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]

30. Karadžić places significant emphasis on the Šešelj Decision’s instruction that the Trial Chamber provide Šešelj with a list from which he could select his standby counsel, rather than impose one directly, as the Trial Chamber had chosen to do. […]

31. The Appeals Chamber notes that the Šešelj Decision was rendered in a unique factual and procedural context very different from Karadžić’s. […]

Taking into account the context of the Šešelj trial, the Decision concluded that the provision of opportunities to participate in the selection of standby counsel beyond those required by the Rules or Article 21(4) of the Statute was necessary in order to ensure the [ešelj trial’s fair and expeditious conduct under Article 20(1) of the Statute.[2] The Appeals Chamber reiterates that a Chamber’s context-limited decision to provide for processes beyond those guaranteed by the Statute and the Rules does not create an automatic right to these processes.[3]

32. […] In the [Šešelj] case, the Appeals Chamber was acting to ensure an orderly and careful restart of trial proceedings, after having previously found that the Trial Chamber violated Šešelj’s right to self-representation guaranteed under Article 21(4)(d) of the Statute by failing to warn him that his behaviour might result in the curtailment of that right.[4] By contrast, Karadžić has been warned on numerous occasions that his behaviour obstructs the expeditious conduct of the proceedings and that, should it continue, he risks curtailment of his right to self-representation.[5] Given the flexibility exhibited by the Registrar in the provision of standby counsel to Karadžić, the Appeals Chamber sees no basis for requiring that he be provided with greater opportunities to select personally between individuals available to serve as standby counsel.

35. The Appeals Chamber underscores that limitations on the right to self-representation are a rare occurrence, and that their details are necessarily context-specific. More particularly, the appointment of standby counsel is not subject to more formalized procedures designed to regularize the assignment of counsel to indigent suspects and accused who do not choose to self-represent. In assigning standby counsel, the Registrar or a Chamber may, but are not required to, make reference to procedures used in the assignment of counsel in other contexts. This more fluid and individualized approach to the appointment of standby counsel in cases of self-representation is amply justified by the fact that the reasons for and specific parameters of each appointment will vary considerably.

28. The Appeals Chamber recalls that evidence is credible if it appears to be reasonably capable of belief or reliance.[1] […] As to the two remaining documents, 4DA2 and 4DA27, both bear sufficient indicia of credibility, such as stamps or signatures or both, and the Appeals Chamber finds them also to be prima facie credible in the sense of Rule 115(B) of the Rules.

13. The Appeals Chamber first notes that with respect to the standard for admission of evidence on appeal, Lazarević submits that two prerequisites must be met: (i) the material must have been unavailable at trial and (ii) its consideration by the Appeals Chamber must be in the interests of justice.[1] Had the material been available at trial, Lazarević argues that the Appeals Chamber retains the inherent power to consider it, if a failure to do so would result in a miscarriage of justice.[2] The Appeals Chamber finds that Lazarević misapprehends the standard for admission of additional evidence on appeal, as the “interests of justice” test reflects neither the current requirements of Rule 115(B) of the Rules nor the established jurisprudence of the Tribunal.[3] The Appeals Chamber will therefore examine Lazarević’s submissions in accordance with the correct standard articulated above.[4]

8. The Appeals Chamber notes that the Trial Chamber reasoned that Rule 15 of the Rules “applies expressly to [J]udges and does not contemplate the disqualification of [C]hamber’s legal officers or consultants”.[1] The Trial Chamber further considered that the disqualification of Chambers’ legal officers or consultants finds no support in the jurisprudence of the Tribunal.[2] In reaching this conclusion, the Trial Chamber also referred to a report from a Panel of the ICTY which had been appointed to provide an opinion on disqualification of Judges and legal staff in connection with a contempt case before the ICTY.[3] The Trial Chamber noted that in the Hartmann Report, the ICTY Panel stated that a plain reading of Rule 15 of the ICTY Rules of Procedure and Evidence, which is similar to Rule 15 of the Rules, shows that it applies solely to Judges and does not extend to Chambers’ staff, and that the conduct of legal officers is not relevant to determining a Judge’s impartiality.[4] The Trial Chamber concluded that it did “not consider that Rule 15 [of the Rules] may be extended to apply to Chambers legal officers or legal consultants”.[5] The Appeals Chamber considers that it was open to the Trial Chamber to rely on the ICTY Panel’s reasoning on this issue and, accordingly, finds no discernible error in the Trial Chamber’s reasoning in this respect.

9. The Appeals Chamber further notes that the submissions of Mr. Bicamumpaka and Mr. Mugiraneza are premised on the erroneous notion that legal officers or consultants play a central role in the Judges’ deliberations. Judicial decision-making is the sole purview of the Judges and legal officers and consultants play no role in it. Rather, they merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.[6] Accordingly, there is no merit in Mr. Bicamumpaka’s and Mr. Mugiraneza’s assertions that legal officers and consultants must be subject to the same standards of impartiality as the Judges of the Tribunal.

10. The Appeals Chamber recalls that in the Furundžija case, the ICTY Appeals Chamber held that there is a “presumption of impartiality” which attaches to a Judge,[7] and that “… in the absence of evidence to the contrary, it must be assumed that the Judges of the International Tribunal ’can disabuse their minds of any irrelevant personal beliefs or predispositions’”.[8] Thus, “[t]here is a high threshold to reach in order to rebut the presumption of impartiality”.[9] The Appeals Chamber considers that it follows from this presumption that mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves, to warrant disqualification of a legal officer or consultant.

11. The Appeals Chamber is not persuaded that the Trial Chamber committed a discernible error and thereby abused its discretion in finding that Rule 15(A) of the Rules does not apply to legal officers and consultants. […] In some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial. However, the present case falls far short of such a situation. […]

17. 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] or, otherwise stated, present evidence “likely to raise a reasonable doubt in the Prosecution case.”[5] If the alibi is reasonably possibly true, it must be accepted.[6]

18. Where an alibi is properly raised, the Prosecution must establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true.[7] 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 relevant time of the commission of the crime, the Prosecution must “eliminate the reasonable possibility that the alibi is true,”[8] for example, by demonstrating that the alibi evidence is not credible.

19. The Appeals Chamber has considered on several occasions whether Trial Chambers have erroneously shifted the burden of proof to the accused with respect to their alibis. Appellants have frequently pointed to language in the assessment of alibi evidence intimating that they were required to disprove the Prosecution’s evidence through their alibis. The Appeals Chamber has recognized that language which suggests, inter alia, that an accused must “negate” the Prosecution’s evidence,[9] “exonerate” himself,[10] or “refute the possibility” that he participated in a crime[11] indicates that the Trial Chamber misapplied the burden of proof. Indeed, as stated in the Musema Appeal Judgement, “[i]n considering the manner in which the Trial Chamber applied the burden and standard of proof, the Appeals Chamber must start off by assuming that the words used in the Trial Judgement accurately describe the approach adopted by the Trial Chamber.”[12]

20. In assessing whether a Trial Chamber, when using this type of language, has in fact shifted the burden of proof, the Appeals Chamber carries out an in-depth analysis of the specific findings related to a given incident.[13] The Appeals Chamber has generally found that such language, while inappropriate, is not fatal when viewed in the broader context of a Trial Chamber’s findings. This is especially the case where the Trial Chamber accurately refers elsewhere in the judgement to the appropriate burden of proof for the evaluation of alibi evidence, its overall approach evinces a careful assessment of the alibi evidence, and its conclusion that the alibi evidence is ultimately not credible is reasonable when weighed against the evidence of participation in a crime.[14]

38. The Appeals Chamber observes that the Trial Chamber correctly stated that the Prosecution bears the burden of establishing the accused’s guilt beyond reasonable doubt[15] and that it would consider each piece of evidence in light of the totality of the evidence admitted at trial.[16] […]

39. Nonetheless, the Appeals Chamber finds that the Trial Chamber’s assessment of Zigiranyirazo’s alibi involves three serious errors that, taken together, invalidate his convictions based on the events at Kesho Hill. Specifically, the Trial Chamber erred by misapprehending the burden of proof in the context of alibi, failing to consider or provide a reasoned opinion with respect to relevant circumstantial evidence, and misconstruing key evidence which, properly considered, bolstered Zigiranyirazo’s alibi.

42. The Appeals Chamber emphasizes that a successful alibi does not require conclusive proof of an accused’s whereabouts.[17] Indeed, there is no requirement that an alibi “exclude the possibility” that the accused committed a crime.[18] The alibi need only raise reasonable doubt that the accused was in a position to commit the crime.[19]