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XI) MISCELLANEOUS

a) Weight to give prior decisions

i) the Appeals Chamber should follow its previous decisions, absent a cogent reason in the interests of justice

Aleksovski, (Appeals Chamber), March 24, 2000, para. 104-110: “The right of appeal is a component of the fair trial requirement” and “an aspect of the fair trial requirement is the right of an accused to have like cases treated alike.”  “[I]n the interests of certainty and predictability, the Appeals Chambers should follow its previous decisions, but should be free to depart from them for cogent reasons in the interests of justice.”  The “legal principle,” or ratio decidendi, should be followed.  However, “the obligation to follow that principle only applies in similar cases, or substantially similar cases,” i.e., where “the question raised by the facts in the subsequent case is the same as the question decided by the legal principle in the previous decision.”

Mucic et al., (Appeals Chamber), February 20, 2001, para. 26: “Applying the principle enunciated in the Aleksovski Appeal Judgement, this Appeals Chamber is unable to conclude that the decision in [sic] Tadic was arrived at on the basis of the application of a wrong legal principle, or arrived at per incuriam. . . . [T]his Appeals Chamber is unable to find cogent reasons in the interests of justice to depart from the law as identified in the Tadic Appeal Judgement.”

ii) decisions of the Appeals Chamber are binding on Trial Chambers

Aleksovski, (Appeals Chamber), March 24, 2000, para. 112-113: The Appeals Chambers held that the “ratio decidendi of its decisions is binding on Trial Chambers.”

iii) decisions of Trial Chambers have no binding force on each other

Aleksovski, (Appeals Chamber), March 24, 2000, para. 1114: “[D]ecisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive.”

b) Unreasonableness is test for appellate review of Trial Chamber’s factual findings

Tadic, (Appeals Chamber), July 15, 1999, para. 64: “[T]he standard to be used when determining whether the Trial Chamber’s factual finding should stand is that of unreasonableness, that is, a conclusion which no reasonable person could have reached.  The task of hearing, assessing and weighing the evidence presented at trial is left to the Judges sitting in a Trial Chamber.  Therefore, the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.  It is only where the evidence relied on by the Trial Chamber could not reasonably have been accepted by any reasonable person that the Appeals Chamber can substitute its own finding for that of the Trial Chamber.  It is important to note that two judges, both acting reasonably, can come to different conclusions on the basis of the same evidence.”

c) “Equality of arms” principle

Tadic, (Appeals Chamber), July 15, 1999, para. 43, 44, 48, 52: Article 20(1) of the Statute provides that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious . . .” and “equality of arms means that each party must have a reasonable opportunity to defend its interests ‘under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent.’”  The Appeals Chamber held that “the principle of equality of arms falls within the fair trial guarantee under the Statute.”  “[U]nder the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts.  This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.  The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal. Provisions under the Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side may have equal access to witnesses.  The Chambers are empowered to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.”

d) Lawyer-client privilege does not cover prior defense witness statements: Trial Chamber may order their disclosure

Tadic, (Appeals Chamber), July 15, 1999, para. 325-326: The Appeals Chamber held that lawyer-client privilege “does not cover prior Defence witness statements” and “a Trial Chamber may order, depending on the circumstances of the case at hand, the disclosure of Defence witness statements after examination-in-chief of the witness.”

e) Test for accepting guilty pleas

i) whether there is a sufficient factual basis for the crime and the accused’s participation in it, and whether the elements presented establish the crime acknowledged

Jelisic, (Trial Chamber), December 14, 1999, para. 25: “A guilty plea is not in itself a sufficient basis for the conviction of an accused.  Although the Trial Chamber notes that the parties managed to agree on the crime charged, it is still necessary for the Judges to find something in the elements of the case upon which to base their conviction both in law and in fact that the accused is indeed guilty of the crime.”

Jelisic, (Trial Chamber), December 14, 1999, para. 26, 28: The Trial Chamber outlined the three pre-conditions that must be satisfied before a plea of guilty can be entered, and stated that the judges must also verify that “there is sufficient factual basis for the crime and the accused’s participation in it, either on the basis of independent indicia or of lack of any material disagreement between the parties about the facts of the case.”  The Trial Chamber also held that it “must also verify whether the elements presented in the guilty plea are sufficient to establish the crimes acknowledged.”

Todorovic, (Trial Chamber), July 31, 2001, para. 23-26: “[U]nder [Rule 62 bis], a guilty plea cannot form the sole basis for the conviction of an accused; the Trial Chamber must also be satisfied that ‘there is a sufficient factual basis for the crime and the accused’s participation in it.’  [T]he Trial Chamber may rely on either independent indicia or on the lack of ‘any material disagreement between the parties about the facts of the case.’”

ii) plea must be voluntary, informed and unequivocal

Erdemovic, (Appeals Chamber), Joint Separate Opinion of Judge McDonald and Judge Vohrah, October 7, 1997, para. 8: “[C]ertain pre-conditions must be satisfied before a plea of guilty can be entered.  [T]he minimum pre-conditions are as follows:

(a) The guilty plea must be voluntary.  It must be made by an accused who is mentally fit to understand the consequences of pleading guilty and who is not affected by any threats, inducements or promises.

(b) The guilty plea must be informed, that is, the accused must understand the nature of the charges against him and the consequences of pleading guilty to them.  The accused must know to what he is pleading guilty;

(c) The guilty plea must not be equivocal.  It must not be accompanied by words amounting to a defence contradicting an admission of criminal responsibility.”

(1) voluntary

Erdemovic, (Appeals Chamber), Joint Separate Opinion of Judge McDonald and Judge Vohrah, October 7, 1997, para. 10: “[A] guilty plea [must] be made voluntarily.  Voluntariness involves two elements.  Firstly, an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty.  Secondly, the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentence.”

(2) informed

Erdemovic, (Appeals Chamber), Joint Separate Opinion of Judge McDonald and Judge Vohrah, October 7, 1997, para. 14: “[A]ll common law jurisdictions insist that an accused who pleads guilty must understand the nature and consequences of his plea and to what precisely he is pleading guilty.”  In the case at hand, “an informed plea would require that the Appellant understand (a) the nature of the charges against him and the consequences of pleading guilty generally; and (b) the nature and distinction between the alternative charges and the consequences of pleading guilty to one rather than the other.”

(3) unequivocal

Erdemovic, (Appeals Chamber), Joint Separate Opinion of Judge McDonald and Judge Vohrah, October 7, 1997, para. 31: “Whether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.”