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Article 84

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establishes a special procedure

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to challenge a conviction or sentence

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after a case has been finalised

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and completed.

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Although it falls within the

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jurisdiction of the Appeals Chamber,

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it is not an appeal in the strict sense.

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Rather, it is a procedure

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which allows a miscarriage of

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justice to be averted

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even after all appeals have

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been exhausted.

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This procedure is known as "revision".

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At present,

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no revision application

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has yet been made at the ICC,

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so the interpretation of article 84

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is largely theoretical.

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However, if an application

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of this kind is ever filed,

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reference might be made to 

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similar procedures

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at the ad hoc tribunals.

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For example, in the <i>Šljivančanin</i> case

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at the ICTY,

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a conviction entered on appeal

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was quashed

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based on a revision procedure;

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similar applications

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continue to be made

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at the tribunals' legacy mechanism,

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the MICT.

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It is inherent in the revision

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procedure at the ICC

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procedure at the ICC

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that it may occur some long time

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after a case has been closed.

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Thus, article 84(1)

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provides not only that the Prosecutor

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and the convicted person

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may apply to the Appeals Chamber

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to open revision proceedings,

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but also the spouse,

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parents, or even children

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of a convicted person,

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or an expressly nominated

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agent of the convicted person

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who was alive

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when the convicted person died.

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It is thus entirely possible that

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these proceedings could be triggered

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decades after the original trial.

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When the Prosecutor

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applies for revision,

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she does so on behalf of the

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convicted person,

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consistent with her broader

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duty to make sure that justice is done.

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Unlike appeals under article 81,

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where the Prosecutor might rarely

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be expected to act on behalf

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of the convicted person,

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this possibility may be more

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frequent under article 84,

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since the convicted person

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may be unlikely to have active

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legal representation

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years after their trial was completed.

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Revision proceedings

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can only be brought

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on three grounds.

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The first ground,

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under article 84(1)(a),

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arises if new evidence has

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been discovered

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that was not available

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at the time of the original trial,

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and this was not wholly

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or partially

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attributable to the convicted person.

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In other words, article 84

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does not allow a convicted person

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to use revision proceedings

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as an opportunity to explore matters

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which they chose not to pursue at trial.

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This requirement will usually be met

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by evidence which

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did not exist at the time of the original trial,

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or could not be located

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with due diligence.

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For example,

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a completely unknown witness.

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Moreover, not any kind

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of new evidence is sufficient.

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of new evidence is sufficient.

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The new evidence must,

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under article 84(1)(a)(ii),

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be "sufficiently important"

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that, if it had been introduced at trial,

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it would have been "likely"

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to result in a different verdict.

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This requirement thus both means

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that the evidence must

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be of a sufficient quality,

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in the sense that it must be evidence

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which the original Trial Chamber

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could have relied upon

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and it must have a certain impact,

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it must go to matters which,

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if decided differently,

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would have changed the outcome

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of the trial in some way.

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The second ground for revision,

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under article 84(1)(b),

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requires that it has been "newly discovered",

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in other words,

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after the original proceedings,

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that "decisive evidence",

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taken into account at trial,

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"was false, forged, or falsified".

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Again, this test has multiple parts.

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It only applies

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to some kinds of evidence

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-the evidence which determined

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the outcome of the trial

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in some way.

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And it requires a showing

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that this evidence was not authentic

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or honestly given,

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for example a witness who lied,

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or a document which was faked

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or otherwise tampered with.

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The third ground for revision,

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under article 84(1)(c),

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requires a showing that one of the judges

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of the Pre-Trial Chamber

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or Trial Chamber

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committed an act of serious misconduct

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or serious breach of duty,

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in the meaning of article 46 of the Statute.

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Moreover, this is not just

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any misconduct,

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the applicant for revision

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must show that the misconduct in question

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occurred in the specific case

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for which revision is sought.

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From these comments,

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it should be obvious that

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article 84

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imposes a very high test indeed,

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which will usually be difficult to meet.

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This is consistent with the interest

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in finality of proceedings

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once a trial and appeal are completed.

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It is only when re-opening the proceedings

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is necessary

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to avoid a miscarriage of justice,

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as defined in article 84,

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that this will occur.

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Indeed, article 84(2)

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makes clear that the Appeals Chamber

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plays a screening role in this process,

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introducing a two-stage procedure.

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First, the Appeals Chamber

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will consider the article 84 application

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and determine whether or not it is

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"unfounded",

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this implies

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some kind of preliminary review.

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Only if the Appeals Chamber

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determines that the application

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itself is "meritorious"

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will it determine the procedure

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by which the application will

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further be considered,

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and its impact on the original proceedings.

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It may determine this

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procedure at its discretion

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and may either reconvene

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the original Trial Chamber,

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constitute a new Trial Chamber

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or decide the matter for itself.

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Whichever option it chooses,

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the parties will then need to

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be heard further,

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in accordance with the Rules of

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Procedure and Evidence

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and then a final determination

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will be reached.

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Article 84 and the Rules

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appear to be silent

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as to the particular remedies

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that might be ordered in the course

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of an article 84 determination,

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but it must be assumed

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that they encompass the same powers

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set out in article 83

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and may also potentially lead to proceedings

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under article 85(2).