15. Article 25 of the Statute provides for appeals on the ground of an error of law that invalidates the decision or an error of fact that has occasioned a miscarriage of justice. The settled standard of review applicable for appeals against judgements also applies to appeals against convictions for contempt. A party alleging an error of law must identify the alleged error, present arguments in support of its claim and explain how the error allegedly invalidates the decision.[1]

Paras 42-46: the Appeals Chamber found that when a party wishes to object to the introduction of evidence of certain material facts on the basis of lack of notice of these material facts, it should do so at the time the evidence is introduced. Nonetheless,

45. […] [W]hen an objection based on lack of notice is raised at trial (albeit later than at the time the evidence was adduced), the Trial Chamber should determine whether the objection was so untimely as to consider that the burden of proof has shifted from the Prosecution to the Defence in demonstrating whether the accused’s ability to defend himself has been materially impaired. In doing so, the Trial Chamber should take into account factors such as whether the Defence has provided a reasonable explanation for its failure to raise its objection at the time the evidence was introduced and whether the Defence has shown that the objection was raised as soon as possible thereafter. 

Para. 21(“curing” is likely to occur only in a limited number of cases):

21. The ICTY Appeals Chamber has explained that

in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.[1] 

Thus, “curing” is likely to occur only in a limited number of cases. In this connection, the Appeals Chamber is not convinced by the Trial Chamber’s suggestion, at paragraph 4 of the Impugned Decision, that a distinction should be made between cases “where the Prosecution knows of material facts at the time the indictment is filed, but fails to plead them” (in which cases curing would be exceptional) and cases where the material facts “are subsequently discovered” (in which cases curing would not be characterized as exceptional). Indeed, the risk of prejudice to the accused is the same in both types of cases.[2] In both types of cases, the defect in the indictment may be deemed cured only by the provision of timely, clear and consistent information to the accused.

Para. 26 (when numerous defects found to have been “cured”):

The Appeals Chamber agrees that when the indictment suffers from numerous defects, there may still be a risk of prejudice to the accused even if the defects are found to be cured by post-indictment submissions. In particular, the accumulation of a large number of material facts not pled in the indictment reduces the clarity and relevancy of that indictment, which may have an impact on the ability of the accused to know the case he or she has to meet for purposes of preparing an adequate defence. Further, while the addition of a few material facts may not prejudice the Defence in the preparation of its case, the addition of numerous material facts increases the risk of prejudice as the Defence may not have sufficient time and resources to investigate properly all the new material facts. Thus, where a Trial Chamber considers that a defective indictment has been subsequently cured by the Prosecution, it should further consider whether the extent of the defects in the indictment materially prejudice an accused’s right to a fair trial by hindering the preparation of a proper defence. The Appeals Chamber finds that the Trial Chamber failed to do so in the Impugned Decision and therefore, instructs the Trial Chamber to reconsider the Impugned Decision on this basis.

Paras 29-30 (type of defects that can be cured):

29. The Appeals Chamber is not convinced by the arguments of the Appellant on this point. The Appeals Chamber first recalls the distinction between counts or charges (“accusations” in French) and “material facts”:

The count or charge is the legal characterisation of the material facts which support that count or charge.  In pleading an indictment, the Prosecution is required to specify the alleged legal prohibition infringed (the count or charge) and the acts or omissions of the Accused that give rise to that allegation of infringement of a legal prohibition (material facts).[3]

It is clear that the omission of a count or charge from the indictment cannot be “cured” by the provision of timely, clear, consistent information.[4] Indeed, since the indictment is the only charging instrument,[5] the addition of counts or charges is possible only through amendment, as set out in Rule 50 of the Rules. However, it is also clear that the omission of a material fact underpinning a charge in the indictment can, in certain cases, be cured by the provision of timely, clear and consistent information.[6]

30. In this connection, the Appeals Chamber stresses that the possibility of curing the omission of material facts from the indictment is not unlimited. Indeed, the “new material facts” should not lead to a “radical transformation” of the Prosecution’s case against the accused.[7] The Trial Chamber should always take into account the risk that the expansion of charges by the addition of new material facts may lead to unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own, support separate charges,[8] the Prosecution should seek leave from the Trial Chamber to amend the indictment and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to the Defence.[9]

Para. 35: The Appeals Chamber found that a defect in indictment could be cured by information conveyed in Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

35. The Appeals Chamber reiterates that, while the addition of a charge must necessarily be done through an amendment to the indictment, the omission of material facts from the indictment can in certain circumstances be cured without having to amend the indictment.[10] As to whether notice of a new material fact could be conveyed through a Prosecution motion to add a witness, the Appeals Chamber recalls that, as a general rule:

Whether the Prosecution cured a defect in the indictment depends, of course, on the nature of the information that the Prosecution provides to the Defence and on whether the information compensates for the indictment’s failure to give notice of the charges asserted against the accused. Kupreškić considered that adequate notice of material facts might be communicated to the Defence in the Prosecution’s pre-trial brief, during disclosure of evidence, or through proceedings at trial. The timing of such communications, the importance of the information to the ability of the accused to prepare his defence, and the impact of the newly-disclosed material facts on the Prosecution’s case are relevant in determining whether subsequent communications make up for the defect in the indictment. As has been previously noted, “mere service of witness statements by the [P]rosecution pursuant to the disclosure requirements” of the Rules does not suffice to inform the Defence of material facts that the Prosecution intends to prove at trial.[11]

In determining whether a defective indictment was cured by timely, clear and consistent information, the Appeals Chamber has looked to the Prosecution pre-trial brief (together with its annexes and chart of witnesses)[12] or the Prosecution’s opening statement.[13] However, the Appeals Chamber never suggested that defects in the indictment could only be cured through the Prosecution pre-trial brief or its opening statement. The Appeals Chamber cannot exclude the possibility that a defect in the indictment could be cured through a Prosecution motion for addition of a witness, provided any possible prejudice to the Defence was alleviated by, for example, an adjournment to allow the Defence time to prepare for cross-examination of the witness. Accordingly, the Appeals Chamber is not convinced that the Trial Chamber erred in stating that although disclosure of witness statements or potential exhibits are generally insufficient to put an accused on reasonable notice, a defect in the indictment could be cured by the information conveyed in a Prosecution motion to add a witness, which clearly states the material facts on which the witness would testify.

Para. 37: The Appeals Chamber found that an accused can be put on reasonable notice of material facts omitted from indictment where an adjournment is ordered by the Trial Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.

37. In Kupreškić, the Appeals Chamber emphasized that

the Prosecution is expected to know its case before it goes to trial.  It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the indictment with the aim of moulding the case against the accused in the course of the trial depending on how the evidence unfolds.  There are, of course, instances in criminal trials where the evidence turns out differently than expected.  Such a situation may require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded as not being within the scope of the indictment.[14] 

Thus, when a new material fact is discovered at trial, the Trial Chamber should determine which measure(s) are required in the circumstances of the case to preserve the fairness of the proceedings. If the Trial Chamber decides that an adjournment is warranted, it could also order the Prosecution to amend the indictment for greater clarity, but this might not be required in every case. Accordingly, the Appeals Chamber does not find that the Trial Chamber erred in stating at paragraph 10 of the Impugned Decision that the accused was put on reasonable notice of material facts omitted from the indictment where “a lengthy adjournment was ordered by the Chamber for the express purpose of allowing the Defence to meet newly discovered material facts.”

16.     Without assuming competence to adjudicate on the validity of a resolution passed by the Security Council, the Appeals Chamber considers that the UN Security Resolution 1668/2006 was directed to administrative matters and did not interfere with the Tribunal’s judicial function.

17.     The Appeals Chamber notes that the Security Council is not required to amend the Tribunal’s Statute in order to reflect all its resolutions. Contrary to what the Appellant appears to submit, the Security Council can address an administrative matter either by amending the Tribunal’s Statute or by simply adopting a resolution – as it did. Thus, the ability to decide on a case by case basis whether to extend an ad litem judge’s mandate and/or the three year cumulative service limitation falls within the Security Council’s discretionary powers.[1] The Appeals Chamber accordingly sees no merit in the Appellant’s arguments in this respect.

24.     Rule 15bis procedures are also inapplicable to the present circumstances, since they only apply when a Judge is unable to continue sitting in a part-heard case. In the present case and as explained above,[1] Judge Canivell has been explicitly and lawfully authorized to continue sitting in the case until the end of the trial. Consequently, the Appellant’s argument that he had a “legitimate expectation that Rule 15bis would be followed” and that the “Trial Chamber erred in neglecting to consider this fundamental principle of legal certainty”[2] is without merit.

12. […] [T]he right of an accused to cross-examine a witness is not absolute.[1] The Appeals Chamber recalls that the right to cross-examination may, for instance, be limited in accordance with Rule 92bis and that its exercise remains subject to the control of the Trial Chamber pursuant to Rule 90(F).[2]

13. The Appeals Chamber further rejects the Appellant’s claim that the fairness of a trial is uniquely predicated on the fairness accorded to the Accused.  The Appeals Chamber has previously observed that the

application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community) […] Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[3]

Although, proceedings must be conducted with full respect for the rights enumerated in Article 21 of the Statute, restrictions on the right to cross-examination will not necessarily entail a violation of that provision or be inconsistent with a fair trial.

14. […] The Appeals Chamber agrees with the Trial Chamber that the right to cross-examination is subject to the duty of the Trial Chamber to ensure the fairness and expeditiousness of the proceedings.

27. […] Relying on Wigmore’s Evidence in Trials at Common Law,[1] the Appellant concludes that because Milan Babić’s death, which resulted in the prevention or curtailment of the cross-examination of his evidence, was caused by “the voluntary act of the witness himself,” namely his suicide, the examination-in-chief must be struck out.[2]

29. […] In his appeal, armed with the Report’s finding that Milan Babić did in fact commit suicide, the Appellant attempts to rely on Wigmore for the general principle that evidence given by a witness in direct examination who commits suicide prior to, or during his cross-examination, should be excluded.

30. The Appeals Chamber concludes that the International Tribunal need not adopt this approach and finds that, despite Milan Babić’s death having been ruled a suicide, it remained within the Trial Chamber’s discretion to retain the evidence of Milan Babić on the basis that the interruption of his cross-examination, the majority of which had been completed, was unforeseeable and unavoidable.

The Appeals Chamber specified that the Prosecution’s obligation under Rule 68 only covers the exculpatory material which is in its possession. In the present case, the Prosecution was found to have acted in compliance with this provision.

12. Il ressort clairement de l’article 68 B) du Règlement que l’obligation du Procureur de communiquer des éléments de preuve à décharge est subordonnée à sa possession de tels éléments[1]. Or, à la lumière de ce qui précède, la Chambre d’appel constate que le Procureur s’est suffisamment expliqué sur la manière dont l’enregistrement de l’interview a été recueilli ainsi que sur son caractère incomplet, en précisant qu’il s’agissait de la seule version en sa possession. La demande de l’Appelant tendant à ce que la Chambre d’appel ordonne au Procureur de s’expliquer sur le caractère incomplet de l’enregistrement de l’interview et de le verser au dossier ne peut donc prospérer.

The Appeals Chamber clarified that it would only proceed with a request for an order for the purposes of an investigation if a party has shown a legitimate forensic purpose for it. It is a discretionary decision of the Chamber. While, in some cases, it may be that the Prosecution will use its own resources and extended powers to facilitate the obtainment of the information sought by the Defence, the obligation of the Defence to report to the Chamber its inability to obtain the cooperation of a State’s authorities is intended as a first step in exercising due diligence. The applicant is thus expected to show that she/he was unable to obtain such cooperation despite her/his own independent attempts to do so. A mere assertion that such an attempt would face obstruction from the national authorities is not sufficient to justify an order for cooperation.

13. […] Il fonde en réalité sa Requête sur les articles 54 et 107 du Règlement qui donnent à la Chambre d’appel le pouvoir de délivrer des ordonnances « nécessaires aux fins de l’enquête, de la préparation ou de la conduite du procès ». A cet égard, il convient de rappeler que la Chambre d’appel ne saurait accéder à une requête en délivrance d’une telle ordonnance que si la partie requérante a démontré un motif judiciaire légitime à cet effet[1]. La Chambre d’appel jouit en l’occurrence d’un pouvoir discrétionnaire pour déterminer si le requérant « a bien rapporté les preuves requises, ce pouvoir étant essentiel pour veiller à ce que la mesure coercitive […] ne soit pas appliquée de façon inconsidérée »[2]

14. Dans certains cas, une fois que les difficultés rencontrées par la Défense ont été portées à l’attention de la Chambre compétente, il se peut que le Procureur, conformément à son devoir d’assister le Tribunal aux fins d’établir la vérité et de rendre justice aux accusés[3], utilise ses propres ressources et pouvoirs afin de faciliter l’obtention de l’information nécessaire[4]. Cependant, l’obligation faite à la Défense d’informer la Chambre qu’elle ne peut obtenir la coopération escomptée des autorités étatiques constitue la première étape dans l’exercice de la diligence voulue[5]. La Chambre d’appel constate que l’Appelant n’a pas fait montre d’une telle diligence en l’espèce au stade actuel du procès.

15. Il appartient dès lors à l’Appelant d’entreprendre des démarches indépendantes pour se procurer des éléments de preuve à décharge qui ne sont pas en possession du Procureur, et de démontrer qu’en dépit de l’exercice de la diligence requise, il n’a pas réussi à obtenir l’enregistrement en question[6]. Or, dans sa Requête, l’Appelant se contente de dire que ses investigations « se seraient heurtées à l’obstruction des autorités rwandaises »[7] et ne donne aucun élément d’information sur les actions concrètes qu’il aurait engagées en ce sens depuis le début de son procès en appel. Il n’apporte pas non plus de preuve d’un manque de coopération de la part des autorités rwandaises en ce qui concerne l’accès aux archives dans lesquelles serait contenu l’enregistrement recherché. En conséquence, la demande de l’Appelant tendant à ce que la Chambre d’appel ordonne aux autorités rwandaises de transmettre au Greffe du Tribunal l’intégralité de l’interview doit être rejetée.

Savo Todović’s appeal against the Referral Bench’s 31 May 2006 decision (“Second Impugned Decision”), was largely based on a report by the OSCE  Mission to BiH on the proceedings in the Janković case transferred to the State Court pursuant to Rule 11bis, last November.[1] To sum up, the OSCE Report:

(a)  raises concerns related mainly to the “Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Use of Evidence Collected by ICTY in Proceedings before the Courts in BiH” (“Law on Transfer”) regarding provisions on the procedure for adapting the ICTY indictment and for reviewing pre-trial custody during the pre-adaptation period;

(b)  provides an assessment of the practice of the State Court and the Appellate Panel,  vis-à-vis Article 5 of the European Convention on Human Rights (“ECHR”); 

(c)  makes recommendations to the legislative authorities on specific amendments to the Law on Transfer;

(d)  makes recommendations to the judges dealing with transferred cases regarding the interpretation of applicable law, and

(e)  makes recommendations to the BiH Prosecutor regarding motions for pre-trial custody.

The OSCE Report is critical of the State Court’s decision to give primacy to the ICTY orders on detention on remand, and the Appellate Panel’s practice of “rubber-stamping” first instance decisions when examining appeals on detention. Hence, the OSCE Report concludes that after examining the State Court’s practice through the prism of international human right standards, Janković’s right to have a judicial authority review his detention during the adaptation period according to Article 5(3) of the ECHR, has been breached.

Noting that the OSCE report makes recommendations under Article 5 of the ECHR, which provides for the right to liberty and security of person, rather than Article 6 of the ECHR with respect to the right to a fair trial, the Appeals Chamber’s decision concludes that the OSCE report does not provide concrete reason to believe that Todović will receive an unfair trial in BiH; emphasizes the seriousness of the concerns raised by the OSCE; acknowledges the importance of the role played by this organisation in the monitoring of the proceedings in cases transferred by the International Tribunal to the Sate Court of BiH, and encourages the competent authorities in BiH to follow the recommendations made by the OSCE concerning judicial practice and the amendment of legal provisions.

See paras 112-124, and in particular the following paragraphs:

118.    The Appeals Chamber finds that the OSCE raises very legitimate concerns with regard to the Law on Transfer as well as Article 132(1)(d) of the BiH CPC. Nevertheless, it finds that the Referral Bench did not abuse its discretion in considering that overall, the BiH laws applicable to the Appellant still provide an adequate legal basis to ensure compliance with the requirement for a fair trial, which includes ensuring rights of an accused while in detention, and the Appeals Chamber does not read the OSCE April 2006 Report as asserting the contrary.[2] However, the Appeals Chamber has no doubt that the competent authorities of BiH will seriously take into consideration the OSCE’s recommendation to strengthen this legal basis by making certain amendments to the Law on Transfer, as well as to  Article 132(1)(d) of the BiH CPC.

119.    With regard to the OSCE’s recommendations on the interpretation and application of applicable law to pre-trial detention vis-à-vis proper judicial review of pre-trial custody conditions by the State Court, the Appeals Chamber does not yet consider that the OSCE’s findings with regard to the Stanković and Janković cases, constitute evidence of an ongoing practice of “rubber stamping” by the Appellate Panel of the State Court when examining appeals of first instance decisions on pre-trial detention. Nevertheless, the Appeals Chamber agrees with the OSCE that the failure of preliminary hearing Judges and the Appellate Panel to consider the merits of complaints made by Stanković and Janković during the pre-adaptation of the indictment phase primarily on the basis of the primacy of the International Tribunal’s Order on Detention on Remand, does not constitute meaningful judicial review of complaints as to pre-trial detention conditions. That being said, the Appeals Chamber emphasizes that despite the failure by the preliminary Judges and the Appellate Panel to apply the relevant provisions in those cases, the Referral Bench did not abuse its discretion in finding that there exists a satisfactory legal framework in BiH to ensure the respect of the rights of an accused in pre-trial custody. The Appeals Chamber reiterates that it expects that the State Court will adhere to the recommendations of the OSCE and will therefore apply those provisions in the BiH laws guaranteeing the rights of an accused in pre-trial custody in such a way as to actually guarantee those rights.