42.     The Appeals Chamber finds that it was open to the Prosecution to rely on paragraph (C)(1)(b) of the Practice Direction for the determination of the scheduling deadline. The Appeals Chamber agrees that paragraph (C)(1)(b) of the Practice Direction authorizes the Prosecution to elect to file a consolidated response brief in cases involving a plurality of co-accused without first obtaining leave from the Appeals Chamber to do so.[5] The finding of the Appeals Chamber in Hadžihasanović was, contrary to Ntabakuze’s contention, of a general nature and is further reflected in the Pre-Appeal Judge’s express finding that “under the Practice Direction on the Length of Briefs and Motions on Appeal of 8 December 2006, the Prosecution may elect to file a consolidated brief in response to all three appeal briefs” and that the time-limit for the filing of such brief would only run from the filing date of the last appeal brief in this case.[6] The wording of paragraph (C)(1)(b) specifies and further defines the provision of Rule 112(A) of the Rules in the event of a plurality of accused. […]

44.     Rules 108, 111, and 112 of the Rules establish an equilibrated system for the appellant and the respondent regarding the timetable for filing their submissions, according an appropriate amount of time to each party. This filing schedule is envisaged to facilitate and expedite the Appeals Chamber’s assessment of the parties’ submissions in order to guarantee swift and fair appeal proceedings. If the briefing schedule pursuant to paragraph (C)(1)(b) of the Practice Direction were to be maintained in the present case, several months would lapse without any progress on Ntabakuze’s appeal. Additionally, this would leave the Prosecution with approximately 11 months to respond to Ntabakuze’s appeal brief instead of 40 days as prescribed under Rule 112(A) of the Rules, which would further contradict the filing schedule prescribed in the Rules.

46.     The Appeals Chamber further considers that an earlier submission of the Prosecution’s response brief will add to the enforcement of equality of arms, as enshrined in Article 20(4) of the Statute. Therefore, the Appeals Chamber finds that it is in the interests of justice to adjust the briefing schedule to correspond to the specific circumstances of this case. Moreover, this will allow the Appeals Chamber to expedite the assessment of Ntabakuze’s appeal as well as the appeals of his co-Appellants, which, as a result, will have a positive effect on the setting of the appeals hearing date and the appeals proceedings as a whole.

The Appeals Chamber emphasised that the considerations in relation to the Completion Strategy must be without impact upon the right to fair trial.

38.     Lastly, the Appeals Chamber dismisses Ntabakuze’s argument that a severance of his case would be supported by the “Security Council’s Completion Strategy”.[1] The Appeals Chamber recalls that although the “Completion Strategy” is reflected in Security Council Resolutions,[2] considerations of judicial economy may not impinge on the right of the parties to a fair trial.[3] Moreover, the “Completion Strategy” has no impact whatsoever upon a Chamber’s duty to ensure that the proceedings before it are conducted in a fair and expeditious manner.

61. The right to cross-examination is not absolute.[1] The Appeals Chamber has held that "as a matter of principle nothing bars the admission of evidence that is not tested or might not be tested through cross-examination."[2] Nevertheless, the Appeals Chamber has recognized that "[u]nacceptable infringements of the rights of the defence [...] occur when a conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial."[3] Therefore, "[i]t would run counter to the principles of fairness [...] to allow a conviction based on evidence of this kind without sufficient corroboration."[4]

62. Whether untested evidence is sufficiently corroborated is necessarily a fact specific inquiry and varies from case to case. Accordingly, the Appeals Chamber declines to impose any specific legal requirement as to the source of the corroboration. Therefore, the Appeals Chamber can identify no error of law in the above quoted legal principles adopted by the Trial Chamber for assessing untested evidence. The main question, however, is whether the conviction rests decisively on untested evidence. Furthermore, it follows from jurisprudence that not all evidence characterized as hearsay can be considered untested or unreliable.[5] Indeed, as a matter of law, it is permissible to base a conviction on hearsay or circumstantial evidence, but caution is warranted in such circumstances.[6]

Count 11 of the operative Indictment in this case charges the Appellant with hostage taking of UN personnel as a war crime under common Article 3 of the Geneva Conventions of 1949.[1] The Appellant requested that Count 11 be dismissed as defective. He claimed that the allegations in Count 11 relate to Prisoners of War (“POWs”) while the scope of application of common Article 3 to international armed conflicts is limited to the hostage-taking of civilians. In particular, the Appellant observed that the Third Geneva Convention does not include an express prohibition of hostage taking of POWs. He argued that this lacuna could not be fulfilled by considering that common Article 3 is also applicable to international armed conflicts. In the Appellant’s view, the Third Geneva Convention should be considered as lex specialis to common Article 3, thus excluding the applicability of the crime of hostage-taking to POWs. The Appeals Chamber dismissed the Appeal in light of the following considerations.

21. First, the Appeals Chamber considers that the prohibition of hostage-taking cannot be considered as extraneous to the Third Geneva Convention. As the Prosecution correctly points out, the protection of POWs is covered by an extensive net of provisions within the Third Geneva Convention which, read together, lead to the conclusion that any conduct of hostage-taking involving POWs could not but be in violation of the Third Geneva Convention. Although not per se conclusive, the analysis of the drafting of the Geneva Conventions further substantiates this consideration.[2] The main point confirming the relevance of the prohibition of hostage-taking under the Third Geneva Convention is the very existence of common Article 3, which expresses the shared principles which govern the Conventions and establishes a minimum set of mandatory rules in non-international armed conflict.[3]

22. Common Article 3 clearly states that the conduct listed in subparagraphs (a) to (d) of paragraph 1, including in subparagraph (b) the “taking of hostages”, is prohibited “with respect to the above-mentioned persons”, that is “[p]ersons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed ‘hors de combat’ [...]”. In light of the clear definition of the reach of this paragraph, which according to its plain wording applies without exception to all of the prohibitions listed in subparagraphs (a) to (d) of paragraph 1, the Appeals Chamber considers that the Appellant’s argument that the prohibition of hostage-taking in common Article 3 “is no other than the prohibition of civilian hostage-taking in the Fourth Geneva Convention”[4] is unsubstantiated. Conversely, common Article 3 clearly refers the prohibition on taking hostage of any person taking no active part in the hostilities.[5]  

25. In any event, the Appeals Chamber recalls that the well-established jurisprudence of the Tribunal confirms that, under customary international law, the protections enshrined in common Article 3 apply in both international and non-international armed conflicts.[6] The Appeals Chamber considers that the Appellant fails to provide any sensible argument suggesting an exception to, or limitation on, the prohibition on hostage-taking for a particular category of persons in a particular type of conflict. Specifically, the Appeals Chamber considers the Applicant’s attempt to read the Tadić Decision on Jurisdiction as only justifying the extension of protections from the framework of international armed conflicts to the context of non-international armed conflict, and not vice versa, as without merit.[7] The Applicant only focuses on one part of the reasoning in the Tadić Decision on Jurisdiction, unduly disregarding its ultimate conclusion. In particular, of the entire Appeals Chamber’s discussion on the existence of customary rules of international law governing armed conflicts, the Appellant fixates on the Appeals Chamber’s observation of a tendency towards the blurring of the distinction between international and non-international armed conflicts in a certain historical moment. However, the Appellant fails to appreciate the full meaning of the Appeals Chamber’s conclusive finding that “at least with respect to the minimum rules in common Article 3, the character of the conflict is irrelevant”,[8] which unequivocally refers to all of the rules contained in common Article 3, including the prohibition of hostage-taking. 

The Applicant claimed that the timing and brevity of the Impugned Decision revealed a hurried approach on the part of the Trial Chamber and its failure to adequately consider some important defence arguments. Having recalled its previous jurisprudence,[1] the Appeals Chamber observed:

11. […] The Appellant does not claim an error of law based on this alleged brevity, nor does he identify specific issues, findings or arguments which the Trial Chamber did not address. In view of this, the Appeals Chamber declines to consider this matter. It does note, however, that a Trial Chamber’s efficiency in dealing with the motions pending before it cannot be regarded as a symptom of superficiality, and that the brevity or length of a decision depends upon a number of factors, including the nature of the issue in dispute and the quality of the parties’ arguments.

20. The Appeals Chamber finds that the Trial Chamber committed a discernible error of fact in concluding that sufficiently compelling humanitarian reasons for Praljak’s provisional release existed on the basis that his mental health was affected by the long time spent in detention and the foreseeable length of the trial. The Appeals Chamber considers that, in the absence of any precise medical information or evidence provided with respect to Praljak’s state of health, it was unreasonable for the Trial Chamber to come to such conclusion. Whereas the Appeals Chamber has held that “under certain circumstances, written expert reports and other relevant personal conditions might not necessarily be required”,[1] in the present situation, no reasonable trier of fact could conclude that factors like prolonged detention during the trial proceedings and the foreseeable length of the trial – common to most of the accused appearing before the Tribunal – amounted to compelling humanitarian circumstances. In order to conclude what precise impact, if any, those factors have had on Praljak’s mental health, the Trial Chamber should have assessed objective medical evidence. The Appeals Chamber thus finds that this error constitutes an abuse of discretion.

The Prosecution was arguing that the Impugned Decision was not based on the established criterion of “compelling humanitarian reasons” but was simply a decision to grant provisional release during the judicial recess. The Appeals Chamber held:

10. The Appeals Chamber recalls its observation that “there is no reason to establish a precedent pursuant to which accused are granted provisional release for the period between the Prosecution and Defence case, absent sufficiently compelling humanitarian reasons”.[1] The Appeals Chamber notes that the Trial Chamber correctly stated the applicable law, including the criterion of sufficiently compelling humanitarian reasons, and proceeded to apply it to the circumstances of the case before it.[2] The Trial Chamber noted the fact that it would adjourn for judicial recess during the period for which Praljak requested to be released only after it identified the criteria that it was required to establish in order to grant the Request.[3] While the Appeals Chamber agrees that there is no “recess leave”, it considers that the judicial activity calendar may be a relevant factor when assessing a request for provisional release, notably to avoid unwarranted disruptions or undue delays in the proceedings.[4] Consequently, the Appeals Chamber finds that the Prosecution has failed to show an error of law in the Impugned Decision in this regard.

The Trial Chamber ordered two psychological examinations of the Accused which it then relied upon to convict him. It held that because the reports were ordered under Rule 74 bis of the Rules, they did not fall within the scope of Rule 94 bis of the Rules.

22. The Appeals Chamber considers that the Trial Chamber erred in finding that Rule 94 bis of the Rules was inapplicable in the particular circumstances of the case on the basis that the Chamber Expert’s reports were filed pursuant to Rule 74 bis of the Rules. The Appeals Chamber recalls that Article 21(4) of the Statute provides that:

In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

[…]

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; […]

Rule 94 bis of the Rules expresses this right to challenge evidence more specifically with regard to expert witnesses and their reports and sets out the procedure to be followed. In the present case, the Chamber Expert was asked to report on Jokić’s state of mind when he refused to testify in the Popović et al. case, which goes to a central issue in the case against him, and the Trial Chamber then relied on this evidence in convicting him.[1] Thus while the reports were ordered pursuant to Rule 74 bis of the Rules rather than Rule 94 bis of the Rules, they should be properly understood as expert evidence in the case within the meaning of Rule 94 bis of the Rules and subject to cross-examination by Jokić. The Appeals Chamber notes that in a number of other cases where the Trial Chamber has ordered psychological reports pursuant to Rule 74 bis of the Rules, the parties have been given the opportunity to examine the expert.[2] It further notes that while Rule 94 bis is not directly applicable to the case as the Trial Chamber is not “a party” within the meaning of Rule 94 bis(A), the guarantees for the preservation of the procedural rights of the Accused provided under this Rule were applicable. Hence, in the circumstances of this case, the fact that the Trial Chamber ordered the reports pursuant to Rule 74 bis of the Rules does not place them beyond the scope of Rule 94 bis of the Rules.

28. The Appeals Chamber recalls that Rule 77(A)(i) of the Rules states:

The Tribunal in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with its administration of justice, including any person who

(i) being a witness before a Chamber, contumaciously refuses or fails to answer a question; […]

The Trial Chamber found that Rule 77(A)(i) of the Rules imposes criminal liability “where a witness knowingly and wilfully interferes with the Chamber’s administration of justice by persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber.”[1] Its ensuing discussion covered two main points: “Whether the Accused persistently refused or failed to answer a question without reasonable excuse while being a witness before the Chamber”[2] and “[w]hether by refusing to testify the Accused knowingly and wilfully interfered with the Tribunal’s administration of justice”.[3] While the Trial Chamber did not explicitly state what it considered to be the actus reus and mens rea of the offence, the Appeals Chamber understands from this structure that the Trial Chamber considered the actus reus to be persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber and the mens rea to be knowingly and wilfully interfering with the Tribunal’s administration of justice by refusing to testify. Accordingly, the Appeals Chamber turns to consider whether the Trial Chamber erred in so defining the actus reus and mens rea of contempt under Rule 77(A)(i).

29. In defining the actus reus as “persistently refusing or failing to answer a question without reasonable excuse while being a witness before the Chamber” the Trial Chamber went beyond the language found in the Rule by adding the phrase “without reasonable excuse” and replacing the word “contumaciously” with “persistently”. The Appeals Chamber notes that the additional language of “without reasonable excuse” appears to have been taken from Judge Kwon’s dissenting opinion in the Matter of Witness K12 in the Slobodan Milošević case, in which he made reference to “obstinate refusal to answer without reasonable excuse”,[1] but neither appears in the language of the Rule nor elsewhere in the jurisprudence on the interpretation of this Rule.[2] However the Appeals considers that, in any event, such an addition cannot be considered as going to the detriment of the Accused for the reason that it is an addition pro reo, i.e. it narrows the scope of the crime under this Rule.

30. The Appeals Chamber now turns to the Trial Chamber’s replacement of the word “contumaciously” with “persistently”. This follows the reasoning in the contempt proceedings against Kosta Bulatović in the Slobodan Milošević case in which the Trial Chamber referred to the accused “deliberately refus[ing] to comply with an order of the Trial Chamber to answer questions and persist[ing] in that refusal when fully advised of the position and given a further opportunity to respond.”[3] Although discussion in the jurisprudence of the meaning of “contumacious” has tended to be undertaken in the context of the mens rea,[4] if “contumacious” is defined as “persistent”, it is in fact more relevant to the actus reus than the mens rea in the sense of it being a repeated or continuous refusal. This interpretation is the most consistent with the French version of Rule 77(A)(i) which does not contain the word “contumacious” or any direct equivalent but rather states:

Dans l’exercice de son pouvoir inhérent, le Tribunal peut déclarer coupable d’outrage les personnes qui entravent délibérément et sciemment le cours de la justice, y compris notamment toute personne qui: i) étant témoin devant une Chambre refuse de répondre à une question malgré la demande qui lui en est faite par la Chambre [...]

In light of the phrase “malgré la demande qui lui en est faite par la Chambre” (despite the Chamber’s request), the crime under  Rule 77(A) of the Rules must be consider committed not when the witness merely refuses to answer a question put by one of the parties, but rather when it is a refusal maintained in the face of the Chamber’s request to answer the question of a party or a question put by the Chamber itself. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reference to “persistently refusing or failing to answer a question” in defining the actus reus.