Presumption of effective control
| Notion(s) | Filing | Case |
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| Appeal Judgement - 22.04.2008 |
HADŽIHASANOVIĆ & KUBURA (IT-01-47-A) |
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20. In Čelebići, the Appeals Chamber underscored that effective control is the ultimate standard and that a showing of effective control is required in cases involving both de jure and de facto superiors.[1] The Appeals Chamber further noted: In determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles. […] In general, the possession of de jure power in itself may not suffice for the finding of command responsibility if it does not manifest in effective control, although a court may presume that possession of such power prima facie results in effective control unless proof to the contrary is produced.[2] 21. Even when a superior is found to have de jure authority over his subordinates, the Prosecution still has to prove beyond reasonable doubt that this superior exercised effective control over his subordinates, unless the accused does not challenge having exercised such control.[3] By holding that “a court may presume that possession of [de jure] power prima facie results in effective control”,[4] the Appeals Chamber in Čelebići did not reverse the burden of proof. It simply acknowledged that the possession of de jure authority constitutes prima facie a reasonable basis for assuming that an accused has effective control over his subordinates. Thus, the burden of proving beyond reasonable doubt that the accused had effective control over his subordinates ultimately rests with the Prosecution. [1] Čelebići Appeal Judgement, para. 196. See also para. 256 (“[t]he concept of effective control over a subordinate – in the sense of a material ability to prevent or punish criminal conduct, however that control is exercised – is the threshold to be reached in establishing a superior-subordinate relationship for the purpose of Article 7(3) of the Statute”); para. 266 (“[C]ustomary law has specified a standard of effective control”); Halilović Appeal Judgement, para. 59. [2] Čelebići Appeal Judgement, para. 197. [3] Depending on the circumstances of the case, a finding that an accused had de jure authority will not necessarily lead to the conclusion that he had effective control over his subordinates. In Blagojević, for example, the Trial Chamber found that Vidoje Blagojević was in command and control of all units of the Brutanac Brigade. This conclusion reflected its assessment of his de jure authority over all the members of the brigade, including Momir Nikolić (Blagojević and Jokić Trial Judgement, para. 419). The Trial Chamber however concluded that, in light of the actual facts on the ground, Vidoje Blagojević lacked effective control over Momir Nikolić (Blagojević and Jokić Trial Judgement, para. 795). The Appeals Chamber in Blagojević found that it did not consider the conclusions regarding the scope of Vidoje Blagojević’s authority irreconcilable with the finding that he did not exercise effective control over Momir Nikolić (Blagojević Appeal Judgement, para. 302). See also Halilović Appeal Judgement, para. 85 (the Appeals Chamber held that “de jure power is not synonymous with effective control” and that “the former may not in itself amount to the latter”). [4] Čelebići Appeal Judgement, para. 197. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 03.07.2008 |
ORIĆ Naser (IT-03-68-A) |
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91. It is well established that the Prosecution must prove effective control beyond reasonable doubt in establishing a superior-subordinate relationship within the meaning of Article 7(3) of the Statute.[1] For that purpose, de jure authority is not synonymous with effective control.[2] Whereas the possession of de jure powers may certainly suggest a material ability to prevent or punish criminal acts of subordinates, it may be neither necessary nor sufficient to prove such ability.[3] If de jure power always results in a presumption of effective control, then the Prosecution would be exempted from its burden to prove effective control beyond reasonable doubt.[4] The Appeals Chamber is therefore unable to agree with the Prosecution’s proposed legal presumption. 92. The Appeals Chamber acknowledges that its jurisprudence might have suggested otherwise, using the terms “presume” or “prima facie evidence of effective control”.[5] The import of such language has not always been clear. Although in some common law jurisdictions “prima facie evidence” leads by definition to a burden-shifting presumption,[6] the Appeals Chamber underscores that before the International Tribunal the Prosecution still bears the burden of proving beyond reasonable doubt that the accused had effective control over his subordinates.[7] The possession of de jure authority, without more, provides only some evidence of such effective control. Before the International Tribunal there is no such presumption to the detriment of an accused. [1] As most recently recalled in Hadžihasanović and Kubura Appeal Judgement, para. 20. [2] Halilović Appeal Judgement, para. 85. [3] See Halilović Appeal Judgement, para. 85: “In fact, [de jure power] may not in itself amount to [effective control].” Cf. also Nahimana et al. Appeal Judgement, paras. 625 and 787, fn. 1837. [4] See Hadžihasanović and Kubura Appeal Judgement, para. 21. [5] Čelebići Appeal Judgement, para. 197; Hadžihasanović and Kubura Appeal Judgement, para. 21 [6] See Brian Garner, ed., Black’s Law Dictionary, 8th ed. (St. Paul: Thomson West, 2004). [7] Hadžihasanović and Kubura Appeal Judgement, para. 21. |
ICTR Statute Article 6(3) ICTY Statute Article 7(3) | |