13.  Rule 115 does not, on its face, prohibit a party from adducing additional evidence in support of a factual finding of a Trial Chamber.  The Rule merely states that a party may file a motion to present additional evidence before the Appeals Chamber.  In circumstances such as these, where the Prosecution is alleging an error in the fact finding of a Trial Chamber in relation to an identified issue, and where its own application to adduce additional evidence relevant to that issue has been refused, on its face, the Rule does not appear to prohibit the Defence from seeking to admit additional evidence directed to that factual finding challenged by the Prosecution.

14. However, while the Rule does not expressly prohibit a party from seeking the admission of additional evidence on appeal to bolster challenged factual findings, in the practice of the International Tribunal, motions for additional evidence are directed towards supporting an argument of factual error, and if additional evidence is sought to be admitted in support of a factual finding, it is admitted as rebuttal material to that additional evidence admitted in support of a factual error.[1]  Neither the Prosecution nor Stanišić has advanced any arguments in support of a departure from this established practice in this case.  However, both parties seem to agree that Rule 115 does permit the admission of evidence in support of a factual finding that is the subject of appeal.

25. It is reasonable for a Trial Chamber to take into account the gravity of the offences charged in order to determine whether facing the possibility of a lengthy sentence would constitute an incentive for an accused to flee.[1] It is evident that the more severe the possible sentence which an accused face is facing, the greater is his incentive to flee.[2] [….]

26. The Appeals Chamber recalls, however, that the seriousness of the charges against an accused cannot be the sole factor determining the outcome of an application for provisional release,[3] and emphasizes that a Trial Chamber must take into account the seriousness of the charges in addition to several other factors.[4] 

19. Pursuant to Article 21(4) (b) and (d) of the Statute the accused is entitled to legal assistance of his own choosing. However this guarantee is not without limits. Previous decisions issued by the Appeals Chamber have established that the right to publicly paid counsel of one’s own choice is limited.[1] In principle the choice of any accused regarding his Defence counsel in proceedings before the International Tribunals should be respected unless there are sufficient grounds to override the accused’s preference in the interests of justice. When the fairness of the trial which is one of the fundamental rights of the accused also provided for in Article 21 of the Statute, is at stake (as it is suggested to be the case here) the accused’s choice might be overridden regardless of whether the case is concerned with the appointment of counsel paid by the accused. As rightly stated in the Impugned Decision, one of the limits to the accused’s choice is the existence of a conflict of interests affecting his counsel.[2]

[…]

21. The Appeals Chamber recalls that the issue of qualification, appointment and assignment of counsel, is open to judicial scrutiny.[3] The issue being raised bears on the substantive nature of the representation by Mr. Olujić and the proper fulfilment of the obligations which derive from the legal representation of the Appellant.[4] Problems relating to the Appellant’s defence would affect the conduct of the case which the Trial Chamber has the duty to regulate in accordance with the requirements set forth in Article 20 of the Statute.[5] In sum, a conflict of interests between Mr. Ivica Rajić and the Appellant would affect the fairness of the proceedings. This concerns, first, the responsibility of the Trial Chamber to ensure that the trial is fair, and secondly, the right of the Appellant and of Ivica Rajić to a fair trial. [6]

22. A conflict of interests between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice.[7] Article 14 of the Code of Conduct[8] which concerns the existence of a conflict of interests, provides that a counsel may not represent a client when this representation affects or can affect the representation of another client.  

8. For additional evidence to be admissible on appeal pursuant to Rule 115 the moving party must establish that the evidence was unavailable at trial and could not have been discovered by the exercise of due diligence, that it is relevant to a material issue and credible, and that it could have had an impact on the verdict. If the moving party cannot establish that the evidence was unavailable at trial, the Appeals Chamber may still admit the evidence if the moving party shows that its exclusion would lead to a miscarriage of justice, in that, if it had been available at trial it would have affected the verdict.[1]

16. The Appeals Chamber parts ways with the Trial Chamber, however, in its assessment of the Order on Modalities.[1]  In spelling out the future working relationship between Milošević and Assigned Counsel, the Order sharply restricts Milošević’s ability to participate in the conduct of his case in any way.  The Order makes his ability to participate at all contingent on a case-by-case, discretionary decision by the Trial Chamber.[2]  It implies that he would only occasionally – “where appropriate” – be permitted to examine witnesses.[3]  And it indicates that, even where he is permitted to examine a witness, he may do so only after Assigned Counsel had already completed their examination.  In every way, then, the Order relegates Milošević to a visibly second-tier role in the trial.

17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milošević’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial.  When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle:  any restriction of a fundamental right must be in service of “a sufficiently important objective,” and must “impair the right . . . no more than is necessary to accomplish the objective.”[4] Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where “necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others,”[5] the United Nations Human Rights Committee has observed that any such restrictions “must conform to the principle of proportionality; . . . they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.”[6]  And the ICTY itself has been guided by a “general principle of proportionality” in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is “(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target.”[7]

18. The Appeals Chamber considers that a proportionality principle of this sort was clearly called for here.  The excessiveness of the Trial Chamber’s restrictions is apparent for at least three reasons:  (1) the medical reports relied on by the Trial Chamber explicitly rejected the notion that Milošević’s condition is permanent;[8] (2) there was no evidence that Milošević had suffered from any health problems since late July; and (3) Milošević made a vigorous two-day opening statement without interruption or apparent difficulty.  Despite these indications of possible improvement in Milošević’s condition, however, the Trial Chamber failed to impose a carefully calibrated set of restrictions on Milošević’s trial participation. Given the need for proper respect of a right as fundamental as this one, this failure was an improper exercise of the trial court’s discretion.[9]

10. In reviewing this exercise of discretion, the question is not whether the Appeals Chamber agrees with the Trial Chamber’s conclusion, but rather “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”[1]  In order to challenge a discretionary decision, appellants must demonstrate that “the Trial Chamber misdirected itself either as to the principle to be applied or as to the law which is relevant to the exercise of the discretion,” or that the Trial Chamber “[gave] weight to extraneous or irrelevant considerations, . . . failed to give weight or sufficient weight to relevant considerations, or . . . made an error as to the facts upon which it has exercised its discretion,” or that the Trial Chamber’s decision was “so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.”[2]  In practice, this array of factors boils down to the following simple algorithm:  a Trial Chamber’s exercise of discretion will be overturned if the challenged decision was (1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.  Absent an error of law or a clearly erroneous factual finding, then, the scope of appellate review is quite limited:  even if the Appeals Chamber does not believe that counsel should have been imposed on Milošević, the decision below will stand unless it was so unreasonable as to force the conclusion that the Trial Chamber failed to exercise its discretion judiciously.

31. [...] The Appeals Chamber holds that customary international law recognized the application of the mode of liability of joint criminal enterprise to the crime of genocide before 1992, and that in consequence the statement to that effect in the Tadić Appeal Judgement was legally correct. Consequently, the International Tribunal has jurisdiction to try the Appellant on a charge of genocide through the mode of liability of joint criminal enterprise.

52. … In the circumstances to which Rule 15bis(D) is addressed, it is not for a party to move the court, rather, the Rule allows the remaining Judges to take the initiative and act in their discretion, namely, decide to continue the proceedings with a substitute Judge if, taking all the circumstances into account, they unanimously determine that doing so would serve the interests of justice. The parties have a right to be heard before the decision is made, but they bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice. Accordingly, it would constitute an error on the part of the remaining Judges to take into account that Defence submissions have not demonstrated that re-starting the trial would serve the interests of justice.
54. The issue under Rule 15bis(D) is whether taking all the circumstances into account, the Judges find that continuing the trial would serve the interests of justice. In answering this question, the Judges are to assess the totality of the circumstances rather than whether a party has demonstrated that continuing or re-starting the trial would better serve the interests of justice. In the view of the Appeals Chamber, although the remaining Judges noted that the Defence had not demonstrated certain facts, they did not base their findings on this observation, which would be an immaterial consideration, but, rather, they based them on the assessment of the underlying circumstances, which was material for their decision. Consequently, the Appeals Chamber finds that the remaining Judges did not abuse their discretion by taking into account an immaterial consideration, namely whether the Defence met a certain burden, and dismisses the Appeals on this point.

59. The Appeals Chamber also finds that in reaching the Impugned Decision the remaining Judges took into account an immaterial consideration, namely, the fact that the testimonies were given in a language not understood by the Bench […]

60. The Tribunal has repeatedly emphasized the importance of observing the demeanour of witnesses and, indeed, it is this first-hand observation which is the basis for the Appeals Chamber’s deference to the factual findings of Trial Chambers.[1] The Appeals Chamber considers that the importance of evaluation of the demeanour of witnesses by the triers of fact cannot be discounted on the ground that the witnesses may speak through an interpreter. Even when this is the case, the Judges observing the witness testify have an opportunity to see his or her demeanour, assess it, and weigh the evidence accordingly.

This interlocutory appeal decision turned on whether it constituted a conflict of interest for Mr. Jovan Simić to act as counsel for both Željko Mejakić, one of the accused in the case of Prosecutor v. Mejakić et al., and Dragoljub Prcać, an accused in the case of Prosecutor v. Kvočka et al. The Prosecution submitted that should the accused Prcać be called to testify in the Mejakić et al. case, it would be difficult for Mr. Simić, as counsel for both accused, to reconcile his duty to protect the interests of each accused. The Appeals Chamber held as follows:

7. The Registrar has the primary responsibility of determining matters relating to the assignment of counsel under the legal aid system. The Trial Chamber, however, considered that it had a statutory obligation to ensure a fair and expeditious conduct of the proceedings, and that from this obligation it derived the power to decide on the Prosecution’s motion alleging a conflict of interest.[1] The approach of the Trial Chamber is consistent with the Appeals Chamber’s decision in the case Prosecutor v. Blagojević of 7 November 2003.[2] In that decision, the Appeals Chamber confirmed that the Trial Chamber has an inherent power to ensure that the trial of an accused is fair. However, the Appeals Chamber warned that in exercising this power the Trial Chamber cannot appropriate for itself a power that is conferred elsewhere.[3] The Directive on Assignment of Defence Counsel[4] does not provide any specific procedure for the removal of Defence Counsel in the case of a conflict of interest at the request of the Prosecution, and as such, the Trial Chamber could rely on its inherent power to review the assignment of Mr. Simić.

8. The right to choose counsel is a fundamental right of the accused and is recognized by Article 21(4) (b) and (d) of the Statute of the International Tribunal (“Statute”). However, this right is not without limits. The Appeals Chamber has on several occasions stated that “the right to free legal assistance by counsel does not confer the right to counsel of one’s own choosing.”[5] One of the limits to the accused’s choice is a conflict of interest affecting his counsel. Under Article 14 of the Code of Conduct,[6] a counsel may not represent a client when this representation affects or can affect the representation of another client. [….]

This requirement is reflected by Article 16 (E) of the Directive on Assignment of Defence Counsel:

E.         No counsel shall be assigned to more than one suspect or accused at a time, unless an assignment to more than one suspect or accused would neither cause prejudice to the defence of either accused, nor a potential conflict of interest. [THIS PROVISION WAS AMENDED WITH THE ENTRY INTO FORCE ON 11 JULY 2006 OF THE DIRECTIVE ON THE ASSIGNMENT OF DEFENCE COUNSEL, IT/73 Rev 11. AS AMENDED.]

Mr. Simić had acknowledged a potential conflict of interest and, following the procedure laid out under Article 14 of the Code of Conduct, obtained the written consent of both Mr. Mejakić and Mr. Prcać to represent each of them.

[…]

12. The Appeals Chamber finds that a conflict of interests does exist at the present stage of  the proceedings. It is not contested that Mr. Mejakić was the direct superior of Mr. Prcać in the Omarska camp. Mr. Mejakić is charged with crimes committed in the Omarska camp under Article 7 (1) of the Statute for participating in a joint criminal enterprise. In addition, he is charged under Article 7 (3) of the Statute, on the basis that he was the commander of the camp and had effective control over the guard shift commanders, camp guards, and other persons working within or visiting the Omarska camp. Further, the Prosecution claims that Mr. Prcać has given evidence incriminating Mr. Mejakić in an interview with the Prosecution in the Kvočka et al. case. It was for this reason that the Trial Chamber considered Mr. Prcać’s evidence significant and allowed the Prosecution to include Mr. Prcać in its witness list.[7]

[…]

14. The Appeals Chamber further finds that, if the conflict of interest regarding the representation of Mr. Prcać and Mr. Mejakić is not resolved at the present stage of proceedings, the administration of justice may be irreversibly prejudiced. The Appeals Chamber considers that the conflict of interest is an important one. The Trial Chamber noted in its First Decision that Mr.  Mejakić did not deny that he was in a position of authority at the Omarska camp, and that he acknowledged that Mr. Prcać spent some time there under his command.[8] Mr. Mejakić is charged with command responsibility under Article 7(3) of the Statute. Mr. Prcać may give evidence on the command structure of the Omarska camp as well as on the particular offences committed in this camp. The evidence given by Mr. Prcać may therefore have a significant impact on the trial of Mr. Mejakić.

15. The decision by Mr. Prcać whether to cooperate with the Prosecution has to be taken presently, and it may impact on the potential benefits for Mr. Prcać and on the conduct of the Mejakić trial. Moreover, the conflict of interest may influence the Defence strategy of Mr. Mejakić, for example, by preventing his counsel from calling certain witnesses in order not to prejudice the interests of Mr. Prcać. There is finally the risk that Mr. Simić might withdraw in the course of the trial because of the conflict of interest, thus delaying the proceedings. For these reasons also the Appeals Chamber finds that the representation of both Mr. Mejakić and Mr. Prcać by Mr. Simić is likely to irreversibly prejudice the administration of justice.