109. […] The mens rea of a systemic joint criminal enterprise requires proof of the participant’s personal knowledge of the system of ill-treatment, as well as the intent to further this system of ill-treatment.[1]

119. […] In general, in the case of a third category joint criminal enterprise, the crimes must be committed by members of the joint criminal enterprise.[1] […]

120. Furthermore, the Appeals Chamber finds that Haradin Bala, even if he were a member of a systemic joint criminal enterprise, could not be convicted for having used “outsiders” to commit crimes in the camp. In this context, the Appeals Chamber recalls its finding in Brđanin that

to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The existence of this link is a matter to be assessed on a case-by-case basis.[2]

The Appeals Chamber notes, however, that it was neither argued at trial nor on appeal whether Haradin Bala could incur systemic joint criminal enterprise liability for crimes committed by non-members of the enterprise. Furthermore, the Appeals Chamber recalls its finding in Brđanin that it would be unfair to enter new convictions in that case on the basis that principal perpetrators do not need to be members of the joint criminal enterprise, as this was not litigated at trial.[3] This reasoning also applies in the present case.

218. The Appeals Chamber notes that other Trial Chambers have held that an accused’s proximity to an area of criminal activity can be a factor from which an accused’s knowledge of the crimes can be inferred.[1] However, in this case, the Appeals Chamber finds that the Trial Chamber reasonably refused to find that the alleged occasional presence of Fatmir Limaj in the immediate proximity of the Llapushnik/Lapušnik prison camp during and after the battle of 29 May 1998, and at one oath ceremony in June-July 1998,[2] proved his knowledge of the existence of the prison camp or his participation in it.

143. With respect to the Prosecution’s submission that Haradin Bala’s subordinate role was counted twice when assessing the gravity of the crimes and when determining the factors in mitigation, the Appeals Chamber recalls that double-counting for sentencing purposes is impermissible.[1] The Trial Chamber found in the section on the gravity of the offence that “Haradin Bala was not in a position of command“ and that his role was “that of a guard”.[2] Similarly, in the section on the “aggravating and mitigating circumstances”, the Trial Chamber held that Haradin Bala “was not a person with any commanding or authoritative role in the establishment of the camp, and essentially performed duties assigned to him, as essentially a ‘simple man’.”[3] Consequently, the Trial Chamber erred in considering twice in mitigation Haradin Bala’s subordinate role.

144. […] If the error is so slight as to be harmless, the Appeals Chamber may affirm the same sentence as imposed by the Trial Chamber: such is the case here. The Appeals Chamber has carefully reviewed the Trial Chamber’s reasoning and believes that the Trial Chamber’s double-counting error was, in fact, so insignificant that the Trial Chamber would have arrived at the same sentence of thirteen years even if it had not fallen into error.

23. There is no question that, as the Trial Chamber recognized and held in the Impugned Decision, Mr. Rwamakuba is entitled to an effective remedy for the violation of his right to legal assistance as well as his right to an initial appearance without delay. Trial Chamber II recognized the existence of these violations,[1] and the Appeals Chamber indicated that Mr. Rwamakuba could “seek reparation” for them.[2] Moreover, the Appeals Chamber, after considering nearly identical violations in the Kajelijeli Appeal Judgement, reached the same conclusion and, accordingly, reduced the sentence imposed in that case.[3] The two principal questions for the Appeals Chamber are whether the Tribunal is empowered to award financial compensation as an effective remedy for a violation of the fundamental rights of the accused and, if so, whether it was appropriate to award Mr. Rwamakuba financial compensation as an effective remedy in the present case.

24. The Appeals Chamber has previously held that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy.”[4] It follows very plainly from the Appeals Chamber’s decisions in the Barayagwiza and Semanza cases that a remedy for a violation of the rights of the accused may include an award of financial compensation, as both decisions envisioned financial compensation being fixed at the time of judgement, if the accused were acquitted.[5] In this respect, the Appeals Chamber is not persuaded by the Registrar’s submissions that the absence of an explicit provision providing for financial compensation in the Statute for violations of the rights of the accused as well as the Security Council’s decision not to amend the Statute to expressly include such a remedy indicate that it is not available.

25. First, while there is no right to compensation for an acquittal per se, there is a right in international law to an effective remedy for violations of the rights of the accused, as reflected in Article 2(3)(a) of the ICCPR.[6] In this respect, the ICCPR specifically envisions compensation as an appropriate remedy in certain circumstances, such as the case of unlawful arrest or detention.[7] The Appeals Chamber has previously held that the ICCPR is a persuasive authority in determining the Tribunal’s powers under international law.[8]

26. The authority in the Statute to provide an effective remedy flows from Article 19(1) of the Statute, which obliges the Trial Chambers to ensure a fair trial and full respect for the accused’s rights. The existence of fair trial guarantees in the Statute necessarily presumes their proper enforcement.[9] In this respect, the Appeals Chamber observes that the Statute and Rules do not expressly provide for other forms of effective remedy, such as the reduction of sentences, yet such a remedy has been accorded on several occasions.[10] Moreover, the submissions of the Presidents of this Tribunal and of the ICTY seeking an amendment of the Statute from the Security Council to provide for financial compensation do not suggest that an effective remedy in the form of financial compensation cannot be ordered and paid in the absence of an express provision. At the time of making the submissions, the Appeals Chamber had already issued two decisions envisioning possible awards of compensation to remedy fair trial rights violations and the submissions themselves recognized the authority of the Tribunals to order financial compensation as an effective remedy in the form of an “exceptional ruling” or an “ex gratia payment”. [11] The request for a statutory amendment merely expressed the preference of the Presidents for a specific statutory provision so that it would be beyond dispute that any award of compensation would be paid “according to law”.[12] Against this backdrop, the Appeals Chamber will not assume that the Security Council’s inaction was intended to interfere with the Tribunal’s inherent authority to order compensation in appropriate circumstances. Accordingly, the Appeals Chamber can identify no error of law on the part of the Trial Chamber in finding that it had the authority in general to award an effective remedy for the violations of Mr. Rwamakuba’s rights as an accused person, including financial compensation.

27. The question remains, however, whether it was appropriate for the Trial Chamber to award Mr. Rwamakuba financial compensation in the present case, as part of the remedy for the violations of his right to legal assistance and to an initial appearance without delay. The jurisprudence of the Appeals Chamber reflects that the nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[13] In practice, the effective remedy accorded by a Chamber for violations of an accused’s fair trial rights will almost always take the form of equitable or declaratory relief.[14] In the past, the Appeals Chamber has envisioned financial compensation as a form of effective remedy only in situations where, amongst other violations, an accused was impermissibly detained without being informed of the charges against him.[15] This is in line with Article 9(5) of the ICCPR which provides for an enforceable right to compensation in the event of an unlawful arrest or detention.[16]

28. Bearing this in mind, the Appeals Chamber recalls that Mr. Rwamakuba was detained in the Tribunal’s detention facilities for a total of 167 days from the date of his transfer on 22 October 1998 until his initial appearance held on 7 April 1999, of which he spent 125 days without assigned counsel.[17] As the Appeals Chamber in the Kajelijeli case already pointed out in relation to the rights of a suspect,[18] a judge is called upon to make an accused familiar with the charges, to verify an accused’s identity, to examine any obvious challenges to the case, to inquire into the medical condition of an accused, and to notify a person enjoying the confidence of the detainee[19] and consular officers.[20]  The Appeals Chamber further stressed that:

Rule 62 is unequivocal that an initial appearance is to be scheduled without delay. There are purposes for an initial appearance apart from entering a plea including: reading out the official charges against the accused, ascertaining the identity of the detainee, allowing the Trial Chamber or Judge to ensure that the rights of the accused while in detention are being respected, giving an opportunity for the accused to voice any complaints, and scheduling a trial date or date for a sentencing hearing, in the case of a guilty plea, without delay.[21]

The Appeals Chamber considers the violations of Mr. Rwamakuba’s rights attributable to the Tribunal and financial compensation to be an effective remedy. The nature of the violations suffered by Mr. Rwamakuba is no less significant than in other cases where such compensation was envisioned to be fixed at the time of judgement if the accused were found not guilty (as opposed to a reduction in sentence in case the accused were found guilty).[22] Accordingly, the Appeals Chamber can identify no error on the part of the Trial Chamber in finding that financial compensation is an appropriate form of an effective remedy to address the violations of Mr. Rwamakuba’s rights.

29. Moreover, the Appeals Chamber is not persuaded by the Registrar’s submission that the award of two thousand United States dollars has no basis in fact. It is not disputed that Mr. Rwamakuba’s suffered serious violations of his fundamental rights. In the Kajelijeli Appeal Judgement, the Appeals Chamber did not demand or cite additional proof of specific harm in according an appropriate remedy in that case, which involved a significant reduction in sentence.[23] Moreover, as noted above, the Appeals Chamber in the Barayagwiza and Semanza cases envisioned the award of compensation, in the event of an acquittal, to be fixed at the time of judgement.[24]

30. Finally, the Appeals Chamber also agrees with the Trial Chamber that internal institutional considerations related to the execution of an order, including budgetary matters, are separate considerations from the Tribunal’s authority to award an effective remedy in the form of financial compensation in appropriate circumstances and in compliance with its international obligations.[25] Budgetary considerations cannot interfere with the Tribunal’s authority to award financial compensation as an effective remedy for a human rights violation; similarly, at the domestic level, a State cannot advance the argument that there are no budgetary resources available to justify a refusal to award compensation. The Appeals Chamber has confirmed the Tribunal’s general authority to award compensation in appropriate and limited circumstances. In addition, it has affirmed the reasonableness of the award in the present case.

33. Privilege stems from the attorney-client relationship, as indicated in Article 21(4)(b) of the Statute and as set forth in Rule 97 of the Rules, which provides that all “communications between lawyer and client shall be regarded as privileged”. Where an accused has opted to self-represent instead of to have counsel represent him, the basis for the privilege is removed.  Mr. Krajišnik accordingly has no entitlement to privileged communications. Since the Registry has no obligation to provide him with privileged access to anyone, Mr. Krajišnik has no basis for objecting to the Registry's willingness to provide him with privileged access to up to three designated legal associates.

Article 21(4)(b) guarantees that an accused is entitled, inter alia, “to have adequate time and facilities for the preparation of his defense”. Paragraphs 35 and 36 provided some content to what this guarantee means for a self-represented accused on appeal.

35. The third issue is quantity of access. The Registry has authorized Mr. Krajišnik to have unlimited communications with any designated legal associates, and Mr. Krajišnik can contact all other persons (e.g., investigators) in accordance with standard procedures at the UNDU. When designated legal associates exist, this approach is a reasonable one. The unlimited access to the designated legal associates would provide Mr. Krajišnik with a conduit for exchanging appropriate information with other members of his team where time limitations (or other limitations) imposed by UNDU standard procedures impede direct exchange. This in turn would satisfy the requirement pursuant to Article 21(4)(b) of the Statute that an accused have “adequate time and facilities for the preparation of his defence”.

36. If no legal associates have been designated, however, then the Appeals Chamber has some concerns about the Registry's approach. In this situation, pursuant to the Registry's approach a self-represented accused is limited only to the standard UNDU procedures for communication with the outside. If these procedures do not provide a self-represented accused with sufficient opportunity to exchange appropriate information with team members outside the UNDU during the preparation of his case, then this may amount to a lack of "adequate time and facilities for the preparation of his defence" in violation of Article 21(4)(b) of the Statute […]. Nonetheless, the Appeals Chamber informs the Registry that in the event that no legal associates are designated, the Registry should ensure that Mr. Krajišnik has adequate means of communicating with his defence team while he is preparing his appeal brief and his reply brief. If accommodations beyond those provided under standard UNDU procedures are thus necessary, the Appeals Chamber expresses its conviction that the Registry will provide such accommodations in the manner it deems most consistent with preserving order and security in the UNDU.

Finally, the Appeals Chamber noted that a self-represented accused might be entitled to free translation services.

44. The Appeals Chamber further notes that all sides appear to agree that as an indigent self-represented accused, Mr. Krajišnik is entitled to Tribunal-funded translation assistance.[1]  This does not mean, however, that Mr. Krajišnik is entitled to assistance from a translator/interpreter of his choosing . […]

11. […] While the Practice Direction does not specifically provide for the possibility for an accused in a joint trial to file submissions in appeal proceedings initiated by his co-accused, this may be allowed in the circumstances of a given case, particularly where such accused has a specific interest in the matter and where considering such filing as admissible would be in the interests of justice and would not be prejudicial to the other parties.[1]

14. The Appeals Chamber held that to grant an accused, who has not obtained the required certification the standing to challenge a Trial Chamber decision on appeal in his response to an appeal filed by a co-accused would open the interlocutory appeal process to abuse. Where certification in accordance with Rules 73 (B) and (C) of the Rules is required, parties must obtain such certification if they intend to appeal a decision. Consequently, the Appeals Chamber considers that it will only take into consideration those arguments made by Mr. Ndayambaje and Mr. Ntahobali that are legitimately made in response to the certified appeal of the Appellant.

21. As noted above, Trial Chambers exercise discretion in relation to the conduct of proceedings before them.[1] The Appeals Chamber notes that in the Orić case,[2] the ICTY Appeals Chamber held that:

[a]lthough Rule 73ter gives the Trial Chamber the authority to limit the length of time and the number of witnesses allocated to the defence case, such restrictions are always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute of the International Tribunal be respected. Thus, in addition to the question whether, relative to the time allocated to the Prosecution, the time given to the Accused is reasonably proportional, a Trial Chamber must also consider whether the amount of time is objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights. [3]

Consequently, the Appeals Chamber must determine whether in ordering the Appellant to reduce the number of his witnesses, the Trial Chamber took into consideration the complexity of the Appellant’s case and determined that the maximum number of witnesses allotted to him was sufficient to allow the Appellant a fair opportunity to present his defence.

24. […] As already stated, the Appeals Chamber is satisfied that it was well within the discretion of the Trial Chamber to reduce the number of witnesses to be called by the Appellant by reference to the Pre-Defence Brief and “will-say” statements. The Appeals Chamber is further satisfied that in basing its decision on a consideration of the evidence to be adduced by the proposed witnesses, the Trial Chamber properly considered whether reducing the number of the Appellant’s witnesses to a maximum of thirty would still allow the Appellant the opportunity to present an adequate defence. Accordingly, the Appeals Chamber finds no error on the part of the Trial Chamber.