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.

46. Additionally, a document such as the December 2001 Transcript, after a suspect has become an accused, does not merely provide the judges in his case with a written summary of the answers of a person about whom they know nothing. In the normal course of events, during the proceedings those judges will hear evidence on the individual who was questioned and, by the end of the trial, they will therefore be able – and required – to put the questioning in context in order to assess it in light of the rest of the information received. This does not happen with witness statements, which are based on evidence proffered by an individual about whom the trier of fact knows little, even considering the possibility that he be called for cross-examination.

48. […] In the case at hand, however, the witness is theoretically able to attend – as shown by the fact that he can choose to testify – but is not required to do so in order to protect his own fundamental rights. In this sense, his rights are weighed ex ante against the other interests involved and actually form part of wider considerations falling within the “interests of justice”. […]

50. In construing the “spirit of the Statute and the general principles of law” pursuant to Rule 89(B), the Appeals Chamber will also note that, due to the nature of the issue at hand, domestic legal systems do not provide much guidance. In a very broad sense, in systems that allow an accused to testify in his own trial under a solemn declaration – and not merely expressing himself as an accused – a document such as the December 2001 Transcript would be inadmissible because it could not be tested by cross-examination.[1] On the contrary, those systems where declarations gathered in the pre-trial stages according to certain procedures may be admitted in writing at trial are also the ones that generally do not allow accused persons to testify as witnesses in their own trials – they may be questioned, not in a manner equivalent to an examination under a solemn declaration.[2] Thus, no discernible “general principle” may be inferred from domestic practice in this area.

52. The Appeals Chamber has already held that the right to cross-examination is not absolute.[1] It further noted that

application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community) […] Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[2]

Of even more relevance for the issue at hand, since the Tribunal’s first cases, the jurisprudence has been constant in holding that, under the Tribunal’s system, a statement of a person made otherwise than in the proceedings in which it is tendered, whether orally by a witness or in writing is not inadmissible, in particular when the source of hearsay is known and subject to potential evaluation by a Chamber.[3] In particular, the Appeals Chamber found that Trial Chambers have a wide discretion in admitting hearsay evidence, although establishing the reliability of this type of evidence is of paramount importance when hearsay evidence is admitted as substantive evidence in order to prove the truth of its contents.[4]

53. A different matter is, of course, what weight a trier of fact is allowed to give to evidence not subjected to the testing of cross-examination. It is in this matter that the jurisprudence of the ECtHR is valuable, as it has authoritatively stated the principle that “all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence.”[5] Unacceptable infringements of the rights of the defence, in this sense, occur when a conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial.[6] The ECtHR applied this reasoning to the statement of a co-accused in pre-trial proceedings in a case where neither the applicant nor his lawyer had been given the opportunity to question the co-accused at any stage of the proceedings.[7] The Appeals Chamber has already had occasion to elaborate on the fact that these principles serve as guidelines before the Tribunal.[8]

The Trial Chamber had denied admission of a statement given by Halilović to the Prosecution at a time when he was questioned only as a witness, which was not taped or video-recorded according to Rule 43. On appeal, both parties agreed that the procedure under Rules 42 and 43 had not been followed since the Prosecution did not consider Halilović a suspect at that time, although it did inform him of his rights to counsel and to remain silent.

36. The Trial Chamber found that:

in order to protect the right of the Accused to a fair trial, in accordance with Article 21 of the Statute, it should be taken into account whether the safeguards of Rules 42, 43 and 63 of the Rules have been fully respected when deciding on the admission of any former statement of an accused irrespective of the status of the accused at the time of taking the statement.[1]

The Trial Chamber’s understanding of the protections afforded by the Statute and the Rules is consistent with the principles expressed in the case law of the International Tribunal and the ICTR[2] as well as the law of other jurisdictions.[3]

37. The Decision of 8 July 2005 dealt with the issue of whether the Statement had been taken in accordance with Rules 42, 43, 63, 89 and 95 of the Rules.[4] The Trial Chamber reasoned that the main question at issue was “what safeguards should have been applied by the Prosecution in order for a former statement of a now accused person to be admissible into evidence”.[5] The Trial Chamber concluded that:

[…] In the present case, Rule 43 [of the Rules] was not applied at the time of taking the Statement. Sefer Halilović has not chosen to waive his right to remain silent during trial. Thus, the Trial Chamber finds that the admission of the Statement would infringe upon the Accused’s right to a fair trial.[6]

38. Whether the statement would also be inadmissible due to a retroactive reading of Rule 43 of the Rules was not a decisive consideration in the Trial Chamber’s reasoning.[7] […]

39. […] In this respect, the Appeals Chamber emphasizes the large measure of discretion afforded under the Rules to Trial Chambers in establishing the authenticity of a document.[1] Considering that Trial Chambers’ decisions on issues of evaluation of evidence must generally be given a margin of deference,[2] it is only where an abuse of such discretion can be established that the Appeals Chamber should reverse such decisions.[3]

59. […] The ability to exercise effective control in the sense of a material power to prevent or punish, which the Appeals Chamber considers to be a minimum requirement for the recognition of a superior-subordinate relationship for the purpose of superior responsibility, will almost invariably not be satisfied unless such a relationship of subordination exists.[1] The Appeals Chamber considers that a material ability to prevent and punish may also exist outside a superior-subordinate relationship relevant for Article 7(3) of the Statute. For example, a police officer may be able to “prevent and punish” crimes under his jurisdiction, but this would not as such make him a superior (in the sense of Article 7(3) of the Statute) vis-à-vis any perpetrator within that jurisdiction. […]

69. […] while being in “overall control of combat operations” is not an express requirement under Article 7(3) of the Statute, the Trial Chamber is expected to make a finding in this respect if such a fact is pleaded as underlying one of the requirements of superior responsibility. In the present case, although the Prosecution did not explicitly allege “control of combat operations”, it argued that Halilović had authority to “command combat activities”[2] and that he issued combat orders “consistent with those a commander of an operation would normally issue”,[3] as a way of showing that a superior-subordinate relationship existed. The Trial Chamber was therefore expected to rule on this allegation as part of its overall analysis regarding Halilović’s authority to issue orders which would, in turn, assist in assessing whether a superior-subordinate relationship existed.[4]

154. […] The Appeals Chamber considers that the qualification of a location as an IKM [Forward Command Post (Istureno Komandno Mesto)] bears significance as “IKMs were used by commanders in order to exercise command when they were in the field”[5] and their establishment could as such amount to one of the “indicators of effective control” as outlined by the Trial Chamber.[6] […]

207. […] the Appeals Chamber considers that proof that an accused is not only able to issue orders but that his orders are actually followed, provides another example of effective control.[7] […] The Appeals Chamber therefore finds that a reasonable trier of fact could have concluded that Halilović’s orders were not followed and could have taken into account this important consideration in the overall assessment of Halilović’s effective control over the perpetrators.

61. The Appeals Chamber will now consider the Prosecution’s submissions that the Trial Chamber erred in restating the law on the third element of superior responsibility.[1] According to the Prosecution, in paragraphs 81 to 90 of the Trial Judgement, the Trial Chamber created an unnecessary and unwarranted distinction between a general obligation and a specific obligation to prevent crimes.[2]

63. […] The Appeals Chamber stresses that “necessary” measures are the measures appropriate for the superior to discharge his obligation (showing that he genuinely tried to prevent or punish) and “reasonable” measures are those reasonably falling within the material powers of the superior.[3] What constitutes “necessary and reasonable” measures to fulfil a commander’s duty is not a matter of substantive law but of evidence.[4]

64. The Appeals Chamber holds that the Trial Chamber erred when giving the impression that there is an additional requirement to the third element of superior responsibility and agrees with the Prosecution that the correct legal standard is solely whether the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.[5] Of course, this single standard will have to be applied differently in different circumstances; however, the artificial distinction between “general” and “specific” obligations creates a confusing and unhelpful dichotomy.