8. […] In addition, the Appeals Chamber recalls that a reply should be limited to arguments contained in the response and that, to the extent the Rule 115 Reply included any completely new submission of law or fact, it was improper.[1]

15. […] However, the Appeals Chamber will only take into account arguments pertaining to documents referred to in the Rule 115 Motion but not initially annexed to it or to alleged changes between the documents filed with the Rule 115 Motion and those filed with the Corrigendum to Rule 115 Motion. The Appeals Chamber notes that the Prosecution Request of 10 February 2006 and the reply thereto may not be used indirectly as a vehicle to make new submissions that should have been made in the Response to Rule 115 Motion or in a timely reply to it. In conformity with this principle, the Appeals Chamber also denies the Appellant’s request to file “a full reply given that the original reply has been expunged from the record”.[2]

9. […] Pursuant to Rule 115(C) of the Tribunal’s Rules of Procedure and Evidence (“Rules”), the Appeals Chamber may decide a motion for leave to present additional evidence on appeal “with or without an oral hearing”. Generally, the granting of an oral hearing is a matter for the discretion of a Chamber and may legitimately be regarded as unnecessary when the information before the Chamber is sufficient to enable it to reach an informed decision.[1] In the instant case, the Appeals Chamber finds that the Appellant has not put forward any convincing reasons justifying that written submissions are inadequate to put forward his arguments in relation to the Rule 115 Motion and thus, does not consider that the efficient conduct of the present proceeding requires an oral hearing prior to rendering its decision on the Rule 115 Motion.[2]

Paras 589-591: applying the approach in the Kordić and Čerkez Appeal Judgement to cumulative convictions, the Appeals Chamber found that cumulative convictions on the basis of the same acts are permissible in relation to persecutions under Article 5(h) and torture under Article 5(f) of the Statute.

The Appeals Chamber finds that the definition of persecutions contains materially distinct elements not present in the definition of torture under Article 5 of the Statute: the requirements of proof that an act or omission discriminates in fact and proof that the act or omission was committed with specific intent to discriminate. Torture, by contrast, requires proof that the accused caused the severe pain or suffering of an individual, regardless of whether the act or omission causing the harm discriminates in fact or was specifically intended as discriminatory.[1]

Paras 152-154: the Appeals Chamber found that there is no occasion in this case to define the elements of deportation as a crime against humanity under Article 5(d) of the Statute, because the Indictment included no charges under that Article. It also saw no need to consider the issue as a matter of general significance to the International Tribunal’s jurisprudence, as it had already been settled in the Stakić Appeal Judgement.[1]

Regarding deportation as a form of persecutions under Article 5(h) of the Statute, the Appeals Chamber referred to the Krnojelac Appeal Judgement, para. 218: for the purposes of persecutions, it is irrelevant whether “deportation” encompasses a border element, because acts of “forcible displacement” are equally punishable as underlying acts of persecutions whether or not a border is crossed. “Forcible displacement” also sufficiently captures underlying acts of “deportation” and “forcible transfer” (para. 154):

[…] the question whether “deportation” encompasses a border element is irrelevant for the purposes of liability under Article 5(h) of the Statute, because acts of forcible displacement are equally punishable as underlying acts of persecutions whether or not a border is crossed. It is moreover not necessary, for the purposes of a persecutions conviction, to distinguish between the underlying acts of “deportation” and “forcible transfer”; the criminal responsibility of the accused is sufficiently captured by the general concept of forcible displacement.

Paras 599-601: mere facilitation by an accused of his transfer to the International Tribunal cannot be considered voluntary surrender. Nevertheless, the underlying rationale for treating voluntary surrender in mitigation also applies to an indictee’s facilitation of the transfer process. The Appeals Chamber found that Martinović facilitated his transfer. As such, this factor should have been considered in mitigation, and the Trial Chamber erred in finding that it “cannot” be considered. 

The Appeals Chamber recalled the standard of proof for alleged Rule 68 violations:

13. To establish a violation of the Rule 68 disclosure obligation, the Defence must (i) establish that additional material exists in the possession of the Prosecution; and (ii) present a prima facie case that the material is exculpatory.[1]

16. […] The responsibility for disclosing exculpatory material rests on the Prosecution, and the determination of what material meets Rule 68 disclosure requirements is primarily a facts-based judgement, falling within the Prosecution’s responsibility.[2]

17. The Appeals Chamber cannot fault the Trial Chamber for requesting Mr. Nzirorera to provide an “evidentiary basis” for his claims that the material fell within the scope of Rule 68, contrary to the assertions of the Prosecution.[3] The Trial Chamber is entitled to assume that the Prosecution is acting in good faith.[4] […]

25. In support of their second ground of appeal, the Appellants submit that the Referral Bench “misconstrued” the Defence’s argument that they needed access to findings and evidence from other proceedings before the International Tribunal “arising out of the same alleged criminal enterprise” since they are crucial for the preparation of their defence; they claim that if their case is referred to BiH they will have no access to such materials. [1] First, the Appeals Chamber notes that this argument is not relevant to the present ground of appeal and that no reference to the Appellants’ submissions before the Referral Bench on this issue is provided. If this issue was not raised before the Referral Bench, the Appellants cannot claim that their argument was “misconstrued” or that the Referral Bench failed to address a matter which was not brought before it, thereby committing an error of law or fact. Second, pursuant to Rule 11bis of the Rules, the Referral Bench was not required to consider the Appellants need to access materials from related proceedings before the International Tribunal (for the preparation of their defence) when reaching a determination concerning the assessment of the gravity of the crimes and the level of responsibility of the Appellants. Therefore, the Appellants have failed to show that the Referral Bench erred in law. [W]ith respect to access to confidential materials from related cases before the International Tribunal, defence counsel in a proceeding in BiH, like the BiH Prosecutor, may request that the Prosecutor of the International Tribunal applies to vary protective measures under Rule 75 of the Rules.[2] Thus, the relevant parties to the proceeding in the national jurisdiction – both the Prosecutor and the Appellants – are on equal footing in terms of their ability to gain access to confidential materials from other International Tribunal cases.[3]

At para. 24, the Appeals Chamber recalled its finding in the Janković case:

Nothing in Rule 11bis of the Rules indicates that [a] Referral Bench is obliged to consider the gravity of the crimes charged and the level of responsibility of accused in other cases in order to make its referral decision. Although the Referral Bench may be guided by a comparison with an indictment in another case, it does not commit an error of law if it bases its decision on referral merely on the individual circumstances of the case before it.[1]

32. […] The Referral Bench was entitled to secure the presence of an accused that had been provisionally released in order to deliver its decision on the referral of his case and make sure that the said decision could be implemented. As the Prosecution points out, pursuant to Rule 11bis(H) of the Rules — which states that a Referral Bench shall have the powers of a Trial Chamber under the Rules — the Referral Bench had the power to order the return of Momčilo Gruban.[1]

On the powers of the Referral Bench, see more generally Prosecutor v. Radovan Stanković, Case No.: IT-96-23/2-AR11bis.1, Decision on Defence Application for Extension of Time to File Notice of Appeal, 9 June 2005, paras 50 ff (referred to at paras 94 ff. of the present Decision).

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.