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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

303. At the outset, the Appeals Chamber recalls that hearsay evidence is in principle admissible,[1] although in assessing its probative value, the surrounding circumstances must be considered.[2] […]

387. […] The Appeals Chamber recalls that where the source of identification evidence is hearsay, a trial chamber must duly consider the relevant criteria in assessing the weight or the probative value to be accorded to this evidence.[3] The Trial Chamber erred in failing to do so.

577. […] The Appeals Chamber recalls that a Trial Chamber has “wide discretion as to the assessment of the weight and probative value of the hearsay evidence alongside with other factors relevant to the evaluation of the totality of the evidence.”[4] However, caution is warranted in the consideration of hearsay evidence, particularly where such evidence constitutes the primary basis for the identification of an accused. Relevant criteria in assessing the weight or the probative value to be accorded to hearsay evidence are the source of the information,[5] the precise character of the information,[6] and corroborative evidence.[7]

[1] Blaškić Appeal Judgement, para. 656, fn. 1374.

[2] See Haradinaj et al. Appeal Judgement, paras 85-86.

[3] Karera Appeal Judgement, para. 39 and references cited therein.

[4] Milošević Appeal Judgement, fn. 731. See also Nahimana et al. Appeal Judgement, para. 831; Karera Appeal Judgement, para. 39; Naletilić and Martinović Appeal Judgement, para. 217.

[5] Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 831; Ndindabahizi Appeal Judgement, para. 115; Semanza Appeal Judgement, para. 159; Rutaganda Appeal Judgement, paras 154, 156, 159.

[6] Karera Appeal Judgement, para. 39; Ndindabahizi Appeal Judgement, para. 115.

[7] Karera Appeal Judgement, para. 39; Nahimana et al. Appeal Judgement, para. 473; Gacumbitsi Appeal Judgement, para. 115.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

565. Rule 92 quater of the Rules allows for the admission of written evidence when the person giving the statement is objectively unable to attend a court hearing ‑ either because the person is deceased or because of a physical or mental impairment ‑ even if the evidence goes directly to the accused’s acts and conduct.[1] However, Rule 92 quater(B) of the Rules counsels cautious scrutiny on the part of the trial chamber with respect to evidence that goes to the acts and conduct of the accused as charged in the indictment, as this may be a factor against the admission of such evidence, or of part of it.[2]

565. Rule 92 quater(A)(ii) of the Rules further requires a trial chamber to be satisfied that there are sufficient indicia of reliability to justify the admission of the written evidence.[3] Moreover, the general requirements for admissibility of evidence as set out in Rule 89 of the Rules must be fulfilled, namely that the proffered evidence must be relevant and have probative value as provided in Rule 89(C) of the Rules. Finally, the probative value of the evidence must not be substantially outweighed by the need to ensure a fair trial under Rule 89(D) of the Rules and the evidence must therefore not be unduly prejudicial.[4]

570. The Appeals Chamber recalls that in order for evidence admitted pursuant to Rule 92 quater of the Rules to support a conviction, it must be corroborated.[5] […]

[1] 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. Appeal Decision on Admission of Transcript of 23 November 2007”), para. 48. See also Haradinaj et al. Appeal Judgement, fn. 252; Haraqija and Morina Appeal Judgement, para. 61; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.1, Decision on Appeals Against Decision Admitting Material Related to Borovčanin’s Questioning, 14 December 2007, para. 48; 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 Appeal Decision on Admission of Materials of 14 September 2006”), para. 22.

[2] See also Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quater, 21 April 2008 (“Popović et al. Decision on Admission of Evidence of 21 April 2008”), para. 32.

[3] Among the factors that chambers have considered as relevant in the assessment of the reliability of written evidence are: “(a) the circumstances in which the statement was made and recorded, in particular: (i) whether the statement was given under oath; or (ii) whether the statement was signed by the witness with an accompanying acknowledgement that the statement is true to the best of his or her recollection; and whether the statement was taken with the assistance of an interpreter duly qualified and approved by the Registry of the Tribunal; (b) whether the statement has been subject to cross-examination; (c) whether the statement, in particular an unsworn statement that has never been subject to cross-examination, relates to events about which there is other evidence; and (d) other additional factors, such as the absence of manifest or obvious inconsistencies in the statements” (see Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Motion for Admission of Evidence Pursuant to Rule 92 quater, 16 February 2007 (“Milutinović et al. Decision on Admission of Evidence of 16 February 2007”), para. 7; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on the Prosecution Motion for Admission of Evidence Pursuant to Rules 92 bis and quater of the Rules, 2 November 2006 (confidential), paras 10, 15; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 27).

[4] See e.g. Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Prosecution Motion for Admission of Testimony of Witness KDZ198 and Associated Exhibits Pursuant to Rule 92 quater, 20 August 2009, para. 6; Popović et al. Decision on Admission of Evidence of 21 April 2008, para. 30; Milutinović et al. Decision on Admission of Evidence of 16 February 2007, paras 4, 6.

[5] Haradinaj et al. Appeal Judgement, para. 101, fn. 252; Haraqija and Morina Appeal Judgement, paras 61-62; Prlić et al. Appeal Decision on Admission of Transcript of 23 November 2007, paras 53, 58-59; Martić Appeal Decision on Admission of Materials of 14 September 2006, para. 20.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

260. The Appeals Chamber recalls that decisions of trial chambers have no binding force on each other.[1] Rather, a trial chamber must make its own final assessment of the evidence on the basis of the totality of the evidence presented in the case before it.[2] Following an analysis of the documentary and witness evidence before it,[3] the Trial Chamber was entitled to reach a conclusion as to Vasiljević’s presence that differed from that of the Vasiljević trial chamber. The Appellants have not shown that the Trial Chamber erred in its application of this principle. The argument that the Trial Chamber committed an error of law in so doing is therefore dismissed.

[1] Aleksovski Appeal Judgement, para. 114.

[2] Stakić Appeal Judgement, para. 346.

[3] Trial Judgement, paras 572-577.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

396. The Appeals Chamber notes that the Vasiljević trial chamber reached a different conclusion in relation to the same evidence, concluding that Hasib Kurspahić’s failure to include Vasiljević as one of the perpetrators on Pionirska Street rendered Huso Kurspahić’s trial evidence as to his presence unreliable.[1] The Appeals Chamber recalls that two reasonable triers of facts may reach different but equally reasonable conclusions when assessing the reliability of a witness and determining the probative value of the evidence presented at trial.[2] An error cannot be established by simply demonstrating that other trial chambers have exercised their discretion in a different way.[3]

[1] Vasiljević Trial Judgement, para. 147. During the Interview, Hasib Kurspahić mentioned having met “Mitar, a waiter” in the course of the day, but he did not list him as one of the perpertrators of the Pionirska Street Incident (see Interview, p. 4).

[2] Krnojelac Appeal Judgement, paras 11-12.

[3] Cf. Krnojelac Appeal Judgement, para. 12. 

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

424. The Appeals Chamber has previously considered within the discussion of the actus reus of aiding and abetting the finding that an act or omission of an aider or abettor be “specifically directed” toward the furtherance of the crimes of the principal perpetrators.[1] The Appeals Chamber recalls, however, that “specific direction has not always been included as an element of the actus reus of aiding and abetting.”[2] It further recalls its conclusion that such a finding of specific direction “will often be implicit in the finding that the accused has provided practical assistance to the principal perpetrator which had a substantial effect on the commission of the crime”.[3] In Mrkšić and Šljivančanin, the Appeals Chamber has clarified “that ‘specific direction’ is not an essential ingredient of the actus reus of aiding and abetting”[4] and finds that there is no “cogent reason”[5] to depart from this jurisprudence.

[1] Blagojević and Jokić Appeal Judgement, para. 127; Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, paras 45-46; Vasiljević Appeal Judgement, para. 102; Tadić Appeal Judgement, para. 229. See also Rukundo Appeal Judgement, para. 210; Ntagerura et al. Appeal Judgement, para. 370; Muvunyi I Appeal Judgement, para. 79; Seromba Appeal Judgement, para. 139.

[2] Blagojević and Jokić Appeal Judgement, para. 189.

[3] Blagojević and Jokić Appeal Judgement, para. 189.

[4] Mrkšić and [ljivančanin Appeal Judgement, para. 159, confirming Blagojević and Jokić Appeal Judgement, para. 189.

[5] Aleksovski Appeal Judgement, para. 107. 

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

425. The Appeals Chamber notes that the physical presence of an aider and abettor at or near the scene of the crime may be a relevant factor in cases of aiding and abetting by tacit approval.[1] Further, the actus reus of aiding and abetting may be fulfilled remotely.[2] It is also well established that the actus reus of aiding and abetting may be fulfilled before, during, or after the principal crime has been perpetrated.[3] Thus, Sredoje Lukić’s submission that the Trial Chamber erroneously construed the actus reus of aiding and abetting is dismissed.

[1] Brđanin Appeal Judgement, paras 273, 277. See also Kayishema and Ruzindana Appeal Judgement, paras 201-202.

[2] Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, para. 48.

[3] Blagojević and Jokić Appeal Judgement, para. 132. See also Blaškić Appeal Judgement, para. 48; Simić Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 372.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

437. The Trial Chamber found that Sredoje Lukić, through his armed presence at and/or around the Memić House, provided practical assistance to the commission of the crimes committed at the Memić House and therefore found him guilty of aiding and abetting the crimes of cruel treatment as a violation of the laws or customs of war and other inhumane acts as a crime against humanity.[1] The Trial Chamber correctly observed that the practical assistance of an aider and abetter must have a “substantial effect” upon the commission of the crimes in order for the actus reus to be established.[2] However, in finding that the actus reus of aiding and abetting was established, the Trial Chamber did not explicitly find that Sredoje Lukić’s practical assistance had a “substantial effect” on the commission of the crimes of cruel treatment as a violation of the laws or customs of war and other inhumane acts as a crime against humanity.[3] The Appeals Chamber considers that an explicit finding of “substantial effect” should have been made and that the Trial Chamber’s failure to do so constitutes an error. Nonetheless, the Appeals Chamber is not convinced that this error invalidates the Trial Judgement.

438. […] the Appeals Chamber recalls that the question whether an act has a substantial effect on the commission of a crime necessitates a fact-based inquiry.[4] […]

[1] Trial Judgement, para. 986.

[2] Trial Judgement, para. 901.

[3] See Trial Judgement, para. 984.

[4] Blagojević and Jokić Appeal Judgement, para. 134.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

428. It is well established that the mens rea of aiding and abetting requires that an aider and abettor know that his acts would assist in the commission of the crime by the principal perpetrator and must be aware of the “essential elements” of the crime.[1] It does not require that he shares the intention of the principal perpetrator of such crime, as Sredoje Lukić submits. […]

440. The Appeals Chamber further recalls that an aider and abettor must know that his acts would assist the commission of the crime by the principal perpetrators and must be aware of the “essential elements” of the crime committed by the principal perpetrator.[2] […]

458. The Trial Chamber’s statement of the law with regard to the mens rea of aiding and abetting is correct.[3] The special intent crime of persecutions requires in addition that:

[the aider and abettor] be aware not only of the crime whose perpetration he is facilitating but also of the discriminatory intent of the perpetrators of that crime. He need not share the intent but he must be aware of the discriminatory context in which the crime is to be committed and know that his support or encouragement has a substantial effect on its perpetration.[4]

[1] Blagojević and Jokić Appeal Judgement, para. 221; Aleksovski Appeal Judgement, para. 162. See also Blaškić Appeal Judgement, para. 49; Vasiljević Appeal Judgement, para. 102; Rukundo Appeal Judgement, para. 53; Karera Appeal Judgement, para. 321.

[2] Aleksovski Appeal Judgement, para. 162; Blagojević and Jokić Appeal Judgement, para. 221.

[3] Trial Judgement, para. 902.

[4] Simić Appeal Judgement, para. 86, referring to Krnojelac Appeal Judgement, para. 52, Aleksovski Appeal Judgement, para. 162. 

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

157. In convicting Milan Lukić of committing murder, the Trial Chamber relied on the proposition contained in the Seromba and Gacumbitsi Appeal Judgements[1] that: “a person who did not personally physically commit a crime – in the present case, personally shooting each victim – can nonetheless be liable for committing the crime of murder if there is evidence that the perpetrator’s acts were as much an integral part of the murder as the killings which the crime enabled.”[2] The Trial Chamber acknowledged that the crime charged in the present case was murder, and not genocide or extermination, which were the crimes under consideration in Seromba and Gacumbitsi.[3] However, in its view, the reasoning was also applicable to the crime of murder.[4]

162. The Appeals Chamber does not find it necessary to consider whether the Seromba/Gacumbitsi line of reasoning should be followed with regard to the crime of murder. Contrary to Milan Lukić’s assertion, the Appeals Chamber is of the view that the Limaj et al. Appeal Judgement is relevant to the issue at hand. In that case, the Appeals Chamber upheld Haradin Bala’s conviction as a direct perpetrator, in the absence of a JCE, for committing murder by executing nine prisoners, on the basis that he “participated physically in the material elements of the crime of murder, jointly with Murrizi, and perhaps with a third KLA soldier” and without a need to show whose bullet killed each victim.[5] Similarly, the Appeals Chamber is satisfied that the Trial Chamber did not err when finding that Milan Lukić, jointly with others, participated in the material elements of the crime of murder, and is therefore responsible for the death of all five victims, regardless of whether or not he personally fired the fatal bullet in each case. Milan Lukić’s arguments to the contrary are dismissed, and his sub-ground 1(B) is thus rejected.

[1] Seromba Appeal Judgement, para. 161; Gacumbitsi Appeal Judgement, para. 60.

[2] Trial Judgement, para. 908, referring to Trial Judgement, paras 897-898.

[3] Trial Judgement, para. 908.

[4] Trial Judgement, para. 908.

[5] Limaj et al. Appeal Judgement, paras 47-50. See also Limaj et al. Trial Judgement, paras 664, 670, 741.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

455. The Appeals Chamber recalls that a persecutory act must be discriminatory in fact for the crime of persecutions to be established.[1] The Trial Chamber clearly acknowledged this legal requirement in its statement of the law, when it observed that a persecutory act or omission must “discriminate in fact”.[2] Sredoje Lukić’s argument therefore fails.

[1] Kvočka et al. Appeal Judgement, para. 320; Krnojelac Appeal Judgement, para. 185.

[2] Trial Judgement, para. 992. 

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

536. The Appeals Chamber recalls that the actus reus of extermination is “the act of killing on a large scale”.[1] This element of “massiveness” is what distinguishes the crime of extermination from the crime of murder.[2] The mens rea of extermination requires the intention of the perpetrator “to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths.”[3]

537. The Appeals Chamber further recalls that “large scale” does not suggest a strict numerical approach with a minimum number of victims.[4] While extermination as a crime against humanity has been found in relation to the killing of thousands,[5] it has also been found in relation to fewer killings. The Appeals Chamber recalls that in Brđanin, the killing of between 68 to 300 individuals “in light of the circumstances in which they occurred, [met] the required threshold of massiveness for the purposes of extermination.”[6] In Stakić, the trial chamber found that the killing of less than 80 individuals “independently would reach the requisite level of massiveness for the purposes of an evaluation under Article 5(b) of the Statute”.[7] In Krajišnik, while the conviction for extermination as a crime against humanity was based on the killing of at least 1,916 individuals, the trial chamber found that the killing of approximately 66 individuals during the Pionirska Street Incident satisfied the element of massiveness.[8] The ICTR and the Special Court for Sierra Leone (“SCSL”) have also found the killing of about 60 individuals and less to be sufficiently large-scale to amount to extermination.[9]

538. The assessment of “large scale” is made on a case-by-case basis, taking into account the circumstances in which the killings occurred.[10] Relevant factors include, inter alia: the time and place of the killings;[11] the selection of the victims and the manner in which they were targeted;[12] and whether the killings were aimed at the collective group rather than victims in their individual capacity.[13] In Krstić, the trial chamber qualified the victimised population and held that:

“extermination” could also, theoretically, be applied to the commission of a crime which is not “widespread” but nonetheless consists in eradicating an entire population […] made up of only a relatively small number of people. In other words, while extermination generally involves a large number of victims, it may be constituted even where the number of victims is limited.[14] […] [T]here must be evidence that a particular population was targeted and that its members were killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population.[15]

The Krstić trial chamber also stated that the preparation and organisation of the crime could be considered when determining the actus reus of extermination as a crime against humanity.[16] The International Law Commission articulated that “[e]xtermination is a crime which by its very nature is directed against a group of individuals” and qualified that the individuals do not have to share any common characteristics.[17]

542. The Trial Chamber thus considered the number of victims when assessing whether the element of massiveness was met. It also took into consideration the specific circumstances of the case, such as the type of victims and, with regard to the Pionirska Street Incident, the area of origin of the victims.[18] While these factors may be taken into consideration in the assessment of whether the element of massiveness for extermination is fulfilled, they do not constitute elements of the crime of extermination as a crime against humanity.[19] Therefore, a trial chamber need not address these factors in its assessment. Milan Lukić’s arguments that the Trial Chamber inconsistently considered population density in relation to the Pionirska Street and the Bikavac Incidents therefore fail. Furthermore, as these factors do not constitute elements of the crime of extermination, there is no mens rea requirement in relation to them as suggested by Milan Lukić.

543. When referring to population density regarding the Pionirska Street Incident, the Trial Chamber essentially considered the number of individuals killed in a specific area in relation to the overall population of that area.[20] The Appeals Chamber notes that almost the entire Muslim population of Koritnik perished in the Pionirska Street Incident.[21] In these circumstances, the Trial Chamber reasonably found that the killing of 59 persons amounted to extermination as a crime against humanity. The limited reduction of the number of victims by the Appeals Chamber does not affect this conclusion.[22] Furthermore, the Appeals Chamber finds that using a single village as the reference area was not artificially narrow since Milan Lukić’s conviction rests on one incident which involved victims who were predominately from the same village.[23]

544. The Appeals Chamber further finds that the Trial Chamber did not err in finding that extermination was established in relation to the Bikavac Incident. The Trial Chamber reasonably found that the killing of at least 60 persons was sufficiently large–scale.

545. Moreover, Milan Lukić’s argument that the Tribunal and the ICTR have ensured that the element of massiveness is maintained at a high level[24] is not supported by either the jurisprudence of the Tribunal or that of the ICTR. This argument is therefore dismissed.

[1] Stakić Appeal Judgement, para. 259, referring to Ntakirutimana Appeal Judgement, para. 516.

[2] Stakić Appeal Judgement, para. 260, referring to Ntakirutimana Appeal Judgement, para. 516.

[3] Stakić Appeal Judgement, para. 260.

[4] Stakić Appeal Judgement, para. 260, referring to Ntakirutimana Appeal Judgement, para. 516. See also Bagosora and Nsengiyumva Appeal Judgement, para. 398. The ICTR Appeals Chamber accepted the Trial Chamber’s finding that parallel killings were perpetrated at the same time and qualified as having occurred on a large scale, without ascertaining a precise numerical figure.

[5] See e.g. Krstić Trial Judgement, paras 79, 84, 426, 505. See also Ntakirutimana Appeal Judgement, para. 521.

[6] Brđanin Appeal Judgement, para. 472.

[7] Stakić Trial Judgement, para. 653, referring to, inter alia, killings at Briševo where 77 Croats were killed (see Stakić Trial Judgement, para. 269). The Appeals Chamber did not address whether each incident would independently satisfy the requirement that the massiveness element had been met, but did uphold the conviction for extermination (Stakić Appeal Judgement, para. 264).

[8] Krajišnik Trial Judgement, paras 699, 720, overturned on appeal for reasons other than the massiveness requirement (Krajišnik Appeal Judgement, para. 177). See also Trial Judgement, para. 938.

[9] Setako Trial Judgement, para. 481 (30 to 40 victims) (this finding was upheld on appeal, Setako Appeal Judgement, para. 301); Sesay et al. Trial Judgement, paras 1107 (63 victims), 1271 (30 to 40 victims), 1449 (64 victims) (these findings were upheld on appeal, Sesay et al. Appeal Judgement, Chapter XII).

[10] Martić Trial Judgement, para. 63, referring to Stakić Trial Judgement, para. 640, Brđanin Trial Judgement, para. 391, Blagojević and Jokić Trial Judgement, para. 573, Krajišnik Trial Judgement, para. 716, Nahimana et al. Trial Judgement, para. 1061. See also Brđanin Appeal Judgement, para. 472, finding “that the scale of the killings, in light of the circumstances in which they occurred, meets the required threshold of massiveness for the purposes of extermination” (emphasis added).

[11] Krajišnik Trial Judgement, para. 716. This finding was not overturned on appeal.

[12] Martić Trial Judgement, fn. 120; Krajišnik Trial Judgement, para. 716; Nahimana et al. Trial Judgement, para. 1061. These findings were not overturned on appeal.

[13] Stakić Trial Judgement, para. 653; Vasiljević Trial Judgement, para. 227. These findings were not overturned on appeal.

[14] Krstić Trial Judgement, para. 501 (emphasis added). This finding was not appealed. The trial chamber in Brđanin adopted this finding (Brđanin Trial Judgement, para. 391), which was not appealed.

[15] Krstić Trial Judgement, para. 503 (emphasis added). This finding was not appealed.

[16] Krstić Trial Judgement, para. 501. This finding was not appealed. The trial chamber in Brđanin adopted this finding (Brđanin Trial Judgement, para. 391), which was not appealed.

[17] Report of the International Law Commission on the work of its forty-eighth session, 6 May - 26 July 1996, Official Records of the General Assembly, Fifty-first session, Supplement No. 10 (UN Doc. A/51/10), Article 18, p. 48.

[18] Trial Judgement, paras 943, 945, 950.

[19] See Stakić Appeal Judgement, para. 259, referring to Ntakirutimana Appeal Judgement, para. 516.

[20] The Trial Chamber considered the characteristics of Koritnik, particularly that it was a “small and less densely populated villag[e]]” (Trial Judgement, para. 943). It noted that the Muslim area of Koritnik consisted of about 20 houses and was populated by approximately 60 people (Trial Judgement, para. 335. See also Trial Judgement, para. 945).

[21] Cf. Trial Judgement, para. 335.

[22] See supra [Appeal Judgement,] para. 353. See however Separate Opinion of Judge Morrison.

[23] See Trial Judgement, para. 943.

[24] Milan Lukić Appeal Brief, para. 224.

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Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

634. The Appeals Chamber considers that not all acts committed in detention can be presumed to meet the requisite seriousness. […]

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

662. The Appeals Chamber recalls that expressions of regret may be considered in mitigation, provided they are expressed sincerely.[1] The Trial Chamber did not consider the statements by Sredoje Lukić’s counsel to be expressions of remorse of the kind contemplated by law, but took “these statements into account as expressions of sympathy and compassion for the suffering of the victims of the crimes”.[2] The Trial Chamber found that in light of the gravity of the crimes, “the statements are not substantial enough to warrant great weight being placed upon them as a mitigating factor”.[3] Sredoje Lukić has not shown that the Trial Chamber erred in this respect.

[1] Vasiljević Appeal Judgement, para. 177; Sikirica et al. Sentencing Judgement, paras 152, 194, 230; Todorović Sentencing Judgement, paras 89-92; Erdemović Sentencing Judgement, para. 16(iii).

[2] Trial Judgement, para. 1094.

[3] Trial Judgement, para. 1094. See also Trial Judgement, para. 1098.

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Contempt Appeal Judgement - 28.11.2012 ŠEŠELJ Vojislav
(IT-03-67-R77.3-A)

23. The Appeals Chamber recalls that Rule 102(A) of the Rules provides that a sentence shall begin to run from the day it is pronounced; however, as soon as a notice of appeal is filed, the enforcement of the judgment is stayed until the appeal judgement has been delivered. Irrespective of whether the stay of proceedings is calculated from the first or second notice of appeal filed by Šešelj in Case No. IT-03-67-R77.2-A,[1] the sentence of 15 months’ imprisonment imposed on Šešelj in Case No. IT-03-67-R77.2 on 24 July 2009 was served before the Contempt Trial Judgement was rendered on 31 October 2011. Based on the plain text of Rule 102(A) of the Rules, the Appeals Chamber finds that Šešelj’s sentence in Case No. IT-03-67-R77.2 was stayed as soon as the first notice of appeal was filed on 18 August 2009, whether or not that notice was valid; hence, the calculation from the first notice of appeal is operative. Therefore, the Appeals Chamber finds that there was no sentence in Case No. IT-03-67-R77.2 at the time the Contempt Trial Judgement was rendered with which the sentence imposed by the Contempt Trial Chamber could run concurrently. As a newly imposed sentence cannot run concurrently with a sentence that has expired, the Appeals Chamber considers that Šešelj has not served any part of the 18-month sentence imposed by the Contempt Trial Chamber by virtue of having served the sentence imposed on him in Case No. IT-03-67-R77.2.

[1] See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-R77.2-A, Notice of Appeal Against the Judgement on Allegations of Contempt of 24 July 2009, 18 August 2009 (confidential). The English translation of the B/C/S original was filed on 25 August 2009. See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-R77.2-A, Notice of Appeal and Appellant’s Brief Against the Judgment [sic] on Allegations of Contempt Pursuant to the Decision on the Prosecution’s Motion for Order Striking Appellant’s Notice of Appeal and Appeal Brief and Closing the Case Issued by the Appeals Chamber on 16 December 2009, 12 January 2010 (confidential). The English translation of the B/C/S original was filed on 18 January 2010. 

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ICTR Rule Rule 77;
Rule 102(A)
ICTY Rule Rule 77;
Rule 102(A)
Notion(s) Filing Case
Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

65. The Appeals Chamber finds that Rašić has failed to show that the Trial Chamber erroneously relied on her position as an “officer of justice” as an aggravating circumstance. […]

66. Similarly, the Appeals Chamber finds that Rašić has failed to show that the Trial Chamber’s finding that she was an “officer of justice” is not supported by the evidence. Again, the Appeals Chamber finds that this argument effectively turns on semantics as opposed to substance. The Trial Chamber used this term to describe the obligations of “any professional involved in the proceedings before the Tribunal”, including members of defence teams.[1] It took into account that, as a member of Milan Lukić’s defence team, Rašić held a “position of trust”, and that she was “obligated to act conscientiously with full respect of the law and applicable rules”.[2]

67. The specific obligation to fully respect the applicable law is contained in the disciplinary regime applicable to members of a defence team. Pursuant to Article 35 (i) and (v) of the Code of Professional Conduct for Counsel, members of a defence team display professional misconduct if they: (i) violate the Rules; or (ii) engage in conduct which is prejudicial to the proper administration of justice before the Tribunal.[3]

[1] Sentencing Judgement, para. 18.

[2] Sentencing Judgement, para. 18.

[3] Code of Professional Conduct for Counsel Appearing Before the International Tribunal, IT/125 Rev. 3, 22 July 2009 (“Code of Professional Conduct for Counsel”). See also Articles 34 and 40 of the Code of Professional Conduct for Counsel.

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Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

In considering whether the Trial Chamber should have given more weight to the sentence imposed on an accused who pleaded guilty to his involvement in the same criminal scheme, the Appeals Chamber held:

57. […] [W]hile sentences of like individuals in like cases should indeed be comparable,[1] trial chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[2] Comparison between cases is thus generally of limited assistance.[3]

[1] Milošević Appeal Judgement, para. 326, quoting Strugar Appeal Judgement, para. 348; Kvoćka et al. Appeal Judgement, para. 681.

[2] Ntabakuze Appeal Judgement, paras 264, 298.

[3] Milošević Appeal Judgement, para. 326.

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Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

17. The Appeals Chamber considers that the Trial Chamber’s power to suspend a sentence is inherent to its authority to impose one.[1] Such power is operative at the time of sentencing, and not thereafter, and for this reason is entirely distinct from the power to grant pardon or commutation.[2] The authority to grant pardon or commutation pursuant to Article 28 of the Statute and Rules 123 through 125 of the Rules is vested exclusively in the President and that power relates to a post-conviction change in the sentence, thus overriding the decision of the sentencing chamber in specific circumstances, where the detainee has already served part of a final sentence.[3]

18. […][T]he Appeals Chamber finds that the power to suspend a sentence must be distinguished from the power to issue a pardon, commutation of sentence, or early release. Such suspension of a sentence, either in full or in part, does not infringe the authority of the enforcing State to execute the sentence in accordance with the applicable law of that State. Similarly, it does not “effectively remove the power from the President of the Tribunal to make the final determination regarding the [execution of the] sentence” imposed by the Trial Chamber.[4] Rather, the decision to suspend the last eight months of Rašić’s sentence of 12 months’ imprisonment forms an integral part of the Trial Chamber’s judicial discretion in the determination of the sentence.

[1] Cf. Tadić Judgement in Sentencing Appeals, para. 28.

[2] The Appeals Chamber notes that, although they are distinct acts, the powers to grant, on the one hand, commutation or pardon and, on the other, early release are all governed by Article 28 of the Statute, Rule 125 of the Rules, and the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal, IT/146/Rev.3, 16 September 2010 (“Practice Direction”). The Appeals Chamber notes that the Prosecution does not stipulate which specific type of post-conviction release it submits the Trial Chamber granted, but the Appeals Chamber considers that this is of no consequence given that the identical decision making process for each type is governed by the same provisions.

[3] Cf. Practice Direction.

[4] Stakić Appeal Judgement, para. 392.

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Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

29. In this context, the Appeals Chamber further considers the Prosecution’s argument that the Trial Chamber erroneously found that Rašić’s health problems were serious enough to warrant the imposition of a suspended sentence.[1] In support of this argument, the Prosecution refers to the Milan Simić case in which the trial chamber neither mitigated nor suspended Milan Simić’s sentence, although his health problems required “complete nursing care on a daily basis”.[2] The Appeals Chamber recalls that while “sentences of like individuals in like cases should be comparable”,[3] trial chambers have broad discretion in determining the appropriate sentence on account of their obligation to tailor the penalties to fit the individual circumstances of the convicted person and to reflect the gravity of the crimes.[4] Comparison between cases is thus generally of limited assistance.[5] The Appeals Chamber finds that the Milan Simić case bears no relevance for the present case. There are too many variables in both cases to be able to transpose the sentencing considerations from the former to the latter. In particular, Milan Simić was convicted of two counts of torture as crimes against humanity,[6] while Rašic was not convicted of any of the Statute’s core crimes. In these circumstances, the Prosecution has failed to show that the Trial Chamber erred in considering that Rašić’s health problems were serious enough to warrant a partial suspension of her sentence.

30. Further, the Trial Chamber did not err in taking into consideration Rašić’s conditions at the UNDU.[7] The Appeals Chamber notes that to date, no person convicted of contempt was transferred from the UNDU to an enforcing State to serve his or her sentence. Moreover, given the length of the sentence (12 months) and the length of time for which she had already been detained at the time of the Sentencing Judgement (84 days), the Appeals Chamber is satisfied that it was not unreasonable for the Trial Chamber to consider that Rašić would serve the remainder of her sentence at the UNDU. In these circumstances, the Prosecution has not shown that the Trial Chamber erred in taking into account Rašić’s detention conditions at the UNDU.

31. With respect to the Prosecution’s argument that Rašić’s confinement in the UNDU is not truly solitary, the Appeals Chamber notes that the Trial Chamber considered the ex parte medical reports of Dr. Vera Petrović (“Petrović Reports”)[8] concerning Rašić’s health condition.[9] In these reports, Dr. Petrović made observations about Rašić’s mental health condition at the UNDU.[10] While the Prosecution argues that Rašić was able to socialise “for 10 hours each weekday and for eight hours each day on Saturdays and Sundays” with other detainees in the UNDU to an extent that her confinement cannot be considered “quasi-solitary”,[11] the Appeals Chamber finds that the Prosecution does not show an error in the Trial Chamber’s finding. The Trial Chamber based its decision to impose a suspended sentence on Rašić’s “perception of her detention and the practical impact upon her well-being”.[12] The Prosecution does not show that the Trial Chamber ventured outside its scope of discretion when it relied on how Rašić perceived her confinement, on the basis of the Petrović Reports. Furthermore, the Appeals Chamber notes that the Trial Chamber based the suspension of the sentence not only on Rašić’s perception of her detention but also on “Rašić’s comparably young age and that this is the first time she is sentenced to a prison sentence.”[13]

[1] Prosecution Appeal Brief, para. 18.

[2] Prosecution Appeal Brief, para. 18, quoting M. Simić Sentencing Judgement, para. 100.

[3] Milošević Appeal Judgement, para. 326, quoting Strugar Appeal Judgement, para. 348; Kvočka et al. Appeal Judgement, para. 681.

[4] Ntabakuze Appeal Judgement, paras 264, 298.

[5] Milošević Appeal Judgement, para. 326 and references cited therein.

[6] M. Simić Sentencing Judgement, para. 34.

[7] Sentencing Judgement, para. 31.

[8] Medical Reports of Dr. Vera Petrović on Jelena Rasić dated 26 January 2012 and 1 February 2012, annexed to Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Registrar’s Submission of Medical Reports, 6 February 2012 (confidential). The ex parte status of the Petrović Reports was lifted on 6 March 2012 by the Trial Chamber. See Sentencing Judgement, para. 34.

[9] Sentencing Judgement, para. 31. See also T. 73 (7 February 2012).

[10] “There was a short period of time when she was almost overcome by panic, at the very beginning, during the weekend, given that she was alone and in isolation (due to Detention Unit rules) for a longer period.” See Petrović Reports, p. 6. “Her mental state is that of a moderate depressive reaction. She has a difficult time dealing with isolation on the floor where she stays, although she does realise that the management of the detention unit has done everything possible to reduce these feelings.” See Petrović Reports, p. 8.

[11] Prosecution Reply Brief [Prosecution Reply to Jelena Rašić’s Response Brief, 30 March 2012], para. 12.

[12] Sentencing Judgement, para. 31 (emphasis added). See also T. 72 (7 February 2012).

[13] Sentencing Judgement, para. 31. 

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Contempt Appeal Judgement - 16.11.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)

28. In the Appeals Chamber’s view, the Prosecution’s submission that the Trial Chamber erroneously mitigated Rasic’s sentence by partially suspending it on the basis of her health condition[1] is misguided as it relies again on a conflation of suspension and mitigation. The Trial Chamber considered that the effect that detention could have on Rašić’s psychological well-being did not constitute a mitigating factor.[2] It held, however, that this constituted a relevant consideration, among others, to partially suspend “the execution of the sentence”.[3] Regardless of whether Rašić will serve the remainder of eight months in detention, her sentence of 12 months’ imprisonment remains unaffected. Therefore, the partial suspension of Rašić’s sentence by the Trial Chamber [4] does not equate to a reduction of her sentence, and the Prosecution’s submission in this respect is dismissed.

[1] See Prosecution Appeal Brief [Prosecution Appeal Brief, 16 March 2012 (public with confidential annex)], para. 14. The Appeals Chamber is satisfied that, contrary to Rašić’s assertion, the Prosecution explicitly opposed at trial her argument that “her detention resemble[d] a de facto solitary confinement”. See Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Prosecution Response to Urgent Motion for Provisional Release, 27 October 2010 (confidential), para. 2, referring to Prosecutor v. Jelena Rašić, Case No. It-98-32/1-R77.2, Urgent Motion for Provisional Release, 26 October 2012 (confidential) (“26 October 2010 Provisional Release Motion”), paras 16-18. Thus, Rašić’s argument that the Prosecution has waived its right to object to the qualification of her detention conditions as quasi-solitary is dismissed.

[2] Sentencing Judgement [Written Reasons for Oral Sentencing Judgement, 6 March 2012], para. 30.

[3] Sentencing Judgement, paras 30-31. The Appeals Chamber notes that the Trial Chamber’s reference to “the execution of the sentence” is misleading, as the execution of a sentence lies within the authority of the President and the enforcing state. However, the Appeals Chamber finds that this reference does not constitute an error of law, as the Trial Chamber’s partial suspension of Rašić’s sentence did not infringe the authority of the President and the enforcing state in this respect, as the suspended sentence was an integral part of its judicial discretion in the determination of Rašić’s sentence (see supra paras 17-18).

[4] T. 72-73 (7 February 2012); Sentencing Judgement, para. 31. 

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Appeal Judgement - 16.11.2012 GOTOVINA & MARKAČ
(IT-06-90-A)

149. With respect to aiding and abetting, the Appeals Chamber notes that the Trial Chamber did not explicitly find whether Markač made a “substantial contribution” to relevant crimes by the Special Police.[1] While the Trial Chamber concluded that the evidence it considered proved that Markač’s Failure to Act constituted a significant contribution to the JCE,[2] the Appeals Chamber has held that the threshold for finding a “significant contribution” to a JCE is lower than the “substantial contribution” required to enter a conviction for aiding and abetting.[3] Thus the Trial Chamber’s finding of a significant contribution is not equivalent to the substantial contribution required to enter a conviction for aiding and abetting.

[1] See generally [Gotovina and Markač] Trial Judgement.

[2] See [Gotovina and Markač Appeal Judgement], para. 138.

[3] See Kvočka et al. Appeal Judgement, para. 97; Tadić Appeal Judgement, para. 229. Judge Agius dissents in relation to this paragraph.

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