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]

85. […] the exercise of effective control by reason of Halilović’s position as the most senior ranking officer in Herzegovina cannot be said to have been pleaded implicitly in this paragraph either, mainly because, for the purposes of criminal responsibility as a superior, de jure power is not synonymous with effective control. In fact, the former may not in itself amount to the latter. The same applies with respect to de facto power: a de facto superior must be found to wield substantially similar powers of control as de jure superiors who exercise effective control over subordinates to be held criminally responsible for their acts. It therefore cannot be said that pleading the exercise of both de jure and de facto power amounts to pleading effective control.[1]

182. On the one hand, the Appeals Chamber agrees with Halilović that the issue of the alleged failure to investigate has to be seen as an integral part of the assessment of a superior’s duty to punish.[1] On the other hand, however, the ability to initiate criminal investigations against the perpetrators may be an indicator of effective control.[2] Therefore, Halilović’s ability in this respect has to be carefully assessed in order to establish whether he had effective control over the perpetrators of the crimes committed in Grabovica. Indeed, as the Trial Chamber correctly outlined, “the duty to punish includes at least an obligation to investigate possible crimes or have the matter investigated, to establish the facts, and if the superior has no power to sanction, to report them to the competent authorities”. In this regard, the instruction Halilović gave Džanković “to collect as much information as possible and send it and inform the Sarajevo command about it”,[4] read together with Delić’s order to Halilović,[5] could suggest that Halilović had at least the ability to order an investigation and then prepare a report for his superiors.[6] The Appeals Chamber recalls in this regard that “reporting criminal acts of subordinates to appropriate authorities is eviden[ce] of the material ability to punish them in the circumstances of a certain case, albeit to a very limited degree”.[7]

129. […] a trier of fact is called upon to make findings beyond reasonable doubt based on all of the evidence on the trial record – direct or circumstantial – not only on facts which are essential to proving the elements of the crimes and the forms of responsibility. There might be other facts that need to be proven beyond reasonable doubt due to the way in which the case was pleaded in the indictment and presented during trial to the Defence and to the Trial Chamber. All facts underlying the elements of the crime or the form of responsibility alleged as well as all those, which are indispensable for entering a conviction, must be proven beyond reasonable doubt.[1]

130. In Vasiljević, for example, the Appeals Chamber addressed very clearly the issue that a specific factual finding may or may not be necessary to reach a conclusion beyond reasonable doubt as to the element of a crime, depending on the specific circumstances of the case and on the way the case was pleaded.[2]

11. […] However, the Appeals Chambers of both this Tribunal and of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) have also held that the right to be present at trial is not absolute.[1] In the Zigiranyirazo Decision, this Appeals Chamber held that an accused person can waive or forfeit the right to be present at trial.[2] The Appeals Chamber noted that Rule 80(B) of the Rules allows a Trial Chamber to remove an accused for persistent disruption of the proceedings. It further held that in determining to restrict any statutory right of an accused, the Appeals Chamber must take into account “the proportionality principle, pursuant to which any restriction on a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.”[3]

15. […] The Appeals Chamber holds that the Trial Chamber’s comparison between the limitations placed on the Appellant’s “access […] to the examination of a witness”[1] and the restrictions permitted under Rules 92bis and 94(B) of the Rules is misguided. Rules 92bis and 94(B) address the proof of facts of a matter other than the acts of the accused. In the present case, the issue was quite different, namely, whether the presence of an accused is required during the cross-examination of a witness by a co-accused or his counsel. In the circumstances of a joint trial, it is irrelevant for the purpose of that determination whether or not the witness’s testimony was likely to concern the alleged acts and conduct of a co-accused only.