58. The Appeals Chamber considers it firmly established that, to satisfy the mens rea requirement for aiding and abetting, “[i]t must be shown that the aider and abettor knew that his own acts assisted the commission of that specific crime by the principal” (for example, murder, extermination, rape, torture)[1] and that the aider and abettor was “aware of the essential elements of the crime which was ultimately committed by the principal”.[2] Where the mens rea of the principal perpetrator is an element of the principal crime, the aider and abettor need not share the intent of the principal perpetrator,[3] but he or she must be aware of the intent of the principal perpetrator.[4] Mens rea can be established if the aider and abettor is not certain which of a number of crimes will ultimately be committed.[5] In this regard, where an accused “is aware that one of a number of crimes will probably be committed, and one of those crimes is in fact committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.”[6] Accordingly, the Trial Chamber correctly set out the legal standard for the mens rea of aiding and abetting.[7]

Judge Patrick Robinson appended a Partially Dissenting Opinion to the Appeals Judgement on the issue of the Trial Chamber’s discretion and the assessment of a fair and expeditious trial.

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 2 and 3, the Appeals Chamber stated:

CONSIDERING that, pursuant to Article 26 of the Statute of the Tribunal (“Statute”) and Rules 119 and 120 of the Rules, for a party to succeed in persuading the Appeals Chamber to review a judgement, the party must first satisfy the following cumulative requirements:

a)     there is a new fact;

b)     the new fact was not known to the moving party at the time of the original proceedings;

c)     the failure to discover the new fact was not due to a lack of due diligence on the part of the  moving party; and

d)     the new fact could have been a decisive factor in reaching the original decision;[3]

[…]

CONSIDERING that what is relevant in evaluating an application for review is not “whether [a] new fact already existed before […] original proceedings or during such proceedings” but, rather, “whether the deciding body and the moving party knew about the fact or not” in arriving at its decision;[4]

CONSIDERING that, in “wholly exceptional circumstances”, review may still be permitted even though the “new fact” was known to the moving party or was discoverable by it through the exercise of due diligence if a Chamber is presented with “a new fact that is of such strength that it would affect the verdict”[5] and determines that “review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice”;[6]

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 2 and 3, the Appeals Chamber stated:

CONSIDERING that a “new fact” within the meaning of Article 26 of the Statute and Rules 119 and 120 of the Rules consists of “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”;[3]

[…]

CONSIDERING that the new information provided by Panić concerning the Conversation constitutes a “new fact” (“Panić New Fact”), that, if proved, could fundamentally alter the balance of evidence relating to this case, eliminating the basis for the Mrkšić and Šljivančanin Appeal Judgement’s conclusion that Šljivančanin possessed the mens rea for aiding and abetting murder as a violation of the laws or customs of war;[4]

41. The Appeals Chamber considers that counsel representing an accused acts on behalf of the accused. Unless it is shown that Praljak’s counsel acted beyond their mandate or in contravention of Praljak’s instructions, submissions made by his counsel are attributable to Praljak.[1] . […].

15. The Appeals Chamber has held that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee”.[1] However, this does not necessarily mean that an accused is “entitled to precisely the same amount of time or the same number of witnesses as the Prosecution”, since the latter bears the burden of proving every element of the crimes charged beyond reasonable doubt.[2] As a result, “a principle of basic proportionality” governs the time and the number of witnesses allocated between the Prosecution and an accused.[3] The Appeals Chamber also recalls that:

[i]n a case with multiple accused, the issue of proportionality is affected not only by the burden of proof upon the Prosecution, but also by the circumstance that not all of the evidence presented by the Prosecution is directed to prove the responsibility of one individual Accused.[4]

16. Therefore, as the Trial Chamber correctly concluded,[5] the fact that the Trial Chamber admitted into evidence 101 statements and transcripts tendered by the Prosecution pursuant to Rule 92 bis of the Rules does not in and of itself authorise Praljak to have the same or similar number of statements or transcripts admitted under the same Rule. Also, the Trial Chamber did not set a limit on the number and length of Rule 92 bis statements and transcripts that the Prosecution could tender. However, it does not follow that the Trial Chamber is prevented from imposing a limit on the amount of Rule 92 bis evidence that an accused can tender. Nor does the fact that the Prosecution resorted to Rule 92 bis of the Rules as a result of the reduction of its court time by the Trial Chamber, in and of itself, provide Praljak with any justification for tendering the same amount of Rule 92 bis evidence on the ground that he was allocated less court time than requested.

31. The Appeals Chamber recalls that “every court possesses the inherent power to control the proceedings during the course of the trial”.[1] Rule 73 ter of the Rules confers upon Trial Chambers the authority to determine the time allocated to the presentation of the defence case[2] and the number of witnesses the defence may call.[3] The Appeals Chamber does not see any reason why the application of this Rule should be limited to a Trial Chamber’s authority to determine the number of viva voce witnesses. The application of Rule 73 ter of the Rules extends to all categories of witnesses. However, a Trial Chamber’s authority to limit the number of witnesses allocated to the defence is “always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute […] be respected”.[4] Hence, a Trial Chamber is required to ensure that the number of witnesses it sets for the presentation of the defence case is sufficient to allow the accused a fair opportunity to present his case.[5] The Appeals Chamber also recalls that it has previously held in this case that the Trial Chamber’s duty to ensure the fairness and expeditiousness of proceedings will often entail a delicate balancing of interests, particularly in a trial of this scope and complexity.[6] Therefore, in the instant case, the Trial Chamber was required to consider, in light of the complexity and number of issues to be litigated, whether an appropriate balance was struck in reducing the number of Rule 92 bis witnesses that Praljak was allowed to present.

32. The Appeals Chamber observes that the same consideration applies to a Trial Chamber’s power to control the volume and length of Rule 92 bis material that a party can tender. A Trial Chamber is not inherently prohibited from exerting such control while exercising its discretion over the administration of trials. This is in line with Rule 90(F) of the Rules which confers upon Trial Chambers the authority to control the mode of presenting evidence.[7] However, as stated by the Appeals Chamber, a Trial Chamber’s discretion in this regard is subject to its “obligation to respect the rights of an accused”[8] and “must […] be exercised with caution, as it is, in principle, for both parties to structure their cases themselves”[9]

[…]

36. Furthermore, the fact that Praljak was not granted the entire requested time [for the presentation of his defence case] does not in and of itself allow him to tender as many Rule 92 bis written statements or transcripts as he wishes. […].

37. […] Moreover, when written statements or transcripts containing an accused’s acts and conduct as charged in an indictment are tendered pursuant to Rule 92 bis of the Rules, Trial Chambers are not obliged to admit them pursuant to Rule 92 ter of the Rules requiring cross-examination.[10] Taking this course of action is within a Trial Chamber’s discretion as long as the rights of the accused are protected.[11][…].

24. […] It is well established in the jurisprudence of the Tribunal that Trial Chambers are bound by the ratio decidendi of the Appeals Chamber.[1] Whereas a Trial Chamber may follow a decision of another Trial Chamber, should it find it persuasive, Trial Chambers’ decisions have no binding force upon each other.[2] Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s decision not to follow precedents of earlier Trial Chambers as suggested by Čermak.[3] […]

25. As to the standard applied by the Trial Chamber with respect to what constitutes fresh evidence, Čermak and Markač seem to argue that because the Prosecution had evidence in its possession showing that Bilobrk was a forensic technician involved in the work of the sanitation teams at Knin, his testimony could not constitute fresh evidence for the purposes of reopening the Prosecution’s case-in-chief.[1] The Appeals Chamber does not agree with this interpretation. The evidence that the Prosecution seeks to introduce is Bilobrk’s specific testimony concerning Čermak’s or someone else’s alleged suggestion to plant weapons by the bodies of the victims in Grubori. In this respect, the fact that the Prosecution was unaware of this part of Bilobrk’s testimony until the results of the investigation conducted by the Croatian authorities became known, is uncontested by the parties.[2] Accordingly, the Trial Chamber correctly focused its assessment on whether the specific testimony of Bilobrk may constitute fresh evidence for the purposes of reopening the Prosecution’s case-in-chief. […]

5. This is the first time in the history of both this Tribunal and the International Criminal Tribunal for Rwanda (“ICTR”) where an appellant has died before the rendering of the appeal judgement. The orders previously issued to terminate the proceedings following the death of an accused have so far only been rendered prior to the delivery of the trial judgement.[1] That said, the Appeals Chamber notes that while neither the Statute nor the Tribunal’s Rules of Procedure and Evidence (“Rules”) explicitly provide for the course of action to be taken following the death of an appellant, a number of their provisions clearly exclude the possibility of the continuation of the appellate proceedings in such circumstances.

8. […] the Appeals Chamber finds that, as a matter of principle, the appellate proceedings before this Tribunal should be terminated following the death of the appellant for lack of jurisdiction. […]

For an overview of considerations raised in other international criminal jurisdictions where proceedings have been terminated following the death of an accused prior to the rendering of the trial judgement, see para. 7.

6. First, the personal jurisdiction of the Tribunal is limited to “natural persons”,[1] which, read in the context and in light of the Statute’s object and purpose, should be understood in its ordinary meaning, i.e., the living. Second, Article 25 of the Statute clearly states that “[t]he Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor”, thus leaving no room for other persons interested in the outcome of the appeal.[2] Third, neither the Statute nor the Rules allow for Tribunal’s jurisdiction in relation to any procedures initiated by the convicted person’s heirs or victims. The Appeals Chamber is of the view that this clearly demonstrates that the Tribunal’s jurisdiction ratione personae is limited to living accused or convicted persons.[3]

In Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on Motion for Continuation of the Appellate Proceedings, 29 June 2010, the Appeals Chamber denied the motion seeking the continuation of the proceedings on behalf of Rasim Delić’s son and considered that

[…] the plain reading of the Motion indicates that the entirety of the submissions therein are made on behalf of Delić’s son,[4] who is not and cannot qualify as a party to any existing proceedings before the Tribunal;

[…] Delić’s son has no standing to submit a motion before the Tribunal and cannot be represented by Counsel assigned to Delić;

[…] consequently, […] the Motion is not validly filed before the Appeals Chamber and […] the Appeals Chamber has no jurisdiction to consider its merits;