|Appeal Judgement - 18.03.2010||
The Trial Chamber commenced the trial while there was still a pending preliminary motion objecting to certain defects in the Indictment. The Appeals Chamber found
31. […] that in deciding to start the trial prior to ruling on the pending Motion of 29 August 2006, the Trial Chamber violated the express provision of Rule 72(A) of the Rules that preliminary motions “shall be disposed of […] before the commencement of the opening statements”. Because the language of Rule 72(A) of the Rules is mandatory, the Trial Chamber committed a discernible error of law when it allowed the trial to commence without disposing of the Appellant’s motion.
 T. [Trial Transcript page from hearings in The Prosecutor v. Siméon Nchamihigo, Case No. ICTR-2001-63-T] 25 September 2006 pp. 2, 3 (Status Conference).
|Decision on Trial Date - 12.05.2009||
31. Time and resource constraints exist in all judicial institutions and it is legitimate for a Trial Chamber to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time. However, the Appeals Chamber stresses that these considerations should never impinge on the rights of the parties to a fair trial.
See also paras 22-24, 27 above.
 Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendant’s Appeal Against “Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge”, 1 July 2008 (“Prlić et al. Decision of 1 July 2008”), para. 16; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007 (“Prlić et al. Decision of 6 February 2007”), para. 23, citing Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006 (“Prlić et al. Decision of 4 July 2006”), p. 4.
 Cf. Prlić et al. Decision of 1 July 2008, para. 16; Orić Decision, para 8; Prlić et al. Decision of 6 February 2007, para. 23; Prlić et al. Decision of 4 July 2006, p. 4.
|Decision on Trial Date - 12.05.2009||
22. The Appeals Chamber recalls that Trial Chambers enjoy considerable discretion in the conduct of the proceedings before them, including in the scheduling of trials. However, this discretion finds its limitation in the obligation imposed on Trial Chambers by Articles 19 and 20 of the Tribunal’s Statute (“Statute”) to ensure that a trial is fair and expeditious.
23. In the Decision Setting the Trial Date, the Trial Chamber duly recalled the right of an accused to a fair trial within a reasonable time and pointed out its obligation to balance the need for the accused to have adequate time for the preparation of his case and the need for an expeditious trial. It also correctly pointed out that “[i]n arriving at a decision regarding the scheduling of the trial, the Chamber considers all the relevant factors and appropriate concerns”. However, the Appeals Chamber observes that nothing in the Impugned Decisions indicates that the Trial Chamber indeed did so.
24. The Trial Chamber reached its conclusion that there was no justification to vacate the original trial date and set the 18 May 2009 trial date without expressly addressing Ngirabatware’s concerns as to the fairness of his trial or any of the relevant factors. While the Trial Chamber mentioned issues related to the staffing of the Defence team, it omitted to discuss the impact of the staffing situation of the Defence team on the Defence’s ability to prepare for trial within the available time. Instead, the Trial Chamber merely stated that it “expected that the staffing position of the Defence team will be addressed and completed in a timely manner”. Nowhere in the Impugned Decisions did the Trial Chamber consider the decisive question as to whether the time for preparation available to the Defence was objectively adequate to permit Ngirabatware to prepare his case in a manner consistent with his rights.
27. The Appeals Chamber finds that the Trial Chamber erred in failing to address the factors relevant to its making a fully informed and reasoned decision as to whether the setting of the 18 May 2009 trial date infringed Ngirabatware’s right to a fair trial, in particular his right to have adequate time for the preparation of his defence provided for in Article 20(4)(b) of the Statute.
 See, e.g., Karemera et al. Decision of 30 January 2009, para. 17 and references cited therein.
 Milošević Decision, para. 16.
 The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion to Vacate Trial Date of 4 May 2009, 25 February 2009 (“Decision Setting the Trial Date”), para. 10.
 Decision Setting the Trial Date, para. 10, referring to The Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004 (“Milošević Decision”), paras. 16, 17.
 Decision Setting the Trial Date, para. 12.
 Decision Setting the Trial Date, para. 11.
 The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Defence Motion to Vary Trial Date, 25 March 2009, para. 24. See also Decision Setting the Trial Date, para. 11.
|ICTR Statute Article 19(1) ICTY Statute Article 20(1)|
|Decision on Postponement of Trial - 31.03.2010||
23. In the course of discharging their duty to ensure that a trial is fair and expeditious, Trial Chambers enjoy considerable discretion in scheduling trials. The Appeals Chamber recalls that “it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case”. Thus, a Trial Chamber’s assessment of the time and resources required to prepare for trial is such a “fact-intensive exercise” that Karadžić’s comparisons to other cases are of little assistance and limited relevance.
25. […] Based on the information provided, the Trial Chamber conducted considerably detailed analyses concerning the quantity and nature of the disclosed items, as well as reasons for their disclosure at this stage of the proceedings. The Trial Chamber found that much of the disclosure made to Karadžić during the adjournment period was unavoidable […]. […]. Taking into account that Karadžić had already had 18 months to prepare, the Trial Chamber found that the volume of additional disclosure did not justify further delay to the hearing of evidence. The Trial Chamber also considered other means to ensure that Karadžić’s rights were not prejudiced by late disclosure, such as granting him additional time to prepare for his cross-examination or familiarise himself with the disclosure, or allowing him to re-call a witness, upon a showing of good cause.
26. […] Regarding the Prosecution’s motions relating to judicial notice, bar table and amendment of the Rule 65ter exhibit list, to which Karadžić was supposed to respond during the adjournment period, the Trial Chamber has already granted extensions of time of four to six weeks to respond in view of their voluminous nature. Taking into account the President’s analysis of the same motions, the Trial Chamber held that any difficulty Karadžić had faced in responding to these motions during the adjournment period due to the limitation on the defence funding could be remedied by granting further extensions of time to respond. […].
28. In light of the above, the Appeals Chamber is satisfied that the Trial Chamber took into account all the relevant factors, including the impact of the February 2010 President Decision on the staffing of Karadžić’s defence team and possible remedies for the period when his team was understaffed. As a result, the Trial Chamber made no error in assessing that further postponement of the trial was not justified. Karadžić has failed to demonstrate that the Trial Chamber abused its discretion in reaching this conclusion.
 Article 20(1) of the Statute. See also Article 21(4)(b) of the Statute, requiring a Trial Chamber to guarantee the accused’s right to have adequate time and facilities for the preparation of his defence.
 Ngirabatware Decision, para. 22; Milošević Decision, para. 16.
 Appeal Decision on Commencement of Trial [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.5, Decision on Radovan Karadžić’s Appeal of the Decision on Commencement of Trial, 13 October 2009], para. 19; Ngirabataware Decision, para. 28.
 See Appeal Decision on Commencement of Trial, paras 19, 23. See also Ngirabataware Decision, para. 28.
 Impugned Decision, paras 25-37.
 Id., para. 38.
 Id., para. 39.
 Id., para. 40.
 Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution’s First Motion for Judicial Notice of Documentary Evidence Related to the Sarajevo Component with Confidential Appendix A, 19 October 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Prosecution’s Motion for Leave to File a Supplemental Rule 65ter Exhibit List with Confidential Appendix A, Public Appendix B and Confidential and Ex Parte Appendix C, 14 December 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Prosecution’s First Bar Table Motion with Appendix A, 15 December 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Fifth Prosecution Motion for Judicial Notice of Adjudicated Facts, 15 December 2009.
 Impugned Decision, para. 42, referring to Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Motion for Extension of Time to File Response to Prosecution Motion for Judicial Notice of Documents, 30 October 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion for Extension of Time to Respond to Prosecution Motions, 24 December 2009.
 Impugned Decision, para. 43. The Trial Chamber accordingly granted extensions of two additional weeks except for one motion to which he had already responded, see id., para. 49, d), setting 12 March 2010 as the deadline for responses to the relevant motions.
Article 20(4)(d) ICTY Statute Article 20(1);
|Decision on Trial Date - 13.10.2009||
The Appeals Chamber then considered the Trial Chamber’s demand that the Prosecution file a “marked-up version of the indictment and its schedules” including footnotes explaining all changes of the indictment, subsequent to an invitation of the Trial Chamber pursuant to Rule 73bis(D) of the Rules. It assessed whether this required a delay in the start of the trial:
26. [T]he Trial Chamber reduced the size of the case Karadžić faced by accepting the propositions of the Prosecution’s 31 August 73bis(D) Submission.[] However, the amount of time provided to Karadžić for reviewing the marked-up indictment is exceedingly short and risks rendering the trial unfair, even when the only potential changes are reductions in the Prosecution’s charges. In the context of this case, the Trial Chamber was obligated to ensure that Karadžić had sufficient time to read the marked-up and clarified indictment before the commencement of trial. Its failure to do so constitutes an abuse of discretion.
 Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.5, Decision on Radovan Karadžić’s Appeal of the Decision on Commencement of Trial, 13 October 2009, para. 25.
 [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Prosecution Submission Pursuant to Rule 73bis(D), 31 August 2009].