306. […] [T]he Appeals Chamber observes that the language of the Trial Judgement may be read to conclude that certain factors were taken into account twice by the Trial Chamber in its assessment of the gravity of the crimes and the aggravating circumstances.[1] Where established, such double-counting amounts to a legal error since “factors taken into consideration as aspects of the gravity of a crime cannot additionally be taken into account as separate aggravating circumstances, and vice versa.”[2] […]

309. The Appeals Chamber is not convinced by the Prosecution’s argument that relying on different aspects of the same fact is permissible. In weighing a fact, either as an aspect of the gravity of the crime or as an aggravating circumstance, the Trial Chamber is required to consider and account all of its aspects and implications on the sentence in order to ensure that no double-counting occurs. The Appeals Chamber thus finds that the said facts could only be taken into consideration once – either as factors relevant to the gravity of the crimes or as aggravating circumstances.

265. The Trial Chamber has adopted a very general approach in that it did not analyse whether Milošević ordered every sniping or shelling incident, but rather concluded that those incidents could only take place if ordered by him in the framework of the campaign directed against the civilian population of Sarajevo. In principle, this approach is not erroneous as such, given that both the actus reus and the mens rea of ordering can be established through inferences from circumstantial evidence, provided that those inferences are the only reasonable ones. The Appeals Chamber underlines, however, that when applying such an approach to the facts of the case, great caution is required.

266. First, the Appeals Chamber emphasizes that, as the Trial Chamber correctly held in its discussion of the widespread or systematic attack, “[a] campaign is a military strategy; it is not an ingredient of any of the charges in the Indictment, be that terror, murder or inhumane acts”.[1] The Appeals Chamber notes, however, that in other parts of the Trial Judgement, the Trial Chamber appears to hold Milošević responsible for planning and ordering a campaign of crimes.[2] The Appeals Chamber understands these references as illustrating that the crimes at stake formed a pattern comprised by the SRK military campaign in Sarajevo. Therefore, the “campaign” in the present Appeal Judgement shall be understood as a descriptive term illustrating that the attacks against the civilian population in Sarajevo, in the form of sniping and shelling, were carried out as a pattern forming part of the military strategy in place.

Having clarified that Milošević could not be held criminally responsible for planning or ordering a military campaign (but rather for the crimes resulting therefrom), the Appeals Chamber further concluded that there was no evidence of him planning or ordering the campaign as such. Therefore, there was no basis for a conclusion that he planned and ordered the crimes on the ground that they resulted from a military campaign. Consequently, the Appeals Chamber proceeded to analyse whether there was evidence supporting the Trial Chamber’s conclusions that Milošević planned and ordered the crimes resulting from the specific shelling and sniping incidents. The Appeals Chamber further underlined:

271. The Appeals Chamber emphasizes that its findings above pertain strictly to Milošević’s individual criminal responsibility for ordering and planning the campaign of shelling and sniping of civilians in Sarajevo as such, given that not all the legal requirements necessary for these modes of liability have been established at trial. These findings do not affect the conclusions of the Trial Chamber or those of the Galić Trial and Appeal Chambers that such a campaign took place in Sarajevo during the relevant period.

The Trial Chamber sentenced Milošević to 33 years of imprisonment.

333. The Appeals Chamber recalls that it overturned Milošević’s convictions for planning the crimes of terror, murder and inhumane acts on the basis that his responsibility for ordering the relevant crimes pursuant to Article 7(1) of the Statute fully encompasses his criminal conduct and does not warrant a separate conviction for planning the same crimes.[1] In this context, where the findings with respect to Milošević’s criminal conduct and the seriousness of the crimes remain undisturbed, the Appeals Chamber finds that no reduction of sentence is warranted.

334. In addition, the Appeals Chamber has vacated Milošević’s convictions under Article 7(1) with respect to crimes committed through sniping incidents and replaced them with convictions pursuant to Article 7(3) of the Statute.[2] The Appeals Chamber acknowledges that in appropriate cases, a conviction under Article 7(3) of the Statute may result in a lesser sentence as compared to that imposed in the context of an Article 7(1) conviction.[3] However, in this particular case, the Appeal Chamber finds that its conclusions with respect to the form of Milošević’s responsibility for the crimes at stake do not in any way diminish his active and central role in the commission of the crimes.[4] Indeed, Milošević did more than merely tolerate the crimes as a commander; in maintaining and intensifying the campaign of shelling and sniping the civilian population in Sarajevo throughout the Indictment period, he provided additional encouragement to his subordinates to commit the crimes against civilians. Therefore, no reduction of sentence is warranted on this basis either.

335. [The Appeals Chamber reversed Milošević’s convictions for three shelling incidents] […] Although these findings do not change the fact that the entire population of Sarajevo was the victim of the crime of terror committed under Milošević’s command, they do involve fewer victims of the crimes of murder and other inhumane acts imputable to Milošević under counts 5 and 6 of the Indictment. The Appeals Chamber thus finds that these reversals have an impact, although limited, on Milošević’s overall culpability.

337. Taking into account the particular circumstances of this case, the gravity of the crimes for which Milošević’s convictions have been upheld, and the quashing of the convictions outlined above, the Appeals Chamber concludes that Milošević’s sentence should be reduced to a term of imprisonment of 29 years.

297. Due to their obligation to individualise the penalties to fit the circumstance of an accused and the gravity of the crime, Trial Chambers are vested with broad discretion in determining the appropriate sentence, including the determination of the weight given to mitigating or aggravating circumstances.[1] As a general rule, the Appeals Chamber will not revise a sentence unless the Trial Chamber has committed a discernible error in exercising its discretion or has failed to follow the applicable law. It is for the appellant to demonstrate that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, made a clear error as to the facts upon which it exercised its discretion, or that the Trial Chamber’s decision was so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.[2]

20. […] The Appeals Chamber recalls that the standard of proof “requires a finder of fact to be satisfied that there is no reasonable explanation of the evidence other than the guilt of the accused”.[1] The Appeals Chamber also emphasizes that “for a finding of guilt on an alleged crime, a reasonable trier of fact must have reached the conclusion that all the facts which are material to the elements of that crime have been proven beyond reasonable doubt by the Prosecution”.[2] Therefore, not each and every fact in the Trial Judgement must be proved beyond reasonable doubt, but only those on which a conviction or the sentence depends.[3] The Appeals Chamber also recalls that as a general rule, the standard of appellate review, namely whether “no reasonable trier of fact could have reached the conclusion of guilt beyond reasonable doubt”, permits a conclusion to be upheld on appeal even where other inferences sustaining guilt could reasonably have been drawn at trial”.[4] However, an inference drawn from circumstantial evidence to establish a fact that is material to the conviction or sentence cannot be upheld on appeal if another reasonable conclusion consistent with the non-existence of that fact was also open on that evidence, given that such inference should be the only reasonable one.[5]

The Appeals Chamber overturned the Trial Chamber’s conclusions with respect to one incident where it found that the origin of fire was not established beyond reasonable doubt:

230. […] Accordingly, given the presence of both ABiH and SRK positions in the same direction, but located at different distance from the Baščaršija flea market, an analysis of the charge could have determined with greater precision the position where the shell was fired from. […] The Trial Chamber failed to address these deficiencies and to articulate its reasons for dismissing other possible conclusions with respect to the origin of fire. The Appeals Chamber therefore notes that whereas the evidence presented was sufficient to establish the direction of the fire, it was insufficient to establish beyond reasonable doubt its origin, taking into account the positions of the warring parties at the time of the incident.

232. In light of the above, the Appeals Chamber finds that the evidence on the record could lead a reasonable Trial Chamber to conclude that it was most likely that the shells that hit the Baščaršija flea market on 22 December 1994 were fired from SRK-held territory, but not to establish this beyond reasonable doubt.

Having concluded that the Trial Chamber’s findings that Milošević planned and ordered the crimes resulting from the sniping incidents were unreasonable, the Appeals Chamber proceeded to analyse whether he could be held responsible for the same crimes as a superior for having failed to prevent and punish them.

278. However, the Appeals Chamber notes that its findings above do not exclude Milošević being held responsible for the sniping incidents under Article 7(3) of the Statute. The Appeals Chamber notes that the Indictment alleges Milošević’s responsibility for planning and ordering the crimes charged (and in addition or in the alternative, for aiding and abetting the planning, preparation and/or execution of the crimes), as well as for the crimes committed by his subordinates which he knew or had reason to know about and failed to take reasonable and necessary measures to prevent or punish.[1]

279. The Trial Chamber concluded that there was a conflict between the Indictment and the Prosecution Closing Brief as to whether Milošević was charged under Article 7(3) in the alternative, or in addition to, Article 7(1).[2] The Trial Chamber did not pursue the discussion with respect to Milošević’s alleged responsibility under Article 7(3) given that it found him guilty under Article 7(1).[3] The Appeals Chamber recalls that both cumulative and alternative charging on the basis of the same conduct are generally permissible[4] and is satisfied that Milošević’s responsibility under Article 7(3) was correctly pleaded in the present case.

281. The Appeals Chamber is satisfied that, although the Trial Chamber did not convict Milošević under Article 7(3) of the Statute, it made the findings necessary for the establishment of his responsibility under this provision for the sniping incidents. […] Having applied the correct legal framework to the conclusions of the Trial Chamber,[5] the Appeals Chamber is satisfied that Milošević’s responsibility under Article 7(3) of the Statute for having failed to prevent and punish the said crimes committed by his subordinates is established beyond reasonable doubt.

264. […] In any case, his argument that the attack against Hrasnica could be legitimate as it anticipated concrete and direct military advantage[1] must fail because, due to its disproportionate and indiscriminate nature, it was unlawfully directed against the civilian population in the area.[2] […]

13. […] the Appeals Chamber considers that the Appellant’s persistent and pervasive use of alternative formulations for alleged errors of law and alleged errors of fact throughout the Notice of Appeal leads to imprecision and confusion and does not give the Amicus Prosecutor sufficient notification of the scope of the appeal.  If the Appellant is of the view that an issue is one of law, then this should be stated.  If it is one of fact, then it should be stated as such.  Only where there is a genuine issue of mixed law and fact, or where there is a real uncertainty, should an alternative formulation be used. 

14. Finally, the Appeals Chamber recalls that “[t]he only formal requirement under the Rules is that the notice of appeal contains a list of the grounds of appeal; it does not need to detail the arguments that the parties intend to use in support of the grounds of appeal, the place for detailed arguments being in the Appellant’s brief.”[1]  The Appeals Chamber notes that the Notice of Appeal is so long and complex that it is difficult for the Appeals Chamber to separate out the grounds and sub-grounds of appeal therein from what might be argumentation.  Moreover, the Notice of Appeal contains sections that are clearly argumentation […]. The Appellant is reminded that a notice of appeal requires her to clearly specify the alleged error in question and then identify the challenged finding or ruling in the judgement or decision.  Detailed argumentation is to be included in the appeal brief.  In light of the foregoing, the Appellant is instructed to re-file the Notice of Appeal in conformity with the above requirements.

16. The Appeals Chamber does not agree with the Appellant that the participation of the Amicus Prosecutor would have the “incongruous effect of allowing a proxy of the Trial Chamber to defend on appeal the case that it has prosecuted on its behalf”.[1]  This argument is based upon the faulty premise that the Amicus Prosecutor and the Trial Chamber were one and the same entity.  Having been appointed by the Registrar, upon order of the Trial Chamber, the Amicus Prosecutor proceeded to prosecute the case on behalf of the Chamber without becoming an “agent” or “proxy” thereof.  Moreover, the Appeals Chamber has already stated that the participation of the Amicus Prosecutor would assist it in its consideration of the appeal.[2]

18. The Appeals Chamber notes that it is not uncommon for a party to challenge on appeal the actions of an opposing party during trial, and that such a challenge does not preclude the Appeals Chamber from presenting questions to the opposing party on appeal in relation to the actions being challenged. The Appeals Chamber thus finds no merit in the Appellant’s contention that the involvement of the Amicus Prosecutor in the Appeal proceedings would preclude the Defence and/or the Appeals Chamber from hearing evidence potentially relevant to this case.  Furthermore, the Appeals Chamber reminds the Appellant that the Appeals Chamber determines an appellant’s grounds of appeal after the Appeals Chamber has had the benefit of reviewing the submissions of both parties and hearing their oral arguments.  The Appeals Chamber accordingly finds no basis in the Appellant’s argument that allowing the Amicus Prosecutor to participate in the appeal proceedings would create the appearance that the Appeals Chamber condones the alleged improper contacts challenged under Ground 3 of the Appeal.

32. The Appeals Chamber notes that the Appellant’s assertion that authenticity is an issue wholly divorced from the admissibility of evidence is based on a misapprehension of the Tribunal’s case law. In support of his submission that the Trial Chamber erroneously “refused reconsideration for documents initially rejected for lack of authenticity under the heading of reliability”,[1] the Appellant cites an Appeals Chamber decision in the Delalić case.[2] 

34. Authenticity may be similarly viewed in terms of the distinction between prima facie proof and definite proof. Prima facie proof of authenticity is appropriate at the admissibility stage, whereas definitive proof of authenticity is relevant to evidentiary weight later on in the proceedings. Authenticity relates to whether a document is what it professes to be in origin or authorship. It may therefore be relevant in assessing whether a document is prima facie reliable. Thus, whether a document bears basic features indicative of prima facie authenticity may, in the individual circumstances facing a Trial Chamber, be relevant to the underlying factor of prima facie reliability. Conversely, definitive proof of authenticity is an issue relevant to the evidentiary weight to be assigned to a document after admission. [3]

35. The Delalić Decision upon which the Appellant relies does not support his position. Rather, the Delalić Decision clarifies that it is erroneous to claim that strict proof of authenticity constitutes a separate and distinct requirement to the prerequisites of relevance and probative value of Rule 89(C) of the Rules.  The Delalić Decision states that:

The Applicant submits that where the tendering party has not proven the authenticity of a document then that document is necessarily irrelevant and of no probative value; hence it should be excluded. Sub-rule 89(E), whereby “[a] Chamber may request verification of the authenticity of evidence obtained out of court”, cited by the Applicant, does not operate as a pre-condition to bar the admissibility of evidence under Sub-rule 89(C). There is no legal basis for the Applicant’s argument that proof of authenticity is a separate threshold requirement for the admissibility of documentary evidence.[4]

With regard to the notion that definitive proof of authenticity is an element of admissibility:

The implicit requirement that a piece of evidence be prima facie credible – that it have sufficient indicia of reliability – is a factor in the assessment of its relevance and probative value. To require absolute proof of a document’s authenticity before it could be admitted would be to require a far more stringent test than the standard envisioned by Sub-rule 89(C).[5]

36. The Appeals Chamber notes that the Trial Chamber correctly applied the foregoing standards.  The Appellant’s submission that the Trial Chamber refused reconsideration due to the fact that it erroneously subsumed authenticity under the heading of reliability is therefore unmeritorious.