The Appellant argued that taken “either separately or in amalgamation”, the mitigating circumstances before the Trial Chamber should have attracted a lesser sentence (see Judgement on Sentencing Appeal, para. 66). At footnote 215, the Appeals Chamber found:

The Appeals Chamber will not address the issue of whether, taken “in amalgamation”, the mitigating factors referred to by the Appellant were properly weighed by the Trial Chamber. An appellant can only succeed in challenging a Trial Chamber’s decision regarding the weight afforded to a mitigating circumstance by demonstrating that the Trial Chamber committed a discernible error concerning a specific factor. As correctly stated at para. 675 of the Kvočka Appeal Judgement, “[m]ere recital of mitigating factors without more does not suffice to discharge this burden”.

55. The Appeals Chamber notes that an accused’s conduct after committing a crime is relevant in that it reveals how aware he was of the wrongfulness of his actions and his intention to “make amends” by, among other things, facilitating the task of the International Tribunal.[1] In the instant case, the Trial Chamber acknowledged that conduct subsequent to the crime had been accepted in other cases before the International Tribunal, “where the convicted person acted immediately after the commission of the crime to alleviate the suffering of victims.”[2]  In support of such assertion, the Trial Chamber referred to the Plavšić case.[3] Since the Trial Chamber was not satisfied that conclusive evidence had been proffered to show that the Appellant alleviated the suffering of victims after the commission of the crime of persecution or at the end of the armed conflict, it held that his post-conflict conduct did not amount to a mitigating circumstance[4] and found that such conduct concerned matters which had already been considered, such as cooperation and acceptance of responsibility.[5]

56. The Appeals Chamber notes, however, that the Trial Chamber in the Plavšić case in fact gave significant weight as a factor in mitigation to Biljana Plavšić’s post-conflict conduct, namely her contribution to the advancement of the Dayton Agreement and her attempt to remove obstructive officials from office,[6] because “she made a considerable contribution to peace in the region” without reference to the alleviation of the suffering of victims.[7] The Appeals Chamber thus considers that the Sentencing Judgement incorrectly interpreted the Plavšić Trial Chamber’s assessment of Biljana Plavšić’s “post-conflict conduct.”

59. The Appeals Chamber is satisfied that the Appellant attempted to further peace after the commission of the crime of persecution. The Appeals Chamber finds that the Trial Chamber erred in law in categorically refusing to take these attempts to further peace into account as a mitigating factor on the basis that they did not directly alleviate the suffering of the victims.

61. The Appeals Chamber notes that in light of the mandate of the International Tribunal under Chapter VII of the UN Charter, an attempt to further peace in the former Yugoslavia is in general relevant as a mitigating circumstance. […].

32. As previously noted in the Dragan Nikolić case, the precedential effect of previous sentences rendered by the International Tribunal and the ICTR is not only “very limited”[1] but “also not necessarily a proper avenue to challenge a Trial Chamber’s finding in exercising its discretion to impose a sentence”.[2] The reasons for this are clearly set out in the case law of the International Tribunal: (1) such comparison can only be undertaken where the offences are the same and committed in substantially similar circumstances;[3] and (2) a Trial Chamber has an overriding obligation to tailor a penalty to fit the individual circumstances of the accused and the gravity of the crime.[4]

33. In the Jelisić case, in addressing the appellant’s arguments to the effect that he was given a sentence in excess of those rendered in other cases, the Appeals Chamber held the following:

The Appeals Chamber agrees that a sentence should not be capricious or excessive, and that, in principle, it may be thought to be capricious or excessive if it is out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences.  Where there is such disparity, the Appeals Chamber may infer that there was disregard of the standard criteria by which sentence should be assessed, as prescribed by the Statute and set out in the Rules.[5]

In the present case, the Appellant is not alleging that his case falls within a pattern or a line of sentences passed in similar circumstances for the same offences. He only refers to one case which in his view bears some similarities with his own. The finding of the Appeals Chamber in Jelisić was concerned with a comparison with a “line of sentences” and not with a comparison with one single case. Furthermore, the Appeals Chamber emphasises that, as a general principle, comparisons with other cases as an attempt to persuade the Appeals Chamber to either increase or reduce the sentence are of limited assistance: the differences are often more significant than the similarities and the mitigating and aggravating factors dictate different results.[6] In this case, even assuming that the two cases were so similar as to be meaningfully comparable, the Appellant’s sentence is not so out of reasonable proportion with Plavšić’s sentence so as to suggest capriciousness or excessiveness. The Appeals Chamber will therefore not engage in a comparison between these two cases. In light of the foregoing, this part of the Appellant's second ground of appeal is dismissed.

73.     The Appeals Chamber notes that it is normal for a witness who testified in several trials about the same event or occurrence to focus on different aspects of that event, depending on the identity of the person at trial and the questions posed to the witness.[1] Therefore, not every discrepancy may undermine a witness’s credibility. […]

The Appellant filed his Appellant’s Brief after the deadline set by the Appeals Chamber and he did not submit a motion pursuant to Rule 127 of the ICTY Rules of Procedure and Evidence requesting that it be considered as validly filed and showing good cause to justify the delay. The Appeals Chamber, nevertheless, held that the Appellant’s Brief was deemed to be validly filed:

5.       The Scheduling Order issued by the Appeals Chamber is unambiguous.  The Appellant’s Brief was to be filed on 17 June 2005.  If good cause justified Counsel filing the Appellant’s Brief after the time stipulated in that Order, then that good cause should be presented to the Appeals Chamber, and a request for an extension of time should have been made before the filing deadline or a request that the Appellant’s Brief be received as validly filed pursuant to Rule 127 of the Rules should have been made at the time of the filing of the Appellant’s Brief out of time, if not before.  The fact that Counsel for the Appellant has not sought to justify his late filing and has requested the Appeals Chamber to receive it as validly filed after the fact is sufficient grounds for the Appeals Chamber to strike the Appellant’s brief as not validly filed, as is requested by the Prosecution.  Indeed, when clear time limits are transgressed without justifiable explanation, the Appeals Chamber is hesitant to do other than reject the filing.  In this case, however, the Appeals Chamber has determined that the interests of justice warrant it receiving the brief as validly filed despite Counsel’s breach of its Order. 

6.       Contempt proceedings are ancillary to proceedings at the Tribunal and arise from the inherent power of the Judges of this Tribunal to protect the integrity of their own proceedings.  However, this particular contempt appeal also touches upon fundamental due process rights of an Accused, Mr Milošević, charged with  particularly serious offences in a way that other contempt proceedings heard at this Tribunal have not. 

7.       A central argument made by the Appellant in his grounds of appeal is that the Trial Chamber should not have allowed his cross-examination to continue in the absence of the Accused and that, as a result, he should never have been put in the position of refusing an order of the Tribunal and subsequently being charged with contempt of the Tribunal for such a refusal.  Prior to the commencement of the contempt proceedings against him, the Appellant requested the Trial Chamber to reconsider its ruling on this basis.  The Trial Chamber refused to do so on the basis that it was not its role to reconsider such a decision, one which it already had determined was warranted, in the context of a proceeding of contempt against the Appellant.

8.       In these circumstances, if the Appeals Chamber refuses due to a procedural irregularity to accept the Appellant’s Brief as validly filed, then the Appellant is placed in the unfortunate position of being charged with contempt but denied the opportunity to respond fully to that criminal charge. Upon this basis, the Appeals Chamber has determined that the possible implications of this contempt proceeding for the rights of the Accused Mr Milošević warrant some leniency to the Appellant despite his Counsel’s failure to abide by the Scheduling Order of the Appeals Chamber.

9.       On the basis of the foregoing, the Appellant’s Brief filed on 20 June 2005 is deemed to be validly filed. […]  

219. The Appeals Chamber notes that the Statute and Rules of the Tribunal are silent with regard to the manner and method in which an arrest of a suspect is to be effected by a cooperating State under Rule 40 of the Rules at the urgent request of the Prosecution. For example, no mention is made of ensuring the suspect’s right to be promptly informed of the reasons for his or her arrest or the right to be promptly brought before a Judge.[1] It is for the requested State to decide how to implement its obligations under international law.[2]

220. The Appeals Chamber finds that under Rule 40 of the Rules, the Prosecution and Benin had overlapping responsibilities during the first period of the Appellant’s arrest and detention in Benin. This flows from the rationale that the international division of labour in prosecuting crimes must not be to the detriment of the apprehended person. Under the prosecutorial duty of due diligence, the Prosecution is required to ensure that, once it initiates a case, “the case proceeds to trial in a way that respects the rights of the accused.”[3] With regard to the responsibility of the Benin authorities, the Appeals Chamber is mindful of the fact that a cooperating State, when effecting an urgent arrest and detention pursuant to the Prosecution’s request under Rule 40 of the Rules, must strike a balance between two different obligations under international law. First, the State is required under Security Council Resolution 955 and Article 28 of the Tribunal’s Statute to comply fully without undue delay with any requests for assistance from the Tribunal in fulfilling the weighty task of investigating and prosecuting persons accused of committing serious violations of international humanitarian law. On the other hand, the cooperating State still remains under its obligation to respect the human rights of the suspect as protected in customary international law, in the international treaties to which it has acceded,[4] as well as in its own national legislation.

221. Therefore, a shared burden exists with regard to safeguarding the suspect’s fundamental rights in international cooperation on criminal matters. A Judge of the requested State is called upon to communicate to the detainee the request for surrender (or extradition) and make him or her familiar with any charge, to verify the suspect’s identity, to examine any obvious challenges to the case, to inquire into the medical condition of the suspect, and to notify a person enjoying the confidence of the detainee[5] and consular officers.[6] It is, however, not the task of that Judge to inquire into the merits of the case. He or she would not know the reasons for the detention in the absence of a provisional or final arrest warrant issued by the requesting State or the Tribunal. This responsibility is vested with the judiciary of the requesting State, or in this case, a Judge of the Tribunal, as they bear principal responsibility for the deprivation of liberty of the person they requested to be surrendered.

222. Accordingly, the Prosecution is under a two-pronged duty. The request to the authorities of the cooperating State has to include a notification to the judiciary, or at least, by way of the Tribunal’s primacy, a clause reminding the national authorities to promptly bring the suspect before a domestic Judge in order to ensure that the apprehended person’s rights are safeguarded by a Judge of the requested State as outlined above. In addition, the Prosecution must notify the Tribunal in order to enable a Judge to furnish the cooperating State with a provisional arrest warrant and transfer order.

223. In this context, the Appeals Chamber recalls the words of Judge Vohrah, which, although made in relation to the status of an accused, apply to suspects as well:

if an accused is arrested or detained by a state at the request or under the authority of the Tribunal even though the accused is not yet within the actual custody of the Tribunal, the Tribunal has a responsibility to provide whatever relief is available to it to attempt to reduce any violations as much as possible.[7]

231. […] [T]he Appeals Chamber finds that [the Trial Chamber] erred in failing to find that his detention in Benin for a total of 85 days without charge and without being brought promptly before a Judge was clearly unlawful and was in violation of his rights under the Tribunal’s Statute and Rules as well as international human rights law. The Appeals Chamber finds that the Prosecution is responsible for these violations because it failed to make a request within a reasonable time under Rules 40 and 40bis for the Appellant’s provisional arrest and transfer to the Tribunal. Moreover, its request would have included the provisional charges, which would then have been served on the Appellant.[1] Although Rules 40 and 40bis do not explicitly state how long a suspect may permissibly remain in the provisional custody of a cooperating State pursuant to a Rule 40 request, the Appellant’s prolonged detention in Benin was unreasonable. The evidence on the record indicates that the Appellant was never informed by a Judge of the charges against him, even provisionally, until sometime between 29 August 1998 and 7 September 1998, when he was formally served with an arrest warrant and a copy of the redacted indictment against him from the Tribunal.[2] The Appeals Chamber does not accept that 85-days’ delay after a suspect’s arrest may be considered “prompt” or “immediate” within the meaning of this Tribunal’s Statute or Rules.[3] Additionally, although 90 days may be permissible for the finalizing of a formal indictment, 85 days of provisional detention without even an informal indication of the charges to be brought against the suspect is not reasonable under international human rights law, given that nothing less than an individual’s fundamental right to liberty is at issue. While it is true that the Appellant was served with the arrest warrant and redacted indictment within days of their issuance by a Judge of this Tribunal on 29 August 1998, at a minimum, the Appellant should have been informed as soon as possible after his arrest on 5 June 1998 of any reliable information possessed by the Prosecution with regard to why he was considered a suspect and as to any provisional charges against him.[4] The Appeals Chamber considers that the Prosecution was able to directly request the Benin authorities to do so on its behalf, given that it stated that when it sent its request letter of 6 June 1998 to the Benin authorities, it had compelling and consistent evidence of the Appellant’s participation in the commission of crimes in Rwanda.[5]

232. Furthermore, the Appeals Chamber finds that as a result of the Prosecution’s failure to make a Rule 40bis transfer and provisional detention request within a reasonable period of time, the Appellant was not promptly brought before a Judge, either of this Tribunal or in Benin during the first period of his detention of 95 days. The Appeals Chamber notes that there are important purposes underlying the right to be promptly brought before a Judge in the requested State, inter alia: to allow for the suspect to be informed of the provisional charges against him or her; to ascertain the identity of the detained suspect;[6] to ensure that the suspect’s rights are being respected while in detention; and to give the suspect an opportunity to voice any complaints. The Appeals Chamber considers that this violation of the Appellant’s right is not solely attributable to the Prosecution. The Appeals Chamber notes in this context that the Benin Constitutional Court found, in response to a motion filed by the Appellant before it on 24 August 1998, that his detention from 5 June 1998 to 7 September 1998 by the Benin Director of Police and the Benin General Public Prosecutor Office, was in violation of the Constitution of Benin.[7] Nevertheless, although the violation is not solely attributable to the Tribunal, it has to be recalled that it was the Prosecution, thus an organ of the Tribunal, which was the requesting institution responsible for triggering the Appellant’s apprehension, arrest and detention in Benin.

233. The Appeals Chamber emphasizes that “it is important that Rule 40 and Rule 40bis be read together” and restrictively interpreted.[8] The purpose of Rule 40 and Rule 40bis is to place time limits on the provisional detention of a suspect prior to issuance of an indictment[9] and to ensure that certain rights of the suspect are respected during that time. The Appeals Chamber considers that it is not acceptable for the Prosecution, acting alone under Rule 40, to get around those time limits or the Tribunal’s responsibility to ensure the rights of the suspect in provisional detention upon transfer to the Tribunal’s custody under Rules 40 and 40bis, by using its power under Rule 40 to keep a suspect under detention in a cooperating State.[10] The Appeals Chamber notes the Prosecution’s submission, made at the Appeal Hearing, that the 95-days’ delay in the Appellant’s transfer to the custody of this Tribunal was due to the fact that the period in which the Appellant was arrested was an extremely busy one for the Prosecution with numerous ongoing investigations against dozens of suspects and numerous indictments being drafted simultaneously.[11] While the Appeals Chamber is sympathetic to the workload carried by the Prosecution at that time, in no way does this fact justify the Appellant’s arbitrary provisional detention in Benin without charge for 85 days, and detention in Benin without appearance before a Judge for a total of 95 days.

251. […] the Appeals Chamber concludes that […] the Appellant was arbitrarily detained in Benin for 85 days without an arrest warrant and a transfer order from the Tribunal being submitted to the Benin authorities by the Prosecution within a reasonable time and without being promptly informed of the charges against him in violation of Rule 40 of the Rules and Articles 9(2) and 14(3)(a) of the ICCPR. Finally, the Appellant was detained in Benin for a total of 95 days without being brought before a Judge or an official acting in a judicial capacity in clear violation of Article 9 of the ICCPR.

248. The Appeals Chamber does not agree with the Trial Chamber in this regard. The difficulties in assigning the Appellant counsel in this case should not have been an obstacle for the Tribunal to ensure that the Appellant’s initial appearance was scheduled without delay. The Appeals Chamber agrees with the Prosecution that it is important and indeed ideal for an accused to have the assistance of counsel at the initial appearance to provide guidance, in particular, for entering a plea. Furthermore, the Appeals Chamber considers that Rule 62(A)(i) states that at the initial hearing, the Trial Chamber or Judge shall “[s]atisfy itself or himself that the right of the accused to counsel is respected.” In addition, the Trial Chamber or Judge could ordered assignment of duty counsel to the Appellant for purposes of representation at the initial appearance and would have had the opportunity to facilitate the Registry’s further attempts to assign the Appellant counsel.

249. Furthermore, the Appeals Chamber notes that apart from the assignment of counsel issue and the Appellant’s role in creating delay, the Registry conceded that in this case, the initial appearance was also delayed in part due to the fact that the Appellant had been jointly indicted with several other accused. It was difficult at the time for the Tribunal’s Court Management Section to find a date acceptable to all, with all being duly represented by counsel.[1]

250. The Appeals Chamber emphasizes that Rule 62 is unequivocal that an initial appearance is to be scheduled without delay. There are other purposes for an initial appearance apart from entering a plea including: reading out the official charges against the accused, ascertaining the identity of the detainee,[2] allowing the Trial Chamber or Judge to ensure that the rights of the accused while in detention are being respected, giving an opportunity for the accused to voice any complaints, and scheduling a trial date or date for a sentencing hearing, in the case of a guilty plea, without delay.[3] The Appeals Chamber therefore finds that, under the plain meaning of Rule 62, the 211-day delay between the Appellant’s transfer to the Tribunal and the initial appearance before a Judge of this Tribunal constitutes extreme undue delay.

42. […] The Appeals Chamber has recently confirmed that when a defendant pleads an alibi, he 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.[1] The Appeals Chamber recalls that:

It is settled jurisprudence before the two ad hoc Tribunals that in putting forward an alibi, a defendant need only produce evidence likely to raise a reasonable doubt in the Prosecution’s case. The burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[2]

43. Nothing in the foregoing requires the Prosecution, however, specifically to disprove each alibi witness’s testimony beyond reasonable doubt. Rather, the Prosecution’s burden is to prove the accused’s guilt as to the alleged crimes beyond reasonable doubt in spite of the proffered alibi.

202. The parties have addressed the effects of these prior interlocutory appeals decisions by reference to the doctrine of res judicata. This doctrine refers to a situation when “a final judgement on the merits” issued by a competent court on a claim, demand or cause of action between parties constitutes an absolute bar to “a second lawsuit on the same claim” between the same parties.[1] The doctrine of res judicata is not directly applicable to this case, because it applies not to the effects of prior interlocutory appeals decisions on further proceedings in the same case, but instead to the effects of final judgements in one case on proceedings in a subsequent and different case.[2] However, a similar principle applies to cases like this one: the Appeals Chamber ordinarily treats its prior interlocutory decisions as binding in continued proceedings in the same case as to all issues definitively decided by those decisions. This principle prevents parties from endlessly relitigating the same issues, and is necessary to fulfil the very purpose of permitting interlocutory appeals: to allow certain issues to be finally resolved before proceedings continue on other issues.

203. There is an exception to this principle, however. In a Tribunal with only one tier of appellate review, it is important to allow a meaningful opportunity for the Appeals Chamber to correct any mistakes it has made.[3] Thus, under the jurisprudence of this Tribunal, the Appeals Chamber may reconsider a previous interlocutory decision under its “inherent discretionary power” to do so “if a clear error of reasoning has been demonstrated or if it is necessary to do so to prevent an injustice.”[4]