20. Rule 82(A) of the Rules provides that “[i]n joint trials, each accused shall be accorded the same rights as if such accused were being tried separately”. However, as the Appeals Chamber previously held, it “does not accept that Rule 82(A) bars in abstracto any difference of treatment between accused in a joint trial and those in separate trials”.[1] While a Trial Chamber is obliged to ensure the rights of the accused under Article 21 of the Statute, it is not imperative that the protection of such rights be identical in a separate and in a joint trial.[2] Accordingly, Rule 82(A) of the Rules does not prohibit a Trial Chamber from taking into account a proper balance among all the co-accused in managing the trial proceedings of a multiple accused case, insofar as such a consideration does not result in prejudice to one or more co-accused.[3]

12. […] There is nothing wrong in clarifying the law or providing guidelines and directing a party to re-file its submission rather than immediately ruling upon it, insofar as a Chamber provides sound reasons for doing so.[1] Furthermore, the Appeal Chamber recalls that:

[w]hile a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail. The fact that the Trial Chamber did not mention a particular fact in its written order does not by itself establish that the Chamber has not taken that circumstance into its consideration.[2]

In addition, with respect to the amount of time alloted [sic] to a party for the presentation of its case, the Appeals Chamber has held that “although [a] Trial Chamber must justify its reduction in time by indicating the documents and the competing interests it considered, it does not need to specifically ‘itemise and justify’ all of the bases for this reduction”.[3] This principle is also applicable to a Trial Chamber’s determination on the number of witnesses. In the present case, the Trial Chamber provided adequate reasoning for placing a limit on the number of Rule 92 bis written statements or transcripts that Praljak could tender and sending back the Motions to him without ruling upon the admissibility of each and every Statement, based on a sufficiently particularised and comprehensive analysis of the Statements. [“Statements” or, individually, “Statement” are defined in paragraph 4 as the written statements and transcripts of 155 witnesses, in total, which Praljak requested the Trial Chamber on 14 September, 1 October and 16 October 2009 to admit into evidence pursuant to Rule 92 bis of the Rules]

23. Relying upon the Appeals Chamber’s holding in the Čelebići Appeal Judgement, the Trial Chamber stated the law applicable to a request for reopening a party’s case as follows:

[W]hen considering an application for reopening a case to allow for the admission of fresh evidence, a Trial Chamber should first determine whether the evidence could, with reasonable diligence, have been identified and presented in the case-in-chief of the party making the application. If not, the Trial Chamber has the discretion to admit it, and should consider whether its probative value is substantially outweighed by the need to ensure a fair trial. When making this determination, the Trial Chamber should consider the stage in the trial at which the evidence is sought to be adduced and the potential delay that would be caused to the trial.[1]

24. The Appeals Chamber finds that the Trial Chamber correctly articulated the applicable legal standard. […] [T]he Appeals Chamber notes that an evaluation of what constitutes fresh evidence and whether the Prosecution has met its obligation of reasonable diligence is highly contextual, depending on the factual circumstances of each case. Thus, any assessment in this respect should be carried out on a case-by-case basis.[2]

[…]

35. [T]he Appeals Chamber recalls that in a case where the evidence is sought to be presented at a very advanced stage of the proceedings, the Prosecution should establish that the evidence could not have been obtained, even if after the close of its case, at an earlier stage in the trial.[3] […]

34. […] [T]he Appeals Chamber is not persuaded that Markač’s right to a fair trial would be adversely affected merely as a result of the reopening of the Prosecution’s case.[1] What is important for the Trial Chamber is to ascertain that following the reopening of the Prosecution’s case, the proceedings are indeed conducted with full respect for the principle of equality of arms. […]

For a brief overview of the relevant provisions and legal precedents in national jurisdictions, see paras 11-12.

9. The Appeals Chamber notes that neither the Statute nor the Rules indicate whether the termination of the appellate proceedings has any impact on the finality of the trial judgement following the death of an appellant and prior to the issuance of an appeal judgement. The Appeals Chamber is further mindful of the fact that pursuant to Rule 102(A) of the Rules, the enforcement of the trial judgement shall be stayed as soon as notice of appeal is given and “until the decision on the appeal has been delivered”.[1] However, the Appeals Chamber has found that the death of the appellant results in the termination of the appeal proceedings; consequently, this provision is not applicable to the situation at hand.

13. […] [T]here is no general principle that is consistently followed in the majority of jurisdictions as to the finality of the trial judgement in the event that the proceedings are terminated following the death of an appellant. For this reason, as well as bearing in mind the specific realities of, and the particular procedures before, this Tribunal, the Appeals Chamber cannot discern any prevalent approach, let alone identify any rules of customary international law, that would be directly applicable to the situation at hand.

14. The Appeals Chamber considers that the approach followed in certain national jurisdictions, where convictions entered by a court of first instance are vacated following the death of an appellant, is not compatible with the essence of the appellate proceedings before this Tribunal. […]

15. Having found that the death of an appellant results in the termination of proceedings and given that no appeal judgement can be rendered in this case, nothing can undermine the finality of the Trial Judgement. As a consequence, the Trial Judgement shall be considered final.

14. […] In this regard, the Appeals Chamber has clarified, although not directly in relation to the matter at hand, that the presumption of innocence does not apply to persons convicted by Trial Chambers pending the resolution of their appeals.[1] This interpretation of the Appeals Chamber’s jurisprudence is further consistent with the standard of review applicable in appellate proceedings whereby the appealing party has the burden of showing an error of law or of fact that invalidates the trial judgement, or leads to a miscarriage of justice, rather than attempting to initiate a trial de novo.[2] This burden is clearly different from the one operative at trial, where the presumption of innocence does apply and the Prosecution has to prove its case beyond reasonable doubt.

26. The Appeals Chamber underscores that the requisite mens rea for a violation of Rule 77(A)(ii) of the Rules is knowledge that the disclosure in question is in violation of an order of a Chamber.[1] Such knowledge may be proven by evidence other than the accused’s statement expressing a particular intent to disclose protected witness identities. […]

32. The Appeals Chamber notes that it is the established practice of the Tribunal to publish redacted public versions of documents that “[contain] information which, if disclosed, might cause prejudice, concerns about safety, or serious embarrassment to a party or a witness”.[1] This practice extends to judgements.[2] Insofar as Šešelj contends that the established practice of the Tribunal violates the Statute, Rules or the ICCPR, he is incorrect. None of these states that the right to a public judgement is absolute. They recognize that it needs to be balanced against other interests.[3] In fact, publication of confidential witness or victim information would run counter to the explicit protection of witnesses and victims required by the Tribunal’s Statute and implemented in the Rules.[4] […]

9. […] The settled standard of review for appeals against judgements also applies to appeals against convictions for contempt.[1]

Tarčulovski claimed that the Trial Chamber had erred in law and in fact by admitting into evidence three statements (“Statements”) made by Tarčulovski to the Commission for Inquiry of the Former Yugoslav Republic of Macedonia (“FYROM”). The Appeals Chamber held[1] that there was “no incongruity in the Trial Chamber admitting evidence deemed to be ‘an apparently reliable record of the Accused’s understanding of these events’[2] and proceeding to reject virtually all of what the statement said’”. It concluded that the Trial Chamber “was entitled to admit the Statements as accurately representing Tarčulovski’s evidence before the Commission for Inquiry”.[3] It further held:

190. The proposition advanced by Tarčulovski, namely, that the Tribunal should create a privilege to exclude statements made during the course of a national investigation of suspected war crimes, would unduly compromise the Tribunal’s discretion to admit evidence under Rule 89 of the Rules. Such an exemption could potentially preclude the Tribunal from considering vital pieces of evidence and consequently undermine the Tribunal’s ability to fulfil its mandate to prosecute persons accused of serious violations of international humanitarian law in the territory of the former Yugoslavia since 1991.[4]

191. The Appeals Chamber further considers that the creation of the aforementioned privilege could create an impromptu immunity, allowing those responsible for the commission of war crimes to comply with national investigations and thereafter rely on the exemption to exclude incriminatory evidence from subsequent criminal proceedings.

194. Further, the Appeals Chamber notes that Tarčulovski has failed to identify a “general principle of law” to support his argument. The fact that the Statements were inadmissible before FYROM courts is insufficient to support the claim that such a general principle of law exists. In this context, the Appeals Chamber observes that out-of-court statements made by an accused are admissible in a number of common law[5] and civil law[6] jurisdictions.