2853. […] [T]he Appeals Chamber notes that, in assessing Stojić’s JCE III responsibility for thefts in Gornji Vakuf and Mostar and sexual assault in Mostar, the Trial Chamber referred to a higher standard of foreseeability, i.e. whether it was foreseeable to him that these crimes would occur and that he willingly took that risk.[1] The Appeals Chamber recalls, however, that the mens rea for JCE III is whether it was foreseeable to the accused that such a crime might be committed and that he willingly took that risk.[2]

See also, for example, paras. 2884, 2902.

3023. The Appeals Chamber further recalls that: […] (2) it should be assumed that the words used in a trial judgement accurately describe the approach adopted by the trial chamber;[1] and (3) when a trial chamber uses language that does not necessarily reflect the correct legal standard, it should be examined whether a trial chamber applied the correct legal principles to the facts of the case.[2]

3172. […] The Appeals Chamber […] recalls that in order to incur liability under Article 7(3) of the Statute […] “physical perpetrators of crimes can be identified by category in relation to a particular crime site”.[1] […]

3203. Pursuant to Article 24 of the Statute and Rule 101 of the Rules, a trial chamber must take into account the following factors in sentencing: (1) the gravity of the offence or totality of the culpable conduct; (2) the individual circumstances of the convicted person; (3) the general practice regarding prison sentences in the courts of the former Yugoslavia; and (4) aggravating and mitigating circumstances.[1]

3328. The Appeals Chamber understands Stojić, Petković,  Ćorić, and Pušić to argue that the Trial Chamber misinterpreted Rule 101(C) of the Rules, to the extent that they contend that provisional release periods – under, allegedly, restrictive conditions amounting to a deprivation of liberty, including home confinement – should be included in calculations of time spent in detention.[…].

[…]

3332. With regard to ICTY case-law, the Appeals Chamber notes that Stojić, Petković,  Ćorić, and Pušić rely on, inter alia, the Blaškić Decision on Rule 64 [Prosecutor v. Tihomir Blaškić , Case No. IT-95-14-T, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, 3 April 1996].[1] The Appeals Chamber, Judge Liu dissenting, observes that the Blaškić case is distinguishable from the situations of Stojić, Petković, Ćorić, and Pušić, in that Blaškić was not provisionally released pursuant to Rule 65 of the Rules, but detained at a place other than the UNDU in accordance with Rule 64 of the Rules.[2] In this context, the President of the Tribunal stated that house arrest – within the meaning of Rule 64 of the Rules – is a form of detention “for all purposes including […] the right to have the period spent under house arrest taken into account for determining the penalty”.[3] The Appeals Chamber considers that it is clear that such form of detention amounts to “detention in custody”, thus credit was given pursuant to Rule 101(C) of the Rules.[4]

3333. The Appeals Chamber observes that in the Miroslav Tadić case, the President stated that the “conditions of provisional release, however restrictive, ₣…ğ cannot give rise to an expectation that the time spent on provisional release would be later considered as time served”.[5] In the Milan Simić case, the trial chamber also found that no credit should be given for time spent on provisional release in light of the fact that Simić’s provisional release did not amount to “detention in custody” given that, albeit with certain limitations, he was allowed to leave his house.[6]

3334. The Appeals Chamber further observes that in the Popović et al. case, the trial chamber stated that, pursuant to Rule 101(C) of the Rules, Drago Nikolić, Ljubomir Borovčanin, and Vinko Pandurević were entitled to credit for the period, including the days when they were on “custodial release”,[7] and were subject to stringent conditions – i.e. the accused remained in constant custody of a designated state authority and were required to, inter alia, spend all nights at a detention facility.[8] That trial chamber’s approach indicates that such release amounted to “detention in custody” pursuant to Rule 101(C) of the Rules.[9] Conversely, but in the same case, when it came to Radivoje Miletić and Milan Gvero who were granted provisional release several times under such conditions as confinement in a designated geographic area, surrender of their passports, regular reporting to designated police stations, and prohibition of contact with individuals or the media,[10] the trial chamber did not give credit for the period of provisional release.[11]

3335. The Appeals Chamber, Judge Liu dissenting, thus considers that the Tribunal’s practice shows that when an accused has been provisionally released, no credit will be given for the time spent on provisional release and that custodial release ordered in the Popović et al. case is distinct from provisional release. Taking into account the Tribunal’s practice, the Appeals Chamber now turns to Stojić’s, Petković’s, Ćorić’s, and Pušić’s arguments on restrictions, including home confinement, during their provisional releases.

3336. The Appeals Chamber observes that the conditions imposed upon Stojić, Petković, Ćorić, and Pušić included permanent or partial surveillance by the Croatian authorities, confinement in a designated geographic area, surrender of their passports, regular reporting to designated police stations, prohibition of contact with individuals or the media, and situation reporting.[12] It further observes that in some instances, in view of the circumstances of the case and the advanced stage of the proceedings, the Trial Chamber: (1) imposed on Stojić and Petković home confinement;[13] and (2) imposed on Ćorić and Pušić such conditions as home confinement or confinement in designated places when they were provisionally released for medical treatment or confidential reasons that justified Pušić’s release.[14] It observes that the Trial Chamber deemed that all of these conditions were necessary in order to ensure their compliance with the requirements under Rule 65 of the Rules, including their appearance at trial.[15] Taking into account these particular circumstances and bearing in mind the Tribunal’s practice discussed above, the Appeals Chamber, Judge Liu dissenting in part, considers that the conditions imposed on Stojić, Petković, Ćorić, and Pušić fall short of being tantamount to detention in custody. […]

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CONSIDERING that standby counsel shall have access to the inter partes record of the appeal proceedings in order to prepare for the hearing;

14.     The Appeals Chamber recalls the generally accepted principle that the interpretation and implementation of protective measures should be the least restrictive necessary to provide for the protection of victims or witnesses.[1]

15.     […] the Appeals Chamber observes that the contested language releases the Mechanism and the WISP from accountability for any moral or material prejudice the witness might suffer whether he or she consents to the interview or does not and, therefore, prima facie, it neither encourages nor discourages a witness from consenting to an interview.[2] In addition, Kamuhanda’s contention that the impugned provision necessarily discouraged the witness from agreeing to an interview is not supported by Witness GEK’s explanation for not consenting to the interview. Witness GEK declined the request for the interview not because of the contested language, having to express an understanding that the witness could not hold the Mechanism responsible for his or her decision, but rather because of fears for safety.[3] […]

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CONSIDERING that the Rules require the holding of a status conference at regular intervals only at the pre-trial stage of the proceedings following the initial appearance of the accused[1] and pending appeal if a convicted person is in custody following the filing of a notice of appeal;[2]

CONSIDERING that, in the absence of an express requirement in the Rules, a status conference or other procedural hearing may be held by a judge or a Chamber if it is in the interests of justice or required for the proper preparation of the hearing;

CONSIDERING that Ngirabatware has not shown that a status conference is necessary because he does not identify any specific issue that he wishes to raise in relation to his mental or physical condition or in relation to the preparation of the review hearing;[3]

CONSIDERING that the conditions of detention of the detainees under the authority of the Mechanism at the United Nations Detention Facility in Arusha are supervised by the President and that, therefore, there is a separate avenue for raising concerns in relation to the detainees’ mental and physical condition;[4]

Pages 1-3

CONSIDERING that Šešelj has the right to be present at the upcoming hearing and that his presence is required;

CONSIDERING that Šešelj may waive his right to appear before the Appeals Chamber only if his interests are represented by counsel;

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, if Šešelj is unable to travel to The Hague for the hearing, he may request, pursuant to Rule 96 of the Rules, to participate therein by way of video-conference link;

10.     The Appeals Chamber accepts Niyitegeka’s argument that, at the time he filed the Request for Certification, it was not clear that he was entitled to appeal as of right the Decision of 29 January 2016, which was issued, in part, on the basis of Rules 73 and 86 of the Rules [of Procedure and Evidence of the Mechanism (“”Rules”)]. The Appeals Chamber recalls that the Appeals Chamber of the ICTR had ruled in Niyitegeka’s case that Rule 73 of the ICTR Rules concerning the requirement of certification prior to appeal applies only to interlocutory appeals during an applicant’s proceedings before a trial chamber and had held that an applicant is entitled to appeal as of right a decision pursuant to Rule 75(G) of the ICTR Rules rendered by another trial chamber after the close of that applicant’s trial and appeal proceedings.[1] Subsequently, Rule 75 of the ICTR Rules – the equivalent of Rule 86 of the Rules – was amended to provide for an express right of appeal of decisions taken under that rule when issued after the conclusion of an applicant’s trial proceedings.[2] However, Rule 86 of the Rules does not provide the same express right of appeal of decisions issued under it after the close of trial proceedings. In addition, only after Niyitegeka filed his Request for Certification did the Appeals Chamber clarify that the requirement of certification to appeal is not applicable to decisions under Rule 86 of the Rules rendered after the close of an applicant’s trial and appeal proceedings and that there lies a right of appeal in such circumstances.[3]

[…]

12.     […] [T]he Appeals Chamber clarifies that an appeal lies as of right of any decision taken under Rule 73 of the Rules by a single judge or trial chamber after an applicant’s trial and appeal proceedings have concluded. This is necessary to give full effect to the continuous obligation imposed upon the Prosecution by Rule 73(E) of the Rules to disclose exculpatory material after the completion of trial and any subsequent appeal.[4]