12. […] Rule 65(B) of the Rules does not mandate humanitarian justification for provisional release. Unlike for convicted persons seeking provisional release under Rule 65(I), there is no requirement of additional “special circumstances”[1] justifying release under Rule 65(B) because the burden borne by a duly convicted person after full evaluation and adjudication is necessarily distinct from the burden borne by an individual who is still presumed innocent. Of course, if the two requirements of Rule 65(B) are met, the existence of humanitarian reasons warranting release can be a salient and relevant factor in assessing whether to exercise discretion to grant provisional release. In this respect, “the weight attached to humanitarian reasons as justification for provisional release will differ from one defendant to another depending upon all the circumstances of a particular case”.[2]

15. Because Rule 65(B) of the Rules does not require “sufficiently compelling” humanitarian reasons for provisional release, this Bench understands the Prlić Decision of 11 March 2008[3] to have ruled that it is only when a Trial Chamber, having considered all the circumstances of the case and the impact of the significant change of circumstances constituted by the 98bis decision, cannot exclude the existence of flight risk or danger, that “sufficiently compelling” humanitarian reasons, coupled with necessary and sufficient measures to alleviate any flight risk or danger, can constitute a basis for resolving uncertainty and doubt in favour of provisional release. Indeed, in the Prlić Decision of 11 March 2008, the Appeals Chamber asked for the existence of sufficiently compelling humanitarian reasons after having found that the Trial Chamber did not evaluate the impact of its 98bis Decision pursuant to the two requirements of Rule 65(B) of the Rules, thus amounting to a lack of clarity as to the existence of a flight risk or danger. Only then did the Appeals Chamber, faced with a situation in which such a risk or danger could not be excluded, require sufficiently compelling humanitarian reasons. This is not the situation in the present instance. As mentioned above, the Trial Chamber stated that its 98bis Decision “may not be considered as a 'pre-judgement' increasing the flight risk of the Accused”[4] and seriously tightened the conditions of Pušić’s provisional release,[5] thus alleviating any risk of flight or danger to victims, witnesses or other persons. “Sufficiently compelling” humanitarian reasons are thus not required here. […]

20. In Čelebići, the Appeals Chamber underscored that effective control is the ultimate standard and that a showing of effective control is required in cases involving both de jure and de facto superiors.[1] The Appeals Chamber further noted:

In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. […] In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.[2]

21. Even when a superior is found to have de jure authority over his subordinates, the Prosecution still has to prove beyond reasonable doubt that this superior exercised effective control over his subordinates, unless the accused does not challenge having exercised such control.[3] By holding that “a court may presume that possession of [de jure] power prima facie results in effective control”,[4] the Appeals Chamber in Čelebići did not reverse the burden of proof. It simply acknowledged that the possession of de jure authority constitutes prima facie a reasonable basis for assuming that an accused has effective control over his subordinates. Thus, the burden of proving beyond reasonable doubt that the accused had effective control over his subordinates ultimately rests with the Prosecution.

33. As the Appeals Chamber previously held, “what constitutes [necessary and reasonable] measures is not a matter of substantive law but of evidence”;[1] the assessment of whether a superior fulfilled his duty to prevent or punish under Article 7(3) of the Statute has to be made on a case-by-case basis, so as to take into account the “circumstances surrounding each particular situation”.[2] Under Article 86 of Additional Protocol I, for example, superiors have a duty to take “all feasible measures within their power” to prevent or punish a breach of the laws of war and, under Article 87 of Additional Protocol I, such “feasible measures” may take the form of both “disciplinary or penal” measures.[3] It cannot be excluded that, in the circumstances of a case, the use of disciplinary measures will be sufficient to discharge a superior of his duty to punish crimes under Article 7(3) of the Statute. In other words, whether the measures taken were solely of a disciplinary nature, criminal, or a combination of both, cannot in itself be determinative of whether a superior discharged his duty to prevent or punish under Article 7(3) of the Statute. The Prosecution’s argument is dismissed.

142. As a preliminary matter, the Appeals Chamber notes that the Trial Judgment and the Parties’ arguments on appeal place undue emphasis on the nature of the measures taken. The Appeals Chamber recalls that the relevant inquiry is whether a reasonable trier of fact could conclude that Hadžihasanović took measures to punish the perpetrators which were “necessary and reasonable” in the circumstances of the case,[4] not whether those measures were of a disciplinary or criminal nature.

154. The Appeals Chamber recalls that a superior need not dispense punishment personally and may discharge his duty to punish by reporting the matter to the competent authorities.[5] Here, the Appeals Chamber finds that the reporting of the 5 August 1993 Slavonija Furniture Salon crimes to the Bugojno municipal public prosecutor, in conjunction with the disciplinary sanctions imposed by the military disciplinary organ in Bugojno, constituted necessary and reasonable measures to punish the perpetrators. The Appeals Chamber recognises that the District Military Prosecutor’s Office, rather than that of the municipal public prosecutor, would have likely been a more appropriate forum for the filing of a criminal report,[6] but finds that Hadžihasanović’s responsibility should not turn on the Bugojno municipal public prosecutor’s possible failure to initiate criminal proceedings or to refer the matter to the District Military Prosecutor.[7] The Appeals Chamber notes that Witness Sead Zerić, the former Travnik District Military Prosecutor, testified that municipal public prosecutors had an obligation to pass on criminal reports they received regarding army personnel to the military prosecutor’s office when these dealt with crimes outside their jurisdiction.[8]

51. The Appeals Chamber agrees that the legal sufficiency test in a decision pursuant to Rule 98bis of the Rules – that is, the question of whether a reasonable trier of fact could convict the accused on the Prosecution evidence – is not applicable in an appeal against judgement. Rather, in an appeal against judgement, the test to be applied in determining whether the evidence is factually sufficient to sustain a conviction is whether the conclusion of guilt beyond reasonable doubt is one which no reasonable trier of fact could have reached.[1] Here, however, the issue raised by Hadžihasanović regards the alleged violation of his right to a fair trial resulting from a wrong statement and the application of the legal sufficiency test by the Trial Chamber in its Rule 98bis Decision. Insofar as an infringement on his right to a fair trial is concerned, this issue is therefore not redundant on appeal.

52. Regarding Hadžihasanović’s second and third grounds of appeal concerning the Rule 98bis Decision, which the Prosecution also contends cannot be raised in an appeal against judgement, the Appeals Chamber notes that an appellant is not, as a matter of law, prevented from challenging a finding of the Trial Chamber in a decision pursuant to Rule 98bis of the Rules. The Prosecution’s reliance to the contrary on the Appeals Chamber’s finding in Čelebići is misplaced. In Čelebići, the Appeals Chamber clarified the applicable test on appeal for alleged errors of fact, for which the legal sufficiency test applied in the Rule 98bis Decision is indeed redundant in an appeal against judgement. The allegation at hand, however, is that the Trial Chamber committed an error in its Rule 98bis Decision, which as a consequence violated Hadžihasanović’s rights to a fair trial.

130. Further, the Appeals Chamber recalls that “[w]here a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice to it as to amount to an error of law invalidating the judgement”.[1] Thus, the element of prejudice forms an essential aspect of proof required of an appellant in relation to the appeal alleging a violation of his fair trial rights. […].

199. The Appeals Chamber recognises that the power to give orders and have them executed can serve as an indicium of effective control.[1] […].

203. At the outset, the Appeals Chamber points out that, if taken literally, there is little basis in the jurisprudence of this International Tribunal for considering what the Trial Chamber termed as the “conduct of combat operations involving the forces in question”[2] as an indicium of effective control.[3] A reading of the relevant sections of the Trial Judgement suggests that what the Trial Chamber sought to demonstrate by defining this criterion was the degree of subordination of the El Mujahedin detachment to the OG Bosanska Krajina during combat operations.[4] Accordingly, the Appeals Chamber will discuss the Trial Chamber’s findings within this latter context.

209. These findings confirm that the El Mujahedin detachment took part in several combat operations in September and October 1993 and that this occurred within the framework established by the OG Bosanska Krajina and the 3^rd Corps. This, however, does not in itself necessarily provide sufficient support for the conclusion that Hadžihasanović had effective control over the El Mujahedin detachment in the sense of having the material ability to prevent or punish its members should they commit crimes.[5] […].

210. The Appeals Chamber notes that the El Mujahedin detachment took part in combat operations alongside 3^rd Corps formations, including the OG Bosanska Krajina, as of the second half of 1992.[6] The Appeals Chamber stresses that, with respect to the period before 13 August 1993, the Trial Chamber found that the relationship between the El Mujahedin detachment and the 3^rd Corps was one of cooperation, not effective control. The Trial Chamber found that “frequent cooperation in itself [did] not allow the conclusion that the mujahedin were subordinated to the 3^rd Corps […] and were under [its] effective control”.[7] Neither the 6 September Order nor the conduct of combat operations demonstrate that the relationship between the 3^rd Corps and the mujahedin, later officially renamed the El Mujahedin detachment, evolved from cooperation to effective control.

213. In its concluding remarks on the issue of Hadžihasanović’s effective control, the Trial Chamber stated the following:

It must be noted, however, that this exceptional position was in fact accepted by the 3^rd Corps, insofar as it did not in effect prevent the 3^rd Corps and its units from using the detachment in combat and benefiting militarily from its existence. It should also be noted that nothing forced the 3^rd Corps commanders to use the detachment in combat. In so doing, they accepted all the consequences of their decisions and inevitably assumed full responsibility for them.[8]

The Appeals Chamber does not dispute that the 3^rd Corps may have benefited from the El Mujahedin detachment, and that a circumstance of this kind may entail some form of responsibility, if the particulars of such responsibility are adequately pleaded in an Indictment.[9] The Appeals Chamber nevertheless questions the relevance of that consideration for demonstrating the existence of Hadžihasanović’s effective control over the El Mujahedin detachment. The Appeals Chamber clarifies, however, given that the expression “full responsibility” adopted by the Trial Chamber may be somewhat misleading, that the responsibility of a superior under Article 7(3) of the Statute is only triggered by a superior’s failure to prevent and punish the crimes of his subordinates of which he has the requisite knowledge. Thus, even if Hadžihasanović benefited militarily from the El Mujahedin detachment, his responsibility as a superior under Article 7(3) of the Statute would be, eventually, triggered only upon a showing that the members of the El Mujahedin detachment were his subordinates. As the Trial Chamber made its remark in the context of its discussion on effective control, it presumably used the remark as an argument to justify attributing Hadžihasanović with effective control. This argument, however, does not provide support for the existence of effective control.

214.  Thus, while these Trial Chamber’s findings indicate that the 3^rd Corps cooperated with the El Mujahedin detachment, they are insufficient to establish the existence of effective control. The Appeals Chamber will examine whether any of the Trial Chamber’s additional findings provide a proper basis for its conclusion that Hadžihasanović exercised effective control over the El Mujahedin detachment.

217. Assuming that the Trial Chamber’s conclusion that there was no other authority over the El Mujahedin detachment is correct, the Appeals Chamber disputes the relevance of the criterion identified by the Trial Chamber as an indicator of the existence of effective control. Hadžihasanović’s effective control cannot be established by process of elimination. The absence of any other authority over the El Mujahedin detachment in no way implies that Hadžihasanović exercised effective control in this case.

264. […] The Appeals Chamber recalls that the Trial Chamber considered the duty to suppress to be part and parcel of a superior’s duty to prevent,[1] such that knowledge acquired by Kubura while his subordinates had begun and were still engaged in committing the acts of plunder in Vareš would be relevant to his duty to prevent those crimes.[2]

320. The Appeals Chamber recalls that a position of authority does not in and of itself attract a harsher sentence.[1] Further, in the context of a conviction under Article 7(3) of the Statute, use of the superior’s position of authority as an aggravating circumstance would be inappropriate since it is itself an element of criminal liability.[2] Nor would a high level of authority, to echo the Prosecution’s distinction, necessarily attract greater responsibility were it to be considered. Rather, it is the superior’s abuse of that level of authority which could be taken into consideration at sentencing.[3] […].

321. In any event, the principle of graduation upon which the Prosecution relies is not absolute. Indeed, the ICTR Appeals Chamber in Musema qualified its statement that sentences should be graduated by noting that this principle “is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence”.[4] The Prosecution’s contention that Hadžihasanović must receive a harsher sentence based on his high level of authority is not substantiated by the practice of the International Tribunal.

15. The Appeals Chamber notes that the Trial Chamber did explicitly address the impact of its 98bis Ruling in granting the Accused provisional release. The Trial Chamber recalled the holding of the Appeals Chamber Decision that the 98bis Ruling constituted a significant change in circumstances, which warranted a renewed and thorough evaluation of the risk of flight of each of the co-Accused in this case. The Trial Chamber expressly considered that, in order to satisfy itself that the Accused still met the requirements of Rule 65, that if released they would appear for trial and not intervene with any victims and witnesses, it was required to consider whether the Accused had offered sufficient guarantees to offset that risk of flight. In such circumstances, even if the Trial Chamber was satisfied that sufficient guarantees were offered, it should not exercise its discretion in favour of a grant of provisional release unless compelling humanitarian grounds were present which caused to tip the balance in favour of allowing provisional release.[1]

The Prosecution sought to confront a Defence witness, during cross-examination, with two documents. Delić objected on the basis that these documents were not included in the list of exhibits the Prosecution intended to offer under Rule 65 ter(E)(iii) of the Rules of Procedure and Evidence. Following the cross-examination of the witness on the content of the two documents, the Trial Chamber proceeded to admit them into evidence. Delić appealed the admission because it was done during the Defence case. The Appeals Chamber found:

20. According to Rule 89(C) of the Rules, a “Chamber may admit any relevant evidence which it deems to have probative value”. More specifically, Rule 90(F)(i) of the Rules states that a “Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”.  Within the discretion afforded to it, a Trial Chamber may admit any evidence which it deems relevant and of probative value, provided that the right of the accused to a fair trial is ensured in the process.[1]

21. In the present case, the Prosecution contends that it could not have ascertained the importance of the Exhibits until Delić had disclosed its own list of witnesses pursuant to Rule 65 ter (G)(i). However, the Prosecution did not proceed to disclose the Exhibits immediately after this list was filed, but just prior to the beginning of the testimony of [the] witness […]

22. In these circumstances, the Appeals Chamber notes that the Impugned Decision does not clarify whether the Exhibits were admitted as evidence probative of guilt or only for impeachment purposes of the witness in question. This may cause confusion, prejudicing Delić in the organization of his case. According to the principles enshrined in the Statute – in particular in Article 21(4)(b) and (e) – on the rights of the accused, when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it; this is all the more true if evidence is tendered after the close of the Prosecution case. In situations where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence.

23. The Trial Chamber therefore erred in not specifying the purpose for which the Exhibits were admitted despite the request by Delić and, consequently, in not addressing how the prejudice caused by the admission of the Exhibits, if any, could be redressed. Only after having considered the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations, the Trial Chamber will be able to provide a reasoned opinion on the prejudice, if any, caused by the admission of the Exhibits and on the measures to address such prejudice – for example providing more time for cross-examination, adjourning the session, or granting the possibility of re-calling the witness if Delić shows it is necessary. Having failed to give sufficient weight to relevant considerations in reaching its decision, the Trial Chamber committed a discernible error.