544. […] [T]he Appeals Chamber recalls that when all the elements of joint criminal enterprise liability are met, each member is “appropriately held liable also for those actions of other [joint criminal enterprise] members, or individuals used by them, that further the common criminal purpose”.[1] However, an individual cannot be held responsible for the crimes of the joint criminal enterprise committed during a time when he or she was not a member of it.[2] […]

545. The Appeals Chamber further recalls that, to hold a member of a joint criminal enterprise liable for crimes committed by principal perpetrators who are not members of the joint criminal 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.[3] Such a link is established by showing that the member of the joint criminal enterprise used the non-member to commit the actus reus of the crime forming part of the common criminal purpose.[4] The establishment of a link between the crime in question and a member of the joint criminal enterprise is a matter to be assessed on a case-by-case basis.[5] Factors indicative of such a link include evidence that the member of the joint criminal enterprise explicitly or implicitly requested the non-member to commit such a crime or instigated, ordered, encouraged, or otherwise availed himself of the non-member to commit the crime.[6] As a matter of law, there is no requirement that a chamber establish how each physical perpetrator was used to commit the crimes, provided that the chamber identifies that one or more members of the joint criminal enterprise used the forces to which these physical perpetrators belonged in furtherance of the common plan.[7]

583. […] [N]either the Statute nor the Rules address the scope of evidence to be adduced in a retrial. In any retrial, the new trial chamber is vested with the discretion to determine the scope of the evidence to be admitted, subject to the Rules and jurisprudence concerning the admission of evidence, as well as any additional restrictions imposed by the Appeals Chamber.[1] While the case law reflects that the Prosecution may adduce evidence in a retrial that was not adduced in the original trial,[2] the Appeals Chamber observes that appellate jurisprudence, particularly in the context of a retrial following an acquittal: (i) emphasizes that any potential for undue prejudice to a defendant should be addressed through the Appeals Chamber’s careful delineation of a retrial’s parameters and by the trial chamber’s continuing duty to apply fair trial principles;[3] and (ii) directs the relevant trial chamber to be “particularly mindful of any potential prejudice that the admission of new evidence may cause to the fair trial rights of the Accused”.[4] 

586. […] it nevertheless must be recalled that the context of each retrial is “unique”.[5] […]

590. […] The Appeals Chamber recalls that Rule 105(C) of the Rules provides that a trial chamber may admit any relevant evidence which it deems to have probative value, while Rule 105(D) of the Rules provides that a trial chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. As is evident from a plain reading of these two rules, any determination that prospective evidence appears to be relevant does not require the trial chamber to admit it.

659. Pursuant to Article 22 of the Statute, the Appeals Chamber has taken into account the general sentencing practice of the former Yugoslavia, the gravity of the offence, and the individual circumstances of Stanišić and Simatović, including relevant health issues.[1] However, the gravity of the offence is the primary factor to be taken into account in imposing a sentence, and the inherent gravity of a crime must be determined by reference to the particular circumstances of the case and the form and degree of the accused’s participation in the crime.[2]

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NOTING that – given the urgency of the matter, the imminence of the judgement on the appeals, and in order to not prejudice Stanišić – the substance of the Prosecution response, filed on 30 May 2023, was not considered and the present decision is being issued without awaiting Stanišić’s reply;

15.       With respect to the Trial Chamber’s assessment of Stanišić’s mens rea for joint criminal enterprise liability, the Appeals Chamber notes that the Trial Chamber found that it was not established that Stanišić shared the intent to further the common criminal purpose of the joint criminal enterprise.[1] The proposed additional evidence is, in material respects, cumulative of evidence the Trial Chamber considered in assessing Stanišić’s mens rea as it pertained to the joint criminal enterprise.[2] […] Stanišić does not demonstrate that the Book Excerpts would have compelled a different finding, and he has not demonstrated that, in view of the Prosecution’s appeal seeking to establish his mens rea for joint criminal enterprise liability, the exclusion of the proposed additional evidence would result in a miscarriage of justice in view of the evidence already on the record.[3]

11. […] The Appeals Chamber further recalls that the applicable standard for determining whether an accused is fit to stand trial is that of “meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings”.It is the accused, claiming to be unfit to stand trial, who bears the burden of so proving by a preponderance of the evidence.

12. The non-exhaustive list of capacities to be evaluated when assessing an accused’s fitness to stand trial include the ability to: (i) plead; (ii) understand the nature of the charges; (iii) understand the course of the proceedings; (iv) understand the details of the evidence; (v) instruct counsel; (vi) understand the consequences of the proceedings; and (vii) testify. What is required for an accused to be deemed fit to stand trial is an overall capacity allowing for a meaningful participation in the trial, provided that he is duly represented by counsel.

[…]

20. […] [M]edical diagnoses alone, no matter how numerous, do not suffice to assess an accused’s competency to stand trial.

27. The Appeals Chamber recalls that prior consistent statements cannot be used to bolster a witness’s credibility, except to rebut a charge of recent fabrication of testimony.[1]

65. […] [C]onsidering that “time served” is not among the penalties provided in the Statute and the Rules that may be imposed on a person found guilty of contempt, the Appeals Chamber finds that, by sentencing Fatuma to “time served”, the Single Judge did not impose a permissible sentence. It was incumbent on the Single Judge, when electing to impose a sentence of imprisonment, to first determine the term of imprisonment and then, in accordance with Rule 125(C) of the Rules, give credit for the time that Fatuma had spent in detention in the custody of the Mechanism pending trial. Accordingly, the Appeals Chamber finds, proprio motu, that by not determining a specific term of imprisonment, the Single Judge committed an error in failing to follow the applicable law. […]

84. The Appeals Chamber recalls that the mens rea for a violation under Rule 90(A)(ii) of the Rules is the knowledge that the disclosure in question is in violation of an order of a Chamber or a Single Judge.[1] No demonstration of a “specific intent to interfere with the administration of justice” is required in this respect.[2] The ICTY Appeals Chamber in the Hartmann case accepted the Trial Chamber’s interpretation that:

[I]t is sufficient to establish that the conduct which constituted the violation was deliberate and not accidental. This may be inferred from circumstantial evidence. Where it is established that an accused had knowledge of the existence of a Court order, a finding of intent to violate the order will almost necessarily follow. Wilful blindness to the existence of the order, or reckless indifference to the consequences of the act by which the order is violated may satisfy the mental element. Mere negligence in failing to ascertain whether an order had been made is insufficient.[3]