CONSIDERING […] that the Appeals Chamber maintains an inherent power to admit […] evidence even if it was available at trial, in cases in which its exclusion would lead to a miscarriage of justice;

CONSIDERING that the Appeals Chamber may review a sentence handed down by a Trial Chamber where that Trial Chamber has erred in the exercise of the discretion conferred upon it with respect to sentencing by the Statute of the International Tribunal and the Rules;

33. With respect to the right to choose one’s counsel, the Appellant argues that he ought to have had the right to choose his counsel and that the violation of this right was a violation of his right to a fair trial[1]. The Appeals Chamber refers on this point to the reasoning of Trial Chamber I in the Ntakirutimana case[2] and concludes, in the light of a textual and systematic interpretation of the provisions of the Statute and the Rules[3], read in conjunction with relevant decisions from the Human Rights Committee[4] and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms,[5] that the right to free legal assistance by counsel does not confer the right to choose one’s counsel.

75. The Appeals Chamber agrees with the parties that the standard for determining whether a guilty plea is informed is that articulated by Judges McDonald and Vohrah in Erdemović such that the accused must understand the nature of a guilty plea and the consequences of pleading guilty in general, the nature of the charges against him, and the distinction between any alternative charges and the consequences of pleading guilty to one rather than the other.[1]

97. The Appeals Chamber notes that Rule 111 expressly states that “[a]n Appellant’s brief shall contain all the argument and authorities.”[1] Although Rule 114 provides that “the Appeals Chamber may rule on… appeals based solely on the briefs of the parties”,[2] it also states that it can decide to hear the appeal in open court. It is intended that each party should advise the Appeals Chamber in full of all the arguments upon which they it wishes to rely in relation to each ground of appeal, through both written filings and orally.

98. However, in the case of errors of law, the arguments of the parties do not exhaust the subject. It is open to the Appeals Chamber, as the final arbiter of the law of the Tribunal, to find in favour of an Appellant on grounds other than those advanced: jura novit curia. Since the Appeals Chamber is not wholly dependent on the arguments of the parties, it must be open to the Chamber in proper cases to consider an issue raised on appeal even in the absence of substantial argument. The principle that an appealing party should advance arguments in support of his or her claim is therefore not absolute: it cannot be said that a claim automatically fails if no supporting arguments are presented.

124. The weight to be attached to mitigating circumstances is a matter of discretion for the Trial Chamber and unless the Appellant succeeds in showing that the Trial Chamber abused its discretion, resulting in a sentence outside the discretionary framework provided by the Statute and the Rules, these grounds of appeal will fail.  

102. The Appeals Chamber notes that nothing in the Statute or Rules expressly states that a Chamber must impose a separate sentence for each count on which an accused is convicted. However, in view of the references in Rule 101(C) to “multiple sentences”, and to “consecutively or concurrently”, it may be argued that the Rules seem to assume that a separate sentence will be imposed for each count.

103. The Appeals Chamber finds in this regard that the Statute is sufficiently liberally worded to allow for a single sentence to be imposed. Whether or not this practice is adopted is within the discretion of the Chamber. The Appeals Chamber upholds the argument of the Prosecution that a Chamber is not prevented from imposing a global sentence in respect of all counts for which an accused has been found guilty.[1]

109. It is thus apparent that it is within the discretion of the Trial Chamber to impose either a single sentence or multiple sentences for convictions on multiple counts. However, the question arises, in what circumstances is it appropriate for a Chamber to exercise its discretion to impose a single sentence.

110. On this point, the Appeals Chamber notes that with respect to the particular circumstances of the Blaškić case, ICTY Trial Chamber I stated that

the crimes ascribed to the accused have been characterised in several distinct ways but form part of a single set of crimes committed in a given geographic region during a relatively extended time-span … In light of this overall consistency, the Trial Chamber finds that there is reason to impose a single sentence for all the crimes of which the accused has been found guilty.

This followed similar reasoning in the Jelisić case.[2]

111. The Appeals Chamber agrees with the approach adopted in the Blaškić case: where the crimes ascribed to an accused, regardless of their characterisation, form part of a single set of crimes committed in a given geographic region during a specific time period, it is appropriate for a single sentence to be imposed for all convictions, if the Trial Chamber so decides. The issue is whether this case falls within such parameters.

See also paras. 104–108.

31. […] [T]he close of trial proceedings means the close of all proceedings before a Trial Chamber, ending with the delivery of the judgement. […] [T]he practice of the Tribunal [is] that evidence disclosed after the close of hearings but before judgement may lead to the re-opening of a case at first instance.[1]  The situation could arise where, following the close of the presentation of evidence, but prior to the delivery of the judgement of the Trial Chamber, exculpatory evidence relating to the accused has come to the possession of the Prosecution.  A Trial Chamber is entitled to have the benefit of all relevant evidence put before it in order to reach an informed and well-balanced judgement, and its ability to accept evidence late prior to judgement is in conformity with the requirement of a fair trial under the Statute and the Rules.  In such a situation, it would be open to the Defence to move before the Trial Chamber, right up to the date of judgement, to seek permission to re-open the trial proceedings to enable the Defence to present the new exculpatory evidence that has come to light.  The Appeals Chamber therefore takes the view that the duty of the Prosecution to disclose to the Defence the existence of such evidence pursuant to Rule 68 continues at least until the date when the Trial Chamber delivers its judgement.

32. […] the Appeals Chamber also believes that the Prosecution is under a legal obligation to continually disclose exculpatory evidence under Rule 68 in proceedings before the Appeals Chamber. The application of Rule 68 is not confined to the trial process. Like sub-Rule 66 (A) (ii), Rule 68 provides a tool for disclosure of evidence. In the context of the Rules, admission of evidence on appeal can be effected through either Rule 115 or Rule 89, but the Rules do not specify means of disclosure in appeals. This is where Rule 107 has a role to play: to enable the Appeals Chamber to import rules for trial proceedings to fill a lacuna in appellate proceedings, subject to appropriate modifications.  […]

[…]

38. However, the Appeals Chamber considers that the Prosecution may still be relieved of the obligation under Rule 68, if the existence of the relevant exculpatory evidence is known and the evidence is accessible to the appellant, as the appellant would not be prejudiced materially by this violation. […]

39. […] Under Rule 68, the initial decision as to whether evidence is exculpatory has to be made by the Prosecutor. Without further proof that the Prosecution abused its judgement, the Appeals Chamber is not inclined to intervene in the exercise of this discretion by the Prosecution. […]

40. […] It is to be noted, however, that a request based on Rule 68 is not required to be so specific as to precisely identify which documents shall be disclosed. […]

43. The Appellant submits that the Appeals Chamber should order the Prosecution to submit a signed, sworn affidavit to certify that it is aware of its continuing obligations under sub-Rule 66 (A) (ii) and Rule 68 and has produced to the Appellant all material requested […].

45. This type of order is one that should only be made by a Chamber in very rare instances.  The Prosecution is expected to fulfil its duties in good faith.  This has been acknowledged in the document known as the Standards of Professional Conduct for Prosecution Counsel, issued by the Chief Prosecutor on 14 September 1999.  Only where the Defence can satisfy a Chamber that the Prosecution has failed to discharge its obligations should an order of the type sought be contemplated. 

22. As a general principle, interpretation of the Rules of Evidence should “best favour a fair determination of the matter” and be “consonant with the spirit of the Statute and the general principles of law.”[1] In interpreting a particular Rule, a Trial Chamber should ensure that it is interpreted in accordance with its “ordinary meaning” and “in the light of [the] object and purpose” of the Statute and Rules.[2]

23. The Trial Chamber relied on the principle of effectiveness (interpretation par la méthode de 1’effet utile or ut res magis valeat quam pereat) in finding that “the Rules must be interpreted to give them useful effect.”[3] The question arises as to whether or not the Trial Chamber’s interpretation achieved this, without contravening the rights of the Appellant and the need to ensure a fair trial both of which requirements underline the object and purpose of the Statute and the Rules. As the International Court of Justice has stated:

The principle of interpretation expressed in the maxim: ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions...a meaning which...would be contrary to their letter and spirit.[4]

[…]

32. […] [T]he Rules must be interpreted with some degree of flexibility, the primary object being “to achieve justice, not to delay it, and not to permit mere technicalities to intrude where there has been no material prejudice caused by a non-compliance.”[5] Indeed, the Appeals Chamber has, in some other types of cases, accepted non-compliance with the precise terms of a Rule, provided it has no adverse effect upon the integrity of the proceedings or the rights of the accused.[6] […]