151. […] The Appeals Chamber reiterates that the Trial Chamber is only obliged to have regard to the gravity of the crimes for which an accused has been convicted, and the form or degree of responsibility for these crimes. […]

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.

80. As discussed in connection with the Second Ground of Appeal, the Trial Chamber did not err in determining that any violation of a court order interferes with the administration of justice.[1] Consequently, it correctly stated that the mens rea requirement for contempt under Rule 77(A) of the Rules is satisfied by proof of “any knowing and wilful conduct in violation of a Chamber’s order”.[2]

85. Furthermore, the Trial Chamber also fully considered the fact that Nshogoza was acting on the instructions and advice of the Lead Counsel.[3] However, the fact that he was following orders of a superior has no bearing on whether he possessed the requisite mens rea,[4] which, as stated above, is simply the knowing and wilful violation of a court order. Consequently, Nshogoza has failed to demonstrate any error in the Trial Chamber’s findings relating to the mens rea.

99. The Appeals Chamber considers, Judges Robinson and Güney dissenting, that the Trial Chamber properly considered the particular circumstances surrounding Nshogoza’s specific conduct. The Trial Chamber did not merely focus on contempt as an inherently grave offence, but addressed the gravity of the particular way in which Nshogoza committed contempt. It found that, by breaching the Kamuhanda Protective Measures Order, Nshogoza “undermined the authority of the Kamuhanda Trial Chamber, as well as confidence in the effectiveness of protective measures, and the administration of justice.”[1] The Trial Chamber did not merely focus on Nshogoza’s defiance of the authority of the Tribunal, but considered more specifically that his conduct “may also have the effect of dissuading witnesses from testifying before it.”[2] The Appeals Chamber does not deem that it was necessary for the Trial Chamber to have found that Witnesses GAA and A7/GEX lost confidence in their protective measures or that other witnesses were dissuaded from appearing before the Tribunal for it to consider that a breach of a protective measures order may have the effect of dissuading witnesses from testifying before the Tribunal.

65. Furthermore, the fact that the trial had concluded or that the protected witnesses may have approached Nshogoza did not in any way terminate their protected status. Rule 75(F) of the Rules states that protective measures once ordered continue to have effect in any proceeding before the Tribunal until rescinded, varied, or augmented.[1] In addition, the Kamuhanda Witness Protection Order clearly states that “the [protected] witness does not have the right, without authorization from the Chamber, to disclose his or her identity freely.”[2] This measure was added by the Trial Chamber proprio motu and was not challenged by the Kamuhanda Defence.

66. Although in some circumstances such a measure might be considered onerous, the Appeals Chamber is unable to determine that it was unreasonable or unjustified as a means of ensuring that any waiver is fully informed and voluntary given the information submitted by the Prosecution to the Trial Chamber at the time and the prevailing security climate. Furthermore, Nshogoza has failed to demonstrate why, in the particular circumstances of this case, it would have been impractical or particularly onerous to seek a variation of the Kamuhanda Witness Protection Order before proceeding with further contact with the protected witnesses. Indeed, at the relevant time of the contact, this case remained before either the Trial Chamber or the Appeals Chamber and thus an urgent, and even ex parte, application could have been made.[3]

67. The Appeals Chamber recognizes that such measures might stifle effective Defence investigations where the Prosecution qualifies an excessive number of individuals as potential Prosecution witnesses, in particular without even ascertaining their willingness to appear. However, the Appeals Chamber is not satisfied that this was the case here. Witness A7/GEX was clearly identified to the Kamuhanda Defence as a potential witness willing to appear for the Prosecution on 26 March 2001 shortly before the trial.[4] Nshogoza’s contention that the witness protection measures for Witness A7/GEX should have lapsed at the conclusion of the trial fails to appreciate the Tribunal’s interest in protecting individuals who have agreed to cooperate and provide statements on a confidential basis. Potential witnesses who did not eventually testify may face similar risks as those who did, for instance by virtue of their cooperation with either party. Those who decided not to testify out of fear might also require continued anonymity, depending on the circumstances. In any case, even if Nshogoza were correct that the prohibitions on contact with this particular witness were no longer applicable, it cannot reasonably be argued that he had the right to disclose information, which had been consistently treated as confidential, to third parties without official sanction from a Chamber.

17. The Appeals Chamber recalls that, for the purposes of Rule 115 of the Rules, whether the proffered evidence was available at trial is not merely a question of whether the evidence was “available” in a literal sense.[1] The applicant bears the burden of demonstrating that he acted with due diligence in obtaining the evidence and bringing it before the Trial Chamber.[2]

18. […] In order to establish whether, in seeking the admission of the untranslated documents Lukić acted with due diligence, the Appeals Chamber will need to address Lukić’s submission that the Trial Chamber obstructed his efforts to obtain appropriate translations. However, given that the latter issue bears on the merits of Lukić’s appeal, the Appeals Chamber will refrain from making such a determination at this juncture. […] Therefore, in light of the particular circumstances of this case, the pending resolution of Lukić’s appeal on the merits, and the interests of fairness, the Appeals Chamber finds that documents […] should be regarded as having been unavailable to Lukić for the purposes of Rule 115 of the Rules. […]

20. […] Considering that the duty to act with due diligence requires the parties “to make the best case in the first instance”,[3] the Appeals Chamber finds Lukić’s argument that he could not have anticipated the Trial Chamber’s interpretation of the evidence unpersuasive. Moreover, the Appeals Chamber recalls that it is the settled jurisprudence of this Tribunal that the appeal process is not designed for the purpose of allowing the parties to remedy their own failings or oversights during trial.[4]

10. Pursuant to Article 24(C) of the Directive on Assignment of Defence Counsel[1] (“Directive”),

[d]uring appellate proceedings, assigned counsel and assigned members of the defence team shall be remunerated on the basis of a maximum allotment of working hours paid at a fixed hourly rate as established in Annex I to this Directive, for the work reasonable and necessary to the preparation and presentation of the defence case.

The amount of such maximum allotment depends principally on the phase of the case and its complexity.[2] In determining the latter, the Registry generally takes into account a number of factors, including: the number and nature of the grounds of appeal; whether there is a cross-appeal; whether the appeal raises any novel legal issues; the complexity of the legal and factual issues involved; the number of documents that have to be reviewed; and the sentence imposed by the Trial Chamber. At present, different allocations of hours are as follows: Level 1 (difficult) with 1050 counsel hours and 450 support staff hours; Level 2 (very difficult) with 1400 counsel hours and 600 support staff hours; and Level 3 (extremely difficult) with 2100 counsel hours and 900 support staff hours.[3] In addition, all appeals hearing hours for counsel are reimbursed.

12. The Appeals Chamber confirms, however, that the present decision will not address the issue of allocating additional hours to Pavković’s Defence team given that it is the Registry which has the primary responsibility in the determination of matters relating to remuneration of counsel.[4] […]

14. […] [T]the Appeals Chamber reiterates that Pavković’s Counsel agreed to represent him in full awareness of the system of remuneration for assigned counsel and is bound thereby.[5] In a letter addressed to the then Acting Head of OLAD and attached to the Motion (“Letter to OLAD”), Pavković’s Counsel argues that the understanding that he “accepted this appeal assignment with full understanding that resources were limited and that [he] could not be paid for each hour worked is incorrect”. He asserts that he was in fact “never formally assigned to handle this appeal [which] just carried over from the trial”.[6] The Appeals Chamber finds these claims untenable.[7] Pavković’s Counsel is therefore under the obligation to continue working in his client’s best interests until the representation is terminated (with the completion of the proceedings or an approved withdrawal).

16. The Appeals Chamber recalls that, in order to show that the Prosecution is in breach of its disclosure obligation pursuant to Rule 68(A) of the Rules, the Defence must identify specifically the materials sought, present a prima facie showing of their probable exculpatory nature, and prove the Prosecutor’s custody or control of the materials requested.[1] Thus, contrary to the Appellant’s submission,[2] his burden of proof could not be met by merely showing a prima facie case of custody or advancing a “presumption of possession”.

20. The Appeals Chamber further finds that the Trial Chamber erred in concluding that ordering the prosecution of Witness BTH was premature because an assessment of his credibility will be undertaken when deliberating on the Karemera et al. case and that such prosecution would risk causing serious prejudice to the Karemera et al. proceedings. An assessment of a witness’s credibility is a separate inquiry from that of the prosecution of a witness for false testimony.[1] The Trial Chamber hearing the case in which the witness testified will assess the witness’s credibility in its consideration of the evidence adduced in that case.[2] Prosecution for false testimony is a separate trial conducted by a separate chamber of judges, who will consider evidence relating to the allegation of false testimony.[3] Therefore, proceedings for false testimony need not be deferred until the completion of the trial in which the false testimony was allegedly given but can proceed contemporaneously. In this respect, the Appeals Chamber recalls the finding in Rutaganda that:

A credibility determination may be based, but does not necessarily depend, on a judicial finding that a witness has given false testimony. The testimony of a witness may lack credibility even if it does not amount to false testimony within the meaning of Rule 91. Thus, an investigation for false testimony is ancillary to the proceeding and does not impact on the accused’s right to a fair trial.[4]

[…]

9. The Appeals Chamber recalls that Trial Chamber decisions reviewing administrative decisions relate to the general conduct of trial proceedings, and as such are matters that fall within the discretion of the Trial Chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the Trial Chamber has committed a “discernible error” resulting in prejudice to that party. The Appeals Chamber will only overturn a Trial Chamber’s discretionary decision where it is found to be: (i) based on an incorrect interpretation of governing law; (ii) based on a patently incorrect conclusion of fact; or (iii) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.

25. The Appeals Chamber notes that the Registrar’s Response questions “whether a judicial decision on review can be subject to appellate scrutiny”.[5] The Appeals Chamber underscores that in instances where this power of review has not been explicitly conferred on another organ of the Tribunal, the Appeals Chamber has exercised its authority to hear appeals of reviews of administrative decisions rendered by the Registrar.[6] Thus, in the present instance, where there is no explicit conferral of review power to another organ of the Tribunal, the Appeals Chamber has the authority to hear the Appeal.[7]