171. The Respondent is on the list of assigned counsel kept by the Registrar in accordance with Rule 45. The Registrar has power pursuant to Article 20 of the Directive on Assignment of Defence Counsel to strike any counsel off that list where he or she has been refused audience by a Chamber in accordance with Rule 46, and to notify the professional body to which that counsel belongs of the action taken in relation to his or her conduct[1]. The Respondent’s conduct as found by the Appeals Chamber in these proceedings is substantially worse than that which permits the Registrar to strike counsel off the list pursuant to Article 20 of the Directive.

172. In the opinion of the Appeals Chamber, the Registrar has power generally to strike the Respondent off the list of assigned counsel because of his serious professional misconduct as demonstrated by the Appeals Chamber’s findings. A direction will therefore be given to the Registrar to consider striking the Respondent off the list and reporting his conduct as found by the Appeals Chamber to the professional body to which he belongs.

See also para. 166.

NOTE: THE VERSION OF ARTICLE 20 OF THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL IN FORCE AS OF JULY 2013 PROVIDES, INTER ALIA, AS FOLLOWS:

(C) The Registrar shall withdraw the assignment of counsel:

(i) upon a decision of a Chamber under Rule 46(A)(ii); or

(ii) where counsel no-longer satisfies the requirements of Article 14(A); or

(iii) where counsel has been found to be in contempt pursuant to Rule 77 of the Rules, unless the Chamber rules that the assignment should continue.

       Where the assignment of counsel has been withdrawn pursuant to Article 20(C)(ii), counsel may seek review of the Registar’s decision before the President within fifteen days from the date upon which he is notified of that decision.

(D) In such cases, the withdrawal or suspension shall be notified to the accused, to the counsel concerned, to the association of counsel of which he is a member, and to his professional or governing body.

145. A tribunal of fact is always permitted to accept part and reject part of the same witness’s evidence. The Appeals Chamber is conscious that it is a substantial step to take to accept the statement given by a witness in preference to his or her sworn evidence, especially when the witness seeks to repudiate the relevant part of the statement. 

93. The second matter of principle of general application is the weight to be given to a statement made by a witness out of court which is inconsistent with his or her evidence in court. Where such out of court statement is merely hearsay, the common law denies it any value as evidence of the truth of what had been said out of court, and restricts its relevance to the issue of the witness’s credit.[1] On the other hand, the civil law admits the hearsay material without restriction, provided that it has probative value; the weight to be afforded to it as evidence of the truth of what was said is considered at the end of all the evidence. This Tribunal has, by its Rules, effectively rejected the common law approach. Rule 89(C) provides:

A Chamber may admit any relevant evidence which it deems to have probative value.

The application of that Rule was considered at the trial of Tadié, in a decision which was not challenged in the appeal.[2] The Appeals Chamber has since held that is now well settled in the practice of the Tribunal that hearsay material having probative value is admissible so as to prove the truth of what was said,[3] acknowledging nevertheless that the weight to be afforded to that material will usually be less than that given to the testimony of a witness who has given it under a form of oath and who has been cross-examined, although even this will depend upon the infinitely variable circumstances which surround hearsay material.[4]

163. The Appeals Chamber has not been placed in a position where it can determine just what the law on this point is in the former Yugoslavia. The material which the Respondent supplied to the Chamber as supporting what he had said does not demonstrate the existence of any law prohibiting lawyers from obtaining statements from witnesses directly and without intervention by the court or the police, but the material he supplied may be incomplete. However, whatever the law may be in the various parts of the former Yugoslavia, it must clearly be understood by counsel appearing in matters before this Tribunal that they are bound by the law of the Tribunal to act freely when seeking out witnesses. They are bound by the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, which (by Article 19) prevails where there is any inconsistency between it and any other code which counsel may be bound to honour. International law does not recognise any prohibition upon counsel such as asserted by the Respondent to exist in the former Yugoslavia, and States could not effectively legislate to frustrate the proper workings of the Tribunal in that way.

164. In the present case, the Respondent explained his resort to the military tribunal by his concern that, in an application pursuant to Rule 115 to present additional evidence to the Appeals Chamber, the Chamber would prefer the evidence to be on oath, and therefore would accept statements taken by an official organ of the country in which the witnesses reside. (The Appeals Chamber was informed that affidavits are unknown in the former Yugoslavia.) Such would certainly be an understandable concern. But it should again clearly be understood that counsel appearing before the Tribunal are not obliged to have statements taken from prospective witnesses in police stations or in courts or through any other official organs. Indeed, in most cases it would be unwise, and potentially counter-productive, to follow such procedures, because of the intimidating effect they may have on the witnesses themselves, and the perceptions which such procedures may create as to the influence of the State upon statements which are made in that way.

20. Insofar as the Appellant argues that the sentence of 20 years was unfair because it was longer than the facts underlying the charges required, the Appeals Chamber can find no error in the exercise of the Trial Chamber’s discretion in this regard.  The sentence of 20 years is within the discretionary framework provided to the Trial Chambers by the Statute and the Appeals Chamber will not, therefore, quash the sentence and substitute its own sentence instead.

[…]

22. With respect to the Appellant’s final challenge to his sentence, namely, that the Trial Chamber failed to adequately consider his personal circumstances, the Appeals Chamber is unable to find support for this contention.  The Trial Chamber’s decision addressed the issue of public indoctrination, and there is no discernible error in the exercise of discretion with regard to the remainder of the Trial Chamber’s analysis that would permit the Appeals Chamber to substitute its own decision for that of the Trial Chamber.

28. Neither the Statute nor the Rules provide guidance for judicial discretion with respect to the recommendation of a minimum sentence.  The discretion of a Trial Chamber to recommend a minimum sentence flows from the powers inherent in its judicial function and does not amount to a departure from the Statute and the Rules.  However, the judicial discretion of Trial Chambers to attach conditions to sentences is subject to the limitations imposed by fundamental fairness.

[…]

31. […] the Trial Chamber’s recommendation that the ten-year minimum sentence begins to run “from the date of this Sentencing Judgment or of the final determination of any appeal, whichever is the” later raises legitimate concerns. Such a condition could suggest to prospective appellants that the exercise of the right to appeal could result in enhanced penalties.  The consequential discouragement of appeals may deprive the Appeals Chamber of the opportunity to hear appeals on substantial questions of law.

32. Accordingly, the Appeals Chamber finds that the Trial Chamber erred insofar as it ordered that the recommended minimum term take as its starting point the final determination of any appeal.   […]

See also paras. 29–30.

21. […]  The jurisprudence of this Tribunal has consistently held that, while the law and practice of the former Yugoslavia shall be taken unto account by the Trial Chambers for the purpose of sentencing, the wording of the Sub-rule 101(A) of the Rules, which grants the power to imprison for the remainder of a convicted person’s life, itself shows that a Trial Chamber’s discretion in imposing sentence is not bound by any maximum term of imprisonment applied in a national system. […]  

See paragraph 72 of the decision.

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See paragraphs 42, 60 of the decision.

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See paragraphs 46-47, 53-54, 61-63 of the decision.

See also paragraphs 48-51, 55-57, 64, 67 of the decision.

[RULE 40 bis OF THE ICTR STATUTE WAS AMENDED ON 26 JUNE 2000 AND 30 MAY 2001]

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