22. The Appeals Chamber further observes that in several instances, the Trial Chamber uses confusing language which could be viewed as shifting of the burden of proof onto the Defence to disprove the Prosecution’s case. In such instances, the Trial Chamber stated that “nothing in the evidence suggests” that a conclusion opposite to the one adopted by the Trial Chamber could be reached.[1] The Appeals Chamber finds this language misleading and stresses that the Trial Chamber is required not only to apply the appropriate standard but also to articulate it correctly. That said, the Appeals Chamber considers that, subject to the analysis of the parties’ specific challenges below, the Trial Chamber in fact meant to state that all reasonable doubt was eliminated on the basis of the evidence cited in all such instances.

231. […] It recalls that the Prosecution bears the burden of establishing beyond reasonable doubt facts material to the guilt of an accused and suggesting that the Defence should present evidence proving the contrary would be an impermissible shift of such burden.[2] […]

57. […] The Appeals Chamber recalls that the protection from attacks afforded to individual civilians by Article 51(2) of Additional Protocol I is suspended pursuant to Article 51(3) of Additional Protocol I when and for such time as they directly participate in hostilities. Accordingly, to establish that the crimes of terror and unlawful attacks against civilians had been committed, the Trial Chamber was required to find beyond reasonable doubt that the victims of individual crimes were civilians and that they were not participating directly in the hostilities.[1] […]

268. […] [T]he Appeals Chamber recalls that the actus reus of “planning” requires that one or more persons design the criminal conduct constituting one or more statutory crimes that are later perpetrated.[1] It is sufficient to demonstrate that the planning was a factor substantially contributing to such criminal conduct.[2] The mens rea for this mode of responsibility entails the intent to plan the commission of a crime or, at a minimum, the awareness of the substantial likelihood that a crime will be committed in the execution of the acts or omissions planned.[3]

274. […] [T]he Appeals Chamber notes that the Trial Chamber’s conclusions that Milošević planned the shelling incidents are based on essentially the same set of facts. In the circumstances of this case, the Appeals Chamber proprio motu finds that Milošević’s responsibility for ordering fully encompasses his criminal conduct and thus does not warrant a conviction for planning the same crimes.[4]

23. The Appeals Chamber finds that the Appellant has failed to demonstrate that the factors cited in support of her Motion to Exceed Word Limit constitute exceptional circumstances. She has asserted the complexity of the legal and factual issues on appeal[1] without defining exactly what these complexities are. It is also well established that the number of grounds and sub-grounds of appeal,[2] the number of authorities cited,[3] and the extensiveness of the trial record and length of the trial[4] do not inevitably impede an appellant’s ability to present salient and cogent appeal briefs within the prescribed word limit, and that these factors do not therefore, in and of themselves, constitute exceptional circumstances. Regarding the Appellant’s assertion that an extension of the word limit is also necessitated by the Trial Chamber’s refusal to grant the Appellant’s requests for leave to appeal three of the Trial Chamber’s preliminary decisions, the Appeals Chamber notes that the Appellant has failed to explain precisely why this is the case. The mere fact that the Trial Chamber denied the requests for leave to appeal these three decisions does not invariably prevent the Appellant from concisely discussing the most relevant aspects of these decisions within the prescribed word limit.

24. While a number of the issues on appeal, including an examination of European and international law on freedom of expression, are important issues, the significance of the issues on appeal does not in and of itself prevent an appellant from presenting sound submissions on those issues within the set word limit.[5] The quality and effectiveness of an appellant’s brief are not contingent on the length of the submissions, but on the cogency and clarity of the arguments presented.[6] In the instant case the Appeal is somewhat unnecessarily repetitive.[7] Also, the discussion of certain related issues extending over numerous paragraphs could be consolidated into fewer paragraphs, and more concise phrasing used throughout the Appeal as a whole.[8]  In view of the foregoing therefore, the Appellant’s request for extension of the word limit is, by majority, Judge Morrison dissenting, denied.

13. As the Appellant has noted, pursuant to Guidelines 9(a)(iii) and 9(a)(vi) issued by the Trial Chamber, in seeking the admission of the documents, the party is required to provide references to the relevant paragraphs of the Indictment and reasons why it considered the documents important for the determination of the case. […] However, the Appeals Chamber underscores that the Guidelines must be interpreted in the light of the Rules and the jurisprudence. When introducing documentary evidence pursuant to Rule 89(C) of the Rules, the parties must explain how the content of the document relates to a material issue.[1] This issue is a question of fact and depends upon the circumstances of each case. The Appeals Chamber must accord considerable deference to the Trial Chamber’s discretion in its evaluation of the relevance of the documentary evidence.

27. Contrary to the arguments of the Appellant, the Trial Chamber did not require strict proof of reliability, but some indicia of prima facie reliability. The Trial Chamber considered that crucial to an informed assessment of the prima facie relevance of proposed documentary evidence is the provision of such basic information as the sources and dates of the documents in question, information which, in essence, allows the entities responsible for the contents of the documents and the periods in time to which those contents relate, to be identified.  It found that the documents excluded on this basis did “not contain the indicia necessary for the Chamber to rule on the admission of a piece of evidence.”[1] This finding was well within the exercise of the Trial Chamber’s discretion and the Appellant has failed to demonstrate any error in that regard.

33. Relevance and probative value are the two prerequisites of admissibility under Rule 89(C) of the Rules. In order to assess whether proposed evidence satisfies both prerequisites, consideration is given to an item of evidence’s prima facie reliability.[2] Prima facie reliability does not however constitute a separate and additional prerequisite under Rule 89(C) of the Rules, but is an underlying factor relevant in determining whether the prerequisites of relevance and probative value have been met. Thus, prima facie reliability “is a factor in the assessment of its relevance and probative value”.[3] Also, definitive proof of reliability is not required at the admissibility stage.[4] Rather, it is an issue to be assessed at a later stage in the course of determining the weight to be attached to the evidence after its admission.[5]

3. Mr. Renzaho now requests an extension of time to file his Appellant’s Brief within 75 days from the service to him and his Counsel of the French translation of the Trial Judgement.[1] In support of his request, Mr. Renzaho submits that because he is francophone and can neither speak nor read English, he is incapable of fully understanding the Trial Judgement, properly discussing grounds of appeal, and actively participating in the drafting of his Appellant’s Brief, particularly with respect to factual issues.[2] […]

4. Rule 116(A) of the Rules allows for the extension of time of any deadline on a showing of good cause. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. This provision may provide a basis for an extension of time, upon request, for the filing of the convicted person’s Appellant’s Brief pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[3]

5. Mr. Renzaho’s circumstances constitute good cause to extend the time for the filing of his Appellant’s Brief from the filing of the French translation of the Trial Judgement.

6. Mr. Renzaho’s Lead Counsel has the ability to work in both English and French,[4] and may therefore discuss the draft of the Appellant’s Brief with Mr. Renzaho, subject to his final approval once the French translation of the Trial Judgement is filed. It is therefore appropriate in this instance to allow a limited extension of time. 

See also, the “Decision on Tharcisse Renzaho’s Motion for Extension of Time for the Filing of Notice of Appeal and Brief in Reply” rendered in this case on 22 September 2009, where the Appeals Chamber held:

4. Pursuant to Rule 116(B) of the Rules, where the ability of the convicted person to make full answer and defence depends on the availability of a decision in an official language other than that in which it was issued, that circumstance shall be taken into account as a good cause. In practice, Rule 116(B) of the Rules does not provide a basis for an extension of time for the filing of a Notice of Appeal where the convicted person’s counsel can work in the language in which the Trial Judgement was pronounced.[5] This provision may, however, provide a basis for an extension of time, upon request, for the filing of the convicted person’s brief on appeal (“Appellant’s Brief”) pending the translation of the Trial Judgement into a working language of the Tribunal which he or she understands.[6]

5. In the present case, the information provided by the Registry shows that Mr. Renzaho’s Lead Counsel has indicated that French is his mother tongue and that he has a “good” knowledge of English, with the ability to read, speak, and write it fluently.[7] He is therefore able to discuss the contents of the Trial Judgement as well as any possible grounds of appeal with Mr. Renzaho. The determination of potential grounds of appeal falls primarily within the purview of Defence Counsel and, if an application is made after the Trial Judgement becomes available in French and good cause is shown, leave may be granted to vary the grounds of appeal under Rule 108 of the Rules.[8] For these reasons, Mr. Renzaho has not demonstrated good cause for an extension of time for the filing of his Notice of Appeal.

19. [R]ather than establishing that the calculation of pre-trial preparation time is a mechanically “objective” task,[1] the Ngirabatware Decision underscores that “it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case”.[2] A Trial Chamber’s assessment of the amount of pre-trial preparation required in each case is a fact-intensive exercise but also involves an exercise of the Trial Chamber’s judgement. The factors cited in the Ngirabatware Decision and addressed by both Karadžić and the Prosecution are specifically described as examples of indicia that might impact a Trial Chamber’s assessment of the pre-trial preparation period,[3] rather than constituting a required “objective” checklist for Trial Chambers.  

20. […] The Appeals Chamber reiterates that assessing the amount of pre-trial preparation required is not a mechanical duty, and also that “[w]hile a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail”.[4] […] The Appeals Chamber underscores that “[i]n examining whether the Trial Chamber has considered appropriate factors in sufficient measure” with regard to pre-trial preparation, “the Appeals Chamber is not limited to the text of the order issued by the Trial Chamber”. Instead, it will look to relevant decisions and transcripts of recent status and pre-trial conferences in order to determine “whether the Trial Chamber gave the issues involved due consideration”.[5]

The Appeals Chamber then considered the Trial Chamber’s demand that the Prosecution file a “marked-up version of the indictment and its schedules”[1] including footnotes explaining all changes of the indictment, subsequent to an invitation of the Trial Chamber pursuant to Rule 73bis(D) of the Rules. It assessed whether this required a delay in the start of the trial:

26. [T]he Trial Chamber reduced the size of the case Karadžić faced by accepting the propositions of the Prosecution’s 31 August 73bis(D) Submission.[[2]] However, the amount of time provided to Karadžić for reviewing the marked-up indictment is exceedingly short and risks rendering the trial unfair, even when the only potential changes are reductions in the Prosecution’s charges. In the context of this case, the Trial Chamber was obligated to ensure that Karadžić had sufficient time to read the marked-up and clarified indictment before the commencement of trial. Its failure to do so constitutes an abuse of discretion.

35. The Appeals Chamber considers that the Statute of the Tribunal can only be amended or derogated by means of UNSC resolution. This plainly derives from the actus contrarius doctrine, is established in the jurisprudence of the Tribunal,[1] and is confirmed by the practice of the UNSC.[2]

36. […] Therefore, contrary to what the Trial Chamber appears to concede,[3] the mere involvement of the UNSC in concluding the alleged Agreement [agreement allegedly reached between the accused Radovan Karadžić and Mr. Richard Holbrooke on 18-19 July 1996], without a ratification of the alleged Agreement by a UNSC resolution, could not limit the jurisdiction of the Tribunal. The Appeals Chamber notes that there is no UNSC resolution excluding the Appellant from the ambit the Tribunal’s jurisdiction.

37. In light of the foregoing, the Appeals Chamber finds that under no circumstance would the alleged Agreement in and of itself, even if its existence was proved, limit the jurisdiction of the Tribunal.

38. The Appellant’s argument that the applicability of the doctrine of apparent authority would prove that no UNSC resolution is necessary to amend the jurisdiction of the Tribunal is misplaced. As explained above, in the absence of a UNSC resolution, the alleged Agreement could not have any impact on the Tribunal’s jurisdiction, even if it were made with the actual authority of the UNSC. […] Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. A fortiori, even if one considered that the alleged Agreement was made with the apparent authority of the UNSC could not affect in any event the ambit of the Tribunal’s jurisdiction. In his submissions, the Appellant attempts to rely on analogy with jurisdictional matters in international criminal law a theory typical of contract law protecting the legitimate expectations of a contracting party believing without fault that a contract was validly concluded with a legitimate representative of the other party.[4] However, the Appellant ignores that one of the requirements for applying a doctrine by analogy is the existence of an eadem ratio, that is, the existence of sufficient similarities between two cases. The field of contract law is so distant from the question of jurisdiction in international criminal law that the two are effectively incomparable. Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. The Appeals Chamber considers that the Appellant’s submissions on apparent authority fall more squarely under the question of the applicability of the doctrine of abuse of process.[5]