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.  

19. The Appeals Chamber recalls that the protective measures in question were ordered in the Blaškić Review Proceedings.[1] Consequently, pursuant to Rule 75(G) of the Rules, the Appellant should bring any motion for variation of protective measures before the Blaškić Appeals Chamber. The Appeals Chamber in the present case has no jurisdiction to decide on the Appellant’s respective request and therefore finds that it should be dismissed.

35. Finally, with respect to the issue of placing documents on the EDS, the Appeals Chamber recalls that Rule 68(ii) allows the Prosecution to do so “without prejudice to paragraph (i)”. In this sense, the Practice Direction Establishing Restrictions on Dissemination of Material Disclosed to the Defence by the Prosecutor on the “Electronic Disclosure System”, provides that the EDS is a system created “[i]n connection with the discharge of disclosure obligations” but “does not affect the Prosecutions obligations to disclose material under the Rules”.[1] The Appeals Chamber of the International Criminal Tribunal for Rwanda has recently specified that the Prosecution’s obligation under this provision “extends beyond simply making available its entire evidence collection in a searchable format”, since it “cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession”.[2] The Appeals Chamber also found that the EDS does not make documents “reasonably accessible as a general matter”, nor does it allow to assume that the Defence knows about all material included therein, to the extent that the Prosecution could be relieved of its Rule 68 obligation.[3] The Appeals Chamber also notes that the EDS database does not allow an accused on one case to access materials disclosed by the Prosecution to an accused in another case.[4] It has thus been suggested that the Prosecution should either “separate[] a special file for Rule 68 material or draw[] the attention of the Defence to such material in writing and permanently update[] the special file or the written notice”.[5]

15. The Appeals Chamber notes that Rules 66(C) and 68(iv) expressly provide for ex parte filing of documents in possession of the Prosecution, “the disclosure of which may prejudice further or ongoing investigations, or for any other reasons may be contrary to the public interest or affect the security interests of any State”. Under these circumstances, the Prosecution is required to provide the Chamber seized with such applications (and the Chamber only) with the information that is sought to be kept confidential and ex parte. Various other provisions of the Rules allow for ex parte proceedings by implication.[1] Given the variety of circumstances which may give rise to the need for ex parte status, the Appeals Chamber agrees that it is “neither possible nor appropriate to define the circumstances in which such [proceedings] are appropriate by any limiting definition”[2].

16. As a preliminary matter, with respect to the Appellant’s request for guidelines concerning review of access to ex parte materials,[3] the Appeals Chamber considers that it is not appropriate for it to promulgate a practice that would be applicable in all cases. The endorsement by the Appeals Chamber of a practice in one appeal is always given in the light of the circumstances of the given appeal.[4] In general, the Appeals Chamber has no powers of legislation. Moreover, the current jurisprudence of the Appeals Chamber on access to ex parte material is consistent and clear.[5] Therefore, the Appeals Chamber declines to consider the Appellant’s proposal any further.

20. With regard to the rest of the ex parte filings in this case,[6] the Appeals Chamber notes that these documents are part of the Trial Record certified for the purposes of the present appeal and are indexed […] with their respective translations and transmission sheets. The Appeals Chamber further notes that, while the Appellant has not been put on notice of the respective filings, he could identify their existence by reviewing page indexes of the documents available to him and identifying the ones missing, which he has not done for the purposes of his Request for Access. In its current submissions, the Prosecution has not expressed its position as to further maintaining the ex parte status of these specific filings and is directed to do so, within ten days of the date of the present decision, in order to assist the Appeals Chamber in its decision on the Appellant’s request to the documents listed above.[7] In the event that the Prosecution does not oppose the lifting of the ex parte status of all or some of these documents, it is invited to identify any Rule 70 material among them, as well as to apply for redactions where necessary.

At paras 16-18, the ICTR Appeals Chamber recalled the ICTY Appeals Chamber case-law that a case can only be referred to another jurisdiction under Rule 11bis when the crimes charged can be prosecuted in those jurisdiction as a “serious violation of international humanitarian law” as the ICTY and ICTR Statutes envisage:

16. […] The Appeals Chamber recalls that the basis of the Tribunal’s authority to refer its cases to national jurisdictions flows from Article 8 of the Statute, as affirmed in Security Council resolutions.[1] Article 8 specifies that the Tribunal has concurrent jurisdiction with national authorities to prosecute “serious violations of international humanitarian law”. In other words, this provision delimits the Tribunal’s authority, allowing it only to refer cases where the state will charge and convict for those international crimes listed in its Statute.

17. The Appeals Chamber agrees with the Prosecution that the concept of a “case” is broader than any given charge in an indictment and that the authorities in the referralState need not necessarily proceed under their laws against each act or crime mentioned in the Indictment in the same manner that the Prosecution would before this Tribunal.[2] In addition, the Appeals Chamber appreciates fully that Norway’s proposed prosecution of Mr. Bagaragaza, even under the general provisions of its criminal code, intends to take due account of and treat with due gravity the alleged genocidal nature of the acts underlying his present indictment. However, in the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the “ordinary crime” of homicide. That the legal qualification matters for referrals under the Tribunal’s Statute and Rules is reflected inter alia in Article 9 reflecting the Tribunal’s principle of non bis in idem.[3] According to this statutory provision, the Tribunal may still try a person who has been tried before a national court for “acts constituting serious violations of international humanitarian law” if the acts for which he or she was tried were “categorized as an ordinary crime”. Furthermore, the protected legal values are different. The penalization of genocide protects specifically defined groups, whereas the penalization of homicide protects individual lives.

18. The Appeals Chamber recognizes that this decision may have a practical impact on Mr. Bagaragaza’s situation who, according to the Prosecution’s submissions to the President of the Tribunal, faces security risks if detained in the UNDF in Arusha. It also notes that it may limit future referrals to similar jurisdictions which could assist the Tribunal in the completion of its mandate. However, the Appeals Chamber cannot sanction the referral of a case to a jurisdiction for trial where the conduct cannot be charged as a serious violation of international humanitarian law. This is particularly so when the accused has been charged with genocide, an offence that -- unlike murder -- is designed to protect a “national, ethnical, racial or religious group, as such”.