1.         Paras 98-103:  Although “Equality of arms, particularly the principle of audi alteram partem, is generally thought to apply just before courts”,[1] the Appeals Chamber stated that “the principle has some applicability outside the walls of the Tribunal.” (para. 98).  In this case, the Appeals Chamber found that the principle applied and was violated where UNMIK was delegated the authority to vary the conditions of the Accused’s provisional release without considering the views of the Prosecution.  

At para. 10, after recalling that Trial Chambers only need, when deciding on a provisional release, to “examine those factors that a reasonable Trial Chamber would take into account[1]”, that is “those which are relevant to its taking a fully informed and reasonable decision as to whether, pursuant to Rule 65(B), the accused will appear for trial if provisionally released[2]”, the Appeals Chamber made clear that Trial Chambers must provide a reasoned opinion:

10. […] A Trial Chamber is not obliged to deal with all possible factors when deciding whether it is satisfied that the requirements of Rule 65(B) are fulfilled, but at a minimum, must provide reasoning to support its findings regarding the substantive considerations relevant to its decision.[3] […]

At para. 16, the Appeals Chamber recalled the case-law in that respect:

16. [T]he Appeals Chamber notes that an accused may, if he decides to do so, cooperate with the OTP, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his agreement to be interviewed.[1] Against this backdrop the Appeals Chamber recalls that it has previously held that when an accused person decides to cooperate with the Prosecution, this matter may weigh in his favour when he seeks to be provisionally released, insofar as it shows his general attitude of cooperation towards the International Tribunal which is relevant to the issue that he will appear for trial.[2] However, an accused will not be penalised because he declines to cooperate with the Prosecution.[3] 

It then recalled the law applicable to assess an accused’s cooperation:

17. The Appeals Chamber recalls that the cooperation of an accused should not be assessed solely by reference to the value of the information the accused provides.[4] This is because an accused before this International Tribunal is not obliged to assist the Prosecution in proving its case and any evidence of willingness on the part of an accused to be voluntarily interviewed by the Prosecution is evidence of a degree of cooperation that an accused is entitled to withhold without adverse inference being drawn.[5]

The Trial Chamber found that the accused had expressed his remorse and took this into account as mitigating circumstance. Momir Nikolić argued on appeal that the Trial Chamber had not accepted his statement as “sincere expression of remorse”.

The Appeals Chamber found that the mere finding of the Trial Chamber that his expression of remorse was a mitigating circumstance is “in itself a confirmation that the Trial Chamber considered the Appellant’s remorse to be sincere, as only a ‘real and sincere’ expression of remorse constitutes a mitigating circumstance.” (para. 117).

In the present case, the Referral Bench decided upon a motion for referral on the basis of a proposed amended indictment which was challenged by the Accused.

The Referral Bench had considered that it could base its decision on the proposed amended indictment without prejudice to the Accused, apparently because it found that the indictment was based on the same facts but was only reducing the charges. The Appeals Chamber considered that this was an error of law as the indictment was not the operative indictment:

14. While the Impugned Decision was taken on the basis that no prejudice would accrue to the Appellant, the Appeal Chamber considers that the fact that the Referral Bench based the Impugned Decision on an indictment, which was subject to challenge by the Appellant before the Trial Chamber and yet to be accepted by the Trial Chamber as the operative indictment, was an error of law invalidating the Impugned Decision […].

The Appeals Chamber gave two reasons: (1) the Referral Bench pre-judged the Trial Chamber’s decision on the proposed amended indictment (para. 14); (2) in BIH, criminal prosecution can only be initiated once the indictment has been confirmed by the International Tribunal (paras 15-17).

The Appeals Chamber recalled the definition of the “same transaction” under Rule 2 of the Rules. It then set out the factors that a Trial Chamber may consider in deciding whether to join two or more accused in one case:

7. The Appeals Chamber considers that pursuant to Rule 48 of the Rules, “persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried.” Thus, the fundamental question for the Trial Chamber under Rule 48 is whether the two or more persons at issue for possible joinder in one trial are charged with: (1) having committed crimes, regardless of whether those crimes are alleged to be the same crimes, (2) “in the course of the same transaction.” A transaction is defined under Rule 2 of the Rules as “[a] number of acts or omissions whether occurring as one event or a number of events, at the same or different locations and being part of a common scheme, strategy or plan.” Pursuant to Rule 2 therefore, a common scheme, strategy or plan includes one or a number of events at the same or different locations.[1] Furthermore, there is no requirement under Rules 2 and 48 that the events constituting the “same transaction” take place at the same time or be committed together.[2] The Appeals Chamber agrees with the Trial Chamber that “[i]n deciding whether charges against more than one accused should be joined pursuant to Rule 48, the Chamber should base its determination upon the factual allegations contained in the indictments and related submissions.”[3]

8. Where a Trial Chamber finds that two or more persons have allegedly committed crimes in the course of the same transaction, it then considers various factors, which it weighs in the exercise of its discretion as to whether joinder should be granted. Rule 82 (A) provides that “[i]n joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.” The rights of an accused at trial are explicitly listed under Article 21 of the Statute of the International Tribunal. Rule 82(B) further provides that a Trial Chamber “may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.” Therefore, in light of Rule 82, it is appropriate for a Trial Chamber deciding whether to join two or more accused into one case pursuant to Rule 48 to take into consideration and weigh the following: (1) protection of the rights of the accused pursuant to Article 21 of the Statute; (2) avoidance of any conflict of interests that might cause serious prejudice to an accused; and (3) protection of the interests of justice. A Trial Chamber may, of course, look to other factors in its discretion, which it deems important for considering whether joinder under Rule 48 would be appropriate. For example, in this case, in addition to weighing the first two factors mentioned previously, the Trial Chamber also considered that a single trial would better ensure the interests of justice by (1) avoiding the duplication of evidence; (2) promoting judicial economy; (3) minimising hardship to witnesses and increasing the likelihood that they will be available to give evidence; and (4) ensuring consistency of verdicts.[4]

See also Pandurević Decision on Joinder of Accused, paras 7-8.

The Appellant was arguing that his right to an expeditious trial pursuant to Article 21(4)(c) of the Statute would be infringed by a joinder of cases.  The Appeals Chamber most importantly held that “[i]t is well within the Trial Chamber’s discretion to take into consideration judicial economy when determining whether joinder would be appropriate” (para. 26). 

The Appellant was arguing that the Trial Chamber erred in finding that it could regulate the cross-examination of witnesses. In his view, this would violate both his right to cross-examine witnesses under Article 21(4)(e) of the Statute and Rule 82(A) of the Rules according to which in “joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.”

The Appeals Chamber found the following:

29. […] The Trial Chamber was correct to note that in a joint trial, a Trial Chamber has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination. Rule 90(F) specifically provides that “[t]he Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time.” Of course, this power is subject to Trial Chamber’s obligation to respect the rights of an accused, including the right to cross-examine witnesses under Article 21(4)(e) of the Statute.[1] The Appellant fails to show how the Trial Chamber’s regulation of the cross-examination of witnesses in this joint trial by, for example, avoiding repetitive questioning, would result in prejudice to him. Rather, the Trial Chamber’s regulation should mitigate any potential prejudice to him. At trial, the Appellant will have the opportunity to object where he feels that the Trial Chamber has erred in finding that another Accused’s cross-examination of a witness is sufficient to cover his defence such that he does not need to also engage in cross-examination of that same witness. The Trial Chamber will consider each objection carefully under its obligation to respect norms of due process and the rights of the Appellant. 

3. The Appeals Chamber does not accept that Counsel’s commitment to other cases at this Tribunal constitutes “good cause” pursuant to Rule 127.  Counsel assigned to represent accused at this Tribunal are expected to organise their work schedules in order to meet their obligations to respect the time limits for filings on appeals laid down in the Practice Direction.[1]  Counsel would have been able to calculate, upon the filing of the Appellant’s Appeal, the due date for the Prosecution Response and subsequently the Appellant’s Reply and is expected to have organised her work schedule to meet those due dates.  Accordingly, “good cause” has not been shown, and the Reply of the Appellant will not be considered in this Appeal.

P. 4: CONSIDERING that the Appeals Chamber has the statutory duty to ensure the fairness of the proceedings on appeal[1] and, thus, has jurisdiction to review decisions of the Tribunal’s Registrar and President;

P. 4: CONSIDERING, however, that the exercise of such jurisdiction should be closely related to the fairness of proceedings on appeal and should not be used as a substitute for a general power of review which has not been expressly provided by the Rules of Detention;[2]

P. 4: CONSIDERING that the Appellant has not identified any impact by the issues raised in his Motion on his right to fair proceedings;

P. 4: FINDING that the detention conditions raised by the Appellant are not related to the fairness of proceedings on appeal and that, therefore, the Appellant’s right to fair proceedings has not been infringed by the outcome of the President’s Decision;

P. 4: FINDING, therefore, that the Appellant has exhausted all available remedies and that the Appeals Chamber has no jurisdiction in this matter