452. […] [A]djudicated facts, within the meaning of Rule 94(B) of the ICTY Rules, are presumptions and are not equivalent to untested evidence requiring sufficient corroboration to be relied upon in support of conviction.[1] Specifically, the Appeals Chamber recalls the jurisprudence of the ICTY Appeals Chamber that “by taking judicial notice of an adjudicated fact, a [trial] [c]hamber establishes a well-founded presumption for the accuracy of this fact, which therefore does not have to be proven again at trial, but which, subject to that presumption, may be challenged at that trial.”[2] Requiring corroboration of adjudicated facts after their admission would undermine the judicial economy function served by taking judicial notice of adjudicated facts,[3] as judicial notice under Rule 94(B) of the ICTY Rules relieves the Prosecution of the initial burden of producing evidence on such facts.[4] Moreover, adjudicated facts may relate to the existence of a joint criminal enterprise, the conduct of its members other than the accused, and facts related to the conduct of physical perpetrators of crimes for which an accused is alleged to be responsible.[5] In this context, trial chambers, after having reviewed the record as a whole, may rely on adjudicated facts to establish the underlying crime base when making findings in support of convictions.[6]

143. The Appeals Chamber turns […] to Karadžić’s contentions concerning the decisions denying […] his request to subpoena the Eight Witnesses. These decisions relate to the general conduct of the trial, which are matters that fall within the discretion of the trial chamber.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed discernible error resulting in prejudice to that party.[2]

See also paras. 230, 276, 330.

[…]

148. […] [T]he Appeals Chamber observes that Rule 54 of the ICTY Rules provides, inter alia, that a trial chamber may issue subpoenas “as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial”. In interpreting this provision, the Appeals Chamber of the ICTY has stated:

The applicant seeking a subpoena must make a certain evidentiary showing of the need for the subpoena. In particular, he must demonstrate a reasonable basis for his belief that the prospective witness is likely to give information that will materially assist the applicant with respect to clearly identified issues in the forthcoming trial. To satisfy this requirement, the applicant may need to present information about such factors as the position held by the prospective witness in relation to the events in question, any relationship the witness may have had with the accused which is relevant to the charges, any opportunity the witness may have had to observe or to learn about those events, and any statements the witness made to the Prosecution or others in relation to them. The Trial Chamber is vested with discretion in determining whether the applicant succeeded in making the required showing, this discretion being necessary to ensure that the compulsive mechanism of the subpoena is not abused. As the Appeals Chamber [of the ICTY] has emphasized, “[s]ubpoenas should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction.”

In deciding whether the applicant has met the evidentiary threshold, the Trial Chamber may properly consider both whether the information the applicant seeks to elicit through the use of subpoena is necessary for the preparation of his case and whether this information is obtainable through other means. The background principle informing both considerations is whether, as Rule 54 requires, the issuance of a subpoena is necessary “for the preparation or conduct of the trial.” The Trial Chamber’s considerations, then, must focus not only on the usefulness of the information to the applicant but on its overall necessity in ensuring that the trial is informed and fair.[3]

The Appeals Chamber adopts this interpretation.[4]

See also para. 277.

449. The Appeals Chamber recalls that under Article 21(4)(e) of the ICTY Statute an accused has the right to examine, or have examined, the witnesses against him. In relation to challenges to a trial chamber’s reliance on evidence admitted pursuant to Rule 92 bis of the ICTY Rules when the defendants did not have an opportunity to cross-examine the witness, the Appeals Chamber of the ICTY stated:

[A] conviction may not rest solely, or in a decisive manner, on the evidence of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial. This principle applies “to any fact which is indispensable for a conviction”, meaning “the findings that a trier of fact has to reach beyond reasonable doubt”. It is considered to “run counter to the principles of fairness […] to allow a conviction based on evidence of this kind without sufficient corroboration”.[1]

The Appeals Chamber adopts this statement of the law.

[…]

458. […] The Appeals Chamber recalls that the principle that no conviction can rest solely or decisively on untested evidence without sufficient corroboration stems from the fundamental right of the accused to examine, or have examined, the witnesses against him, which is enshrined in Article 21(4)(e) of the ICTY Statute.[2] As Karadžić alleges a violation of his fair trial rights, he must demonstrate that such a violation occurred and show that it caused prejudice amounting to an error of law invalidating the trial judgement.[3]

See also paras. 460 to 473.

474. […] [T]he Appeals Chamber finds, Judges Joensen and de Prada dissenting, that Karadžić has established that the Trial Chamber violated his fundamental right to examine, or have examined, the witnesses against him under Article 21(4)(e) of the ICTY Statute by convicting him after having impermissibly relied solely or decisively on untested evidence in reaching findings in relation to Scheduled Incidents C.27.5, B.20.4, and E.11.1 as well as Scheduled Incident B.13.1 with respect to the killing of one detainee in Kula prison and Scheduled Incident C.22.5 in relation to the mistreatment of two Muslim men at the Magarice military facility. The Appeals Chamber finds that such violations prevented Karadžić from testing evidence related to these specific events which the Trial Chamber relied upon in convicting him. This has resulted in material prejudice invalidating the judgement to the extent that his convictions are based upon these findings. The Appeals Chamber, Judges Joensen and de Prada dissenting, considers that the only appropriate remedy is to set aside, in part, Karadžić’s convictions to the extent they rely on these findings. The impact, if any, such errors may have had on Karadžić’s sentence will be evaluated below.

See also paras. 475, 776, 777.

190. […] Both Rules 92 bis and 92 quater of the ICTY Rules concern the admission of written statements.[1] However, while Rule 92 bis of the ICTY Rules does not list the unavailability of a person to testify as a factor to consider in admitting written evidence, Rule 92 quater of the ICTY Rules specifically governs the admission of statements, including those in the form prescribed by Rule 92 bis of the ICTY Rules, of persons who are unable to testify, inter alia, “by reason of bodily or mental condition”.[2] […]

[…]

198. Rule 92 quater of the ICTY Rules permits the admission of written evidence from a person who is objectively unable to attend a court hearing, either because he is deceased or because of a physical or mental impairment.[3] An individual who is “theoretically able to attend” is not “unavailable” within the meaning of Rule 92 quater of the ICTY Rules.[4] […]

209. Rule 92 quater (A) of the ICTY Rules allows for the admission of a written statement or transcript from a person who subsequently died, provided that the trial chamber finds from the circumstances in which the statement was made and recorded that it is reliable. To be admissible under Rule 92 quater, the proffered evidence must be relevant and have probative value as provided in Rule 89(C) of the ICTY Rules.[1] In order to assess whether proposed evidence satisfies both prerequisites, consideration must be given to its prima facie reliability and credibility.[2] An item of evidence may be so lacking in terms of indicia of reliability that it is not “probative” and is therefore inadmissible.[3] The final evaluation of the reliability and credibility, and hence the probative value of the evidence, will only be made in light of the totality of the evidence in the case, in the course of determining the weight to be attached to it.[4]

210. […] [T]he Appeals Chamber recalls that the factors a trial chamber can consider in assessing whether an item of evidence has sufficient indicia of reliability to be admissible pursuant to Rule 92 quater of the ICTY Rules may vary[5] and that these have included the absence of manifest or obvious inconsistencies in a statement.[6] […]

211. […] [T]he Appeals Chamber reiterates that the assessment of admissibility criteria must be done with respect to each tendered document.[7]

252.  […] Rule 75(A) of the ICTY Rules provides that a trial chamber may order appropriate measures for the privacy and protection of victims and witnesses, provided that the measures are consistent with the rights of the accused, whereas Rule 75(F)(i) of the ICTY Rules requires a chamber to apply the protective measures ordered in prior ICTY proceedings mutatis mutandis to the proceeding before it unless and until they are rescinded, varied, or augmented.[1] Given these materially distinct considerations, the Trial Chamber’s continuation of protective measures for Prosecution witnesses pursuant to Rule 75(F)(i) of the ICTY Rules has no bearing on the exercise of its discretion in denying protective measures to Defence witnesses under Rule 75(A) of the ICTY Rules. […]

288. The Appeals Chamber recalls that Article 21(4)(g) of the ICTY Statute guarantees the fundamental right of an accused not to be compelled to testify against himself in the determination of any charge against him. Rule 90(E) of the ICTY Rules provides that a witness may object to making any statement which might tend to incriminate him and that a chamber may compel the witness to answer the question, in which case testimony compelled in this way will not be used as evidence in a subsequent prosecution against the witness for any offence other than false testimony. The ICTY Appeals Chamber has held that compelling an accused to testify in proceedings which do not involve the determination of the charges against him under Rule 90(E) of the ICTY Rules is not in itself inconsistent with the right not to incriminate oneself given the absolute prohibition on direct or indirect use of self-incriminating statements so compelled in the proceedings against him.[1] Compelling a witness to answer a question which may incriminate him in such circumstances remains within a trial chamber’s discretion.[2] This discretion, however, must be exercised consistently with Articles 20(1) and 21 of the ICTY Statute, which require trial chambers to ensure that trials are fair and conducted with full respect for the rights of the accused.[3]

321. The Appeals Chamber recalls that, pursuant to Rule 89(C) of the ICTY Rules, trial chambers have discretion to admit relevant evidence that has probative value.[1] The admissibility of evidence related to crimes committed by adversaries depends on the purpose for which it is adduced and whether it tends to refute allegations made in the indictment, while it is for the defence to clarify to the trial chamber the purpose of tendering such evidence.[2] In determining the admissibility of evidence, trial chambers enjoy considerable discretion and the Appeals Chamber must accord deference to their decisions in this respect.[3] The Appeals Chamber’s examination of challenges concerning a trial chamber’s refusal to admit material into evidence is limited to establishing whether the trial chamber abused its discretion by committing a discernible error.[4]

322. […] Considering that it is for the party tendering material to show the indicia of relevance required for it to be admissible under Rule 89(C) of the ICTY Rules,[5] […].

323. […] [C]onsidering that the criteria for admission of evidence set out in Rule 89(C) of the Rules are cumulative, that the tendering party bears the burden of showing that these are met, and the deference accorded to trial chambers on matters related to the admissibility of evidence,[6] […].

363. The Appeals Chamber will address Karadžić’s allegations in turn. Before doing so, the Appeals Chamber recalls that trial chambers have a broad discretion in weighing evidence[1] and are best placed to assess the credibility of a witness and the reliability of the evidence adduced.[2] In the context of the deference accorded to a trier of fact with respect to the assessment of evidence, it is within a trial chamber’s discretion, inter alia, to: (i) evaluate any inconsistencies that may arise within or among witnesses’ testimonies and consider whether the evidence taken as a whole is reliable and credible, and to accept or reject the fundamental features of the evidence;[3] (ii) decide, in the circumstances of each case, whether corroboration of evidence is necessary or to rely on uncorroborated, but otherwise credible, witness testimony;[4] and (iii) accept a witness’s testimony, notwithstanding inconsistencies between the said testimony and the witness’s previous statements, as it is for the trial chamber to determine whether an alleged inconsistency is sufficient to cast doubt on the evidence of the witness concerned.[5]

See also para. 530.

[…]

376. […] [T]he Appeals Chamber recalls that the mere assertion that the Trial Chamber failed to give sufficient weight to evidence or that it should have interpreted evidence in a particular manner is liable to be summarily dismissed.[6]

433. […] For liability under the third form of joint criminal enterprise, it is required that an accused had the intent to commit the crimes that form part of the common purpose of the joint criminal enterprise and to participate in a common plan aimed at their commission, as well as that it was foreseeable to him or her that a crime falling outside the common purpose might be perpetrated by any other member of the joint criminal enterprise, or one or more of the persons used by the accused or other members of the joint criminal enterprise to further the common purpose, and that the accused willingly took the risk that the crime might occur by joining or continuing to participate in the enterprise.[1] The Appeals Chamber recalls that the ICTY Appeals Chamber has consistently declined to apply a standard requiring foreseeability that the crime falling outside the common criminal purpose would “probably” be committed for liability under the third form of joint criminal enterprise to attach but recognized instead that the possibility that a crime could be committed must be sufficiently substantial.[2] The Appeals Chamber also reiterates that, although not bound by decisions of the ICTY and the ICTR Appeals Chambers, in the interests of legal certainty, it should follow such previous decisions and depart from them only for cogent reasons in the interests of justice.[3] This would be the case where the previous decision was decided on the basis of a wrong legal principle or was given per incuriam, that is, it was wrongly decided, usually because the judges were not well-informed about the applicable law.[4]

434. The Appeals Chamber observes that it is not bound by the findings of other courts – domestic, international, or hybrid – or by the extrajudicial writings, separate or dissenting opinions of its Judges, or by views expressed in academic literature.[5] On review of the judgement in [R v. Jogee; Ruddock v. The Queen (“Jogee”)], the Appeals Chamber does not find any cogent reason for departing from the Appeals Chamber’s well-established jurisprudence. The Supreme Court of the United Kingdom and Judicial Committee of the Privy Council in Jogee changed the mens rea applicable in England and Wales and the jurisdictions bound by the jurisprudence of the Privy Council for accessorial liability resulting from participation in a joint enterprise.[6] However, the form of individual criminal responsibility under the third type of joint criminal enterprise is “commission”, resulting in liability as a perpetrator, not as an accessory.[7] In this sense, Jogee is not directly on point. […]

 435. In addition, the Appeals Chamber does not find persuasive arguments that the shift in the law of England and Wales on this point warrants reconsideration and possible reversal of established appellate jurisprudence of the ICTY. Although the common law notion of liability due to participation in a joint enterprise may have been influential in the development of ICTY case law, Karadžić’s argument that the relevant principles in ICTY jurisprudence were derived from English law is not accurate. The ICTY Appeals Chamber in the Tadić case extensively examined a series of post-World War II cases from various domestic jurisdictions concerning war crimes and concluded that the relevant actus reus and mens rea for liability under the three forms of joint criminal enterprise were firmly established in customary international law.[8] With regard to the mens rea standard for the third form of joint criminal enterprise, it found that customary international law required that: (i) the accused could foresee that the crime not agreed upon in the common plan “might be perpetrated” by one or other members of the group; and (ii) the accused willingly took that risk.[9] It also clarified that, what was required was intent to pursue the common plan in addition to “foresight that those crimes outside the criminal common purpose were likely to be committed”.[10] Thus, while the ICTY Appeals Chamber in Tadić considered domestic case law in determining customary international law,[11] contrary to Karadžić’s claim, it found that the relevant principles were derived from customary international law, not the law of England and Wales.[12] A shift in the law of England and Wales and the jurisdictions bound by the Privy Council on this point therefore does not per se warrant the reversal of established appellate jurisprudence.

436. The ICTY Appeals Chamber in Tadić also assessed whether domestic legislation or case law could be relied upon as a source of international principles or rules under the doctrine of general principles of law recognized by the major legal systems of the world.[13] Its survey led it to conclude that, although the common purpose doctrine “was rooted in the national law of many States”, major domestic jurisdictions did not adopt a common approach with regard to the third form of joint criminal enterprise and that therefore “national legislation and case law cannot be relied upon as a source of international principles or rules” in this context.[14] The shift in the law in Jogee, which has not been followed in other common law jurisdictions,[15] confirms rather than undermines the conclusion in Tadić that different approaches at a domestic level reflect that domestic case law, in such circumstances, cannot be relied upon as a source of international principles.[16] The Appeals Chamber finds that the shift in Jogee does not provide a sufficient basis to revisit Tadić or the relevant mens rea standard as applied in established case law.