18. The Appeals Chamber recalls, however, that even when provisional release is found to be justified on humanitarian grounds, the length of the release should be proportional to the circumstances – for example, the need to visit a seriously ill family member in the hospital would justify provisional release for a sufficient time to visit the family member.[1] Accordingly, a Trial Chamber must address the proportionality between the nature and weight of the circumstances of a particular case and the duration of provisional release requested.[2] The Appeals Chamber considers that the Trial Chamber engaged in such an evaluation when it held that “[t]aking into account the relevant factors, the Trial Chamber decides to allow provisional release for a limited duration of seven days only (including travel time)”.[3] However, the Appeals Chamber notes that the Trial Chamber’s conclusion erroneously included time to allow Borovčanin to “attend to his personal matters”.[4] The Trial Chamber thus failed to limit the length of the visit to the humanitarian circumstances justifying the visit. In light of the above, the Appeals Chamber holds, Judge Güney dissenting, that a Trial Chamber properly exercising its discretion would have granted the custodial visit for a shorter period – namely, for a period no longer than the time necessary for Borovčanin to visit his ailing father.

See also, para. 32.

Hassan Ngeze requested the Appeals Chamber to authorize “privileged communication with him and two legal assistants and one lawyer who would assist Mr. Dev Nath Kapoor, acting as pro bono Counsel” in the preparation of a motion for review of the Appeal Judgement rendered in this case on 28 November 2007, as well as in matters relevant to his detention. The Appeals Chamber rejected his motion holding that:

pp. 3-4: NOTING that Rule 65 of the Tribunal’s Rules Covering the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal[1] (“Detention Rules”) provides that “[e]ach detainee shall be entitled to communicate fully and without restraint with his Defence Counsel”;

NOTING that visits to and communications with a detainee at the UNDF are governed by Rules 58 to 64 of the Detention Rules;

NOTING that Rule 65 of the Detention Rules only provides for privileged communications between the Applicant and his Counsel and that, in the absence of Counsel, legal assistants are generally allowed non-privileged visitations under Rule 61 of the Detention Rules;

RECALLING that pursuant to Rule 3 of the Detention Rules, the Commanding Officer of the UNDF has primary responsibility for all aspects of the daily management of the UNDF, including communications and visitations, and that, pursuant to Rules 82 and 83 of the Detention Rules, when a detainee is not satisfied with the response of the Commanding Officer to a specific request in that regard, he or she has the right to make a written complaint to the Registrar who shall forward it to the President of the Tribunal;

CONSIDERING that as the Applicant has not exhausted the procedure made available to him under the Detention Rules for consideration of his request the Appeals Chamber will not consider the merits of the Motions

The Appeals Chamber ruled that the Trial Chamber applied an incorrect legal standard when it held that where a document contains both exculpatory and incriminating information on the same issue, all the information on that particular issue “must be read in context” and “only information, that, when read in its entirety tends to be exculpatory, must [it] be disclosed under Rule 68(A) [of the Rules]” (paras 12-13):

12. The Appeals Chamber agrees with the Appellant’s contention that Rule 68 of the Rules, as a rule of disclosure rather than admissibility of evidence, imposes a categorical obligation to disclose any document or witness statement that contains exculpatory material. Consequently, this obligation is not subject to a balancing test. Because the Trial Chamber applied an incorrect legal standard, it by definition committed a discernible error. The Appeals Chamber notes that the Trial Chamber earlier considered alleged violations of Rule 68(A) of the Rules,[1] and adopted the reasoning from a decision in the Bagosora et al. case.[2] In that case, the Trial Chamber, when considering whether certain witnesses’ statements contained excuplatory material, ruled that:

whether [the] information “may suggest the innocence or mitigate the guilt of the accused” must depend on an evaluation of whether there is any possibility, in light of the submissions of the parties, that the information could be relevant to the defence of the accused.[3]

The Appeals Chamber considers this to be the correct standard for assessing whether certain material is to be considered as exculpatory within the meaning of Rule 68(A) of the Rules. In this case, the Trial Chamber, by reasoning that exculpatory material in a document could be rendered nugatory by the existence of inculpatory material, applied an incorrect legal standard resulting in an abuse of its discretion.

16. Concerning whether the humanitarian reasons identified by the Accused were sufficient to justify provisional release, the Appeals Chamber reiterates that provisional release should only be granted at a late stage of the proceedings, and in particular after the close of the Prosecution case, when sufficiently compelling humanitarian reasons exist to justify the release and, even when provisional release is found to be justified in light of the nature of the circumstances, the length of the release should nonetheless be proportional to these circumstances- for example, the need to visit a seriously ill family member in the hospital would justify provisional release of a sufficient time to visit the family member.[1]

17. […] The Appeals Chamber […] finds that the Trial Chamber did not abuse its discretion in considering that the gravity of the illness suffered by the Accused’s family members justify the provisional release of the Accused for a short period of time.

18. […] The Appeals Chamber reiterates that decisions on motions for provisional release are fact intensive; cases are considered on an individual basis in light of the particular circumstances of the individual accused. The number of factors that a Trial Chamber is to consider does not only influence the decision of whether to grant or deny a motion for provisional release, but also impacts on the assessment of the duration of the period of provisional release, if any. Thus, inter alia, a Trial Chamber is to address the proportionality between the nature and weight of the circumstances justifying provisional release on humanitarian grounds, and the duration of provisional release.[1]

19. The Appeals Chamber notes that the Trial Chamber did not engage in such an evaluation. Absent such an evaluation, the Appeals Chamber is not satisfied that the justifications offered by the Accused warrant the length of provisional release granted by the Trial Chamber. Rather, a Trial Chamber properly exercising its discretion would have granted provisional release for a period no longer than the time necessary for the Accused to visit his ailing family members.

In assessing the Prosecution’s contention that the Trial Chamber abused its discretion in granting Pušić provisional release, the Appeals Chamber first analysed whether the Trial Chamber considered the change of circumstances constituted by the Rule 98bis Decision. 

12. The Appeals Chamber finds that, contrary to the Prosecution’s contention,[1] the Trial Chamber did explicitly examine the impact of its 98bis Decision in analysing whether to grant Pušić provisional release,[2] in accordance with the Prlić Decision of 11 March 2008.[3] The Trial Chamber recalled that though its 98bis Decision found sufficient evidence for “all the counts of the indictment under JCE 1 and 3” it “was careful to note that it was dismissing the motions for acquittal based on the Prosecution evidence alone and that this decision was valid solely for the purposes of the procedure under Rule 98bis”.[4] The Trial Chamber explained it only considered the inculpatory evidence and not the “exculpatory evidence”, and left assessment of the probative value of the evidence to the end of trial, when it could enter a judgement of acquittal notwithstanding the 98bis Decision.[5] The Trial Chamber reasoned that its 98bis Decision therefore “may not be considered as a 'pre-judgement' increasing the flight risk of the Accused”.[6] The Trial Chamber further analysed Pušić’s risk of flight and danger to victims, witnesses or other persons, following the 98bis Decision, in light of Pušić’s compliance with the terms imposed in prior decisions on provisional release.[7]

13. Moreover, construing the Prlić Decision of 11 March 2008 to express “the Appeals Chamber’s concern for obtaining additional guarantees against the risk of flight”, the Trial Chamber imposed strict additional measures of around-the-clock surveillance and a weekly report from the authorities of the Republic of Croatia to the Trial Chamber.[8] The Trial Chamber also limited the period of provisional release to three weeks to “enable police authorities of the Republic of Croatia to carry out effective surveillance” of Pušić.[9] Therefore, the Appeals Chamber finds, Judge Schomburg dissenting, that the Prosecution failed to demonstrate any discernible error in the Trial Chamber’s evaluation of the impact of its Rule 98bis Decision on the risk of flight or danger to any victim, witness or any other person.

13. Pursuant to Article 23(2) of the Statute and Rule 98ter(C) of the Rules, Trial Chambers have an obligation to set out a reasoned opinion in writing.[1] This right is one of the elements of the fair trial requirement embodied in Articles 20 and 21 of the Statute. In the Furundzija Appeal Judgement, the Appeals Chamber held that Article 23 of the Statute treats the right of an accused to a reasoned opinion as one of the elements of the fair trial requirement embodied in Articles 20 and 21 of the Statute.[2] With regard to legal findings, this obligation does not require a Trial Chamber to discuss at length all of the case-law of the International Tribunal on a given legal issue but only to identify the precedents upon which its findings are based. With regard to factual findings, a Trial Chamber is required only to make findings on those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record.[3] In short, a Trial Chamber should limit itself to indicating in a clear and articulate, yet concise manner, which, among the wealth of jurisprudence available on a given issue and the myriad of facts that emerged at trial, are the legal and factual findings on the basis of which it reached the decision either to convict or acquit an individual. A reasoned opinion consistent with the guidelines provided here allows for a useful exercise of the right of appeal by the Parties and enables the Appeals Chamber to understand and review the Trial Chamber’s findings as well as its evaluation of the evidence.[4] While the Appeals Chamber appreciates the care with which the Trial Chamber has expressed itself in the Trial Judgement, the Appeals Chamber is constrained to observe that the Trial Chamber might have been more sparing in its efforts in this respect.

30. While a superior’s knowledge of and failure to punish his subordinates’ past offences is insufficient, in itself, to conclude that the superior knew that similar future offences would be committed by the same group of subordinates, this may, depending on the circumstances of the case, nevertheless constitute sufficiently alarming information to justify further inquiry.[1] In making such an assessment, a Trial Chamber may take into account the failure by a superior to punish the crime in question. Such failure is indeed relevant to the determination of whether, in the circumstances of a case, a superior possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry. In this regard, the Appeals Chamber stresses that a superior’s failure to punish a crime of which he has actual knowledge is likely to be understood by his subordinates at least as acceptance, if not encouragement, of such conduct with the effect of increasing the risk of new crimes being committed.

31. In the present case, the Trial Chamber, when it reviewed the Appeals Chamber’s application of the “had reason to know” standard in the Krnojelac case, found that “[o]ver and beyond the conclusions of the Appeals Chamber, the Chamber is of the opinion that by failing to take measures to punish crimes of which he has knowledge, the superior has reason to know that there is a real and reasonable risk those unlawful acts might recur”.[2] It further found that “by failing to punish, the superior (Krnojelac) did not prevent subsequent criminal acts”.[3] Those findings could be read as implying that a superior’s failure to punish a crime of which he has knowledge automatically constitutes sufficiently alarming information under the “had reason to know” standard, irrespective of the circumstances of the case. Such reading would amount to an error of law. However, the Trial Chamber also found that “from the moment a certain amount of information was available to Krnojelac which, taken as a whole, was sufficiently alarming and such as to alert him to the risk of murders being committed inside the prison, he had an obligation to intervene and at the least should have carried out an investigation”.[4] It also referred to the “had reason to know” standard as requiring an assessment of whether a superior had sufficiently alarming information which would have alerted him to the risk that crimes might be committed by his subordinates.[5] This demonstrates that the Trial Chamber correctly understood that standard as requiring an assessment, in the circumstances of each case, of whether a superior had sufficiently alarming information to put him on notice that crimes might be committed. […].

See also paras 267-268.

228. The Appeals Chamber agrees with the Trial Chamber that the fact that a superior is compelled to use force to control some of his subordinates does not automatically lead to the conclusion that this superior does not exercise effective control over them.[1] The Appeals Chamber concurs with the Trial Chamber’s finding that this issue must be evaluated on a case-by-case basis.[2] Further, there might be situations in which a superior has to use force against subordinates acting in violation of international humanitarian law. A superior may have no other alternative but to use force to prevent or punish the commission of crimes by subordinates. This kind of use of force is legal under international humanitarian law insofar as it complies with the principles of proportionality and precaution and may even demonstrate that a superior has the material ability to prevent and punish the commission of crimes. The issue in the present case, however, is whether those modalities in which force should have been used, in the Trial Chamber’s view, to rescue the hostages, confirm the absence of Hadžihasanović’s effective control over the El Mujahedin detachment.

55. The Appeals Chamber considers that the Trial Chamber’s finding that it “did not consider evidence which might be favourable to the Accused”,[1] if interpreted as implying that it completely ignored the evidence presented by the Defence in its favour during the Prosecution case, would amount to an error of law. For example, where the Defence has cross-examined a witness to good effect or has obtained evidence in an accused’s favour during cross-examination, this evidence must be used to assess whether the Prosecution evidence is incapable of belief. In the present case, the Trial Chamber not only recognised this principle,[2] but also referred in its Rule 98bis Decision to the entirety of the testimonies without excluding the cross-examination of the witnesses. Further, the Rule 98bis Decision is replete with references to Hadžihasanović’s Motion for Acquittal, which in turn is replete with references to evidence adduced by the Defence during the Prosecution case.[3]