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Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

41. The Appeals Chamber considers that the Trial Chamber did not hold Atif Krdžić criminally responsible for commission by omission. At a minimum, the actus reus of commission by omission requires an elevated degree of “concrete influence”.[1] Such was not the case here, where the Trial Chamber merely found that Atif Krdžić’s absence from the detention facilities “coincide[d] with more killings and more maltreatment”.[2] Furthermore, the Trial Chamber clearly distinguished Atif Krdžić from the principal perpetrators who physically committed the crimes.[3]

[1] See Blaškić Appeal Judgement, para. 664.

[2] Trial Judgement, para. 496.

[3] See supra, paras. 24, 25, 27-30.

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ICTR Statute Article 6(1) ICTY Statute Article 7(1)
Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

18. […] For a superior to incur criminal responsibility under Article 7(3), in addition to establishing beyond reasonable doubt that his subordinate is criminally responsible, the following elements must be established beyond reasonable doubt:

i) the existence of a superior-subordinate relationship;

ii) that the superior knew or had reason to know that his subordinate was about to commit a crime or had done so; and

iii) that the superior failed to take the necessary and reasonable measures to prevent his subordinate’s criminal conduct or punish his subordinate.[1]

[1] See Nahimana et al. Appeal Judgement, para. 484; Halilović Appeal Judgement, para. 59; Blaškić Appeal Judgement, para. 484; Aleksovski Appeal Judgement, para. 72.  See also Trial Judgement, para. 294. 

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

91. It is well established that the Prosecution must prove effective control beyond reasonable doubt in establishing a superior-subordinate relationship within the meaning of Article 7(3) of the Statute.[1] For that purpose, de jure authority is not synonymous with effective control.[2] Whereas the possession of de jure powers may certainly suggest a material ability to prevent or punish criminal acts of subordinates, it may be neither necessary nor sufficient to prove such ability.[3] If de jure power always results in a presumption of effective control, then the Prosecution would be exempted from its burden to prove effective control beyond reasonable doubt.[4] The Appeals Chamber is therefore unable to agree with the Prosecution’s proposed legal presumption.

92. The Appeals Chamber acknowledges that its jurisprudence might have suggested otherwise, using the terms “presume” or “prima facie evidence of effective control”.[5] The import of such language has not always been clear. Although in some common law jurisdictions “prima facie evidence” leads by definition to a burden-shifting presumption,[6] the Appeals Chamber underscores that before the International Tribunal the Prosecution still bears the burden of proving beyond reasonable doubt that the accused had effective control over his subordinates.[7] The possession of de jure authority, without more, provides only some evidence of such effective control. Before the International Tribunal there is no such presumption to the detriment of an accused.

[1] As most recently recalled in Hadžihasanović and Kubura Appeal Judgement, para. 20.

[2] Halilović Appeal Judgement, para. 85.

[3] See Halilović Appeal Judgement, para. 85: “In fact, [de jure power] may not in itself amount to [effective control].” Cf. also Nahimana et al. Appeal Judgement, paras. 625 and 787, fn. 1837.

[4] See Hadžihasanović and Kubura Appeal Judgement, para. 21.

[5] Čelebići Appeal Judgement, para. 197; Hadžihasanović and Kubura Appeal Judgement, para. 21

[6] See Brian Garner, ed., Black’s Law Dictionary, 8th ed. (St. Paul: Thomson West, 2004).

[7] Hadžihasanović and Kubura Appeal Judgement, para. 21.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

21. Second, Orić argues that superior responsibility under Article 7(3) of the Statute does not encompass criminal conduct by subordinates in the form of aiding and abetting crimes.[1] This is incorrect. The Appeals Chamber has held that superior responsibility encompasses criminal conduct by subordinates under all modes of participation under Article 7(1) of the Statute.[2] It follows that a superior can be held criminally responsible for his subordinates’ planning, instigating, ordering, committing or otherwise aiding and abetting a crime.

[1] Orić Appeal Brief, paras. 317, 340-374. See also ibid., paras. 106 and 109. See also AT. 1 April 2008, pp. 131-132.

[2] Nahimana et al. Appeal Judgement, paras. 485-486; Blagojević and Jokić Appeal Judgement, paras. 280, 282. 

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

35. The Appeals Chamber considers that, notwithstanding the degree of specificity with which the culpable subordinates must be identified, in any event, their existence as such must be established. If not, individual criminal liability under Article 7(3) of the Statute cannot arise. In the present case, the Trial Chamber established the existence of the “Military Police” as an entity and repeatedly referred to its responsibility and duties.[1] However, when discussing the conduct of the actual members of the Military Police with respect to detention matters, it only identified its successive Commanders, Mirzet Halilović and Atif Krd‘ić.[2] Nowhere in the Trial Judgement did the Trial Chamber mention other potentially culpable members of the Military Police, nor did it suggest that unidentified military policemen were implicated in the crimes at issue. Because the Trial Chamber did not identify any member of the Military Police other than Atif Krd‘ić who would have taken part in the commission of the crimes for which Orić was found responsible, not even by mere reference to their membership in the Military Police, the Prosecution’s argument fails.

[1] See e.g. Trial Judgement, paras. 483-491, 531, 532.

[2] Trial Judgement, paras 182, 492-496. 

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

58. The Prosecution submits that, in the context of crimes such as those at issue which occur in a prison setting, knowledge of the crimes and knowledge of the subordinates’ criminal conduct “are one and the same.”[1] It argues that “[a]s soon as Orić knew or had reason to know that prisoners were being mistreated and killed, he must also be considered to have known that his subordinates in charge of the prisoners were criminally responsible for that mistreatment.”[2]

59. The Appeals Chamber stresses that knowledge of a crime and knowledge of a person’s criminal conduct are, in law and in fact, distinct matters. Although the latter may, depending on the circumstances, be inferred from the former, the Appeals Chamber notes that such an inference was not made by the Trial Chamber.[3] Its enquiry was limited to Orić’s knowledge or reason to know of the crimes committed in the detention facilities, and so was its conclusion. Therefore, the Appeals Chamber need not consider the Prosecution’s assertion that Orić knew or had reason to know of the crimes themselves.[4]

[1] AT. 1 April 2008, p. 22.

[2] Prosecution Written Submissions of 25 March 2008, para. 19. See also  ibid., para. 18; AT. 1 April 2008, pp. 23-24; AT. 2 April 2008, pp. 192-193.

[3] Regarding the possibility of making such an inference in the circumstances of the case, the Appeals Chamber refers to its analysis of the Prosecution’s appeal, infra paras. 172-174.

[4] See AT. 1 April 2008, pp. 19-22, 24-25. 

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Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

177. The Appeals Chamber considers that it need not discuss the merits of this sub-ground of appeal. It only recalls its finding in the Halilović Appeal Judgement that the general duty of commanders to take the necessary and reasonable measures is well rooted in customary international law and stems from their position of authority.[1] The Appeals Chamber stresses again that “‘necessary’ measures are the measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to prevent or punish) and ‘reasonable’ measures are those reasonably falling within the material powers of the superior” and that what constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.[2] The correct legal standard is solely whether the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.[3] While this single standard will have to be applied differently in different circumstances, “the artificial distinction between ‘general’ and ‘specific’ obligations creates a confusing and unhelpful dichotomy.”[4]

[1] Halilović Appeal Judgement, para. 63, referring to Aleksovski Appeal Judgement, para. 76, as an example.

[2] ibid., para. 63, referring to Blaškić Appeal Judgement, para. 72.

[3] Ibid., para. 64.

[4] Ibid., para. 64.

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Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

159. Whether Orić and the Srebrenica Armed Forces Staff had effective control over Mirzet Halilović depended on their “material ability to prevent and punish” the crimes.[1] The Appeals Chamber considers that if a superior-subordinate relationship existed, it cannot be relevant to ask whether the subordinate’s behaviour was erratic. However, if it is not clear whether that relationship existed, it can be relevant to take into account the erratic behaviour of the subordinate in determining whether the superior had the “material ability to prevent or punish” necessary for effective control. The Trial Chamber therefore did not misconstrue the first and the third elements of Article 7(3) of the Statute when it assessed Mirzet Halilović’s erratic behaviour in analysing Orić’s effective control over the Military Police. The Prosecution’s bare assertion that Orić’s failure to prevent or punish “is not evidence of lack of effective control”[2] fails to demonstrate an error in that assessment.

[1] See Halilović Appeal Judgement, para. 59; Blaškić Appeal Judgement, para. 484.

[2] Prosecution Appeal Brief, para. 62.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 03.07.2008 ORIĆ Naser
(IT-03-68-A)

20. First, Orić submits that a superior cannot, as a matter of law, incur criminal responsibility under Article 7(3) of the Statute when the link to the perpetrators of the crimes at issue is “too remote”.[1] The Appeals Chamber recalls that the concept of effective control is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute.[2] Whether the effective control descends from the superior to the subordinate culpable of the crime through intermediary subordinates is immaterial as a matter of law; instead, what matters is whether the superior has the material ability to prevent or punish the criminally responsible subordinate. The separate question of whether – due to proximity or remoteness of control – the superior indeed possessed effective control is a matter of evidence, not of substantive law.[3] Likewise, whether the subordinate is found to have participated in the crimes through intermediaries is immaterial as long as his criminal responsibility is established beyond reasonable doubt.

[1] Orić Appeal Brief, paras. 8 and 9; Orić Reply Brief, paras. 16 and 17; AT. 1 April 2008, pp. 39, 61.

[2] Halilović Appeal Judgement, para. 59, referring to Čelebići Appeal Judgement, para. 256.

[3] See Blaškić Appeal Judgement, para. 69. 

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Notion(s) Filing Case
Decision on Attribution of Time to the Defence - 01.07.2008 PRLIĆ et al.
(IT-04-74-AR73.7)

16. All Appellants submit that the rights of the accused to a fair trial enshrined in Article 21 of the Statute should not be sacrificed to ensure the expeditiousness of proceedings.[1]  The Appeals Chamber recalls that, pursuant to Rules 73bis and 73ter of the Rules, the Trial Chamber is required to establish the number of witnesses each party may call and the amount of time allotted to each party. Specifically, Rule 73ter(E) of the Rules provides that, after having heard the defence and having reviewed the Rule 65ter submissions of each accused, the Trial Chamber shall determine the time available to the defence for presenting evidence. In exercising the discretionary power to allocate time, a Trial Chamber has the responsibility to ensure that “the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.”[2] Recognizing that excessive limitations of time may also compromise the due process rights of the accused, the Appeals Chamber has previously held that the considerations of judicial economy should never impinge on the rights of the parties to a fair trial.[3] In particular, the time granted to an accused under Rule 73ter of the Rules must be reasonably proportional to the time allocated to the Prosecution, and objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights under Article 21 of the Statute.[4]

19. The Appeals Chamber considers that a “purely arithmetical calculation” for the allocation of time to the Defence may constitute an abuse of the Trial Chamber’s discretion. As noted in the Orić Decision, “a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides”.[5] However, the Appeals Chamber is not satisfied that the Impugned Decision was based on such an arithmetic division of time.

23. The Appeals Chamber notes that Rule 92bis to 92quater are aimed at ensuring the efficient presentation of evidence at trial and may be relied upon in lieu of viva voce evidence where it does not impact upon the fairness of the proceedings. In assessing the amount of time reasonably required for each Accused to present his case, the Trial Chamber was entitled to assume that the parties would present their cases as efficiently as possible and take advantage of the options available to them to reduce the time for presenting evidence, especially if repetitive or peripheral. In light of the Trial Chamber’s familiarity with the case to be presented by the Defence, it was reasonable for the Trial Chamber to consider that the Defence could make use of Rules 92bis and 92ter of the Rules in relation to some of the witnesses each intended to call.

25. The Appeals Chamber finds that the Trial Chamber’s decision to assess the relevance of proposed testimony prior to its presentation in evidence falls within the discretion accorded to the Trial Chamber in its management of the trial. There is no prohibition against a Trial Chamber’s  considering that some of the evidence sought to be presented will be repetitive when assessing, in application of Rule 73ter(E) and on the basis of the 65ter List presented by an accused, the time necessary for the fair presentation of the Defence case. The Appeals Chamber considers that this method is not only reasonable, but also presents the advantage of certainty, enabling the Defence to organize its strategy on the basis of the time allocated to it. The Appeals Chamber further notes that the Trial Chamber clarified in the Impugned Decision that it would adopt a flexible approach and, should the Defence establish that additional time was necessary, it would grant additional time.[6]  Consequently, the Appeals Chamber finds no error in the approach adopted by the Trial Chamber.

[1] Praljak Appeal, paras 55-61; Praljak Reply [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Slobodan Praljak’s Request for Leave to Reply to the Prosecution’s Response and Praljak’s Reply to the Prosecution’s Response, 22 May 2008], para. 32; Petković Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Petković Defence Appeal Against the Trial Chamber’s 25 April 2008 Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge, 2 May 2008], paras 25-36; Petkovic Reply [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7,  Milivoj Petković Defence Reply to Prosecution Consolidated Opposition to the Defence Appeals Concerning the Trial Chamber’s Ruling Dated 25 April 2008 Reducing Time for the Defence Case, 22 May 2008], para. 4; Stojić Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Bruno Stojić Appeal from 'Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge' Issued 25 April 2008, 2 May 2008], paras 10-11.  

[2] Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.2, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007 (“Prlić Initial Decision on Prosecution Time”), para. 23.

[3] Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory decision on Length of Defence Case (“Orić Decision”), para 8; Prlić Initial Decision on Prosecution Time, para. 23; Prlić Decision on Cross Examination [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006], p. 4.

[4] Orić Decision, paras 8-9.

[5] Orić Decision, para. 7.

[6] Impugned Decision, para. 45. 

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ICTR Rule Rule 73 ter;
Rule 82(A)
ICTY Rule Rule 73 ter (E);
Rule 82(A)
Notion(s) Filing Case
Decision on Attribution of Time to the Defence - 01.07.2008 PRLIĆ et al.
(IT-04-74-AR73.7)

27. The Appeals Chamber finds that it was not unreasonable for the Trial Chamber to consider, in evaluating the time to be allocated for a witness examination, whether the witness was included in the 65ter Lists of more than one Accused. The fact that a witness is common to more than one Accused certainly permits saving both the time necessary for certain procedural matters, such as the identification of the witness, and for acquiring substantive information, for example the general background of the witness. Further, in a case where the co-Accused are charged with the same crimes, it is not unreasonable to make the initial assumption that a witness called to testify by more than one Defence team could present, inter alia, evidence on subjects relevant to all of the defence cases concerned. […]

The Appeals Chamber considered how the requirement that the time granted to the accused must be reasonably proportional to the time allotted to the prosecution applies in the context of a multi-accused case:

34. The Appeals Chamber declines to accept the Prosecution’s argument that the proportionality standard should necessarily consider the “common elements” as a separate “unit” in the calculation of time and allocate each Accused one-seventh of the time allotted for the Prosecution case.[1] This argument belies the fact that, pursuant to Rule 82(A) of the Rules, each Accused should be allowed time to respond to the common elements of the Prosecution case as they relate to his particular case.

35. However, the Appeals Chamber emphasizes that the determination of the time to be granted to the Defence to present its case is the result of a highly contextual analysis. As a consequence, factors such as the presence of multiple accused make any strict numerical comparison to previous cases inapposite. In a case with multiple accused, the Prosecution is to divide the time allowed for the presentation of its case in order to prove the guilt of each individual accused for each of the crimes charged. Consequently, each individual accused is unlikely to challenge every piece of evidence presented by the Prosecution. Accordingly, the Appeals Chamber finds that the Orić Decision does not provide substantive guidelines for assessing what kind of disparity between the time allocated to the Prosecution and the time allocated to each accused would be too great in a case such as the instant one.[2]

36. The Praljak Defence argues that a case involving multiple Accused should not have the effect of legitimizing a disproportionate reduction of the defence case for the single Accused, as “the presence of other accused is at least as much of a burden as a benefit”.[3] The Praljak Defence argues, in particular, that in any multi-accused case there is a possibility that the co-accused function as “de facto additional prosecutors”, presenting inculpatory evidence for the other co-accused.[4] The Appeals Chamber notes that the eventuality that co-accused present evidence against other accused in the same trial, is counterbalanced by the guarantee, for each accused, to cross-examine witnesses presented by other co-accused and by the fact that each accused may request additional time in due course should good reasons exist.[5]

39. The Appeals Chamber recalls that, as stated in the Orić Decision, when discussing the proportionality between the time allowed to the Prosecution and to the Defence, an accused is not “necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution,” which has the burden of proving every element of the crimes charged beyond a reasonable doubt.[6] In a case with multiple accused, the issue of proportionality is affected not only by the burden of proof upon the Prosecution, but also by the circumstance that not all of the evidence presented by the Prosecution is directed to prove the responsibility of one individual Accused. […]

[1] Response [Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin ]orić and Berislav Pušić, Case No. IT-04-74-AR73.7, Prosecution Consolidated Opposition to the Defence Appeals Concerning the Trial Chamber’s Ruling Dated 25 April Reducing Time for the Accused Case, 16 May 2008], para. 25.

[2] Praljak Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Slobodan Praljak Appeal of the Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge”, Public with Confidential Annex, 2 May 2008], paras 20-27.

[3] Praljak Appeal, paras 28-29.

[4] Praljak Appeal, paras 28-29.

[5] See Rule 73ter of the Rules. See also Impugned Decision [Prosecutor v. Prlić et al., Case No. IT-04-74-T, Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge, 25 April 2008], para. 45.

[6] Orić Decision [Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005], para. 7.

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ICTR Rule Rule 73 ter;
Rule 82(A)
ICTY Rule Rule 73 ter(E);
Rule 82(A)
Notion(s) Filing Case
Decision on Clarification - 20.06.2008 NIYITEGEKA Eliézer
(ICTR-96-14-R75)

Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

8.       […] the Appeals Chamber recalls that, in its Decision on Third Request for Review, it stated that the closed session material submitted by the Applicant in support of his Third Request for Review had been “obtained in direct violation of Trial Chambers’ orders”.[2] The Appeals Chamber was well aware that the Applicant was not a party to the proceedings in which the protective measures were ordered. However, it considered that, by obtaining and making use of closed session material to which he undoubtedly knew that he was not authorized to have access, the Applicant took part in the breach of the Trial Chambers’ orders committed by those who were directly bound by them. The Applicant therefore participated in the violation of the orders for protective measures imposed by the Trial Chambers and, thereby, “seriously undermine[d] the integrity of the Tribunal’s proceedings”.[3]    

11.     […] the Appeals Chamber clarifies that, although the Applicant was not a party to the cases in which the protective measures were ordered, he was bound by the Trial Chambers’ orders not to disclose confidential material from the moment it came into his possession. Similar to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia found in respect of closed session orders,[4] the Appeals Chamber considers that the orders of protective measures apply to all persons coming into possession of protected information. This is necessary, in particular, in order to comply with the Tribunal’s obligation pursuant to Article 21 of the Statute to protect witnesses on whose behalf protective measures have been ordered. Such orders would be meaningless if third parties were allowed to disclose confidential information on the sole ground that the orders were not expressly directed to them.

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008 (“Decision on Third Request for Review”), para. 9.

[2] Decision on Third Request for Review, para. 9, citing The Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Decision on Defence Motion for Protective Measures for Defence Witnesses, 6 July 2004 and The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-R75, Order on Protective Measures for Prosecution Witnesses, 10 December 2004.

[3] Decision on Third Request for Review, para. 9.

[4] See Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 22; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 24. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Clarification - 20.06.2008 NIYITEGEKA Eliézer
(ICTR-96-14-R75)

Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

14.     Rule 75(G) of the Rules, which allows for the possibility of seeking to rescind, vary, or augment protective measures ordered at trial does not provide for an appeal as of right, nor do the Rules address the issue of whether a decision rendered by a Trial Chamber after the close of trial and appeal proceedings is subject to appeal. However, because issues related to access to confidential material by a convicted person concern the important question of balance between the right of the convicted person to access potentially exculpatory material and the need to guarantee the protection of victims and witnesses,[5] the Appeals Chamber considers, proprio motu, that an applicant is entitled to challenge a decision by a Trial Chamber, pursuant to Rule 75(G) of the Rules, rendered after the close of trial and appeal proceedings before the Appeals Chamber.

[1] Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Third Request for Review, 23 January 2008 (“Decision on Third Request for Review”), para. 9.

[2] Decision on Third Request for Review, para. 9, citing The Prosecutor v. Mikaeli Muhimana, Case No. ICTR-95-1B-T, Decision on Defence Motion for Protective Measures for Defence Witnesses, 6 July 2004 and The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-R75, Order on Protective Measures for Prosecution Witnesses, 10 December 2004.

[3] Decision on Third Request for Review, para. 9.

[4] See Prosecutor v. Josip Jović, Case No. IT-95-14 & 14/2-R77-A, Judgement, 15 March 2007, para. 22; Prosecutor v. Ivica Marijačić and Markica Rebić, Case No. IT-95-14-R77.2-A, Judgement, 27 September 2006, para. 24.

[5] Cf. Prosecutor v. Enver Had‘ihasanović et al., Case No. IT-01-47-AR73, Decision on Application for Leave to Appeal, 1 February 2002, p. 2. 

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ICTR Rule Rule 75 ICTY Rule Rule 75
Notion(s) Filing Case
Decision on Clarification - 20.06.2008 NIYITEGEKA Eliézer
(ICTR-96-14-R75)

10.     As to the scope of Rule 77 of the Rules raised in point (b), the Appeals Chamber notes that, while the rule does not specifically provide for holding in contempt those who are in possession of confidential material to which they were not granted access or make “confidential use” of unauthorized confidential material, it does generally provide for holding in contempt “those who knowingly and willfully interfere with [the Tribunal’s] administration of justice”.[1]

[1] Rule 77(A) of the Rules.

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ICTR Rule Rule 77 ICTY Rule Rule 77
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Decision on Post-Hearing Submissions - 19.06.2008 MUVUNYI Tharcisse
(ICTR-00-55A-A)

After the Appeal Hearing was held in this case, Muvunyi requested that the Appeals Chamber consider the Appeal Judgement in Prosecutor v. Hadžihasanović, rendered on 22 April 2008, as it represented new authority on superior responsibility that was applicable in assessing Muvunyi’s liability.

6. The Appeals Chamber may consider post-hearing submissions if they relate to a variation of the grounds of appeal[1] or if it has made a specific request to the parties for further information.[2] Muvunyi argues that a new jurisprudential development demands that the Appeals Chamber consider his post-hearing submissions. The Appeals Chamber notes that in preparing a Judgement, it considers all relevant jurisprudence, including decisions issued after the hearing of an appeal. If additional submissions from the parties on the Hadžihasanović Appeal Judgement had been necessary for a fair determination of the appeal in this case, the Appeals Chamber would have requested Counsel to provide further submissions. The Appeals Chamber has not done so.

[1] Rules, Rule 108. See also The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-A, Decision on the Prosecutor’s Motion to Expunge a Submission from the Record, 25 April 2008, para. 7; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Submit Additional Grounds of Appeal, to Amend the Notice of Appeal and to Correct his Appellant’s Brief, 17 August 2006, para. 9; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-T, Decision on the Prosecutor’s Motion to Pursue the Oral Request for the Appeals Chamber to Disregard Certain Arguments Made by Counsel for Appellant Barayagwiza at the Appeals Hearing on 17 January 2007, 5 March 2007, para. 13; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Decision on Mladen Naletilić’s Motion for Leave to File Pre-Submission Brief, 13 October 2005, pp. 2-3.

[2] Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Decision on Defence Filings Subsequent to the Close of the Appeal Hearing, 5 May 2000, p. 3.

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ICTR Rule Rule 108 ICTY Rule Rule 108
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Decision on Amicus Curiae Motion - 11.06.2008 KRAJIŠNIK Momčilo
(IT-00-39-A)

Following a request for guidance presented by amicus curiae as to how he should respond to a request by Momčilo Krajišnik for a meeting at the United Nations Detention Unit (“UNDU”) in which Mr. Krajišnik asked the Registry to arrange a meeting between him and amicus curiae for the purpose of discussing one of amicus curiae’s submissions, the Pre-Appeal Judge clarified:

p. 1: RECALLING that “the Appeals Chamber invite[d] the participation of a particular amicus curiae to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests”;

RECALLING that the Appeals Chamber made explicit that “amicus curiae is not a party to the proceedings” and that “[a]micus curiae is to work independently from Mr. Krajišnik”;

CONSIDERING that a meeting between Mr. Krajišnik and amicus curiae about an issue within the purview of amicus curiae’s assignment would violate both the terms and spirit of amicus curiae’s appointment;

HEREBY CLARIFIES that amicus curiae remains under an obligation to work independently from Mr. Krajišnik and that the meeting sought by Mr. Krajišnik would consequently be inappropriate.[5]

Subsequently, in a Motion filed on 26 June 2008, Mr. Krajišnik sought review of the Decision of 11 June 2008 and an order obliging amicus curiae to visit him at the UNDU. The Pre-Appeal Judge considered that the Motion was best construed as a request for reconsideration of the Decision, since it did not meet the standards for a request for review laid out in Rule 119(a) of the Rules.[6] The Pre-Appeal Judge denied the Motion, finding that Mr. Krajišnik had not met the standard that would justify granting his request for reconsideration because he had not shown that the 11 June 2008 Decision was based on clearly erroneous reasoning or that it would result in an injustice.

[1] “Amicus Curiae Motion Regarding Request for UNDU Visit by Mr Krajisnik [sic]” (Public with Confidential Annex), 6 June 2008 (“Motion”).

[2] Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007 (“Decision of 11 May 2007”), para. 19.

[3] Decision of 11 May 2007, para. 20.

[4] Decision of 11 May 2007, para. 19.

[5] Prosecutor v Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Amicus Curiae Motion for Guidance, 11 June 2008, p. 1.

[6] Decision on Momčilo Krajišnik’s Request for Reconsideration of the Pre-Appeal Judge’s Decision of 11 June 2008, 4 July 2008 (“Krajišnik Decision on Reconsideration”), p. 1.

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Decision on Subpoena - 22.05.2008 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR73.7)

The Appeals Chamber stated that:

10. Generally, an order issued by a Trial Chamber is a command, direction or instruction given to the parties in relation to a subsidiary, collateral or preliminary matter which arises from the proceedings before it.[1] An order must be clear, explicit and unambiguous. It may be issued orally or in writing. […]

In the present case, the Appeals Chamber considered the exchange between the Presiding Judge and the Accused’s counsel at a status conference and stated that:

10. […] In the view of the Appeals Chamber, this exchange does not constitute an order, since the Presiding Judge did not clearly direct or instruct the Appellant’s counsel to do anything. Rather than an order, this exchange suggests an enquiry as to when counsel could take certain action, with the Presiding Judge then noting the answer. From this exchange, counsel would not necessarily understand that the Trial Chamber directed or instructed him to file a request for a subpoena of a certain witness by the day discussed.

[1] Black’s Law Dictionary, Eighth Edition, pp. 1129-1130, referring to Henry Campbell Black, A Treatise on the Law of Judgments S1 at 5 (2d ed. 1902).

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Decision on the Course of Proceedings - 16.05.2008 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73.2)

15. The Appeals Chamber recalls that in the Impugned Decision, the Trial Chamber found that derogation from the right of the Accused to be present at trial was warranted given that his health condition regularly interferes with the right to a fair and expeditious trial.  The Prosecution correctly points out that derogation from the right to be present is reasonable under some circumstances and that derogation may be justified even on the basis of substantial trial disruptions on the part of an accused that are unintentional in nature.  The question before the Appeals Chamber is whether derogation from the right to be present through the establishment of a video-conference link that enables the Accused to participate in his trial from the UNDU was reasonable under the circumstances of this case.

16. The Appeals Chamber observes that in determining whether derogation from the Accused’s right to be present at trial was justified, the Trial Chamber considered the proportionality principle.[3]  Specifically, the Trial Chamber noted that any restrictions on a fundamental right “must be the least intrusive instrument amongst those which might achieve the desired result.”[4]  The Trial Chamber further considered that in the Zigiranyirazo Decision, the Appeals Chamber held that the need to ensure a reasonably expeditious trial is an objective of general importance and accordingly concluded that its task in the instant case was to “strike an appropriate balance between the reasonably expeditious resolution of the case and the need to protect the Accused’s right to be present at his trial.”[5]

18. The Appeals Chamber considers that in determining the future course of the proceedings in this case, the Trial Chamber’s decision to balance the right of the Accused to be present with the right of both the Accused and his co-Accused to an expeditious trial was reasonable. […] 

19. The Appeals Chamber emphasizes that the right to be present is a fundamental right, and although the Prosecution correctly points out that derogation from this right may be warranted in light of substantial trial delays, the Appeals Chamber agrees with the Defence that derogation is not appropriate when reasonable alternatives exist.  The Appeals Chamber notes that in choosing to establish the video-conference link, the Trial Chamber excluded other potential options, including, as the Prosecution observes, allowing the case to remain in the pre-trial phase for three to six months.[6]  The Appeals Chamber considers that, given the existence of this reasonable alternative, which could potentially secure the Accused’s ability to fully exercise his right to be present at trial within a relatively short period of time, the Trial Chamber erred in choosing an alternative that restricted this right. 

20. The Appeals Chamber further notes that in establishing the video-conference link to enable the Accused to participate in the proceedings from the UNDU when he is too unwell to physically attend court, the Trial Chamber failed to consider whether, given his physical and mental state, he would nevertheless be able to effectively participate in his trial via the video-conference link.  The Appeals Chamber finds that a reasonable Trial Chamber would have considered this factor in its decision and accordingly finds that the Trial Chamber’s failure to do so amounts to a discernible error.

[1] Impugned Decision [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Future Course of Proceedings, 9 April 2008], para. 15.

[2] Prosecution Response [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Prosecution’s Response to “Defence Appeal of the Decision on Future Course of Proceedings,” filed publicly with confidential annex, 5 May 2008], para. 45.

[3] Impugned Decision, para. 10.

[4] Impugned Decision, para. 10 (citing the United Nations Human Rights Committee, compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/rev.6, 12 May 2003, p. 176).

[5] Impugned Decision, para. 11.

[6] Prosecution Response [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Prosecution’s Response to “Defence Appeal of the Decision on Future Course of Proceedings,” filed publicly with confidential annex, 5 May 2008 ], para. 33.

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Decision on the Course of Proceedings - 16.05.2008 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73.2)

6. An accused appearing before the International Tribunal is entitled to certain minimum guarantees pursuant to Article 21(4) of the Statute of the International Tribunal (“Statute”).  Article 21(4)(d) of the Statute grants the accused the right “to be tried in his presence.”  The Appeals Chamber has interpreted this right as meaning that an accused has the right to be physically present.[1]  This right, however, is not absolute.[2]  An accused can waive or forfeit the right to be physically present at trial.[3]  For example, under Rule 80(B) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), the Trial Chamber may order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct, following a warning that such conduct may warrant the removal.  The Appeals Chamber has observed that the right of an accused to be present at trial pursuant to Rule 80(B) of the Rules can be restricted “on the basis of substantial trial disruptions.”[4]  The Appeals Chamber has further found that this Rule is not limited to intentional disruptions.[5]  However, in assessing a particular limitation on a statutory guarantee, such as the right to be physically present at trial, the Appeals Chamber bears in mind the proportionality principle, pursuant to which any restriction on a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.[6]

[1] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Interlocutory Appeal Concerning His Right to be Present at Trial, 5 October 2007 (“Nzirorera Decision”), para. 11 (citing Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision”), paras 11-13).

[2]See Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007, para. 96 et seq. See also Zigiranyirazo Decision, para. 14; Milošević Decision of 1 November 2004 [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004], para. 13.

[3] Zigiranyirazo Decision, para. 14 (citing Milošević Decision of 1 November 2004, para. 13). 

[4] Zigiranyirazo Decision, para. 14 (citing Milošević Decision of 1 November 2004, para. 13).

[5] Milošević Decision of 1 November 2004, para. 14 (finding that “it cannot be that the only kind of disruption legitimately cognizable by a Trial Chamber is the intentional variety”).

[6] See Zigiranyirazo Decision, para. 14 (citing Milošević Decision of 1 November 2004, para. 17). See also Nzirorera Decision, para. 11.  

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Consolidated Decision on Provisional Release - 15.05.2008 POPOVIĆ et al.
(IT-05-88-AR65.4, IT-05-88-AR65.5, IT-05-88-AR65.6)

22. The Appeals Chamber notes that when considering the impact of a 98bis ruling on the flight risk of an accused pursuant to Rule 65(B) of the Rules, a Trial Chamber may deem it necessary to address the arguments raised by the accused in his motion for acquittal in order to assess his perception of the strength of the case against him. However, contrary to the Prosecution’s inference, such an assessment does not constitute a fixed requirement of the Rules. The Appeals Chamber accordingly finds that the Trial Chamber did not commit a discernible error when it concluded that the 98bis Decision did not increase Gvero’s flight risk without addressing the arguments he made in his motion for acquittal.

23. […] Only after weighing all of the aforementioned factors along with the 98bis Decision did the Trial Chamber conclude that Gvero did not pose a flight risk or a threat to witnesses, victims or other persons in the case.[1] Accordingly, the Appeals Chamber is not satisfied that the Trial Chamber committed a discernible error when it concluded that the 98bis Decision did not increase Gvero’s flight risk.

24. Nevertheless, the Appeals Chamber recalls that when considering a provisional release motion at the post-98bis stage of the proceedings, even when a Trial Chamber is satisfied that sufficient guarantees exist to offset the flight risk of the accused, it should not exercise its discretion to grant provisional release unless sufficiently compelling humanitarian reasons tip the balance in favour of allowing provisional release.[2] The Appeals Chamber accordingly finds, Judges Güney and Liu dissenting, that a Trial Chamber properly exercising its discretion would have denied Gvero’s provisional release request given that he did not propose any compelling humanitarian justifications for release. Gvero points out that in the 7 December 2007 Decision, the Trial Chamber did not consider his personal circumstances relevant to its decision to grant his provisional release motion, and that in the Impugned Decision, the Trial Chamber granted him provisional release in accordance with previous Trial and Appeal Chamber decisions.[3] However, the Appeals Chamber notes that each of the decisions relied upon by Gvero were rendered before the 98bis Decision in this case.

30. The Appeals Chamber disagrees with the Prosecution’s assertion that the Trial Chamber did not conduct a clear assessment of the impact of the 98bis Decision on Miletić’s flight risk. Rather, the Trial Chamber explicitly noted that in light of the Prlić Decision of 11 Marcy 2008, it was required to conduct such an assessment.[4] […] The Trial Chamber concluded that based on all of the aforementioned factors, it was not satisfied that the 98bis Decision increased Miletić’s flight risk. It further concluded that the Miletić did not pose a flight risk or a threat to witnesses, victims or other persons in the case.

See also the Partly Dissenting Opinions of Judges Güney and Liu.

[1] Impugned Gvero Decision, para. 17.

[2] See Stojić Decision, para. 14. See also Petković Decision, para. 15 [Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.8, Decision on “Prosecution’s Appeal from Décision relative à la Demande de mise en liberté proviso ire de l’Accusé Petković Dated 31 March 2008”, 21 April 2008 (“Petković Decision”), para. 7].

[3] Gvero Response, paras 7-8.

[4] Impugned Miletić Decision, paras 30 and 32.

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ICTR Rule Rule 65 ICTY Rule Rule 65