74. […] the Appeals Chamber cannot find any merit in the Appellant’s argument that the Indictment fails to refer to any sort of “organization” among these individuals. It is well established that a JCE need not be previously arranged or formulated and may materialise extemporaneously.[1] Since “organization” is not an element of JCE, it need not be pleaded in the Indictment.

77. The Appeals Chamber recalls that while the JCE categories are mutually incompatible to the extent that a defendant may not be convicted of multiple categories based on the same conduct, an indictment may charge a defendant cumulatively with multiple categories.[2] The Appeals Chamber notes that the Appellant was convicted for his participation in a JCE based on the first category, and therefore restricts its inquiry to whether he was put on notice that the Prosecution intended to rely on that specific category.[3] In this regard, the Appeals Chamber recalls that the three categories of JCE vary only with respect to the mens rea element, not with regard to the actus reus.[4] Accordingly, an accused will have sufficient notice of the category of JCE with which he is being charged where the indictment pleads the mens rea element of the respective category.

see also “Other Issues of Particular Interest” below citing para. 78 for application to the circumstances of the case.

296. The Appeals Chamber agrees with the Prosecution that physical presence at the time a crime is committed by the physical perpetrator is not required for liability to be incurred by a participant in a JCE.[1] However, as conceded by the Prosecution,[2] it may be taken as an indicator of a co-perpetrator’s contribution. Here, the Trial Chamber considered that there was “no direct evidence of the presence of Simba” at Cyanika Parish.[3] This appears to have been relevant primarily as a basis for the Trial Chamber’s finding that there was no evidence to support the idea that he shared the intent to participate in the common purpose of killing Tutsi there.[4] After finding generally that a common purpose existed to kill Tutsi at the three sites, it found that the Appellant shared the common purpose of killing Tutsi at Murambi Technical School and Kaduha Parish, but expressed its doubt that he equally shared the common purpose of killing Tutsi at Cyanika Parish.[5] As explained by the Trial Chamber, this doubt arose from the fact that there was “no direct evidence linking the Appellant to Cyanika Parish or indicating that he knew and accepted that it would also form part of the operation”.[6] It is apparent from this language that the Trial Chamber’s consideration of this issue focused on his intent to participate in the common purpose to kill the Tutsi at this site.[7] Therefore the Trial Chamber’s inquiry was broader than mere physical presence. The Appeals Chamber sees no error in this approach.

328. The Appeals Chamber recalls that neither the Statute nor the Rules exhaustively define the factors which may be considered as mitigating factors.[1] Consequently, under the jurisprudence of this Tribunal, “what constitutes a mitigating circumstance is a matter for the Trial Chamber to determine in the exercise of its discretion.”[2] The burden of proof which must be met by an accused with regard to mitigating circumstances is not, as with aggravating circumstances, proof beyond reasonable doubt,[3] but proof on the balance of probabilities – the circumstance in question must exist or have existed “more probably than not”.[4] Once a Trial Chamber determines that certain evidence constitutes a mitigating circumstance, the decision as to the weight to be accorded to that mitigating circumstance also lies within the wide discretion afforded to the Trial Chamber at sentencing.[5]

143. […] While a trier of fact is not obliged to detail every step of its reasoning, in view of its concerns regarding the credibility of Witness KXX and its decision to accept his testimony only where corroborated,[1] the Trial Chamber was compelled to explain why it relied on the uncorroborated account of Witness KXX instead of Witness YH’s testimony with regard to the time of the Appellant’s arrival at Kaduha Parish. The Appeals Chamber will consider below whether, and if necessary, to what extent, the Trial Chamber’s error affects its findings relating to the Appellant’s participation in the attacks at MurambiTechnicalSchool and Kaduha Parish on 21 April 1994 within the time frame emerging from the relevant testimonies.

152. Turning to the issue of distance and driving time, the Appeals Chamber recalls that a Trial Chamber has the obligation to provide a reasoned opinion,[2] but is not required to articulate the reasoning in detail.[3] Although certain evidence may not have been referred to by a Trial Chamber, in the particular circumstances of a given case it may nevertheless be reasonable to assume that the Trial Chamber took it into account.[4] There is no guiding principle on the question to determine the extent to which a Trial Chamber is obliged to set out its reasons for accepting or rejecting a particular testimony.[5]

155. […] the Trial Chamber failed to expressly discuss the Defence evidence to the effect that it was impossible for the Appellant to travel from MurambiTechnicalSchool to Kaduha Parish within this time-frame. The issue was clearly controversial and the evidence presented by the parties in this respect was contradictory. The Trial Chamber should have been clearer in finding that the Appellant was at both MurambiTechnicalSchool and Kaduha Parish, which the Trial Chamber deemed geographically proximate, thereby rejecting his argument regarding impossibility. However, the failure to be more explicit does not indicate the lack of a reasoned judgement, particularly in light of the approximate nature of the evidence offered by Witnesses KSY, YH and AJT1 as discussed in subsequent paragraphs.

Pursuant to Rule 108 of the Rules, the Appeals Chamber summarily dismissed a number of Prosecution arguments on the ground that they exceeded the scope of its Notice of Appeal: (i) that the Trial Chamber erred in applying mens rea for the first category of JCE (Decision on ´Prosecutor’s Motion for Variation of the Notice of Appeal Pursuant to Rule 108’ of  17 August 2006); (ii) that the Trial Chamber erred in not taking into account the Appellant’s sadism and zeal as an aggravating factor (para. 319); (iii) that the Trial Chamber erred in According Weight in Mitigation to the Selective Assistance Provided by the Appellant to Members of his Family (paras 325-326); (iv) that the Sentence is Inconsistent with the Tribunal’s Sentencing Practice (para. 238); (v) that the Sentence is Inconsistent with the Rwanda’s Sentencing Practice (Decision on ´Prosecutor’s Motion for Variation of the Notice of Appeal Pursuant to Rule 108’ of 17 August 2006).

31. Turning to the Appellant’s contention in relation to Witness YH,[1] the Appeals Chamber recalls that the Prosecutor has independent authority to initiate investigations on statutory crimes and to assess whether the information forms a sufficient basis to proceed against persons suspected of having committed such crimes.[2] However, Rule 91(B)(i) of the Rules specifically provides that “[i]f a Chamber has strong grounds for believing that a witness has knowingly and wilfully given false testimony, it may direct the Prosecutor to investigate the matter with a view to the preparation and submission of an indictment for false testimony”. Such action lies within the discretion of the Trial Chamber and is contingent on its conviction that a witness “has knowingly and wilfully given false testimony”.[3] On the other hand, a credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony.[4]

32. The Appeals Chamber stresses that the mere existence of discrepancies between a witness’s testimony and his earlier statements does not constitute strong grounds for believing that a witness may have knowingly and wilfully given false testimony.[5] […]

33. In any event, the Appeals Chamber is only required to grant relief for a violation of the Rules where a party has objected in a timely manner and has suffered material prejudice.[6] The Appellant clearly fails to show how the Oral Decision of 23 September 2004 has prejudiced him. The Appeals Chamber recalls that an investigation for false testimony is only ancillary to proceedings and does not necessarily affect the rights of an accused.

28. Article 26 of the Code of Conduct further provides that, subject to three exceptions, “[c]ounsel shall not act as an advocate in a proceeding in which counsel is likely to be a necessary witness”.[1]

29. […] At the time of the questioning, the investigators were only able to provide Prlić with a list of general questions reflecting the nature of subjects which were of interest to the Prosecution, and not specific questions they wished to have answered.[2] Considering these circumstances, and even assuming that Salahović knew about the subject-matter interest of the Prosecution when the questioning began, the Appeals Chamber concludes that, on the basis of the facts before it, a trier of fact could reasonably conclude that there was, at that stage, no likelihood that Salahović would become a witness.[3] Thus, this part of the Prlić Appeal is also rejected. As a consequence, the Appeals Chamber further dismisses Prlić’s arguments related to the fact that the alleged conflict of interest would have affected not just him, but the administration of justice as a whole.[4]

24. […] Indeed, Prlić had already shown in September 2005 that a divergence on personal and political views might have ensued at the time of the questioning; the Trial Chamber concluded, however, that such a divergence did not create a legal conflict of interest.[1] Even the additional material brought at the trial stage on possible personal and political disagreements between Prlić and Salahović did not convince the Trial Chamber that a conflict of interest existed. In practice, it is unclear how the defence strategy could be influenced by the fact that Salahović was Prlić’s counsel.[2]

25. The Appeals Chamber therefore finds that it fell within the Trial Chamber’s discretion to conclude that, in light of the circumstances of the case and the acquaintance of the two individuals in question, their divergence of political and personal views in the indictment period would not adversely affect Salahović’s professional judgement and amount, as such, to the legal conflict of interest posited by Prlić at the time of the questioning. Prlić Appeal in this respect is therefore dismissed.

26. […] without linking the differing political and personal interests and activities with any actual or potential effects these differences would have on Salahović’s “duty of loyalty to … put [the interests of justice] before his own”,[3] a trier of fact could reasonably find that no conflict of interest was established. Prlić Appeal in this respect is therefore dismissed.

38. In this respect, the Appeals Chamber agrees that, under the Tribunal’s law, the Prosecution may not summon an accused as a witness in his own case, due to the special protection he enjoys.[1] The Appeals Chamber however notes that the Prosecution is not attempting to call Prlić as a witness in this trial. A request to admit a transcript of a suspect’s questioning into the trial record cannot be equated with a request to add the person in question to the Prosecution’s witness list. […] On the other hand, written evidence such as the December 2001 Transcript, although strictly speaking evidence stemming from the declarations of an individual, is not the “testimony” of that person.

48. [...] It is true that [Rule 92quater] provides for a mechanism to allow for the admission of written evidence when the person giving the statement is unavailable – but this is so because the individual in question is objectively unable to attend a court hearing, either because he is deceased or because of physical or mental impairment. […] It is true, however, as the Prosecution submits,[1] that Rule 92quater does provide an example of a provision explicitly allowing for the admission into evidence of a statement – even regarding the acts and conduct of the accused – where cross-examination is impossible.