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CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, in view of Šešelj’s current position not to appear at the appeal hearing, the Appeals Chamber must take appropriate measures to ensure that his interests are represented at the upcoming appeal hearing in order to ensure the fair and expeditious conduct of the proceedings;

CONSIDERING that, prior to restricting Šešelj’s right to self-representation, the Appeals Chamber must issue a warning that is specific in nature;

CONSIDERING that, if [ešelj maintains his intention not to attend the appeal hearing, it will be in the interests of justice to instruct the Registrar pursuant to Rules 46 and 131 of the Rules to assign a standby counsel to represent Šešelj’s interests in the event that Šešelj is not present at the appeal hearing;

CONSIDERING that any restrictions on Šešelj’s right to represent himself must be limited to the minimum extent necessary to protect the Mechanism’s interest in a reasonably expeditious resolution of the appeal before it;

CONSIDERING, therefore, that, in order to preserve Šešelj’s right to self-representation, the mandate of the standby counsel shall be strictly limited to ensuring that Šešelj’s procedural rights at the hearing are protected if he does not attend, and shall not extend to making a response on [ešelj’s behalf on the substance of the Prosecution’s appeal;

[…]

CONSIDERING that Šešelj should be given an opportunity to reconsider his position not to attend the appeal hearing prior to instructing the Registrar to assign standby counsel;[5]

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. […]

11.     In this context, the Appeals Chamber finds that it was reasonable for Niyitegeka to request certification to appeal the Decision of 29 January 2016, which was issued, in part, on the basis of Rule 86 of the Rules. Notably, Niyitegeka filed the Request for Certification within the seven-day timeframe provided under Rule 80(C) of the Rules.  Moreover, he lodged the present Appeal within seven days of the Decision of 10 May 2017 denying his Request for Certification. Consequently, and pursuant to Rule 154 of the Rules, the Appeals Chamber finds that there is good cause to recognize the Appeal of the Decision of 29 January 2016 as validly filed.

12. […] the Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[1]

18.     The Appeals Chamber turns to Niyitegeka’s contention that the Single Judge erred in failing to consider that all the statements and testimony of the 12 Prosecution witnesses given subsequent to his own proceedings constitute potentially exculpatory material subject to disclosure under Rule 73 of the Rules. In this respect, the Appeals Chamber recalls that Rule 73(A) of the Rules imposes upon the Prosecution a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”. The determination as to which material is subject to disclosure under Rule 73 of the Rules is a fact-based enquiry made by the Prosecution. A chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will presume that the Prosecution is acting in good faith. Niyitegeka demonstrates no error in the Single Judge’s determination that, with respect to Niyitegeka’s present request for disclosure, there was no reason to doubt that the Prosecution was complying with its continuous disclosure obligations in good faith. The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.

19.     […] [T]he Appeals Chamber recalls that the Office of the Prosecutor has a duty to utilize procedures designed to ensure that, particularly in instances where the same witnesses testify in different cases, the evidence provided by such witnesses is re-examined in light of Rule 73 of the Rules to determine whether any material has to be disclosed.[6] This obligation reflects the possibility that statements or testimony given by a witness in a subsequent proceeding may contain material subject to disclosure under Rule 73 of the Rules and underscores that, as noted above, determining what is subject to disclosure is a fact-based enquiry by the Prosecution. […] Furthermore, Rule 73 of the Rules limits the Prosecution’s obligation to the disclosure of material that “in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[8] To the extent Niyitegeka considers that the Prosecution may be unaware of information that may impact the assessment of whether material in its possession is subject to disclosure under Rule 73 of the Rules, he may share such information with the Prosecution. In light of the foregoing, the Appeals Chamber finds that Niyitegeka fails to establish that the Single Judge committed a discernible error by not determining that all the statements and transcripts of evidence given by the 12 Prosecution witnesses during proceedings subsequent to the conclusion of Niyitegeka’s case constitute material subject to disclosure pursuant to Rule 73 of the Rules.

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CONSIDERING that, pursuant to Rule 147 of the Rules, a hearing to consider evidence on the new fact (“Review Hearing”) will be held;

CONSIDERING that the Review Hearing will allow the parties to provide supporting and rebuttal evidence concerning the new fact and that, before setting the date and structure of the Review Hearing, it is appropriate to allow adequate time for preparation and to consider the scope of the evidence, if any, the parties wish to present;[1]

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RECALLING that, pursuant to Rule 71(B) of the Rules, the Prosecution shall, on request, permit the Defence to inspect any books, documents, photographs, and tangible objects in its custody or control, which are material to the preparation of the defence;

CONSIDERING, that the pseudonyms that Karadžić wishes to inspect are not books, documents, photographs, or tangible objects in the Prosecution’s custody or control, but rather information contained in confidential and ex parte filings;

FINDING, therefore, that Rule 71(B) of the Rules is not applicable;

[…]

CONSIDERING that disclosing pseudonyms of protected witnesses in this case who were the subject of Rule 86 proceedings may reveal details about non-public investigations in other jurisdictions[1] which were communicated to the Mechanism on a confidential and ex parte basis;

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CONSIDERING that the parties have made detailed submissions, where they, by and large, rely on the same well-established jurisprudence but disagree about its interpretation with respect to the remedies available in case of non-compliance by a State with an order issued by the Mechanism;[1]

CONSIDERING, therefore, that the information before me is sufficient to reach an informed decision, and, accordingly, that it is not necessary to invite further oral or written submissions on the matter; [2]

5.       […] A party requesting reconsideration of a decision must satisfy the chamber of the existence of a clear error of reasoning in the impugned decision, or of particular circumstances justifying reconsideration in order to avoid injustice. […]

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CONSIDERING that, as Pre-Review Judge, I am “vested with the power to address problems arising during the review proceedings on behalf of the Appeals Chamber”, shall ensure that the proceedings are not unduly delayed, and shall take any measures related to procedural matters, including the issuing of decisions, orders, and directions with a view to preparing the case for a fair and expeditious hearing;[1]

CONSIDERING that, in order to ensure the proper preparation of this case for a fair and expeditious hearing, I find it necessary as Pre-Review Judge acting on behalf of the Appeals Chamber to initiate the procedure envisioned under Rules 8(A) and 131 of the Rules; 

9.       The Appeals Chamber recalls that legal officers assisting Judges at the Tribunal are not subject to the same standards of impartiality as the Judges of the Tribunal, and that judicial decision-making is the sole purview of the Judges.[1] Legal officers merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.[2]

10.     Notwithstanding the above, in some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial.[3] In this respect, the Appeals Chamber recalls in particular, that an unacceptable appearance of bias exists, inter alia, where the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[4] The Appeals Chamber further recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal and which cannot be easily rebutted.[5]

[…]

37.     When addressing whether the impartiality of the Judges in this case could be affected by the Impugned Staff’s involvement in the Karadžić case, the Trial Chamber found that, even though “there is a considerable degree of overlap between the Karadžić case and the present case”, “a properly informed and reasonable observer would not consider […] that the judges in the present case ha[ve] failed to maintain the high degree of integrity and impartiality to which they are sworn, even if they or the Impugned Staff had worked on both cases.”[6] It added that a properly informed and reasonable observer would not expect that the Judges in this case would do anything other than rule fairly on the issues before them, relying exclusively on the evidence adduced in the present case, even if they or their staff had been exposed to evidence in both cases.[7] The Trial Chamber concluded that the presumption of impartiality attached to the Judges in this case had not been rebutted on the basis that the Impugned Staff had worked on an overlapping case in which factual findings were made in relation to Mladić.[8]

38.     With respect to Mladić’s argument that the Trial Chamber failed to sufficiently reason its conclusions relating to the application of the reasonable observer test,[9] the Appeals Chamber considers that Mladić’s arguments effectively amount to a challenge to how the reasonable observer test has been interpreted in the case law. The Appeals Chamber is of the view that Mladić’s argument reflects his disagreement with the jurisprudence relied upon by the Trial Chamber and set out in detail in the applicable law section of the Impugned Decision,[10] as well as with the Trial Chamber’s reliance on this jurisprudence when assessing whether the Impugned Staff’s involvement in the Karadžić case could lead to an appearance of bias of the Judges in this case[11] without explaining how the Trial Chamber erred in following this case law. The Appeals Chamber finds that Mladić fails to demonstrate an error in the Trial Chamber’s reasoning.

39.     Moreover, the Appeals Chamber recalls that “‘mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves’, to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges.”[12] Accordingly, the Appeals Chamber does not consider that a staff’s previous work on an overlapping case is, in and of itself, sufficient to impugn the Judges’ impartiality or the appearance thereof. The Appeals Chamber therefore finds no merit to Mladić’s argument that a reasonable observer would consider that the fact that the Impugned Staff previously worked on the closely-related Karadžić case, is sufficient to rebut the impartiality of the Judges in this case.

See also paragraphs 30, 33.