27. […] The Appeals Chamber notes that document 6DA19 contains sufficient indicia of credibility, such as a date, reference number, and the signature of Vlastimir Đorđević.[1] Accordingly, the Appeals Chamber finds document 6DA19 to be prima facie credible.[2] […]

33. […] Given that the document bears sufficient indicia of credibility, such as a date, reference number, and a handwritten confirmation of receipt, the Appeals Chamber finds it to be prima facie credible.[3] […]

40. The Appeals Chamber notes that although the original, untranslated version of document 6DA22 in Annex D of the Motion does not include the page containing the relevant stamps and signatures, the Appeals Chamber is apprised of the name of the court and the date on which the judgement was rendered. The Appeals Chamber further notes that the Prosecution does not contest its credibility. Accordingly, the Appeals Chamber finds document 6DA22 to be prima facie credible. […]

12. The Appeals Chamber recalls that the Registrar has the primary responsibility in the determination of matters relating to the remuneration of counsel.[1] Article 22 of the Directive on the Assignment of Defence Counsel (“Directive”) empowers the Registrar to establish a “lump sum” system of remuneration to assigned counsel, and, in the event of a disagreement over the sum, the Directive vests the Registrar with the discretion to decide the matter after consulting the relevant Chamber.[2] According to Article 30 of the Directive, the Registrar also decides any disagreement on questions relating to the calculation and payment of remuneration or to the reimbursement of expenses after consulting the President and, if necessary, the Advisory Panel.[3] The Directive does not specify an avenue for review of a decision by the Registrar concerning the lump sum payment.

14. However, there is nothing in the Statute of the Tribunal, Rules, or the Directive that provides for a direct appeal of a decision by the Registrar or the President concerning an administrative matter that related exclusively to the trial and has no bearing on appellate proceedings.[4] Rather, the Appeals Chamber’s consideration of such matters is limited to an appeal against a conviction or where the issue properly arises in an interlocutory appeal certified by a Trial Chamber.[5] Therefore, the Appeals Chamber considers that it has no jurisdiction over this matter.

On 19 February 2010, the President of the Tribunal (“President”) rendered a decision[1], in which he held that the remuneration granted by the Registry to Radovan Karadžić’s defence team for the period between the adjournment of the trial and the resumption thereof (“adjournment period”)[2] was insufficient. This raised the question how the February 2010 President Decision should affect the date of the resumption of the trial scheduled by the Trial Chamber. In determining this matter, the Appeals Chamber clarified the competence of the President vis-à-vis Trial Chambers, stating:

19. […]. The President is vested with the authority to supervise the activities of the Registrar, who is in charge of the administration and servicing of the Tribunal.[3] However, decisions relating to the general conduct of trial proceedings, including the scheduling of trials, are matters that fall within the discretion of Trial Chambers.[4] None of the provisions in the Statute of the Tribunal (“Statute”) or the Rules confers on the President the authority to interfere with a Trial Chamber’s determination with respect to the scheduling of a trial to which it is assigned. Indeed, while Trial Chambers are bound by the ratio decidendi of decisions of the Appeals Chamber,[5] the President has no competence to issue decisions that are binding on Trial Chambers.[6] This power is exclusively conferred upon the Appeals Chamber pursuant to Article 25 of the Statute.[7]

20. Thus, in accordance with his mandate, in the February 2010 President Decision, the President solely dealt with the issue of remuneration for Karadžić’s defence team. He refrained from stating how his determination of the issue might affect the scheduled date of the resumption of the trial. The latter was clearly within the competence of the Trial Chamber, not of the President.

21. The Appeals Chamber considers that the President’s evaluation of defence funding may be a factor for a Trial Chamber to consider when deciding upon the scheduling of a trial, in discharging its duty to ensure the fair and expeditious management of the trial proceedings. However, this does not mean that the President’s order to increase the remuneration for a defence team invariably warrants postponement of the trial. Thus, it was open for the Trial Chamber to conclude, in light of other relevant factors, that the President’s view on the defence funding during the adjournment period would not necessitate further delay in the proceedings in order to safeguard Karadžić’s rights to a fair trial.

22. […] Therefore, Karadžić’s assertion that the Trial Chamber overruled the February 2010 President Decision or removed the remedy granted therein although it was obliged to implement the President’s order, is based on the misconception of both the law and the Impugned Decision. The Trial Chamber did not overrule the President, but concluded that the level of defence assistance for Karadžić, which the President found too low, could be remedied by means other than postponement of the trial.[8] The Appeals Chamber finds no error in this approach.

92. […] the Appeals Chamber recalls the basic principles of the assessment of alibi evidence before considering the specific contentions raised under each ground. The Appeals Chamber recalls that an alibi does not constitute a defence in its proper sense.[1] By raising an alibi, an accused is simply denying that he was in a position to commit the crime with which he was charged.[2] An accused does not bear the burden of proving his alibi beyond reasonable doubt.[3] Rather, “[h]e must simply produce the evidence tending to show that he was not present at the time of the alleged crime.”[4] If the alibi is reasonably possibly true, it must be accepted.[5]

93. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[6] The Prosecution may do so, for instance, by demonstrating that the alibi does not in fact reasonably account for the period when the accused is alleged to have committed the crime. Where the alibi evidence does prima facie account for the accused’s activities at the time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[7] for example, by demonstrating that the alibi evidence is not credible.

97. In certain circumstances, failure to raise an alibi in a timely manner can impact a Trial Chamber’s findings,[8] as it may take such failure into account when weighing the credibility of the alibi.[9] Therefore, the Trial Chamber was entitled to take into account the Appellant’s late submission of the Notice of Alibi when assessing the credibility of the alibi.[10]

The Trial Chamber commenced the trial while there was still a pending preliminary motion objecting to certain defects in the Indictment. The Appeals Chamber found

31. […] that in deciding to start the trial prior to ruling on the pending Motion of 29 August 2006, the Trial Chamber violated the express provision of Rule 72(A) of the Rules that preliminary motions “shall be disposed of […] before the commencement of the opening statements”.[1] Because the language of Rule 72(A) of the Rules is mandatory, the Trial Chamber committed a discernible error of law when it allowed the trial to commence without disposing of the Appellant’s motion. 

165. The Appeals Chamber recalls that a Trial Chamber is required to provide a reasoned opinion under Article 22(2) of the Statute and Rule 88(C) of the Rules.[1] A reasoned opinion ensures that the accused can exercise his right of appeal and that the Appeals Chamber can carry out its statutory duty under Article 24 of the Statute.[2] However, this requirement relates to the Trial Judgment as a whole, not to each submission made at trial.[3] In addition, a Trial Chamber “is not required to set out in detail why it accepted or rejected a particular testimony.”[4]

166. Furthermore, although certain evidence may not have been referred to by a Trial Chamber, in the particular circumstances of a given case it may nevertheless be reasonable to assume that the Trial Chamber took it into account.[5] A Trial Chamber need not refer to every witness testimony or every piece of evidence provided there is no indication that the Trial Chamber completely disregarded any particular piece of evidence; such disregard is shown where evidence that is clearly relevant to the findings is not addressed by the Trial Chamber’s reasoning.[6]

42. The Appeals Chamber has held that nothing in the Statute or the Rules prohibits a Trial Chamber from relying upon the testimony of accomplice witnesses.[1] However, such evidence is to be treated with caution, “the main question being to assess whether the witness concerned might have motives or incentives to implicate the accused”.[2] Nevertheless, a Trial Chamber retains discretion to rely on uncorroborated, but otherwise credible, witness testimony[3] because it is best placed to evaluate the probative value of evidence.[4] Acceptance of and reliance upon uncorroborated evidence does not in itself constitute an error of law.[5] The Appeals Chamber notes that the Appeals Chamber of the Special Court for Sierra Leone has extended this proposition to accomplice witnesses, stating that a Trial Chamber “may convict on the basis of the evidence of a single witness, even an accomplice, provided such evidence is viewed with caution.”[6]

43. Similarly, in a number of domestic jurisdictions, judges and jurors can rely on the uncorroborated evidence of an accomplice witness provided they assess such evidence with caution. For example, the Indian judiciary has recognized that corroboration is not lawfully required but that it is wise to assess accomplice evidence with caution.[7] Moreover, corroboration requirements for accomplices have been abolished in Canada,[8] the United Kingdom,[9] and Australia.[10] The Appeals Chamber further recalls the discussion in Tadić of corroboration requirements in civil law countries, which concluded that “there is no ground for concluding that this requirement of corroboration is any part of customary international law and should be required by [the ICTY]].”[11]

44. The Nahimana et al. and Muvunyi Appeal Judgements upon which the Appellant relies do not represent a different proposition. When the Appeals Chamber stated in Muvunyi that it was necessary for the Trial Chamber to consider whether the testimony of a particular accomplice witness was corroborated, it did so because the Trial Chamber had already found that the witness had a general motive to enhance Muvunyi’s role in the crimes and to diminish his own.[12] Contrary to the Appellant’s argument, this does not evidence a categorical rule requiring Trial Chambers to search for corroboration when evaluating the testimony of an accomplice witness. Rather, the Appeals Chamber simply found that corroboration was necessary in those circumstances because the accomplice witness had a motive to enhance the accused’s role in the crimes. 

45. In the passage from the Nahimana et al. Appeal Judgement upon which the Appellant relies, the Appeals Chamber considered whether the Trial Chamber erred when it relied on the testimony of an accomplice witness only to the extent that it was corroborated.[13] The Nahimana Trial Chamber had concluded that it could only rely on the witness’s evidence to the extent that it was corroborated because, in addition to being an accomplice, the witness gave testimony that was confusing and inconsistent.[14] The Nahimana Appeal Judgement found that there was no error in this approach.[15] This reflects the fact that Trial Chambers are endowed with the discretion to require corroboration, but does not mean that corroboration is required when evaluating the testimony of all accomplice witnesses.

46. In support of his proposition, the Appellant also points to a passage from the Krajišnik Appeal Judgement.[16] There, the ICTY Appeals Chamber stated that a Trial Chamber should briefly explain why it accepted the evidence of witnesses who may have had motives or incentives to implicate the accused to show its cautious assessment of such evidence.[17] This passage does not mean that corroboration is required. It simply stresses that Trial Chambers cannot merely state that they exercised caution when assessing the evidence of an accomplice witness, but must establish that they in fact did so.

48. In light of the above, the Appeals Chamber considers that the proposition that a Trial Chamber retains the discretion to rely on uncorroborated, but otherwise credible, witness testimony applies equally to the evidence of accomplice witnesses provided that the trier of fact applies the appropriate caution in assessing such evidence.

21. Pursuant to Article 20(4)(d) of the Statute, an accused has the right to be represented by competent counsel. Counsel is “considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law.” The Appeals Chamber recalls that Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel. The presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of counsel to succeed, an appellant must rebut the presumption of competence by demonstrating gross professional misconduct or negligence on the part of the counsel which occasioned a miscarriage of justice.

22. Pursuant to Article 19(1) of the Statute, the Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused. However, it is not for the Trial Chamber to dictate to a party how to conduct its case. Thus, where an accused claims that his right to competent assistance from counsel is violated, the onus is on the accused to bring this violation to the attention of the Trial Chamber. If the accused does not do so at trial, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act. He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.

145. The Appellant contends that the crime of direct and public incitement to commit genocide, whilst a “serious offence”, cannot be considered as a crime of similar gravity to genocide, since, unlike the crime of genocide, it is an inchoate offence.[1] The Appeals Chamber disagrees. There is no hierarchy of crimes within the jurisdiction of the Tribunal.[2] […]

146. […] [T]he analysis in the Nahimana et al. Appeal Judgement in fact supports the proposition that the offence of direct and public incitement to commit genocide is, in and of itself, a serious offence warranting serious punishment, notwithstanding that no physical act of genocide may have been committed. It does not indicate any hierarchy between the two offences. […]

148. The Appeals Chamber reiterates that whilst a Trial Chamber is obliged to take into account the general sentencing practice in Rwanda, it is not obliged to follow it.[3] The Appeals Chamber notes that although it would appear that Rwandan law does not make direct and public incitement to commit genocide a separate offence, it nevertheless criminalizes genocide[4] and provides that the act of, inter alia, “incitement, by way of speech, image or writing, to commits [sic] such a crime, even where not followed by an execution” shall be punishable by penalties provided for under that law.[5]

99. […] The term “common knowledge” encompasses facts that are widely known and not reasonably subject to dispute: in other words, commonly accepted or universally known facts, such as general facts of history or geography, or the laws of nature.[1]