12.     Where the nature of the error demonstrated is such that the Appeals Chamber is replacing the sentence with another which, in its view, the original Trial Chamber should have imposed, further evidence will not ordinarily be admitted.[1]  Such a course was followed by the Appeals Chamber in Prosecutor v Aleksovski,[2] in which the prosecution successfully argued that the sentence imposed by the Trial Chamber was manifestly inadequate because it gave insufficient weight to the gravity of the accused’s conduct and failed to treat his position as commander as an aggravating feature in relation to his responsibility under Article 7.1 of the Statute. Without hearing the parties further and without further evidence, the Appeals Chamber was able to revise the sentence imposed by increasing it.

13.     In Prosecutor v Kupreškić,[3] the Appeals Chamber had admitted additional evidence in the appeal by the appellant Vladimir Šantić against his conviction.  It reduced the sentence imposed upon that appellant because (i) the Trial Chamber in sentencing him had erroneously taken into account a fact which had not been established, (ii) the additional evidence on conviction demonstrated that Šantić had now, at least in part, accepted his guilt, and (iii) he had provided substantial co-operation to the prosecution after his conviction.  The Appeals Chamber stressed the absence of any de novo review, and it did not suggest that the appellant’s late acceptance of his guilt would have been admissible had it not become apparent from evidence otherwise admissible in the appeal.  The last consideration (co-operation after conviction) is expressly made relevant to sentencing by Rule 101(B)(ii), despite the absence of a de novo review of sentence.  The Appeals Chamber held that evidence of such co-operation was thereby made admissible, in appropriate cases, in a sentence appeal.[4]  The Appeals Chamber also held that, as all relevant information was already before it, it was unnecessary to remit the matter to a Trial Chamber,[5] having earlier stated that it had power to remit to a Trial Chamber the hearing of additional evidence which had been tendered pursuant to Rule 115.[6]  No other evidence falling within Rule 101(B) was adduced before the Appeals Chamber.

46.     It is inappropriate to describe a person in detention against whom the criminal proceedings have not yet been completed as habitually residing in detention.  The clear intention of this provision in Article 8(B) is to permit the Registrar to take into account the means of those with whom an accused habitually resided before entering detention and/or those with whom he would be residing were he not in detention.  For this purpose, the Registrar is entitled to take into account the information supplied by the accused in his declaration of means. […]  

[The Directive on the Assignment of Defence Counsel was amended since this decision was issued, and the relevant provision was moved from Article 8(B) to Article 10(A).]

12.     […] The burden upon the accused in the first instance to establish that he lacks the means to remunerate counsel, and upon the Registrar in the second instance to establish that the accused does have the means to do so, is not satisfaction beyond reasonable doubt, as in a criminal trial, but merely satisfaction that, more probably than not, what is asserted is true, or (as it is sometimes described) satisfaction on the balance of probabilities.  Satisfaction that what is asserted is more probably true than not will in turn depend on the nature and the consequences of the matter to be proved.  The more serious the matter asserted, or the more serious the consequences flowing from a particular finding, the more difficult it will be to satisfy the relevant tribunal that what is asserted is more probably true than not.

13.     […] A judicial review of such an administrative decision is not a rehearing.  Nor is it an appeal, or in any way similar to the review which a Chamber may undertake of its own judgment in accordance with Rule 119 of the Rules of Procedure and Evidence.  A judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which Registrar reached the particular decision and the manner in which he reached it.  The administrative decision will be quashed if the Registrar has failed to comply with the legal requirements of the Directive.  This issue may in the particular case involve a consideration of the proper interpretation of the Directive.  The administrative decision will also be quashed if the Registrar has failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or if he has taken into account irrelevant material or failed to take into account relevant material, or if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).  These issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar, but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled.  These standards for judicial review of administrative decisions rest on general principles of law derived from the principal legal systems.

14.     In the review, the accused bears the onus of persuasion.  He must persuade the Chamber conducting the review (a) that an error of the nature described has occurred, and (b) that such error has significantly affected the Registrar’s decision to his detriment.  If the accused fails to persuade the Chamber of either of these matters, the Registrar’s decision will be confirmed.  If the accused has persuaded the Chamber of both matters, the Registrar’s decision may be quashed and, if appropriate, the Chamber may also either rule that legal aid should be granted or, where it is satisfied that the accused has the means to remunerate counsel partially, refer the matter again to the Registrar for him to determine the portion of the cost of having counsel for which the accused does not have the means to pay.[1]  In some cases, it may be appropriate for the Chamber simply to quash the decision and to direct the Registrar to reconsider his decision in the light of the Chamber’s decision.  It is clear, from the implicit restriction that only the Registrar may determine the extent to which the accused has the means partially to remunerate counsel, that the power of the Chamber to substitute its own decision for that of the Registrar is limited.

56.     The Tribunal’s Statute provides that its working languages are English and French,[1] but it also provides that, in the determination of the charges upon which he is being tried, an accused is entitled to be informed of the nature and cause of the charge against him in a language he understands,[2] and to the free assistance of an interpreter if he cannot understand or speak the language of the Tribunal.[3]  None of these provisions support a right in an accused person to a translation of a judgment or decision of the Tribunal into a language which he understands, but it is common practice for at least some allowance to be made in relation to the times within which various steps have to be taken in an appeal against such a judgment where it is necessary for an accused who does not speak the language in which the judgment has been issued to play a significant part in that step.  It is therefore all the more important for an accused who does not speak the language in which a decision has been issued, and who is unrepresented, to have a translation of that decision in order to determine whether he should challenge that decision and to formulate the documents necessary for that purpose.

31. [...] Under Rule 54 of the Rules, a Trial Chamber may, at the request of either party or on its own initiative, issue a subpoena when it finds that doing so is “necessary for the purposes of an investigation or for the preparation or conduct of the trial.”  The discretion of the Trial Chambers, however, is not unfettered.  They must take into account a number of other considerations before issuing a subpoena.  Subpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.

32. In determining whether to issue a subpoena, a Trial Chamber has first of all to take into account the admissibility and potential value of the evidence sought to be obtained. Under Rule 89(C) of the Rules, a Trial Chamber “may admit any relevant evidence which it deems to have probative value,” and under Rule 89(D) may “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”  Secondly, the Trial Chamber may need to consider other factors such as testimonial privileges.  For instance, Rule 97 of the Rules states that “all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.”  Similarly, in the Simić case, the Trial Chamber made it clear that the ICRC has a right under customary international law to non-disclosure of information so that its workers cannot be compelled to testify before the International Tribunal.[1]

[...]

46. The Appeals Chamber considers that in order to decide whether to compel a war correspondent to testify before the International Tribunal, a Trial Chamber must conduct a balancing exercise between the differing interests involved in the case. On the one hand, there is the interest of justice in having all relevant evidence put before the Trial Chambers for a proper assessment of the culpability of the individual on trial. On the other hand, there is the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern.

[...]

50. [...] [T]he Appeals Chamber holds that in order for a Trial Chamber to issue a subpoena to a war correspondent a two-pronged test must be satisfied.  First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case.  Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere.

15. […] The Tribunal has an inherent power to stay proceedings which are an abuse of process, such a power arising from the need for the Tribunal to be able to exercise effectively the jurisdiction which it has to dispose of the proceedings.[1] […]

[T]he burden does lie upon the accused in an application for provisional release to satisfy the Trial Chamber that, if released, he will appear for trial;

7. The circumstances of each accused who applies for provisional release must be evaluated individually as they weigh upon the likelihood that he will appear for trial.  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 which he held prior to his arrest.  The Trial Chamber must assess these circumstances at the time when the decision on provisional release is being taken, but must also, as far as foreseeable, make an assessment as at the time when the case is due for trial and when the accused will be expected to return. 

[...]

9. [...] The position of an accused in the hierarchy and the consequence thereof upon the weight of governmental guarantees are indeed significant factors which the Trial Chamber is expected to address as they could have an important bearing upon a State’s willingness and readiness to arrest that person if he refuses to surrender himself; those factors therefore reduce the likelihood of his appearing at trial. [...]

18. […] [Paragraph (B) of Rule 70] prevents the disclosure of information provided to the Prosecutor on a confidential basis where that information has been used solely for the purposes of generating new evidence, without the consent of the provider. It was designed to encourage States and others (such as humanitarian organisations operating in the relevant territory) to assist the Prosecution (or, under paragraph (F) of the Rule, the Defence). The provider must consent before this information may be disclosed any further – by being presented in evidence or otherwise. If the information is to be disclosed in evidence, it must be disclosed to the accused in accordance with Rule 66, as paragraph (B) provides.[1] […]

19. The purpose of Rule 70(B) to (G) is to encourage States, organisations, and individuals to share sensitive information with the Tribunal. The Rule creates an incentive for such cooperation by permitting the sharing of information on a confidential basis and by guaranteeing information providers that the confidentiality of the information they offer and of the information’s sources will be protected.[2] As Trial Chamber I explained several years ago, “the exceptions to disclosure in Sub-rules 70(B) to (E) were introduced into the rules to permit the use, as and when appropriate, of certain information which, in the absence of explicit provisions, would either not have been provided to the Prosecutor or have been unusable on account of its confidential nature or its origin.”[3] As another Trial Chamber has observed, without such guarantees of confidentiality, it is “almost impossible to envisage this Tribunal, of which the Prosecution is an integral organ, being able to fulfil its functions.”[4]

20. The phrases “information under this Rule” and “testimony, document or other material so provided” in paragraph (C),[5] and “information provided under this Rule” in paragraph (D),[6] are intended to relate back to the “information which has been provided” referred to in paragraph (B).[7] […] Paragraphs (C) and (D) deal with the situation where the provider has already given its consent to the information being disclosed further, by being presented in evidence in one form or another. By definition, the information is by this stage no longer being “used solely for the purpose of generating new evidence”. It becomes a matter of necessary textual interpretation, therefore, that the information referred to in paragraphs (C) and (D) must be that which was provided to the Prosecutor on a confidential basis […], and not that which was so provided and which has been used solely for the purpose of generating new evidence […]. […]

21. The Trial Chamber […] impermissibly introduced a requirement into Rule 70 that the sole purpose of providing the information was to generate new evidence, whereas paragraph (B) speaks only of the material having been used solely for that purpose. No doubt the purpose of providing information on a confidential basis will in many cases include a purpose (sole or otherwise) that new evidence will thereby be generated, but the limitations imposed by Rule 70(B) are not based upon the existence of such state of mind on the part of the provider.

[…]

23. The fact that information is provided in the form of testimony does not exclude it from being “information” or “initial information” provided under the Rule. Indeed, paragraph (C) of the Rule expressly refers to the “testimony, document, or other material so provided.” (emphasis added). […] When a person possessing important knowledge is made available to the Prosecutor on a confidential basis, not only the informant’s identity and the general subject of his knowledge constitute the “information” shielded by Rule 70, but also the substance of the information shared by the person – often, as in this case, presented in summary form in a witness statement.

[…]

25. All that Rule 70 requires is that the information “was provided to the Prosecutor on a confidential basis.” As mentioned in paragraph 20 supra, for purposes of paragraph (B), the information must also be “used solely for the purpose of generating new evidence,” but for paragraphs (C) and (D) that requirement necessarily drops out, for once the information is introduced as evidence at trial, it by definition is no longer “used solely for the purpose of generating new evidence.”

26. […] The Appeals Chamber observes that two safeguards exist to ensure that any misuse does not deprive accused persons of their rights to challenge the evidence against them and to receive a fair trial.[8] First, as explained more fully below in section D.2, the Trial Chambers do possess a limited authority to police the application of Rule 70 in order to prevent its misapplication. Second, paragraph (G) of Rule 70 expressly empowers the Trial Chambers to “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.” Designed to ensure that the restrictions in paragraphs (C) and (D) do not undermine the bedrock requirement of fair trial when the Rule is properly invoked, paragraph (G) also gives Trial Chambers a tool to protect that requirement if the Rule has been misused.

[…]

29. […] Chambers of the Tribunal do indeed have the authority to assess whether information has been provided in accordance with Rule 70(B) and so benefits from the protections afforded by that Rule. However, such enquiry must be of a very limited nature: it only extends to an examination of whether the information was in fact provided on a confidential basis, bearing in mind that the providing of information may not be confined to a single act, but may consist of a process involving several acts. This is an objective test. The Chambers may be satisfied of this simply by a consideration of the information itself, or by the mere assertion of the Prosecutor, or they may require confirmation from the information provider or, where the information is in the form of a document, for example, there may be something on the face of the document which indicates that it was indeed provided on a confidential basis.

[…]

31. […] Where […] there is any doubt upon the face of the material placed before a Trial Chamber when the protections of Rule 70 are sought, the Trial Chamber should invite the party which provided the information and the Prosecutor to supply evidence upon these issues before ruling upon the application of Rule 70 to the information in question. The Trial Chamber should give the information provider an opportunity to be heard on the question by filing written submissions, but need not allow additional oral submissions by the information provider unless the Trial Chamber determines that the interests of justice so require.