328. The Appeals Chamber holds that the Trial Chamber permissibly considered Blagojević’s participation in de-mining activities under the broad category of post-conflict conduct that goes to the character of the accused. In the Babić Sentencing Appeal, the Appeals Chamber observed that “[n]either the Statute nor the Rules exhaustively define the factors which may be taken into account by a Trial Chamber in mitigation or aggravation of a sentence.”[1] In that case, the Appeals Chamber provided a non-exhaustive list of twelve factors that have been taken into account in connection with mitigation. Notably, the Babić Appeals Chamber placed remorse within the broader context of the “character of the accused after the conflict”.[2] The Appeals Chamber did not specify how other post-conflict conduct – distinguishable from remorse – could evidence the character of the accused in mitigation of a sentence. Leaving such considerations to the Trial Chambers, the Appeals Chamber recognized that they are “endowed with a considerable degree of discretion in deciding on the factors which may be taken into account”.[3] In the present case, the Trial Chamber considered that Blagojević’s active engagement in planning, managing, and organizing a system of de-mining in the army of the Republika Srpska was a relevant mitigating circumstance, without placing it under the rubric of remorse.[4]

330. The Appeals Chamber […] considers that conduct of an accused that promotes reconciliation in the former Yugoslavia may be considered as a mitigating circumstance whether or not it is directly connected to the harm the accused caused. The Appeals Chamber observes that the Plavsić and Miodrag Jokić cases do not stand for a different proposition. In the Plavsić Sentencing Judgement, the Trial Chamber credited Biljana Plavsić for “ensuring that the Dayton Agreement was accepted and implemented in Republika Srpska.”[5] In the case of Miodrag Jokić, the Trial Chamber credited him for post-war “participat[ion] in political activities programmatically aimed at promoting a peaceful solution to the conflicts in the region.”[6] Similarly, the Trial Chamber here credited Blagojević for taking a leadership role in implementing one aspect of the Dayton Peace Accords, as previous Trial Chambers, cited by the Prosecution, have credited convicted persons for implementing that agreement.

Blagojević requested a new trial to rectify alleged violations of his right to counsel of his choice, right to competent counsel, and right to appear as a witness in his own trial.

21. […] The Appeals Chamber considers that an appellant cannot premise a request for a new trial on a claim of a total breakdown in communication in circumstances where the appellant unjustifiably refused to cooperate with his or her assigned counsel throughout the trial proceedings.

Also see infra on Judge Shahabuddeen’s Dissenting Opinion.

333. The Appeals Chamber has noted that the precedential effect of sentences rendered by the International Tribunal is very limited because: (1) comparisons between sentences can only be undertaken where the offences are the same and committed in substantially similar circumstances; and (2) each Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[1] See paras 334-335 for the specific comparison criteria used in this case.

9. When considering an alleged error of fact with respect to a particular ground where no additional evidence has been admitted on appeal, the Appeals Chamber will apply a standard of reasonableness in reviewing the finding.[1] […] In determining whether or not a Trial Chamber’s finding was reasonable, the Appeals Chamber does not lightly disturb findings of fact made by a Trial Chamber.[2] The Appeals Chamber recalls, as a general principle, the approach adopted by the Appeals Chamber in the Kupreškić et al. case, wherein it was stated that […].

226. The standard of proof at trial requires that a Trial Chamber may only find an accused guilty of a crime if the Prosecution has proved each element of that crime and of the mode of liability, and any fact which is indispensable for the conviction, beyond reasonable doubt.[1] This standard applies whether the evidence evaluated is direct or circumstantial.[2] The Appeals Chamber has previously endorsed an approach where, similar in parts to the present case, a Trial Chamber individually examined evidence with respect to a number of incidents and subsequently assessed the accused’s criminal responsibility for those incidents.[3]

302. The Appeals Chamber does not consider the conclusions regarding the scope of Blagojević’s authority irreconcilable with the finding that he exercised no effective control over Momir Nikolić. In the Čelebići Appeal Judgement, the Appeals Chamber discussed the possibility that de jure authority alone may not lead to the imposition of command responsibility.[1] The relevant discussion indicated “possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control.”[2] […]

82. Accomplice testimony is not per se unreliable, and its use by a Trial Chamber, in and of itself, does not constitute error. Such evidence, however, must be carefully considered in light of the circumstances under which it was given. […] In the view of the Appeals Chamber, the Trial Chamber treated this evidence with appropriate caution. […]

14. The Appeals Chamber ultimately confirmed that as a participant in the International Tribunal’s legal aid program, Blagojević did not have the absolute right to choose his counsel;[1] that the Registrar had properly assigned competent counsel committed to representing Blagojević’s interests;[2] that good cause did not exist for removing his duly assigned defence team;[3] and that he was not justified in unilaterally refusing to cooperate with his lawyers.[4] […]

17. Blagojević submits that the Trial Chamber violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel. This submission consists of two principal arguments. First, Blagojević maintains that, even as a participant in the International Tribunal’s legal aid system, he has a right to counsel of his choice. This argument has no merit. An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel.[5] While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule 45, as previously explained in this case, the Registrar normally takes account of an accused’s preferences in assigning counsel, as was done in the present case, but it is also within the Registrar’s discretion to override that preference in the interests of justice.[6] Once counsel has been properly assigned, as was the case here, counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced, if sufficient cause exists.[7]

145. The Appeals Chamber has previously noted that, although a Trial Chamber’s factual findings are governed by the legal rule that facts essential to establishing the guilt of an accused have to be proven beyond reasonable doubt, this does not affect their nature as factual conclusions.[1] A party arguing that a Trial Chamber based its factual conclusions on insufficient evidence therefore submits that the Trial Chamber committed an error in fact, not an error in law.

17. […] After the question of whether the Appellant would in fact be a “necessary witness” was remitted to the Trial Chamber, pursuant to the Clarification Decision, the Trial Chamber found that it “reasonably foresees the likelihood that the Appellant will be called as a witness in this case because of his position as former Minister of Justice at the time of alleged crimes”.[1]

18. The Appeals Chamber finds no error in this conclusion. Article 26 of the Code of Professional Conduct only envisages that “Counsel shall not act as an advocate in a proceeding in which counsel is likely to be a necessary witness”.[2] The Appeals Chamber notes that because their trials have been joined, Gotovina, Cermak and Markač are in the same proceeding. Although the Prosecution did not envisage calling the Appellant as a witness, and Markač and Čermak appear to hold the view that their respective defence strategies will not involve calling the Appellant as a witness, Gotovina has not ruled out the possibility of calling him as a witness. Further, the Trial Chamber has not ruled out at this stage that it might choose to call him as a witness.[3]

19. In addition, should the Appellant be called to testify, the Trial Chamber is not precluded from using his evidence in support of or against Čermak or Markač.[4] The Appeals Chamber recalls that the Trial Chamber found that the cases of the three accused are inherently connected because they took place in the same geographic area, in the same time period and in the course of the same military operation, and that they were allegedly committed pursuant to the same joint criminal enterprise of which all three accused are alleged to be members.[5] On the basis of this factual nexus some of the evidence, including that of the Appellant, may be the same.