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Decision on Prosecution Appeal of Decision on Challenges to Jurisdiction - 28.06.2019 TURINABO, Maximilien
(MICT-18-116-PT)

9. […] [N]either Article 1(4) of the Statute nor Rule 90 of the Rules incorporates the modes of liability that apply to the core crimes that are encompassed in the jurisdiction of the Mechanism pursuant to Article 1(1) of its Statute.[1] Specifically, Article 1(4) of the Statute provides for the Mechanism’s power to prosecute any person who knowingly and wilfully interferes or has interfered with the administration of justice by the Mechanism or the ad hoc Tribunals and to hold such person in contempt. Rule 90 of the Rules provides that the Mechanism may hold in contempt those who knowingly and wilfully interfere with the administration of justice and enumerates what conduct can amount to such interference.

10. The Appeals Chamber understands the Prosecution’s submission to be that the Single Judge should have interpreted the phrase “interferes with the administration of justice” to include interference committed through a joint criminal enterprise. The Appeals Chamber does not find this interpretation to be persuasive.

[…] [W]hile the doctrine of joint criminal enterprise is not referred to in the Statute or the Rules of the Mechanism and the ad hoc Tribunals, it has been specifically applied to the core crimes of genocide, crimes against humanity, and war crimes as a form of commission under Article 6(1) of the ICTR Statute and Article 7(1) of the ICTY Statute after a detailed review of customary international law. […] In addition […] jurisdiction over joint criminal enterprise liability was limited to the core crimes as, inter alia: (i) Articles 6(1) and 7(1) of the ICTR and the ICTY Statutes, respectively, only apply to the core crimes by their plain language; and (ii) Article 1(4) of the Statute, Rule 90 of the Rules, or Rule 77 of the ICTR and the ICTY Rules of Procedure and Evidence do not cross reference Articles 6(1) and 7(1), respectively, of the ICTR and the ICTY Statutes.[3]

11. […] [R]eferences to “attempt” and “incitement” in the language of Rule 90(B) of the Rules indicate that these specific offences expressly fall within the Mechanism’s jurisdiction and they cannot be construed as incorporating other offences or modes of liability in the scope of this provision.

12. […] [T]he terms “interferes” or “has interfered with the administration of justice” […] […] does not limit the jurisdiction of the Mechanism to actual commission of contempt, but instead includes “all conduct” that interferes with the Mechanism’s administration of justice. […] [T]he Mechanism’s subject matter jurisdiction encompassed incitement to commit contempt as this offence was specifically recognised in the Rules of Procedure and Evidence of both ad hoc Tribunals and Article 1(4)(a) of the Statute codifies jurisdiction over offences that interfere with the administration of justice.[6]

[…]

15. [T]he Single Judge rightly concluded that “the doctrine of joint criminal enterprise has never been applied in any contempt case before the Tribunals.”[7] In addition […] [t]he context in which liability under the doctrine of joint criminal enterprise was applied by the ad hoc Tribunals […] was specifically done in relation to the core crimes of genocide, crimes against humanity, and war crimes.

 

[1] Impugned Decision [Prosecutor v. Maximilien Turinabo et al., Case No. MICT-18-116-PT, Decision on Challenges to Jurisdiction, 12 March 2019 (confidential; public redacted version filed on the same day)], para. 27.

[2] Impugned Decision, para. 28.

[3] Impugned Decision, para. 29.

[4] [Footnotes omitted].

[5] Impugned Decision, para. 9.

[6] Impugned Decision, para. 9.

[7] Impugned Decision, para. 30.

[8] Impugned Decision, paras. 28, 29.

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IRMCT Statute Article 1(4) IRMCT Rule Rule 90; Rule 90(B)
Notion(s) Filing Case
Decision on Prosecution Appeal of Decision on Challenges to Jurisdiction - 28.06.2019 TURINABO, Maximilien
(MICT-18-116-PT)

18. […] While the public interest of protecting the integrity of proceedings through the effective prosecution of offences against the administration of justice cannot be underestimated, it cannot be allowed to undermine the Accused’s rights guaranteed by the principle of legality, which requires sufficient precision and clarity in prescribing modes of criminal liability.[1]

[…]

21. […] [I]n the absence of clear evidence that the doctrine of joint criminal enterprise applies to contempt in customary international law or as a general principle of international law, [the Single Judge] was not satisfied that the Mechanism has jurisdiction over this form of liability for crimes committed in violation of Rule 90 of the Rules.[2] […] [T]he Prosecution’s submissions […] fail to demonstrate the existence of a general principle of law common to all major legal systems or otherwise show error in the Single Judge’s finding.[3]

[1] Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003, para. 55; Prosecutor v. Milan Milutinović et al., Case No. IT-99-37AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003, paras. 37, 38; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgement on Appeal by Anton Nobilo Against Finding of Contempt, 30 May 2001, para. 38.

[2] Impugned Decision [Prosecutor v. Maximilien Turinabo et al., Case No. MICT-18-116-PT, Decision on Challenges to Jurisdiction, 12 March 2019 (confidential; public redacted version filed on the same day)], para. 31.

[3] See Tadić Appeal Judgement, para. 225 (where the ICTY Appeals Chamber held that to rely upon domestic legislation and case law as a source of an international principle or rule under the doctrine of the general principles of law recognized by the nations of the world “it would be necessary to show that, in any case, the major legal systems of the world take the same approach to [a] notion”).

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IRMCT Statute Article 1(4) IRMCT Rule Rule 90; Rule 90(B)
Notion(s) Filing Case
Decision on Prosecution Appeal of Decision on Challenges to Jurisdiction - 28.06.2019 TURINABO, Maximilien
(MICT-18-116-PT)

15. The Appeals Chamber reiterates that the Mechanism is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ad hoc Tribunals[.][1]

[1] Karadžić Appeal Judgement, para. 12 and references therein.

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Notion(s) Filing Case
Decision on Prosecution Appeal of Decision on Challenges to Jurisdiction - 28.06.2019 TURINABO, Maximilien
(MICT-18-116-PT)

Footnote 53 See Tadić Appeal Judgement, para. 225 (where the ICTY Appeals Chamber held that to rely upon domestic legislation and case law as a source of an international principle or rule under the doctrine of the general principles of law recognized by the nations of the world “it would be necessary to show that, in any case, the major legal systems of the world take the same approach to [a] notion”).

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Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

25. The Appeals Chamber notes that Karadžić did not raise his arguments about the alleged breach of his right to represent himself during trial or seek reconsideration or certification to appeal the impugned decision.[1] In this respect it recalls that, if a party raises no objection to a particular issue before a trial chamber when it could have reasonably done so, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to raise the issue on appeal.[2] However, in view of the fundamental importance of the right to self-representation, the Appeals Chamber holds that it would not be appropriate to apply the waiver doctrine to Karadžić’s allegation of error and will consider the matter.[3]

See also para. 298.

[1] Karadžić suggests that he linked his right to testify in narrative form with his right to self-representation when litigating the issue before the Trial Chamber. See T. 24 April 2018 p. 241, referring to Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Defence Submission of Order of Witnesses for February and March 2014, 18 December 2013, para. 3, n. 2; T. 20 February 2014 p. 4753[6]. However, the submissions he highlights fail to reflect that Karadžić objected to the manner in which the Trial Chamber decided his testimony would be presented on the basis that it violated his right to self-representation. Indeed, Karadžić did not respond to the Prosecution’s motion that Karadžić not be allowed to testify in narrative form and subsequent submissions were presented on his behalf reflecting acquiescence to the Trial Chamber’s decision on this issue. See T. 27 January 2014 p. 45934; T. 20 February 2014 pp. 47535-47537. When Karadžić indicated that he would not testify, he provided no indication that it was because the Trial Chamber’s decision infringed upon his right to represent himself. See T. 20 February 2014 p. 47541.

[2] See, e.g., Prlić et al. Appeal Judgement, para. 165; Nyiramasuhuko et al. Appeal Judgement, paras. 63, 1060, n. 157; Popović et al. Appeal Judgement, para. 176; Bagosora and Nsengiyumva Appeal Judgement, para. 31. See also Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016 (“Orić Decision of 17 February 2016”), para. 14.

[3] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, 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 (“Nahimana et al. Decision of 5 March 2007”), para. 15, n. 47.

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Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

26. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in relation to the management of the proceedings before them, including as to the modalities of the presentation of evidence.[1] This discretion, however, must be exercised in accordance with Article 20(1) of the ICTY Statute, which requires trial chambers to ensure that trials are fair and conducted with full respect for the rights of the accused.[2] Where a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the violation caused prejudice that amounts to an error of law invalidating the judgement.[3]

See also para. 72.

27. The right of an accused to represent himself, which is guaranteed by the ICTY Statute and has been held to be an “indispensable cornerstone of justice”, is nonetheless not absolute and may be subject to certain limitations.[4] In this respect, any limitation must be guided by the proportionality principle, that is, it must serve a sufficiently important aim that is compatible with the ICTY Statute and not impair the right more than necessary to accomplish such aim.[5]

[…]

29. The Appeals Chamber considers that Karadžić has failed to demonstrate that the Trial Chamber’s decision that his testimonial evidence be led by his legal advisor rather than be presented in narrative form interfered with his right to represent himself.[6] While Karadžić points to submissions made by his legal advisor that the decision essentially imposed his legal advisor as his “counsel” for the purpose of Karadžić’s examination,[7] this does not demonstrate that the decision curtailed his right to represent himself. Specifically, Karadžić does not show, for example, that the decision impacted his ability as a self-represented defendant to control the preparation and execution of his examination-in-chief, including the organization and substance of the questions to be asked by his legal advisor and the evidence elicited. The Appeals Chamber considers that the Trial Chamber’s decision respected Karadžić’s right to self-representation and the right to testify and finds no merit in his argument that he was forced to choose between the two.

[1] Ndahimana Appeal Judgement, para. 14 and references cited therein.

[2] See, e.g., 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 (“Mladić Decision of 22 October 2013”), para. 12; Ndahimana Appeal Judgement, para. 14; Galić Appeal Judgement, para. 18. See also Article 21 of the ICTY Statute.

[3] Prlić et al. Appeal Judgement, para. 26; Nyiramasuhuko et al. Appeal Judgement, para. 346; Ndindiliyimana et al. Appeal Judgement, para. 29; Šainović et al. Appeal Judgement, para. 29 and references cited therein.

[4] Article 21(4)(d) of the ICTY Statute; Šešelj Appeal Judgement, para. 7; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.6, Decision on Radovan Karadžić’s Appeal from Decision on Motion to Vacate Appointment of Richard Harvey, 12 February 2010, para. 27; 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 (“Milošević Decision of 1 November 2004”), paras. 11-13.

[5] 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 (“Karemera et al. Decision of 5 October 2007”), para. 11, referring to Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision of 30 October 2006”), para. 14. See also Prosecutor v. Vojislav Šešelj, Case No. MICT-16-99-A, Decision on Assignment of Standby Counsel for the Appeal Hearing, 11 October 2017, p. 2; Milošević Decision of 1 November 2004, paras. 17, 18. Cf. Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65, Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003 (“Limaj et al. Decision of 31 October 2003”), para. 13.

[6] The Appeals Chamber considers that Karadžić’s submissions based on non-binding authorities, namely domestic jurisprudence and a dissenting opinion in an ICTY appeal judgement, do not demonstrate error by the Trial Chamber. See Rule 89(A) of the ICTY Rules; Stanišić and Župljanin Appeal Judgement, paras. 598, 974.

[7] See Karadžić Appeal Brief, para. 4; Karadžić Reply Brief, para. 9.

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ICTY Statute Article 20(1)
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

35. The Appeals Chamber recalls that Article 21(4)(d) of the ICTY Statute guarantees the fundamental right of an accused to be tried in his presence. This right is not absolute, however, and may be subject to limitations.[1] As with other qualified statutory rights of an accused, including the right to be self-represented, any limitation on the right of the accused to be tried in his presence must serve a sufficiently important aim that is compatible with the ICTY Statute and must not impair the right more than necessary to accomplish such aim.[2]

[…] 

37. […] In view of the above, the Appeals Chamber finds no error in the Trial Chamber’s consideration that conducting the site visits in Sarajevo and Srebrenica in the presence of Karadžić would inevitably pose a considerable security risk for Karadžić as well as the other participants in the site visit delegations.[3] The Appeals Chamber therefore finds that the Trial Chamber’s decision to conduct the site visits without Karadžić being present served the sufficiently important aim of ensuring its ability to perform its functions in the given circumstances and did not impair his right more than necessary to accomplish it.[4]

[…]

39. The Appeals Chamber finds that the minutes of the site visits therefore reveal the exchange of submissions between the parties and the Trial Chamber’s interactions with various persons at some of the sites. The minutes also confirm that, although the impugned decisions indicated that the purpose of the site visits was not to gather evidence or hear submissions but to enable the Trial Chamber to familiarize itself with the locations referred to in the Indictment, the conduct during the visits did not comply with the limitations imposed by the Trial Chamber. Consequently, the Appeals Chamber finds that the two site visits formed part of the trial proceedings,[5] and that, in light of the conduct during them, the site visits violated Karadžić’s right to be tried in his presence. The Appeals Chamber will proceed to examine whether Karadžić suffered prejudice as a result of this violation.

40.  […] Although Karadžić submits that “[t]he observations made during the site visit undoubtedly affected the Trial Chamber’s overall assessment of the events, and its findings in the judgement”,[6] he does not point to any concrete disadvantage or prejudice suffered as a result of the site visits having been conducted in his absence.[7]

41. The Appeals Chamber reiterates that any violation of the right to a fair trial of an accused requires a remedy.[8] The nature and form of the effective remedy should be proportional to the gravity of the harm suffered.[9] The Appeals Chamber also recalls that, in situations where a violation of the accused’s fair trial rights has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[10] For the reasons set out above, the Appeals Chamber considers that its recognition of the violation of Karadžić’s right to be present during the site visits constitutes an effective remedy.

[1] [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 (“Karemera et al. Decision of 5 October 2007”)], para. 11; [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 (“Milošević Decision of 1 November 2004”)], paras. 12, 13.

[2] Karemera et al. Decision of 5 October 2007, para. 11, referring to [Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-AR73, Decision on Interlocutory Appeal, 30 October 2006], para. 14. See also Milošević Decision of 1 November 2004, paras. 17, 18. Cf. [Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65, Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003], para. 13.

[3] Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Decision on Prosecution’s Motion for the Trial Chamber to Travel to Sarajevo, 4 February 2003 (“Galić Decision of 4 February 2003”), paras. 12, 13.

[4] The Appeals Chamber notes that Karadžić submitted to the Trial Chamber that he believed that “a site visit would be beneficial” and that the Trial Chamber, having considered the matter, decided that the site visit would assist its determination of the charges in the Indictment. See [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Order on Submissions for a Site Visit, 15 November 2010], paras. 2, 5; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Site Visit, 28 January 2011], paras. 1, 2, 4, 5, 11; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Second Site Visit, 10 February 2012], para. 2.

[5] See also Galić Decision of 4 February 2003, para. 15.

[6] Karadžić Appeal Brief, para. 30.

[7] The Appeals Chamber also considers that Karadžić’s reliance on non-binding and distinguishable domestic authorities in support of his submissions does not demonstrate error by the Trial Chamber.

[8] Nyiramasuhuko et al. Appeal Judgement, para. 42; André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007 (“Rwamakuba Decision of 13 September 2007”), para. 24. See also Kajelijeli Appeal Judgement, para. 255.

[9] Nyiramasuhuko et al. Appeal Judgement, para. 42, n. 120 and reference cited therein.

[10] Nyiramasuhuko et al. Appeal Judgement, para. 42 and references cited therein.

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ICTY Statute Article 21(4)
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

56. The Appeals Chamber finds no error in the Trial Chamber’s determination that the Indictment sufficiently pleaded the crime of deportation and recalls that, in relation to the alleged forcible displacements of Bosnian Muslims and Bosnian Croats […] the Indictment stated that such displacements occurred “either across a de facto or de jure border or internally without the crossing of a de facto or de jure border”.[1] The Appeals Chamber further considers that the allegations were pleaded with sufficient specificity, particularly considering that the expulsions resulted from a number of attacks over a prolonged period of time and that Karadžić was not alleged to have directly participated in such expulsions.[2] The Appeals Chamber likewise considers, in view of the established practice allowing cumulative charging, that the Prosecution was not required to distinguish in the Indictment which events resulted in deportation as opposed to inhumane acts (forcible transfer).[3]

[1] See Indictment, paras. 48, 69, 71, 72.

[2] Cf. Naletilić and Martinović Appeal Judgement, para. 24 (“Whether particular facts are material depends on the nature of the Prosecution case. […] [L]ess detail may be acceptable if the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates for the commission of the crimes.”) (internal quotations and references omitted). See also Prlić et al. Appeal Judgement, para. 91 (“A decisive factor in determining the degree of specificity with which the Prosecution is required to particularise the facts of its case in the indictment is the nature of the alleged criminal conduct of the accused.”).

[3] See Simba Appeal Judgement, para. 276; Naletilić and Martinović Appeal Judgement, para. 103.

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Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

62. […] [T]he Appeals Chamber emphasizes that the Prosecution is obligated “to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven”.[1] […]

[1] Prlić et al. Appeal Judgement, para. 27; Niyitegeka Appeal Judgement, para. 193; Kupreškić et al. Appeal Judgement, para. 88.

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Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

70. The Appeals Chamber observes that Rule 50(A)(i)(c) of the ICTY Rules states that “the Prosecutor may amend an indictment after the assignment of the case to a Trial Chamber, with the leave of that Trial Chamber or a Judge of that Chamber, after having heard the parties”. According to the plain language of this provision, once a case is assigned to a trial chamber, the indictment may be amended at the Prosecution’s request with the leave of the trial chamber or a Judge of the chamber. While a trial chamber has ample discretion to grant or deny the Prosecution’s request, it may only exercise this discretion after the Prosecution first seeks an amendment to the indictment. As the Trial Chamber correctly held, it is the prerogative of the Prosecution to request amendments to an indictment and a trial chamber cannot modify an indictment sua sponte – let alone at the behest of the defence, as Karadžić sought to do in this case.

See also para. 71.

[1] [Footnote omitted].

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ICTY Rule Rule 50(A)(i)(c)
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

85. The Appeals Chamber recalls that decisions concerning disclosure pursuant to Rules 66 and 68 of the ICTY Rules as well as remedies for disclosure violations relate to the general conduct of trial proceedings and therefore fall within the discretion of the trial chamber.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2] The Appeals Chamber will only reverse a trial chamber’s discretionary decision where it is found to be based on an incorrect interpretation of the governing law, based on a patently incorrect conclusion of fact, or where it is so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.[3]

See also para. 230.

[…]

88. […] The Appeals Chamber recalls that, if the Defence satisfies the Chamber that the Prosecution failed to comply with its disclosure obligations under Rule 68 of the ICTY Rules,[4] the Chamber must examine whether the Defence was prejudiced by that failure before considering whether a remedy is appropriate.[5] The onus is on the Defence to substantiate its claim of alleged prejudice from the disclosure violation.[6] […]

[…]

91. […] The Appeals Chamber observes that disclosure under Rule 68 of the ICTY Rules is a continuous obligation that does not require disclosure prior to the commencement of trial but “as soon as practicable”.[7] Karadžić does not substantiate his general contentions that he was deprived of the ability to develop a coherent defence strategy before trial due to disclosure during the trial or show how disclosure in the midst of his proceedings prejudiced his ability to review exculpatory material as well as conduct other aspects of his defence. […]

92. Karadžić’s contentions also fail to account for the resources and legal assistance available to him during his pre-trial and trial proceedings in order to, inter alia, review and assimilate extensive Prosecution disclosures.[8] Likewise, Karadžić’s submissions fail to account for the suspensions of proceedings and delays in the presentation of Prosecution witnesses that the Trial Chamber ordered for the purpose of ensuring his right to a fair trial.[9]

[…]

 96. The Appeals Chamber recalls that, to establish that the Prosecution is in breach of its disclosure obligations, the applicant must: (i) identify specifically the material sought; (ii) present a prima facie showing of its probable exculpatory nature; and (iii) prove that the material requested is in the custody or under the control of the Prosecution.[10] The Prosecution received the statement in December 2012 and disclosed it to Karadžić more than three years later.[11] The Appeals Chamber considers that, in the absence of any explanation, the disclosure did not occur as soon as practicable.[12] Having considered the arguments presented at trial and on appeal,[13] the Appeals Chamber is satisfied that the statement contains potentially exculpatory material.[14] Consequently, Karadžić has established that the Prosecution violated its disclosure obligation under Rule 68 of the ICTY Rules in relation to this statement.[15]

[…]

103. The Appeals Chamber observes that excluding relevant parts of the Prosecution evidence may be an appropriate remedy for a disclosure violation and that, in this regard, the exclusion of evidence for disclosure violations is an extreme remedy that should not be imposed unless the defence has demonstrated sufficient prejudice to justify such a remedy.[16] In this case, the Trial Chamber expressly recognized that Karadžić was prejudiced and that the disclosure violation “deprived” him of an opportunity to challenge Witness Okun during his cross-examination by reference to the statement.[17] The Trial Chamber addressed this prejudice by not relying on parts of Witness Okun’s evidence, namely by excluding evidence pertaining to Karadžić’s command and control as well as other evidence that did not “strictly” relate to the period between February and May 1992 discussed in the statement.[18] […]

[1] See, e.g., Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.5, Decision on Vojislav Šešelj’s Interlocutory Appeal Against the Trial Chamber’s Decision on Form of Disclosure, 17 April 2007, para. 14; Ndindiliyimana et al. Appeal Judgement, para. 22.

[2] Stanišić and Župljanin Appeal Judgement, para. 470; Nyiramasuhuko et al. Appeal Judgement, paras. 68, 138, 185, 295, 431, 2467; Popović et al. Appeal Judgement, para. 131; Nizeyimana Appeal Judgement, para. 286.

[3] See, e.g., Prlić et al. Appeal Judgement, para. 26; Ndahimana Appeal Judgement, para. 14; 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 (“Mladić Decision of 12 November 2013”), para. 9; Lukić and Lukić Appeal Judgement, para. 17; Renzaho Appeal Judgement, para. 143.

[4] [Footnote omitted].

[5] See Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Augustin Ngirabatware’s Motion for Sanctions for the Prosecution and for an Order for Disclosure, 15 April 2014 (“Ngirabatware Decision of 15 April 2014”), para. 13. See also Mugenzi and Mugiraneza Appeal Judgement, para. 39; Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi and Mugiraneza Decision of 24 September 2012”), para. 8.

[6] See, e.g., Ngirabatware Decision of 15 April 2014, para. 23 (“As a result, the Appeals Chamber is not satisfied that Mr. Ngirabatware has substantiated his claim that the Prosecution’s failure to timely disclose this material resulted in ‘serious prejudice’ warranting sanctions.”) (internal citation omitted).

[7] See Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006, para. 29; Blaškić Appeal Judgement, paras. 263, 267.

[8] [Footnote omitted]. The resources available to Karadžić during the pre-trial and trial phases of his proceeding, which exceeded what is normally available in domestic or most international criminal trials, undermine Karadžić’s reliance on jurisprudence emanating from the domestic proceedings in support of the proposition that disclosure on the eve or after the start of trial is inherently prejudicial. Cf. Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 23 (recalling that “domestic judicial views or approaches should be handled with the greatest caution at the international level, lest one should fail to make due allowance for the unique characteristics of international criminal proceedings”).

[9] See [Karadžić Appeal Judgement] para. 77.

[10] Mugenzi and Mugiraneza Appeal Judgement, para. 39; Mugenzi and Mugiraneza Decision of 24 September 2012, para. 8; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-A, Decision on Milan Lukić's Motion for Remedies Arising Out of Disclosure Violations by the Prosecution, 12 May 2011, para. 15.

[11] [Footnote omitted].

[12] [Footnote omitted].

[13] [Footnote omitted].

[14] In particular, the Appeals Chamber notes that [REDACTED]’s statement does not make reference to Karadžić’s presence at the meeting in late May 1992 at which [REDACTED] or to any war crimes that had occurred in Sarajevo. The Appeals Chamber considers these omissions as potentially exculpatory.

[15] In view of this finding, the Appeals Chamber finds it unnecessary to determine whether the late disclosure of this statement was in violation of Rule 66(A)(ii) of the ICTY Rules.

[16] See Karemera and Ngirumpatse Appeal Judgement, para. 437; Bizimungu et al. Trial Judgement, para. 174.

[17] [Footnote omitted].

[18] [Footnote omitted].

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89. […] [T]he Appeals Chamber recalls that the right to be tried without undue delay is enshrined in Article 21(4)(c) of the ICTY Statute and protects an accused against undue delay, which is determined on a case-by-case basis.[1][DT1]  A number of factors are relevant to this assessment, including the length of the delay, the complexity of the proceedings, the conduct of the parties, the conduct of the relevant authorities, and the prejudice to the accused, if any.[2]

90. Bearing this in mind, the Appeals Chamber is not persuaded that the suspensions ordered by the Trial Chamber unduly delayed the proceedings or resulted in per se prejudice to Karadžić. Suspensions due to extensive disclosure in the midst of proceedings are precisely the remedy that may be necessary to ensure an accused’s right to a fair trial.[3] In this case, the orders suspending the proceedings expressly sought to strike a balance between Karadžić’s right to a trial without undue delay and his right to have adequate time and facilities for the preparation of his defence.[4] The relevant decisions provided Karadžić the time to review and incorporate newly disclosed material into his trial preparations and instructed the Prosecution to devote its resources to reviewing information in its possession to ensure that all necessary disclosure was complete.[5] Finally, Karadžić has not shown that the individual or cumulative duration of any suspensions ordered unduly delayed the proceedings.

[1] Šešelj Appeal Judgement, para. 41. Cf. Nyiramasuhuko et al. Appeal Judgement, para. 346 and references cited therein (referring to Article 20(4)(c) of the ICTR Statute).

[2] Šešelj Appeal Judgement, para. 41. Nyiramasuhuko et al. Appeal Judgement, para. 346 and references cited therein.

[3] See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 7 (“If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves. The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case.”) (internal citations omitted).

[4] [Footnote omitted].

[5] [Footnote omitted].

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116. The Appeals Chamber recalls that decisions on taking judicial notice of adjudicated facts fall within the discretion of trial chambers.[1] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2]

117. Rule 94(B) of the ICTY Rules provides that, at the request of a party or proprio motu, a trial chamber, after hearing the parties, may take judicial notice of adjudicated facts or documentary evidence from other proceedings of the ICTY relating to the matter at issue. Adjudicated facts are “facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding”.[3] Judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of an accused.[4]

118. It is not disputed that the practice of taking judicial notice of adjudicated facts is well-established in the jurisprudence of the ICTY and the ICTR,[5] and it is accepted as a method of achieving judicial economy while ensuring the right of an accused to a fair and expeditious trial.[6] In this respect, a number of procedural safeguards are set out in the jurisprudence,[7] which are intended to ensure that trial chambers exercise their discretion cautiously and in accordance with the rights of the accused, including the right to be presumed innocent until proven guilty pursuant to Article 21(3) of the ICTY Statute.[8]

119. […] Karadžić challenges the “constitutionality” of the practice of taking judicial notice of adjudicated facts, notwithstanding the express provision for it in the ICTY Rules.[9] The Appeals Chamber recalls that, where the respective Rules or Statute of the ICTY are at issue, it is bound to consider the relevant precedent when interpreting them.[10] This Appeals Chamber is presently being called upon to assess the propriety of decisions taken by an ICTY trial chamber, that was bound by the ICTY Rules and the ICTY Statute as well as by decisions of the ICTY Appeals Chamber.[11] Bearing this context in mind, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTY and the ICTR Appeals Chambers and depart from them only where cogent reasons in the interests of justice exist, that is, where a previous decision has been decided on the basis of a wrong legal principle or has been “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[12] Therefore, in order to succeed on appeal, Karadžić must demonstrate that there are cogent reasons in the interests of justice that justify departure from jurisprudence on judicial notice of adjudicated facts.

120. The Appeals Chambers of the ICTY and the ICTR have consistently held that judicial notice of adjudicated facts is merely a presumption that may be rebutted by defence evidence at trial.[13] Judicial notice of adjudicated facts “does not shift the ultimate burden of persuasion, which remains with the Prosecution” but only relieves the Prosecution of the initial burden to produce evidence on the given point.[14]

121. The Appeals Chamber notes that the concern that accused in other cases may have focused their defence on arguing that they were not responsible for the perpetrators of crimes rather than on contesting the existence of crimes is one of the reasons why judicial notice may not be taken of adjudicated facts from other cases relating to the acts, conduct, and mental state of the accused.[15] It is, nevertheless, permissible to take judicial notice of adjudicated facts relating directly or indirectly to an accused’s guilt,[16] for example, of facts relating to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible.[17] This is as long as the burden remains on the Prosecution to establish the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question by evidence other than judicial notice.[18] In addition, the discretion to accept adjudicated facts is limited by the need to ensure the accused’s right to a fair and expeditious trial.[19] Apart from disagreeing with the case law, Karadžić fails to demonstrate that there are cogent reasons in the interests of justice to depart from consistent jurisprudence of the ICTR and the ICTY on this matter.

122. The Appeals Chamber does not consider that by taking judicial notice of the existence of a crime committed by Karadžić’s alleged subordinates,[20] for example, the Trial Chamber relieved the Prosecution from proving the actus reus of the crimes charged in the Indictment. The Appeals Chamber recalls that there is a distinction between facts related to the conduct of physical perpetrators of a crime for which an accused is being alleged criminally responsible through another mode of liability and those related to the acts and conduct of the accused himself.[21] The burden remained on the Prosecution to establish by evidence other than judicial notice that Karadžić possessed the relevant mens rea and engaged in the required actus reus to be held responsible for the crimes established by way of judicial notice of adjudicated facts.  

123. Finally, the Appeals Chamber finds without merit Karadžić’s submission that judicial notice of adjudicated facts deprives an accused of the possibility that a trial chamber would reach a different conclusion had it heard the evidence itself. The Appeals Chamber recalls that adjudicated facts are not accepted as conclusive in proceedings involving parties who did not have the chance to contest them,[22] and, as noted above, are merely presumptions that may be rebutted with evidence at trial.[23]

[…]

219. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the ICTY Rules is a method of achieving judicial economy while ensuring the right of the accused to a fair, public, and expeditious trial.[24] Rule 94(B) of the ICTY Rules requires a trial chamber to hear the parties before deciding to take judicial notice.[25] Moreover, facts admitted under Rule 94(B) of the ICTY Rules are merely presumptions that may be rebutted by the defence with evidence at trial.[26] Consequently, judicial notice of adjudicated facts does not shift the ultimate burden of proof or persuasion, which remains squarely on the Prosecution.[27]

220. […] The fact that the Trial Chamber took judicial notice of considerably more adjudicated facts than in other cases does not, in itself, render the trial unfair as long as the Trial Chamber followed the procedure provided for in the ICTY Rules. In this respect, Karadžić’s comparison of the number of judicially noticed adjudicated facts in his case with other cases fails to account for factors such as the unprecedented scope and size of his own trial in relation to others.

See also paras. 221, 222.

[1] [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 (“Mladić Decision of 12 November 2013”)], para. 9; Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-AR73.1, Decision on Interlocutory Appeals Against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catalogue of Agreed Facts, 26 June 2007 (“Dragomir Milošević Decision of 26 June 2007”), para. 5.

[2] Stanišić and Župljanin Appeal Judgement, para. 470; Nyiramasuhuko et al. Appeal Judgement, paras. 68, 138, 185, 295, 431, 2467; Popović et al. Appeal Judgement, para. 131; Nizeyimana Appeal Judgement, para. 286.

[3] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, 29 October 2010 (“Bagosora et al. Decision of 29 October 2010”), para. 7; 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”), para. 40.

[4] Mladić Decision of 12 November 2013, para. 25; Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 50.

[5] See generally Bagosora et al. Decision of 29 October 2010; Dragomir Milošević Decision of 26 June 2007; Karemera et al. Decision of 16 June 2006. See also, e.g., Tolimir Appeal Judgement, paras. 23-26, 30-36; Popović et al. Appeal Judgement, paras. 622, 623.

[6] Tolimir Appeal Judgement, para. 23; Mladić Decision of 12 November 2013, para. 24; Karemera et al. Decision of 16 June 2006, para. 39.

[7] Mladić Decision of 12 November 2013, para. 25 (“[a] trial chamber must first determine whether a proposed adjudicated fact meets the admissibility criteria for judicial notice, and then consider whether, even if all admissibility criteria are met, it should nonetheless decline to take judicial notice on the ground that doing so would not serve the interests of justice […]. To be admissible, proposed adjudicated facts must [inter alia] not differ in any substantial way from the formulation of the original judgement; […] not be unclear or misleading in the context in which they are placed in the moving party’s motion; […] not contain characterisations of an essentially legal nature; […] not be based on an agreement between the parties to the original proceedings; […] not relate to the acts, conduct, or mental state of the accused; and […] not be subject to pending appeal or review.”); Bagosora et al. Decision of 29 October 2010, paras. 10 (“[…] facts shall not be deemed ‘adjudicated’ if they are based on guilty pleas or admissions voluntarily made by an accused during the proceedings”), 11, 12 (“[j]udicial notice pursuant to Rule 94(B) is not designed for the importing of legal conclusions from past proceedings”).

[8] Mladić Decision of 12 November 2013, para. 24; Karemera et al. Decision of 16 June 2006, paras. 47, 52.

[9] Karadžić Appeal Brief, paras. 116, 134; T. 23 April 2018 p. 108.

[10] See [Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 (“Munyarugarama Decision of 5 October 2012”)], para. 6.

[11] See Aleksovski Appeal Judgement, paras. 112, 113.

[12] Šešelj Appeal Judgement, para. 11; Stanišić and Župljanin Appeal Judgement, para. 968; Bizimungu Appeal Judgement, para. 370; Đorđević Appeal Judgement, para. 23; Galić Appeal Judgement, para. 117; Rutaganda Appeal Judgement, para. 26; Aleksovski Appeal Judgement, para. 107. Cf. Munyarugarama Decision of 5 October 2012, para. 5 (noting the “normative continuity” between the Mechanism’s Rules and Statute and the ICTY Rules and the ICTY Statute and that the “parallels are not simply a matter of convenience or efficiency but serve to uphold principles of due process and fundamental fairness, which are the cornerstones of international justice”).

[13] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[14] Tolimir Appeal Judgement, para. 24; Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[15] Mladić Decision of 12 November 2013, para. 80, referring to Karemera et al. Decision of 16 June 2006, para. 51.

[16] Mladić Decision of 12 November 2013, para. 81; Karemera et al. Decision of 16 June 2006, paras. 48, 53.

[17] Mladić Decision of 12 November 2013, para. 81; Karemera et al. Decision of 16 June 2006, paras. 52, 53.

[18] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, paras. 49, 52. See also Mladić Decision of 12 November 2013, para. 81.

[19] Karemera et al. Decision of 16 June 2006, paras. 41, 51, 52.

[20] See Karadžić Appeal Brief, para. 128.

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

[22] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, paras. 40, 42.

[23] Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[24] Mladić Decision of 12 November 2013, para. 24. See also Setako Appeal Judgement, para. 200; Karemera et al. Decision of 16 June 2006, para. 39.

[25] Setako Appeal Judgement, para. 200.

[26] See Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

[27] See Dragomir Milošević Decision of 26 June 2007, para. 16; Karemera et al. Decision of 16 June 2006, para. 42.

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ICTY Statute Article 21(3) ICTY Rule Rule 94(B)
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128. […] [F]acts judicially noticed pursuant to Rule 94(B) of the ICTY Rules are presumptions that may be rebutted with evidence at trial.[1] The Appeals Chamber recalls that an accused may rebut the presumption by introducing “reliable and credible” evidence to the contrary.[2] The requirement that the evidence be “reliable and credible” must be understood in the proper context of the general standard for admission of evidence at trial set out in Rule 89(C) of the ICTY Rules: “[a] Chamber may admit any relevant evidence which it deems to have probative value”.[3] Only evidence that is reliable and credible may be considered to have probative value.[4] It follows that what is required is the showing of prima facie reliability and credibility on the basis of sufficient indicia.[5] The final evaluation of the reliability and credibility, and hence the probative value of the evidence, will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it.[6] In this context, the same piece of evidence can be assessed differently in different cases because of the availability of other evidence on the record.[7] A trial chamber has the obligation to assess the evidence and reach its own conclusion.[8]

[…]

131. The Appeals Chamber […] finds that Karadžić’s contention, that even where he introduced evidence to rebut an adjudicated fact, the Trial Chamber preferred the adjudicated fact and found his evidence not credible, fails to demonstrate error. The mere presentation of evidence seeking to rebut an adjudicated fact does not deprive a trial chamber of its discretion to assess the credibility or probative value of such evidence or prevent it from drawing conclusions from the relevant adjudicated fact. […]

[1] [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-AR73.1, Decision on Interlocutory Appeals Against Trial Chamber’s Decision on Prosecution’s Motion for Judicial Notice of Adjudicated Facts and Prosecution’s Catalogue of Agreed Facts, 26 June 2007 (“Dragomir Milošević Decision of 26 June 2007”)], para. 16. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.17, Decision on Joseph Nzirorera’s Appeal of Decision on Admission of Evidence Rebutting Adjudicated Facts, 29 May 2009 (“Karemera et al. Decision of 29 May 2009”), para. 13; [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”)], para. 42.

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

[3] Karemera et al. Decision of 29 May 2009, para. 14.

[4] Karemera et al. Decision of 29 May 2009, para. 14.

[5] Karemera et al. Decision of 29 May 2009, para. 15.

[6] Karemera et al. Decision of 29 May 2009, para. 15.

[7] Lukić and Lukić Appeal Judgement, para. 261; Karemera et al. Decision of 29 May 2009, para. 19.

[8] See Lukić and Lukić Appeal Judgement, para. 261; Karemera et al. Decision of 29 May 2009, para. 22.

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ICTY Rule Rule 89(C)

Rule 94(B)
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452. […] [A]djudicated facts, within the meaning of Rule 94(B) of the ICTY Rules, are presumptions and are not equivalent to untested evidence requiring sufficient corroboration to be relied upon in support of conviction.[1] Specifically, the Appeals Chamber recalls the jurisprudence of the ICTY Appeals Chamber that “by taking judicial notice of an adjudicated fact, a [trial] [c]hamber establishes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial, but which, subject to that presumption, may be challenged at that trial.”[2] Requiring corroboration of adjudicated facts after their admission would undermine the judicial economy function served by taking judicial notice of adjudicated facts,[3] as judicial notice under Rule 94(B) of the ICTY Rules relieves the Prosecution of the initial burden of producing evidence on such facts.[4] Moreover, adjudicated facts may relate to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and facts related to the conduct of physical perpetrators of crimes for which an accused is alleged to be responsible.[5] In this context, trial chambers, after having reviewed the record as a whole, may rely on adjudicated facts to establish the underlying crime base when making findings in support of convictions.[6]

[1] In this respect, Karadžić’s contentions that adjudicated facts can be equated to untested evidence, such as that admitted pursuant to Rule 92 bis of the ICTY Rules, on the basis that neither may go towards the acts, omissions, and mental state of the accused and that the means of challenging both is the same are not persuasive. 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. Compare, mutatis mutandis, [Théoneste Bagosora, Aloys Ntabakuze, and Anatole Nsengiyumva v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Anatole Nsengiyumva’s Motion for Judicial Notice, 29 October 2010 (“Bagosora et al. Decision of 29 October 2010”)], para. 11 with [The Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-AR73.2, Decision on Prosecutor’s Interlocutory Appeal of Decision not to Admit Marcel Gatsinzi’s Statement into Evidence Pursuant to Rule 92[ ]bis, 8 March 2011], para. 7.

[2] Momir Nikolić v. Prosecutor, Case No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005, para. 11, quoting Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5, Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003, p. 4. Cf. Bagosora et al., Decision of 29 October 2010, para. 7; [The Prosecutor v. Édouard Karemera, Matthieu Ngirumpatse, and Joseph Nzirorera, 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”)], para. 42. See also Lukić and Lukić Appeal Judgement, para. 261.

[3] See, mutatis mutandis, Karemera et al. Decision of 16 June 2006, para. 39 (“Taking judicial notice of adjudicated facts under Rule 94(B) [of the ICTR Rules] is a method of achieving judicial economy and harmonizing judgements of the Tribunal while ensuring the right of the Accused to a fair, public and expeditious trial.”). See also Setako Appeal Judgement, para. 200.

[4] See, mutatis mutandis, Karemera et al. Decision of 16 June 2006, para. 42.

[5] See [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], para. 85.

[6] In this regard, the Appeals Chamber observes that this is supported by the practice of trial chambers, which in a number of cases relied on adjudicated facts as the sole basis to establish findings concerning crime base incidents. See, e.g., Stanišić and Župljanin Trial Judgement, paras. 663, 664, 690; Krajišnik Trial Judgement, paras. 632-636; Perišić Trial Judgement, paras. 468-472.

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177.     […] The Appeals Chamber observes that Karadžić challenges a decision related to the admission of evidence […] are matters falling within a trial chamber’s discretion.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2]

See also paras. 190, 198, 208, 304.

[1] See, e.g., Prlić et al. Appeal Judgement, paras. 40, 143; Nyiramasuhuko et al. Appeal Judgement, para. 331; [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], para. 11; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18- AR73.8, Decision on Appeal from Order on the Trial Schedule, 19 July 2010 para. 5; Krajišnik Appeal Judgement, para. 81; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants Appeal Against “Décision portant attribution du temps à la défense pour la présentation des moyens à décharge”, 1 July 2008, para. 15.   

[2] Stanišić and Župljanin Appeal Judgement, para. 470; Nyiramasuhuko et al. Appeal Judgement, paras. 68, 138, 185, 295, 431, 2467; Popović et al. Appeal Judgement, para. 131; Nizeyimana Appeal Judgement, para. 286.

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143. The Appeals Chamber turns […] to Karadžić’s contentions concerning the decisions denying […] his request to subpoena the Eight Witnesses. These decisions relate to the general conduct of the trial, which are matters that fall within the discretion of the trial chamber.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed discernible error resulting in prejudice to that party.[2]

See also paras. 230, 276, 330.

[…]

148. […] [T]he Appeals Chamber observes that Rule 54 of the ICTY Rules provides, inter alia, that a trial chamber may issue subpoenas “as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial”. In interpreting this provision, the Appeals Chamber of the ICTY has stated:

The applicant seeking a subpoena must make a certain evidentiary showing of the need for the subpoena. In particular, he must demonstrate a reasonable basis for his belief that the prospective witness is likely to give information that will materially assist the applicant with respect to clearly identified issues in the forthcoming trial. To satisfy this requirement, the applicant may need to present information about such factors as the position held by the prospective witness in relation to the events in question, any relationship the witness may have had with the accused which is relevant to the charges, any opportunity the witness may have had to observe or to learn about those events, and any statements the witness made to the Prosecution or others in relation to them. The Trial Chamber is vested with discretion in determining whether the applicant succeeded in making the required showing, this discretion being necessary to ensure that the compulsive mechanism of the subpoena is not abused. As the Appeals Chamber [of the ICTY] has emphasized, “[s]ubpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.”

In deciding whether the applicant has met the evidentiary threshold, the Trial Chamber may properly consider both whether the information the applicant seeks to elicit through the use of subpoena is necessary for the preparation of his case and whether this information is obtainable through other means. The background principle informing both considerations is whether, as Rule 54 requires, the issuance of a subpoena is necessary “for the preparation or conduct of the trial.” The Trial Chamber’s considerations, then, must focus not only on the usefulness of the information to the applicant but on its overall necessity in ensuring that the trial is informed and fair.[3]

The Appeals Chamber adopts this interpretation.[4]

See also para. 277.

[1] See, e.g., Prlić et al. Appeal Judgement, para. 26; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.10, Decision on Appeal from Decision on Duration of Defence Case, 29 January 2013], para. 7; The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR73.7, Decision on Jérôme-Clément Bicamumpaka’s Interlocutory Appeal Concerning a Request for a Subpoena, 22 May 2008 (“Bizimungu et al. Decision of 22 May 2008”), para. 8; [Prosecutor v. Sefer Halilović, Case No. IT-01-48-AR73, Decision on the Issuance of Subpoenas, 21 June 2004], para. 6.   

[2] Stanišić and Župljanin Appeal Judgement, para. 470; Nyiramasuhuko et al. Appeal Judgement, paras. 68, 138, 185, 295, 431, 2467; Popović et al. Appeal Judgement, para. 131; Nizeyimana Appeal Judgement, para. 286.

[3] Halilović Decision of 21 June 2004, paras. 6, 7 (internal references omitted).

[4] See [Karadžić Appeal Judgement] Section II.

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ICTY Rule Rule 54
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162. The Appeals Chamber recalls that Article 21(4)(e) of the ICTY Statute guarantees the right of the accused to examine or have examined the witnesses against him. However, this right is not absolute and may be limited, for instance, in accordance with Rule 92 bis of the ICTY Rules.[1] In this respect, a decision to accept evidence without cross-examination is one which trial chambers should arrive at only after careful consideration of its impact on the rights of the accused.[2] As with any issue regarding the admission or presentation of evidence, trial chambers enjoy broad discretion in this respect.[3]

[…]

164. […] Rule 92 bis of the ICTY Rules does not prohibit the admission of written evidence in circumstances where it might be appropriate for the witness to be cross-examined but provides instead that such circumstances would weigh against admission. The Trial Chamber did not err in considering that there was no reason for requiring the witness’s attendance as the witness’s anticipated evidence, which concerned underlying crime base events, did not appear to have “any” bearing on Karadžić’s acts and conduct as charged and could not materially assist his case.[4] […]

[…]

177. Under Rule 92 bis of the ICTY Rules, a trial chamber may dispense with the attendance of a witness in person in certain circumstances and instead admit the witness’s evidence in the form of a written statement. […]

[1] See Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007 (“Prlić et al. Decision of 23 November 2007”), paras. 41, 43, 52; Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal Against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006 (“Martić Decision of 14 September 2006”), paras. 12, 13.

[2] Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis, 12 June 2003, para. 14. See also Prlić et al. Decision of 23 November 2007, para. 41.

[3] See, e.g., Prlić et al. Appeal Judgement, para. 143; Prlić et al. Decision of 23 November 2007, para. 8; Martić Decision of 14 September 2006, para. 6.

[4] [Footnote omitted].

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ICTY Statute Article 21(4)(e) ICTY Rule Rule 92bis
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Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

449. The Appeals Chamber recalls that under Article 21(4)(e) of the ICTY Statute an accused has the right to examine, or have examined, the witnesses against him. In relation to challenges to a trial chamber’s reliance on evidence admitted pursuant to Rule 92 bis of the ICTY Rules when the defendants did not have an opportunity to cross-examine the witness, the Appeals Chamber of the ICTY stated:

[A] conviction may not rest solely, or in a decisive manner, on the evidence of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial. This principle applies “to any fact which is indispensable for a conviction”, meaning “the findings that a trier of fact has to reach beyond reasonable doubt”. It is considered to “run counter to the principles of fairness […] to allow a conviction based on evidence of this kind without sufficient corroboration”.[1]

The Appeals Chamber adopts this statement of the law.

[…]

458. […] The Appeals Chamber recalls that the principle that no conviction can rest solely or decisively on untested evidence without sufficient corroboration stems from the fundamental right of the accused to examine, or have examined, the witnesses against him, which is enshrined in Article 21(4)(e) of the ICTY Statute.[2] As Karadžić alleges a violation of his fair trial rights, he must demonstrate that such a violation occurred and show that it caused prejudice amounting to an error of law invalidating the trial judgement.[3]

See also paras. 460 to 473.

474. […] [T]he Appeals Chamber finds, Judges Joensen and de Prada dissenting, that Karadžić has established that the Trial Chamber violated his fundamental right to examine, or have examined, the witnesses against him under Article 21(4)(e) of the ICTY Statute by convicting him after having impermissibly relied solely or decisively on untested evidence in reaching findings in relation to Scheduled Incidents C.27.5, B.20.4, and E.11.1 as well as Scheduled Incident B.13.1 with respect to the killing of one detainee in Kula prison and Scheduled Incident C.22.5 in relation to the mistreatment of two Muslim men at the Magarice military facility. The Appeals Chamber finds that such violations prevented Karadžić from testing evidence related to these specific events which the Trial Chamber relied upon in convicting him. This has resulted in material prejudice invalidating the judgement to the extent that his convictions are based upon these findings. The Appeals Chamber, Judges Joensen and de Prada dissenting, considers that the only appropriate remedy is to set aside, in part, Karadžić’s convictions to the extent they rely on these findings. The impact, if any, such errors may have had on Karadžić’s sentence will be evaluated below.

See also paras. 475, 776, 777.

[1] Popović et al. Appeal Judgement, para. 96 (internal references omitted). See also Prlić et al. Appeal Judgement, para. 137; Martić Appeal Judgement, para. 192, n. 486.

[2] See Đorđević Appeal Judgement, para. 807; [Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, and Berislav Pušić, Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 59.

[3] Šainović et al. Appeal Judgement, para. 29; Nyiramasuhuko et al. Appeal Judgement, para. 346.

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ICTY Statute Article 21(4)(e) ICTY Rule Rule 92bis
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

184. […] Although trial chambers are obliged to provide every practicable facility to assist parties in presenting their case, this obligation does not extend to allowing out-of-time motions in the absence of good cause or admitting evidence that does not meet the formal requirements for admission.

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