16. The Appeals Chamber notes that “managerial decisions, such as whether to make a site visit, are left to the discretion of the Trial Chamber”.[1] In the instant case, the Appellant does not demonstrate that the Trial Chamber abused its discretion in finding that site visits were unnecessary to assess the credibility of the evidence and the charges against the Appellant. […]

19. The Appeals Chamber has further elaborated that a conflict of interest arises “where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice”.[1]

21. […] A mere listing of evidentiary documents and witness statements as proof of Salahović [Prlić’ counsel]’s political activity does not […] suffice to establish prejudice to Prlić’s interests. The Prlić Appeal does not generally connect Salahović’s interests and activities to actual or potential conflicts of interest with his client. In particular, Prlić does not provide examples of how he was potentially or actually prejudiced by the alleged conflict of interest. He does not show any basis for a potential or actual risk that Salahović’s political and personal activities would “limit the choice of defence strategies”[1] in relation to Prlić’s case.

57. The Appeals Chamber notes that the Trial Chamber did refer to the principle according to which untested evidence relating to the acts and conduct of the accused may be admitted into the trial record, but must be corroborated by other evidence in order to form, if it comes to that, a basis for a conviction of an accused.[1] This principle is undoubtedly premised on the recognition that professional judges are better able to weigh evidence and consider it in its proper context than members of a jury. Furthermore, as opposed to a jury’s verdict, professional judges have to write a reasoned decision, which is subject to appeal.

58. The principle of fairness that a conviction may not be based solely or in a decisive manner on the deposition of an individual whom the accused has had no opportunity to examine[2] is not equivalent to the restriction that material related to the acts and conduct of the accused is inadmissible except through “live” testimony.[3] The former principle is both wider and narrower in scope.

59. On the one hand, “acts and conduct” of the accused have been interpreted extensively in the jurisprudence of the Tribunal.[4] The scope of the principle expressed above, however, appears to cover more than just this material: it clearly applies to any “critical element” of the Prosecution case,[5] that is, to any fact which is indispensable for a conviction (including those used as an aggravating circumstance in sentencing).[6] These are, in fact, the findings that a trier of fact has to reach beyond reasonable doubt. It would run counter to the principles of fairness discussed above to allow a conviction based on evidence of this kind without sufficient corroboration. In other words, the scope of the rule that sufficient corroboration is necessary has to be expanded to cover evidence beyond that relating to the acts and conduct of the accused stricto sensu.

60. On the other hand, a transcript of the questioning of an accused might contain evidence of his acts and conduct that do not relate to the allegations in the case at hand and may not, as such, form any basis for his conviction.

43. […] While one of the purposes of Rule 92bis is to place some restrictions on the admissibility of hearsay evidence,[1] its general aim at the time of its introduction was to make trials more expeditious, while not preventing examination and cross-examination of the witness as such.[2] Rule 92bis even states that a Trial Chamber “may dispense” with the attendance of a witness in person – thus providing a clear indication that there is a choice to be made, in order to properly balance the interests to an expeditious trial with the rights of the accused.[3]

40. The Rules do not provide explicitly for the case of a transcript of the questioning of a suspect to be admitted into evidence in the trial of that person and other accused. A Chamber is therefore called in such a case to apply rules of evidence that “will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law”.[1] This is a delicate exercise for, while the system under which the Tribunal’s rules of evidence operates is predominantly adversarial, the jurisprudence – and the Rules themselves – have recognized from the beginning the necessity, and desirability, of certain features which do not accord with a strictly adversarial criminal procedure.

41. One of the central tenets of the procedure before the Tribunal is the right of all accused to a fair and public hearing.[2] While such a hearing generally entails the examination of evidence against the accused, this principle is not absolute.[3] In fact, there are various provisions that, by balancing the rights of the accused against other relevant interests, safeguard the overall fairness of the proceedings. The Appeals Chamber recalls that this is a complex feat, since under the cloak of “fairness”, a court may be led to construe troublesome curtailments of the rights of the accused in specific instances, which in turn might impact on fundamental rights of the accused. Trial Chambers are called to be vigilant and effective in protecting these rights.

43. The Appeals Chamber considers the analysis of Rule 92bis inapposite to the present situation. Rule 92bis provides an answer to a question different, both in aim and in scope, from the one posed by the present situation. […]

44. Moreover, as the Trial Chamber correctly noted, the transcript of a questioning taken pursuant to Rules 42 and 43 is not a “statement” according to Rule 92bis.[4] A recorded questioning includes, by definition, all questions, all answers, every pause and request for clarifications by all attendees. The parties and the Judges also have the possibility to listen to the audio recording itself, which might provide additional guidance in the understanding of the overall demeanor of the questioned person as well as of those questioning him. The danger that the Prosecution uses this type of questioning to “craft” evidence against the (other) accused persons at trial as argued by the Joint Defence is, in such instances, reduced to a minimum. In this sense, a recorded questioning may be considered more reliable than a statement prepared and then admitted under Rule 92bis.

45. […] Conversely, the questioning of a suspect pursuant to Rules 42 and 43 affords stringent safeguards in order to protect the questioned individual’s right not to incriminate himself.[5] Thus, the suspect is motivated to be more circumspect in his responses and, while he might wish to try and shift the blame to other individuals if he considers himself in a difficult position,[6] he will certainly bear in mind that the Prosecution has, at its disposal, a variety of sources to check the accuracy of his words. In other words, and bearing in mind the different purpose behind the questioning of a suspect as opposed to the gathering of a witness statement by the Prosecution, in cases similar to the one under review here there is undoubtedly less concern about a “collaborative effort” between the suspect and the Prosecution, than in cases where the Prosecution approaches a prospective witness. Of course, this does not say much about the veracity of the answers and explanations provided by the suspect who was being questioned – but this is not determinative of the issue, in this case.

47. A trier of fact is of course called upon to carefully consider the context in which the suspect was questioned. Nonetheless, a transcript of a suspect questioning is different from a statement introduced at trial pursuant to Rule 92bis. This shows that there are substantial differences between the transcript of a questioning conducted according to Rules 42 and 43 and a statement prepared with a view to introducing it into the trial proceedings pursuant to Rule 92bis.

38. […] Witnesses, under the Tribunal’s rules, are generally questioned by the parties in court after having made a solemn declaration; they may be subjected to cross-examination by the opposing party, as well as to questions from the bench. In particular, judges are thus in a position to observe a witness’s demeanour while he gives evidence.[1] […]

11. The same standard of reasonableness and the same deference to factual findings of the Trial Chamber apply when the Prosecution appeals against an acquittal. Thus, when considering an appeal by the Prosecution, the Appeals Chamber will only hold that an error of fact was committed when it determines that no reasonable trier of fact could have made the impugned finding.[1] However, since the Prosecution must establish the guilt of the accused at trial, the significance of an error of fact occasioning a miscarriage of justice takes on a specific character when alleged by the Prosecution.[2] In this context, the Appeals Chamber has endorsed the following holding by the ICTR Appeals Chamber:

[b]ecause the Prosecution bears the burden at trial of proving the guilt of the accused beyond a reasonable doubt, the significance of an error of fact occasioning a miscarriage of justice is somewhat different for a Prosecution appeal against acquittal than for a defence appeal against conviction. An accused must show that the Trial Chamber’s factual errors create a reasonable doubt as to his guilt. The Prosecution faces a more difficult task. It must show that, when account is taken of the errors of fact committed by the Trial Chamber, all reasonable doubt of the accused’s guilt has been eliminated.[3]

16. The Appeals Chamber notes that Halilović does not identify any authority for his assertion that the Prosecution’s right to appeal against acquittals should be exercised only exceptionally, nor does he provide support for his claim that such an appeal would have to reach a higher threshold of “diligence” to be exercised by the appellant in such a case.[4] Similarly, Halilović fails to specify on what ground he bases his assertion that an appeal against acquittal by the Prosecution would have, as a pre-condition, to serve the “purposes for which th[e] [International] Tribunal has been created”,[5] in a manner different from all other appeals against judgements rendered by the International Tribunal. The Appeals Chamber also stresses that it is not its task, as suggested by Halilović, to ascertain whether the Prosecutor has fulfilled her responsibilities in accordance with the Completion Strategy laid out in Security Council Resolution 1503 (2003).[6] The Appeals Chamber further considers that Halilović has failed to point to any element suggesting that the Prosecution abused its discretion in appealing his acquittal. It should also be recalled that the Appeals Chamber has already dismissed Halilović’s request to dismiss the appeal without hearing the parties’ arguments.[7] Thus, Halilović’s request for summary dismissal of the entire appeal is denied.

38.    […] It is clear that the Trial Chamber instead excluded the Statement because, in accordance with Rule 89(D) of the Rules, it did not deem the statement reliable enough, so that it could have threatened the fairness of the proceedings.[1] The Appeals Chamber is only called to decide on whether this specific decision was unreasonable.

39.     The language used by the Trial Chamber throughout its decision shows that, with no way to test the accuracy of the Statement or its interpretation, its reliability was in doubt.[2] The circumstances of the case, which included the fact that the Statement was being tendered from the bar table, the summary format of the document and the fact that no record of any kind was offered to show its reliability, had an impact upon Halilović’s ability to challenge the content of the Statement and prepare an effective defence without forfeiting his right to remain silent. […]

40.     The Appeals Chamber is not satisfied that the Prosecution has shown that the Trial Chamber in this instance abused its discretion. The issue of whether the Statement contained relevant and probative evidence, in the sense of Rule 89(C) of the Rules, is therefore moot.

See below for separate  opinions on the matter.

59. […] the Appeals Chamber recalls that the concept of effective control over a subordinate – in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised – is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute. Against this backdrop, the Appeals Chamber recalls that the necessity of proving that the perpetrator was the “subordinate” of the accused (against whom charges have been brought under Article 7(3) of the Statute) does not require direct or formal subordination. Rather, the accused has to be, by virtue of his position, senior in some sort of formal or informal hierarchy to the perpetrator.

210. In any event, even assuming that Halilović had the ability to contribute to an investigation or to the punishment of the perpetrators of the crimes committed in Grabovica, these abilities can only amount to effective control relevant for Article 7(3) of the Statute if they are the consequence of a relationship of subordination between Halilović and these perpetrators.[2] Indeed, the Appeals Chamber recalls that the material ability to punish and its corresponding duty to punish can only amount to effective control over the perpetrators if they are premised upon a pre-existing superior-subordinate relationship between the accused and the perpetrators. In this regard, the ability to exercise effective control in the sense of a material power to prevent or punish necessitates a pre-existing relationship of subordination, hierarchy or chain of command.[3] Of course, the concepts of subordination, hierarchy and chains of command need not be established in the sense of formal organisational structures so long as the fundamental requirement of effective control over the subordinate, in the sense of material ability to prevent or punish criminal conduct, is satisfied.[4]