18. […] For a superior to incur criminal responsibility under Article 7(3), in addition to establishing beyond reasonable doubt that his subordinate is criminally responsible, the following elements must be established beyond reasonable doubt:

i) the existence of a superior-subordinate relationship;

ii) that the superior knew or had reason to know that his subordinate was about to commit a crime or had done so; and

iii) that the superior failed to take the necessary and reasonable measures to prevent his subordinate’s criminal conduct or punish his subordinate.[1]

21. Second, Orić argues that superior responsibility under Article 7(3) of the Statute does not encompass criminal conduct by subordinates in the form of aiding and abetting crimes.[1] This is incorrect. The Appeals Chamber has held that superior responsibility encompasses criminal conduct by subordinates under all modes of participation under Article 7(1) of the Statute.[2] It follows that a superior can be held criminally responsible for his subordinates’ planning, instigating, ordering, committing or otherwise aiding and abetting a crime.

58. The Prosecution submits that, in the context of crimes such as those at issue which occur in a prison setting, knowledge of the crimes and knowledge of the subordinates’ criminal conduct “are one and the same.”[1] It argues that “[a]s soon as Orić knew or had reason to know that prisoners were being mistreated and killed, he must also be considered to have known that his subordinates in charge of the prisoners were criminally responsible for that mistreatment.”[2]

59. The Appeals Chamber stresses that knowledge of a crime and knowledge of a person’s criminal conduct are, in law and in fact, distinct matters. Although the latter may, depending on the circumstances, be inferred from the former, the Appeals Chamber notes that such an inference was not made by the Trial Chamber.[3] Its enquiry was limited to Orić’s knowledge or reason to know of the crimes committed in the detention facilities, and so was its conclusion. Therefore, the Appeals Chamber need not consider the Prosecution’s assertion that Orić knew or had reason to know of the crimes themselves.[4]

159. Whether Orić and the Srebrenica Armed Forces Staff had effective control over Mirzet Halilović depended on their “material ability to prevent and punish” the crimes.[1] The Appeals Chamber considers that if a superior-subordinate relationship existed, it cannot be relevant to ask whether the subordinate’s behaviour was erratic. However, if it is not clear whether that relationship existed, it can be relevant to take into account the erratic behaviour of the subordinate in determining whether the superior had the “material ability to prevent or punish” necessary for effective control. The Trial Chamber therefore did not misconstrue the first and the third elements of Article 7(3) of the Statute when it assessed Mirzet Halilović’s erratic behaviour in analysing Orić’s effective control over the Military Police. The Prosecution’s bare assertion that Orić’s failure to prevent or punish “is not evidence of lack of effective control”[2] fails to demonstrate an error in that assessment.

16. All Appellants submit that the rights of the accused to a fair trial enshrined in Article 21 of the Statute should not be sacrificed to ensure the expeditiousness of proceedings.[1]  The Appeals Chamber recalls that, pursuant to Rules 73bis and 73ter of the Rules, the Trial Chamber is required to establish the number of witnesses each party may call and the amount of time allotted to each party. Specifically, Rule 73ter(E) of the Rules provides that, after having heard the defence and having reviewed the Rule 65ter submissions of each accused, the Trial Chamber shall determine the time available to the defence for presenting evidence. In exercising the discretionary power to allocate time, a Trial Chamber has the responsibility to ensure that “the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.”[2] Recognizing that excessive limitations of time may also compromise the due process rights of the accused, the Appeals Chamber has previously held that the considerations of judicial economy should never impinge on the rights of the parties to a fair trial.[3] In particular, the time granted to an accused under Rule 73ter of the Rules must be reasonably proportional to the time allocated to the Prosecution, and objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights under Article 21 of the Statute.[4]

19. The Appeals Chamber considers that a “purely arithmetical calculation” for the allocation of time to the Defence may constitute an abuse of the Trial Chamber’s discretion. As noted in the Orić Decision, “a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides”.[5] However, the Appeals Chamber is not satisfied that the Impugned Decision was based on such an arithmetic division of time.

23. The Appeals Chamber notes that Rule 92bis to 92quater are aimed at ensuring the efficient presentation of evidence at trial and may be relied upon in lieu of viva voce evidence where it does not impact upon the fairness of the proceedings. In assessing the amount of time reasonably required for each Accused to present his case, the Trial Chamber was entitled to assume that the parties would present their cases as efficiently as possible and take advantage of the options available to them to reduce the time for presenting evidence, especially if repetitive or peripheral. In light of the Trial Chamber’s familiarity with the case to be presented by the Defence, it was reasonable for the Trial Chamber to consider that the Defence could make use of Rules 92bis and 92ter of the Rules in relation to some of the witnesses each intended to call.

25. The Appeals Chamber finds that the Trial Chamber’s decision to assess the relevance of proposed testimony prior to its presentation in evidence falls within the discretion accorded to the Trial Chamber in its management of the trial. There is no prohibition against a Trial Chamber’s  considering that some of the evidence sought to be presented will be repetitive when assessing, in application of Rule 73ter(E) and on the basis of the 65ter List presented by an accused, the time necessary for the fair presentation of the Defence case. The Appeals Chamber considers that this method is not only reasonable, but also presents the advantage of certainty, enabling the Defence to organize its strategy on the basis of the time allocated to it. The Appeals Chamber further notes that the Trial Chamber clarified in the Impugned Decision that it would adopt a flexible approach and, should the Defence establish that additional time was necessary, it would grant additional time.[6]  Consequently, the Appeals Chamber finds no error in the approach adopted by the Trial Chamber.

Eliézer Niyitegeka filed a motion for review before the Appeals Chamber, requesting the Appeals Chamber, inter alia, to admit excerpts of closed session transcripts from other cases to which he had not been granted access. The Appeals Chamber declined to examine those excerpts “obtained in direct violation of Trial Chambers’ orders”.[1] Following the Appeals Chamber’s decision, Eliézer Niyitegeka requested access to the relevant closed session transcripts to the relevant Trial Chambers. His requests were denied, together with his requests for reconsideration and for certification of an appeal. Eliézer Niyitegeka then filed a motion for clarification before the Appeals Chamber.

8.       […] the Appeals Chamber recalls that, in its Decision on Third Request for Review, it stated that the closed session material submitted by the Applicant in support of his Third Request for Review had been “obtained in direct violation of Trial Chambers’ orders”.[2] The Appeals Chamber was well aware that the Applicant was not a party to the proceedings in which the protective measures were ordered. However, it considered that, by obtaining and making use of closed session material to which he undoubtedly knew that he was not authorized to have access, the Applicant took part in the breach of the Trial Chambers’ orders committed by those who were directly bound by them. The Applicant therefore participated in the violation of the orders for protective measures imposed by the Trial Chambers and, thereby, “seriously undermine[d] the integrity of the Tribunal’s proceedings”.[3]    

11.     […] the Appeals Chamber clarifies that, although the Applicant was not a party to the cases in which the protective measures were ordered, he was bound by the Trial Chambers’ orders not to disclose confidential material from the moment it came into his possession. Similar to what the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia found in respect of closed session orders,[4] the Appeals Chamber considers that the orders of protective measures apply to all persons coming into possession of protected information. This is necessary, in particular, in order to comply with the Tribunal’s obligation pursuant to Article 21 of the Statute to protect witnesses on whose behalf protective measures have been ordered. Such orders would be meaningless if third parties were allowed to disclose confidential information on the sole ground that the orders were not expressly directed to them.

10.     As to the scope of Rule 77 of the Rules raised in point (b), the Appeals Chamber notes that, while the rule does not specifically provide for holding in contempt those who are in possession of confidential material to which they were not granted access or make “confidential use” of unauthorized confidential material, it does generally provide for holding in contempt “those who knowingly and willfully interfere with [the Tribunal’s] administration of justice”.[1]

Following a request for guidance presented by amicus curiae as to how he should respond to a request by Momčilo Krajišnik for a meeting at the United Nations Detention Unit (“UNDU”) in which Mr. Krajišnik asked the Registry to arrange a meeting between him and amicus curiae for the purpose of discussing one of amicus curiae’s submissions, the Pre-Appeal Judge clarified:

p. 1: RECALLING that “the Appeals Chamber invite[d] the participation of a particular amicus curiae to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests”;

RECALLING that the Appeals Chamber made explicit that “amicus curiae is not a party to the proceedings” and that “[a]micus curiae is to work independently from Mr. Krajišnik”;

CONSIDERING that a meeting between Mr. Krajišnik and amicus curiae about an issue within the purview of amicus curiae’s assignment would violate both the terms and spirit of amicus curiae’s appointment;

HEREBY CLARIFIES that amicus curiae remains under an obligation to work independently from Mr. Krajišnik and that the meeting sought by Mr. Krajišnik would consequently be inappropriate.[5]

Subsequently, in a Motion filed on 26 June 2008, Mr. Krajišnik sought review of the Decision of 11 June 2008 and an order obliging amicus curiae to visit him at the UNDU. The Pre-Appeal Judge considered that the Motion was best construed as a request for reconsideration of the Decision, since it did not meet the standards for a request for review laid out in Rule 119(a) of the Rules.[6] The Pre-Appeal Judge denied the Motion, finding that Mr. Krajišnik had not met the standard that would justify granting his request for reconsideration because he had not shown that the 11 June 2008 Decision was based on clearly erroneous reasoning or that it would result in an injustice.

15. The Appeals Chamber recalls that in the Impugned Decision, the Trial Chamber found that derogation from the right of the Accused to be present at trial was warranted given that his health condition regularly interferes with the right to a fair and expeditious trial.  The Prosecution correctly points out that derogation from the right to be present is reasonable under some circumstances and that derogation may be justified even on the basis of substantial trial disruptions on the part of an accused that are unintentional in nature.  The question before the Appeals Chamber is whether derogation from the right to be present through the establishment of a video-conference link that enables the Accused to participate in his trial from the UNDU was reasonable under the circumstances of this case.

16. The Appeals Chamber observes that in determining whether derogation from the Accused’s right to be present at trial was justified, the Trial Chamber considered the proportionality principle.[3]  Specifically, the Trial Chamber noted that any restrictions on a fundamental right “must be the least intrusive instrument amongst those which might achieve the desired result.”[4]  The Trial Chamber further considered that in the Zigiranyirazo Decision, the Appeals Chamber held that the need to ensure a reasonably expeditious trial is an objective of general importance and accordingly concluded that its task in the instant case was to “strike an appropriate balance between the reasonably expeditious resolution of the case and the need to protect the Accused’s right to be present at his trial.”[5]

18. The Appeals Chamber considers that in determining the future course of the proceedings in this case, the Trial Chamber’s decision to balance the right of the Accused to be present with the right of both the Accused and his co-Accused to an expeditious trial was reasonable. […] 

19. The Appeals Chamber emphasizes that the right to be present is a fundamental right, and although the Prosecution correctly points out that derogation from this right may be warranted in light of substantial trial delays, the Appeals Chamber agrees with the Defence that derogation is not appropriate when reasonable alternatives exist.  The Appeals Chamber notes that in choosing to establish the video-conference link, the Trial Chamber excluded other potential options, including, as the Prosecution observes, allowing the case to remain in the pre-trial phase for three to six months.[6]  The Appeals Chamber considers that, given the existence of this reasonable alternative, which could potentially secure the Accused’s ability to fully exercise his right to be present at trial within a relatively short period of time, the Trial Chamber erred in choosing an alternative that restricted this right. 

20. The Appeals Chamber further notes that in establishing the video-conference link to enable the Accused to participate in the proceedings from the UNDU when he is too unwell to physically attend court, the Trial Chamber failed to consider whether, given his physical and mental state, he would nevertheless be able to effectively participate in his trial via the video-conference link.  The Appeals Chamber finds that a reasonable Trial Chamber would have considered this factor in its decision and accordingly finds that the Trial Chamber’s failure to do so amounts to a discernible error.

22. The Appeals Chamber notes that when considering the impact of a 98bis ruling on the flight risk of an accused pursuant to Rule 65(B) of the Rules, a Trial Chamber may deem it necessary to address the arguments raised by the accused in his motion for acquittal in order to assess his perception of the strength of the case against him. However, contrary to the Prosecution’s inference, such an assessment does not constitute a fixed requirement of the Rules. The Appeals Chamber accordingly finds that the Trial Chamber did not commit a discernible error when it concluded that the 98bis Decision did not increase Gvero’s flight risk without addressing the arguments he made in his motion for acquittal.

23. […] Only after weighing all of the aforementioned factors along with the 98bis Decision did the Trial Chamber conclude that Gvero did not pose a flight risk or a threat to witnesses, victims or other persons in the case.[1] Accordingly, the Appeals Chamber is not satisfied that the Trial Chamber committed a discernible error when it concluded that the 98bis Decision did not increase Gvero’s flight risk.

24. Nevertheless, the Appeals Chamber recalls that when considering a provisional release motion at the post-98bis stage of the proceedings, even when a Trial Chamber is satisfied that sufficient guarantees exist to offset the flight risk of the accused, it should not exercise its discretion to grant provisional release unless sufficiently compelling humanitarian reasons tip the balance in favour of allowing provisional release.[2] The Appeals Chamber accordingly finds, Judges Güney and Liu dissenting, that a Trial Chamber properly exercising its discretion would have denied Gvero’s provisional release request given that he did not propose any compelling humanitarian justifications for release. Gvero points out that in the 7 December 2007 Decision, the Trial Chamber did not consider his personal circumstances relevant to its decision to grant his provisional release motion, and that in the Impugned Decision, the Trial Chamber granted him provisional release in accordance with previous Trial and Appeal Chamber decisions.[3] However, the Appeals Chamber notes that each of the decisions relied upon by Gvero were rendered before the 98bis Decision in this case.

30. The Appeals Chamber disagrees with the Prosecution’s assertion that the Trial Chamber did not conduct a clear assessment of the impact of the 98bis Decision on Miletić’s flight risk. Rather, the Trial Chamber explicitly noted that in light of the Prlić Decision of 11 Marcy 2008, it was required to conduct such an assessment.[4] […] The Trial Chamber concluded that based on all of the aforementioned factors, it was not satisfied that the 98bis Decision increased Miletić’s flight risk. It further concluded that the Miletić did not pose a flight risk or a threat to witnesses, victims or other persons in the case.

See also the Partly Dissenting Opinions of Judges Güney and Liu.