122. […] The Appeals Chamber has previously held that “objections based on lack of notice should be specific and timely”.[1] Furthermore, when an objection based on lack of notice is raised at trial, a trial chamber may consider whether it was so untimely as to shift the burden of proof to the Defence to demonstrate that the accused’s ability to defend himself has been materially impaired.[2] In the absence of any explanation for Mugenzi’s and Mugiraneza’s failure to make a contemporaneous objection, the Appeals Chamber is satisfied that it was reasonable for the Trial Chamber to consider the delay in bringing challenges to the Indictment and conclude that such challenges were untimely. Therefore, Mugenzi and Mugiraneza bear the burden of demonstrating that their ability to prepare a defence was materially impaired.

63.       Based on the foregoing, the Appeals Chamber finds that the Prosecution violated its disclosure obligations under Rule 68 of the Rules to disclose exculpatory material from the Hategekimana, Ntagerura et al., and Ngirabatware cases as soon as practicable. However, having considered the exculpatory evidence against the evidence on the record, the Appeals Chamber is not persuaded that the disclosure violations materially impacted the cases of Mugenzi and Mugiraneza. In these circumstances, where any possible prejudice from the violation was minimal, no relief is warranted. However, both the Trial Chamber and the Appeals Chamber have found that the Prosecution violated its Rule 68 obligations in this case on previous occasions.[1] The Trial Chamber decided that the accused had been materially prejudiced by the Prosecution’s violation of its Rule 68 obligations to disclose exculpatory material as soon as practicable and accordingly decided to draw a reasonable inference in favour of the accused from the exculpatory material as a remedy.[2] The Appeals Chamber further recalls that the Trial Chamber qualified as “inexcusable” the Prosecution’s conduct vis-à-vis its Rule 68 disclosure obligations.[3] In light of those observations, it is clear that the Prosecution’s repeated violations of its obligations under Rule 68 of the Rules in this case negatively impacted the conduct of the proceedings and prejudiced the interests of justice. The Appeals Chamber therefore firmly reminds the Prosecution of the fundamental importance of its positive and continuous obligation to disclose exculpatory material under Rule 68 of the Rules.

49.       The Appeals Chamber notes that, as a general rule, a notice of appeal is not the proper vehicle for advancing in the first instance alleged disclosure violations identified only during the appeal proceeding. A notice of appeal is normally limited to challenges against a particular order, ruling, or decision taken by a trial chamber.[1] The Appeals Chamber recalls, however, that the Prosecution’s disclosure of material under Rule 68 of the Rules is a continuing obligation.[2] If a party identifies a potential disclosure violation after the conclusion of the trial and while appellate proceedings are ongoing, it may seek relief by bringing a motion before the Appeals Chamber.[3] Given the importance of the Prosecution’s disclosure obligation under Rule 68 of the Rules, the Appeals Chamber will nonetheless consider the arguments raised by Mugiraneza under his Fourth Ground of Appeal.

20. […] The Appeals Chamber is similarly unconvinced by Karadžić’s contention that the Trial Chamber’s decision to limit the length of his defence, on the basis that evidence he proposed to adduce was irrelevant, demonstrated a “double standard” applied to his detriment, given the large scope of the Prosecution’s case.[1] The Appeals Chamber recalls that the Trial Chamber granted Karadžić the same courtroom time as it granted the Prosecution,[2] and further notes the discretion accorded to the Trial Chamber to “assess the relevance of proposed testimony prior to its presentation”.[3] In these circumstances, the Appeals Chamber considers that Karadžić has not demonstrated any erroneous “double standard” by the Trial Chamber.[4] 

21. The Appeals Chamber notes that the Impugned Decision does not explicitly address Karadžić’s contention that his particular defence strategy involves disputing “everything except the weather”, and thus requires extensive courtroom time. However the Appeals Chamber is not satisfied that this omission constituted an error on the part of the Trial Chamber. The Appeals Chamber recalls that a Trial Chamber’s decision not to explicitly refer to a specific fact or contention does not necessarily demonstrate a failure to consider that issue. In addition, the Appeals Chamber notes that the Trial Chamber considered, inter alia, the duration and extent of Karadžić’s cross-examination of Prosecution witnesses, a consideration that suggests the Trial Chamber took into account Karadžić’s defence strategy when determining the amount of time allocated for the presentation of the defence case. In these circumstances, the Appeals Chamber, Judge Robinson dissenting, is not satisfied that Karadžić has demonstrated any error on the part of the Trial Chamber. 

22. The Appeals Chamber, Judge Robinson dissenting, finds no error in the Trial Chamber’s analysis of the parties’ direct and cross-examination of Prosecution witnesses. Karadžić contends that the Prosecution’s use of written testimony meant that the comparatively short duration of direct examination “bore absolutely no relation” to the breadth of testimony, or, accordingly, to the time he needed to cross‑examine Prosecution witnesses. He also submits that the limitations imposed by the Trial Chamber on the length of his cross-examinations further undermine the relevance of this consideration. However, the Appeals Chamber notes that the Trial Chamber did not merely compare the duration of direct and cross-examination during the Prosecution case, but also considered the nature and substance of Karadžić’s cross-examination, specifically observing that Karadžić elicited evidence relevant to his defence pursuant to Rule 90(H) of the Rules. The Appeals Chamber considers, Judge Robinson dissenting, that it is within a trial chamber’s discretion to determine that, in certain circumstances, the elicitation of such evidence is relevant to the time allocated to the defence for the presentation of its case. Recalling that a trial chamber’s decision on the allocation of time for the defence case is “the result of a highly contextual analysis”, the deference accorded to such decisions, and the trial chamber’s obligation to ensure that trials do not suffer undue delays, the Appeals Chamber, Judge Robinson dissenting, finds that the Trial Chamber did not err, in the circumstances of this case, by considering the duration and content of Karadžić’s cross-examination in allocating 300 hours for his defence.

18. The Appeals Chamber first turns to Karadžić’s contentions regarding the Adjudicated Facts. Contrary to Karadžić’s suggestion, the Judicial Notice Decisions did not suggest that he would be allocated additional time to rebut the Adjudicated Facts.[1] In addition, the Appeals Chamber, Judge Robinson dissenting, considers Karadžić is unconvincing in asserting that the Impugned Decision did not sufficiently assess the time he would need to rebut the Adjudicated Facts.[2] The Appeals Chamber notes that the Trial Chamber explicitly considered the “high number of adjudicated facts”[3] as one element underlying its decision granting Karadžić the same courtroom time as the Prosecution. The Trial Chamber also explicitly assessed the potential impact of the Adjudicated Facts on Karadžić’s case, concluding that not every Adjudicated Fact would need to be rebutted during Karadžić’s defence, as Karadžić had an opportunity to cross‑examine and elicit relevant evidence from Prosecution witnesses during the presentation of the Prosecution case.[4] While this analysis did not specify the amount of time being granted to rebut the Adjudicated Facts, the Appeals Chamber recalls that a trial chamber is “not obligated to justify its decision [on the allocation of time] with reference to each piece of evidence proposed”.[5] Accordingly, the Appeals Chamber, Judge Robinson dissenting, is not satisfied that Karadžić has demonstrated that the Impugned Decision’s analysis of the Adjudicated Facts was deficient.

19. The Appeals Chamber notes that Karadžić challenges the Impugned Decision by discussing the Trial Chamber’s analyses of certain Adjudicated Facts which he contends are demonstrative of the Trial Chamber’s general failure to consider the full import of the Adjudicated Facts.[6] However, the Appeals Chamber observes that the Trial Chamber was intimately aware of the scope of the Adjudicated Facts, as demonstrated by its multiple detailed decisions considering adjudicated facts proposed by the Prosecution.[7] In addition, the Appeals Chamber notes that the Impugned Decision explicitly considered that Karadžić had the opportunity to cross-examine Prosecution witnesses on many of the topics covered by the Adjudicated Facts, further demonstrating the Trial Chamber’s familiarity with this evidence.[8] In these circumstances, recalling that trial chambers enjoy broad discretion in evaluating evidence,[9] the Appeals Chamber, Judge Robinson dissenting, finds that Karadžić has not demonstrated that the Trial Chamber erred in its assessment of the import or scope of the Adjudicated Facts in its consideration of the time allocated for the defence case.

21. The Appeals Chamber has held that an appellant’s ability to participate in the appellate proceedings is contingent upon whether he possesses the mental capacity to understand their essentials, and the mental and/or physical capacity to communicate, and thus consult, with his counsel.[1] It has further clarified that the following standard of fitness (“Standard of Fitness”) applicable to trial proceedings also applies mutatis mutandis with regard to an appellant's fitness to exercise his right to consult with counsel concerning the preparation of his appellate submissions:

[…] meaningful participation which allows the accused to exercise his fair trial rights to such a degree that he is able to participate effectively in his trial, and has an understanding of the essentials of the proceedings. [… A]n accused’s fitness to stand trial should turn on whether his capacities, “viewed overall and in a reasonable and commonsense manner, [are] at such a level that it is possible for [him or her] to participate in the proceedings (in some cases with assistance) and sufficiently exercise the identified rights”.[2]

[…]

22. […] [T]he Standard of Fitness focuses on an appellant’s ability to understand the essentials of the appellate proceedings. Processing the wealth of complex information inherent in international criminal proceedings is the role of defence counsel, in order to advise their clients. Indeed, the Standard of Fitness indicates that a defendant may sometimes require assistance to participate in the proceedings.[3]

16. As a preliminary matter, the Appeals Chamber recalls that under Common Article 3, detention of a combatant during an armed conflict automatically renders him or her hors de combat, and that taking any individual hostage is among the acts which “are and shall remain prohibited at any time and in any place whatsoever”.[1] The plain text of Common Article 3 thus indicates that the prohibition on hostage-taking is both absolute and without exception. The Appeals Chamber further recalls that “any conduct of hostage-taking involving [Prisoners of War]] could not but be in violation of the Third Geneva Convention” and that “[t]]he main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of [C]]ommon Article 3, which expresses the shared principles which govern the Conventions”.[2]

22. Finally, turning to Karadžić’s contentions with respect to mens rea,[1] the Appeals Chamber recalls that “the principle of individual guilt requires that the perpetrator of a Common Article 3 crime knew or should have been aware that the victim was taking no active part in the hostilities when the crime was committed.”[2] Insofar as Karadžić contends that the Impugned Decision should be reversed because it did not respect this principle, the Appeals Chamber is not persuaded by his contentions. Even if Karadžić had believed that the UN Personnel were taking active part in the hostilities prior to their detention and thus were not entitled to protection under Common Article 3, his erroneous belief about the legal significance of the UN Personnel’s status would not shield him from criminal liability for using them as hostages after their detention. As explained above, Common Article 3 would apply to the detained UN Personnel irrespective of their status prior to detention,[3] and any misunderstanding by Karadžić with respect to this issue is not a valid defence.[4]

262. Milan Lukić submitted the Logbook Entry to the Trial Chamber without a translation into one of the working languages of the Tribunal.[1] The Logbook Entry, which related to 14 June 1992, was also admitted without a translation as part of Prosecution Exhibit P68, which comprised the whole logbook.[2] The Appeals Chamber emphasises that it is incumbent on the party seeking to admit an exhibit to provide a translation where necessary.[3] Milan Lukić failed to provide such a translation. However, the Appeals Chamber notes that the Trial Chamber admitted the Logbook Entry into evidence, as Exhibit 1D39, without noting or commenting on the lack of translation.[4] From this point, the document was part of the trial record, and was therefore before the Trial Chamber. Moreover, the Trial Chamber had the duty to consider all the evidence before it.[5]

263. In the Trial Judgement, the Trial Chamber stated that it had admitted the Logbook Entry “inadvertently” and was unable to attach any weight to it without a translation into one of the working languages of the Tribunal.[6] However, in its summary of the evidence in the Trial Judgement, the Trial Chamber demonstrated that, even without a translation, it was aware that the Logbook Entry showed that Vasiljević was registered at the Višegrad Health Centre on 14 June 1992.[7] Moreover, the Trial Chamber found that it was able to attach probative weight to Prosecution Exhibit P68, which had also been admitted into evidence without an official translation, but the substance of which had been commented on by a Prosecution witness.[8]

264. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to consider the substance of the Logbook Entry. However, the Appeals Chamber finds that this error has no impact.

466. Article 23(2) of the Statute and Rule 98 ter(C) of the Rules provide that a judgement shall be rendered by a “majority of the judges”. Rule 87(A) of the Rules specifies that a majority of judges must be satisfied that guilt has been proved beyond reasonable doubt. In the present case, there was no such majority as only Judge David was satisfied that Sredoje Lukić fulfilled the actus reus and mens rea of aiding and abetting extermination in the Pionirska Street Incident.[1] As set out above, for different reasons neither Judge Van den Wyngaert nor Judge Robinson was satisfied that Sredoje Lukić should be convicted of this offence. Thus, to conclude that the Trial Chamber’s majority findings on Sredoje Lukić’s participation in the murders and on their characterisation as extermination support a finding of guilt would lead to Sredoje Lukić’s conviction, despite the fact that only one Judge was satisfied that all the necessary elements were fulfilled. Such a conclusion is incompatible with the principle that a finding of guilt may be reached only when a majority of the trial chamber is satisfied that guilt has been proved beyond reasonable doubt, as enshrined in Rule 87(A) of the Rules. Thus, the Prosecution has not shown that the Trial Chamber erred in failing to convict Sredoje Lukić for aiding and abetting extermination as a crime against humanity on Pionirska Street. The Prosecution’s first ground of appeal is therefore dismissed.