122. The Appeals Chamber recalls that it has found, Judge Afanđe dissenting, that the Trial Chamber erred in law in failing to make the necessary findings on the existence and scope of a common criminal purpose shared by a plurality of persons.[1] The Appeals Chamber further recalls that it has found, Judge Agius and Judge Afanđe dissenting, that the Trial Chamber erred in requiring that the acts of the aider and abettor be specifically directed to assist the commission of a crime.[2] In accordance with the well-established standard of appellate review, where the Appeals Chamber finds an error of law in the trial judgement arising from the application of a wrong legal standard, the Appeals Chamber will articulate the correct legal standard and review the relevant factual findings of the trial chamber accordingly.[3]

123. In light of the nature and scale of the errors of law identified by the Appeals Chamber in this case, Judge Agius dissenting with respect to the Error on Aiding and Abetting Liability and Judge Afanđe dissenting with respect to the Error on JCE Liability and the Error on Aiding and Abetting Liability, were the Appeals Chamber to conduct its own review of the relevant factual findings of the Trial Chamber, applying the correct legal standards, it would first have to turn to the Error on JCE Liability and make findings on the existence and scope of a common criminal purpose shared by a plurality of persons and then proceed to assess Stanišić’s and Simatović’s contribution and intent for JCE liability. Depending on the result of such an analysis, the Appeals Chamber might then have to turn to the Error on Aiding and Abetting Liability.

124. However, the Appeals Chamber, Judge Afanđe dissenting, is of the view that it would be inappropriate to conduct this analysis as it would have to analyse the entire trial record without the benefit of having directly heard the witnesses in order to determine whether it is itself satisfied with respect to the requirements of JCE liability and, depending on the result of such an analysis, with respect to the requirements of aiding and abetting liability. Indeed, the evidence on which the Prosecution relies to establish the common criminal purpose and the mens rea for JCE liability is of a circumstantial nature[4] and it would not be sufficient for the Appeals Chamber to focus on limited pieces of evidence or the existent findings in the Trial Judgement, which do not thoroughly address the evidence relevant to the common criminal purpose or the plurality of persons.[5] In this regard, the Appeals Chamber also notes the scale and complexity of the case, with a trial record containing 4,843 exhibits[6] and the testimony and/or written statements of 133 witnesses,[7] the contents of which span wide swaths of Croatia and Bosnia and Herzegovina over a four and a half year time period (April 1991 – 31 December 1995) and pertain to multiple statutory crimes, numerous armed groups, and various high-ranking alleged JCE members.[8] Assessing this trial record in its entirety without having directly heard the witnesses would not allow the Appeals Chamber to fairly and accurately determine Stanišić’s and Simatović’s criminal responsibility.

125. In light of the above, in determining the subsequent course of action, the Appeals Chamber may exercise a certain discretion.[9] In accordance with Rule 117(C) of the Rules, the Appeals Chamber may order a retrial in appropriate circumstances.[10] In addition, the Appeals Chamber also has an inherent power to control its proceedings in such a way as to ensure that justice is done by remitting limited issues to be determined by either the original or a newly composed trial chamber.[11]

126. The Appeals Chamber notes that, of the three judges of the original Trial Chamber, who directly heard the witnesses at trial, Judge Picard and Judge Gwaunza no longer hold office at the Tribunal. Therefore, it is impractical to remit the case to the original Trial Chamber composed of the same three Judges, who would have been best placed to make the necessary findings on the basis of the original trial record. Should the case be remitted to a newly composed trial chamber to do this exercise solely on the basis of the original trial record, it would encounter similar difficulties to those which would be encountered by the Appeals Chamber as a result of not having directly heard the witnesses.

127. Accordingly, and recalling that an appeal is not a trial de novo,[12] the Appeals Chamber, Judge Afanđe dissenting, finds that this case gives rise to appropriate circumstances for a retrial pursuant to Rule 117(C) of the Rules. The Appeals Chamber stresses that an order for retrial is an exceptional measure to which resort must necessarily be limited. While the Appeals Chamber is well aware that Stanišić and Simatović have spent nearly five years and four years and eight months, respectively, in detention, it is of the view that the alleged offences are of the utmost gravity and considers, Judge Afanđe dissenting, that, in the circumstances of this case, the interests of justice would not be well served if a retrial were not ordered.