Fair trial rights
|Appeal Judgement - 16.11.2012||
GOTOVINA & MARKAČ
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. 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 and Final Trial Briefs consistently focus on the existence of unlawful attacks and a JCE. On appeal, the Prosecution devoted a single footnote to alternate modes of liability in each of its response briefs and referred to the matter only briefly during oral arguments.
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. 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. More broadly, the Trial Chamber repeatedly recalled the existence of unlawful attacks in framing its discussion of Markač’s liability.
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. However the scope of this additional briefing did not extend to challenging evidence presented to the Trial Chamber. 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.
 See [Gotovina and Markač Appeal Judgement], paras 148-149.
 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.
 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.
 Prosecution Final Trial Brief, paras 124-133, 387-400.
 [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.
 See AT. 14 May 2012 p. 102.
 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.
 [Gotovina and Markač] Trial Judgement, paras 2370, 2583. Judge Agius and Judge Pocar dissent on the Appeals Chamber’s assessment of the Trial Judgement.
 See [Gotovina and Markač] Trial Judgement, paras 2580-2587.
 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.
 See Order for Additional Briefing, pp. 1-2.
 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.
|Appeal Judgement - 28.11.2007||
NAHIMANA et al. (Media case)
1073. The Appeals Chamber observes at the outset that, in pleading the excessive length of the proceedings, the Appellant is in fact raising a substantive issue going to the regularity of the trial. However, inasmuch as the Appellant raises this issue in his appeal against sentence with a view to having it reduced, and a reduction of sentence is one of the remedies available to redress the alleged violation, the Appeals Chamber will examine these arguments in this section. Nevertheless, the Appeals Chamber notes that the length of the proceedings is not one of the factors that a Trial Chamber must consider, even as a mitigating circumstance, in the determination of the sentence.
1074. The right to be tried without undue delay is provided in Article 20(4)(c) of the Statute. This right only protects the accused against undue delays. Whether there was undue delay is a question to be decided on a case by case basis. The following factors are relevant:
- the length of the delay;
- the complexity of the proceedings (the number of counts, the number of accused, the number of witnesses, the quantity of evidence, the complexity of the facts and of the law);
- the conduct of the parties;
- the conduct of the authorities involved; and
- the prejudice to the accused, if any.
1086. […] The precise remedy to be granted was thus left to the discretion of the Trial Chamber, since the Appeals Chamber could not anticipate at that time whether the Appellant would be found guilty or, a fortiori, what sentence he would receive. Hence the Appeals Chamber could not give the Trial Chamber more detailed instructions. Nor can the Appeals Chamber discern in what way the disposition of the Decision of 31 May 2000 in the Semanza case, as cited by the Appellant, was more precise than that of the Decision of 31 March 2000: the only difference is the express reference to Article 23 of the Statute in the Semanza decision. Finally, the fact that the violation of the defendant’s rights was not treated as a mitigating circumstance did not constitute an error. What was important was that the sentence should be reduced in order to take account of the rights violation, and this was done. The Appeals Chamber agrees with the Trial Chamber that the violation of the Appellant’s rights was not a mitigating circumstance in the true sense of the term.
1095. […] The Appeals Chamber agrees with the Trial Chamber that the remedy ordered in the Judgement did constitute a significant reduction of the sentence, which adequately compensated the Appellant for the violation of his fundamental rights. […]
Having set aside the convictions of Appellant Nahimana under Article 6(1) of the Statute for conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity), and having upheld his convictions under Article 6(3) of the Statute for direct and public incitement to commit genocide and persecution (crime against humanity), the Appeals Chamber reduced Nahimana’s sentence from life to 30 years of imprisonment.
Having set aside the convictions of Appellant Barayagwiza for conspiracy to commit genocide, convictions relating to RTLM broadcasts and those for direct and public incitement to commit genocide (under Article 6(1) of the Statute), and having upheld his convictions under Article 6(1) of the Statute for genocide (instigation), extermination (crime against humanity) and persecution (crime against humanity), the Appeals Chamber reduced Barayagwiza’s sentence from 35 to 32 years of imprisonment, noting that the sentence imposed by the Trial Chamber already reflected the reduction granted for various violations of his rights.
Having set aside the convictions of Appellant Ngeze for conspiracy to commit genocide, as well those with respect to Kangura publications under Article 6(1) for genocide and persecution (crimes against humanity), and those with respect to crimes in Gisenyi for genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity); and having upheld his convictions for direct and public incitement to commit genocide (Kangura), genocide (aiding and abetting) and extermination (aiding and abetting), the Appeals Chamber reduced Ngeze’s sentence from life to 35 years of imprisonment.
 As the Appeals Chamber notes infra, other remedies are possible, such as the termination of proceedings against the accused or the award of compensation (see infra, footnote 2451).
 See supra XVII.A.
 The Prosecutor v. Sefer Halilović, Case No. IT-01-48-A, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, 27 October 2006 (“Halilović Decision”), para. 17.
 Halilović Decision, para. 17; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003, para. 14; The Prosecutor v. Milan Kovačević, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998, para. 28. See also The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-PT, Decision on Defence Motion for Stay of Proceedings, 3 June 2005, paras. 19 et seq.
 The Prosecutor v. Prosper Mugiraneza, Case No. ICTR-99-50-AR73, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, 27 February 2004.
 See Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, point 6 of the Disposition:
DECIDES that for the violation of his rights, the Appellant is entitled to a remedy which shall be given when judgement is rendered by the Trial Chamber, as follows:
(a) If he is found not guilty, the Appellant shall be entitled to financial compensation;
(b) If he is found guilty, the Appellant’s sentence shall be reduced to take into account the violation of his rights, pursuant to Article 23 of the Statute.
 Judgement, para. 1107.