On 5 May 2009, the Appeals Chamber issued a judgement which, inter alia, upheld the conviction of Veselin Šljivančanin (“Šljivančanin”) for aiding and abetting torture as a violation of the laws or customs of war and added, Judges Pocar and Vaz dissenting, a new conviction for aiding and abetting murder as a violation of the laws or customs of war. The new conviction was based in part on the Appeals Chamber’s new factual findings concerning a conversation between Šljivančanin and Mile Mrkšić (“Conversation”).[1]

In an application for review filed on 28 January 2010,[2] Šljivančanin asserted that Miodrag Panić was prepared to offer testimony that invalidated Šljivančanin’s conviction for aiding and abetting murder as a violation of the laws or customs of war, and that the content of the Conversation that would be the subject of this testimony constituted a “new fact” in the context of Rule 119 of the Rules of Procedure and Evidence of the Tribunal.

At pages 3 and 4, the Appeals Chamber stated:

CONSIDERING FURTHER that, although the Panić New Fact was discoverable through due diligence by Šljivančanin’s counsel, review of the Mrkšić and Šljivančanin Appeal Judgement is necessary because the impact of the Panić New Fact, if proved, is such that to ignore it would lead to a miscarriage of justice;

The Appeals Chamber addressed the Applicant’s submission that he was unlawfully detained in Croatia before being brought before the Tribunal and that this should have been taken into account as a mitigating factor in his sentence. After having found that this allegation did not constitute a new fact, the Appeals Chamber considered whether ignoring this allegation would amount to a miscarriage of justice and concluded for the negative.

31. Neither does the Appeals Chamber consider that ignoring the alleged new facts submitted by the Applicant would result in a miscarriage of justice. The Appeals Chamber finds that none of the alleged new facts submitted by the Applicant demonstrate that his detention by the Croatian authorities prior to 18 October 1999 should be impugned to the International Tribunal. The Trial Chamber was thus not under the obligation to take that detention into account as a mitigating factor in sentencing. In this regard, the Appeals Chamber notes that in a letter dated 21 May 1999, the Croatian authorities informed the International Tribunal that the Applicant had been detained in Croatia on the basis of serious charges unrelated to the crimes over which the International Tribunal has jurisdiction.[1] The Appeals Chamber considers that the Applicant has failed to substantiate his claims to the contrary.

20. The issue which the Appeals Chamber must now determine is whether the duty judge, had he not made the erroneous finding in relation to urgency, would have proceeded to grant the application for provisional release.  If the application would have been dismissed in any event, there can be no miscarriage of justice because it had been dismissed upon a wrong basis.  If a Trial Chamber acquits an accused upon a wrong basis (even a grossly unfair basis), but should have done so on another basis, there has been no miscarriage of justice, and the acquittal would not be reversed.[1]  In determining this issue, the Appeals Chamber is entitled to have regard to the events which have occurred following the duty Judge’s decision.