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Decision on Conflict of Interest (Markač) - 04.05.2007 |
GOTOVINA et al. (IT-06-90-AR73.1) |
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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] [1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojić Against Trial Chamber’s Decision on Request for Appointment of Counsel, 24 November 2004 (“Stojić Decision”), para. 22; Simić Decision [Prosecutor v. Blagoje Simić et al., Case No. IT-95-9-PT, Decision on Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarević, 25 March 1999], p. 6. |
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Notion(s) | Filing | Case |
Decision on Conflict of Interest (Markač) - 04.05.2007 |
GOTOVINA et al. (IT-06-90-AR73.1) |
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24. As noted above, the Appellant has not denied personal knowledge of the relevant information which he has presented in his submissions that the Ministry of Justice was not responsible for the military courts. In these circumstances, the Appeals Chamber agrees with the Trial Chamber that his denial at this early stage of proceedings that it was the Ministry of Justice that was responsible for the military courts, thereby eliminating a defence strategy that was otherwise open to Markač, may be considered a significant indication of a conflict of interest. […] 38. In the present case, the Appellant, as counsel, has been found to have a personal interest on account of his previous position as Minister of Justice.[1] Further, because he has personal knowledge directly relevant to the crimes allegedly committed by the three accused in the Indictment, he is likely to be called as a necessary witness for one of the accused. Such a conflict affects the essential fairness of the trial to all accused persons in this case. Cumulatively, these factors make his continued representation of Markač incompatible with the best interests of justice. […] [1] See para. 24 supra. |
Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal. | |
Notion(s) | Filing | Case |
Decision on Conflict of Interest (Markač) - 04.05.2007 |
GOTOVINA et al. (IT-06-90-AR73.1) |
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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. [1] First Impugned Decision, pp. 7 and 8. |
Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal. | |
Notion(s) | Filing | Case |
Decision on Conflict of Interest (Markač) - 04.05.2007 |
GOTOVINA et al. (IT-06-90-AR73.1) |
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12. […] The Appeals Chamber notes that most of the Annexes, that is, except Annexes 2 and 3 in the addendum, are being introduced for the first time on appeal. In order for the said information to become part of the record, they have to be admitted as additional evidence pursuant to Rule 115 of the Rules.[1] Because the Appellant has failed to move for their admission pursuant to Rule 115, they will not be considered by the Appeals Chamber. [1] Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005, para. 37. |
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Notion(s) | Filing | Case |
Decision on Conflict of Interest (Markač) - 04.05.2007 |
GOTOVINA et al. (IT-06-90-AR73.1) |
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The Appeals Chamber has reiterated the standard of review applicable to interlocutory appeals against discretionary decisions of a Trial Chamber: 11. The Appeals Chamber recalls that an interlocutory appeal is not a de novo review of the Trial Chamber’s decision.[1] Since decisions on matters relating to the calling of witnesses and assignment of counsel at trial fall squarely within the discretion of the Trial Chamber,[2] the question before the Appeals Chamber is not whether it “agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[3] The party challenging a discretionary decision by the Trial Chamber must demonstrate that the Trial Chamber has committed a “discernible error”.[4] The Appeals Chamber will overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion”.[5] [1] Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007 (“Lukić Provisional Release Decision”), para. 4; Prosecutor v. Mico Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Provisional Release Decision”), para. 6. [2] Clarification Decision [Prosecutor v. Ante Gotovina, Ivan Čermak and Mladen Markač, Case Nos. IT-01-45-AR73.1, IT-03-73-AR73.1 and IT-03-73-AR73.2, Decision on Appellant Mladen Markač’s Motion for Clarification, 12 January 2007], p. 4. See also, Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 (“Milošević Decision on Defence Counsel”), para. 9. [3] Lukić Provisional Release Decision, para. 4; Stanišić Provisional Release Decision, para. 6. [4] Lukić Provisional Release Decision, para. 5; Stanišić Provisional Release Decision, para. 6. [5] Milošević Decision on Defence Counsel, para. 10, Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.4, Decision on Appeal Against the Trial Chamber’s Decision (No.2) on Assignment of Counsel, 8 December 2006, para. 16. |
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Notion(s) | Filing | Case |
Decision on Conflict of Interest (Markač) - 04.05.2007 |
GOTOVINA et al. (IT-06-90-AR73.1) |
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37. As previously stated by the Appeals Chamber, in principle, the choice of any accused regarding his defence counsel in proceedings before the International Tribunals should be respected unless there are sufficient grounds to override the accused’s preference in the interests of justice.[1] When the fairness of the trial which is one of the fundamental rights of the accused also provided for in Article 21 of the Statute is at stake, as is suggested in the present case, the accused’s choice might be overridden.[2] It is established jurisprudence that one of the limits to the accused’s choice is the existence of a conflict of interest affecting his counsel.[3] [1] Stojić Decision [FULL NAME], para. 19; Appeals Chamber Decision on Joinder [Prosecutor v. Ante Gotovina, Case No. IT-01-45-AR73.1, Prosecutor v. Ivan Čermak and Mladen Markač, Case Nos. IT-03-73-AR73.1 and IT-03-73-AR73.2, Decision on Interlocutory Appeal Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 30. [2] Stojić Decision, para. 19. [3] Stojić Decision, para. 19; see also Prosecutor v. Željko Mejakić et al, Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 8. |
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Decision on Adding Wesley Clark to Witness List - 20.04.2007 |
MILUTINOVIĆ et al. (IT-05-87-AR73.1) |
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The Prosecution argued that the Trial Chamber erred in not applying Rules 70(G) and 89(D) after the Trial Chamber heard General Clark’s testimony.[1] The Appeals Chamber held that the Trial Chamber correctly applied the Rules.[2] It then held: 18. Furthermore, this analysis does not change simply because the Trial Chamber was considering whether to admit a Rule 70 witness subject to conditions imposed by a Rule 70 provider. While Rule 70(C) and (D) of the Rules refers to certain restrictions on a Trial Chamber in hearing a witness testify to confidential material provided by a Rule 70 provider, those restrictions apply only after the Trial Chamber has determined that the Rule 70 witness testimony “elected” to be presented by a party at trial[3] is admissible under Rule 89 of the Rules. In making that determination, a Trial Chamber is entitled under Rule 70(G) of the Rules to consider whether the Rule 70 restrictions stipulated with respect to that witness testimony would undermine the need to ensure a fair trial and substantially outweigh the testimony’s probative value such as to lead to exclusion of that testimony. A Trial Chamber is not obliged to automatically admit such Rule 70 witness testimony where it is deemed relevant and probative and, only afterwards, asses the actual unfairness caused to the trial by the Rule 70 conditions as applied. The Appeals Chamber recalls that Rule 70 protections on confidential information provided by States have been incorporated in the International Tribunal’s Rules in recognition of the need of States for safeguards with respect to certain State interests. They have also been included to allow and to encourage States to fulfil their cooperation obligations under Article 29 of the Tribunal’s Statute[4] by providing a broad range of information relevant to a particular case.[5] However, this deference to States’ interests does not go so far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial.[6] In sum, under Rules 70(G) and 89(D) of the Rules, a Trial Chamber may, as the Trial Chamber did here, assess the conditions placed upon proposed Rule 70 witness testimony and determine, without hearing that testimony, that it may not be admitted on the basis that the Rule 70 conditions would result in substantial unfairness to the trial, which outweighs that testimony’s probative value. 19. The Appeals Chamber further finds that the Prosecution’s citation to the Martić Decision in support of its interpretation of the test under Rules (70G) and 89(D) of the Rules is inapposite. While in that decision the Appeals Chamber similarly considered whether limitations on the cross-examination of witness testimony would result in substantial unfairness to the trial which outweighs its probative value and thereby requires its exclusion under Rule 89(D) of the Rules, the question arose after the testimony had already been admitted by the Trial Chamber and only because of the unexpected death of the witness prior to the close of cross-examination. The Appeals Chamber in the Martić Decision did not address whether proposed witness testimony may be excluded prior to its admission under Rule 89(D) of the Rules because of the need to ensure a fair trial. Nor did it consider possible exclusion of proffered witness testimony because it was subject to Rule 70 conditions. [1] Decision, paras 13-15. [2] Decision, paras 16-17. [3] See Rule 70(C) and (F) of the Rules. [4] Article 29(1) of the Statute reads: “States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.” [5] Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-AR108bis.2, Decision on Request of the United States of America for Review, 12 May 2006 (“Decision of 12 May 2006”), para. 33. [6] See Article 20(1) of the Statute. See also Decision of 12 May 2006, para. 28, wherein the Appeals Chamber emphasized that “Rule 70 should not be used by States as a blanket right to withhold, for security purposes, documents necessary for trial from being disclosed by a party for use as evidence at trial as this would jeopardize the very function of the International Tribunal, and defeat its essential object and purpose” (internal quotation marks omitted). |
ICTR Rule Rule 70; Rule 89(D) ICTY Rule Rule 70; Rule 89(D) | |
Notion(s) | Filing | Case |
Decision on Adding Wesley Clark to Witness List - 20.04.2007 |
MILUTINOVIĆ et al. (IT-05-87-AR73.1) |
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The Prosecution argued that the Trial Chamber erred in concluding that forcing the Defence to seek prior approval to expand its scope of cross-examination would cause harm to the Defence that would substantially outweigh the probative value of the witnesses’ evidence.[1] The Appeals Chamber noted: 22. The Appeals Chamber notes that in the Impugned Decision, the Trial Chamber held that “[t]here is no obligation on the Defence to indicate in advance the line of cross-examination to be pursued” and that “[t]o require them to seek permission for examination on a particular subject would oblige them to make disclosure not required by the Rules.”[2] It considered that this Rule 70 condition required it to exclude the proposed testimony under Rules 70(G) and 89(D) of the Rules. The Appeals Chamber finds that the Prosecution has failed to demonstrate a discernible error in this approach. While the Trial Chamber did not specifically state to whom the Defence would unfairly be obliged to make disclosure with respect to its line of cross-examination, it is clear that it would at least have to do so to the Rule 70 provider and, consequently, General Clark as the witness. The Rule 70 provider would have to inform General Clark that he is allowed to answer questions beyond the original scope of cross-examination stipulated and, as a result, any advantage gained by pursuing a new line of cross-examination would be mitigated or even lost given that General Clark would be prepared for it. 23. Furthermore, as found above, the Trial Chamber was not required to find actual harm to the fairness of the trial that has resulted from the application of this Rule 70 condition upon admission of General Clark’s testimony into evidence in order to find that the testimony should be excluded under Rules 70(G) and 89(D).[3] Nor was it required to consider other remedies than exclusion of that testimony from the record once the harm was done. It was appropriate under Rules 70(G) and 89(D) of the Rules for the Trial Chamber to find that the application of this Rule 70 condition as it stands would result in unfairness that substantially outweighs the probative value of that testimony such that the testimony should not be admitted in the first place.[4] [1] Decision, para. 21. [2] Impugned Decision, para. 27. [3] See supra para. 17. [4] See supra paras 17-18, 20. |
ICTR Rule Rule 70 ICTY Rule Rule 70 | |
Notion(s) | Filing | Case |
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 |
KAREMERA et al. (ICTR-98-44-AR15bis.3) |
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The Appeals Chamber considered the implications of Security Council Resolution 1503 (2003)[1] and Security Council Resolution 1534 (2004)[2] on on-going trials in light of the 31 December 2008 deadline to complete all trials. It held that when assessing these implications, the overriding consideration must be the strict adherence to the “minimum guarantees afforded to accused persons pursuant to Article 20 of the Tribunal’s Statute”: 24. The Appeals Chamber notes that the remaining Judges expressed the view that the completion of all trials by 31 December 2008 is “more of a target date”[3] and that there was “nothing to suggest that unfair decisions and actions will be taken with regard to cases that are pending on 31 December 2008.”[4] The Appeals Chamber also notes that resolution 1503 urges the Tribunal to formalise a strategy to enable the Tribunal “to achieve its objective” of completing all trials by the end of 2008[5] and calls on the Tribunal “to take all possible measures” in this regard.[6] The Appeals Chamber is of the view that when assessing the implications of resolution 1503 and resolution 1534 to on-going trials, the overriding consideration must be the strict adherence to the minimum guarantees afforded to accused persons pursuant to Article 20 of the Tribunal’s Statute. The Appeals Chamber considers that the remaining Judges properly addressed this overriding consideration and sees no error in their interpretation of their obligations in the context of resolution 1503 and resolution 1534. The remaining Judges considered that the trial in the Applicants’ case could be completed fairly and expeditiously by 31 December 2008, by using appropriate trial management methods within their discretion and taking reasonable decisions.[7] In the event of the trial not being completed by the end of 2008, the remaining Judges stated that “reasonable decisions will be taken in the interests of justice [and] taking into account the rights of each co-Accused.”[8] The Appeals Chamber finds no error in this approach. [1] S/RES/1503 (2003) (“Resolution 1503”). [2] S/RES/1534 (2004) (“Resolution 1534”). [3] Impugned Decision, para. 87. [4] Impugned Decision, para. 87. [5] Resolution 1503, p. 2. [6] Resolution 1503, p. 3 at para. 7; Resolution 1534, p. 2 at para. 3. [7] Impugned Decision, para. 87. [8] Impugned Decision, para. 87. |
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Notion(s) | Filing | Case |
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 |
KAREMERA et al. (ICTR-98-44-AR15bis.3) |
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The ICTR Appeals Chamber followed the approach of the ICTY Appeals Chamber in the Orić case: 27. The Appeals Chamber notes that in the Orić case,[1] the ICTY Appeals Chamber stated that: [t]he Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour which may require less time and fewer witnesses. This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.[2] 28. The ICTY Appeals Chamber further held in the Orić Decision that the Trial Chamber has the authority to limit the length of time allocated to the Defence,[3] but that such limitations are always subject to the full respect for the rights of an accused as guaranteed in the Tribunal’s Statute.[4] Thus, in addition to whether the time given to an accused is relatively proportional to the time given to the Prosecution, the Trial Chamber must also consider whether the amount of time is objectively adequate to enable the accused to present his defence in a manner consistent with his rights.[5] [1] Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, (“Orić Decision”). [2] Orić Decision, para. 7. [3] Orić Decision, para. 8. [4] Orić Decision, para. 8. [5] Orić Decision, para. 8. |
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Notion(s) | Filing | Case |
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 |
KAREMERA et al. (ICTR-98-44-AR15bis.3) |
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At paras 42-43, the Appeals Chamber held: 42. The Appeals Chamber considers that the continuation of the proceedings with a substitute Judge in a case where witnesses have already been heard does not necessarily infringe on fair trial rights. As the Appeals Chamber previously stated: [t]here is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[1] 43. The Appeals Chamber also considers that, pursuant to Rule 15bis (D) of the Rules, a substitute Judge may only join the bench “after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings.” These safeguards ensure that fair trials rights are not compromised. In the present case, the remaining Judges took into consideration that the substitute Judge will need to review the “records of the proceedings, including the transcripts, audio and video-recordings, to observe the demeanour of the witness” in determining that it would be in the interests of justice to continue the proceedings with a substitute Judge.[2] [1] Butare Decision, para. 25. [2] Impugned Decision, para. 69. |
ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis | |
Notion(s) | Filing | Case |
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 |
KAREMERA et al. (ICTR-98-44-AR15bis.3) |
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The Appeals Chamber held in paragraph 19 of the decision that: 19. Rules 15bis (D) of the Rules confers on the remaining Judges the discretion to determine whether to continue the trial proceedings with a substitute Judge. In exercising this discretion, the remaining Judges have “the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered”.[1] The Appeals Chamber has previously stated that it can only intervene in this decision-making process in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the remaining Judges failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected.[2] It is not enough to show that the Appeals Chamber would have exercised the discretion differently.[3] [1] The Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Elie Ndayambaje, Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis (D), 24 September 2003 (“Butare Decision”), para. 23. [2] Butare Decision, para. 23. [3] Butare Decision, para. 23. |
ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis | |
Notion(s) | Filing | Case |
Decision on Disclosure - 17.04.2007 |
ŠEŠELJ Vojislav (IT-03-67-AR73.5) |
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14. It is well established in the jurisprudence of the Tribunal that Trial Chambers exercise discretion in many different situations, including “when deciding points of practice or procedure”.[1] The Impugned Decision, which ruled on the form of materials to be disclosed by the Prosecution under Rules 66 and 68 of the Rules, was such a discretionary decision to which the Appeals Chamber must accord deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] As previously held by the Appeals Chamber, “[w]here an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision”.[3] Thus, when challenging a discretionary decision, the moving party must establish that the Trial Chamber committed a “discernible” error resulting in prejudice to that party.[4] The Appeals Chamber will only overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.”[5] [1] Prosecutor v. Slobodan Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal From Refusal to Order Joinder, 18 April 2002 (“Milošević Decision on Joinder”), para. 3; see also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 8; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006 (“Prlić Decision on Cross-Examination”), p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Decision on Radivoje Miletić’s Interlocutory Appeal”), para. 4; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision on the Assignment of Defence Counsel”), para. 9. [2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4; Milošević Decision on Defense Counsel, para. 9. [3] Milošević Decision on Joinder, para. 4. [4] Appeals Chamber’s Decision of 8 December 2006, para. 16; see also Prlić Decision on Cross-Examination, p. 3 citing Milošević Decision on Joinder, para. 4. See also ibid., paras. 5-6; see also Milošević Decision on the Assignment of Defence Counsel, para. 10; Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Provisional Release Decision”), para. 6. [5] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 & n. 17 citing Stanišić Provisional Release Decision, para. 6 & n. 10. The Appeals Chamber will also consider whether the Trial Chamber “has given weight to extraneous or irrelevant considerations or that it has failed to give weight or sufficient weight to relevant considerations . . . .” Milošević Decision on Joinder, para. 5. |
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Notion(s) | Filing | Case |
Decision on Disclosure - 17.04.2007 |
ŠEŠELJ Vojislav (IT-03-67-AR73.5) |
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19. […] The Trial Chamber considered the “particular circumstances” of Mr. Šešelj’s representation including the fact that he is “not officially assisted by persons fluent in one of the official languages of the Tribunal”,[1] and whether disclosure of Rule 66 (A) and (B) and Rule 68 (i) and (ii) materials in English and in electronic format would affect Mr. Šešelj’s rights under Article 21 of the Statute. It held that electronic disclosure of Rule 66 (A) and (B) and Rule 68(i) materials did not breach the fair hearing principle stipulated under Article 21 of the Statute so long as reasonable and necessary assistance in the circumstances is given to an accused and noted that Mr. Šešelj would be “entitled to receive from the Registry the basic equipment and training necessary to make effective use of material disclosed in electronic format”.[2] It also ruled that in addition to Rule 66(A) material, which expressly provides for disclosure in a language the accused understands, Rule 68(i) material should also be subject to the same language requirement, because of the crucial impact of such material on the accused’s guilt or innocence.[3] Mr. Šešelj does not provide any references to the jurisprudence that the Trial Chamber allegedly disregarded in reaching the Impugned Decision. Neither does Mr. Šešelj demonstrate in what way the Impugned Decision violated his rights under Article 21 of the Statute. [1] Impugned Decision, para. 7. [2] Ibid., paras 12-13. [3] Ibid., para. 15. |
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Notion(s) | Filing | Case |
Appeal Judgement - 03.04.2007 |
BRĐANIN Radoslav (IT-99-36-A) |
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Regarding aiding and betting by tacit approval and encouragement, the Appeals Chamber held: 273. […] An accused can be convicted for aiding and abetting a crime when it is established that his conduct amounted to tacit approval and encouragement of the crime and that such conduct substantially contributed to the crime.[1] This form of aiding and abetting is not, strictly speaking, criminal responsibility for omission.[2] […] The Trial Chamber in Kayishema and Ruzindana held that “individual responsibility pursuant to Article 6(1) [that is, individual criminal responsibility under 7(1) of the Tribunal’s Statute] is based, in this instance, not on a duty to act, but from the encouragement and support that might be afforded to the principals of the crime from such an omission.”[3] In such cases the combination of a position of authority and physical presence on the crime scene allowed the inference that non-interference by the accused actually amounted to tacit approval and encouragement.[4] [1] Aleksovski Trial Judgement, para. 87; Kayishema and Ruzindana Appeal Judgement, paras 201-202; Akayesu Trial Judgement, para. 706. [2] Ntagerura et al. Appeal Judgement, para. 338 (for the parallel provision in Article 6(1) of the ICTR Statute). [3] Kayishema and Ruzindana Trial Judgement, para. 202, upheld by Kayishema and Ruzindana Appeal Judgement, paras 201-202. [4] Kayishema and Ruzindana Trial Judgement, para. 200, referring to the discussion of the Synagogue case in the Furundžija Trial Judgement, para. 207. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
Notion(s) | Filing | Case |
Appeal Judgement - 03.04.2007 |
BRĐANIN Radoslav (IT-99-36-A) |
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With regard to aiding and abetting by omission proper, the Appeals Chamber declined to discuss this mode of responsibility in detail, but recalled: 274. […] The Appeals Chamber has recently affirmed that omission proper may lead to individual criminal responsibility under Article 7(1) of the Statute where there is a legal duty to act.[1] However, it has never set out the requirements for a conviction for omission in detail,[2] and it has so far declined to analyse whether omission proper may lead to individual criminal responsibility for aiding and abetting.[3] [1] Galić Appeal Judgement, para. 175, referring to Blaškić Appeal Judgement, para. 663 and Ntagerura et al. Appeal Judgement, para. 334. See also Tadić Appeal Judgement, para. 188: “This provision [Article 7(1) of the Statute] covers first and foremost the physical perpetration of a crime by the offender himself, or the culpable omission of an act that was mandated by a rule of criminal law.” [2] The most comprehensive statement of these requirements can be found in the Ntagerura et al. Trial Judgement, para. 659, cited by Ntagerura et al. Appeal Judgement, para. 333: “[I]n order to hold an accused criminally responsible for an omission as a principal perpetrator, the following elements must be established: (a) the accused must have had a duty to act mandated by a rule of criminal law; (b) the accused must have had the ability to act; (c) the accused failed to act intending the criminally sanctioned consequences or with awareness and consent that the consequences would occur; and (d) the failure to act resulted in the commission of the crime.” [3] “The Appeals Chamber leaves open the possibility that in the circumstances of a given case, an omission may constitute the actus reus of aiding and abetting”, Blaškić Appeal Judgement, para. 47; see also Simić Appeal Judgement, para. 85, fn. 259. In the Simić Appeal Judgement (para. 133), the Appeals Chamber upheld Simić’s conviction for aiding and abetting persecutions (confinement under inhumane conditions) inter alia for the “deliberate denial of adequate medical care to the detainees”. But this was understood as “active participation in the crime of persecutions”, Simić Appeal Judgement, para. 82, fn. 254. |
ICTR Statute Article 6(1) ICTY Statute Article 7(1) | |
Notion(s) | Filing | Case |
Appeal Judgement - 03.04.2007 |
BRĐANIN Radoslav (IT-99-36-A) |
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According to the Appeals Chamber’s interpretation of the Trial Judgement, the Trial Chamber had found that to enter a conviction under the JCE doctrine, “in addition to the existence of a common purpose amounting to or involving the commission of a crime provided for in the Statute, an agreement between the accused and the principal perpetrator” has to be proven (para. 417). The Appeals Chamber rejected this additional requirement: 419. […] [T]he Appeals Chamber considers that the Trial Chamber erred in stating that, in order to hold the Accused criminally responsible for the crimes charged in the Indictment pursuant to the first category of JCE, the Prosecution must, inter alia, establish that between the person physically committing a crime and the Accused, there was an understanding or an agreement to commit that particular crime. Moreover, the Trial Chamber erred when it required that, in order to hold the Accused responsible pursuant to the third category of JCE, the Prosecution must prove that the Accused entered into an agreement with a person to commit a specific crime (in this case, the crimes of deportation and/or forcible transfer) and that this same person personally committed another crime, which was a natural and foreseeable consequence of the execution of the crime agreed upon. |
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Notion(s) | Filing | Case |
Appeal Judgement - 03.04.2007 |
BRĐANIN Radoslav (IT-99-36-A) |
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The Trial Chamber had held that a conviction for a crime under the JCE doctrine requires that the person actually committing the actus reus of the crime (“principal perpetrator”) is a member of the same criminal enterprise. The Appeals Chamber reversed this finding and found: 410. […] that what matters in a first category JCE is not whether the person who carried out the actus reus of a particular crime is a member of the JCE, but whether the crime in question forms part of the common purpose.[1] […] 411. When the accused, or any other member of the JCE, in order to further the common criminal purpose, uses persons who, in addition to (or instead of) carrying out the actus reus of the crimes forming part of the common purpose, commit crimes going beyond that purpose, the accused may be found responsible for such crimes provided that he participated in the common criminal purpose with the requisite intent and that, in the circumstances of the case, (i) it was foreseeable that such a crime might be perpetrated by one or more of the persons used by him (or by any other member of the JCE) in order to carry out the actus reus of the crimes forming part of the common purpose; and (ii) the accused willingly took that risk – that is the accused, with the awareness that such a crime was a possible consequence of the implementation of that enterprise, decided to participate in that enterprise. […] 413. […] [T]he Appeals Chamber finds that, to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The existence of this link is a matter to be assessed on a case-by-case basis.[2] [1] See infra, paras 418-419. [2] The jurisprudence of the Tribunal traditionally equates a conviction for JCE with the mode of liability of “committing” under Article 7(1). The Appeals Chamber declines at this time to address whether this equating is still appropriate where the accused is convicted via JCE for crimes committed by a principal perpetrator who was not part of the JCE, but was used by a member of the JCE. |
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Notion(s) | Filing | Case |
Appeal Judgement - 03.04.2007 |
BRĐANIN Radoslav (IT-99-36-A) |
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The Appeals Chamber affirmed that the application of the JCE doctrine is not limited to relatively small-scale cases, such as involving only one municipality. 425. […] It is true that in several cases of the Tribunal, the mode of liability of JCE was applied to relatively small-sized cases. However, that depended, and the decisions in question did not state otherwise, on the size of the cases themselves and not on the existence of a legal requirement that JCE apply only to small-scale cases. In view of the foregoing, the Appeals Chamber agrees with the Prosecution that the Trial Chamber erred in concluding that the mode of liability of JCE is not appropriate for cases as large as the one at hand. |
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Notion(s) | Filing | Case |
Appeal Judgement - 03.04.2007 |
BRĐANIN Radoslav (IT-99-36-A) |
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At the end of its discussion, the Appeals Chamber summarised the requirements for a conviction under the JCE doctrine. Apart from the requisite intent (para. 429), these requirements were enumerated as follows: 430. […] A trier of fact must find beyond reasonable doubt that a plurality of persons shared the common criminal purpose; that the accused made a contribution to this common criminal purpose; and that the commonly intended crime (or, for convictions under the third category of JCE, the foreseeable crime) did in fact take place.[1] Where the principal perpetrator is not shown to belong to the JCE, the trier of fact must further establish that the crime can be imputed to at least one member of the joint criminal enterprise, and that this member – when using the principal perpetrator – acted in accordance with the common plan. In establishing these elements, the Chamber must, among other things: identify the plurality of persons belonging to the JCE (even if it is not necessary to identify by name each of the persons involved); specify the common criminal purpose in terms of both the criminal goal intended and its scope (for example, the temporal and geographic limits of this goal, and the general identities of the intended victims); make a finding that this criminal purpose is not merely the same, but also common to all of the persons acting together within a joint criminal enterprise;[2] and characterize the contribution of the accused in this common plan. On this last point, the Appeals Chamber observes that, although the contribution need not be necessary or substantial,[3] it should at least be a significant contribution to the crimes for which the accused is to be found responsible.[4] [1] See Tadić Appeal Judgement, para. 227. [2] Stakić Appeal Judgement, para. 69. [3] Kvočka et al. Appeal Judgement, paras 97-98. [4] See supra, para. 427. Moreover, “[i]n practice, the significance of the accused’s contribution will be relevant to demonstrating that the accused shared the intent to pursue the common purpose.” Kvočka et al. Appeal Judgement, para. 97. |