14. The Appeal Chamber notes that protective measures ordered in one proceeding “shall continue to have effect mutatis mutandis in any other proceeding before the Tribunal”.[1] It further recognises that once the Appeals Chamber has granted access to confidential materials from another case, it then determines if and what additional protective measures are necessary in order to “strike a balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information”.[2]

15. The Appeals Chamber finds that existing protective measures should continue to apply to any material released to Perišić. It will further give the opportunity to the parties to the Dragomir Milošević case to request additional protective measures, if they so choose.

6. Rule 75(J) of the Rules of Procedure and Evidence (“Rules”), provides that decisions under paragraph (G) are subject to appeal directly to a full bench of the Appeals Chamber by either party.

10. The Appeals Chamber recalls that where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose for accessing it must be demonstrated.[1] Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought.[2] Such a factual nexus may be established, for example, “if the cases stem from events alleged to have occurred in the same geographic area at the same time,”[3] although this may not always be necessary or sufficient.[4] Rather, a case-specific analysis is required in each instance.[5] A Chamber must be satisfied that the requesting party has established that this material is likely to assist its case materially or that there is at least a good chance that it would.[6]

11. Once it is determined that confidential material filed in another case may materially assist an applicant, the Chamber shall determine which protective measures shall apply to the material, as it is within the Chamber’s discretionary power to strike a balance between the rights of a party to have access to material to prepare its case, and guaranteeing the protection and integrity of confidential information.[7] Failure by the Trial Chamber to apply this approach amounts to a discernible error based on an incorrect interpretation of the governing law.[8]

28. The Appeals Chamber recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal which cannot be easily rebutted.[1] It is for the party challenging the impartiality of a Judge to adduce reliable and sufficient evidence to rebut this presumption of impartiality.[2] The Appeals Chamber will consider, inter alia, whether the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[3]

29. The Appeals Chamber finds that the Appellant makes generalized allegations that are unsupported by any evidence which would lead a reasonable observer to apprehend bias on the part of the Trial Chamber with regard to its findings related to disclosure. The Appeals Chamber further observes that the Trial Chamber’s findings on this issue were in fact in response to a submission on this issue which the Appellant made in his original motion.[4] The Appeals Chamber therefore dismisses this ground of appeal.

23. While the Appeals Chamber considers that a statement made pursuant to Rule 84 bis may touch upon any aspect of the case against the accused, including expert reports, the scope and length of such statements remain under the control of the Trial Chamber.

15. With respect to the timing of giving such statements, the Appeals Chamber is persuaded that the placement of this Rule as part of Rule 84 pertaining to opening statements, together with the clear wording of the Rule itself that such statements be made “[a]fter the opening statements of the parties or, if the defence elects to defer its opening statement pursuant to Rule 84, after the opening statement of the Prosecutor” indicate that statements under this Rule should take place prior to the presentation of evidence by the Prosecution. This conclusion is also supported by the original purpose of the Rule – to “improve case management” by narrowing issues in dispute at the outset at trial[1] – which suggests that such statements should take place prior to the presentation of the prosecution case.

16. In practice, however, while most statements made pursuant to Rule 84 bis of the Rules have taken place at the end of opening statements of the parties,[2] Trial Chambers have on occasion allowed accused persons to make such statements at later stages of the trial proceedings.[3] The Trial Chamber in this case has also indicated that it would allow an accused person to make more than one Rule 84 bis statement.[4] In general, Trial Chambers enjoy a wide margin of discretion in determining matters relating to the admissibility of certain types of evidence at trial, as well as in defining the modalities of the exercise of the rights of the Defence.[5] Recognising that there may be situations in which it may be appropriate to allow a Rule 84 bis statement after the presentation of the Prosecution case, the Appeals Chamber considers that Trial Chambers retain the discretion to allow an accused to make Rule 84 bis statements in later stages of the trial in the interests of justice.

The Registrar issued a decision to monitor all communications between the Accused and his Legal Associates pursuant to Rule 65(B) of the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal (“Rules of Detention”). Following the Accused’s request to review the Registrar’s decision, the Trial Chamber. declared to have jurisdiction to decide the matter and overturned the decision.[1] The Registrar challenged the Trial Chamber’s jurisdiction to review its decisions made pursuant to Rule 65(B) the Rules of Detention. The Appeals Chamber found the following:

15. The jurisprudence on the issue of review of administrative decisions of the Registrar is well-established. In Prosecutor v. Krajišnik, the Appeals Chamber, in the absence of indication as to whom was competent to review a decision of the Registrar under Rule 45 of the Rules of Procedure and Evidence of the Tribunal (“Rules”), noted that power to review a decision of the Registrar as to whether a proposed counsel meets the required qualifications under Rule 44 of the Rules lay with the President of the Tribunal.[2] The Appeals Chamber held that

just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal, and a Chamber may only step in thereafter under its inherent power to ensure that its proceedings are fair.[3]

16. On a similar note, in Prosecutor v. Blagojević, the Appeals Chamber determined that the Trial Chamber erred in finding that it had jurisdiction to consider Blagojević’s request for withdrawal of counsel under its inherent power under Articles 20 and 21 of the Statute. Noting that Article 19 of the Directive on Assignment of Defence Counsel provides that a person may seek the President to review the Registrar’s decisions under this Article, the Appeals Chamber held that a Trial Chamber “cannot appropriate for itself a power which is conferred elsewhere” and that “the only option open to a Trial Chamber […] is to stay the trial until the President has reviewed the decision of the Registrar.”[4]

17. In Nahimana et al. v. Prosecutor, the Appeals Chamber of the International Criminal Tribunal for Rwanda (“ICTR”), seized with a request of Appellant Hassan Ngeze to review an administrative decision of the authorities of the detention facilities, dismissed the motion, after noting that “the complaint procedure for the detention conditions has not been duly followed by the Appellant and that he has not yet exhausted the remedies made available to him by the Detention Rules.”[5]

18. More recently in the same case before the ICTR, the Appeals Chamber, seized of a request to authorise privileged communication between Hassan Ngeze and two legal assistants and one lawyer, noted that the relevant Rules of the Rules of Detention of the ICTR foresaw that “when a detainee is not satisfied with the response of the Commanding Officer […] he or she has the right to make a written complaint to the Registrar who shall forward it to the President of the Tribunal” but that in the case at hand, “the Applicant [had] not exhausted the procedure made available to him under the Detention Rules for consideration of his request”. As a result of the non-exhaustion of  the available procedure, the Appeals Chamber decided not to consider Hassan Ngeze’s motion on the merits.[6]

19. The Appeals Chamber finds that Rule 65(B) of the Rules of Detention is clear in vesting the President with the power to reverse any decision made by the Registrar under this Rule.[7] In the case at hand, the Accused failed to direct an appeal against the Registrar’s Decision of 29 September 2008 to the President of the Tribunal. Therefore, he has not exhausted the procedure made available to him under the Rules of Detention for consideration of his request.

20. The Appeals Chamber agrees with the Registrar that the Accused’s failure to appeal the Registrar’s Decision of 29 September 2008 before the competent body does not grant the Trial Chamber jurisdiction to exercise a power clearly attributed to the President by Rule 65(B) of the Rules of Detention.[8] While mindful of the Trial Chamber’s fundamental duty to ensure the fairness of the proceedings before the Tribunal, the Appeals Chamber recalls that in a case of review of an administrative decision, a Trial Chamber may only step in under its inherent power to ensure that proceedings are fair once all available remedies have been exhausted.[9] Accordingly, the fact that the Statute is superior to the Rules of Detention is of no consequence.

21. Finally, with regard to the issue of concurrent jurisdiction, the Appeals Chamber agrees that the Trial Chamber, by accepting to review the Registrar’s Decision of 29 September 2008, implicitly created a “dual competence on the matter”.[10] Such concurrent jurisdiction to review decisions of the Registrar is not consistent with the exercise of a Trial Chamber’s inherent power to ensure that proceedings are fair only once all available remedies have been exhausted. Accordingly, implying such concurrent jurisdiction constitutes an error of law.

The Appeals Chamber dismissed Milošević’s previous motion seeking to have the same evidence admitted because he did not identify the manner in which that evidence could have affected the Trial Chamber’s findings referred to in the First Motion “or even which particular portions of the Diary would be relevant to such findings”. However, considering the special circumstances related to disclosure of the evidence by the Prosecution, the Appeals Chamber decided to give Milošević a further opportunity to substantiate his claim (see D. Milošević Decision on First Rule 115 Motion).

In this decision, the Appeals Chamber found

19. […] that the Second Motion also fails to meet the requirements of the specificity recalled above.[1] In particular, instead of “specifying with sufficient clarity the impact the additional evidence could have had upon the Trial Chamber’s decision”, Milošević provides a list of the Diary portions identified by dates, often with no reference to a particular part of the entry, which, in his view, could contradict certain paragraphs of the Trial Judgement. Significantly, he does not specify why the Trial Chamber could have come to a different conclusion despite the existence of the evidence it relied upon in the Trial Judgement. This approach does not meet the requirements for the purposes of a motion filed pursuant to Rule 115 of the Rules. In the instances where Milošević refers to the arguments presented in the Defence Appeal Brief regarding the alleged impact on the civilian status of Sarajevo,[2] the Appeals Chamber finds these references insufficient for the purposes of a motion under Rule 115 of the Rules, given that those paragraphs mainly reiterate his arguments rejected by the Trial Judgement without explaining why the Trial Chamber’s relevant conclusions could be different.[3]

20. Consequently, the Appeals Chamber rejects Milošević’s request to have the portions of the Diary admitted as additional evidence on appeal without further analysis. […]

12. The Appeals Chamber has already determined in this case, with respect to Haraqija’s co-accused Bajrush Morina, that the fact that an appellant would have already served the entire sentence imposed by the Trial Chamber were it not for the filing of the notices of appeal may constitute a special circumstance.[1] As Haraqija is in the same position, the Appeals Chamber also considers that special circumstances exist warranting his provisional release.

12. The Appeals Chamber understands from the Impugned Decision that, in the absence of a State’s guarantees, the Trial Chamber considered that it could not be satisfied that, if released, Ngirumpatse would appear for trial. The Appeals Chamber considers that, in concluding that it was not satisfied that Ngirumpatse would not flee if released on this sole basis, the Trial Chamber regarded the production of guarantees as a prerequisite to obtaining provisional release. The Appeals Chamber finds that the Trial Chamber erred in the exercise of its discretion in doing so.

13. The Appeals Chamber has repeatedly held that Rule 65 of the Rules places no obligation upon an accused applying for provisional release to provide guarantees from a State as a prerequisite to obtaining provisional release.[1] Whilst a State’s guarantees may carry considerable weight in support of an application for provisional release, a Trial Chamber is under the obligation to consider all relevant factors which a reasonable Trial Chamber would be expected to take into account before deciding whether the requirements of Rule 65(B) of the Rules have been met.[2] It must also provide a reasoned opinion indicating its view on those relevant factors.[3] In the present case, the Trial Chamber should have primarily considered whether, even in the absence of a State’s guarantees, Ngirumpatse’s personal circumstances could satisfy the Trial Chamber that he would appear for trial if released. Although it is within a Trial Chamber’s discretion to impose the condition of production of guarantees from the potential host State to ensure the presence of the accused at trial pursuant to Rule 65(C) of the Rules,[4] it should not be the threshold consideration. This becomes most relevant where a Trial Chamber has concerns about the applicant’s personal guarantees and considers that assurances from the host State would alter the balance in favour of provisional release.  

5. The Appeals Chamber considers that the issue in the present case is not whether it is competent to issue a writ of mandamus but rather whether the Trial Chamber complied with the Appeals Chamber’s Decision. It is established case-law before the International Tribunal that “a proper construction of the Statute requires that the ratio decidendi of its decisions is binding on Trial Chambers”.[1] When remanding the 9 October 2008 Decision to the Trial Chamber for reconsideration, the Appeals Chamber did not request that the Trial Chamber review its entire decision, but rather that it review it in light of the two errors identified by the Appeals Chamber. To the extent that the Joint Defence now submits that the Trial Chamber failed to address the two errors identified by the Appeals Chamber and thus challenges the same issues for which leave to appeal the 9 October 2008 Decision was originally granted, the Appeals Chamber remains competent to address the Joint Request.[2]