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Notion(s) Filing Case
Corrigendum to Decision on an Appeal of a Decision on Request for Temporary Humanitarian Aid Issued on 2 August 2023 - 04.08.2023 Nahimana, Ferdinand
(MICT-23-127)

8.          […] neither the Statute nor the Rules of the Mechanism […] expressly provides for an appeal as of right against a decision issued by a Single Judge on a matter concerning financial assistance to a convicted person released pending his relocation. Nonetheless, the Appeals Chamber considers that the matter before it relates to the Mechanism’s duty to ensure the welfare of released persons pending their relocation.[1] Further, the Appeals Chamber notes that it has considered appeals of decisions rendered by a Single Judge in matters that dispose of discrete litigation after the close of trial and appeal proceedings.[2] Accordingly, the Appeals Chamber finds that the present matter raises issues over which the Appeals Chamber may exercise jurisdiction and will consider the Appeal.

[…]

15.       […] there is nothing in the Mechanism’s legal framework. including in the Appeals Chamber’s binding jurisprudence on the matter, or in the provisions in the Mali Enforcement Agreement that requires the Mechanism to provide financial assistance to a convicted person who has completed serving his or her sentence and has been released on the territory of the enforcement State.

[1] See In the Matter of François-Xavier Nzuwonemeye et al., Case No. MICT-22-124, Decision on Motions to Appeal Decision of 8 March 2022, For Reconsideration of Decision of 15 March 2022, and to Appear as Amicus Curiae, 27 May 2022, paras. 14, 24 and references cited therein.

[2] See, e.g., Prosecutor v. François-Xavier Nzuwonemeye, Case No. MICT-13-43, Decision on the Appeal of the Single Judge’s Decision of 22 October 2018, 17 April 2019; Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness, 14 November 2016, para. 6.

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Notion(s) Filing Case
Decision on Jovica Stanišić’s Urgent Motion for Consideration of Recent Domestic Jurisprudence - 30.05.2023 STANIŠIĆ & SIMATOVIĆ
(Case No. MICT-15-96-A)

Page 2

NOTING that – given the urgency of the matter, the imminence of the judgement on the appeals, and in order to not prejudice Stanišić – the substance of the Prosecution response, filed on 30 May 2023, was not considered and the present decision is being issued without awaiting Stanišić’s reply;

[1] See Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Decision on an Urgent Motion for Provisional Release on Humanitarian Grounds to Attend Memorial Service, 5 July 2018 (confidential), n. 5. See also Prosecution Response to Urgent Stanišić Defence Motion for Consideration of the Case of Twitter Inc. v. Taamneh et al., 30 May 2023 (confidential).

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Notion(s) Filing Case
Decision on Jovica Stanišić’s Urgent Motion for Consideration of Recent Domestic Jurisprudence - 30.05.2023 STANIŠIĆ & SIMATOVIĆ
(Case No. MICT-15-96-A)

Page 2

RECALLING that the Appeals Chamber may consider post-hearing submissions if they relate to a variation of the grounds of appeal or if it has made a specific request to the parties for further information;[1]

[1] Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Prosper Mugiraneza’s Motion for Leave to File Post-Hearing Submissions, 15 January 2013, p. 2; The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on Muvunyi’s Request for Consideration of Post-Hearing Submissions, 18 June 2008, para. 6. See also Rule 133 of the Rules.

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Notion(s) Filing Case
Decision on Jovica Stanišić’s Motion for Admission of Additional Evidence - 21.12.2022 STANIŠIĆ & SIMATOVIĆ
(MICT-15-96-A)

15.       With respect to the Trial Chamber’s assessment of Stanišić’s mens rea for joint criminal enterprise liability, the Appeals Chamber notes that the Trial Chamber found that it was not established that Stanišić shared the intent to further the common criminal purpose of the joint criminal enterprise.[1] The proposed additional evidence is, in material respects, cumulative of evidence the Trial Chamber considered in assessing Stanišić’s mens rea as it pertained to the joint criminal enterprise.[2] […] Stanišić does not demonstrate that the Book Excerpts would have compelled a different finding, and he has not demonstrated that, in view of the Prosecution’s appeal seeking to establish his mens rea for joint criminal enterprise liability, the exclusion of the proposed additional evidence would result in a miscarriage of justice in view of the evidence already on the record.[3]

[1] See Trial Judgement, para. 596.

[2] See Trial Judgement, paras. 349, 596, 597.

[3] See Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR65.1, Decision on Stanišić’s Applications Under Rule 115 to Present Additional Evidence in His Response to the Prosecution’s Appeal, 3 December 2004, para. 16.

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IRMCT Rule Rule 142 of the Rules of the IRMCT
Notion(s) Filing Case
Appeal Judgement - 29.06.2022 FATUMA Marie Rose et al.
(MICT-18-116-A)

27. The Appeals Chamber recalls that prior consistent statements cannot be used to bolster a witness’s credibility, except to rebut a charge of recent fabrication of testimony.[1]

[1] Nyiramasuhuko et al. Appeal Judgement, para. 2955, referring to Ntakirutimana Appeal Judgement, para. 147.

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Notion(s) Filing Case
Appeal Judgement - 29.06.2022 FATUMA Marie Rose et al.
(MICT-18-116-A)

40. The Appeals Chamber recalls that a single judge’s assessment of a witness’s demeanour may be implicit in his assessment of the witness’s credibility,[1] […]

[1] See, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 1746; Nizeyimana Appeal Judgement, para. 177.

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Notion(s) Filing Case
Appeal Judgement - 29.06.2022 FATUMA Marie Rose et al.
(MICT-18-116-A)

65. […] [C]onsidering that “time served” is not among the penalties provided in the Statute and the Rules that may be imposed on a person found guilty of contempt, the Appeals Chamber finds that, by sentencing Fatuma to “time served”, the Single Judge did not impose a permissible sentence. It was incumbent on the Single Judge, when electing to impose a sentence of imprisonment, to first determine the term of imprisonment and then, in accordance with Rule 125(C) of the Rules, give credit for the time that Fatuma had spent in detention in the custody of the Mechanism pending trial. Accordingly, the Appeals Chamber finds, proprio motu, that by not determining a specific term of imprisonment, the Single Judge committed an error in failing to follow the applicable law. […]

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IRMCT Rule Rule 90

Rule 125(C)
Notion(s) Filing Case
Appeal Judgement - 29.06.2022 FATUMA Marie Rose et al.
(MICT-18-116-A)

77.  The Appeals Chamber notes that there is no requirement in the jurisprudence that unauthorised disclosure of protected information must take place in a public domain or be accessible to the general public in order to amount to an interference with the administration of justice under Rule 90(A)(ii) of the Rules.[1] In addition, the Rules and previous contempt jurisprudence do not sustain the proposition that release of protected information does not amount to “disclosure” in circumstances where the recipient is already in possession of such information. To the contrary, the ICTY Appeals Chamber in the Jović case expressly confirmed that the fact that protected information may have been previously disclosed by a third party does not mean that such information is no longer protected or that its subsequent disclosure will not be in violation of a court order.[2]The Appeals Chamber considers that the Jović Contempt Appeal Judgement and the Nshogoza Contempt Appeal Judgement both support the principle that release, whether in a public or private domain, of protected information may constitute unauthorised disclosure, irrespective of whether the intended recipient of such information was already aware of it due to previous disclosure by another person.

[1] In the Nshogoza case, for example, the accused was held responsible for disclosing to Augustin Nyagatare and a notary Witness GAA’s identity, as a Prosecution witness, and Witness A7/GEX’s identity, as either someone who had given a statement to the Prosecution or as a potential Prosecution witness. See Nshogoza Contempt Appeal Judgement, para. 48, referring to, inter alia, Nshogoza Contempt Trial Judgment, para. 186.

[2] Jović Contempt Appeal Judgement, para. 30. See also Šešelj Contempt Appeal Judgement of 19 May 2010, para. 29.

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IRMCT Rule Rule 90(A)(ii)
Notion(s) Filing Case
Appeal Judgement - 29.06.2022 FATUMA Marie Rose et al.
(MICT-18-116-A)

84. The Appeals Chamber recalls that the mens rea for a violation under Rule 90(A)(ii) of the Rules is the knowledge that the disclosure in question is in violation of an order of a Chamber or a Single Judge.[1] No demonstration of a “specific intent to interfere with the administration of justice” is required in this respect.[2] The ICTY Appeals Chamber in the Hartmann case accepted the Trial Chamber’s interpretation that:

[I]t is sufficient to establish that the conduct which constituted the violation was deliberate and not accidental. This may be inferred from circumstantial evidence. Where it is established that an accused had knowledge of the existence of a Court order, a finding of intent to violate the order will almost necessarily follow. Wilful blindness to the existence of the order, or reckless indifference to the consequences of the act by which the order is violated may satisfy the mental element. Mere negligence in failing to ascertain whether an order had been made is insufficient.[3]

[1] See Hartmann Contempt Appeal Judgement, para. 127; Šešelj Contempt Appeal Judgement of 19 May 2010, para. 26; Nshogoza Contempt Appeal Judgement, para. 77; Jović Appeal Judgement, para. 27 (wherein the ICTY Appeals Chambers held that: “The mens rea that attaches to contempt under Rule 77(ii) [of the ICTY Rules] requires only knowledge of the facts that make the conduct of the accused illegal; that is, knowledge that the disclosure was in violation of an order of the Chamber. It is not a valid defence that one did not know that disclosure of the protected information in violation of an order of a Chamber was unlawful.”)

[2] Hartmann Contempt Appeal Judgement, para. 128.

[3] Hartmann Contempt Appeal Judgement, para. 128, citing Hartmann Contempt Trial Judgement, para. 22. See also Nobilo Contempt Appeal Judgement, paras. 44, 45, 54 (wherein the ICTY Appeals Chamber held that: “In most cases where it has been established that the alleged contemnor had knowledge of the existence of the order (either actual knowledge or a wilful blindness of its existence), a finding that he intended to violate it would almost necessarily follow. There may, however, be cases where such an alleged contemnor acted with reckless indifference as to whether his act was in violation of the order. In the opinion of the Appeals Chamber, such conduct is sufficiently culpable to warrant punishment as contempt, even though it does not establish a specific intention to violate the order. […] it is sufficient to establish that the act which constituted the violation was deliberate and not accidental.” (emphasis in original).

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IRMCT Rule Rule 90(A)(ii)
Notion(s) Filing Case
Appeal Judgement - 29.06.2022 FATUMA Marie Rose et al.
(MICT-18-116-A)

93. The Appeals Chamber recalls that the Rules are to be interpreted in accordance with their ordinary meaning in their context and in light of the object and purpose of the Statute and the Rules.[1] Under Rule 104 of the Rules, upon completion of the presentation of the parties’ cases, a single judge must deliberate and decide separately on each charge contained in the indictment on whether he is satisfied that guilt has been proven beyond reasonable doubt, and shall impose a sentence in respect of each finding of guilt if he finds the accused guilty on one or more of the charges contained in the indictment.[2] The Appeals Chamber considers that the textual and contextual interpretation of the Rules supports the principle that once a charge is proven beyond reasonable doubt, a finding of guilt follows. Considering that the Rules apply mutatis mutandis to proceedings under Rule 90 of the Rules,[3] this principle similarly applies to contempt proceedings.

94. In addition, it is well established in the jurisprudence that “a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[4] While this principle emanates from jurisprudence concerning the crimes covered by Article 1(1) of the Statute, the Appeals Chamber sees nothing to suggest that the obligation of a single judge to enter a conviction does not equally apply to the crime of contempt, once all the elements of the crime have been proven. The Appeals Chamber further finds unpersuasive Munyeshuli’s argument that the language of Rule 90(A) of the Rules vests in a single judge the discretion not to enter a conviction for a proven crime. While a single judge has discretion to decide whether to initiate contempt proceedings,[5] neither the Rules nor prior jurisprudence support the conclusion that such discretion extends to the decision whether to enter a conviction for contempt, once all the elements of the offence have been proven.

[1] See The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73 & ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 43; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000, para. 22.

[2] See also Rules 2(C), 121-124 of the Rules.

[3] See Rule 90(E) of the Rules.

[4] See Prlić et al. Appeal Judgement, para. 399; Popović et al. Appeal Judgement, para. 538; Gatete Appeal Judgement, para. 261. See also Karemera and Ngirumpatse Appeal Judgement, para. 711, Strugar Appeal Judgement, para. 324, citing Stakić Appeal Judgement, para. 358.

[5] See, e.g., Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-Misc.1, Decision Regarding Contempt Investigation, 14 September 2011 (confidential), para. 21; Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-07-91-AR77, Decision on Nshogoza’s Appeal of Decision on Allegations of Contempt by Members of the Prosecution, 7 July 2011, para. 11; The Prosecutor v. Hormisdas Nsengimana, Case Nos. ICTR-01-69-A & ICTR-10-92, Decision on Prosecution Appeal of Decision Concerning Improper Contact with Prosecution Witnesses, 16 December 2010, para. 17. See also Nshogoza Contempt Appeal Judgement, para. 57.

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IRMCT Rule Rule 90

Rule 104
Notion(s) Filing Case
Appeal Judgement - 29.06.2022 FATUMA Marie Rose et al.
(MICT-18-116-A)

104. The Appeals Chamber recalls that, pursuant to Rule 104(C) of the Rules, if the single judge finds an accused guilty on one or more of the charges contained in an indictment, he shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently. Neither the Statute nor the Rules vest in the single judge the power to order that a sentence for contempt be served concurrently with a previous sentence imposed on the same accused in separate proceedings under a different indictment before the ICTY, the ICTR, or the Mechanism.

105. In addition, the Appeals Chamber is not persuaded by Ngirabatware’s submission that, similar to the authority to suspend a sentence, the authority to impose a concurrent sentence is part of the single judge’s inherent power to determine the appropriate sentence.[1] The ICTY Appeals Chamber has previously recognized that the decision to suspend a sentence for contempt forms an integral part of a trial chamber’s judicial discretion in the determination of the sentence.[2] However, the power to suspend a sentence for contempt in a single proceeding is distinguishable from the power to order that a sentence for contempt run concurrently with another sentence imposed on the accused in separate proceedings by different judges, concerning unrelated charges under different indictments. The differences are such that the Appeals Chamber cannot accept that the authority to impose a concurrent sentence for contempt is part of the inherent power of the Single Judge in the circumstances of this case.

[1] See [Ngirabatware’s Response to “Prosecution Appeal Brief”, 8 December 2021], para. 14, referring to Rašić Contempt Appeal Judgement, para. 17, Bulatović Contempt Trial Judgement, paras. 18, 19.

[2] See Rašić Contempt Appeal Judgement, paras. 17, 18.

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IRMCT Rule Rule 90

Rule 104(C)
Notion(s) Filing Case
Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

36. [...] [T]he charges against Mladić did not implicate him as a physical perpetrator, concerned a vast amount of territory of Bosnia and Herzegovina, and spanned over three years. Relevant jurisprudence dictates that, while an indictment is required to plead material facts through which the Prosecution seeks to establish an accused’s criminal liability, as the proximity of the accused person to those events becomes more distant, less precision is required in relation to those particular details, and greater emphasis is placed upon the conduct of the accused person himself upon which the Prosecution relies to establish his responsibility as an accessory or a superior to the persons who personally committed the acts giving rise to the charges against him. Indeed, in cases concerning extensive and continuous criminality, specificity with respect to the timing, victims, and location of “representative” incidents of criminality may satisfy the obligation of providing sufficient notice of the nature of the crime to effectively prepare his defence.

[1] [Footnote omitted].

[2] Kvočka et al. Appeal Judgement, para. 65.

[3] Cf. Galić Appeal Judgement, paras. 3, 222, 223, nn. 636, 637 (noting that in a case charging an accused with conducting a campaign of shelling and sniping for nearly two years, the Prosecution was bound to provide details about some of the sniping and shelling incidents in the indictment but was under no obligation to list all the specific incidents in order to satisfy its obligation in pleading material facts so as to provide the accused notice of the nature of the case he had to meet).

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Notion(s) Filing Case
Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

40. The Trial Chamber took judicial notice of approximately 2,000 adjudicated facts pursuant to Rule 94(B) of the ICTY Rules. Mladić challenged the taking of judicial notice of adjudicated facts, including adjudicated facts relating to the acts or conduct of his alleged subordinates. The ICTY Appeals Chamber in this case reviewed the Trial Chamber’s approach and found that it was consistent with the applicable jurisprudence. Relying primarily on a decision in the Karemera et al. case, the ICTY Appeals Chamber, on 12 November 2013, held that it is within a trial chamber’s discretion to take judicial notice of “facts relating to the existence of a joint criminal enterprise, the conduct of its members other than an accused, and facts related to the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible”.

[…]

45. In examining whether there is a clear error of reasoning in the Appeal Decision on Adjudicated Facts, the Appeals Chamber considers Mladić’s argument that the Karemera et al. Decision of 16 June 2006 overlooked the relevance of the Galić Decision of 7 June 2002 when considering whether to take judicial notice of adjudicated facts relating to the acts or conduct of proximate subordinates. The Appeals Chamber observes that the Galić Decision of 7 June 2002 does not preclude admission of written evidence in lieu of oral testimony relating to the acts and conduct of proximate subordinates. Rather, it only precludes the admission of such evidence pertaining to the acts and conduct or mental state of the accused. In that decision, the ICTY Appeals Chamber expressly noted that the ICTY rule on the admission of written statements in lieu of oral testimony did not exclude the admission of such statements going to the acts and conduct of others for which the accused is charged with responsibility. Even with respect to admission of written evidence that is “so pivotal to the prosecution case, and where the person whose acts and conduct […] is so proximate to the accused”, the Galić Decision of 7 June 2002 recognizes that this is a matter within the discretion of the trial chamber, observing that, in such circumstances, the trial chamber “may decide that it would not be fair to the accused” to permit its admission.

46. A review of the Karemera et al. Decision of 16 June 2006 shows that the ICTR Appeals Chamber explicitly considered as applicable in the context of judicial notice of adjudicated facts the ICTY Appeals Chamber’s analysis in the Galić Decision of 7 June 2002. In particular, the Karemera et al. Decision of 16 June 2006 recalled the distinction drawn therein between “‘(a) the acts and conduct of those others who commit the crimes for which the indictment alleges that the accused is individually responsible, and (b) the acts and conduct of the accused as charged in the indictment which establish his responsibility for the acts and conduct of those others’”, to emphasize that only adjudicated facts going to the latter warrant complete exclusion from judicial notice. With respect to all other adjudicated facts relating to the accused’s criminal responsibility, the ICTR Appeals Chamber adopted a cautious approach by declaring that “it is for the [t]rial [c]hambers, in the careful exercise of their discretion, to assess each particular fact in order to determine whether taking judicial notice of it – and thus shifting the burden of producing evidence rebutting it to the accused – is consistent with the accused’s rights under the circumstances of the case”. Upon review of both decisions, the Appeals Chamber considers that the Karemera et al. Decision of 16 June 2006 evinces a consistent approach with the Galić Decision of 7 June 2002. The Appeals Chamber further considers that Mladić’s position fails to recognize that adjudicated facts within the meaning of Rule 94(B) of the ICTR and ICTY Rules are presumptions and are not equivalent to the untested evidence at issue in the Galić Decision of 7 June 2002, and that this decision is therefore inapposite when considering what restrictions should be placed on a trial chamber when relying on adjudicated facts under Rule 94(B) of the ICTY Rules. In particular, adjudicated facts under Rule 94(B) of the ICTY Rules are rebuttable presumptions that can only be accepted where, inter alia, they have been tested and established in another trial proceeding whereas the reliability and credibility requirements for admission of untested evidence pursuant to Rules 89(C) and 92 bis of the ICTY Rules are far less onerous.

47. […] In view of the above, Mladić fails to demonstrate that the ICTY Appeals Chamber in the Appeal Decision on Adjudicated Facts erred in relying on the Karemera et al. Decision of 16 June 2006 or that it committed any other error.

[…]

134. […] The Appeals Chamber recalls that taking judicial notice of an adjudicated fact serves only to relieve the Prosecution of its initial burden to produce evidence on the point, and the defence may then put the point into question by introducing reliable and credible evidence to the contrary. […]

[1] See Trial Judgement, paras. 16, 5262, referring to Prosecutor v. Ratko Mladić, Case No. IT-09-92-PT, First Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 February 2012 (“First Decision on Adjudicated Facts”), Prosecutor v. Ratko Mladić, Case No. IT-09-92-PT, Second Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 21 March 2012 (“Second Decision on Adjudicated Facts”), Prosecutor v. Ratko Mladić, Case No. IT-09-92-PT, Third Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 13 April 2012 (“Third Decision on Adjudicated Facts”), Prosecutor v. Ratko Mladić, Case No. IT-09-92-PT, Fourth Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts Concerning the Rebuttal Evidence Procedure, 2 May 2012 (“Fourth Decision on Adjudicated Facts”), Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Proprio Motu Taking Judicial Notice of Two Adjudicated Facts, 5 June 2012. 

[2] Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.1, Defense Interlocutory Appeal Brief Against the Trial Chamber Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts, 4 July 2012 (“Defence Interlocutory Appeal Brief of 4 July 2012”), para. 26.

[3] Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.1, Decision on Ratko Mladić’s Appeal Against the Trial Chamber’s Decisions on the Prosecution Motion for Judicial Notice of Adjudicated Facts, 12 November 2013 (“Appeal Decision on Adjudicated Facts”), para. 85. See also Appeal Decision on Adjudicated Facts, paras. 82-84, 86, 87.

[4] Appeal Decision on Adjudicated Facts, para. 85, referring to, inter alia, The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice, 16 June 2006 (“Karemera et al. Decision of 16 June 2006”), paras. 52, 53. See also Appeal Decision on Adjudicated Facts, paras. 81, 83.

[5] See Mladić Appeal Brief, paras. 64, 65, 69, 76, 80, 82, 85, 86, 94; T. 25 August 2020 pp. 28-30.

[6] See [Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92 bis (C), 7 June 2002 (“Galić Decision of 7 June 2002”)], paras. 9, 13-16.

[7] See Galić Decision of 7 June 2002, paras. 9-11.

[8] Galić Decision of 7 June 2002, para. 10.

[9] Galić Decision of 7 June 2002, para. 13.

[10] See Karemera et al. Decision of 16 June 2006, para. 52.

[11] Karemera et al. Decision of 16 June 2006, para. 52, quoting Galić Decision of 7 June 2002, para. 9.

[12] See Karemera et al. Decision of 16 June 2006, paras. 50-53.

[13] Karemera et al. Decision of 16 June 2006, para. 52 (emphasis added).

[14] See Karadžić Appeal Judgement, para. 452, n. 1189.

[15] See Karadžić Appeal Judgement, n. 1189 (citations omitted).

[16] See Karemera et al. Decision of 16 June 2006, paras. 42, 49; Karemera et al. Decision of 29 May 2009, paras. 13, 14; D. Milošević Decision of 26 June 2007, paras. 16, 17.

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ICTY Rule Rule 94(B)
Notion(s) Filing Case
Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

84. The Appeals Chamber recalls that decisions concerning the scheduling of trials and their modalities are discretionary decisions of the trial chamber to which the Appeals Chamber accords deference.[1] The trial chamber’s discretion, however, must be exercised in accordance with Articles 20(1) and 21 of the ICTY Statute, which require trial chambers to ensure that trials are fair and conducted with full respect for the rights of the accused.[2]

[1] Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.5, Decision on Interlocutory Appeal Against the 27 March 2015 Trial Chamber Decision on Modality for Prosecution Re-Opening, 22 May 2015, para. 6; [Prosecutor v. Ratko Mladić, Case No. IT-09-92-AR73.3, Decision on Mladić’s Interlocutory Appeal Regarding Modification of Trial Sitting Schedule Due to Health Concerns, 22 October 2013 (“Decision of 22 October 2013”)], para. 11. [Footnote omitted].

[2] See, e.g., Karadžić Appeal Judgement, paras. 26, 72; Ndahimana Appeal Judgement, para. 14; Decision of 22 October 2013, para. 12; Galić Appeal Judgement, para. 18. [Footnote omitted].

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Notion(s) Filing Case
Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

98. The Appeals Chamber recalls that, pursuant to Rule 97 of the ICTY Rules, all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. This privilege is vital to the defence of an accused or appellant by allowing for open communication between counsel and client that is necessary for effective legal assistance as guaranteed under Article 21(4)(d) of the ICTY Statute.[1]

See also paras. 99-103. Wherein the Appeals Chamber addressed, inter alia, the waiving of lawyer-client privilege when “loud and audible” statements are made by an accused in the courtroom and are overheard by the Prosecution team.

[1] See Prosecutor v. Vujadin Popović et al., Case No. IT 05-88-A, Decision on Prosecution Motion for the Appointment of Independent Counsel to Review Material Potentially Subject to Lawyer-Client Privilege, 16 July 2012 (public redacted version) (“Popović et al. Decision of 16 July 2012”), para. 7.

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ICTY Rule Rule 97
Notion(s) Filing Case
Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

186. The Appeals Chamber recalls that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, a trial chamber must be satisfied that the accused acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.[1] An accused’s contribution need not be necessary or substantial,[2] it need not involve the commission of a crime,[3] and the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.[4]

[…]

228.  […] [T]heAppeals Chamber recalls that for an accused to be found criminally liable on the basis of joint criminal enterprise liability, it is sufficient that he acted in furtherance of the common purpose of a joint criminal enterprise in the sense that he significantly contributed to the commission of the crimes involved in the common purpose.[5] Beyond that, the law does not foresee specific types of conduct which per se could not be considered a contribution to a joint criminal enterprise.[6] Within these legal confines, the question of whether a failure to act could be taken into account to establish that the accused significantly contributed to a joint criminal enterprise is a question of fact to be determined on a case-by-case basis.[7] It is also recalled that the relevant failures to act or acts carried out in furtherance of a joint criminal enterprise need not involve carrying out any part of the actus reus of a crime forming part of the common purpose, or indeed any crime at all.[8] That is, an accused’s contribution to a joint criminal enterprise need not be in and of itself criminal, as long as the accused performs (or fails to perform) acts that in some way contribute significantly to the furtherance of the common purpose.[9]

229. […] The Appeals Chamber observes that, in the jurisprudence of the ICTY, a failure to take effective and genuine measures to discipline, prevent, and/or punish crimes committed by subordinates, despite having knowledge thereof, has been taken into account in assessing, inter alia, an accused’s mens rea and contribution to a joint criminal enterprise where the accused had some power and influence or authority over the perpetrators sufficient to prevent or punish the abuses but failed to exercise such power.[10] […]

[1] See, e.g., Stanišić and Župljanin Appeal Judgement, paras. 110, 136; Popović et al. Appeal Judgement, para. 1378; Šainović et al. Appeal Judgement, para. 987; Krajišnik Appeal Judgement, paras. 215, 695.  

[2] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 136; Popović et al. Appeal Judgement, para. 1378; Krajišnik Appeal Judgement, para. 215; Brđanin Appeal Judgement, para. 430.

[3] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 110; Popović et al. Appeal Judgement, paras. 1378, 1615; Krajišnik Appeal Judgement, paras. 215, 695.

[4] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 110; Krajišnik Appeal Judgement, para. 696.

[5] See, e.g., Stanišić and Župljanin Appeal Judgement, paras. 110, 136; Popović et al. Appeal Judgement, para. 1378; Šainović et al. Appeal Judgement, paras. 987, 1177; Krajišnik Appeal Judgement, paras. 215, 695.

[6] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 110; Krajišnik Appeal Judgement, para. 696.

[7] See Stanišić and Župljanin Appeal Judgement, para. 110. See also, e.g., Šainović et al. Appeal Judgement, paras. 1233, 1242.

[8] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 110; Popović et al. Appeal Judgement, paras. 1615, 1653; Krajišnik Appeal Judgement, paras. 215, 695.

[9] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 110; Popović et al. Appeal Judgement, paras. 1615, 1653; Šainović et al. Appeal Judgement, para. 985; Krajišnik Appeal Judgement, paras. 215, 695.

[10] Cf. Stanišić and Župljanin Appeal Judgement, para. 111; Šainović et al. Appeal Judgement, paras. 1233, 1242; Krajišnik Appeal Judgement, para. 216(e).

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Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

193. […] [T]he Appeals Chamber further recalls that members of a joint criminal enterprise may be held responsible for crimes carried out by principal perpetrators, provided that the crimes can be imputed to at least one member of the joint criminal enterprise and that the latter – when using the principal perpetrators – acted in accordance with the common objective.[1]

[1] See Stanišić and Župljanin Appeal Judgement, para. 119; Šainović et al. Appeal Judgement, para. 1256; Krajišnik Appeal Judgement, para. 225; Martić Appeal Judgement, para. 168; Brđanin Appeal Judgement, para. 413.

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Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

200. […] The Appeals Chamber […] recalls that a trial chamber has the discretion to select which legal arguments to address.[1]

[1] See Trial Judgement, para. 4293, n. 15467; Prlić et al. Appeal Judgement, para. 989; Stanišić and Župljanin Appeal Judgement, para. 101; Kvočka et al. Appeal Judgement, para. 23.

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Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

 243. […] In any event, the Appeals Chamber recalls that a trial chamber’s determinations are not binding on other trial chambers or on the Appeals Chamber.[1]

 

[1] See Karemera and Ngirumpatse Appeal Judgement, para. 52; Lukić and Lukić Appeal Judgement, para. 260.

 

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Appeal Judgment - 08.06.2021 MLADIĆ Ratko
(MICT-13-56-A)

243. […] Of even greater significance, there is no legal requirement that a trial chamber’s analysis as to an accused’s mens rea and actus reus be done separately […]. To the contrary, trial chambers are free to organize their judgements as they see fit so long as they fulfil their obligation to provide a reasoned opinion.[1]

[…] 

247. […] The Appeals Chamber observes that the Trial Chamber used this practice of cross-referencing throughout the Trial Judgement instead of re‑summarizing its findings of fact or summaries of evidence.[2] The Appeals Chamber recalls that trial chambers need not unnecessarily repeat considerations reflected elsewhere in the trial judgement.[3] Furthermore, nothing prevents a trial chamber from relying on the same evidence when making findings as to an accused’s actus reus and mens rea. Accordingly, the Appeals Chamber finds that Mladić does not demonstrate that the Trial Chamber used its finding of mens rea to substantiate its finding of his significant contribution or committed any error in this respect. […] 

[1] See Article 23 of the ICTY Statute; Rule 98 ter (C) of the ICTY Rules.

[2] See, e.g., Trial Judgement, paras. 3051, 3068, 3122, 3133, 3210, 3217-3220, 3222, 3224-3226, 3230, 3241, 3267, 3287, 3325, 3360, 3381, 3388, 3406, 3419, 3556, 3577, 3665, 3676, 3690, 3691, 3704, 3708, 3722, 4614, 4615, 4623, 4624, 4630, 4631, 4635-4639, 4644, 4646, 4685.

[3] See Karadžić Appeal Judgement, para. 721; Stakić Appeal Judgement, para. 47.

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ICTY Statute Article 23 of the ICTY Statute ICTY Rule Rule 98 ter (C) of the ICTY Rules