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.

23. […] The Appeals Chamber also recalls that a conflict of interest between an attorney and a client arises in any situation 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]

28. As noted by the Trial Chamber, due to the compelling circumstances of the Appellant’s own personal interest in this case, the harm caused to Markač and the integrity of the proceedings if the Appellant were to continue as his counsel in the proceedings would clearly and demonstrably outweigh any hardship suffered by Markač as a result of the Appellant’s withdrawal as his counsel.[1] Furthermore, the Appeals Chamber notes that the Markač is also represented by co-counsel who will likely continue to represent him in the absence of one of the exceptions under Article 9(B) of the Code of Professional Conduct.

29. The Appeals Chamber further finds that, even though the Appellant’s withdrawal will inevitably cause a delay in the proceedings, there could be greater hardship to Markač at a later stage of the proceedings, should the conflict of interest regarding the Appellant’s representation of Markač not be resolved at the present stage. The Appeals Chamber notes in this respect that, for example, Gotovina’s Defence has not waived his right to call the Appellant as a witness and that therefore the Appellant could still face withdrawal pursuant to Article 26 of the Code of Professional Conduct. The Appeals Chamber is of the view that such situation is likely to irreversibly prejudice the administration of justice.