63. [...] The Appeals Chamber emphasizes, however, that it will not lightly disturb on review a trial chamber’s credibility assessment, which was subjected to appellate review, based on a witness’s subsequent conduct occurring more than five years after their original testimony. To do so, would in fact provide incentives to convicted persons, or individuals close to them, to interfere with susceptible witnesses with the hope that it will not be discovered and the convicted person will be released or, if discovered, that the witnesses will then be so thoroughly discredited that their original testimony cannot be trusted and the convicted person will be released. To put it simply, an applicant bears a heavy burden in showing that the conduct of a witness, occurring significantly post trial testimony, taints their original testimony. [...] 

9. […] [N]either Article 1(4) of the Statute nor Rule 90 of the Rules incorporates the modes of liability that apply to the core crimes that are encompassed in the jurisdiction of the Mechanism pursuant to Article 1(1) of its Statute.[1] Specifically, Article 1(4) of the Statute provides for the Mechanism’s power to prosecute any person who knowingly and wilfully interferes or has interfered with the administration of justice by the Mechanism or the ad hoc Tribunals and to hold such person in contempt. Rule 90 of the Rules provides that the Mechanism may hold in contempt those who knowingly and wilfully interfere with the administration of justice and enumerates what conduct can amount to such interference.

10. The Appeals Chamber understands the Prosecution’s submission to be that the Single Judge should have interpreted the phrase “interferes with the administration of justice” to include interference committed through a joint criminal enterprise. The Appeals Chamber does not find this interpretation to be persuasive.

[…] [W]hile the doctrine of joint criminal enterprise is not referred to in the Statute or the Rules of the Mechanism and the ad hoc Tribunals, it has been specifically applied to the core crimes of genocide, crimes against humanity, and war crimes as a form of commission under Article 6(1) of the ICTR Statute and Article 7(1) of the ICTY Statute after a detailed review of customary international law. […] In addition […] jurisdiction over joint criminal enterprise liability was limited to the core crimes as, inter alia: (i) Articles 6(1) and 7(1) of the ICTR and the ICTY Statutes, respectively, only apply to the core crimes by their plain language; and (ii) Article 1(4) of the Statute, Rule 90 of the Rules, or Rule 77 of the ICTR and the ICTY Rules of Procedure and Evidence do not cross reference Articles 6(1) and 7(1), respectively, of the ICTR and the ICTY Statutes.[3]

11. […] [R]eferences to “attempt” and “incitement” in the language of Rule 90(B) of the Rules indicate that these specific offences expressly fall within the Mechanism’s jurisdiction and they cannot be construed as incorporating other offences or modes of liability in the scope of this provision.

12. […] [T]he terms “interferes” or “has interfered with the administration of justice” […] […] does not limit the jurisdiction of the Mechanism to actual commission of contempt, but instead includes “all conduct” that interferes with the Mechanism’s administration of justice. […] [T]he Mechanism’s subject matter jurisdiction encompassed incitement to commit contempt as this offence was specifically recognised in the Rules of Procedure and Evidence of both ad hoc Tribunals and Article 1(4)(a) of the Statute codifies jurisdiction over offences that interfere with the administration of justice.[6]

[…]

15. [T]he Single Judge rightly concluded that “the doctrine of joint criminal enterprise has never been applied in any contempt case before the Tribunals.”[7] In addition […] [t]he context in which liability under the doctrine of joint criminal enterprise was applied by the ad hoc Tribunals […] was specifically done in relation to the core crimes of genocide, crimes against humanity, and war crimes.

15. The Appeals Chamber reiterates that the Mechanism is bound to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ad hoc Tribunals[.][1]

25. The Appeals Chamber notes that Karadžić did not raise his arguments about the alleged breach of his right to represent himself during trial or seek reconsideration or certification to appeal the impugned decision.[1] In this respect it recalls that, if a party raises no objection to a particular issue before a trial chamber when it could have reasonably done so, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to raise the issue on appeal.[2] However, in view of the fundamental importance of the right to self-representation, the Appeals Chamber holds that it would not be appropriate to apply the waiver doctrine to Karadžić’s allegation of error and will consider the matter.[3]

See also para. 298.

35. The Appeals Chamber recalls that Article 21(4)(d) of the ICTY Statute guarantees the fundamental right of an accused to be tried in his presence. This right is not absolute, however, and may be subject to limitations.[1] As with other qualified statutory rights of an accused, including the right to be self-represented, any limitation on the right of the accused to be tried in his presence must serve a sufficiently important aim that is compatible with the ICTY Statute and must not impair the right more than necessary to accomplish such aim.[2]

[…] 

37. […] In view of the above, the Appeals Chamber finds no error in the Trial Chamber’s consideration that conducting the site visits in Sarajevo and Srebrenica in the presence of Karadžić would inevitably pose a considerable security risk for Karadžić as well as the other participants in the site visit delegations.[3] The Appeals Chamber therefore finds that the Trial Chamber’s decision to conduct the site visits without Karadžić being present served the sufficiently important aim of ensuring its ability to perform its functions in the given circumstances and did not impair his right more than necessary to accomplish it.[4]

[…]

39. The Appeals Chamber finds that the minutes of the site visits therefore reveal the exchange of submissions between the parties and the Trial Chamber’s interactions with various persons at some of the sites. The minutes also confirm that, although the impugned decisions indicated that the purpose of the site visits was not to gather evidence or hear submissions but to enable the Trial Chamber to familiarize itself with the locations referred to in the Indictment, the conduct during the visits did not comply with the limitations imposed by the Trial Chamber. Consequently, the Appeals Chamber finds that the two site visits formed part of the trial proceedings,[5] and that, in light of the conduct during them, the site visits violated Karadžić’s right to be tried in his presence. The Appeals Chamber will proceed to examine whether Karadžić suffered prejudice as a result of this violation.

40.  […] Although Karadžić submits that “[t]he observations made during the site visit undoubtedly affected the Trial Chamber’s overall assessment of the events, and its findings in the judgement”,[6] he does not point to any concrete disadvantage or prejudice suffered as a result of the site visits having been conducted in his absence.[7]

41. The Appeals Chamber reiterates that any violation of the right to a fair trial of an accused requires a remedy.[8] The nature and form of the effective remedy should be proportional to the gravity of the harm suffered.[9] The Appeals Chamber also recalls that, in situations where a violation of the accused’s fair trial rights has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[10] For the reasons set out above, the Appeals Chamber considers that its recognition of the violation of Karadžić’s right to be present during the site visits constitutes an effective remedy.

62. […] [T]he Appeals Chamber emphasizes that the Prosecution is obligated “to state the material facts underpinning the charges in the indictment, but not the evidence by which such material facts are to be proven”.[1] […]

85. The Appeals Chamber recalls that decisions concerning disclosure pursuant to Rules 66 and 68 of the ICTY Rules as well as remedies for disclosure violations relate to the general conduct of trial proceedings and therefore fall within the discretion of the trial chamber.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2] The Appeals Chamber will only reverse a trial chamber’s discretionary decision where it is found to be based on an incorrect interpretation of the governing law, based on a patently incorrect conclusion of fact, or where it is so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.[3]

See also para. 230.

[…]

88. […] The Appeals Chamber recalls that, if the Defence satisfies the Chamber that the Prosecution failed to comply with its disclosure obligations under Rule 68 of the ICTY Rules,[4] the Chamber must examine whether the Defence was prejudiced by that failure before considering whether a remedy is appropriate.[5] The onus is on the Defence to substantiate its claim of alleged prejudice from the disclosure violation.[6] […]

[…]

91. […] The Appeals Chamber observes that disclosure under Rule 68 of the ICTY Rules is a continuous obligation that does not require disclosure prior to the commencement of trial but “as soon as practicable”.[7] Karadžić does not substantiate his general contentions that he was deprived of the ability to develop a coherent defence strategy before trial due to disclosure during the trial or show how disclosure in the midst of his proceedings prejudiced his ability to review exculpatory material as well as conduct other aspects of his defence. […]

92. Karadžić’s contentions also fail to account for the resources and legal assistance available to him during his pre-trial and trial proceedings in order to, inter alia, review and assimilate extensive Prosecution disclosures.[8] Likewise, Karadžić’s submissions fail to account for the suspensions of proceedings and delays in the presentation of Prosecution witnesses that the Trial Chamber ordered for the purpose of ensuring his right to a fair trial.[9]

[…]

 96. The Appeals Chamber recalls that, to establish that the Prosecution is in breach of its disclosure obligations, the applicant must: (i) identify specifically the material sought; (ii) present a prima facie showing of its probable exculpatory nature; and (iii) prove that the material requested is in the custody or under the control of the Prosecution.[10] The Prosecution received the statement in December 2012 and disclosed it to Karadžić more than three years later.[11] The Appeals Chamber considers that, in the absence of any explanation, the disclosure did not occur as soon as practicable.[12] Having considered the arguments presented at trial and on appeal,[13] the Appeals Chamber is satisfied that the statement contains potentially exculpatory material.[14] Consequently, Karadžić has established that the Prosecution violated its disclosure obligation under Rule 68 of the ICTY Rules in relation to this statement.[15]

[…]

103. The Appeals Chamber observes that excluding relevant parts of the Prosecution evidence may be an appropriate remedy for a disclosure violation and that, in this regard, the exclusion of evidence for disclosure violations is an extreme remedy that should not be imposed unless the defence has demonstrated sufficient prejudice to justify such a remedy.[16] In this case, the Trial Chamber expressly recognized that Karadžić was prejudiced and that the disclosure violation “deprived” him of an opportunity to challenge Witness Okun during his cross-examination by reference to the statement.[17] The Trial Chamber addressed this prejudice by not relying on parts of Witness Okun’s evidence, namely by excluding evidence pertaining to Karadžić’s command and control as well as other evidence that did not “strictly” relate to the period between February and May 1992 discussed in the statement.[18] […]

116. The Appeals Chamber recalls that decisions on taking judicial notice of adjudicated facts fall within the discretion of trial chambers.[1] In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2]

117. Rule 94(B) of the ICTY Rules provides that, at the request of a party or proprio motu, a trial chamber, after hearing the parties, may take judicial notice of adjudicated facts or documentary evidence from other proceedings of the ICTY relating to the matter at issue. Adjudicated facts are “facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding”.[3] Judicial notice should not be taken of adjudicated facts relating to the acts, conduct, and mental state of an accused.[4]

118. It is not disputed that the practice of taking judicial notice of adjudicated facts is well-established in the jurisprudence of the ICTY and the ICTR,[5] and it is accepted as a method of achieving judicial economy while ensuring the right of an accused to a fair and expeditious trial.[6] In this respect, a number of procedural safeguards are set out in the jurisprudence,[7] which are intended to ensure that trial chambers exercise their discretion cautiously and in accordance with the rights of the accused, including the right to be presumed innocent until proven guilty pursuant to Article 21(3) of the ICTY Statute.[8]

119. […] Karadžić challenges the “constitutionality” of the practice of taking judicial notice of adjudicated facts, notwithstanding the express provision for it in the ICTY Rules.[9] The Appeals Chamber recalls that, where the respective Rules or Statute of the ICTY are at issue, it is bound to consider the relevant precedent when interpreting them.[10] This Appeals Chamber is presently being called upon to assess the propriety of decisions taken by an ICTY trial chamber, that was bound by the ICTY Rules and the ICTY Statute as well as by decisions of the ICTY Appeals Chamber.[11] Bearing this context in mind, the Appeals Chamber is guided by the principle that, in the interests of legal certainty and predictability, it should follow previous decisions of the ICTY and the ICTR Appeals Chambers and depart from them only where cogent reasons in the interests of justice exist, that is, where a previous decision has been decided on the basis of a wrong legal principle or has been “wrongly decided, usually because the judge or judges were ill‑informed about the applicable law”.[12] Therefore, in order to succeed on appeal, Karadžić must demonstrate that there are cogent reasons in the interests of justice that justify departure from jurisprudence on judicial notice of adjudicated facts.

120. The Appeals Chambers of the ICTY and the ICTR have consistently held that judicial notice of adjudicated facts is merely a presumption that may be rebutted by defence evidence at trial.[13] Judicial notice of adjudicated facts “does not shift the ultimate burden of persuasion, which remains with the Prosecution” but only relieves the Prosecution of the initial burden to produce evidence on the given point.[14]

121. The Appeals Chamber notes that the concern that accused in other cases may have focused their defence on arguing that they were not responsible for the perpetrators of crimes rather than on contesting the existence of crimes is one of the reasons why judicial notice may not be taken of adjudicated facts from other cases relating to the acts, conduct, and mental state of the accused.[15] It is, nevertheless, permissible to take judicial notice of adjudicated facts relating directly or indirectly to an accused’s guilt,[16] for example, of facts relating to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and the conduct of physical perpetrators of crimes for which an accused is alleged to be criminally responsible.[17] This is as long as the burden remains on the Prosecution to establish the actus reus and the mens rea supporting the responsibility of the accused for the crimes in question by evidence other than judicial notice.[18] In addition, the discretion to accept adjudicated facts is limited by the need to ensure the accused’s right to a fair and expeditious trial.[19] Apart from disagreeing with the case law, Karadžić fails to demonstrate that there are cogent reasons in the interests of justice to depart from consistent jurisprudence of the ICTR and the ICTY on this matter.

122. The Appeals Chamber does not consider that by taking judicial notice of the existence of a crime committed by Karadžić’s alleged subordinates,[20] for example, the Trial Chamber relieved the Prosecution from proving the actus reus of the crimes charged in the Indictment. The Appeals Chamber recalls that there is a distinction between facts related to the conduct of physical perpetrators of a crime for which an accused is being alleged criminally responsible through another mode of liability and those related to the acts and conduct of the accused himself.[21] The burden remained on the Prosecution to establish by evidence other than judicial notice that Karadžić possessed the relevant mens rea and engaged in the required actus reus to be held responsible for the crimes established by way of judicial notice of adjudicated facts.  

123. Finally, the Appeals Chamber finds without merit Karadžić’s submission that judicial notice of adjudicated facts deprives an accused of the possibility that a trial chamber would reach a different conclusion had it heard the evidence itself. The Appeals Chamber recalls that adjudicated facts are not accepted as conclusive in proceedings involving parties who did not have the chance to contest them,[22] and, as noted above, are merely presumptions that may be rebutted with evidence at trial.[23]

[…]

219. The Appeals Chamber recalls that taking judicial notice of adjudicated facts or documentary evidence under Rule 94(B) of the ICTY Rules is a method of achieving judicial economy while ensuring the right of the accused to a fair, public, and expeditious trial.[24] Rule 94(B) of the ICTY Rules requires a trial chamber to hear the parties before deciding to take judicial notice.[25] Moreover, facts admitted under Rule 94(B) of the ICTY Rules are merely presumptions that may be rebutted by the defence with evidence at trial.[26] Consequently, judicial notice of adjudicated facts does not shift the ultimate burden of proof or persuasion, which remains squarely on the Prosecution.[27]

220. […] The fact that the Trial Chamber took judicial notice of considerably more adjudicated facts than in other cases does not, in itself, render the trial unfair as long as the Trial Chamber followed the procedure provided for in the ICTY Rules. In this respect, Karadžić’s comparison of the number of judicially noticed adjudicated facts in his case with other cases fails to account for factors such as the unprecedented scope and size of his own trial in relation to others.

See also paras. 221, 222.

452. […] [A]djudicated facts, within the meaning of Rule 94(B) of the ICTY Rules, are presumptions and are not equivalent to untested evidence requiring sufficient corroboration to be relied upon in support of conviction.[1] Specifically, the Appeals Chamber recalls the jurisprudence of the ICTY Appeals Chamber that “by taking judicial notice of an adjudicated fact, a [trial] [c]hamber establishes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial, but which, subject to that presumption, may be challenged at that trial.”[2] Requiring corroboration of adjudicated facts after their admission would undermine the judicial economy function served by taking judicial notice of adjudicated facts,[3] as judicial notice under Rule 94(B) of the ICTY Rules relieves the Prosecution of the initial burden of producing evidence on such facts.[4] Moreover, adjudicated facts may relate to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and facts related to the conduct of physical perpetrators of crimes for which an accused is alleged to be responsible.[5] In this context, trial chambers, after having reviewed the record as a whole, may rely on adjudicated facts to establish the underlying crime base when making findings in support of convictions.[6]

143. The Appeals Chamber turns […] to Karadžić’s contentions concerning the decisions denying […] his request to subpoena the Eight Witnesses. These decisions relate to the general conduct of the trial, which are matters that fall within the discretion of the trial chamber.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed discernible error resulting in prejudice to that party.[2]

See also paras. 230, 276, 330.

[…]

148. […] [T]he Appeals Chamber observes that Rule 54 of the ICTY Rules provides, inter alia, that a trial chamber may issue subpoenas “as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial”. In interpreting this provision, the Appeals Chamber of the ICTY has stated:

The applicant seeking a subpoena must make a certain evidentiary showing of the need for the subpoena. In particular, he must demonstrate a reasonable basis for his belief that the prospective witness is likely to give information that will materially assist the applicant with respect to clearly identified issues in the forthcoming trial. To satisfy this requirement, the applicant may need to present information about such factors as the position held by the prospective witness in relation to the events in question, any relationship the witness may have had with the accused which is relevant to the charges, any opportunity the witness may have had to observe or to learn about those events, and any statements the witness made to the Prosecution or others in relation to them. The Trial Chamber is vested with discretion in determining whether the applicant succeeded in making the required showing, this discretion being necessary to ensure that the compulsive mechanism of the subpoena is not abused. As the Appeals Chamber [of the ICTY] has emphasized, “[s]ubpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.”

In deciding whether the applicant has met the evidentiary threshold, the Trial Chamber may properly consider both whether the information the applicant seeks to elicit through the use of subpoena is necessary for the preparation of his case and whether this information is obtainable through other means. The background principle informing both considerations is whether, as Rule 54 requires, the issuance of a subpoena is necessary “for the preparation or conduct of the trial.” The Trial Chamber’s considerations, then, must focus not only on the usefulness of the information to the applicant but on its overall necessity in ensuring that the trial is informed and fair.[3]

The Appeals Chamber adopts this interpretation.[4]

See also para. 277.