Discretion in managing trials
|Appeal Judgement - 28.09.2011||
19. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in the conduct of proceedings before them. This discretion must be exercised consistently with Articles 19 and 20 of the Statute which require trial chambers to ensure that trials are fair and expeditious. The Decision of 18 September 2007 granting leave to amend the 22 March 2004 Indictment relates to the general conduct of trial proceedings and thus falls within the discretion of the Trial Chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a discernible error resulting in prejudice to that party. The Appeals Chamber will therefore limit its consideration to whether the Trial Chamber abused its discretion by committing a discernible error.
 Nchamihigo Appeal Judgement, para. 18; Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009 (“Ngirabatware Decision of 12 May 2009”), para. 22.
 Nchamihigo Appeal Judgement, para. 18; Ngirabatware Decision of 12 May 2009, para. 22.
 Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-AR73.19, Decision on Matthieu Ngirumpatse’s Appeal Against a Sanction Imposed on Counsel by Trial Chamber’s Decision of 1 September 2010, 21 March 2011, para. 12; Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.18, Decision on Joseph Nzirorera’s Appeal from Decision on Alleged Rule 66 Violation, 18 May 2010, para. 11; Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73, Decision on Kanyarukiga’s Interlocutory Appeal of Decision on Disclosure and Return of Exculpatory Documents, 19 February 2010, para. 9. See also 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. 9 (stating that “[i]f the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.”).
 Nchamihigo Appeal Judgement, para. 18; Ngirabatware Decision of 12 May 2009, para. 8.
|Appeal Judgement - 19.07.2010||
HARADINAJ et al.
39. The Appeals Chamber recalls that Trial Chambers enjoy considerable discretion in managing the trials before them. However, the manner in which such discretion is exercised by a Trial Chamber should be determined in accordance with the case before it. Indeed, what is reasonable in one trial is not automatically reasonable in another. Thus, the question of whether a Trial Chamber abused its discretion should not be considered in isolation, but rather should be assessed taking into account all the relevant circumstances of the case at hand.
40. Taken individually and outside the context of the trial, each of the Trial Chamber’s decisions concerning Kabashi and the other witness could be considered as falling within its scope of discretion. When these decisions are evaluated together, however, particularly in the context of the serious witness intimidation that formed the context of the Trial, it is clear that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of Kabashi and the other witness. […]
48. […] [T]he context of this trial was far from normal and required the Trial Chamber to proactively focus on ensuring the fairness of the proceedings in accordance with the Statute. This required flexibility from the Trial Chamber with regard to subsidiary issues of witness scheduling, trial logistics, and deadlines. The Trial Chamber’s failure to show the required flexibility effectively helped to ensure that witness intimidation succeeded in denying the Prosecution an opportunity to present potentially crucial evidence in support of its case.
 The Appeals Chamber underscores that the Trial Chamber should have pursued every reasonable opportunity, whether upon the request of a party or propio motu, to obtain the evidence of Kabashi and the other witness in the context of this case. This approach should have included granting further extensions of time to assist the Prosecution in obtaining the testimony of key witnesses.
 See Article 20(1) of the Statute. The Appeals Chamber notes that the Trial Chamber was on notice from the first day of the trial that witness intimidation posed a significant threat to the integrity of the judicial process. See T. 359-361 (5 March 2007) (Open Session). It notes that the Trial Chamber’s approach to issues such as witness confidentiality did not demonstrate sufficient respect for this threat, and resulted in the disclosure of confidential witnesses’ information. Cf. Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Order on Disclosure of Memorandum and on Interviews with a Prosecution Source and Witness, 13 December 2006 (“Decision of 13 December 2006”), p. 1; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Prosecution Motion for Protective Measures Concerning the Identity of a Person Who Can Provide Rule 68 Information Concerning Third Parties, 25 October 2006, filed confidentially, but rendered public by order of the Trial Chamber (see Decision of 13 December 2006, p. 9). The Trial Chamber also disclosed protected information about the health of a witness. See Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, Decision on Motion for Videolink [the other witness], 14 September 2007, para. 3.
|Appeal Judgement - 08.05.2012||
26. It is well established that trial chambers exercise discretion in relation to trial management, which includes decisions on adjournments. The Appeals Chamber’s examination is therefore limited to establishing whether the Trial Chamber abused its discretionary power by committing a discernible error when it refused Kanyarukiga’s request to adjourn the start of the trial. With respect to the laissez-passers, Kanyarukiga submitted to the Trial Chamber that the trial would move forward in a different manner if these documents were to be retrieved and that he was willing to “wait a few more weeks” until the Prosecution presented the results of its inquiry. These arguments did not show that Kanyarukiga needed a postponement of the trial to prepare his defence. He has thus failed to demonstrate that the Trial Chamber abused its discretion in declining his adjournment request.
52. […] the Appeals Chamber notes that the timing of the Trial Chamber’s rulings on the admissibility of Prosecution evidence related to the general conduct of trial proceedings and was thus a matter within the discretion of the Trial Chamber. […]
 See, e.g., Šešelj Decision of 16 September 2008 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.8, Decision on Prosecution’s Appeal Against the Trial Chamber’s Order Regarding the Resumption of Proceedings, 16 September 2008], para. 3; Prlić et al. Decision of 1 July 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants Appeal Against “Décision portent attribution du temps à la Défense pour la présentation des moyens à décharge, ” 1 July 2008], para. 15. See also Ngirabatware Decision of 12 May 2009 [Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009], para. 22; Karemera et al. Decision of 28 April 2006 [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006], paras. 7, 8.
 See Šešelj Decision of 16 September 2008, para. 3.
 T. 31 August 2009 pp. 4, 5, 7. In his motion for certification to appeal the Trial Chamber’s dismissal of his adjournment request, Kanyarukiga further explained that he was willing to accept a temporary infringement of his right to a speedy trial in order to ensure that the Prosecution provided the necessary answers to his queries before proceeding to trial. See The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-T, Motion for Certification to Appeal the Trial Chamber’s Decision on the Defence Motion to Adjourn Proceedings, 7 September 2009 (“Motion for Certification of 7 September 2009”), para. 7. He also stated that “it would be unfair to proceed before having given the Prosecution every chance to find the documents and/or to provide an adequate explanation for their absence.” See Motion for Certification of 7 September 2009, para. 6.
|Appeal Judgement - 18.03.2010||
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22. Pursuant to Article 19(1) of the Statute, the Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused. However, it is not for the Trial Chamber to dictate to a party how to conduct its case.
|ICTR Statute Article 19(1) ICTY Statute Article 20(1)|