23. The Appeals Chamber recalls that a Chamber may reconsider a decision when there has been a change in the material circumstances before it.[1] This is equally true when the decision is issued pursuant to Rule 7bis of the Rules. A Trial Chamber is not precluded from reconsidering its decision to request the President to report the non-cooperation of a State to the Security Council when a change in circumstances occurs, particularly where, as in this case, that change of circumstance was cooperation by the State concerned.

24 As to Nzabonimana’s related submission that the 16 March 2010 Documents do not constitute a “material change” in circumstances as they do not change the fact that France “has failed” to cooperate as of 4 March 2010 and subsequent cooperation does not remedy past non-cooperation,[2] the Appeals Chamber considers that while the subsequent cooperation of France does not rectify its earlier failures, the purpose of Rule 7bis of the Rules is to report non-compliance of a State with its obligation, under Article 28 of the Statute, to cooperate with the Tribunal. Accordingly, the Appeals Chamber is satisfied that subsequent cooperation by France amounted to a new material circumstance for the exercise of the Trial Chamber’s power of reconsideration.

36. A Trial Chamber possesses broad powers with which to assure the fairness of a trial. Under Rule 54 of the Rules, a Trial Chamber has the power to issue such orders, subpoenas, warrants, and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial, which includes the power to: adopt witness protection measures; take evidence by video-conference link or by way of deposition; and summon witnesses and order their attendance. In addition, if such measures fail, upon the request of a party or proprio motu, a Trial Chamber can order that proceedings be adjourned or stayed.[1]

93. […] [T]he Appeals Chamber recalls the Čelebići Trial Judgement, which held that:

The basis of the inclusion of cruel treatment within Article 3 of the Statute is its prohibition by common article 3(1) of the Geneva Conventions, which proscribes, “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture”. In addition to its prohibition in common article 3, cruel treatment or cruelty is proscribed by article 87 of the Third Geneva Convention, which deals with penalties for prisoners of war, and article 4 of Additional Protocol II, which provides that the following behaviour is prohibited:

violence to life, health and physical and or mental well being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.

As with the offence of inhuman treatment, no international instrument defines this offence, although it is specifically prohibited by article 5 of the Universal Declaration of Human Rights, article 7 of the ICCPR, article 5, paragraph 2, of the Inter-American Convention of Human Rights and article 5 of the African Charter of Human and Peoples’ Rights. In each of these instruments, it is mentioned in the same category of offence as inhuman treatment.[1]

94. As is the case with the international law instruments mentioned above, the jurisprudence of the Tribunal does not provide a comprehensive definition of the offence of cruel treatment, but the Appeals Chamber has defined the elements of cruel treatment as a violation of the laws or customs of war as follows:

a. an intentional act or omission […] which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity,

b. committed against a person taking no active part in the hostilities.[2]

17. The Appeals Chamber recalls that, when a party alleges on appeal that its right to a fair trial has been infringed, the party must prove that the Trial Chamber violated a provision of the Statute and/or the Rules of Procedure and Evidence of the Tribunal (“Rules”) and that this violation caused prejudice that amounts to an error of law invalidating the Trial Judgement.[1] The Appeals Chamber notes that Trial Chamber decisions related to trial management, such as those determining the time available to a party to present its case as well as requests for additional time to present evidence, are discretionary decisions to which the Appeals Chamber accords deference.[2] Accordingly, the Appeals Chamber must determine whether the Trial Chamber abused its discretion by closing the Prosecution case before Kabashi and the other witness had testified, in violation of its obligation under Article 20(1) of the Statute to ensure that a trial is fair and conducted with due regard for the protection of victims and witnesses. If the Trial Chamber did abuse its discretion, the Appeals Chamber must determine whether this violation caused prejudice that amounted to an error of law invalidating the Trial Judgement.

152. The Appeals Chamber recalls that, in the case of complex issues, such as the assessment of identification evidence, the reasoned opinion requirement to be met by a Trial Chamber is higher.[1] The Appeals Chamber has held that, “where a finding of guilt is made on the basis of identification evidence given by a witness under difficult circumstances, the Trial Chamber must rigorously implement its duty to provide a ‘reasoned opinion’.”[2] In these instances, the Trial Chamber is required to “carefully articulate the factors relied upon in support of the identification of the accused and adequately address any significant factors impacting negatively on the reliability of the identification evidence.”[3] The Appeals Chamber observes that, in such cases:

[w]here the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.[4]

155. The Appeals Chamber recalls that Trial Chambers must consider the difficulties associated with identification evidence in a particular case and carefully evaluate it before accepting it as the sole basis for sustaining a conviction. In particular, Trial Chambers must exercise extreme caution before convicting a person based on the identification evidence of a single witness made under difficult circumstances in light of the frailties of human perception and the risk that a miscarriage of justice might result from reliance upon even the most confident witnesses who purport to identify an accused without an adequate opportunity to verify their observations.[5]

156. Factors relevant to the Appeals Chamber’s determination of whether a Trial Chamber’s decision to rely upon identification evidence was unreasonable or renders a conviction unsafe include:

[…] identifications of defendants by witnesses who had only a fleeting glance or an obstructed view of the defendant; identifications occurring in the dark and as a result of a traumatic event experienced by the witness; inconsistent or inaccurate testimony about the defendant’s physical characteristics at the time of the event; misidentification or denial of the ability to identify followed by later identification of the defendant by a witness; the existence of irreconcilable witness testimonies; and a witness’ delayed assertion of memory regarding the defendant coupled with the “clear possibility” from the circumstances that the witness had been influenced by suggestions from others.[6]

Furthermore, the Appeals Chamber recalls that identification evidence may be affected by the length of time between the crime and the confrontation.[7]

129. The Appeals Chamber also recalls that the Trial Chamber exercises considerable discretion in addressing minor inconsistencies in the testimony of a witness. However, this discretion must be reconciled with the right of each accused to a reasoned opinion. In this regard, the Appeals Chamber has stated:

It is to be presumed that the Trial Chamber evaluated all of the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. There may be an indication of disregard when evidence which is clearly relevant to the finding is not addressed by the Trial Chamber’s reasoning, but not every inconsistency which the Trial Chamber failed to discuss renders its opinion defective. Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail. If the Trial Chamber did not refer to the evidence given by a witness, even if it is in contradiction to the Trial Chamber’s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings.[1]

Thus, although a Trial Chamber is not required to provide every detail of its assessment of minor inconsistencies in the testimony of witnesses, neither can it completely disregard all inconsistencies. [ see also para. 252 of the Appeals Judgement]

10. At the outset, the Appeals Chamber observes that Karadžić’s Appeal is premised on an alleged error of law, specifically that the Trial Chamber erred in equating his situation with that of an accused represented by counsel. It is evident the Trial Chamber considered that Karadžić should exercise his right to self-representation within the frame-work of measures introduced to ensure the reasonable progress of the trial.[1] In this context, the Trial Chamber observed:

Sitting four or five days a week should not place an unreasonable burden on the Accused; indeed, many defence counsel have represented their clients before this Tribunal on a five-day sitting schedule. However, should the Accused find that the task of representing himself becomes too arduous, he may consider the various options available for varying his representation arrangements.[2]

11. The Appeals Chamber recalls that “in general a self-represented accused is expected to undertake all the tasks normally assumed by counsel”.[3] The daily rigour of preparation for trial is a fundamental part of these tasks. Moreover, the Appeals Chamber underscores that while “a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair” to self-represented accused, an accused “who decides to represent himself relinquishes many of the benefits associated with representation by counsel.”[4]

12. The Appeals Chamber discerns no error in the Trial Chamber’s approach. The Impugned Order considers a broad range of factors, including Karadžić’s trial-readiness, his advance notice of the witnesses to be called, his apparent good health and the considerable resources at his disposal, which it found comparable to those available to an accused represented by counsel.[5] Furthermore, the Trial Chamber underscored its continuing commitment to its statutory duty to ensure a fair and expeditious trial.[6] In these circumstances, Karadžić has failed to demonstrate that the Trial Chamber erred in its application of the governing law. Indeed, the reasoning in the Impugned Order amply demonstrates the Trial Chamber’s commitment to ensure the fairness of the proceedings.[7]

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 3 and 4, the Appeals Chamber stated:

CONSIDERING FURTHER that, although the Panić New Fact was discoverable through due diligence by Šljivančanin’s counsel, review of the Mrkšić and Šljivančanin Appeal Judgement is necessary because the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice;

On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At page 4, the Appeals Chamber stated:

CONSIDERING that, pursuant to Rule 120 of the Rules, a hearing to consider evidence on the Panić New Fact (“Review Hearing”) will be held;

CONSIDERING that the Review Hearing will allow the parties to provide supporting and rebuttal evidence concerning the Panić New Fact and that, before setting the date and structure of the Review Hearing, it is appropriate to consider the scope of evidence, if any, the parties wish to present;[3]

[…]

ORDERS the parties to submit in writing, no later than 30 July 2010, a list of evidence and witnesses, if any, each proposes to introduce at the Review Hearing;

FURTHER ORDERS the parties to include with respect to each piece of evidence or witness: (i) a brief description of anticipated relevance; and (ii) the proposed time allocation for any witness;

EMPHASISES to the parties that all evidence they propose to submit must be limited to supporting or casting doubt on the Panić New Fact;

47. An order of a Trial Chamber may be stayed if the objective of an appeal against the order would be significantly impaired should the order be already given effect.[1] In determining whether to stay the enforcement of an order pending an appeal, a Chamber must balance the potential of harm to the accused by enforcement of the order with the potential of harm to a legally protected interest by suspension of the order.[2] […].