli cases but not the Butare trial. On 21 May 2003, the Presiding Judge of the Butare trial reported to President Pillay that, as of 24 May 2003, Judge Maqutu would be unable to sit in the Butare trial. Twenty-three prosecution witnesses had already testified.

3. On 27 May 2003, Rule 15bis was amended. A new paragraph (D) empowered the remaining judges of a Trial Chamber, after the third judge was inter alia not re-elected, to decide to continue the proceedings with a substitute judge, if, taking all the circumstances into account, they determined unanimously that doing so would serve the interests of justice; that provision would apply where the accused did not consent to a continuation of the hearing with a substitute judge, such consent being required after the opening statements provided for in Rule 84 or the beginning of the presentation of evidence pursuant to Rule 85, both of which events had happened in this case. On 6 June 2003, Judge Møse, who had been elected President of the Tribunal on 26 May 2003, accordingly wrote to the parties enquiring whether they would be willing to reconsider their position and consent to a continuation of the trial with a substitute judge. In response, the Defence Counsel for the Accused Sylvain Nsabimana and the Prosecution indicated their consent to continue the trial with a substitute judge. The remaining Defence Counsel reiterated their clients’ withholding of consent for the continuation of the trial with a substitute judge.

4. Taking into account the various submissions of the parties as to whether it would be in the interests of justice to continue the trial with a substitute judge under the new Rule 15bis (D), the Trial Chamber, constituted of Judge Sekule and Judge Ramaroson, decided the following in its “Decision in the matter of proceedings under Rule 15bis (D)” on 15 July 2003 (the “Impugned Decision”):

The Trial Chamber, as constituted by the two judges, had jurisdiction to determine the applicability of the new Rule 15bis to the Butare trial.[1]

The ability of an accused under the old Rule 15bis to withhold consent and thus to force the recommencement of a part-heard case did not amount to a substantive right. An “Accused had no vested right in the purely procedural ability, now superseded, to withhold consent and force recommencement of the trial”.[2] In consequence, the rights of an accused in the pending trial would not be prejudiced by the retroactive application of the new Rule 15bis.

Even if the right to withhold consent were a substantive right, the retroactive operation of the new provision to the trial did not prejudice the rights of an accused in the trial. This was so because the right to withhold consent had to be considered in the context of the other interests of justice. The interests of justice showed that it was correct to continue the case with a substitute judge within the terms of the new provision.

In reaching this conclusion, account was taken of the need for a speedy trial, the willingness of the Defence to proceed in other cases, the absence of consent in this case, the interests of the victims and witnesses, the financial costs and other matters.[3]

5. In furtherance of Rule 15bis (D) and (E), five of the six accused filed appeal against the Impugned Decision on 21 and 22 July 2003 (the “Accused” or the “Appellants”).[4] The Appellants submit, as more fully set out below, that the Trial Chamber committed an error of law by deciding unanimously that it serves the interests of justice to continue the trial with a substitute judge in terms of the new Rule 15bis(D) on the basis of the existing trial record and decisions in the case. They request the Appeals Chamber inter alia to order a trial de novo.

6. The Prosecution filed the “Prosecutor’s Response to the appeals by Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi and Ndayambaje of the Decision by the Trial Chamber in the matter of proceedings under Rule 15bis (D)” on 31 July 2003 (“Prosecutor’s Response”). The Prosecution submits inter alia that the old Rule 15bis did not cover the non-reelection of a judge and was therefore not applicable to the present case. It further argues that no prejudice results to the rights of the accused from the application of the new Rule 15bis to the present case and that the Trial Chamber was correct in finding that it was in the interests of justice to continue the proceedings in the case.

7. Four of the Appellants filed their replies on 4 August 2003.[5] The Accused Ntahobali filed his “Réplique à la réponse du procureur à l’acte d’appel de la ‘Decision in the matter of proceedings under Rule 15bis(D)’ datée du 15 juillet 2003” on 8 August 2003, which was four days out of time.[6] However, by his decision dated 22 August 2003, the pre-appeal Judge in this case decided to authorize the reply as validly filed.

8. The five Appellants made various complaints in their notices of appeal and replies; the main submissions may be authorized as follows:

These submissions will be subsumed in what follows. But first it will be convenient to set out the applicable provisions.

(A) Proposals for amendment of the Rules may be made by a Judge, the Prosecutor or the Registrar and shall be adopted, if agreed to by not less than ten Judges at a Plenary Meeting of the Tribunal convened with notice of the proposal addressed to all Judges.(B) An amendment of the Rules may be adopted otherwise than as stipulated in Sub-Rule (A) above, provided it is approved unanimously by any appropriate means either done in writing or confirmed in writing.(C) An amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case.

9. The Appeals Chamber will address two preliminary arguments. First, the Appellants contend that the two remaining judges in the Butare trial sat in the plenary which amended Rule 15bis on 27 May 2003 and that this impaired their impartiality. [10] The argument overlooks the fact that judges can in a legislative capacity make rules without prejudice to their right to pronounce in a judicial capacity on the vires or operation of the rules so made.[11] In this case, article 14 of the Statute, which gives a rule-making competence to the judges of the Tribunal, does not prevent them from later deciding in their judicial capacity on the vires or operation of the rules adopted.

10. The second preliminary argument is that the two remaining judges in the Butare trial had no jurisdiction to decide whether the new Rule 15bis was applicable to the present case.[12] The contention is that each Trial Chamber must be composed of three members and that a Trial Chamber is only authorised, in furtherance of Rule 15bis (F), to conduct routine matters in the absence of one or more of its members;[13] the question whether the powers conferred by the amended Rule 15bis apply to the present case cannot fall within the definition of “routine matters”.

11. The Appeals Chamber considers that anyone exercising a judicial power has the responsibility and the competence to ensure that he has the power which he is proposing to exercise. The new Rule 15bis (D) gives a judicial power to the two remaining judges, namely, the power to decide whether or not it is in the interests of justice to continue a part-heard case with a substitute judge. This power comprehends the incidental power to decide whether or not this provision is applicable to the particular case of the Butare trial. This incidental power has to be exercised by the two remaining judges to whom the main power is entrusted. The Appeals Chamber cannot see any error committed by them in this respect; it upholds their reasoning as expressed in paragraph 8 of the Impugned Decision.

12. The thrust of the Appellants’ main challenge is that the amended Rule 15bis is not applicable to the Butare trial, the argument being that, were it to apply to that trial, it would be applying retrospectively and that it cannot do that since it concerns substantive rights and does not clearly evidence a retrospective intention. The argument does relate to a pending trial, but since it concerns the continuance of the trial in the future it may be questioned whether any issue of retrospectivity is involved even if a substantive right is implicated.[14] The Appeals Chamber will, however, proceed on the footing that the amendment concerns a substantive right, in the sense of there being a legitimate expectation to be tried in a certain way in order to achieve the fundamental objective of a fair trial, and that retrospectivity is consequently involved in applying the amendment to a pending trial. Nevertheless, the Appeals Chamber does not consider that this ends the matter.

13. Statutes which make alterations in procedure regulate secondary rather than primary conduct; they apply to existing proceedings even though these were commenced before the statutes were made and in that sense may be regarded as retrospective.[15] By contrast, there is a presumption that enactments affecting substantive rights are intended to be prospective.[16] This presumption is however a rebuttable one; if it is rebutted, an amendment, though affecting substantive rights, applies retrospectively (barring any impediment of a constitutional nature) and so can affect existing proceedings.[17]

14. Evidence capable of rebutting the presumption is furnished through Rule 6(C), which states that “an amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case”. It is true that a provision stipulating that a statute is to commence at a certain time does not necessarily mean that the statute is to govern previous conduct into which an inquiry is pending at that time. But it depends on the language of the commencement provision. Here there is one commencement provision; it applies to amendments of all kinds. Therefore, every amendment enters into force “immediately”, i.e., whether substantive or procedural, it applies to all cases of which the Tribunal is then or may in future be seised, the sole qualification being that the amendment, of whatever kind, must not “operate to prejudice the rights of the accused in any pending case”. So, the real and only question under the Rules, as they have been crafted, is whether the new amendment to Rule 15bis will operate to prejudice the rights of the Appellants.

15. That being the only question, the Appellants submit that the new Rule 15bis would operate to prejudice their rights in the pending case for two main reasons. First, they claim that, under the old Rule 15bis, they had an absolute right to withhold consent to the continuation of the case; since 27 May 2003, this right has been materially modified.[18] Second, they submit that they had in fact exercised that right before 27 May 2003 by refusing to give it and had thus earned a consequential right to a rehearing, and that the new Rule 15bis would take away their right to a rehearing.[19] Each argument will be addressed in turn.

16. As to the first of the Appellants’ arguments on prejudice, the Appellants assume that they had a right to withhold consent under the old Rule 15bis in the case of a judge who has not been re-elected. Even if this assumption were correct, the Appeals Chamber considers that this would not put an end to the inquiry, because it is necessary to answer the question, not whether the right to consent was taken away simpliciter, but whether the rights of the Appellants in the Butare trial were prejudiced by the operation of amended Rule 15bis.

17. The Appellants do not take their arguments as far as to suggest that consent is the source of the Tribunal’s competence to provide for continuation of a hearing with a substitute judge, and accordingly there is no need to consider the basis of that competence. The Tribunal will limit itself to observing that, as a matter of pleading, consent may preclude a party from questioning a decision to continue a hearing but that consent cannot give the Tribunal competence to continue if the Tribunal does not otherwise have it; the power of the Tribunal to continue the hearing with a substitute judge exists dehors consent. The Appeals Chamber takes the view that, though apparently absolute, the right to consent to continuation of the trial was not proprietorial but functional. The right to consent gave protection against possible arbitrariness in the exercise of the power of the Tribunal to continue the hearing with a substitute judge; consent was only a safeguard.

18. The question therefore is whether the safeguard provided through the mechanism of consent under the old Rule 15bis was replaced by the modifications made on 27 May 2003 by a safeguard of equivalent value. The new Rule 15bis contains various safeguards: the decision by the two remaining judges is a judicial one; it is taken after hearing both sides; the two remaining judges know the case as it has so far developed; their decision must be unanimous; an appointment can only be made once. Further, there is an unqualified right of appeal by either party from the decision taken by the two remaining judges direct to a full bench of the Appeals Chamber. Finally, in cases where the Appeals Chamber affirms the Trial Chamber’s decision or if no appeal is lodged, the newly assigned judge must certify that he has familiarised himself with the record of the proceedings; if he cannot give the required certificate of familiarisation, he cannot eventually be substituted.

19. In effect, under the new Rule 15bis, the purpose of the old safeguard is met by the various procedures mentioned in paragraph 18 above. In the opinion of the Appeals Chamber, the value of the old safeguard is equivalent to the value of the new one, with the consequence that no material prejudice results to the accused from providing for the application of the new safeguard where the accused withholds his consent: in both cases there is an equivalent protection against arbitrariness. It follows that, even if, in the case of a judge who has not been re-elected, there was a right to consent to continuation of the trial under the old provision, the operation of the newly amended Rule 15bis does not prejudice the rights of the Appellants in the pending trial.

20. The second argument of the Appellants concerning prejudice also assumes, as the Appeals Chamber understands it, that, in the case of a judge who has not been re-elected, the Appellants had a right to consent to a continuation of the trial under the old Rule 15bis. On this basis, they submit that, before 27 May 2003, they had already exercised their right to consent to the continuation of the Butare trial under the old Rule 15bis by refusing that consent. Under paragraph (C) of that Rule, in the circumstances of the case, the President of the Tribunal could only order a continuation of the proceedings with the consent of the accused; in the absence of such consent, he was obliged to order a rehearing. He could have done so before 27 May 2003. Had he done so, he would have been giving effect to a right which had already accrued to the Appellants when they refused to consent. Accordingly, the new Rule 15bis operates to prejudice their rights in the pending trial within the meaning of Rule 6(C).[20]

21. Because of its interest, the second argument of the Appellants has been set out. However, in the view of the Appeals Chamber, the foundation on which it rests is deficient. Even if, in the case of a judge who has not been re-elected, the Appellants had a right to withhold consent under the old Rule 15bis, the Appeals Chamber finds that the right was capable of being qualified by the substitution of a safeguard equivalent in value to that provided by the right to consent and that it was so qualified by the new provision. The second argument of the Appellants on prejudice is therefore rejected.

22. The Appellants do not challenge the existence of a discretion to determine whether the interests of justice require a continuation of the trial. As the Appeals Chamber understands it, their submission is that, in exercising that discretion, the Trial Chamber committed an error of law.[21] However, subject to what is later said in paragraph 35, the Appeals Chamber considers that they have not shown how the Trial Chamber (as composed by the two remaining judges) erred in balancing the interests of justice. The Appeals Chamber does not propose to repeat what the Trial Chamber has said and will only emphasise the following.

23. The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the judge’s ruling may have resulted in injustice to the appellants.”[22]

24. The Appeals Chamber accepts that as between a speedy trial and an equitable trial preference should be given to the latter. But there is no necessary opposition between the two: a trial is inequitable if it is too long drawn out. Speed, in the sense of expeditiousness, is an element of an equitable trial. The Appeals Chamber does not consider that the Trial Chamber meant otherwise or that, in particular, it was deferring to expediency. The Appeals Chamber will credit the Trial Chamber with knowing of the distinction between “expeditiousness” and “expedience”. It notes that the Trial Chamber referred to the command in article 19.1 of the Statute that “Trial Chambers shall ensure that a trial is fair and expeditious …” and that it is in that sense – the sense of “expeditiousness” - that the expression “speedy trial” is understood in major jurisdictions.[23] The Appeals Chambers considers that the decision of the Trial Chamber was not based on expedience.

25. There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages. The Appellants have not attacked the procedure prescribed by Rule 15(A) or Rule 15(B). Under these provisions, a witness could be heard by two judges; that the procedure is, in effect, available only over a short period of time is not relevant to the principle involved. Nor have the Appellants attacked the procedure prescribed by the old Rule 15(C) by virtue of which, in a part-heard case, a substitute judge could come in for the remainder of the trial; that this was possible only with the consent of the accused (where opening statements had been made or evidence had begun to be presented) was, again, not relevant to the principle involved. And then there is the case of deposition evidence admitted under Rule 71. In all these cases, the temporarily absent judge or the substitute judge, as the case may be, is faced with the task of evaluating evidence not given before him.

26. In paragraph 33(k) of its Decision, the Trial Chamber took “due note of the financial costs to the public”, stating, “While monetary costs may not be the overriding consideration in the administration of justice, they may not, on the other hand, be ignored altogether”. It does not appear that the Trial Chamber was saying that financial costs can justify less than a fair trial. Rather than attributing so improbable a view to the Trial Chamber, the Appeals Chamber prefers to understand the Trial Chamber to be saying that unnecessary costs should not be incurred; that was proper. The Trial Chamber was also entitled to consider that, for one reason or another, some of the witnesses from Rwanda who had already testified might not return for a new trial;[24] that again was proper.

27. The Appeals Chamber does not consider it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge. The discretion to continue the trial with a substitute judge is a discretion; the Appeals Chamber can only interfere with the way in which the discretion has been exercised if it has been incorrectly exercised in the circumstances mentioned above. The stage reached in each case need not always be the same. The Appeals Chamber sees no error in the balance made by the Trial Chamber of the various interests of justice in the trial as it relates to each of the Appellants.

28. So far, the Appeals Chamber does not find that the Trial Chamber failed to exercise its discretion or that it made any error in exercising its discretion or that its decision resulted in injustice to the Appellants. This is, however, subject to what is noted below.

29. The appeal brief of Kanyabashi, paragraph 32, says that 22 of 23 witnesses were protected and that their testimony has not been video-recorded;[25] the credibility of the majority, if not all, of these witnesses was questioned in cross-examination. See also paragraphs 31ff of the appeal brief of Ndayambaje and paragraphs 30ff of the appeal brief of Nyiramasuhuko. In the case of the last-mentioned Appellant, 14 of 24 Prosecution witness relevant to her case have already testified. These statements were not controverted by the Prosecution.

30. The position being taken by the Appellants is that the ability to evaluate credibility on a point of demeanour is essential to there being a fair trial as mandated by the supreme instrument, namely, the Statute, and that, in the absence of video-recordings, it will not be possible for the substitute judge to make such an evaluation. Subject to the following, that submission is correct.

31. The Impugned Decision said nothing about any submission having been made to the two judges about the absence of video-recordings and strongly suggests that none was made to them. As the Appeals Chamber understands the briefs before it, neither the Appellants nor the Prosecution asserted before the Appeals Chamber that such a submission had been made to the two judges. In the circumstances of the case, the Appeals Chamber does not consider it correct to consider the point, more particularly in light of the fact that it does not have the benefit of any views of the two judges on it.

32. However, and in any event, it appears to the Appeals Chamber that the two judges were entitled to regard the question of substitution as a process which would be divided up between them and the substitute judge, the question of adequacy of the records (including the availability of video-recordings) being a matter for the substitute judge: he was also a serving judge. The division would be made in the following way:

33. The Tribunal should endeavour to make available to Trial Chambers the video-recordings of witnesses, in particular of protected witnesses. However, it seems to the Appeals Chamber that the adequacy of the record of proceedings is a matter for the substitute judge to pass on; that being so, any inadequacy in the record does not invalidate the decision of the Trial Chamber to continue the trial with a substitute judge. Even after the Trial Chamber has decided in favour of continuation with a substitute judge, the latter joins the bench only upon certifying that he has familiarized himself with the record of the proceedings. The object is obviously to enable him to acquaint himself with the proceedings. If he cannot, he will not give the required certificate and he will not join the bench. But he may feel that, even in the absence of video-recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to review video-recordings which, because they are non-existent, do not form part of the record of the proceedings, does not mean that the judge has not familiarized himself with the record of the proceedings as the record stands and therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved in the manner following:

34. The recomposed Trial Chamber may recall witnesses so as to enable the substitute judge to assess their demeanour on particular points. The recall decision would be made by the recomposed Trial Chamber after the proposed judge has joined it. Where video-recordings are available, an absent judge who reviews such recordings does so as a member of the bench, as in all the cases mentioned in paragraph 25 above. In like manner, in this case the substitute judge would be hearing recalled testimony as a member of the recomposed Trial Chamber. The recall power lies within the normal competence of the recomposed Trial Chamber. It was not for the two judges to authorize it to exercise that competence, although they could note that competence.

35. On this basis, the solution is as follows: If the judge assigned by the President certifies “that he or she has familiarized himself or herself with the record of the proceedings” (which, as mentioned above, does not in this case include video-recordings) and thereafter accordingly joins the bench of the Trial Chamber, the recomposed Trial Chamber may, on a motion by a party or proprio motu, recall a witness on a particular issue which in the view of the Trial Chamber involves a matter of credibility which the substitute judge may need to assess in the light of the witness’s demeanour.

36. The Appeals Chamber has considered whether a rehearing (as opposed to a continuation) could be facilitated by recourse to Rule 92bis (D), which provides for the admission of transcripts of evidence. It notes, however, that the procedure does not apply in relation to “the acts and conduct of the accused” and may not therefore be adequate. The concern of the Appellants with matters of demeanour strongly suggests that some, or all, of the 23 witnesses who have testified have done so in relation to “the acts and conduct of the accused”. For this reason, the Appeals Chamber is not satisfied that the Trial Chamber erred in giving no consideration to the possibility of making recourse to Rule 92bis.

37. The Appeals Chamber finds that the Trial Chamber composed of Judge Sekule and Judge Ramaroson had jurisdiction to decide whether the new Rule 15bis is applicable to the present proceedings, that the Trial Chamber did not err in finding that the application of the new Rule 15bis to the proceedings does not prejudice the rights of the accused in the proceedings, and that it did not err in concluding that it was in the interests of justice that the proceedings should continue with a substitute judge.

[2] Impugned Decision, para. 26. See also paras. 11-25.

[4] “Avis d’appel de Pauline Nyiramasuhuko de la ‘Decision in the matter of proceedings under Rule 15bis(D)’” filed on 21 July 2003 (“Nyiramasuhuko’s notice of appeal”); “Acte d’appel de la ‘Decision in the matter of proceedings under Rule 15bis(D)’ datée du 15 juillet 2003”, filed on 21 July 2003 by the Accused Ntahobali (“Ntahobali’s notice of appeal”); “Acte d’appel de la décision intitulée ‘Decision in the matter of proceedings under Rule 15bis(D)’” filed by the Accused Ndayambaje on 22 July 2003 (“Ndayambaje’s notice of appeal”); “Appel selon l’article 15 bis par.D) E) du Reglement de procédure et de preuve” filed by the Accused Kanyabashi on 22 July 2003 (“Kanyabashi notice of appeal”); “Appel par Alphonse Ntzeriyayo de la décision ‘Decision in the matter of proceedings under Rule 15bis(D)’ rendue par les honorables juges Sekule, président, et Ramaroson le 15 juillet 2003” filed on 22 July 2003 (“Ntzeriyayo’s notice of appeal”).

[5] “Réplique de Pauline Nyiramasuhuko à ‘Prosecutor’s Response to the appeals by Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi and Ndayambaje of the Decision by the Trial Chamber in the matter of proceedings under Rule 15bis(D)”; “Réplique à la réponse du Procureur ‘Prosecutor’s Response to the appeals by Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi and Ndayambaje of the Decision by the Trial Chamber in the matter of proceedings under Rule 15bis(D)” filed by the Accused Ndayambaje; “Réplique à la ‘Prosecutor’s Response to the appeals by Nyiramasuhuko, Ntahobali, Nteziryayo, Kanyabashi and Ndayambaje of the Decision by the Trial Chamber in the matter of proceedings under Rule 15bis(D)” filed by the Accused Ntzeziryayo and “Réplique à la réponse du Procureur relativement à l’appel selon l’article 15bis Par.D) E) du Reglement de procédure et de preuve” filed by the Accused Kanyabashi.

[6] The “Practice Direction on procedure for the filing of written submissions in appeal proceedings before the Tribunal” dated 16 September 2002, provides in its paragraph 3 that the Appellant “may file a reply within four days of the filing of the response.”

[7] See Nyaramasuhuko’s notice of appeal, paras. 3-16; Ntahobali’s notice of appeal, paras. 14-26; Ndayambaje’s notice of appeal, paras.9-10; Kanyabashi’s notice of appeal, paras. 15-28.

[8] See Nyiramasuhuko’s notice of appeal, paras. 15-23; Ntahobali’s notice of appeal, paras.17-39; Ndayambaje’s notice of appeal, paras., 11-15; Kanyabashi’s notice of appeal, paras. 29-40; Nteziryayo’s notice of appeal, paras. 13-31.

[9] See Nyiramasuhuko’s notice of appeal, paras 24-50; Ntahobali’s notice of appeal, paras.40-58; Ndayambaje’s notice of appeal, paras. 16-35; Kanyabashi’s notice of appeal, paras.41-51; Nteziryayo’s notice of appeal, paras.32-38.

[10] The Appellants also argue that the amendment was designed to prevent them from benefiting from their previous refusal to consent. See, for example, the submissions of Nyiramasuhuko in her notice of appeal, paras.12-14, and Nteziryayo’s notice of appeal, paras. 15-17.

[11] Smokovitis v. Greece, ECHR, 11 April 2002, concerned a legislative judgment relating to specific claims, and not the laying down of a legislative norm; it is distinguishable.

[13] See Ndayambaje’s notice of appeal, paras. 9-10, and Nyiramasuhuko’s notice of appeal, paras. 3-10.

[14] On different grounds, such questions were raised in Attorney-General v. Vernazza ₣1960ğ A.C. 965, H.L., at pp. 976 per Lord Denning and at p. 980 per Lord Morris of Borth-y-Gest, and in Landgraf v. USI Film Products, 511 U.S. 244 (1994), at pp. 292-293 per Justice Scalia.

[15] See for example, Rex v.Chandra [1905], 2 K.B.335 ; and Paul v. Paul, 214 Va. 651, 203 S.E.2d 123 (1974).

[16] See Turnbull v. Forman (1885) 15 Q.B.D 234, per Bowen L.J at p.238: “Where the legislature mean to take away or lessen rights acquired previously to the passing of an enactment, it is reasonable to suppose that they would use clear language for the purpose of doing so, or, to put the same thing in a somewhat different form, if the words are not unequivocally clear to the contrary, a provision must be construed as not intended to take away or lessen existing rights. A converse rule is that, where the legislature is dealing with matters of procedure as distinguished from substantive rights, the same presumption does not apply”.

[17] The presumption was not rebutted in Landgraf v. USI Film Products, 511 U.S. 244 (1994), which contains a number of helpful statements on the subject.

[18] Ndayambaje’s notice of appeal, para.13; Nyiramasuhuko’s notice of appeal, paras.18-23; Ntahobali’s notice of appeal, paras.17 and 21 and Nteziryayo’s notice of appeal, paras 19-20.

[19] Nteziryayo’s notice of appeal, paras. 13-14 and 19-21; Ntahobali’s notice of appeal, paras 14-16; Nyiramasuhuko’s notice of appeal, paras 13 and 21-23; Ndayambaje’s notice of appeal, paras. 11-12.

[21] Nyiramasuhuko’s notice of appeal, paras.24-50; Nteziryayo’s notice of appeal, para.12; Kanyabashi’s notice of appeal, paras. 41-51; Ntahobali’s notice of appeal, paras.40-58.

[22] See R. v. McCann, (1991), 92 Cr. App. R. 239 at 251, per Beldam, L.J., reading the judgment of the Court of Appeal and citing Evans v. Bartlam, ₣1937] A.C.473. A civil case can likewise be interpreted to mean that, even if there is no other vitiating error, an appellate court could interfere with the exercise by the lower court of its discretion where the latter “has exceeded the generous ambit within which a reasonable disagreement is possible”. See Lord Fraser of Tullybelton in G. v. G. (Minors: Custody Appeal), ₣1985] 2 All ER 210, H.L., at 228.

[23] See, for example, Black’s Law Dictionary, 7^th ed., p. 1408.