Conviction

Notion(s) Filing Case
Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

1604. For the foregoing reasons, the Appeals Chamber concludes that the Trial Chamber erred in failing to find Šainović and Lukić liable under Articles 5(h) and 7(1) of the Statute for committing, through their participation in a JCE, persecution, through sexual assaults, as a crime against humanity in Beleg, Ćirez/Qirez, and Priština/Prishtina and thereby disallowing convictions against them under Count 5 in relation to these sexual assaults. The Appeals Chamber further concludes that the Trial Chamber erred in failing to find Pavković liable under Articles 5(h) and 7(1) of the Statute for committing, through his participation in a JCE, persecution, through sexual assaults, as a crime against humanity in Priština/Prishtina and thereby disallowing convictions against him under Count 5 in relation to these sexual assaults. Consequently, the Appeals Chamber grants, in part, the Prosecution’s third ground of appeal and the Prosecution’s submissions in relation to Pavković’s responsibility pursuant to JCE III for persecution through sexual assaults committed in Priština/Prishtina.[1] However, in the circumstances of the present case, the Appeals Chamber, Judge Ramaroson dissenting, declines to enter new convictions on appeal in relation to the sexual assaults in question.[2]

See also para. 1766.

[1] See also Prosecution’s fourth ground of appeal.

[2] Article 25 (2) of the Statute [ICTY Statute] provides that “[t]he Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers” (emphasis added). See also Jelisić Appeal Judgement, para. 73, holding: “the choice of remedy lies within [the] discretion [of the Appeals Chamber]. Article 25 of the Statute (relating to appellate proceedings) is wide enough to confer such a faculty […]. The discretion must of course be exercised on proper judicial grounds, balancing factors such as fairness to the accused, the interests of justice, the nature of the offences, the circumstances of the case in hand and considerations of public interest. These factors (and others) would be determined on a case by case basis.” Cf. Aleksovski Appeal Judgement, paras 153-154, 192; Jelisić Appeal Judgement, para. 77; Krstić Appeal Judgement, paras 220-227, 229, p. 87; Stakić Appeal Judgement, paras 359-367, pp. 141-142; Naletilić and Martinović Appeal Judgement, paras 588-591, p. 207. 

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

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] […]

[1] See supra, para. 233.

[2] E.g., Krstić Trial Judgement, paras 74, 84, 653, 688, 727.

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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

265. […] The Appeals Chamber recalls, Judge Pocar dissenting, that it is established jurisprudence that a new conviction may be entered at the appeal stage.[1]

[1] Cf. Gacumbitsi Appeal Judgement, para. 124; Rutaganda Appeal Judgement, p. 168.

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ICTR Statute Article 24(2) ICTY Statute Article 25(2)
Notion(s) Filing Case
Appeal Judgement - 16.11.2012 GOTOVINA & MARKAČ
(IT-06-90-A)

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]

[1] See [Gotovina and Markač Appeal Judgement], paras 148-149.

[2] See [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Public Version of Pre-Trial Brief, 23 March 2007 (public redacted version)], paras 16-51, 127-130.

[3] See [The Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Prosecution’s Public Redacted Final Trial Brief, 3 August 2010 (“Prosecution Final Trial Brief”)], paras 121-133, 383-400, 477-479.

[4] Prosecution Final Trial Brief, paras 124-133, 387-400.

[5] [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Prosecution Response to Ante Gotovina’s Appeal Brief, 29 September 2011 (public redacted version)], para. 333 n. 1112; [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Prosecution Response to Mladen Markač’s Appeal Brief, 29 September 2011 (public redacted version)], para. 273 n. 958.

[6] See AT. 14 May 2012 p. 102.

[7] See [Gotovina and Markač] Trial Judgement, paras 2375, 2587. Judge Agius and Judge Pocar dissent on the Appeals Chamber’s assessment of the Trial Judgement.

[8] [Gotovina and Markač] Trial Judgement, paras 2370, 2583. Judge Agius and Judge Pocar dissent on the Appeals Chamber’s assessment of the Trial Judgement.

[9] See [Gotovina and Markač] Trial Judgement, paras 2580-2587.

[10] See [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Order for Additional Briefing, 20 July 2012 (“Order for Additional Briefing”)], pp. 1-2.

[11] See Order for Additional Briefing, pp. 1-2.

[12] The foregoing discussion also applies to other modes of liability that the Prosecution claims are incurred on the same factual basis. See [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Prosecution Supplemental Brief on Alternative Modes of Liability for Mladen Markač, 10 August 2012], para. 4 n. 11. Judge Agius and Judge Pocar dissent on this entire paragraph.

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Appeal Judgement - 16.11.2012 GOTOVINA & MARKAČ
(IT-06-90-A)

106. The Appeals Chamber observes, Judge Pocar dissenting, that it has, on multiple occasions, entered convictions on the basis of alternate modes of liability.[1] In this respect, the Appeals Chamber notes that the plain text of Article 25(2) of the Statute, namely the power vested in the Appeals Chamber to “revise” a decision taken by a trial chamber, supports the Appeals Chamber’s authority to enter convictions on the basis of alternate modes of liability. One meaning of the term revise is “to alter (an opinion, judgement, etc.) after reconsideration, or in the light of further evidence.”[2] The practice of sustaining a conviction pursuant to an alternate mode of liability is effectively one such alteration to a trial chamber’s legal reasoning. The Appeals Chamber further observes that appellate bodies of various national jurisdictions are also empowered to enter convictions on an alternate basis of liability. For example, Section 3 of the England and Wales Criminal Appeal Act 1968 allows an appellate court to substitute a conviction for an alternative offence.[3] Other national jurisdictions have instituted similar practices.[4]

107. The Appeals Chamber, Judge Pocar dissenting, is not convinced that the Appellants have presented cogent reasons requiring departure from the practice of entering convictions on the basis of alternate forms of liability in appeals in certain circumstances. The Appeals Chamber further underscores that its power to enter convictions on the basis of alternate modes of liability is not dependent on whether the Prosecution appeals.[5] Finally the Appeals Chamber recalls that it has, on multiple occasions, rejected, Judge Pocar dissenting, the proposition that additional convictions on appeal violate an appellant’s right to a fair trial per se,[6] and notes that the Appellants do not raise new arguments that justify reconsideration of this position.[7] Accordingly, the Appeals Chamber denies the Alternate Liability Challenge.

108. Having dismissed the Appellants’ challenge to its general power to enter convictions on the basis of alternate modes of liability, the Appeals Chamber recalls that its exercise of this power is subject to the Statute’s fundamental protections of the rights of the accused.[8] The Appeals Chamber further recalls that, as set out in the Statute, its jurisdiction is focused on reviewing the findings of trial chambers for errors of law which invalidate a decision and errors of fact which occasion a miscarriage of justice.[9] The Appeals Chamber will not enter convictions under alternate modes of liability where this would substantially compromise the fair trial rights of appellants or exceed its jurisdiction as delineated in the Statute.[10]

155. The Appeals Chamber notes that the foregoing analysis does not per se preclude replacing convictions based on JCE with convictions based on alternate modes of liability. Indeed, the Appeals Chamber has on certain occasions revised trial judgements in this way. However the Appeals Chamber notes that in each of these appeals, the trial chamber’s errors had a comparatively limited impact. Thus in the Simić Appeal Judgement, the Appeals Chamber entered a conviction on the basis of aiding and abetting after finding that the indictment failed to plead participation in a JCE as a mode of liability. In both the Vasiljević Appeal Judgement and the Krstić Appeal Judgement, the Appeals Chamber entered a conviction on the basis of aiding and abetting after finding that the trial chamber erred in concluding that the relevant appellant shared the common purpose of the JCE. In none of these judgements was the trial chamber’s analysis concerning the factual basis underpinning the existence of a JCE materially reversed. By contrast, in the present case, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, has found that the Trial Chamber committed fundamental errors with respect to its findings concerning artillery attacks and by extension JCE, which stood at the core of findings concerning the Appellants’ criminal responsibility.

[1] See, e.g., D. Milošević Appeal Judgement, paras 275-282, p. 128; Simić Appeal Judgement, paras 75-191, 301; Stakić Appeal Judgement, paras 58-98, 104, p. 141; Krstić Appeal Judgement, paras 135-144, p. 87; Vasiljević Appeal Judgement, paras 115-135, 139-143, 147, 181, p. 60. See also Rukundo Appeal Judgement, paras 37, 39-115, 169-218, 269-270.

[2]Oxford English Dictionary (Oxford English Dictionary Online, September 2012, OxfordUniversity Press).

[3] Criminal Appeal Act 1968 (England and Wales), Section 3.

[4] See Criminal Appeals Act 2004 (Western Australia), Section 30(5); Code of Criminal Procedure, Sections 265, 322, 328 (Germany); Criminal Code (R.S.C., 1985, c. C-46, § 686(1)(b)(i)) (Canada); Code of Criminal Procedure, Article 597(2)(a) (Italy).

[5] Cf. Article 25 of the Statute. See generally Simić Appeal Judgment; Vasiljević Appeal Judgement (in which the Appeals Chamber entered convictions on the basis of alternate modes of liability despite absence of any Prosecution appeal).

[6] See [Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on Motion on Behalf of Veselin [ljivančanin Seeking Reconsideration of the Judgement Rendered by the Appeals Chamber on 5 May 2009 – or an Alternative Remedy, 8 December 2009 (“[ljivančanin Reconsideration Decision”)], pp. 2-3. See also Galić Appeal Judgement (compare majority opinion, pp. 1-185, with partially dissenting opinion of Judge Pocar, pp. 186-188); Semanza Appeal Judgement (compare majority opinion, pp. 1-127, with dissenting opinion of Judge Pocar, pp. 131-133); Rutaganda Appeal Judgement (compare majority opinion pp. 1-169, with dissenting opinion of Judge Pocar, pp. 1-4).

[7] Compare [Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Appellant Ante Gotovina’s Motion Challenging the Appeals Chamber’s Jurisdiction to Consider Alternate Modes of Liability, or in the Alternative for Finding of Prosecution Waiver, 10 August 2012], paras 23-24, with [ljivančanin Reconsideration Decision, pp. 2-3; Galić Appeal Judgement (compare majority opinion, pp. 1-185, with partially dissenting opinion of Judge Pocar, pp. 186‑188); Semanza Appeal Judgement (compare majority opinion, pp. 1-127, with dissenting opinion of Judge Pocar, pp. 131-133); Rutaganda Appeal Judgement (compare majority opinion, pp. 1-169, with dissenting opinion of Judge Pocar, pp. 1-4).

[8] See Article 21 of the Statute. See also Articles 20, 23, 25 of the Statute.

[9] Article 25 of the Statute. Cf. Articles 20, 23 of the Statute; Orić Appeal Judgement, para. 11.

[10] Cf. Articles 21, 25 of the Statute.

[11] See Simić Appeal Judgement, paras 74-191, 301; Krstić Appeal Judgement, paras 134-144, p. 87; Vasiljević Appeal Judgement, paras 115-135, 139-143, 147, p. 60.

[12] See Simić Appeal Judgement, paras 74-191, 301.

[13] See Krstić Appeal Judgement, paras 134-144, p. 87; Vasiljević Appeal Judgement, paras 115-135, 139-143, 147, p. 60.

[14] See Simić Appeal Judgement, paras 74-191, 301; Krstić Appeal Judgement, paras 135-144, p. 87; Vasiljević Appeal Judgement, paras 115-135, 139-143, 147, p. 60.

[15] See [Gotovina and Markač Appeal Judgement], paras 84, 98.

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Appeal Judgement - 30.06.2016 STANIŠIĆ & ŽUPLJANIN
(IT-08-91-A)

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]

[1] See Jelisić Appeal Judgement, para. 73. Article 25(2) of the Statute provides that “[t]]he Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers”. See also Šainović et al. Appeal Judgement, para. 1604, fn. 5269 (with references).

[2] See Jelisić Appeal Judgement, paras 73, 77; Aleksovski Appeal Judgement, paras 153-154, 192; Krstić Appeal Judgement, paras 220-227, 229, p. 87; Stakić Appeal Judgement, paras 359-367, pp 141-142; Naletilić and Martinović Appeal Judgement, paras 588-591, p. 207. See also Šainović et al. Appeal Judgement, paras 1604, 1766.

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ICTR Statute Article 25 ICTY Statute Article 25
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

2516.            […] [I]t is apparent that the key source of Kanyabashi’s knowledge and the conduct by which he was alleged to have failed to prevent or punish the crimes on the basis of which he was convicted was materially different from the acts expressly pleaded in the Indictment. As such, the Appeals Chamber considers that the Trial Chamber’s findings were based upon a set of material facts different from those that were specifically pleaded in the Indictment, set forth in the Prosecution Pre-Trial Brief, and pursued throughout the trial. The Appeals Chamber finds that the Trial Chamber erred in convicting Kanyabashi based on material facts that were not pleaded by the Prosecution in the Indictment and at trial.

See also para. 2518.

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