558. […] the Appeals Chamber recalls that although the identity of a victim is information that is valuable to the preparation of a defence,[1] convictions may be entered for unidentified victims[2] […]

150. As set out above, the Trial Chamber did not make explicit findings sufficient, on their face, to enter convictions against Markač based on the two alternate modes of liability deemed relevant by the Appeals Chamber.[1] In the absence of such findings, and considering the circumstances of this case, including the full context of the arguments presented by the parties at trial and on appeal, the Appeals Chamber, Judge Agius dissenting, declines to analyse the Trial Chamber’s remaining findings and evidence on the record in order to determine whether Markač’s actions were sufficient to satisfy the elements of alternate modes of liability. To undertake such an investigation in this case would require the Appeals Chamber to engage in excessive fact finding and weighing of evidence and, in so doing, would risk substantially compromising Markač’s fair trial rights.

151. More specifically, the Appeals Chamber recalls that JCE and unlawful artillery attacks have been the central issues in the parties’ arguments since the beginning of this case. The Prosecution’s Pre-Trial[2] and Final Trial[3] Briefs consistently focus on the existence of unlawful attacks and a JCE.[4] On appeal, the Prosecution devoted a single footnote to alternate modes of liability in each of its response briefs[5] and referred to the matter only briefly during oral arguments.[6]

152. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, also notes that JCE and unlawful artillery attacks underpin all of the material findings of the Trial Judgement. Indeed, the Trial Chamber emphasised its focus on JCE by explicitly declining to enter findings on the Appellants’ culpability under alternate modes of liability pled in the Indictment.[7] The Trial Chamber underscored its dependence on unlawful artillery attacks by relying on these attacks as a prism through which to interpret the Appellants’ other relevant actions, explicitly stating that it was considering the Appellants’ actions “[i]n light” of its finding that they had ordered unlawful artillery attacks.[8] More broadly, the Trial Chamber repeatedly recalled the existence of unlawful attacks in framing its discussion of Markač’s liability.[9]

153. In these circumstances, any attempt by the Appeals Chamber to derive inferences required for convictions under alternate modes of liability would require disentangling the Trial Chamber’s findings from its erroneous reliance on unlawful artillery attacks, assessing the persuasiveness of this evidence, and then determining whether Markač’s guilt was proved beyond reasonable doubt in relation to the elements of a different mode of liability. Such a broad-based approach to factual findings on appeal risks transforming the appeals process into a second trial. 

154. The Appeals Chamber observes that in the context of this case, drawing the inferences needed to enter convictions based on alternate modes of liability would also substantially undermine Markač’s fair trial rights, as he would not be afforded the opportunity to challenge evidence relied on by the Appeals Chamber to enter additional convictions. The Appeals Chamber notes that Markač was provided the opportunity to discuss whether the Trial Chamber’s findings implicate alternate forms of liability.[10] However the scope of this additional briefing did not extend to challenging evidence presented to the Trial Chamber.[11] Even if the Appeals Chamber had exceptionally authorised Markač to challenge evidence not related to his convictions, the very large scale of potentially relevant evidence on the record would render any submissions by Markač voluminous and speculative. In addition, Markač would almost certainly have been left uncertain about the scope of the case against him on appeal.[12]

1096. The Appeals Chamber recalls that the choice of remedy lies within its discretion, in light of Article 25 of the Statute.[1] Accordingly, in the interests of fairness to Stanišić and Župljanin, balanced with considerations of public interest and the administration of justice, and taking into account the nature of the offences and the circumstances of the case at hand, the Appeals Chamber finds it appropriate to refrain from entering new convictions on appeal for these crimes.[2]

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.

64. The Appeals Chamber further recalls that it is bound to interpret the Statute and the Rules of the Mechanism in a manner consistent with the jurisprudence of the ICTR and the ICTY.[1] Mindful of its obligation in this regard, the Appeals Chamber observes that the elements of the “alternative finding procedure”, as defined by the Trial Chamber, appear to circumvent certain statutory guarantees afforded to all accused appearing before the Mechanism. In particular, the Trial Chamber’s conclusion that Kabuga’s attendance would be unnecessary in the course of the “alternative finding procedure” appears incompatible with the plain reading of Article 19(4)(d) of the Statute, which provides accused appearing before the Mechanism with the right to be tried in their presence. Binding jurisprudence has interpreted this statutory guarantee to mean that an accused has the right to be physically present at trial.[2] The Appeals Chamber has emphasized that the accused’s right to be tried in his or her presence is an “indispensable cornerstone of justice” and that the physical presence of an accused before the court, as a general rule, is one of the most basic and common precepts of a fair criminal trial.[3]

65. The Appeals Chamber is cognizant that the right of an accused to be present at trial is not absolute as it may be waived or forfeited by the accused or otherwise restricted based on substantial trial disruptions on the part of an accused that are unintentional in nature.[4] However, in assessing a particular limitation on the right of an accused to be physically present, trial chambers are required to take into account the proportionality principle, pursuant to which any restriction of a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.[5] The Appeals Chamber considers that, under the Mechanism’s legal framework, this assessment can be made only in relation to an accused who is fit to stand trial.[6] For to continue a trial against an unfit accused is to deny him or her the statutory guarantee to be tried in his or her presence.[7] Indeed, the Appeals Chamber of the ICTY and the ICTR has cautioned against holding proceedings in the absence of an accused falling under the primary jurisdiction of the ad hoc tribunals, unless the accused has waived his or her right to be present.[8] Combined with the inability of an unfit accused to instruct counsel,[9] the jurisprudence is clear that the prejudice to an accused resulting from continuing the trial, while he or she is unfit to stand, would amount to a miscarriage of justice.[10]

66. The Appeals Chamber further notes that, under the “alternative finding procedure”, the Prosecution would be required to prove beyond reasonable doubt both the actus reus and mens rea of the charged crimes without, however, the possibility of Kabuga being convicted.[11] The Appeals Chamber recalls that, under Rule 104 of the Rules, upon completion of the presentation of the parties’ cases, a trial chamber must deliberate and decide separately on each charge contained in the indictment on whether it is satisfied that guilt has been proven beyond reasonable doubt, and shall impose a sentence in respect of each finding of guilt if it finds the accused guilty on one or more of the charges. As the Appeals Chamber has previously held, the textual and contextual interpretation of the Rules supports the principle that once a charge is proven beyond a reasonable doubt, a finding of guilt follows.[12] The jurisprudence is clear that “a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[13] The “alternative finding procedure”, as delineated by the Trial Chamber, appears incompatible with this requirement. In addition, while the difference between a trial resulting in a conviction and proceedings in which all elements of the offence are proven but no conviction entered may appear marginal on its face, the second scenario essentially runs counter to the prohibition of holding trials in absentia.[14] The Appeals Chamber recalls that trials in absentia were intentionally excluded from the statutory framework of the Mechanism and its predecessor tribunals.[15]

67. The incompatibility of the “alternative finding procedure” with the existing Mechanism’s legal framework is also highlighted by the potential consequence that, if Kabuga were to be found responsible for the charged crimes but not convicted, he would be precluded from challenging such finding on appeal or from seeking a review. Significantly, under Articles 23 and 24 of the Statute, such remedies are afforded only to convicted persons and the Prosecution. It is uncertain in these circumstances how, under the “alternative finding procedure”, the accused’s right to an effective remedy would be ensured.[16] […]