The Krajišnik Appeals Chamber was seized of a motion by Stanišić, asking for access to all confidential material in the Krajišnik case for the purposes of his defence. The Prosecution responded that it would not oppose access to all inter partes material subject to material relating to certain witnesses (specified in an ex parte annex) whose identities had been protected from Krajišnik pursuant to Rule 69 orders and who the Prosecution intended to call in the Stanišić trial as well. The question therefore arose whether Rule 75(F), which stipulates that once protective measures are ordered in one trial they are also in effect with regard to other proceedings before the Tribunal, also applies to measures ordered pursuant to Rule 69. The Appeals Chamber answered this question in the affirmative:

P. 7: CONSIDERING that “delayed disclosure” orders are protective measures to which Rule 75(F) of the Rules applies;[1]

CONSIDERING that even though such orders given in the first proceedings could be considered moot once disclosure is made, “the meaning of the expression ‘mutatis mutandis’ itself requires a flexible application of the principle enshrined in [Rule 75] and suggests that the same kinds of protection given to a witness in one case should be automatically extended to this witness in a later case, regardless of whether this is literally ‘continuation’”;[2]

FINDING that the sensitive witnesses in the Krajišnik case, as listed in the Prosecution Annex, were protected by delayed disclosure orders and that, if they are going to testify in another case, the information from the Krajišnik case should similarly be subject to delayed disclosure to the defendants in that other case (unless an order pursuant to Rule 75(G) is made);[3]

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;

23. […] The Trial Chamber did not state that because the Completion Strategy is reflected in a Security Council resolution, it is therefore bound to its deadlines in the management of this trial. Rather, it merely considered the Completion Strategy as one factor to be weighed in the Impugned Decision while correctly stressing that it would not allow the “considerations of economy” to “violate the right of the Parties to a fair trial.”[1] The Appeals Chamber notes however, as it has done previously in this case, that Completion Strategy considerations aside,

time and resource constraints exist in all judicial institutions and that a legitimate concern in this trial, which involves six accused, is to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.[2]

20. […] [T]he Appeals Chamber reiterates that the imposition of time limits in a trial – whether calculated in months or hours – is entirely the prerogative of the Trial Chamber. The true intent and extent of the independence accorded to the Prosecutor under Article 16 of Statute is to ensure that no “government or other institution or person, including the Judges of the Tribunal, can direct the Prosecutor as to whom he or she is to investigate or to charge.”[1] The Appeals Chamber maintains that it is erroneous for the Prosecution to suggest that its independence extends to the way in which its case is to be presented before a Trial Chamber.[2]

While the Appeals Chamber reserved the right to rule on the issue of Krajišnik’s self-representation, which it did later,[1] it decided that it was in the President’s authority to review a Registrar’s decision assigning counsel pursuant to Rule 45. At pages 2-4, it considered that:

CONSIDERING that in the Registrar’s Decision, the Registrar assigned counsel to the Applicant from the list of counsel qualified to represent indigent suspects and accused pursuant to Rule 45 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”);

CONSIDERING that under Rule 45(A), such assignments are made by the Registrar in accordance with the procedure established in the Directive on the Assignment of Defence Counsel (“Directive”),[2] but that Rule 45 does not specify who has competence to review a decision by the Registrar under that Rule;

CONSIDERING that pursuant to Article 13(B) of the Directive, an “accused whose request for assignment of counsel has been denied or who has been found to have sufficient means to remunerate counsel in part, may [. . .] file a motion to the Chamber before which he is due to appear for review of the Registrar’s decision”;

CONSIDERING however that, Article 13(B) of the Directive applies to a decision by the Registrar whether or not to assign counsel on the basis of an accused’s alleged indigency;[3]

CONSIDERING that in this case before the Appeals Chamber, the Registrar’s Decision did not deny assignment of counsel to the Applicant on the basis of non-indigency or find that the Applicant is only partially indigent; rather, it assigned counsel to the Applicant from the Rule 45 list of counsel and refused to assign the Applicant’s preferred counsel because, in its view, that counsel did not fulfil the qualification requirements for admission to the Rule 45 list,[4] which, under Rule 45(B)(i), expressly incorporates all of the qualification requirements found under Rule 44 of the Rules for counsel who appear before the International Tribunal;[5]

CONSIDERING that under Rule 44(A) and (B) of the Rules, power to review a decision by the Registrar as to whether a proposed counsel meets the required qualifications therein for representing an accused before the International Tribunal lies with the President of the International Tribunal;[6]

CONSIDERING further that, just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal, and a Chamber may only step in thereafter under its inherent power to ensure that its proceedings are fair;[7] 

FINDING therefore that the Appeals Chamber is not competent to consider the requests raised in sub-paragraphs (a) and (b) of the Motion and that the authority for reviewing the Registrar’s Decision lies with the President of the International Tribunal;

FINDING that the remaining request in sub-paragraph (c) can be decided only by the Appeals Chamber on the basis of the decision by the President of the International Tribunal in relation to requests (a) and (b) which, by their nature, have priority;[8]

HEREBY DISMISSES the Motion in relation to sub-paragraphs (a) and (b);

[…]

REMAINS SEIZED of the request in sub-paragraph (c).

The President subsequently ruled on Krajišnik’s requests a) and c): [9]

The President held that he had jurisdiction to review the decision by the Registrar, assigning counsel to Krajišnik pursuant to Rule 45, paras. 7-10. As in the Appeals Chamber’s decision of 29 January 2007, the question centered on the interpretation of Rules 44, 45 and the Directive on the Assignment of Defence Counsel:

7.       As a preliminary matter, the first issue before me is whether I am competent to review the Impugned Decision. Krajišnik states that I have competence under Article 13(A) of the Directive, which provides that

[t]he suspect whose request for assignment of counsel has been denied may, within fifteen days from the date upon which he is notified of the decision, file a motion before the President for review of that decision. The President may either confirm the Registrar’s decision or rule that a counsel should be assigned.

In addition, Krajišnik submits that I may review the Impugned Decision because the President of the International Tribunal “has an inherent jurisdiction to review an administrative decision of the Registrar that impugns upon the rights of an accused at this Tribunal.”[10]

8.       While I do find that I have power to review the Impugned Decision, it is not on the legal bases that Krajišnik suggests. As is evident from the plain language of Article 13(A) of the Directive, the President’s power of review is with respect to the Registrar’s decision to assign counsel to a suspect, a category into which Krajišnik clearly does not fall having been convicted by a Trial Chamber of this International Tribunal.[11] Furthermore, Article 13(A) pertains to review of a Registrar’s decision whether or not to assign counsel on the basis of a suspect’s alleged indigency.[12] In this case, the Impugned Decision did not deny assignment of counsel to the Applicant on that basis; “rather, it assigned counsel to the Applicant from the Rule 45 list of counsel and refused to assign the Applicant’s preferred counsel because, in its view, that counsel did not fulfil the qualification requirements for admission to the Rule 45 list.”[13]

9.       Furthermore, while I do enjoy an inherent power to review administrative decisions of the Registrar where they impinge upon the rights of an accused before the International Tribunal,[14] I may not exercise that power where the power of review has been expressly conferred elsewhere.[15] Thus, I do not agree with Krajišnik’s argument that I may review the Impugned Decision on grounds that it fails to respect the exercise of his right to self-representation because that power lies with the Appeals Chamber. As held by the Appeals Chamber, “[w]hether an accused may exercise the right to self-representation under the Statute of the International Tribunal is for the Chamber to decide in light of its duty to ensure the fair and expeditious management of its proceedings.”[16] 

10.     However, I do have authority to review the Impugned Decision in so far as it was a determination by the Registrar as to whether Krajišnik’s counsel of choice met the qualification requirements under Rule 45(B) of the Rules for being assigned to him in this appeal. As recently clarified by the Appeals Chamber, “just as a Chamber may not review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements under Rule 44(A) and (B) of the Rules, neither may a Chamber review the Registrar’s decision as to whether a proposed counsel meets the qualification requirements for assignment of counsel under Rule 45(B) of the Rules as that power is vested in the President of the International Tribunal.”[17]

As for the standard of review, the President held:

11.     The Registrar’s decision to permit or deny assignment of counsel under Rule 45 of the Rules in the “interests of justice” involves both questions of law and fact.[18] Given that the Registrar has “principal responsibility for overseeing the assignment of defence counsel”, he enjoys a certain degree of deference or margin of appreciation in reaching a decision on assignment of counsel.[19] Where a suspect or an accused requests that I review such an administrative decision of the Registrar, that individual bears the burden of demonstrating that the Registrar has erred and that such error has “significantly affected the Registrar’s decision to his detriment.”[20] In reviewing such an administrative decision by the Registrar, I will only quash that decision where I am persuaded that he has: (1) failed to comply with the legal requirements of the Directive at issue; (2) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision; (3) taken into account irrelevant material or failed to take into account relevant material; or (4) if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[21]

At paras 64 to 73, the Appeals Chamber addressed the issue whether an accused can raise on appeal a different alibi than the one raised at trial.

At trial, the Appellant had argued that his alibi placed him in Gitarama at the relevant time, an argument which was not upheld by the Trial Chamber. On appeal, the Appellant relied on documents admitted pursuant to Rule 115 of the Rules, arguing that he was in Kigali on the dates these documents were signed. The Appeals Chamber held:

66. The first issue is whether an Appellant is permitted to raise a new alibi on appeal. Pursuant to Rule 67(A)(ii)(a), the Prosecution has to be provided with notice of an alibi argument as early as practicable and prior to the commencement of trial. While Rule 67(B) states that failure to provide such notice “shall not limit the right of the accused” to rely on an alibi defence, the jurisprudence permits a Trial Chamber to consider the failure to provide the requisite notice in its assessment of the alibi.[1] The same legal principle applies in a situation where an alibi is raised for the first time on appeal. Rule 67 provides that the Defence can still raise an alibi even if no prior notice is provided; however, if for example the Appellant could have been reasonably expected to raise the new alibi during trial, the Appeals Chamber can take particular note of the failure to provide timely notice to the Prosecution in its assessment of the alibi. This does not contradict the finding of the ICTY Appeals Chamber that an “accused, generally, cannot raise a defence for the first time on appeal”.[2] The Appeals Chamber recalls

that an alibi “does not constitute a defence in its proper sense”. In general, a defence comprises grounds excluding criminal responsibility although the accused has fulfilled the legal elements of a criminal offence. An alibi, however, is nothing more than the denial of the accused’s presence during the commission of a criminal act.[3]

At paras 138 and 139, the Appeals Chamber held that

[t]here is only one genocide that was committed in Rwanda between 6 April 1994 and 17 July 1994 and that resulted in the killings of hundreds of thousands of Tutsi. In sentencing, acts in furtherance of this one genocide and attributable to the accused can be taken into account. The Appeals Chamber notes that while the genocide in Rwanda cost the lives of hundreds of thousands of people, the Appellant’s individual criminal responsibility has to be measured according to his own contributions and the killings resulting therefrom, taking into account his own position. 

The Trial Chamber had found that the Appellant encouraged attackers to kill Tutsi women married to Hutu men without convicting the Appellant on this basis because it found that there was insufficient evidence to establish that his conduct directly and substantially contributed to the killing of these Tutsi women, or their children.[1] However, the Trial Chamber considered that the Appellant’s encouragement of the killing of Tutsi women who were married to Hutu could be considered as an aggravating factor.[2] The Appeals Chamber found in para. 141 that “[t]here was no contradiction in the Trial Chamber’s findings in this respect”. In the present case, the question of further aggravation of the sentence of life imprisonment needed not to be addressed.

The Appeals Chamber dismissed the Appellant’s motion seeking a postponement of the appeal hearing due to the assignment of a new Co-Counsel, considering that:

Pp. 4-5: CONSIDERING that pursuant to Article 15 of the Directive on the Assignment of Defence Counsel (“Directive”), the Lead Counsel “shall deal with all stages of procedure” and “has primary responsibility for the Defence”, while the Co-Counsel may intervene “under the authority of Lead Counsel”;

CONSIDERING that the Appellant’s Lead Counsel was put on notice of the date of the Appeals Hearing on 16 November 2006, and […] he has not to date informed the Appeals Chamber of any justified unavailability for the Appeals Hearing;

RECALLING that the Letter of Assignment was offered to the current Co-Counsel by the DCDMS on the understanding that this would not result in any delay of the appellate proceedings;

CONSIDERING that the Lead Counsel, who, in the absence of any assistance from the former Co-Counsel, has had ample time to prepare for the Appeals Hearing in the present case,[1] and is in a position to brief the current Co-Counsel as to matters that may require his assistance during the Appeals Hearing;

CONSIDERING that, in light of the fact that the current Co-Counsel is a qualified lawyer, the Appellant’s argument that the verbal undertaking of the current Co-Counsel is of no significance to the latter’s ability to prepare for the Appeals Hearing is a mere assertion;[2]

CONSIDERING, therefore, that the Appellant has not shown that any postponement of the Appeals Hearing as scheduled by the Scheduling Order is required in the interests of justice.

6. The Appeals Chamber reiterates that an appeal pursuant to Article 24 of the Statute the Tribunal is not a trial de novo.[1] Rule 115 of the Rules specifically governs the admission of additional evidence on appeal, as well as rebuttal material, where the particular circumstances in the case so require. However, no provision is made under Rule 115 for seeking admission of rejoinder evidence to rebuttal material. Moreover, the Appeals Chamber does not consider that Rule 85(A) of the Rules, which specifically governs the presentation of evidence at trial, can be directly transposed to the presentation of additional evidence on appeal, which is covered by the provisions of Rule 115. While Rule 89(B) read in conjunction with Rule 107 of the Rules[2] generally stipulates that the Appeals Chamber, in cases not specifically provided for under the section of the Rules on evidence, “shall apply rules of evidence which 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”, it does not require that the Appeals Chamber allow for the admission of rejoinder evidence in Rule 115 proceedings. Thus, nothing in the Rules explicitly entitles parties to seek admission of rejoinder evidence on appeal and the Appeals Chamber will only allow admission of such evidence where the particular circumstances of the case so require for a fair determination of the matter before it.

7. In the present case, the Appeals Chamber recalls that the substance of the additional evidence admitted by the Appeals Chamber relates to Witness EB’s purported wish to recant his testimony provided at trial, notably with respect to the Appellant’s participation in the killings in Gisenyi on 7 – 9 April 1994.[3] The material admitted in rebuttal is anticipated to directly relate to the substance of the additional evidence, in particular with respect to the Prosecution’s investigation into the circumstances of the purported recantation of Witness EB’s trial testimony.[4] In light of the documentary material already admitted in this appeal, the Appeals Chamber is not convinced that the anticipated testimony of the three witnesses referred to by the Appellant would make a material difference to his case, that it would be helpful in assessing the rebuttal material, or that it is necessary for a fair determination of the issue of Witness EB’s purported recantation.[5]