10. The Appellant submits that the Trial Chamber failed to articulate the applicable law on “the legal threshold differentiating an accused who does not understand English for the purposes of the Tribunal’s Statute and Rules, from one who does” and as such failed to correctly distinguish the legal standard applicable to an accused represented by counsel and a self-represented accused.[1] In this respect, he submits that the appropriate standard is the one set out in the Tolimir Appeal Decision that an accused must understand a language “sufficiently in order to allow for the effective exercise of his right to conduct his defence.”[2] He further submits that the Rome Statute of the ICC which sets out that the language to be used is one which the accused “fully understands and speaks”,[3] “provide[s] the best evidence of the applicable legal threshold in international law.”[4]

11. With respect to the Appellant’s reliance on the Rome Statute, the Appeals Chamber recalls that it is not bound by the Rome Statute or Rules of Procedure and Evidence of the ICC, although it may seek guidance from them when appropriate.[5] In the present case, the Appeals Chamber notes that the Tolimir Appeal Decision has already set out the Appeals Chamber’s interpretation of “a language which [the accused] understands” in Article 21(4)(a) of the Statute[6] and that the Appellant does not contest this standard.[7] Furthermore, the Appeals Chamber notes that the Tribunal’s standard on language ability is consistent with other international human rights instruments setting out fair trial rights.[8] In light of this, the Appeals Chamber does not consider it necessary to engage in an analysis of the ICC’s standard regarding the level of language ability required of an accused.

12. As in the current case, the issue in the Tolimir Appeal Decision was the scope and meaning of the right to receive materials in a language that the accused understands in the context of a case with a self-represented accused.[9] The Appeals Chamber in Tolimir considered the meaning of Article 21(4)(a) of the Statute and Rule 66(A) of the Rules and found that the issue “hinges on understanding and not preference.”[10] It continued:

These provisions, when read with the other minimum guarantees provided in Article 21(4) of the Statute, create an obligation to provide relevant material in a language which the accused understands sufficiently in order to allow for the effective exercise of his right to conduct his defence.[11]

The determination of whether an accused possesses a sufficient level of understanding is a factual question and must be made on a case-by-case basis.[12]

13. While the Impugned Decision did not expressly refer to the Tolimir Appeal Decision, the Trial Chamber considered the same provisions in the Statute and the Rules and applied an equivalent standard. After noting Rule 3(A) of the Rules, which provides that the “working languages of the Tribunal shall be English and French”, the Trial Chamber recalled that this rule must be consistent with the right of an accused to a fair trial.[13] In this respect, it quoted from Article 21(4) of the Statute which provides, inter alia, that:

[i]n 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:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; […][14]

More particularly, it recalled that the materials disclosed to an accused pursuant to Rule 66(A) of the Rules must be “in a language which the accused understands”.[15] It proceeded to consider the materials submitted to it by the Prosecution as evidence of the Appellant’s understanding of the English language[16] before concluding that the Appellant understands English “for the purposes of the Rules and the Statute”.[17] In considering whether the Appellant understands English “for the purposes of the Rules and the Statute” with reference to Article 21(4) of the Statute and Rule 66(A) of the Rules, the Trial Chamber was in effect inquiring as to whether the Appellant “understands sufficiently in order to allow for the effective exercise of his right to conduct his defence.”[18] This is demonstrated by the fact that the Trial Chamber considered not merely the Appellant’s general English language abilities but specifically his ability to undertake tasks required “in the context of a complex criminal trial”[19] such as his ability to converse with his English speaking legal advisers,[20] to respond to questions regarding war crimes allegations[21] and exhibits placed before him,[22] and to draft or approve motions and other submissions filed by him.[23] This shows that although the Trial Chamber did not explicitly refer to the Tolimir Appeal Decision, it applied the same standard. Accordingly, the Appeals Chamber finds no error in the legal standard applied by the Trial Chamber.

15. With regard to the Appellant’s submission that the evidence relating to his language abilities relied on by the Trial Chamber was outdated, the Appeals Chamber notes that while evidence from many years ago may not be conclusive of present language abilities, it is relevant.  In this case, however, while the Trial Chamber took into consideration evidence from 14 to 17 years ago, it also considered more recent evidence. […]

16. In the present case, the Trial Chamber found that “evidence which has already been considered and rejected by another Trial Chamber in making a finding of fact should not be admissible in a later proceeding to rebut that same finding of fact”.[1] In support of its finding, the Trial Chamber reasoned that the original Trial Chamber “was in a much better position to make determinations regarding reliability and credibility than [it], having heard the evidence viva voce”.[2] The Appeals Chamber considers that, in stating so, the Trial Chamber disregarded the fact that the assessment of admissibility criteria must be done on a case-by-case basis,[3] in light of the specific circumstances of each case. It overlooked the fact that the probative value of a piece of evidence may be assessed differently in different cases, depending on the rest of the evidence and other relevant circumstances.[4] While the prior assessment of the evidence by another Trial Chamber is a factor that may be taken into account in the assessment of its probative value, it does not relieve the Trial Chamber of its obligation to assess the admissibility of the evidence in the context of the case before it.

17. In the Karemera et al. Appeal Decision on Judicial Notice, the Appeals Chamber held that adjudicated facts:

are facts that have been established in a proceeding between other parties on the basis of the evidence the parties to that proceeding chose to introduce, in the particular context of that proceeding. For this reason, they cannot simply be accepted, by mere virtue of their acceptance in the first proceeding, as conclusive in proceedings involving different parties who have not had the chance to contest them.[5]

This is also the case for credibility findings in another case: the finding on the credibility and reliability of Ntakirutimana’s testimony in his own trial cannot be accepted as conclusive in the present proceedings by the mere virtue of the fact that it was reached by the Ntakirutimana Trial Chamber.

18. In this case, the Trial Chamber denied the admissibility of Ntakirutimana’s testimony into evidence on the basis that the Ntakirutimana Trial Chamber had found it to be less reliable than another testimony.[6] That is, instead of examining for itself whether Ntakirutimana’s testimony was prima facie reliable and credible, the Trial Chamber erroneously relied on the final evaluation of its reliability and credibility by another Trial Chamber and accepted that negative assessment as determinative of the admissibility of the evidence.

19. The Trial Chamber further reasoned that to re-engage in an assessment of the reliability and credibility of Ntakirutimana’s testimony “would essentially be acting in review of another Chamber, and therefore outside of its jurisdiction”.[7] The Appeals Chamber disagrees. As noted above, the final assessment of the weight of a piece of evidence is based on the totality of the evidence in a given case. Naturally, the same piece of evidence can be assessed differently in different cases because of other evidence on the record therein. Therefore, a Trial Chamber’s assessment of a piece of evidence from another case does not involve a review of a decision of another Trial Chamber. Moreover, in this respect, the Appeals Chamber recalls that “the final adjudication of facts in judicial proceedings is treated as conclusively binding only, at most, on the parties to those proceedings”.[8]

22. [...] In deferring to the assessment of the reliability of Ntakirutimana’s testimony by the Ntakirutimana Trial Chamber, the Trial Chamber not only failed to fulfil its obligation to examine whether the evidence may have probative value in the circumstances of the case before it, but also misapplied the standard for admission of evidence which only requires prima facie indicia of reliability and credibility.    

3. Pursuant to Rule 65(I) of the Rules, a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that: (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[3] Finally, the discretionary assessments of the requirements under Rule 65 of the Rules are made on a case-by-case basis.[4]

16. […] the Appeals Chamber recalls that detention for a substantial period of time may amount to a special circumstance within the meaning of Rule 65(I)(iii) of the Rules.[1] A determination must, however, be made on a case-by-case basis.[2] In the context of this case, taking into account that a date for hearing the appeal has not yet been set, as well as the good behaviour shown by Brahimaj whilst in detention, the fact that Brahimaj’s past period of provisional release did not give rise to any concerns and the fact that he has served two-thirds of his sentence, the Appeals Chamber finds that special circumstances warranting Brahimaj’s provisional release have been established.[3]

In the previous practice of the Tribunal, guarantees for an accused provisionally released in Kosovo/Kosova have usually been provided by UNMIK. In the present case, after having inquired with both UNMIK and the EULEX-Kosovo Mission, the Appeals Chamber concluded that the latter was best placed to provide the necessary guarantees of compliance with the prescribed conditions of provisional release (see para. 11).   

9. The Appeals Chamber recalls that the specificity of provisional release at the post-trial stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that “special circumstances exist warranting such release”.[1] For reasons described in paragraph 2 above, the Appeals Chamber will consider that, for the purposes of this decision, the appellate proceedings in this case are pending before it. In such situations, the Appeals Chamber has concluded that special circumstances related to humane and compassionate considerations exist where there is an acute justification, such as the applicant’s medical need or a memorial service for a close family member.[2] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[3] The Appeals Chamber has also emphasized that “the fact that some accused have been granted provisional release for comparable reasons pending their trial cannot be automatically applied by analogy to persons who have already been convicted by a Trial Chamber and who are seeking provisional release pending the appellate proceedings.[4] Finally, because “the notion of acute justification [is] inextricably linked to the scope of special circumstances which could justify provisional release on compassionate grounds at the appellate stage”, justifications such as wanting to spend time with family have explicitly not been recognized as special circumstances under Rule 65(I)(iii) of the Rules.[5]

Lazarević’s provisional release was extended twice, on 24 June 2009 and 14 July 2009, on the ground all the requirements under Rule 65(I) of the Rules continued to be met. Lazarević’s third request for extension was dismissed on 4 August 2009 for lack of showing the existence of special circumstances under Rule 65(I)(iii), and of acute justification in particular. All three decisions have reiterated that the criteria required for granting a request for provisional release apply mutatis mutandis to a motion for its extension.

9. The Appeals Chamber has previously stated that “[t]he first element of gaining access to confidential material is not considered particularly onerous”.[1] […] The Appeals Chamber understands that Karadžić is seeking access to all inter partes confidential material in the Dragomir Milošević case and is satisfied that Karadžić has identified the material sought with sufficient particularity.

28. The Appeals Chamber considers 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, such as, for example, the complexity of the case, the number of counts and charges, the gravity of the crimes charged, the individual circumstances of the accused, the status and scale of the Prosecution’s disclosure, and the staffing of the Defence team.[1] Ngirabatware’s comparison with other cases therefore provides very limited, if any, assistance. Likewise, the Appeals Chamber considers that Ngirabatware’s argument premised on the principle of equality of arms is ill-founded; the issue is not whether the parties had the same amount of time to prepare their respective cases, but rather if either party, and in particular the accused, is put at a disadvantage when presenting its case.[2] The principle of equality of arms invoked by Ngirabatware should not be interpreted to mean that the Defence is entitled to the exact same means as the Prosecution.

22. The Appeals Chamber recalls that Trial Chambers enjoy considerable discretion in the conduct of the proceedings before them,[1] including in the scheduling of trials.[2] However, this discretion finds its limitation in the obligation imposed on Trial Chambers by Articles 19 and 20 of the Tribunal’s Statute (“Statute”) to ensure that a trial is fair and expeditious. 

23. In the Decision Setting the Trial Date, the Trial Chamber duly recalled the right of an accused to a fair trial within a reasonable time and pointed out its obligation to balance the need for the accused to have adequate time for the preparation of his case and the need for an expeditious trial.[3] It also correctly pointed out that “[i]n arriving at a decision regarding the scheduling of the trial, the Chamber considers all the relevant factors and appropriate concerns”.[4] However, the Appeals Chamber observes that nothing in the Impugned Decisions indicates that the Trial Chamber indeed did so.

24. The Trial Chamber reached its conclusion that there was no justification to vacate the original trial date and set the 18 May 2009 trial date[5] without expressly addressing Ngirabatware’s concerns as to the fairness of his trial or any of the relevant factors. While the Trial Chamber mentioned issues related to the staffing of the Defence team, it omitted to discuss the impact of the staffing situation of the Defence team on the Defence’s ability to prepare for trial within the available time.[6] Instead, the Trial Chamber merely stated that it “expected that the staffing position of the Defence team will be addressed and completed in a timely manner”.[7] Nowhere in the Impugned Decisions did the Trial Chamber consider the decisive question as to whether the time for preparation available to the Defence was objectively adequate to permit Ngirabatware to prepare his case in a manner consistent with his rights.

27. The Appeals Chamber finds that the Trial Chamber erred in failing to address the factors relevant to its making a fully informed and reasoned decision as to whether the setting of the 18 May 2009 trial date infringed Ngirabatware’s right to a fair trial, in particular his right to have adequate time for the preparation of his defence provided for in Article 20(4)(b) of the Statute.