583. [T]here is no reference to any defence of diminished mental responsibility in the Tribunal’s Statute.  The description of diminished mental responsibility as a “special defence” in Rule 67(A)(ii) is insufficient to constitute it as such.  The rule-making powers of the judges are defined by Article 15 of the Tribunal’s Statute, which gives power to the judges to adopt only –

[…] rules of procedure and evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters.[1]

The Appeals Chamber has held that this power does not permit rules to be adopted which constitute new offences, but only rules of procedure and evidence for the conduct of matters falling within the jurisdiction of the Tribunal.[2]  It follows that there is, therefore, no power to adopt rules which constitute new defences.  If there is a “special defence” of diminished responsibility known to international law, it must be found in the usual sources of international law – in this case, in the absence of reference to such a defence in established customary or conventional law, in the general principles of law recognised by all nations.[3]

625. No precedent in the international context was cited in relation to the specific issue raised by this ground of appeal, and none has been discovered by the Appeals Chamber’s own research.  Guidance as to the legal principles relevant to an allegation that a trial judge was not always fully conscious of the trial proceedings may therefore be sought from the jurisprudence and experience of national legal systems.  The national jurisprudence considered by the Appeals Chamber discloses that proof that a judge slept through, or was otherwise not completely attentive to, part of proceedings is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to a such degree as to give rise to a right to a new trial or other adequate remedy.[1]  The parties essentially agreed that these are the principles which apply to the issue before the Appeals Chamber.[2]

626. The jurisprudence of national jurisdictions indicates that it must be proved by clear evidence that the judge was actually asleep or otherwise not fully conscious of the proceedings, rather than that he or she merely gave the appearance of being asleep.[3]  […]

[…]

630. […] As stated earlier, the national jurisprudence indicates that, before a remedy will be granted on the basis that a judge has been asleep or otherwise inattentive, it must be proved that some identifiable prejudice was caused thereby to the complaining party.[4]  In some continental systems where the sleeping or inattention of a judge may form the basis for a ground of appeal or revision of a judgement – for example, because the court was thereby not properly constituted[5] – no separate reference is made to the necessity to demonstrate prejudice before such a ground would succeed.  However, in order to establish a violation in those cases, a party must prove that the judge in question was unable to perceive “essential” or “crucial” events in the hearing.[6]  If such a standard of judicial inattention has been proved, some actual prejudice must necessarily have been incurred, or at least the proceedings must necessarily have been defective in a material way.  The complaining party must prove the relevant prejudice by clear evidence.[7]  Indeed, it has been held that to grant a new trial on the basis of the inattention of a juror without clear proof of any prejudice caused thereby constitutes “a clear abuse of discretion”.[8]

631. The prejudice which must be proved may be manifested where the judge fails in some identifiable way to assess the evidence properly or expresses an incorrect understanding of the evidence which was given or the submissions which were put.[9]  Elsewhere, it has been held that what must be proved is that the judge is completely inattentive to such a substantial or significant part of the proceedings that there has been a “significant defect” in the proceedings.[10]  The failure of counsel to object or to call attention to a judge’s sleeping or inattention during the proceedings is relevant to the question as to whether prejudice has been established.  Failure of counsel to object will usually indicate that counsel formed the view at the time that the matters to which the judge was inattentive were not of such significance to his case that the proceedings could not continue without attention being called thereto.[11]

632. The necessity that an appellant establish that some prejudice has actually been caused by a judge’s inattention before a remedy will be granted is simply a matter of common sense.  It is clear that there are a number of legitimate reasons why a judge’s attention may briefly be drawn away from the court proceedings before him or her, including taking a note of the evidence or of a particular submission or looking up the transcript to check evidence previously given.  It has been recognised in national jurisprudence that instances of inattention of that nature do not cause prejudice or undermine the fairness of the trial, but are an integral part of a judge’s task in assessing the case before him or her.[12]

633. Moreover, where a judge of this Tribunal misses any evidence, there is not only a transcript to be read but also a video-tape to be viewed if the demeanour of the witness needs to be checked, and there are the observations of the other two judges to assist.  Indeed, for these reasons it has been recognised in the Rules of Procedure and Evidence of the Tribunal that the short absence of a judge from trial proceedings need not necessarily prevent the continuation of the proceedings in the presence of the remaining two judges.  Rule 15bis(A) states: 

If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Trial Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than three days.

Although this rule was not in force at the time of the Čelebići trial proceedings,[13] the fact of its adoption is a clear demonstration that the judges of the Tribunal meeting in plenary considered it to be consistent with the principles of a fair trial and with the Statute of the Tribunal to permit proceedings to be conducted in the temporary absence of one judge.

[…]

637. Reliance was also placed by Landžo on the principle that there must be the appearance of a fair trial,[14] with the implication that even proof of an appearance that a judge was sleeping during proceedings is an adequate foundation for relief without proof of prejudice. […]

638. […] The Appeals Chamber does not accept that this was the correct approach.  In relation generally to the right to a fair trial under Article 6 of the European Convention on Human Rights, the European Court of Human Rights has held that, despite

[…] the importance of appearances in the administration of justice, […] the standpoint of the persons concerned is not in itself decisive.  The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified […].[15]

See also paragraphs 640-649.

After recalling that “proof of active participation by a superior in the criminal acts of subordinates adds to the gravity of the superior’s failure to prevent or punish those acts and may therefore aggravate the sentence”,[1] the Appeals Chamber found that:

737. It must also be recognised, however, that absence of such active participation is not a mitigating circumstance.  Failure to prevent or punish subordinate crimes is the relevant culpable conduct and lack of active participation in the crimes does not reduce that culpability.

Esad Landžo alleged that he was the subject of a selective prosecution policy conducted by the Prosecution.

601. Article 16 of the Statute entrusts the responsibility for the conduct of investigation and prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991 to the Prosecutor.  Once a decision has been made to prosecute, subject to the requirement that the Prosecutor be satisfied that a prima facie case exists, Article 18 and 19 of the Statute require that an indictment be prepared and transmitted to a Judge of a Trial Chamber for review and confirmation if satisfied that a prima facie case has been established by the Prosecutor.  Once an indictment is confirmed, the Prosecutor can withdraw it prior to the initial appearance of the accused only with the leave of the Judge who confirmed it, and after the initial appearance only with the leave of the Trial Chamber.[1]

602. In the present context, indeed in many criminal justice systems, the entity responsible for prosecutions has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction.  It must of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted.  It is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments.  This is acknowledged in Article 18(1) of the Statute, which provides: 

The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations.  The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.

It is also clear that a discretion of this nature is not unlimited.  A number of limitations on the discretion entrusted to the Prosecutor are evident in the Tribunal’s Statute and Rules of Procedure and Evidence.

603. The Prosecutor is required by Article 16(2) of the Statute to “act independently as a separate organ of the International Tribunal”, and is prevented from seeking or receiving instructions from any government or any other source.  Prosecutorial discretion must therefore be exercised entirely independently, within the limitations imposed by the Tribunal’s Statute and Rules.  Rule 37(A) provides that the Prosecutor “shall perform all the functions provided by the Statute in accordance with the Rules and such Regulations, consistent with the Statute and the Rules, as may be framed by the Prosecutor.”

604. The discretion of the Prosecutor at all times is circumscribed in a more general way by the nature of her position as an official vested with specific duties imposed by the Statute of the Tribunal.  The Prosecutor is committed to discharge those duties with full respect of the law.  In this regard, the Secretary-General’s Report stressed that the Tribunal, which encompasses all of its organs, including the Office of the Prosecutor, must abide by the recognised principles of human rights.[2]

605. One such principle is explicitly referred to in Article 21(1) of the Statute, which provides:

All persons shall be equal before the International Tribunal. 

This provision reflects the corresponding guarantee of equality before the law found in many international instruments, including the 1948 Universal Declaration of Human Rights,[3] the 1966 International Covenant on Civil and Political Rights,[4] the Additional Protocol I to the Geneva Conventions,[5] and the Rome Statute of the International Criminal Court.[6]  All these instruments provide for a right to equality before the law, which is central to the principle of the due process of law.  The provisions reflect a firmly established principle of international law of equality before the law, which encompasses the requirement that there should be no discrimination in the enforcement or application of the law.  Thus Article 21 and the principle it embodies prohibits discrimination in the application of the law based on impermissible motives such as, inter alia, race, colour, religion, opinion, national or ethnic origin.  The Prosecutor, in exercising her discretion under the Statute in the investigation and indictment of accused before the Tribunal, is subject to the principle of equality before the law and to this requirement of non-discrimination.

606. This reflects principles which apply to prosecutorial discretion in certain national systems.  In the United Kingdom, the limits on prosecutorial discretion arise from the more general principle, applying to the exercise of administrative discretion generally, that the discretion is to be exercised in good faith for the purpose for which it was conferred and not for some ulterior, extraneous or improper purpose.[7]  In the United States, where the guarantee of equal protection under the law is a constitutional one, the court may intervene where the accused demonstrates that the administration of a criminal law is “directed so exclusively against a particular class of persons […] with a mind so unequal and oppressive” that the prosecutorial system amounts to “a practical denial” of the equal protection of the law.[8]

607. The burden of the proof rests on Landžo, as an appellant alleging that the Prosecutor has improperly exercised prosecutorial discretion, to demonstrate that the discretion was improperly exercised in relation to him.  Landžo must therefore demonstrate that the decision to prosecute him or to continue his prosecution was based on impermissible motives, such as race or religion, and that the Prosecution failed to prosecute similarly situated defendants.

716. The benefits of such a definitive list [of sentencing guidelines for future reference] are in any event questionable.  Both the Statute (Article 24) and the Rules (Rule 101) contain general guidelines for a Trial Chamber to take into account in sentencing.  These amount to an obligation on the Trial Chamber to take into account aggravating and mitigating circumstances (including substantial co-operation with the Prosecution), the gravity of the offence, the individual circumstances of the convicted person and the general practice regarding prison sentences in the courts of the former Yugoslavia.[1]  Other than these general principles, no detailed guidelines setting out, for example, what particular factors may be taken into account in mitigation or aggravation of sentence are provided in either the Statute or the Rules.[2]

717. Trial Chambers exercise a considerable amount of discretion (although it is not unlimited) in determining an appropriate sentencing.  This is largely because of the over-riding obligation to individualise a penalty to fit the individual circumstances of the accused and the gravity of the crime.  To achieve this goal, Trial Chambers are obliged to consider both aggravating and mitigating circumstances relating to an individual accused.  The many circumstances taken into account by the Trial Chambers to date are evident if one considers the sentencing judgements which have been rendered.[3]  As a result, the sentences imposed have varied, from the imposition of the maximum sentence of imprisonment for the remainder of life,[4] to imprisonment for varying fixed terms (the lowest after appeal being five years[5]).  Although certain of these cases are now under appeal, the underlying principle is that the sentence imposed largely depended on the individual facts of the case and the individual circumstances of the convicted person.[6]

718. The Appeals Chamber accordingly concludes that it is inappropriate for it to attempt to list exhaustively the factors that it finds should be taken into account by a Trial Chamber in determining sentence.

See also paragraph 780.

724. The Appeals Chamber reiterates that “[t]he appeal process of the International Tribunal is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial or sentencing.”[1]  Appeal proceedings are rather of a “corrective nature” and, contrary to Land‘o’s submissions, they do not amount to a trial de novo.[2]  Therefore, to the extent that the parties simply resubmit arguments presented at trial without pointing to a particular error, this misconceives the purpose of appellate review on sentence. 

725. The test to be applied in relation to the issue as to whether a sentence should be revised is that most recently confirmed in the Furund‘ija Appeal Judgement.[3]  Accordingly, as a general rule, the Appeals Chamber will not substitute its sentence for that of a Trial Chamber unless “it believes that the Trial Chamber has committed an error in exercising its discretion, or has failed to follow applicable law.”[4]  The Appeals Chamber will only intervene if it finds that the error was “discernible”.[5]  As long as a Trial Chamber does not venture outside its “discretionary framework” in imposing sentence,[6] the Appeals Chamber will not intervene. […]

745. Where criminal responsibility for an offence is alleged under one count pursuant to both Article 7(1) and Article 7(3), and where the Trial Chamber finds that both direct responsibility and responsibility as a superior are proved, even though only one conviction is entered, the Trial Chamber must take into account the fact that both types of responsibility were proved in its consideration of sentence.  This may most appropriately be considered in terms of imposing punishment on the accused for two separate offences encompassed in the one count.  Alternatively, it may be considered in terms of the direct participation aggravating the Article 7(3) responsibility (as discussed above) or the accused’s seniority or position of authority aggravating his direct responsibility under Article 7(1).[1]  The Aleksovski Appeal Judgement has recognised both such matters as being factors which should result in an increased or aggravated sentence. […]

816. […] Trial Chambers are not bound by the practice of courts in the former Yugoslavia in reaching their determination of the appropriate sentence for a convicted person.  This principle applies to offences committed both before and after the Tribunal’s establishment. The Appeals Chamber can therefore see no reason why it should constitute a retrospective increase in sentence to impose a sentence greater than what may have been the maximum sentence available under domestic law in the former Yugoslavia at the time the offences were committed.

817. All of this is, however, subject to the proviso that any sentence imposed must always be, as stated by the Trial Chamber, “founded on the existence of applicable law”.[1]  “[T]he governing consideration for the operation of the nullem crimen sine lege principle is the existence of a punishment with respect to the offence.”[2]  There can be no doubt that the maximum sentence permissible under the Rules (“imprisonment for […] the remainder of a convicted person’s life”[3]) for crimes prosecuted before the Tribunal, and any sentence up to this, does not violate the principle of nulla poena sine lege.[4]  There can be no doubt that the accused must have been aware of the fact that the crimes for which they were indicted are the most serious violations of international humanitarian law, punishable by the most severe penalties.[5]

See also paragraphs 813-814.

458. A circumstantial case consists of evidence of a number of different circumstances which, taken in combination, point to the guilt of the accused person because they would usually exist in combination only because the accused did what is alleged against him […].  Such a conclusion must be established beyond reasonable doubt.  It is not sufficient that it is a reasonable conclusion available from that evidence.  It must be the only reasonable conclusion available.  If there is another conclusion which is also reasonably open from that evidence, and which is consistent with the innocence of the accused, he must be acquitted.

338. [The Trial Chamber’s findings could be interpreted as suggesting that the] Trial Chamber believed that, as a legal matter, there could be no liability for unlawful confinement under Article 7(1) without superior responsibility under Article 7(3) being established. Such a legal interpretation is clearly incorrect, as it entwines two types of liability, liability under Article 7(1) and liability under Article 7(3). As emphasised by the Secretary-General’s Report,[1] the two liabilities are different in nature. Liability under Article 7(1) applies to direct perpetrators of crimes and to accomplices. Article 7(3) applies to persons exercising command or superior responsibility. As has already been acknowledged by the Appeals Chamber in another context, these principles are quite separate and neither is dependent in law upon the other. In the Aleksovski Appeal Judgement, the Appeals Chamber rejected a Trial Chamber statement, made in relation to the offence of outrages of personal dignity consisting of the use of detainees for forced labour and as human shields, that the accused “cannot be held responsible under Article 7(1) in circumstances where he does not have direct authority over the main perpetrators of the crimes”.[2] There is no reason to believe that, in the context of the offence of unlawful confinement, there would be any special requirement that a position of superior authority be proved before liability under Article  7(1) could be recognised.