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Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
(IT-05-88-R77.1-A)

31. Turning to the mens rea of contempt under Rule 77(A)(i) of the Rules, the Appeals Chamber notes that there has been considerable discussion in the jurisprudence as to the meaning of the word “contumacious” and whether it adds an extra element to the mens rea of the offence beyond the chapeau element of Rule 77(A) of “knowingly and wilfully interfer[ing] with [the] administration of justice”. As discussed above, the Appeals Chamber considers that “contumaciously” falls within the actus reus of the offence and therefore does not create an additional element of the mens rea. Accordingly, the Appeals Chamber finds that the Trial Chamber was correct in holding that the mens rea of contempt under Rule 77(A)(i) is knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify.

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Contempt Appeal Judgement - 03.07.2009 JOKIĆ Miodrag
(IT-05-88-R77.1-A)

29. In defining the actus reus as “persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber” the Trial Chamber went beyond the language found in the Rule by adding the phrase “without reasonable excuse” and replacing the word “contumaciously” with “persistently”. The Appeals Chamber notes that the additional language of “without reasonable excuse” appears to have been taken from Judge Kwon’s dissenting opinion in the Matter of Witness K12 in the Slobodan Milošević case, in which he made reference to “obstinate refusal to answer without reasonable excuse”,[1] but neither appears in the language of the Rule nor elsewhere in the jurisprudence on the interpretation of this Rule.[2] However the Appeals considers that, in any event, such an addition cannot be considered as going to the detriment of the Accused for the reason that it is an addition pro reo, i.e. it narrows the scope of the crime under this Rule.

30. The Appeals Chamber now turns to the Trial Chamber’s replacement of the word “contumaciously” with “persistently”. This follows the reasoning in the contempt proceedings against Kosta Bulatović in the Slobodan Milošević case in which the Trial Chamber referred to the accused “deliberately refus[ing] to comply with an order of the Trial Chamber to answer questions and persist[ing] in that refusal when fully advised of the position and given a further opportunity to respond.”[3] Although discussion in the jurisprudence of the meaning of “contumacious” has tended to be undertaken in the context of the mens rea,[4] if “contumacious” is defined as “persistent”, it is in fact more relevant to the actus reus than the mens rea in the sense of it being a repeated or continuous refusal. This interpretation is the most consistent with the French version of Rule 77(A)(i) which does not contain the word “contumacious” or any direct equivalent but rather states:

Dans l’exercice de son pouvoir inhérent, le Tribunal peut déclarer coupable d’outrage les personnes qui entravent délibérément et sciemment le cours de la justice, y compris notamment toute personne qui: i) étant témoin devant une Chambre refuse de répondre à une question malgré la demande qui lui en est faite par la Chambre [...]

In light of the phrase “malgré la demande qui lui en est faite par la Chambre” (despite the Chamber’s request), the crime under  Rule 77(A) of the Rules must be consider committed not when the witness merely refuses to answer a question put by one of the parties, but rather when it is a refusal maintained in the face of the Chamber’s request to answer the question of a party or a question put by the Chamber itself. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reference to “persistently refusing or failing to answer a question” in defining the actus reus.

[1] Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, Trial Chamber Finding in the Matter of Witness K12, Dissenting Opinion of Judge Kwon, 21 November 2002 (“Judge Kwon’s Dissenting Opinion in the Matter of Witness K12”), para. 2.

[2] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, T. 18-34 (18 November 2002); Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T-R77, Trial Chamber Finding in the Matter of Witness K12, 21 November 2002 (“Trial Chamber in the Matter of Witness K12”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-R77.4, Decision on Contempt of the Tribunal, 13 May 2005 (“Bulatović Trial Decision on Contempt”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-R77.4, Separate Opinion of Judge Bonomy on Contempt of the Tribunal (“Separate Opinion of Judge Bonomy in Bulatović Trial Decision on Contempt”); Prosecutor v. Slobodan Milošević, Contempt Proceedings against Kosta Bulatović, Case No. IT-02-54-A-R77.4, Decision on Interlocutory Appeal on Kosta Bulatović Contempt Proceedings, 29 August 2005 (“Bulatović Appeal Decision on Contempt”).

[3] Bulatović Trial Decision on Contempt, para. 16.

[4] In the Trial Chamber in the Matter of Witness K12, the Trial Chamber interpreted “contumaciously” to mean “perverse”; T. 33 (18 November 2002) (closed session)); However, Judge Kwon dissented on this interpretation, arguing that “Rule 77 may be interpreted in such a way that the terms ‘knowingly’, ‘wilfully’ and ‘contumaciously’ all have legal significance, but that, taken together, they should be interpreted as meaning an obstinate refusal to answer without reasonable excuse.” (Judge Kwon’s Dissenting Opinion in the Matter of Witness K12, para. 2). In the contempt proceedings against Kosta Bulatović also in the Slobodan Milošević case, the Trial Chamber referred to “the test of ‘knowingly and wilfully’ interfering with the Tribunal’s administration of justice by ‘contumaciously’ refusing to answer questions” and concluded that this test was met when the accused “deliberately refused to comply with an order of the Trial Chamber to answer questions and persisted in that refusal when fully advised of the position and given an further opportunity to respond.” (Bulatović Trial Decision on Contempt, para. 16). Meanwhile Judge Bonomy’s separate opinion appended to that decision stated that the plain meaning of “contumacious” as “stubbornly or wilfully disobedient to authority” should be preferred over defining it as “perverse” (Separate Opinion of Judge Bonomy in Bulatović Trial Decision on Contempt, para. 1). 

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Decision on Motion for Clarification - 01.07.2009 NIYITEGEKA Eliézer
(ICTR-96-14-R)

6. […] Niyitegeka is not seeking clarification of any of the Appeals Chamber’s previous rulings or decisions, but is instead requesting legal advice concerning potential jurisdictions that could determine anew the validity of his conviction and rule on the alleged violations of his right to a fair trial. The Appeals Chamber considers that it is not within its remit to do so; the Appeals Chamber does not have advisory power,[1] in particular concerning other jurisdictions.

In reaching this conclusion, the Appeals Chamber stressed that “the charges against Niyitegeka have already been determined and that his conviction has been confirmed on appeal; he is not an accused before the Tribunal but a convicted person whose case has reached finality”. Hence, it found Niyitegeka’s references to Article 19(1), 20(2) and 20(4)(d) of the Statute of the Tribunal inapplicable to his current situation. (para. 5).

[1]   The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001, para. 23. See also Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Motion to Dismiss Ground 1 of the Prosecutor’s Appeal, 5 May 2005, p. 3.

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Decision on Disqualification - 26.06.2009 KARADŽIĆ Radovan
(IT-95-05/18-AR15.1)

While Rule 15(B)(iii) of the Rules clearly states that there is no interlocutory appeal from a decision by the panel of three judges, it does not set out what avenues are available should a party wish to challenge the finding of the President on the merits of an application for disqualification pursuant to Rule 15(B)(ii) of the Rules. Referring to the former version of Rule 15(B) of the Rules, the Appeals Chamber concluded:

7. […] In interpreting the previous version of the Rule, the Appeals Chamber in Prosecutor v. Galić found that the Presiding Judge could determine that it was not necessary to refer the matter to the Bureau and decide the matter himself; however, if the party seeking disqualification challenged the Presiding Judge’s decision, it did become “necessary” to refer the matter to the Bureau within the language of Rule 15(B) of the Rules. Therefore, while there was no interlocutory appeal from decisions of either the Presiding Judge or the Bureau, there was in effect a second level of review by the Bureau in the case of the Presiding Judge deciding the matter alone.[1] In circumstances where an application for disqualification was referred to the Bureau, it would undertake a de novo review.[2]

8. The procedure in the current version of Rule 15(B) of the Rules differs in that it is the President, rather than the Presiding Judge, who either makes the decision on his own or refers it on for decision. Further, in the latter case, the President refers it not to the Bureau but to a panel of three judges drawn from other Chambers. However, beyond these differences, the language and general procedure of Rule 15(B) of the Rules in the two versions is broadly similar. Both provide that the matter may be decided by a lone judge (be it the Presiding Judge or the President) or “if necessary” by a panel of judges (be it a panel of three judges from other Chambers or the Bureau). Therefore, the Appeals Chamber considers that the reasoning in Galić to the extent that where a decision of the Presiding Judge acting on his own is challenged it becomes “necessary” to refer the matter to the Bureau, would equally apply to the new procedure under Rule 15(B) of the Rules. Therefore, under the current Rule 15(B) of the Rules, where the President (or, as in the instant case, the Vice-President) has determined that it is not necessary to refer the matter to a panel of judges and decided the matter himself, and that decision is challenged, it becomes “necessary” to refer the matter to a panel of three judges.

 

[1] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR54, Decision on Appeal from Refusal of Application for Disqualification and Withdrawal of Judge, 13 March 2003 (“Galić Appeal Decision”), para. 8. Note that while there was no interlocutory appeal from a decision pursuant to Rule 15(B) of the Rules, the matter can be raised in an appeal against conviction, see ibid.; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), para. 31.

[2] Galić Appeal Judgement, para. 31.

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Notion(s) Filing Case
Decision on Sanctions - 26.06.2009 NSHOGOZA Léonidas
(ICTR-07-91-A)

26. The Appeals Chamber recalls that neither the Statute nor the Rules provide a right of appeal from sanctions imposed pursuant to Rule 46 of the Rules.[1] Accordingly, a Trial Chamber’s exercise of its discretion under that rule is not subject to review by the Appeals Chamber. However, in the instant case, the Counsel not only challenges the particulars of the Trial Chamber’s exercise of its discretion to impose the impugned sanctions, but also questions the Trial Chamber’s jurisdiction to impose pecuniary sanctions at all under Rule 46 of the Rules. While the Appeals Chamber has no jurisdiction to entertain the appeal from sanctions per se, it does have jurisdiction to consider this latter issue.

27. Rule 46(A) does not explicitly specify the scope for sanctions applied under its authority. The measures identified in paragraphs B and C of Rule 46 are only specific examples of potential means by which a Chamber may sanction a counsel. Nonetheless, the absence of explicit limitations on the sanctions deployed under Rule 46 of the Rules does not mean that the Trial Chamber is free to pronounce any disciplinary measures it deems appropriate.

28. In order to identify the scope of sanctions permitted under Rule 46 of the Rules, it is necessary to consider the rule’s context. The text of Rule 46 itself contains no reference to pecuniary sanctions, even though it does list several potential disciplinary measures. Similarly, the equivalent ICTY rule addressing “Misconduct of Counsel” explicitly limits sanctions to particular penalties which do not include fines.[2] By contrast, other rules, such as Rule 77(G) of the Rules (addressing contempt of the Tribunal), specifically provide for fines in cases of misconduct by individuals, including attorneys.[3] Likewise, Rule 73(F) of the Rules provides that a Chamber may order the non-payment of fees if a counsel brings a motion that is frivolous or an abuse of process.  

29. This examination demonstrates that pecuniary sanctions are not within the permitted scope of penalties that may be applied under Rule 46 of the Rules. The text of the rule itself does not refer to pecuniary sanctions, while provisions such as Rule 77(G) of the Rules provide the means for punishing an attorney’s misconduct through fines where that is deemed appropriate.[4] Given the absence of clear parameters regarding the scope of sanctions permitted under Rule 46, and the context of the Rules, the Appeals Chamber finds that the Trial Chamber acted outside its jurisdiction in imposing pecuniary sanctions on the Counsel pursuant to Rule 46(A) of the Rules.

[1] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.14, Decision on Mathieu Ngirumpatse’s Appeal from the Trial Chamber Decision of 17 September 2008, 30 January 2009, para. 11.

[2] In its relevant part, Rule 46 of the International Criminal Tribunal for Former Yugoslavia (ICTY) Rules of Procedure and Evidence provides as follows:

(A) If a Judge or a Chamber finds that the conduct of a counsel is offensive [...], the Chamber may, after giving counsel due warning:

(i) refuse audience to that counsel; and/or

(ii) determine, after giving counsel an opportunity to be heard, that counsel is no longer eligible to represent a suspect or an accused before the Tribunal pursuant to Rule 44 and 45;

(B) A Judge or a Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in the counsel’s State of admission or, if a university professor of law and not otherwise admitted to the profession, to the governing body of that counsel’s University.

[3] See also Rule 91(G) of the Rules addressing false testimony under solemn declaration.

[4] The Appeals Chamber notes that the Trial Chamber repeatedly threatening to hold the Counsel in contempt. SeeT. 11 March 2009 pp. 9, 11.

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Consolidated Decision on Jurisdiction - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3)

The Appeals Chamber discussed the evolution of its jurisprudence regarding what types of challenges involve subject matter jurisdiction and thus qualify for appeal as of right.

33. The Appeals Chamber recalls that Karadžić’s challenges to the Tribunal’s jurisdiction focus on the mode by which liability is attributed to him. As these challenges do not relate to persons, territories, or time periods,[1] the core issue underlying the Appeals is whether they involve subject matter jurisdiction as defined in Rule 72(D)(iv) of the Rules, and thus may be appealed as of right.[2]

34. Karadžić makes extensive reference to certain decisions, such as Rwamakuba,[3] issued by three judge panels under a previous version of Rule 72 of the Rules.[4] Many of the decisions cited by Karadžić lend some support to the view that even relatively granular issues, such as the contours and elements of mode of liability, could be jurisdictional in nature.[5] However, other decisions issued by these three judge panels advanced a narrower view of jurisdiction under Rule 72 of the Rules.[6] In 2005, a revision to the Rules eliminated Rule 72(E) of the Rules and reverted the question of whether an appeal addressed jurisdictional issues to standard panels of five Appeals Judges.[7] Since that revision of the Rules, the Appeals Chamber’s jurisprudence has gradually resolved previous uncertainty relating to the issue of which questions qualified as jurisdictional challenges.

35. The Appeals Chamber’s most recent jurisprudence on the question of jurisdiction focuses narrowly on the plain text of Rule 72 of the Rules. For example, in Gotovina, the Appeals Chamber dismissed a challenge concerning the applicable mens rea of the third category of JCE, as it determined that the claim was not related to questions of jurisdiction.[8] To the extent the appeal was challenging the definition and interpretation of a particular element of the mode of liability, the Appeals Chamber found that “[s]uch an argument goes to the pleading practice and the form of the indictment and is not a challenge to jurisdiction”.[9] The Appeals Chamber also adopted this approach in its Tolimir Decision. There, the appellant challenged the applicability of JCE to establishing responsibility for the crimes of genocide and conspiracy to commit genocide. In rejecting his appeal, the Appeals Chamber concluded that “though at first glance [the appeal seemed] somewhat related to subject-matter jurisdiction”, it involved non-jurisdictional issues that could be resolved during the course of trial.[10]

36. As Tolimir and Gotovina demonstrate, the Appeals Chamber’s approach to subject matter jurisdiction now focuses on whether the crime charged is envisioned by the statute, and whether the mode of liability upholds the principle of individual criminal responsibility; the contours and elements of modes of liability are considered an “issue[ ] of law . . . which can be properly advanced and argued during the course of trial”.[11]

37. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reliance on the Appeals Chamber’s distillation of case law on the scope of jurisdictional appeals as set out in Gotovina and Tolimir.[12] For the foregoing reasons, the Appeals Chamber finds that Karadžić fails to raise a proper jurisdictional challenge pursuant to Rule 72 of the Rules.

The Appeals Chamber also recalled the standard of appellate review of decisions concerning jurisdictional challenge (paras 9-10).

[1] Rule 72(D)(i)-(iii) of the Rules, IT/32/Rev. 36 (21 July 2005).

[2] Karadžić does not contend that the Appeals related to personal, territorial or temporal jurisdiction.

[3] Rwamakuba Decision on Jurisdiction [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44-AR72.4, Decision on Validity of Appeal of André Rwamakuba Against Decision Regarding Application of Joint Criminal Enterprise to the Crime of Genocide Pursuant to Rule 72(E) of the Rules of Procedure and Evidence, 23 July 2004] (commenting on the corresponding ICTR rule, which is equivalent in all relevant respects). 

[4] See, e.g., Rule 72(E) of the Rules, IT/32/Rev. 34 (22 February 2005).

[5] See, e.g., [ešelj Decision on Jurisdiction [The Prosecution v. Vojislav [ešelj, Case No. IT-03-67-AR72.1, Decision on Validity of Appeal of Vojislav [ešelj Challenging Jurisdiction and Form of Indictment, 29 July 2004]; Hadžihasanović Decision on Jurisdiction [Prosecutor v. Enver Hadžihasanović et al., Case No. IT-01-47-AR72, Decision Pursuant to Rule 72(E) as to Validity of Appeal, 21 February 2003].

[6] See, e.g., Joseph Nzirorera v. The Prosecutor, Case No. ICTR-98-44-AR72, Decision Pursuant to Rule 72(E) of the Rules of Procedure and Evidence on Validity of Appeal of Joseph Nzirorera Regarding Chapter VII of the Charter of the United Nations, 10 June 2004 (rejecting an interlocutory appeal as failing to raise a jurisdictional challenge because Rule 72(D) is narrow in scope in permitting appeals as of right).

[7] Compare Rule 72 of the Rules, IT/32/Rev. 34 (22 February 2005), with Rule 72 of the Rules, IT/32/Rev. 36 (21 July 2005); see, e.g., [ešelj Decision on Jurisdiction.

[8] Gotovina Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal Against Decision on Several Motions Challenging Jurisdiction, 6 June 2007], para.24.

[9] Ibid. [Gotovina Decision] at para. 24.

[10] Tolimir Decision [Prosecutor v. Zdravko Tolimir, IT-05-88/2-AR72.1, Decision on Tolimir’s “Interlocutory Appeal Against the Decision of the Trial Chamber on the Part of the Second Preliminary Motion Concerning the Jurisdiction of the Tribunal”, 25 February 2009], paras 7, 10; see also Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Six Preliminary Motions Challenging Jurisdiction, 28 April 2009], para. 31. In 2007, the Appeals Chamber also noted that a broad based challenge to indirect modes of perpetration and aiding and abetting was jurisdictional, though it initially dismissed this challenge on other grounds. See Prosecutor v. Jadranko Prlić et al, Case No. IT-04-74-AR72.2, Decision on Petković’s Appeal Against Decision on Defence Motion to Strike the Amended Indictment, 4 June 2007, paras 3-5;  Prosecutor v. Jadranko Prlić et al, Case No. IT-04-74-AR72.3, Decision on Petković’s Appeal on Jurisdiction, 23 April 2008, paras 19-22.    

[11] Tolimir Decision, paras 7, 10 (internal quotations omitted); see also Gotovina Decision, paras 22-24.

[12] Impugned Decision, paras 30-32.

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Consolidated Decision on Jurisdiction - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3)

As one of preliminary matters, Karadžić argued that the Trial Chamber erred in considering his six, allegedly distinct and unrelated motions, in one consolidated decision thus violating his right to reasoned opinion. The Appeals Chamber clarified:

27. The Appeals Chamber recalls that the Trial Chamber is endowed with a considerable degree of discretion in deciding issues of practice and procedure, including the issue of whether to consider similar motions together.[1] To this extent, the Appeals Chamber notes that the joint consideration of the six motions submitted by Karadžić does not per se amount to an error. [See also infra, para. 28.]

30. With respect to Karadžić’s claim that the Impugned Decision lacked reasoned support, the Appeals Chamber emphasises that while a Trial Chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision, it is not required to articulate every step of its reasoning.[2] Nor is the Trial Chamber required to discuss at length all the Tribunal’s case-law on a certain legal issue. Rather, it must identify the precedents on which its findings are based.[3]

31. In the instant case, in determining that none of the six motions submitted by Karadžić amounts to a challenge to jurisdiction within the terms of Rule 72(D)(iv), the Trial Chamber considered the Tribunal’s jurisprudence where “challenges of a similar nature” have been brought.[4] […] Having satisfied itself that the Preliminary Motion raised similar challenges as discussed in the cited jurisprudence, the Trial Chamber concluded that “[f]or these reasons […] none of the Motions amounts to a challenge to jurisdiction within the terms of Rule 72(D)(iv)”.[5]

32.     While it may have been desirable for the Trial Chamber to indicate explicitly the relevance of the cited jurisprudence to the Motions on Omission Liability and Superior Responsibility, Karadžić fails to show that the Trial Chamber’s reasoning, as a whole, was insufficient. As to the Motion on Special Intent Crimes, the Trial Chamber explicitly observed that the arguments advanced by Karadžić are similar to those discussed and dismissed by the Appeals Chamber in the Tolimir Decision.[6] Accordingly, the Appeals Chamber rejects Karadžić’s submission that the Trial Chamber failed to provide sufficient reasoning in dismissing the jurisdictional nature of the motion.

[1] Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para 4, citing Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 3.

[2] Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Judgement, 3 April 2007, para. 39, citing Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 6 November 2001, para. 18.

[3] Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Judgement, 22 April 2008, para. 13.

[4] Impugned Decision, para. 31.

[5] Ibid. [Impugned Decision ], para. 32.

[6] Ibid. [Impugned Decision], para. 31.

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Consolidated Decision on Jurisdiction - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3)

28. With respect to Karadžić’s decision to file several separate appeals against the Impugned Decision, the Appeals Chamber agrees with the Prosecution that this is not standard practice. If a party could file an unlimited number of appeals against one decision, provisions regulating the interlocutory appeals, such as word limitation,[1] would be devoid of any sense. The proper procedure for Karadžić would thus generally be to file one appeal against the Impugned Decision, applying for extension of the word limit if necessary. Given the very particular context of these appeals, especially the wide range of issues addressed in the Impugned Decision, the filing of more than one appeal was potentially justifiable. In any event, the Appeals Chamber finds that it would not be in the interests of judicial expediency to order Karadžić to re-file his submissions in this case, and notes that no party has been prejudiced in the circumstances given that separate responses and replies were subsequently filed. In turn, the fact that the Appeals Chamber accepts these appeals as validly filed does not preclude it from rendering its decisions in a consolidated manner, if and where appropriate.[2]

 

[1] See Practice Direction on the Length of Briefs and Motions, IT/184 Rev.2, 16 September 2005, at 3.

[2] The Appeals Chamber underscores that its flexibility in this case is exceptional, and notes that in future it may well require re-filing of submissions where multiple appeals are filed against a single decision.

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Decision on JCE III Foreseeability - 25.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR72.4)

In its Impugned Decision,[1] the Trial Chamber held that the most appropriate formulation for the mental element of the third form of JCE (“JCE III”) is “reasonably foreseeable consequences”,[2] i.e. “foresight by the accused that the deviatory crimes would probably be committed”,[3] as opposed to the Indictment’s reference to “possible consequence”.[4] It further noted that “while subsequent jurisprudence has referred on various occasions to possibility and probability, there does not appear to have been a rejection at any stage of the test set in [the] Tadić [Appeal Judgement]”.[5]

The Appeals Chamber clarified the existing jurisprudence, stating that

14. […] the Tadić Appeal Judgement deploys a range of diverse formulations in setting out the mens rea element of JCE III.[6] These include several formulations that tend more towards a possibility than a probability standard. For example, one paragraph of the Tadić Appeal Judgement partly defines the mens rea of JCE III as requiring “the foreseeability of the possible commission by other members of the group of offences that do not constitute the object of the common criminal purpose”,[7] while another partly summarizes the requirement as: “it was foreseeable that […] a crime might be perpetrated by one or other members of the group”.[8] The variable formulations present in the Tadić Appeal Judgement at minimum suggest that it did not definitively set a probability standard as the mens rea requirement for JCE III.[9]

15. While the Tadić Appeal Judgement does not settle the issue of what likelihood of deviatory crimes an actor must be aware of to allow conviction under JCE III, subsequent Appeals Chamber jurisprudence does. For example, the Brđanin Appeal Judgement explained that:

[in the case of] crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated … in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk – that is the accused, with the awareness that such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise.[10]

More broadly, a significant number of Appeals Judgements have adopted formulations suggestive of a possibility standard rather than a probability one. Thus, the Vasiljević, Brđanin, Stakić, Blaškić, Martić and Krnojelac Appeal Judgements all deploy the Tadić Appeal Judgement phrase “foreseeable that such a crime might be perpetrated” in defining the JCE III mens rea requirement.[11] Most of these Appeal Judgements further explain that liability attaches even if an actor knows that perpetration of a crime is only a “possible consequence” of the execution of the common purpose.[12] 

16. Much of the jurisprudence that Karadžić advances in support of a probability standard does not support his point or is at best ambiguous.[13] Thus the Blaskić Appeal Judgement, which Karadžić claims “rejected the lower mens rea standard proposed by the [P]rosecution”[14] actually states with regards to JCE III mens rea that: “criminal responsibility may be imposed upon an actor for a crime falling outside the originally contemplated enterprise, even where he only knew that the perpetration of such a crime was merely a possible consequence, rather than substantially likely to occur”.[15] Karadžić is also mistaken in suggesting that the Krstić Appeal Judgement is inconsistent with a “possibility standard”. The Appeals Chamber used the ambiguous phrase “probability that other crimes may result” in defining the mens rea for JCE III,[16] a formulation that is potentially consistent with a possibility standard, especially in the context of prior and subsequent Appeals Chamber Judgements.[17] 

The Appeals Chamber emphasized that the probability standard adopted in paragraph 5 of the Brđanin Decision[18] has been implicitly overruled by subsequent Appeals Chamber’s jurisprudence, including the Brđanin and Blaškić Appeal Judgements.[19]. In the present decision, the Appeals Chamber identified the level of certainty required to meet the JCE III mens rea standard:

18. Reviewing the Appeals Chamber’s jurisprudence convincingly demonstrates that JCE IIImens rea does not require a “probability” that a crime would be committed. Thus it is not necessary to address Karadžić’s contentions regarding customary international law. It is, however, worth noting that the term “possibility standard” is not satisfied by implausibly remote scenarios. Plotted on a spectrum of likelihood, the JCE III mens rea standard does not require an understanding that a deviatory crime would probably be committed; it does, however, require that the possibility a crime could be committed is sufficiently substantial as to be foreseeable to an accused. The Indictment pleads just such a standard.[20]

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Six Preliminary Motions Challenging Jurisdiction, 28 April 2009 (“Impugned Decision”).

[2] Ibid. para. 56.

[3] Ibid. para. 55.

[4] Indictment para. 10; see also Impugned Decision, paras 50, 56.

[5] Impugned Decision, para. 55.

[6] See id., paras 49-50, Response [Response to Prosecution Appeal of Decision on JCE III – Foreseeability, 25 May 2009], para. 29.

[7] Tadić Appeal Judgement, para. 220.

[8] Ibid. [Tadić Appeal Judgement] para. 228 (emphasis omitted).

[9] Insofar as the Impugned Decision suggests that paragraph 232 of the Tadić Appeal Judgement, which states that Tadić “was aware that the actions of the group of which he was a member were likely to lead to [...] killings” definitively settled on a probability standard, see para. 50, it would appear to be mistaken. The Appeals Chamber’s factual conclusion demonstrated that Tadić either met or exceeded the standard for JCE III mens rea, but did not definitively indicate where the standard lay on any spectrum of likelihood.

[10] Brđanin Appeal Judgement, para. 411 (emphasis added). See also ibid. para. 365.

[11] Vasiljević Appeal Judgement, para. 101; Brđanin Appeal Judgement, paras. 365, 411; Stakić Appeal Judgement, para. 65; Blaškić Appeal Judgement, para. 33; Martić Appeal Judgement, para. 168; Krnojelac Appeal Judgement, para. 32 (emphases, citations and quotations omitted). See also Kvočka Appeal Judgement, para. 83.

[12] Vasiljević Appeal Judgement, para. 101; Brđanin Appeal Judgement, para. 411; Stakić Appeal Judgement, para. 87; Blaškić Appeal Judgement, para. 33. See also Deronjić Appeal Judgement, para. 44.

[13] Karadžić does accurately contend that the Gotovina Decision [Prosecutor v. Gotovina et al., Case No. IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal Against Decision on Several Motions Challenging Jurisdiction, 6 June 2007] is not relevant to determining the standard of mens rea required for JCE III, see Response, para. 20. The Gotovina Decision simply decided that the specifics of JCE III mens rea did not qualify as a jurisdictional question, see para. 24. Thus it supports neither Karadžić’s nor the Prosecution’s contentions.  

[14] Response, para. 16 (emphasis omitted).

[15] Blaškić Appeal Judgement, para. 33.

[16] Krstić Appeal Judgement, para. 150 (emphasis added).

[17] Paragraph 147 of the Krstić Appeal Judgement, contrary to Karadžić’s contentions, Response para. 24, simply states the level of certainty that Krstić enjoyed, rather than defining the minimum required level of JCE III mens rea.

[18] Prosecutor v. Brđanin, Case No. IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004.

[19] Brđanin Appeal Judgement, para. 365; Blaškić Appeal Judgement, para. 33.

[20] Cf. Tadić Appeal Judgement, para. 204; Kvočka Appeal Judgement, para. 86; Impugned Decision, para. 56.

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Decision on Severance - 19.06.2009 KAREMERA et al.
(ICTR-98-44-AR73.16)

17. The state of Mr. Ngirumpatse’s health and his prognosis for recovery lie at the core of the Trial Chamber’s decision to deny the request for a further stay of proceedings and instead to sever him from the case. In refusing to order a further stay, the Trial Chamber dismissed as “highly speculative” Mr. Ngirumpatse’s claim that his health might sufficiently improve within three months to allow him to more actively participate in his defence from his hospital bed.[1] […]

18. Rule 82(B) of the Rules provides that a “Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.” In severing Mr. Ngirumpatse, the Trial Chamber concluded principally that there was a conflict of interests among the Appellants as a result of the prejudice Mr. Karemera and Mr. Nzirorera would suffer if the proceedings were stayed until Mr. Ngirumpatse became fit to attend trial.[2] The Trial Chamber noted that, “according to the doctor’s assessment”, Mr. Ngirumpatse “will, in the best case, not be fit to attend trial before nine months.”[3] The Trial Chamber also considered the interests of justice, namely, the interests of the victims and the international community that trials concerning serious crimes be completed without unnecessary delays.[4] It also noted that severance “significantly serves judicial economy”.[5]

19. The Appeals Chamber notes that, in practice, Trial Chambers generally consider various professional opinions before taking an important procedural decision arising from an accused’s medical condition which may impact the course of a trial.[6] In this respect, Rule 74bis of the Tribunal’s Rules of Procedure and Evidence (“Rules”) expressly provides that “a Trial Chamber may, proprio motu or at the request of a party, order a medical […] examination of the accused.”

20. In the present case, the Trial Chamber relied exclusively on the assessment of the Tribunal’s Chief Medical Officer.[7] As a preliminary matter, the Appeals Chamber finds no merit in Mr. Nzirorera’s submission that the Trial Chamber erred in not requiring the Chief Medical Officer to take the oath prescribed for witnesses in Rule 90(B) of the Rules.[8] The Chief Medical Officer did not appear as a witness, rather, her assessment, like other information submitted by the witness protection or defence counsel management section, is akin to a submission under Rule 33(B) of the Rules.

22.     It is appropriate to take proper account of an assessment made by the Chief Medical Officer and, in some cases, to rely exclusively on it. However, the Appeals Chamber considers that particular care is warranted where, as here, the assessment is provisional and lacking in detail, is disputed by the parties, and plays a significant role in the Trial Chamber’s assessment of prejudice. The Appeals Chamber also observes that the Trial Chamber had no specific information concerning the nature of Mr. Ngirumpatse’s medical problem. While a Trial Chamber may adopt reasonable measures to protect the privacy interests of an accused, these measures cannot serve to deprive it of information essential to reaching an informed decision. In view of the foregoing, the Appeals Chamber finds that, in this instance, the Trial Chamber reached its conclusions on prejudice without having assessed all relevant factors. It therefore committed a discernible error in the exercise of its discretion. […]

[1] Impugned Decision, paras. 25, 26.

[2] Impugned Decision, para. 43.

[3] Impugned Decision, para. 54.

[4] Impugned Decision, para. 54.

[5] Impugned Decision, para. 54.

[6] See, e.g., Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Prosecution Motion for Re-Assessment of Jovica Stanišić’s Health and Re-Commencement of Trial and Decision on Prosecution Motion to Order Further Medical Reports on Jovica Stanišić’s Health, 17 December 2008, para. 6 (“Stanišić and Simatović Trial Decision”) (in assessing whether to further adjourn proceedings based on the chronic health problems of Jovica Stanišić, the Trial Chamber considered at least 11 medical reports from numerous experts); The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Nsengiyumva’s Motions to Call Doctors and to Recall Eight Witnesses, 19 April 2007, paras. 4-6, 13 (considering several detailed medical reports on the Accused’s fitness to stand trial submitted by the Tribunal’s Chief Medical Officer, surgical consultants, and the Accused’s personal physician); Slobodan Milosević v. Prosecutor, Case No. IT-02-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 6 (in assigning Slobodan Milosević court appointed counsel based on “mounting health problems”, the Trial Chamber ordered two separate medical examinations by his treating physician and an independent cardiologist with no prior involvement in the case); Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36-T, Decision on Prosecution’s Oral Request for the Separation of Trials, 20 September 2002, paras. 5-10 (in severing Momir Talić based on health consideration, the Trial Chamber considered reports from the Medical Officer at the detention unit, which it confirmed after appointing two medical experts and holding an evidentiary hearing).

[7] Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Continuation of Trial, 3 March 2009], para. 23. The Trial Chamber noted that the Chief Medical Officer’s assessment was made “in consultation and agreement” with Mr. Ngirumpatse’s treating physicians. The Trial Chamber did not consult directly with the attending doctors.

[8] Nzirorera Appeal [Édouard Karemera et al v. The Prosecutor, Case No. ICTR-98-44-AR73.16, Joseph Nzirorera’s Appeal from Decision to Sever Case of Mathieu (sic) Ngirumpatse, 2 April 2009], paras. 41-49.

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Decision on Request for Conference with Former Legal Team - 18.06.2009 MUSEMA Alfred
(ICTR-96-13-R)

Musema was convicted to life imprisonment and transferred to the Republic of Mali for the enforcement of his sentence. In the context of the preparation for review proceedings, Musema seeks the Appeals Chamber's authorization for him to travel to The Hague in order to meet with his former Defence team and receive legal advice on potential grounds of review. Having considered that (i) an applicant for review may be assisted by a counsel in connection with a request for review at his own expense, at the expense of a third party, or on a pro bono basis, provided that the counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal, and that (ii) the counsel representing the applicant on such a basis would be able to obtain access to the trial and appellate record from the Registry or his client and would also be able to meet with his client at his place of detention at his own expense, the Appeals Chamber held:

p. 3: CONSIDERING that nothing in the Statute, Rules of Procedure and Evidence, or practice of the Tribunal provides for the transfer of a convicted person to another State for purposes of meeting with a counsel;

CONSIDERING that, pursuant to Article 4 of the Agreement, the transfer of a person whose sentence is being enforced in the Republic of Mali is envisioned only in the event that the Tribunal orders that the person appear as a witness before it; 

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Decision on Understanding English - 04.06.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.3)

10. The Appellant submits that the Trial Chamber failed to articulate the applicable law on “the legal threshold differentiating an accused who does not understand English for the purposes of the Tribunal’s Statute and Rules, from one who does” and as such failed to correctly distinguish the legal standard applicable to an accused represented by counsel and a self-represented accused.[1] In this respect, he submits that the appropriate standard is the one set out in the Tolimir Appeal Decision that an accused must understand a language “sufficiently in order to allow for the effective exercise of his right to conduct his defence.”[2] He further submits that the Rome Statute of the ICC which sets out that the language to be used is one which the accused “fully understands and speaks”,[3] “provide[s] the best evidence of the applicable legal threshold in international law.”[4]

11. With respect to the Appellant’s reliance on the Rome Statute, the Appeals Chamber recalls that it is not bound by the Rome Statute or Rules of Procedure and Evidence of the ICC, although it may seek guidance from them when appropriate.[5] In the present case, the Appeals Chamber notes that the Tolimir Appeal Decision has already set out the Appeals Chamber’s interpretation of “a language which [the accused] understands” in Article 21(4)(a) of the Statute[6] and that the Appellant does not contest this standard.[7] Furthermore, the Appeals Chamber notes that the Tribunal’s standard on language ability is consistent with other international human rights instruments setting out fair trial rights.[8] In light of this, the Appeals Chamber does not consider it necessary to engage in an analysis of the ICC’s standard regarding the level of language ability required of an accused.

12. As in the current case, the issue in the Tolimir Appeal Decision was the scope and meaning of the right to receive materials in a language that the accused understands in the context of a case with a self-represented accused.[9] The Appeals Chamber in Tolimir considered the meaning of Article 21(4)(a) of the Statute and Rule 66(A) of the Rules and found that the issue “hinges on understanding and not preference.”[10] It continued:

These provisions, when read with the other minimum guarantees provided in Article 21(4) of the Statute, create an obligation to provide relevant material in a language which the accused understands sufficiently in order to allow for the effective exercise of his right to conduct his defence.[11]

The determination of whether an accused possesses a sufficient level of understanding is a factual question and must be made on a case-by-case basis.[12]

13. While the Impugned Decision did not expressly refer to the Tolimir Appeal Decision, the Trial Chamber considered the same provisions in the Statute and the Rules and applied an equivalent standard. After noting Rule 3(A) of the Rules, which provides that the “working languages of the Tribunal shall be English and French”, the Trial Chamber recalled that this rule must be consistent with the right of an accused to a fair trial.[13] In this respect, it quoted from Article 21(4) of the Statute which provides, inter alia, that:

[i]n the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; […][14]

More particularly, it recalled that the materials disclosed to an accused pursuant to Rule 66(A) of the Rules must be “in a language which the accused understands”.[15] It proceeded to consider the materials submitted to it by the Prosecution as evidence of the Appellant’s understanding of the English language[16] before concluding that the Appellant understands English “for the purposes of the Rules and the Statute”.[17] In considering whether the Appellant understands English “for the purposes of the Rules and the Statute” with reference to Article 21(4) of the Statute and Rule 66(A) of the Rules, the Trial Chamber was in effect inquiring as to whether the Appellant “understands sufficiently in order to allow for the effective exercise of his right to conduct his defence.”[18] This is demonstrated by the fact that the Trial Chamber considered not merely the Appellant’s general English language abilities but specifically his ability to undertake tasks required “in the context of a complex criminal trial”[19] such as his ability to converse with his English speaking legal advisers,[20] to respond to questions regarding war crimes allegations[21] and exhibits placed before him,[22] and to draft or approve motions and other submissions filed by him.[23] This shows that although the Trial Chamber did not explicitly refer to the Tolimir Appeal Decision, it applied the same standard. Accordingly, the Appeals Chamber finds no error in the legal standard applied by the Trial Chamber.

15. With regard to the Appellant’s submission that the evidence relating to his language abilities relied on by the Trial Chamber was outdated, the Appeals Chamber notes that while evidence from many years ago may not be conclusive of present language abilities, it is relevant.  In this case, however, while the Trial Chamber took into consideration evidence from 14 to 17 years ago, it also considered more recent evidence. […]

[1] Appeal [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.3, Appeal of Trial Chamber’s Decision on Languages, 29 April 2009], para. 42.

[2] Appeal, para. 45, quoting Tolimir Appeal Decision [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.1, Decision on Interlocutory Appeal Against Oral Decision of the Pre-Trial Judge of 11 December 2007, 28 March 2008], para. 15 (The Appellant cites paragraph 6, however, the quote is actually located in paragraph 15.).

[3]Rome Statute, Article 67(1).

[4] Appeal, para. 46.

[5] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Public Version of the Confidential Decision on the Prosecution’s Motion to Grant Specific Protection Pursuant to Rule 70, 25 July 2002, para. 17, citing Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (“Furundžija Trial Judgement”), para. 227; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 223. See also Prosecutor v. Blagoje Simić, Miroslav Tadić and Simo Zarić, Case No. IT-95-9-T, Judgement, 17 October 2003, fn. 212.

[6] Tolimir Appeal Decision, para. 15.

[7] Appeal, para. 45; Reply, para. 8(iii).

[8] See International Covenant on Civil and Political Rights, Article 14(3); European Convention on Human Rights, Article 6(3); American Convention on Human Rights, Article 8(2). See also Statutes of the International Criminal Tribunal for Rwanda, Article 20(4) and the Special Court for Sierra Leone, Article 17(4).

[9] Tolimir Appeal Decision, para. 14.

[10] Tolimir Appeal Decision, para. 15.

[11] Ibid.

[12] Ibid.

[13] Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Prosecution Motion Seeking Determination that the Accused Understands English for the Purposes of the Statute and the Rules of Procedure and Evidence, 26 March 2009], para. 11.

[14] Ibid.

[15] Impugned Decision, paras 12-13, quoting Rule 66(A) of the Rules.

[16] Impugned Decision, paras 17-21.

[17] Impugned Decision, para. 23.

[18] See Tolimir Appeal Decision, para. 15.

[19] Impugned Decision, para. 20. See also Impugned Decision, paras 18-21.

[20] Impugned Decision, paras 19, 20.

[21] Impugned Decision, para. 18.

[22] Impugned Decision, para. 19.

[23] Impugned Decision, para. 20.

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ICTY Rule Rule 3(B);
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Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

7. The Trial Chamber’s decision in this case to deny admission of a transcript of evidence under Rule 92bis(D) of the Rules to rebut a judicially noticed fact is a discretionary decision to which the Appeals Chamber accords deference.[1]

14. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that the Defence 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 its proper context, through the lens of the general standard for admission of evidence at trial set out in Rule 89(C) of the Rules: “[a] Chamber may admit any relevant evidence which it deems to have probative value”. Only evidence that is reliable and credible may be considered to have probative value.[3]

15. It follows that, as for any other evidence for which no additional requirements have been specified in the Rules, the threshold for admission of this type of rebuttal evidence is relatively low: what is required is not the definitive proof of reliability or credibility of the evidence, but the showing of prima facie reliability and credibility on the basis of sufficient indicia.[4] 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.[5]

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[6] [...]

20. Lastly, the Trial Chamber reasoned that “the very purpose of admitting adjudicated facts would be undermined by permitting a party to admit such evidence” because “[j]udicial economy would not be achieved if parties were entitled to challenge adjudicated facts with evidence that has already been rejected in relation to that finding.”[7] In this respect, the Appeals Chamber underscores that the principle of judicial economy must yield to the fundamental right of the accused to a fair trial. A Trial Chamber cannot deny the Defence its right to put the adjudicated fact into question by introducing evidence to the contrary simply because it would frustrate judicial economy. Further, the Appeals Chamber emphasizes that Rule 94(B) of the Rules fosters judicial economy by avoiding the need for evidence in chief to be presented in support of a fact already previously adjudicated. Hence, the purpose of judicial economy underlying Rule 94(B) of the Rules is not frustrated by the admission of rebuttal evidence.

21. Similarly, the fact that the judicial notice mechanism was also created to favour consistency and uniformity of the case-law cannot be a matter that weighs against the admissibility of rebuttal evidence. In this respect, the Appeals Chamber stresses that adjudicated facts that are judicially noticed by way of Rule 94(B) of the Rules remain to be assessed by the Trial Chamber to determine what conclusions, if any, can be drawn from them when considered together with all the evidence brought at trial. The Rule 94(B) mechanism does not allow a Chamber to simply defer to the assessment of the evidence by another Chamber on the ground that this mechanism was fashioned to favour consistency and uniformity in the Tribunal’s case-law. 

22. The Appeals Chamber concludes that the Trial Chamber incorrectly applied the governing law in finding that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[8] This approach would have the effect of denying to the opposite party its fundamental right to contest the material admitted by rebutting the presumption created by the admission of the adjudicated fact. In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

[1] As regards the general discretion afforded to Trial Chambers in determining the admissibility of evidence, see, e.g.: Prosecutor v. Jadranko Prlić et al., Case No. IT-04-14-AR73.13, Decision on Jadranko Prlić’s Consolidated Interlocutory Appeal Against the Trial Chamber’s Orders of 6 and 9 October 2008 on Admission of Evidence, 12 January 2009 (“Prlić et al. Appeal Decision”), para. 5; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.3, Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness, 1 February 2008, para. 31; Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, 27 November 2007 (“Simba Appeal Judgement”), para. 19; Pauline Nyiramasuhuko v. The Prosecutor, Decision on Pauline Nyiramasuhuko’s Appeal on the Admissibility of Evidence, Case No. ICTR-98-42-AR73.2, 4 October 2004 (“Nyiramasuhuko Appeal Decision”), para. 7.

[2] Karemera et al. Appeal Decision on Judicial Notice [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], paras. 42, 49. See also Dragomir Milošević Appeal Decision [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], para. 17.

See Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Judgement (“Naletilić and Martinović Appeal Judgement”), para. 402, citing Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal Against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998 (“Delalić et al. Appeal Decision”), para. 20: “The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value.”  See also Prosecutor v. Zlatko Aleksovski, Case No. IT- 95-14/1-AR73, Decision on Prosecution’s Appeal on Admissibility of Evidence, 16 February 1999, para. 15 (dealing with hearsay evidence); 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 (“Kordić Appeal Decision”), paras. 22-24; The Prosecution v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgment, 1 June 2001 (“Akayesu Appeal Judgement”), para. 286; Alfred Musema v. The Prosecution, Case No. ICTR-96-13-A, Judgement, 16 November 2001 (“Musema Appeal Judgement”), para. 46; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.2, Decision on Joint Defence Interlocutory Appeal Concerning the Status of Richard Butler as an Expert Witness, 30 January 2008 (“Popović et al. Appeal Decision”), para. 22; Prosecutor v. Popović et al., Case No. IT-05-88-AR73.3, Decision on Appeals Against Decision on Impeachment of a Party’s Own Witness, 1 February 2008, para. 31; Prlić et al. Appeal Decision, para. 15. In this respect, the Appeals Chamber repeatedly held that a piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative: Prlić et al. Appeal Decision, para. 15; Nyiramasuhuko Appeal Decision, para. 7; Georges Rutaganda v. The Prosecution, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras. 33, 266; Musema Appeal Judgement, para. 46; Akayesu Appeal Judgement, para. 286; Kordić Appeal Decision, para. 24

[4] Naletilić and Martinović Appeal Judgement, para. 402; Delalić et al. Appeal Decision, paras. 17, 20. See also Prlić et al. Appeal Decision, para. 15; Popović et al. Appeal Decision, para. 22; Nyiramasuhuko Appeal Decision, para. 7; Rutaganda Appeal Judgement, paras. 33, 266; Musema Appeal Judgement, para. 47; Akayesu Appeal Judgement, para. 286. The Appeals Chamber notes that the large majority of the appeal decisions on the issue of admissibility of evidence at trial only refer to the requirement of “reliability”, without explicitly mentioning the requirement of “credibility”. Given the large meaning of the term “reliability”, the Appeals Chamber considers that the requirement of prima facie reliability indisputably encompasses the requirement of prima facie credibility.

[5] See, e.g., Popović et al. Decision, para. 21; Nyiramasuhuko Appeal Decision, para. 7; Rutaganda Appeal Judgement, fns. 63, 425. 

[6] Impugned Decision [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s Application for Certification to Appeal the Decision Denying His Motion to Admit Testimony of Elizaphan Ntakirutimana, 24 March 2009], para. 12.

[7] Impugned Decision, para. 12.

[8] Impugned Decision, para. 12. 

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Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[1] In support of its finding, the Trial Chamber reasoned that the original Trial Chamber “was in a much better position to make determinations regarding reliability and credibility than [it], having heard the evidence viva voce”.[2] The Appeals Chamber considers that, in stating so, the Trial Chamber disregarded the fact that the assessment of admissibility criteria must be done on a case-by-case basis,[3] in light of the specific circumstances of each case. It overlooked the fact that the probative value of a piece of evidence may be assessed differently in different cases, depending on the rest of the evidence and other relevant circumstances.[4] While the prior assessment of the evidence by another Trial Chamber is a factor that may be taken into account in the assessment of its probative value, it does not relieve the Trial Chamber of its obligation to assess the admissibility of the evidence in the context of the case before it.

17. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that 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. For this reason, they cannot simply be accepted, by mere virtue of their acceptance in the first proceeding, as conclusive in proceedings involving different parties who have not had the chance to contest them.[5]

This is also the case for credibility findings in another case: the finding on the credibility and reliability of Ntakirutimana’s testimony in his own trial cannot be accepted as conclusive in the present proceedings by the mere virtue of the fact that it was reached by the Ntakirutimana Trial Chamber.

18. In this case, the Trial Chamber denied the admissibility of Ntakirutimana’s testimony into evidence on the basis that the Ntakirutimana Trial Chamber had found it to be less reliable than another testimony.[6] That is, instead of examining for itself whether Ntakirutimana’s testimony was prima facie reliable and credible, the Trial Chamber erroneously relied on the final evaluation of its reliability and credibility by another Trial Chamber and accepted that negative assessment as determinative of the admissibility of the evidence.

19. The Trial Chamber further reasoned that to re-engage in an assessment of the reliability and credibility of Ntakirutimana’s testimony “would essentially be acting in review of another Chamber, and therefore outside of its jurisdiction”.[7] The Appeals Chamber disagrees. As noted above, the final assessment of the weight of a piece of evidence is based on the totality of the evidence in a given case. Naturally, the same piece of evidence can be assessed differently in different cases because of other evidence on the record therein. Therefore, a Trial Chamber’s assessment of a piece of evidence from another case does not involve a review of a decision of another Trial Chamber. Moreover, in this respect, the Appeals Chamber recalls that “the final adjudication of facts in judicial proceedings is treated as conclusively binding only, at most, on the parties to those proceedings”.[8]

22. [...] In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

[1] Impugned Decision, para. 12.

[2] Impugned Decision, para. 12.

[3] Prlić et al. Appeal Decision, paras. 15, 25; Popović et al. Appeal Decision, para. 21.

[4] Simba Appeal Judgement, para. 132.

[5] Karemera et al. Appeal Decision on Judicial Notice, para. 40.

[6] Impugned Decision, paras. 12, 13.

[7] Impugned Decision, para. 12.

[8] Karemera et al. Appeal Decision on Judicial Notice, para. 42. 

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ICTR Rule Rule 89(C);
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Decision on Rebuttal Evidence - 29.05.2009 KAREMERA et al.
(ICTR-98-44-AR73.17)

13. The Appeals Chamber recalls that facts judicially noticed pursuant to Rule 94(B) of the Rules are merely presumptions that may be rebutted with evidence at trial.[1] The legal effect of judicially noticing an adjudicated fact is only to relieve the Prosecution of its initial burden to produce evidence on the point; the defence may put the adjudicated fact into question by introducing evidence to the contrary.[2]

[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 Appeal Decision”), para. 16, citing Karemera et al. Appeal Decision on Judicial Notice, para. 42;  See also Momir Nikolić v. Prosecutor, Case No. IT-02-60/1-A, Decision on Appellant’s Motion for Judicial Notice, 1 April 2005 (“Nikolić Appeal Decision”), para. 11; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.5, Decision on the Prosecution’s Interlocutory Appeal Against Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts, 28 October 2003 (“Slobodan Milošević Appeal Decision”), p. 4.

[2] Dragomir Milošević Appeal Decision, para. 16; Karemera et al. Appeal Decision on Judicial Notice, paras. 42, 49. 

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3. Pursuant to Rule 65(I) of the Rules, a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that: (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[3] Finally, the discretionary assessments of the requirements under Rule 65 of the Rules are made on a case-by-case basis.[4]

[1] Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release on the Grounds of Compassion, 2 April 2009, (confidential) (“Lazarević Decision”), para. 4; Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Decision on Johan Tarčulovski’s Motion for Provisional Release, 18 December 2008, (confidential) (“Tarčulovski Decision”), para. 3; Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Application for Provisional Release Pursuant to Rule 65(I), 29 April 2008, (confidential) (“Milošević Decision”), para. 3.

[2] Lazarević Decision, para. 4; Tarčulovski Decision, para. 3; Milošević Decision, para. 3.

[3] Lazarević Decision, para. 4; Tarčulovski Decision, para. 3; Milošević Decision, para. 3.

[4] Lazarević Decision, para. 4; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the Grounds of Compassion, 2 April 2008, Public Redacted Version (“Strugar Decision of 2 April 2008”), para. 11, referring to Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008, para. 7.

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13. In assessing whether the appellant will pose a danger to any victim, witness or other person if released, the Appeals Chamber acknowledges that the Trial Chamber described in the Trial Judgement the particular circumstances of this case, including that “[t]he difficulty in obtaining evidence was a prominent feature of this trial and a few witnesses who were expected to give evidence on central aspects of the case were never heard”.[1] It further considers that, in its appeal, the Prosecution requests a retrial for Brahimaj and his two co-accused, and seeks to adduce the evidence of certain witnesses.[2] The Appeals Chamber also notes that the Prosecution opposes Brahimaj’s provisional release because the “potential risk” of witness intimidation[3] “remains a continuing concern in light of the relief being sought”.[4] 

14. Nonetheless, the Appeals Chamber considers that a number of circumstances tip the balance in favour of meeting the second requirement of Rule 65(I) of the Rules. First, the Appeals Chamber notes that, while a retrial could be ordered as a result of the Prosecution appeal, it is also the case that Brahimaj could be acquitted or his sentence could be decreased as a result of his appeal.[5] The Appeals Chamber considers that it is not likely that Brahimaj will pose a danger to potential witnesses at this stage of proceedings as the outcome of the case is unforeseeable and a retrial is only one of the possible outcomes. Second, the Appeals Chamber notes that Brahimaj points out that each of the potential Prosecution witnesses lives outside Kosovo (where he seeks permission to be provisionally released),[6] and that the Prosecution does not challenge this allegation.[7] Third, the Appeals Chamber considers that an assessment of danger posed to victims, witnesses or others cannot be made in the abstract and that there is no substantiated indication from the Prosecution that Brahimaj will seek to intimidate witnesses.[8] The Appeals Chamber is further satisfied that Brahimaj’s past period of provisional release was without incident.[9] In view of these factors, the Appeals Chamber finds that Brahimaj, if provisionally released, would not endanger victims, witnesses or other persons, as required by Rule 65(I)(ii) of the Rules.

[1] Trial Judgement [Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, Judgement, 3 April 2008], para. 28l; see also paras 22-27.

[2] See Prosecution Appeal Brief [16 July 2008 (confidential)(“Prosecution Appeal Brief”)], “Ground I: Breach of Prosecution’s Fair Trial Right under Article 20(1) of the Statute”, para. 43; see also paras 3-42.

[3] Response [Prosecution’s Response to Lahi Brahimaj’s Application for Provisional Release, 25 March 2009], para. 2.

[4] Response, para. 5.

[5] See Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Dario Kordić’s Request for Provisional Release, 19 April 2004, para. 8.

[6] Application, para. 11; see also Prosecution Appeal Brief, 16 July 2008, para. 14.

[7] In its Response, the Prosecution makes no express response to the claim in the Application that neither of its potential witnesses resides in Kosovo.

[8] See Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on the Motion of Veselin Šljivančanin for Provisional Release, 11 December 2007 (“Šljivančanin Decision”), p. 2.

[9] Trial Judgement, p. 284, para. 16. 

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16. […] the Appeals Chamber recalls that detention for a substantial period of time may amount to a special circumstance within the meaning of Rule 65(I)(iii) of the Rules.[1] A determination must, however, be made on a case-by-case basis.[2] In the context of this case, taking into account that a date for hearing the appeal has not yet been set, as well as the good behaviour shown by Brahimaj whilst in detention, the fact that Brahimaj’s past period of provisional release did not give rise to any concerns and the fact that he has served two-thirds of his sentence, the Appeals Chamber finds that special circumstances warranting Brahimaj’s provisional release have been established.[3]

[1] Prosecutor v. Astrit Haraquija and Bajrush Morina, Case No. IT-04-88-R77.4-A, Decision on Motion of Astrit Haraqija for Provisional Release, 8 April 2009, para. 12; Prosecutor v. Astrit Haraquija and Bajrush Morina, Case No. IT-04-88-R77.4-A, Decision on Motion of Bajrush Morina for Provisional Release, 9 February 2009 (“Morina Decision”), para. 10; [Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motion on Behalf of Enver Hadžihasanović for Provisional Release, 20 June 2007 (“Hadžihasanović Decision”)], para. 13 (noting that the Appeals Chamber was “satisfied that detention amounting to approximately two-thirds of a term of imprisonment is sufficiently substantial to constitute a special circumstance”); Šljivančanin Decision, p. 3 (noting that the fact that Šljivančanin had served 90 percent of his sentence imposed by the Trial Chamber constituted a special circumstance); Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Kvočka’s Request for Provisional Release, 17 December 2003, pp. 3-4 (noting that the fact that Kvočka had served around 80 percent of the sentence imposed by the Trial Chamber amounted to a special circumstance).

[2] Hadžihasanović Decision, para. 13.

[3] See Morina Decision, para. 10; Hadžihasanović Decision, para. 13.

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5. The Appeals Chamber recalls that all submissions filed before the Tribunal shall be public unless there are exceptional reasons for keeping them confidential,[1] and that parties shall file public redacted versions of all confidential briefs filed on appeal.[2] The Appeals Chamber notes that the public or confidential status of a filing has no effect on the adjudication schedule of the Appeals Chamber and that this does not constitute an “exceptional reason” to maintain a confidential filing. The Appeals Chamber considers that Brahimaj has provided no reasons justifying the confidential filing in his Confidentiality Notice, nor does the Prosecution in its Response. In light of the foregoing, the Appeals Chamber finds that there is no justification to maintain the confidential status of the Application and the Response.

[1] Cf. Rules 69 and 78 (applicable by virtue of Rule 107) of the Rules. See also Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-A, Decision on the Prosecution Motion on the Filing of the Defence Notice of Appeal, 30 March 2009, p. 2; Prosecutor v. Ferdinand Nahimana, Case No. ICTR-99-52-A, Order to Appellant Hassan Ngeze to File Public Versions of His Notice of Appeal and Appellant’s Brief, 30 August 2007 (“Nahimana et al. Order of 30 August 2007”), p. 2.

[2] Nahimana et al. Order of 30 August 2007, p. 2

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In the previous practice of the Tribunal, guarantees for an accused provisionally released in Kosovo/Kosova have usually been provided by UNMIK. In the present case, after having inquired with both UNMIK and the EULEX-Kosovo Mission, the Appeals Chamber concluded that the latter was best placed to provide the necessary guarantees of compliance with the prescribed conditions of provisional release (see para. 11).   

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