The Appeals Chamber further specified that the burden of proving an alleged breach of the disclosure obligations lies on the Defence who must identify specifically the materials sought, and prove the Prosecutor's custody or control of the materials requested. Finally, before ordering any remedy for a proven breach of such obligations, the Appeals Chamber will still examine whether the Defence has actually been prejudiced. In the present case, the Appeals Chamber found that the Prosecution correctly exercised its discretion and that the Appellant failed to show that the material at stake could fall under Rule 68 of the Rules.

7. […] Lorsque la Défense estime qu’une violation de l’article 68 du Règlement a été commise, il lui appartient de soumettre à la Chambre tout commencement de preuve de nature à rendre vraisemblable le caractère disculpatoire des éléments de preuve en question ainsi que leur détention par le Procureur[1]. Même si un appelant démontre que sa demande a été suffisamment précise et que le Procureur ne s’est pas acquitté de ses obligations, la Chambre d’appel n’envisagera d’émettre une ordonnance de communication que s’il est démontré que ces manquements ont porté préjudice à l’appelant[2].

8. […] La Chambre d’appel relève que le Procureur a déterminé que les documents demandés ne répondaient pas aux critères énoncés par l’article 68 du Règlement[3] et que l’Appelant n’a pas démontré en quoi le jugement du Procureur, selon lequel ces documents ne contiennent pas de moyens de preuve disculpatoires, est abusif en l’espèce. A cet égard, la Chambre d’appel relève notamment que l’Appelant se réfère lui-même à ces documents comme étant « pertinents » à son affaire et « nécessaires à la défense » et se contente d’affirmer qu’ils « contiennent des éléments à décharge » [4] sans expliquer davantage en quoi ils peuvent le « mettre hors de cause »[5] ou atténuer sa responsabilité individuelle.

22. The Appeals Chamber recalls that, at trial, determining the appropriate remedy in light of a violation of Rule 68 of the Rules falls within the broad discretion of the trial chamber.[1] A trial chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

23. In the view of the Appeals Chamber, Ndindiliyimana does not demonstrate that the Trial Chamber abused its discretion in fashioning the remedies for the Prosecution’s disclosure violations. Recalling witnesses[3] and admitting new evidence[4] are appropriate remedies where disclosure violations have resulted in prejudice to an accused.[5] Where an accused’s fair trial rights have been violated, a reduction of the sentence may be an appropriate remedy if the accused was convicted at trial.[6] However, the relief requested by Ndindiliyimana at trial and on appeal – dismissal of the charges against him – is not necessarily appropriate even where prejudice to the accused has been demonstrated.[7]

15.     Under Rule 73(A) of the Rules, the Prosecution has a positive and continuous obligation to, “as soon as practicable, disclose to the Defence any material that in [its] actual knowledge […] may suggest the innocence or mitigate the guilt of the accused or affect the credibility of Prosecution evidence”.[1] The determination as to which material is subject to disclosure under this provision is a fact-based enquiry made by the Prosecution.[2] Therefore, the Appeals Chamber will not intervene in the exercise of the Prosecution’s discretion unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith.[3] The Appeals Chamber recalls that the Prosecution’s obligation to disclose exculpatory material is essential to a fair trial, and notes that this obligation has always been interpreted broadly.[4]

16.     In order to establish that the Prosecution is in breach of its disclosure obligations, the applicant must: (i) identify specifically the material sought; (ii) present a prima facie showing of its probable exculpatory nature; and (iii) prove that the material requested is in the custody or under the control of the Prosecution.[5] If the Appeals Chamber determines that the Prosecution is in breach of its disclosure obligations, the Appeals Chamber must examine whether the defence has been prejudiced by that failure before considering whether a remedy is appropriate.[6]

34. […] In this respect, the Appeals Chamber notes that, if an appellant wishes to show that the Prosecution is in breach of these obligations, he/she must identify specifically the materials sought, present a prima facie showing of its probable exculpatory nature, and prove the Prosecutor's custody or control of the materials requested.[1] Finally, even when the Defence satisfies the Chamber that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will still examine whether the Defence has actually been prejudiced by such failure before considering whether a remedy is appropriate.[2] The Appeals Chamber is neither satisfied that the document is of prima facie exculpatory nature, nor that the alleged Prosecution’s failure to communicate it to the Appellant would have caused him any prejudice.[3]

Background: the Prosecution disclosed to the Defence a judgement of a Rwandan court that implicated a Prosecution witness right before that witness testified. The Defence requested that the Trial Chamber stay the proceedings. In the present interlocutory appeal, the Appellant (Defence) argued that the Trial Chamber erred as a matter of law by failing to provide him with adequate time and facilities to prepare his defence in violation of his rights under Article 20(4)(b) of the Statute.

The Appeals Chamber recalled the standard of review with regard to adjournment and found that the Trial Chamber did not abuse its discretion in finding that, in the circumstances of the case, no prejudice resulted from the late disclosures. The Appeals Chamber held that a Trial Chamber can “control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights”.

See paras 7-8:

7. The Prosecution’s obligation to disclose potentially exculpatory material is essential to a fair trial.[1] However, not every violation of this important obligation implicates a violation of an accused’s fair trial rights, warranting a remedy.[2] If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves.[3] The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case.[4]

8. Mr. Nzirorera raised the issue of his need for investigations arising from the late disclosure before the Trial Chamber.[5] In the Impugned Decision, the Trial Chamber expressly considered the impact of the late disclosure on Mr. Nzirorera’s ability to prepare for Witness UB’s testimony and determined that the late disclosure would not interfere with an effective cross-examination.[6] Furthermore, the Trial Chamber noted that it would provide appropriate additional relief on a case-by-case basis and indicated that it might be appropriate to recall the witness if further investigations warranted additional cross-examination.[7] In the present circumstances, the Appeals Chamber cannot say that the Trial Chamber abused its discretion in declining to stay the proceedings. The Appeals Chamber considers that in long and complicated cases, it is necessary for a Trial Chamber to exercise its discretion to control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights.[8]

89. […] [T]he Appeals Chamber recalls that the right to be tried without undue delay is enshrined in Article 21(4)(c) of the ICTY Statute and protects an accused against undue delay, which is determined on a case-by-case basis.[1][DT1]  A number of factors are relevant to this assessment, including the length of the delay, the complexity of the proceedings, the conduct of the parties, the conduct of the relevant authorities, and the prejudice to the accused, if any.[2]

90. Bearing this in mind, the Appeals Chamber is not persuaded that the suspensions ordered by the Trial Chamber unduly delayed the proceedings or resulted in per se prejudice to Karadžić. Suspensions due to extensive disclosure in the midst of proceedings are precisely the remedy that may be necessary to ensure an accused’s right to a fair trial.[3] In this case, the orders suspending the proceedings expressly sought to strike a balance between Karadžić’s right to a trial without undue delay and his right to have adequate time and facilities for the preparation of his defence.[4] The relevant decisions provided Karadžić the time to review and incorporate newly disclosed material into his trial preparations and instructed the Prosecution to devote its resources to reviewing information in its possession to ensure that all necessary disclosure was complete.[5] Finally, Karadžić has not shown that the individual or cumulative duration of any suspensions ordered unduly delayed the proceedings.