17. The Appeals Chamber first considers the Prosecution’s arguments with regard to the Accused’s senior position in Republika Srpska in 1992. The Appeals Chamber recalls its previous holding that “the weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position he held prior to his arrest.”[1] The rationale behind taking into consideration an accused’s prior position is that he or she may possess very valuable information on a government providing a guarantee that could be disclosed to the International Tribunal.[2] This would serve as a disincentive for a government to enforce its guarantee to arrest an accused after provisional release, if needed, to stand trial.[3]

19. The Appeals Chamber finds that the Trial Chamber erred in its conclusion that it need not weigh the Accused’s senior position prior to his transfer because there was no information before it suggesting that the Accused held a position in the Republic of Serbia, the government providing the guarantee and the country to which he was to be provisionally released. The fundamental question before the Trial Chamber is not whether the Accused held a position in the same government as that providing the guarantee.[4] Rather, it is to consider “what would occur if the relevant authority were obliged under its guarantee to arrest the accused person seeking provisional release”[5] in light of the Accused’s former position, regardless of where it was held. Thus, the Trial Chamber is simply to consider whether the evidence suggests that an accused, by virtue of a prior senior position, may have any information that would provide a disincentive for the State authority providing a guarantee on behalf of the accused to enforce that guarantee.[6]

8. The Appeals Chamber further considers that in rendering a decision on provisional release under the requirements of Rule 65(B), a Trial Chamber is required to provide a reasoned opinion.[1] Thereby, it is obliged “to indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision.”[2] What exactly constitute the relevant factors to be considered and the weight to be given to them depend upon the particular circumstances of each case.[3] This is due to the fact that “[d]ecisions on motions for provisional release are fact intensive and cases are considered on an individual basis . . . in light of the particular circumstances of the individual accused.”[4] The Trial Chamber is required to assess these circumstances not only as they exist at the time when it reaches its decision on provisional release but also, as much as can be foreseen, at the time the case is due for trial and the accused is expected to return to the International Tribunal.[5]  

29. [….] Rule 65(B) provides that the State to which an accused seeks to be released must have an opportunity to be heard before the Trial Chamber grants his application.[1]  This rule does not provide that this State must have the opportunity to be heard before the Trial Chamber denies provisional release. [….] Similarly, nothing in Rule 65 – or in any other rule – requires a Trial Chamber to hear oral argument from an applicant before denying provisional release,[2] and indeed, no rule requires the Trial Chamber to hold a hearing before deciding that government or personal guarantees offered by the applicant merit little weight, even if the applicant has requested a hearing and seeks to supplement these guarantees with oral assurances.   Instead, the Appeals Chamber has explained, “[t]he granting of an oral hearing is a matter for the discretion of a Chamber, and it may legitimately be regarded as unnecessary when  . . . the information before the Trial Chamber is sufficient to enable the Chamber to reach an informed decision.”[3]  [….]

On 20 June 2005 the Appeals Chamber instructed the Applicant, should he deem it necessary, to file additional submissions no later than twenty days after the date of assignment of Ms. Geraghty as Counsel (p. 2).[1] Counsel was assigned on 20 July 2005 (p. 2). On 17 August 2005 the Applicant acting pro se requested the admission of new evidence in order to allege a new fact (p. 3).[2] On 18 August 2005 the Defence requested an extension of time, inter alia, to file additional submissions (p. 3).[3] The Appeals Chamber found that in accordance with the Rules and the Decision of 20 June 2005, the final date for filing the additional submissions was 10 August 2005 and that, contrary to the Decision of 20 June 2005, Counsel failed to file the additional submissions relating to the new facts alleged by the Applicant within the prescribed time-frame (p. 7). The Appeals Chamber nevertheless held as follows (pp. 8, 9):

CONSIDERING that the arguments raised by the Defence in its belated request for extension of time[4] in the Defence Motion for filing additional submissions do not constitute good cause pursuant to Rule 116 of the Rules;

CONSIDERING, however, that Counsel’s failure to file the additional submissions within the time limit, ought not to be imputed to the Applicant, and that under the present circumstances it is in the interests of justice, that additional time be granted to file any additional submissions;

[…]

CONSIDERING […] that Applicant’s pro se filing on 17 August 2005 identifying a “new fact” should in the interest of justice be treated as timely filed, since the Applicant is not at fault for his Counsel’s failure to assist him properly in his filing or Counsel’s misunderstanding of the proper deadlines and because the Applicant has stated that he was unable to establish the existence of this new fact when filing his original Requests for Review;[5]

167. The Trial Chamber correctly[1] stated that an alibi “does not constitute a defence in its proper sense”.[2] 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. In that sense, an alibi differs from a defence in the above-mentioned sense in one crucial aspect. In the case of a defence, the criminal conduct has already been established and is not necessarily disputed by the accused who argues that due to specific circumstances he or she is not criminally responsible, e.g. due to a situation of duress or intoxication. In an alibi situation, however, the accused “is denying that he was in a position to commit the crimes with which he is charged because he was elsewhere than at the scene of the crime at the time of its commission”.[3] An alibi, in contrast to a defence, is intended to raise reasonable doubt about the presence of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution

31. […] the Appellant relies on the Appeal Judgement in Musema, which, in his view, found that when a Trial Chamber did not refer to a particular piece of evidence, it could be presumed that the Trial Chamber did not take this piece of evidence into account.[1]

32. Contrary to the Appellant’s view, Musema does not stand for such a proposition. In that case, the Appeals Chamber did not suggest that a Trial Chamber could be presumed to have ignored a piece of evidence just because it did not mention it in the Judgement. Rather, the Appeals Chamber held, in the paragraph cited by the Appellant, that it could be presumed (absent particular circumstances suggesting otherwise) that the Trial Chamber chose not to “rely on” an unmentioned piece of evidence—that is, that it considered the evidence but decided that it was either not reliable or otherwise not worth citing in the Judgement.[2] The Appeals Chamber in Musema furthermore expressly acknowledged that

… a Trial Chamber is not required to articulate in its judgement every step of its reasoning in reaching a particular finding. Although no particular evidence may have been referred to by a Chamber, it may nevertheless be reasonable to assume in the light of the particular circumstances of the case, that the Trial Chamber had taken it into account. Hence, where a Trial Chamber did not refer to any particular evidence in its reasoning, it is for the appellant to demonstrate that both the finding made by the Trial Chamber and its failure to refer to the evidence had been disregarded.[3]

Moreover, the reading of Musema proffered by the Appellant is inconsistent with the subsequent case law of the Appeals Chamber, which clearly establishes that a Trial Chamber is not obligated to identify and discuss in the Judgement each and every piece of evidence that it has considered.[4]

357. The principle of individualization requires that each sentence be pronounced on the basis of the individual circumstances of the accused and the gravity of the crime.[1] The gravity of the crime is a key factor that the Trial Chamber considers in determining the sentence.[2] The Trial Chamber in this case was cognizant of this obligation:

In sentencing Kamuhanda, the Chamber will take into account the gravity of the offences pursuant to Article 23 of the Statute and Rule 101 of the Rules, the individual circumstances of Kamuhanda, aggravating and mitigating circumstances as well as the general sentencing practice of the Tribunal.[3]

While arguing that the Trial Chamber “totally disregarded”[4] this obligation, the Appellant does not draw the attention of the Appeals Chamber to any specific error. He merely argues, without supporting his assertion, that a sentence of life in prison “may only be justified if the wrong occasioned by the crime is such that, in the interest of public law and order, the accused cannot be released even after several years”.[5] Domestic courts in some countries have held that an accused should be given the possibility of release, even if he is sentenced to imprisonment for the remainder of his life. As the German Federal Constitutional Court stated the argument: “One of the preconditions of a humane penal system is that, in principle, those convicted to life sentences stand a chance of being freed again.”[6] The Appeals Chamber considers that, whatever its merits in the context of domestic legal systems, where it may apply “in principle”, this view is inapplicable in a case such as this one which involves extraordinarily egregious crimes. […]

Page 2:

[…] [C]ounsel participating in appeals proceedings are expected to familiarize themselves with the relevant procedural requirements;

47. The Appeals Chamber recalls that Trial Chambers are “required as a matter of law to take account of mitigating circumstances”.[1] The Appeals Chamber is not satisfied that the Trial Chamber wrongly departed from the “balance of probabilities” standard set out in the Čelebići Appeal Judgement. Having recalled the standard in question, the Trial Chamber stated that, in cases of plea agreements, it would primarily rely on the mitigating factors agreed to by the parties. In other words, the Trial Chamber logically relieved the Appellant from discharging the burden of establishing mitigating circumstances on the balance of probabilities with respect to those mitigating circumstances agreed upon by the parties. […]

The Accused appealed against a Decision of the Trial Chamber admitting into evidence from the bar table the record of the Prosecution’s interview with him. When considering whether the Trial Chamber erred in exercising its discretion to admit the record of the interview pursuant to Rule 89(D) of the ICTY Rules of Procedure and Evidence, the Appeals Chamber made the following findings:

14.     With respect to the Appellant’s first argument, that the Rules do not permit a record of an interview with the accused to be tendered into evidence unless the accused has chosen to testify or has consented to the tender, the Appeals Chamber does not agree that the Rules impose such a categorical restriction.  The Rules instead grant Trial Chambers considerable discretion on evidentiary matters; in particular Rule 89(C) states that a “Chamber may admit any relevant evidence which it deems to have probative value”.  Here the Trial Chamber was satisfied that the record of interview was relevant and probative, and the Appellant does not dispute these points.  The Trial Chamber therefore had the discretion to admit the record, at least so long as doing so did not violate any of the specific restrictions outlined in the remainder of the Rules, nor the general principle of Rule 89(B) requiring application of “rules of evidence which will best favour a fair determination of the matter before it andare consonant with the spirit of the Statute and the general principles of law”.

15.     The Appeals Chamber does not find that fairness or the “spirit of the Statute and general principles of law” require that the admissibility of an accused’s prior statements turn on whether he has agreed to testify or consented to the admission.  The Appellant’s argument to the contrary rests implicitly on the right of an accused against self-incrimination.  An accused has the right to refuse to give statements incriminating himself prior to trial, and he had the right to refuse to testify at trial.  But where the accused has freely and voluntarily made statements prior to trial, he cannot later on choose to invoke his right against self-incrimination retroactively to shield those statements[1] from being introduced, provided he was informed about his right to remain silent before giving this statement; there is, however, a presumption that he knows about this right if he is assisted by counsel.  Nor does the Appellant point to any provision of the Rules or rules of customary international law that specifically imposes such a restriction on the admission of an accused’s prior statements.  The Appeals Chamber therefore concludes that no such rules exists.

16.     The Appellant’s second complaint, that the method of introducing the evidence (via tender from the bar table) breached the principle of orality, is misplaced.  There is to be sure, a general principle that witnesses before the Tribunal should give their evidence orally rather than have their statement entered into the record.  The principle has its origin in the Roman law requirement that parties before a tribunal make submissions orally rather than in writing, and exists in various forms in common and civil law traditions today.  The principle of orality and its complement, the principle of immediacy, act as analogues to common law hearsay rules and are meant to ensure the adversarial nature of criminal trials, and the right of the accused to confront witnesses against him.  

17.     However, the principle of orality, as reflected in the Rules, is not an absolute restriction, but instead simply constitutes a preference for the oral introduction of evidence.  Rule 89(F) states that a “Chamber may receive the evidence of a witness orally or, where the interests of justice allow, in written form.[2] The Tribunal’s jurisprudence recognises that the interests of justice may often allow for the admission of prior statements of the accused.  The principle of orality is weaker in application to the accused’s own statements than to the testimony of other witnesses.  As the Appeals Chamber explained in the Kvočka case, the rules of evidence applicable to witness testimony do not always apply to the statements of an accused: “[t]here is a fundamental difference between an accused, who might testify as a witness if he so chooses, and a witness”. [3]  The principle of orality is intended principally to ensure the accused’s right to confront the witnesses against him, and in this respect its logic is not applicable to the accused’s own statements.  Moreover, to the extent that the principle of orality ensures that in-court witness testimony (generally understood to be more reliable) is used instead of those witnesses’ out-of-court statements where possible, that logic is also less applicable to the accused’s statements, for the accused may, as the Appellant did, refuse to testify.