16. The Appeals Chamber does not agree with the Appellant that the participation of the Amicus Prosecutor would have the “incongruous effect of allowing a proxy of the Trial Chamber to defend on appeal the case that it has prosecuted on its behalf”.[1]  This argument is based upon the faulty premise that the Amicus Prosecutor and the Trial Chamber were one and the same entity.  Having been appointed by the Registrar, upon order of the Trial Chamber, the Amicus Prosecutor proceeded to prosecute the case on behalf of the Chamber without becoming an “agent” or “proxy” thereof.  Moreover, the Appeals Chamber has already stated that the participation of the Amicus Prosecutor would assist it in its consideration of the appeal.[2]

18. The Appeals Chamber notes that it is not uncommon for a party to challenge on appeal the actions of an opposing party during trial, and that such a challenge does not preclude the Appeals Chamber from presenting questions to the opposing party on appeal in relation to the actions being challenged. The Appeals Chamber thus finds no merit in the Appellant’s contention that the involvement of the Amicus Prosecutor in the Appeal proceedings would preclude the Defence and/or the Appeals Chamber from hearing evidence potentially relevant to this case.  Furthermore, the Appeals Chamber reminds the Appellant that the Appeals Chamber determines an appellant’s grounds of appeal after the Appeals Chamber has had the benefit of reviewing the submissions of both parties and hearing their oral arguments.  The Appeals Chamber accordingly finds no basis in the Appellant’s argument that allowing the Amicus Prosecutor to participate in the appeal proceedings would create the appearance that the Appeals Chamber condones the alleged improper contacts challenged under Ground 3 of the Appeal.

CONSIDERING that granting leave to make submissions under Rule 74 of the Rules is a matter within the discretion of the Appeals Chamber;[1]

CONSIDERING that the primary criterion in determining whether to grant leave to an amicus curiae to make submissions is whether this would assist the Appeals Chamber in its consideration of the appeal;[2]

At pages 3-4 of the Decision, the Appeals Chamber denied the application for leave to submit an amicus curiae brief.

CONSIDERING that, although the victims of Karadžić’s alleged crimes may have a valuable “human and historical” perspective to offer[1] and have “a special interest in seeing that history accurately records their suffering and the reasons they suffered”,[2] a proposed amicus curiae’s “contentious application of th[e] law to the facts of the case and its conclusions that the Trial Chamber erred in a number of areas is not helpful to the Appeals Chamber”;[3]

CONSIDERING that the Applicants’ proposed amicus curiae brief is not limited to questions of law, but provides interpretations of evidence and repeats the task undertaken by the Trial Chamber and the parties in their submissions on appeal;[4]

FINDING, therefore, that the proposed amicus curiae brief does not assist the Appeals Chamber in the determination of the present appeal and, thus, is not admissible under Rule 74 of the Rules;

17.    The Appeals Chamber notes that, pursuant to Rule 74 of the Rules of Procedure and Evidence (“Rules”), the Appeals Chamber may, “if it considers it desirable for the proper determination of the case”, invite submissions from an amicus curiae “on any issue specified by the Chamber”.  The Appeals Chamber further considers that, as was done in Slobodan Milošević, the Appeals Chamber can ask the amicus curiae to argue in favour of the interests of a particular party where this approach will serve the interests of justice.[1]

18.    As part of the choice to self-represent, Mr. Krajišnik must “accept[] responsibility for the disadvantages this choice may bring.”[2]   He is not entitled to amicus curiae.  Rather, the issue is whether, in being “particularly attentive to its duty of ensuring that the [appeal] be fair,”[3] the Appeals Chamber deems the appointment of amicus curiae to be warranted.  The Appeals Chamber considers that in this case the answer is yes.  The appointment of amicus curiae will not infringe on any rights of Mr. Krajišnik, such as the right to self-represent or the right to a speedy appeal.  Moreover, such an appointment will help ensure that the appeal is a fair one.  Of course, a fair appeal could well occur in the absence of amicus curiae, but this is an issue better judged with hindsight rather than with foresight.  Since Mr. Krajišnik is the first defendant seeking to self-represent on appeal, the Appeals Chamber deems it prudent to appoint amicus curiae to keep an eye on his interests.

19.    Accordingly, pursuant to Rule 74, the Appeals Chamber invites the participation of a particular amicus curiae to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests.  Amicus curiae is not requested to conduct any new factual investigations.  Rather, in light of the evidence at issue in the trial record, amicus curiae is to put forth grounds of appeal seeking reversal of convictions or reduction in sentence and to argue against grounds of appeal advanced by the Prosecution.  Amicus curiae is to work independently from Mr. Krajišnik. 

20.    The Appeals Chamber emphasizes that amicus curiae is not a party to the proceedings.[4]  The Appeals Chamber is therefore under no obligations to address all arguments raised by amicus curiae.  Rather, the Appeals Chamber will look to the arguments raised by amicus curiae in assessing whether the interest of justice requires the Appeals Chamber to consider, proprio motu, issues not raised in Mr. Krajišnik’s appeal or in his responses to the Prosecution’s appeal.

The Appeals Chamber also considered the status of an amicus curiae and the modalities of him participating in the appeal, paras 21-22:

21.    In the absence of other instructions from the Pre-Appeal Judge or the Appeals Chamber, amicus curiae is to make submissions to the Appeals Chamber similar to those which a party would make (including a notice of appeal, appeal brief, response brief, and reply brief) and pursuant to the requirements set out in the Rules and the relevant Practice Directions,[5] with one exception.  This exception is that the word counts for amicus curiae are limited to two-thirds of those available to the parties under the Practice Direction on the Length of Briefs and Motions.  Amicus curiae is to attend Status Conferences, either in person or via tele-conference, and to appear at the oral hearing of the appeal.  Amicus curiae is also to have access to all inter partes confidential material in the case.

22.    The Prosecution is entitled to respond to amicus curiae in the same way that, pursuant to the Rules and the relevant Practice Directions, it is entitled to respond to the other party, save that the word counts for its responses are limited to two-thirds of those available to the parties under the Practice Direction on the Length of Briefs and Motions.  The Appeals Chamber notes that the Prosecution may choose to respond separately to Mr. Krajišnik and to amicus curiae or instead choose to file consolidated responses and replies (with word counts for these consolidated filings equal to one and two-thirds those set forth in the Practice Direction on the Length of Briefs and Motions).  In oral proceedings, the Prosecution will similarly have a right of response with regard to amicus curiae. 

Pages 1-2

NOTING that Rule 83 of the Rules provides that “[a] Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organisation, or person to appear before it and make submissions on any issues specified by the Chamber”;

RECALLING that deciding whether to grant leave to make submissions pursuant to Rule 83 of the Rules falls within the discretion of the Appeals Chamber;

RECALLING FURTHER that the primary criterion for the Appeals Chamber in determining whether to grant leave to an amicus curiae to make submissions is whether this would assist the Appeals Chamber in its consideration of the appeal;

[…]

NOTING that the proposed Amicus Curiae Brief is limited to questions of law;

CONSIDERING that the Amicus Curiae Brief analyses matters raised in the Appeal, specifically the relevance of Jogee [R v Jogee [2016] UKSC 8; Ruddock v The Queen [2016] UKPC 7] to applicable jurisprudence on the mens rea of the third form of joint criminal enterprise, and that, as such, it may assist the Appeals Chamber in its determination of the Appeal;

FINDING, therefore, that the Amicus Curiae Brief is admissible under Rule 83 of the Rules;