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.

While Rule 15(B)(iii) of the Rules clearly states that there is no interlocutory appeal from a decision by the panel of three judges, it does not set out what avenues are available should a party wish to challenge the finding of the President on the merits of an application for disqualification pursuant to Rule 15(B)(ii) of the Rules. Referring to the former version of Rule 15(B) of the Rules, the Appeals Chamber concluded:

7. […] In interpreting the previous version of the Rule, the Appeals Chamber in Prosecutor v. Galić found that the Presiding Judge could determine that it was not necessary to refer the matter to the Bureau and decide the matter himself; however, if the party seeking disqualification challenged the Presiding Judge’s decision, it did become “necessary” to refer the matter to the Bureau within the language of Rule 15(B) of the Rules. Therefore, while there was no interlocutory appeal from decisions of either the Presiding Judge or the Bureau, there was in effect a second level of review by the Bureau in the case of the Presiding Judge deciding the matter alone.[1] In circumstances where an application for disqualification was referred to the Bureau, it would undertake a de novo review.[2]

8. The procedure in the current version of Rule 15(B) of the Rules differs in that it is the President, rather than the Presiding Judge, who either makes the decision on his own or refers it on for decision. Further, in the latter case, the President refers it not to the Bureau but to a panel of three judges drawn from other Chambers. However, beyond these differences, the language and general procedure of Rule 15(B) of the Rules in the two versions is broadly similar. Both provide that the matter may be decided by a lone judge (be it the Presiding Judge or the President) or “if necessary” by a panel of judges (be it a panel of three judges from other Chambers or the Bureau). Therefore, the Appeals Chamber considers that the reasoning in Galić to the extent that where a decision of the Presiding Judge acting on his own is challenged it becomes “necessary” to refer the matter to the Bureau, would equally apply to the new procedure under Rule 15(B) of the Rules. Therefore, under the current Rule 15(B) of the Rules, where the President (or, as in the instant case, the Vice-President) has determined that it is not necessary to refer the matter to a panel of judges and decided the matter himself, and that decision is challenged, it becomes “necessary” to refer the matter to a panel of three judges.

The Appeals Chamber discussed the evolution of its jurisprudence regarding what types of challenges involve subject matter jurisdiction and thus qualify for appeal as of right.

33. The Appeals Chamber recalls that Karadžić’s challenges to the Tribunal’s jurisdiction focus on the mode by which liability is attributed to him. As these challenges do not relate to persons, territories, or time periods,[1] the core issue underlying the Appeals is whether they involve subject matter jurisdiction as defined in Rule 72(D)(iv) of the Rules, and thus may be appealed as of right.[2]

34. Karadžić makes extensive reference to certain decisions, such as Rwamakuba,[3] issued by three judge panels under a previous version of Rule 72 of the Rules.[4] Many of the decisions cited by Karadžić lend some support to the view that even relatively granular issues, such as the contours and elements of mode of liability, could be jurisdictional in nature.[5] However, other decisions issued by these three judge panels advanced a narrower view of jurisdiction under Rule 72 of the Rules.[6] In 2005, a revision to the Rules eliminated Rule 72(E) of the Rules and reverted the question of whether an appeal addressed jurisdictional issues to standard panels of five Appeals Judges.[7] Since that revision of the Rules, the Appeals Chamber’s jurisprudence has gradually resolved previous uncertainty relating to the issue of which questions qualified as jurisdictional challenges.

35. The Appeals Chamber’s most recent jurisprudence on the question of jurisdiction focuses narrowly on the plain text of Rule 72 of the Rules. For example, in Gotovina, the Appeals Chamber dismissed a challenge concerning the applicable mens rea of the third category of JCE, as it determined that the claim was not related to questions of jurisdiction.[8] To the extent the appeal was challenging the definition and interpretation of a particular element of the mode of liability, the Appeals Chamber found that “[s]uch an argument goes to the pleading practice and the form of the indictment and is not a challenge to jurisdiction”.[9] The Appeals Chamber also adopted this approach in its Tolimir Decision. There, the appellant challenged the applicability of JCE to establishing responsibility for the crimes of genocide and conspiracy to commit genocide. In rejecting his appeal, the Appeals Chamber concluded that “though at first glance [the appeal seemed] somewhat related to subject-matter jurisdiction”, it involved non-jurisdictional issues that could be resolved during the course of trial.[10]

36. As Tolimir and Gotovina demonstrate, the Appeals Chamber’s approach to subject matter jurisdiction now focuses on whether the crime charged is envisioned by the statute, and whether the mode of liability upholds the principle of individual criminal responsibility; the contours and elements of modes of liability are considered an “issue[ ] of law . . . which can be properly advanced and argued during the course of trial”.[11]

37. Accordingly, the Appeals Chamber finds no error in the Trial Chamber’s reliance on the Appeals Chamber’s distillation of case law on the scope of jurisdictional appeals as set out in Gotovina and Tolimir.[12] For the foregoing reasons, the Appeals Chamber finds that Karadžić fails to raise a proper jurisdictional challenge pursuant to Rule 72 of the Rules.

The Appeals Chamber also recalled the standard of appellate review of decisions concerning jurisdictional challenge (paras 9-10).

28. With respect to Karadžić’s decision to file several separate appeals against the Impugned Decision, the Appeals Chamber agrees with the Prosecution that this is not standard practice. If a party could file an unlimited number of appeals against one decision, provisions regulating the interlocutory appeals, such as word limitation,[1] would be devoid of any sense. The proper procedure for Karadžić would thus generally be to file one appeal against the Impugned Decision, applying for extension of the word limit if necessary. Given the very particular context of these appeals, especially the wide range of issues addressed in the Impugned Decision, the filing of more than one appeal was potentially justifiable. In any event, the Appeals Chamber finds that it would not be in the interests of judicial expediency to order Karadžić to re-file his submissions in this case, and notes that no party has been prejudiced in the circumstances given that separate responses and replies were subsequently filed. In turn, the fact that the Appeals Chamber accepts these appeals as validly filed does not preclude it from rendering its decisions in a consolidated manner, if and where appropriate.[2]

17. The state of Mr. Ngirumpatse’s health and his prognosis for recovery lie at the core of the Trial Chamber’s decision to deny the request for a further stay of proceedings and instead to sever him from the case. In refusing to order a further stay, the Trial Chamber dismissed as “highly speculative” Mr. Ngirumpatse’s claim that his health might sufficiently improve within three months to allow him to more actively participate in his defence from his hospital bed.[1] […]

18. Rule 82(B) of the Rules provides that a “Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice.” In severing Mr. Ngirumpatse, the Trial Chamber concluded principally that there was a conflict of interests among the Appellants as a result of the prejudice Mr. Karemera and Mr. Nzirorera would suffer if the proceedings were stayed until Mr. Ngirumpatse became fit to attend trial.[2] The Trial Chamber noted that, “according to the doctor’s assessment”, Mr. Ngirumpatse “will, in the best case, not be fit to attend trial before nine months.”[3] The Trial Chamber also considered the interests of justice, namely, the interests of the victims and the international community that trials concerning serious crimes be completed without unnecessary delays.[4] It also noted that severance “significantly serves judicial economy”.[5]

19. The Appeals Chamber notes that, in practice, Trial Chambers generally consider various professional opinions before taking an important procedural decision arising from an accused’s medical condition which may impact the course of a trial.[6] In this respect, Rule 74bis of the Tribunal’s Rules of Procedure and Evidence (“Rules”) expressly provides that “a Trial Chamber may, proprio motu or at the request of a party, order a medical […] examination of the accused.”

20. In the present case, the Trial Chamber relied exclusively on the assessment of the Tribunal’s Chief Medical Officer.[7] As a preliminary matter, the Appeals Chamber finds no merit in Mr. Nzirorera’s submission that the Trial Chamber erred in not requiring the Chief Medical Officer to take the oath prescribed for witnesses in Rule 90(B) of the Rules.[8] The Chief Medical Officer did not appear as a witness, rather, her assessment, like other information submitted by the witness protection or defence counsel management section, is akin to a submission under Rule 33(B) of the Rules.

22.     It is appropriate to take proper account of an assessment made by the Chief Medical Officer and, in some cases, to rely exclusively on it. However, the Appeals Chamber considers that particular care is warranted where, as here, the assessment is provisional and lacking in detail, is disputed by the parties, and plays a significant role in the Trial Chamber’s assessment of prejudice. The Appeals Chamber also observes that the Trial Chamber had no specific information concerning the nature of Mr. Ngirumpatse’s medical problem. While a Trial Chamber may adopt reasonable measures to protect the privacy interests of an accused, these measures cannot serve to deprive it of information essential to reaching an informed decision. In view of the foregoing, the Appeals Chamber finds that, in this instance, the Trial Chamber reached its conclusions on prejudice without having assessed all relevant factors. It therefore committed a discernible error in the exercise of its discretion. […]