Brđanin’s appeal was characterized by a large number of factual challenges. The Appeals Chamber identified eight categories of alleged errors which were summarily dismissed (paras 19-31):

(1)   Challenges to factual findings on which a conviction does not rely,

(2)   Arguments that misrepresent the Trial Chamber’s factual findings or the evidence, or that ignore other relevant factual findings made by the Trial Chamber,

(3)   Mere assertions that the Trial Chamber must have failed properly to consider relevant evidence,

(4)   Mere assertions that no reasonable Trial Chamber could have reached a particular conclusion by inferring it from circumstantial evidence,

(5)   Arguments that are clearly irrelevant or that lend support to the challenged finding,

(6)   Arguments that challenge a Trial Chamber’s reliance or failure to rely on one particular piece of evidence, disregarding the remaining evidence,

(7)   Arguments contrary to common sense, and

(8)   Challenges to factual findings where the relevance of the factual finding is unclear and has not been explained by the Appellant.

At para. 53, the Appeals Chamber recalled the applicable law when additional evidence is admitted on appeal, and specified that findings pertaining to mitigating circumstances are reached “on a balance of probabilities”:

53. In light of the above, the Appeals Chamber will now determine whether the Trial Chamber correctly assessed the evidence before it when evaluating the Appellant’s cooperation. The Appeals Chamber will then assess the value, if any, of the additional evidence admitted on appeal, and itself determine whether this material, when considered together with the materials before the Trial Chamber, warrants, on a balance of probabilities,[1] a finding of substantial cooperation and a reduction of sentence.

See also para. 8 and footnote 23.

The Appeals Chamber noted that, although cooperation with the Prosecution is the only mitigating factor referred to expressly in the Rules, “substantial cooperation” is not defined, and it is for the Trial Chamber to assess the extent and the nature of the accused’s cooperation. The Appeals Chamber considered that the assessment of whether or not the cooperation is “substantial” “primarily depends on the specific circumstances of each case and that substantial cooperation does not solely rest on one specific act of an accused but must be assessed as a whole”. The qualification of an accused’s cooperation as “substantial” will depend on the quantity and the quality of the information provided. See paragraph 51.

52. The Appeals Chamber stresses that the assessment of the quality of the provided information primarily depends on its “actual content”. In this regard, the provision of new information, “heard for the first time before this Tribunal”, has to be seen as particularly valuable. Special weight has previously also been given to the provision of unique and corroborative information to the Prosecution, as well as the identification of new crimes and perpetrators and of previously unknown mass graves. However, the content of the information is not the only criteria to be taken into account in the assessment of the quality of the information. Such quality […] will also depend on the earnestness of the accused in providing it.[2] […] Further, while the actual use by the Prosecution in other proceedings before the International Tribunal of information provided by an accused is not […] in itself proof of the quality of the submitted information, such use has to be seen […] as a significant indication of the value of this information.

On the earnestness of an accused’s cooperation, see also para. 63.

At para. 63, the Appeals Chamber also considered the determination within a plea agreement of any cooperation to be provided by an accused as significant indication of an accused’s willingness to cooperate with the Prosecution:

63. […] Although such specification is not mandatory, its inclusion is a significant indication of an accused’s willingness to cooperate with the Prosecution. It establishes clear obligations on the part of the accused, which can then be considered by a Trial Chamber when assessing the accused’s cooperation.

Bralo claimed that his cooperation went beyond mere cooperation with the Prosecution and argued that he actually cooperated “with the wider aims of the International Tribunal itself”. At para. 37, the Appeals Chamber found:

37. […] While the jurisprudence of the International Tribunal has consistently identified cooperation under Rule 101(B)(ii) of the Rules primarily as cooperation with the Prosecution,[1] cooperation is not to be “construed narrowly and singularly”,[2] and Trial Chambers accordingly have the discretion to take other forms of cooperation into account by examining them under different headings: what matters is that Trial Chambers fulfil their obligation under Rule 101(B)(ii) to consider all mitigating circumstances before them.[3]

27. […] The mens rea that attaches to contempt under Rule 77(ii) requires only knowledge of the facts that make the conduct of the accused illegal; that is, knowledge that the disclosure was in violation of an order of the Chamber. It is not a valid defence that one did not know that disclosure of the protected information in violation of an order of a Chamber was unlawful. As the Appeals Chamber has previously stated, where a person is subject to the International Tribunal’s authority, that person must abide by its orders “regardless of his personal view of the legality of those orders”.[1] Likewise, an accused may not raise a mistake of law as a defence to his knowing breach of an order of the International Tribunal on the ground that the mistake was founded on legal advice.

36. […] Rule 77(D)(i) provides in relevant part that that where a Chamber has directed the Prosecutor to investigate a potential matter of contempt with a view to preparing and submitting an indictment for contempt and “the Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may […] direct the Prosecutor to prosecute the matter”. […] While Rule 77(D)(i) provides that a “Chamber” may direct the Prosecutor to prosecute a person for contempt, it does not preclude a Confirming Judge from authorizing the Prosecution to prosecute on behalf of the Trial Chamber that is seized with the matter.[1]

15. Although the Appeals Chamber has concluded that the Appellant has not shown “good cause” justifying the amendments to his grounds of appeal at this stage in the appeals proceedings, the Appeals Chamber recalls having under limited circumstances permitted amendments even where there was no good cause shown for failure to include the new or amended grounds in the original notice – that is where the failure resulted from counsel’s negligence or inadvertence. In such instances, the Appeals Chamber has permitted amendments which could be of substantial importance to the success of an appeal such as to lead to a miscarriage of justice if they were excluded.In these exceptional cases, the Appeals Chamber has reasoned, the interests of justice require that an appellant not be held responsible for the failures of his or her counsel. In the instant case, the Appeals Chamber concludes that the failure on the part of the Appellant’s Counsel to articulate these grounds at an earlier stage should not bar the Appellant from raising those grounds of appeal here. […]

15. […] The Appeals Chamber notes that each of these grounds goes to the issue of the sufficiency of the Indictment brought against the Appellant, which directly impacts upon his due process right under Article 21(4)(a) of the Statute “to be informed promptly and in detail […] of the nature and cause of the charge against him.” Protection of this right is considered to be of such importance that the issue of alleged defects in the indictment falls into the limited category of issues considered to be excepted from the waiver doctrine. In this case, therefore, the Appeals Chamber finds that the proposed new amendments, whether or not they are likely to succeed, could be of substantial importance to the Appellant’s appeal such that their exclusion would lead to a miscarriage of justice.[4]

16. The Appellant claims that, at the Appeal Hearing, the Prosecution raised new important factual challenges. The Appeals Chamber is of the view that the Appellant had the opportunity to object to the Prosecution’s allegedly new arguments during the Appeal Hearing but did not do so. […]Even if the Appellant was not in a position to exhaustively reply to those arguments at the Appeal Hearing, it was open to him to make a reasoned objection at the Appeal Hearing and, in case any allegedly new arguments had nevertheless been allowed by the Appeals Chamber, he should have sought leave, at the Appeal Hearing, to respond to them in writing at a later stage.[1]

17. The Appeals Chamber is not satisfied that the Appellant has shown that filing a written reply to the Prosecution’s allegedly new arguments raised at the Appeal Hearing would be necessary or justified in the present case. This type of submission is not provided for by the Rules or Practice Directions of the Tribunal and could only be allowed in rather exceptional circumstances.

13. The Appeals Chamber recalls that a brief in reply must be “limited to arguments in reply to the Respondent’s Brief” and therefore that it should not contain new allegations of error[1] Consequently, the Second Supplemental Reply Brief should have been limited to the Prosecution’s arguments in response to the Appellant’s supplemental arguments, which in turn should have been limited to the potential impact of the three elements of additional evidence admitted on appeal.[2] Without having sought leave from the Appeals Chamber, the Appellant chose to include in his Second Supplemental Reply Brief a “reply to assertions raised by the [P]rosecution for the first time during oral arguments that certain of Appellant’s factual arguments under the sub-heading 1.2(1) lack evidentiary support in the certified trial record”.[3] This procedure was improper.

P. 5: CONSIDERING, however, that “ex parte material, being of a higher degree of confidentiality, by nature contains information which has not been disclosed inter partes because of security interests of a State, other public interests, or privacy interests of a person or institution”[1] and that “[c]onsequently, the party on whose behalf ex parte status has been granted enjoys a protected degree of trust that the ex parte material will not be disclosed”;[2]

FINDING that the Applicant has not demonstrated a legitimate forensic purpose in relation to such ex parte material;