Trial management issues

Notion(s) Filing Case
Decision on Rule 92 bis Evidence - 01.07.2010 PRLIĆ et al.
(IT-04-74-AR73.17)

31. The Appeals Chamber recalls that “every court possesses the inherent power to control the proceedings during the course of the trial”.[1] Rule 73 ter of the Rules confers upon Trial Chambers the authority to determine the time allocated to the presentation of the defence case[2] and the number of witnesses the defence may call.[3] The Appeals Chamber does not see any reason why the application of this Rule should be limited to a Trial Chamber’s authority to determine the number of viva voce witnesses. The application of Rule 73 ter of the Rules extends to all categories of witnesses. However, a Trial Chamber’s authority to limit the number of witnesses allocated to the defence is “always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute […] be respected”.[4] Hence, a Trial Chamber is required to ensure that the number of witnesses it sets for the presentation of the defence case is sufficient to allow the accused a fair opportunity to present his case.[5] The Appeals Chamber also recalls that it has previously held in this case that the Trial Chamber’s duty to ensure the fairness and expeditiousness of proceedings will often entail a delicate balancing of interests, particularly in a trial of this scope and complexity.[6] Therefore, in the instant case, the Trial Chamber was required to consider, in light of the complexity and number of issues to be litigated, whether an appropriate balance was struck in reducing the number of Rule 92 bis witnesses that Praljak was allowed to present.

32. The Appeals Chamber observes that the same consideration applies to a Trial Chamber’s power to control the volume and length of Rule 92 bis material that a party can tender. A Trial Chamber is not inherently prohibited from exerting such control while exercising its discretion over the administration of trials. This is in line with Rule 90(F) of the Rules which confers upon Trial Chambers the authority to control the mode of presenting evidence.[7] However, as stated by the Appeals Chamber, a Trial Chamber’s discretion in this regard is subject to its “obligation to respect the rights of an accused”[8] and “must […] be exercised with caution, as it is, in principle, for both parties to structure their cases themselves”[9]

[…]

36. Furthermore, the fact that Praljak was not granted the entire requested time [for the presentation of his defence case] does not in and of itself allow him to tender as many Rule 92 bis written statements or transcripts as he wishes. […].

37. […] Moreover, when written statements or transcripts containing an accused’s acts and conduct as charged in an indictment are tendered pursuant to Rule 92 bis of the Rules, Trial Chambers are not obliged to admit them pursuant to Rule 92 ter of the Rules requiring cross-examination.[10] Taking this course of action is within a Trial Chamber’s discretion as long as the rights of the accused are protected.[11][…].

[1] Prlić et al. Appeal Decision of 11 May 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Following Trial Chamber’s Decision on Remand and Further Certification, 11 May 2007], para. 30 (emphasis in the original); 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. Appeal Decision of 6 February 2007”), para. 14 (emphasis in the original).

[2] Rule 73 ter (E).

[3] Rule 73 ter (C). See also Orić Appeal Decision [Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005], para. 8.

[4] Orić Appeal Decision, para. 8.

[5] Orić Appeal Decision, paras 8-9. See also Prlić et al. Appeal Decision of 1 July 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants [sic] Appeal Against “Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge”, 1 July 2008], para. 16; Prlić et al. Appeal Decision of 11 May 2007, para. 29; Prlić et al. Appeal Decision of 6 February 2007, paras 14, 16.

[6] Prlić et al. Appeal Decision of 5 December 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.12, Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s 13 October 2008 Order Limiting the Translation of Defence Evidence, 5 December 2008], para. 28; Prlić et al. Appeal Decision of 6 February 2007, para. 16.

[7] Cf. Prlić et al. Appeal Decision of 5 December 2008, para. 28, confirming the Trial Chamber’s application of Rule 90(F) of the Rules to its limitation on resources for translation available to Praljak.

[8] Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), para. 18, referring to Prosecutor v. Zdravko Tolimir, Radivoje Miletić & Milan Gvero, Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić's Interlocutory Appeal Against the Trial Chamber's Decision on Joinder of Accused, 27 January 2006, para. 29.

[9] Galić Appeal Judgement, para. 20.

[10] Rule 92 bis of the Rules provides in relevant part:

(A)   A Trial Chamber may dispense with the attendance of a witness in person, and instead admit, in whole or in part, the evidence of a witness in the form of a written statement or a transcript of evidence, which was given by a witness in proceedings before the Tribunal, in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment […]

(C)  The Trial Chamber shall decide, after hearing the parties, whether to require the witness to appear for cross-examination; if it does so decide, the provisions of Rule 92 ter shall apply (emphasis added).

Rule 92 ter of the Rules provides, in relevant part:

(A)   A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement or transcript of evidence given by a witness in proceedings before the Tribunal, under the following conditions:

(i) the witness is present in court;

(ii) the witness is available for cross-examination and any questioning by the Judges […] (emphasis added).

[11] It follows that the Trial Chamber did not violate Article 21(1) of the Statute stipulating equality of all persons before the Tribunal. This provision does not mean that the treatment of every accused ought to be identical. The accused can be treated differently in light of their respective circumstances insofar as their rights are guaranteed.

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ICTR Statute Article 20(2) ICTY Statute Article 21(2) ICTR Rule Rule 73ter;
Rule 90(F);
Rule 92bis
ICTY Rule Rule 73ter;
Rule 90(F);
Rule 92bis
Notion(s) Filing Case
Decision on Rule 92 bis Evidence - 01.07.2010 PRLIĆ et al.
(IT-04-74-AR73.17)

12. […] There is nothing wrong in clarifying the law or providing guidelines and directing a party to re-file its submission rather than immediately ruling upon it, insofar as a Chamber provides sound reasons for doing so.[1] Furthermore, the Appeal Chamber recalls that:

[w]hile a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail. The fact that the Trial Chamber did not mention a particular fact in its written order does not by itself establish that the Chamber has not taken that circumstance into its consideration.[2]

In addition, with respect to the amount of time alloted [sic] to a party for the presentation of its case, the Appeals Chamber has held that “although [a] Trial Chamber must justify its reduction in time by indicating the documents and the competing interests it considered, it does not need to specifically ‘itemise and justify’ all of the bases for this reduction”.[3] This principle is also applicable to a Trial Chamber’s determination on the number of witnesses. In the present case, the Trial Chamber provided adequate reasoning for placing a limit on the number of Rule 92 bis written statements or transcripts that Praljak could tender and sending back the Motions to him without ruling upon the admissibility of each and every Statement, based on a sufficiently particularised and comprehensive analysis of the Statements. [“Statements” or, individually, “Statement” are defined in paragraph 4 as the written statements and transcripts of 155 witnesses, in total, which Praljak requested the Trial Chamber on 14 September, 1 October and 16 October 2009 to admit into evidence pursuant to Rule 92 bis of the Rules]

[1] See e.g., Prosecutor v. Milan Martić, Case No. IT-95-11-T, 7 July 2006, T. 5999:12-5999:19 (oral order), directing the accused Milan Martić to re-file more detailed Rule 65 ter witness summaries. Based on the re-filed witness summaries, the Trial Chamber set the time allocated to the presentation of the defence case and the number of witnesses it could call, see Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Time Available for the Defence for Presenting Its Evidence, 14 August 2006 (confidential), pp. 2, 4. See also Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-PT, Order on Prosecution’s Motion to Admit Documentary Evidence with Annexes, 6 June 2006, p. 2, requiring more information on the items that the Prosecution tendered into evidence from the bar table. The Trial Chamber subsequently decided upon their admissibility taking into account the supplemented information, see Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Motion to Admit Documentary Evidence, 10 October 2006, paras 2-4.

[2] Prlić et al. Appeal Decision of 1 July 2008, para. 48, referring to 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, para. 7.

[3] Prlić et al. Appeal Decision of 1 July 2008, para. 48, referring to Prlić et al. Appeal Decision of 11 May 2007, para. 25.

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Decision on Examination of Witnesses - 11.09.2008 PRLIĆ et al.
(IT-04-74-AR73.11)

19. The Appeals Chamber has already held that when an accused is effectively represented by counsel, it is, in principle, for the counsel to conduct the examination of witnesses.[1] It has however recognized that Trial Chambers may, under exceptional circumstances, authorize an accused to participate in the examination in person.[2] It has also been established that the Trial Chambers are entitled under Rule 90(F) of the Tribunal’s Rules of Procedure and Evidence (“Rules”) to exercise control over the manner in which such examination is conducted,[3] including ensuring that it “is not impeded by useless and irrelevant questions”.[4]

20. […] In these circumstances, the real issue currently before the Appeals Chamber is whether the Trial Chamber committed a discernable error in defining those “exceptional circumstances” by providing its clarification of the term “specific expertise”.

21. […] The Appeals Chamber reiterates that it is within the Trial Chamber’s discretionary power to define the circumstances under which it can allow the Appellant to intervene in the examination of witnesses. However, it did not need, at this stage of the proceedings, to further restrict the criteria that would apply to all his future requests for personal intervention. Although the Trial Chamber based its decision on its experience concerning previous interventions of the Appellant, the Appeals Chamber considers that the Trial Chamber should have allowed more flexibility for its assessment of the notion of specific expertise and perform such assessment on a case-by-case basis when faced with a specific request. The approach taken by the Trial Chamber could potentially lead to violation of the Appellant’s rights under Article 21 of the Statute and thus constitutes an abuse of discretion.

22. Moreover, the Appeals Chamber emphasizes that both Guideline C (as amended by the Trial Chamber’s Decision of 10 May 2007) and Guideline 1 refer to “exceptional circumstances” which relate in particular to the events in which the Appellant participated personally or issues falling within his specific expertise, and should therefore not be read as restricting those circumstances to these two scenarios.[5] Indeed, various other circumstances may still arise during the proceedings which may justify the Appellant’s participation in the examination.[6]

[1] Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (“Nahimana et al. Appeal Judgement”), para. 267 and fn. 651; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Scheduling Order, 16 November 2006, pp. 3-4; Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Decision on Hassan Ngeze’s Motions Concerning Restrictive Measures of Detention, 20 September 2006 (confidential), p. 7: “Article 20(d) of the Statute provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who has a counsel assigned to him/her to choose at whim when to accept or not his/her counsel’s advice” (footnotes omitted).

[2] Appeals Chamber’s Decision of 24 August 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.5, Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of Interrogating Witnesses, 24 August 2007], paras 9, 11, 13; Nahimana et al. Appeal Judgement, paras 267, 269-270, 274, 276.

[3] Rule 90(F) of the Rules provides:

         “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to

(i) make the interrogation and presentation effective for the ascertainment of the truth; and

(ii) avoid needless consumption of time.”

[4] Nahimana et al. Appeal Judgement, paras 182, 270 ; Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003, paras 45, 99, 102; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeal Judgement, 1 June 2001, para. 318.

[5] Recalling the Trial Chamber’s Decisions of 10 May 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on the Mode of Interrogating Witnesses, 10 May 2007] and 24 April 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision Adopting Guidelines for the Presentation of Defence Evidence, 24 April 2008], the French original of the Impugned Decision reads “[…] dans des circonstances exceptionnelles notamment liées, soit à l’examen d’événements auxquels un Accusé a personnellement participé, soit à l’examen de questions au sujet desquelles il possède des compétences spécifiques” (p. 2, emphasis added). The English translation however erroneously reads “[…] under exceptional circumstances linked either to the examination of events in which an Accused personally took part or to the examination of issues about which he has specific expertise”.

[6] Cf. Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T where the Trial Chamber allowed Momčilo Krajišnik to put questions to witnesses as “an experiment” to consider whether or not to allow him to represent himself (T. 13439; T.17205). See also Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T where the Trial Chamber accorded Hassan Ngeze the permission to cross-examine witnesses (under the control of the Chamber) as a temporary measure pending the consideration of his request for the withdrawal of his counsel (T. 15 May 2001, pp. 95-96); or – on a different occasion – allowed him to put additional questions to the witness through the Chamber on the basis of – otherwise unidentified – exceptional circumstances, provided that the questions were relevant and admissible (T. 27 November 2001, pp. 1-8); or allowed Hassan Ngeze to sit next to his Co-Counsel so as to participate actively in the cross-examination (T. 4 July 2002, pp. 3-12). The Appeals Chamber has found no error in the approach taken by the latter Trial Chamber (Nahimana et al. Appeal Judgement, paras 266-276).

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ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e) ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)
Notion(s) Filing Case
Decision on EDS Disclosure - 28.11.2013 MLADIĆ Ratko
(IT-09-92-AR73.2)

40. The Appeals Chamber recalls that the time granted to the parties for trial preparation and presentation of evidence is well within the trial chamber's discretion since decisions on such issues depend on a number of factors specific to each case.[1] A trial chamber has the authority to limit the length of time allocated to the parties, but must balance the need for adequate time with the need for an expeditious trial, taking all relevant factors into consideration.[2] In so doing, the trial chamber must consider whether the amount of time allocated is objectively adequate to permit the relevant party to fairly set forth its case in light of the complexity and number of issues to be litigated.[3] When a party alleges that a trial chamber erred in its decision with regard to the amount of time allocated, the question before the Appeals Chamber is whether the trial chamber took into account the relevant factors and determined that the time given to the party was sufficient for allowing a fair opportunity to present its case and, if so, whether the trial chamber's analysis of these factors was so deficient or unreasonable as to constitute an error in the exercise of its discretion.[4]

[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.7, Decision on Appeal from Decision on Motion for Further Postponement of Trial, 31 March 2010, paras 19, 23. See 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; 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 20 January 2004 Decision), para. 16.

[2] See Karadžić 29 January 2013 Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.10, Decision on Appeal from Decision on Duration of Defence Case, 29 January 2013]], para. 16; Prosecutor v. Jadranko Prlic et aI., 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 6 February 2007 Decision"), para. 14; Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005 ("Orić 20 July 2005 Decision"), para. 8; Milošević 20 January 2004 Decision paras 15-16.

[3] See Karadžić 29 January 2013 Decision, para. 16; Prlić 6 February 2007 Decision, para. 14; Orić Decision 20 July 2005, paras 8-9; Milošević 20 January 2004 Decision, paras 15-16.

[4] Prlić 6 February 2007 Decision, para. 14; Orić Decision 20 July 2005, para. 9; Milošević 20 January 2004 Decision, paras 15-16.

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ICTR Rule Rule 68(B) ICTY Rule Rule 68(ii)
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

16. The Appeals Chamber notes that “managerial decisions, such as whether to make a site visit, are left to the discretion of the Trial Chamber”.[1] In the instant case, the Appellant does not demonstrate that the Trial Chamber abused its discretion in finding that site visits were unnecessary to assess the credibility of the evidence and the charges against the Appellant. […]

[1] Galić Appeal Judgement, para. 50.

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Decision After Remand - 11.05.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

38. […] In exercising its discretion to control the proceedings, the Trial Chamber is working to ensure that the trial is completed within a reasonable time. The reduction of the Prosecution’s time for examination-in-chief also resulted in a cut to the Defence’s time for cross-examination. Furthermore, the modalities and allocation of time for presentation of the Accused’s case is yet to be determined by the Trial Chamber.[1]  When the proceedings reach that stage, the Appeals Chamber recalls that under the jurisprudence of the International Tribunal, the Trial Chamber will be bound to apply the longstanding principle of equality of arms[2] to ensure that a basic proportionality will govern the relationship between the time and number of witnesses allocated to all sides. In any case, the Prosecution has failed to demonstrate a discernible error committed by the Trial Chamber in this respect.

[1] Impugned Decision [Prosecutor v. Prlić et al., Case No. IT-04-74-T, Decision on Adoption of New Measures to Bring the Trial to an End within a Reasonable Time, 13 November 2006], para. 22 reads in relevant part: “In view of the fact that the time allocated for cross-examination is proportional to the duration of the examination-in-chief, it also impinges on the Defence. The Chamber shall deal with the modalities and the time to be allocated for the presentation of the Defence case at a later date”; see also, Prlić et al. Joint Response [Joint Defence Response of Jadranko Prlić, Slobodan Praljak and Berislav Pušić to Prosecution Appeal Concerning the Trial Chamber’s Ruling Dated 13 November 2006 Reducing Time for the Prosecution Case, 11 December 2006], para. 7 (“The Accused have strong reason to fear that their own time for presenting the Defence case, should they be called upon to do so, will be reduced, resulting in unfairness to the Defence and the real probability of injustice.”). The Petković Response and the Petković Defence Response to Prosecution Notice of Decision on Remand additionally take issue with the impact of the Impugned Decision on the time available to the Accused for the cross-examination of the Prosecution witnesses, paras. 11-13 and 5, respectively. It should be noted that the Petković Defence was denied certification to appeal against the Impugned Decision.

[2] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 44 (“The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.”); Orić Decision, para. 7 (“At a minimum, ‘equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case,’ certainly in terms of procedural equality.”).

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Decision After Remand - 11.05.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

The Prosecution challenged the compliance of the Impugned Decision on Remand with the Appeals Chamber’s direction to the Trial Chamber that it specifically consider whether the reduction of 107 hours from the 400 hours originally allocated to the Prosecution would allow it a fair opportunity to present its case in light of the complexity and number of issues that remain. The Appeals Chamber found:

28. The Appeals Chamber recognises that a substantial amount of time has been cut. It also takes note of the significant complexity and importance of this case amongst those that have and will have been prosecuted at the International Tribunal. [...]

29. The Appeals Chamber recognises that the reduction in time by the Trial Chamber will undoubtedly be seen to interfere with the presentation of the Prosecution’s case in that a cut will force the Prosecution to further revise and refine its trial strategy. It does not however, necessarily imply that the Prosecution will be unable to fairly and effectively present its case within the confines of the reduced time. The question before the Appeals Chamber is thus whether the Trial Chamber committed a discernable error in determining that the reduction of 107 hours would still allow the Prosecution a fair opportunity to present its case.

30. The Appeals Chamber has previously recalled in this case that “every court possesses the inherent power to control the proceedings during the course of the trial,”[1] and that it was within the discretion of the Trial Chamber to revise the time originally allocated to the Prosecution in the Decision Adopting Guidelines as a function of that power.[2] Following the remanding of the Impugned Decision and the renewed assessment carried out by the Trial Chamber, the Appeals Chamber finds the Trial Chamber acted within its discretion and defers to it in respect of the outcome of its assessment. The Appeals Chamber considers that the Trial Chamber has now clearly indicated the bases upon which it carried out its assessment, and is not persuaded that relevant factors have gone unconsidered or irrelevant factors have been accorded undue weight.[3] Furthermore, the Appeals Chamber does not find the Trial Chamber’s decision to be unfair or unreasonable as to constitute an abuse of its discretion.

31. The Appeals Chamber notes the Prosecution’s contention that the Trial Chamber’s reference to the use of Rules 92bis and 92ter of the Rules as a way to allow the Prosecution to present its case as efficiently as possible does not constitute a new or changed circumstance capable of justifying the cutting of the Prosecution’s time from 400 hours to 293 hours.[4] The Prosecution submits that in relying on these factors, the Trial Chamber is effectively “double-counting”, having used these rules in setting the original timeframe of 400 hours and now again using these same rules to justify the additional time cut.[5] Seeking to rely on the Milošević Appeal by the Amici, the Prosecution argues that the Trial Chamber has consequently given weight to extraneous or irrelevant considerations “which the Appeals Chamber has found to be an error in the exercise of discretion in the setting of time limits.”[6] The Appeals Chamber finds that this reference is inapposite. Noting that the Trial Chamber is the best placed authority to determine what amount of time is sufficient for the accused to prepare his defence, the Appeals Chamber in the Milošević Appeal by the Amici found that the “Trial Chamber’s decision was informed by sufficient factual information and by the appropriate legal principles, and did not take into account any impermissible factor” such as the completion target for the International Tribunal’s work.[7] In that case, the Appeals Chamber did not, as the Prosecution suggests, consider the use of Rules 92bis and 92ter to be extraneous or irrelevant considerations in determining the sufficiency of the time required for a party to prepare or present its case.[8]

32. Furthermore, it appears from the face of the Impugned Decision on Remand that the Trial Chamber was in fact careful not to “double count”. The Trial Chamber’s calculation of a savings of approximately 45 hours from the use of Rule 92ter represents the difference between the Prosecution’s estimation of the total time needed for the examination of all the witnesses who were examined prior to 28 February 2007 and the Registrar’s calculation of the time actually spent for the examination of these witnesses in court.[9]

33. Lastly, the Appeals Chamber notes that the Trial Chamber clearly indicated in the Decision Adopting Guidelines that any of the practices and guidelines contained therein were subject to being altered “as the trial progresses, in order to ensure that the proceedings are conducted in a fair and expeditious manner.”[10] Such changes were not necessarily predicated, as the Prosecution argues, on the demonstration of a new or changed circumstance.

[1] Appeals Chamber’s Decision, para. 14.

[2] Ibid. See also, Rules 54 and 73bis(F) of the Rules.

[3] The Prosecution’s argument that the Impugned Decision impermissibly gives priority to a stated Completion Strategy deadline over the rights of the victims, the Prosecution and the international community is noted below at paras. 42-43.

[4] Interlocutory Appeal Following Remand Prosecution Appeal Brief Following Decision on Remand and Trial Chamber’s Further Certification” filed on 29 March 2007, paras 25-26.

[5] Ibid.

[6] Ibid., referencing Milošević Appeal by the Amici, para. 18.

[7] Milošević Appeal by the Amici, para. 18.

[8] Decision Adopting Guidelines Prosecutor v. Prlić et al., Case No. IT-04-74-PT, Revised Version of the Decision Adopting Guidelines on Conduct of Trial Proceedings, 28 April 2006, para. 9(a). The Appeals Chamber understands the Prosecution to be referring to Rule 89(F) statements rather than Rule 92ter statements, as this latter Rule had yet to be adopted when the Decision Adopting Guidelines was issued.

[9] Impugned Decision on Remand Prosecutor v. Prli} et al., Case No. IT-04-74-T, Decision Following the Appeals Chamber Decision of 6 February 2007 Concerning Appeal Against Reducing Time for the Prosecution Case, 1 March 2007, p. 4, fn. 8.

[10] Decision Adopting Guidelines, para. 9(u).

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Decision After Remand - 11.05.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

The Prosecution challenged the compliance of the Impugned Decision on Remand with the Appeals Chamber’s direction to the Trial Chamber that it specifically consider whether the reduction of 107 hours from the 400 hours originally allocated to the Prosecution would allow it a fair opportunity to present its case in light of the complexity and number of issues that remain. The Appeals Chamber found:

25. The Appeals Chamber considers that while a Trial Chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision – in this case whether the reduced timeframe objectively allows the Prosecution a fair opportunity to present its case – the Prosecution overstates the Trial Chamber’s burden in this respect. It is sufficient here that the Trial Chamber indicated what documents and information it had taken into account and the factors it considered in assessing what remains to be covered against the backdrop of the Amended Indictment, while making clear in its assessment that it duly balanced the sometimes competing interests at stake in carrying out its duty to ensure the fairness and expeditiousness of the proceedings. The Trial Chamber is not, however, required to itemise and justify the time reduction in respect of each section of the Amended Indictment.[1]

[1] 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 Appeal by the Amici”), para. 9 (“While a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail.”).

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Decision on Attribution of Time to the Defence - 01.07.2008 PRLIĆ et al.
(IT-04-74-AR73.7)

16. All Appellants submit that the rights of the accused to a fair trial enshrined in Article 21 of the Statute should not be sacrificed to ensure the expeditiousness of proceedings.[1]  The Appeals Chamber recalls that, pursuant to Rules 73bis and 73ter of the Rules, the Trial Chamber is required to establish the number of witnesses each party may call and the amount of time allotted to each party. Specifically, Rule 73ter(E) of the Rules provides that, after having heard the defence and having reviewed the Rule 65ter submissions of each accused, the Trial Chamber shall determine the time available to the defence for presenting evidence. In exercising the discretionary power to allocate time, a Trial Chamber has the responsibility to ensure that “the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.”[2] Recognizing that excessive limitations of time may also compromise the due process rights of the accused, the Appeals Chamber has previously held that the considerations of judicial economy should never impinge on the rights of the parties to a fair trial.[3] In particular, the time granted to an accused under Rule 73ter of the Rules must be reasonably proportional to the time allocated to the Prosecution, and objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights under Article 21 of the Statute.[4]

19. The Appeals Chamber considers that a “purely arithmetical calculation” for the allocation of time to the Defence may constitute an abuse of the Trial Chamber’s discretion. As noted in the Orić Decision, “a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides”.[5] However, the Appeals Chamber is not satisfied that the Impugned Decision was based on such an arithmetic division of time.

23. The Appeals Chamber notes that Rule 92bis to 92quater are aimed at ensuring the efficient presentation of evidence at trial and may be relied upon in lieu of viva voce evidence where it does not impact upon the fairness of the proceedings. In assessing the amount of time reasonably required for each Accused to present his case, the Trial Chamber was entitled to assume that the parties would present their cases as efficiently as possible and take advantage of the options available to them to reduce the time for presenting evidence, especially if repetitive or peripheral. In light of the Trial Chamber’s familiarity with the case to be presented by the Defence, it was reasonable for the Trial Chamber to consider that the Defence could make use of Rules 92bis and 92ter of the Rules in relation to some of the witnesses each intended to call.

25. The Appeals Chamber finds that the Trial Chamber’s decision to assess the relevance of proposed testimony prior to its presentation in evidence falls within the discretion accorded to the Trial Chamber in its management of the trial. There is no prohibition against a Trial Chamber’s  considering that some of the evidence sought to be presented will be repetitive when assessing, in application of Rule 73ter(E) and on the basis of the 65ter List presented by an accused, the time necessary for the fair presentation of the Defence case. The Appeals Chamber considers that this method is not only reasonable, but also presents the advantage of certainty, enabling the Defence to organize its strategy on the basis of the time allocated to it. The Appeals Chamber further notes that the Trial Chamber clarified in the Impugned Decision that it would adopt a flexible approach and, should the Defence establish that additional time was necessary, it would grant additional time.[6]  Consequently, the Appeals Chamber finds no error in the approach adopted by the Trial Chamber.

[1] Praljak Appeal, paras 55-61; Praljak Reply [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Slobodan Praljak’s Request for Leave to Reply to the Prosecution’s Response and Praljak’s Reply to the Prosecution’s Response, 22 May 2008], para. 32; Petković Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Petković Defence Appeal Against the Trial Chamber’s 25 April 2008 Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge, 2 May 2008], paras 25-36; Petkovic Reply [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7,  Milivoj Petković Defence Reply to Prosecution Consolidated Opposition to the Defence Appeals Concerning the Trial Chamber’s Ruling Dated 25 April 2008 Reducing Time for the Defence Case, 22 May 2008], para. 4; Stojić Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Bruno Stojić Appeal from 'Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge' Issued 25 April 2008, 2 May 2008], paras 10-11.  

[2] Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.2, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007 (“Prlić Initial Decision on Prosecution Time”), para. 23.

[3] Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory decision on Length of Defence Case (“Orić Decision”), para 8; Prlić Initial Decision on Prosecution Time, para. 23; Prlić Decision on Cross Examination [Prosecutor v. 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], p. 4.

[4] Orić Decision, paras 8-9.

[5] Orić Decision, para. 7.

[6] Impugned Decision, para. 45. 

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The Appeals Chamber recalled that, in reducing the time allocated for the presentation of evidence, Trial Chambers must provide a reasoned opinion:

16. […] The Appeals Chamber recalls that a Trial Chamber must, at a minimum, provide reasoning in support of its findings on the substantive considerations relevant for a decision and considers that, in this case, the reasoning in the Impugned Decision in the absence of this assessment is insufficient in itself to support the reduction.[1] While it may be that, in light of the evidence presented to date, the reduction of 107 hours allocated to the Prosecution still permits it a fair opportunity to present its case, the Trial Chamber must specifically consider whether this is indeed so.

[1] See Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying his Provisional Release, 9 March 2006, para. 10; 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 (finding that the Trial Chamber had an obligation to provide reasons for its decision, although it need not have provided its reasoning in detail); Prosecutor v. Nikola Šainović and Dragoljub Ojdanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, para. 6. 

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23. […] The Trial Chamber did not state that because the Completion Strategy is reflected in a Security Council resolution, it is therefore bound to its deadlines in the management of this trial. Rather, it merely considered the Completion Strategy as one factor to be weighed in the Impugned Decision while correctly stressing that it would not allow the “considerations of economy” to “violate the right of the Parties to a fair trial.”[1] The Appeals Chamber notes however, as it has done previously in this case, that Completion Strategy considerations aside,

time and resource constraints exist in all judicial institutions and that a legitimate concern in this trial, which involves six accused, is to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.[2]

[1] Impugned Decision, para. 16.

[2] Prlić Decision on Cross-Examination, p. 4 (citations omitted).

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At para. 14, the Appeals Chamber held:

14. At the outset, the Appeals Chamber recalls that “every court possesses the inherent power to control the proceedings during the course of the trial.”[1] It was therefore entirely within the Trial Chamber’s discretion in the Impugned Decision to revise the time originally allocated to the Prosecution in the Decision Adopting Guidelines as a function of that power.[2] However, with respect to the Prosecution’s first argument in this Interlocutory Appeal, the Appeals Chamber further recalls its previous holding in the Orić case that in setting time limits for the presentation of evidence, a Trial Chamber is required to consider whether the amount of time allocated is objectively adequate to permit the relevant party to fairly set forth its case.[3] While the Orić Decision applied to the setting of time limits rather than to their revision as in this case, the same logic applies. Furthermore, while that decision by the Appeals Chamber involved a reduction of the Defence’s case, under Article 20(1) of the Statute of the International Tribunal, the requirement of the fairness of a trial is not uniquely predicated on the fairness accorded to any one party.[4] Indeed, the principle of equality of arms, falling within the fair trial guarantee under the Statute,[5] applies to the Prosecution as well as the Defence.[6] As previously reasoned by the Appeals Chamber:

application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community). This principle of equality does not affect the fundamental protections given by the general law of Statute to the accused, and the trial proceeds against the background of those fundamental protections. Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[7]

Thus, in this case, the question before the Appeals Chamber is whether the Trial Chamber, in reducing the Prosecution’s case by 107 hours, took into consideration the complexity of the remaining issues to be addressed and determined that the remainder of the time allotted to the Prosecution was sufficient for allowing it a fair opportunity to present its case.[8]

In the present case, the Appeals Chamber considered that:

16. The Appeals Chamber considers that although the Trial Chamber further based its decision on the fact that “adhering to these excessively long terms would not be in the interest of justice or in line with the right of the Accused to a fair and expeditious trial”,[9] it failed to adequately consider whether reducing the amount of time available to the Prosecution by 107 hours would still allow it the opportunity to fairly present its case.[10] The Trial Chamber’s duty to ensure the fairness and expeditiousness of proceedings will often entail a delicate balancing of interests. This is particularly so in a trial of this scope and complexity, for which there is little precedent. As stated previously, in allocating or revising the amount of time allotted to a party for the presentation of its case, the Trial Chamber is required to ensure that the allotted time is reasonably sufficient in light of the complexity and number of issues to be litigated.[11] In this sense, the Trial Chamber was required to assess whether the appropriate balance was struck in reducing the time available to the Prosecution for the presentation of its case. However, it failed to actually do so, merely stating in this regard that “the considerations of economy should never violate the right of the Parties to a fair trial.”[12] […]

[1] Milošević Decision to Impose Time Limit, para. 10 (emphasis in the original).

[2] Ibid. See also, Rules 54 and 73bis(F).

[3] Cf. Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, (“Orić Decision”), para. 8

[4] Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal Against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006, para. 13.

[5] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgement”), para. 44; Prosecutor v. Dario Kordić and Mario Čerkez,, Case No. IT-95-14/2-A, Judgement, 17 December 2004, para. 175.

[6] Tadić Appeal Judgement, para. 48; Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999 (“Aleksovski Decision”), para. 25.

[7] Aleksovski Decision, para. 25 (citations omitted), see also Prosecutor v. Zdravko Mucić et al., Case No. IT-96-21-T, Decision on the Motion of the Joint Request of the Accused Persons Regarding the Presentation of Evidence, 24 May 1998, para. 44 (“compliance with the specific rights set out in Article 21 alone may not necessarily guarantee that there has been a fair trial” and that “a fair trial can only be considered within the plenitude of the trial as a whole”).

[8] Orić Decision, para. 9. In this regard, the Appeals Chamber recalls that the Prosecution “has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond reasonable doubt.” Ibid., para. 7.

[9] Ibid., para. 14.

[10] The Appeals Chamber notes that the Prosecution made it clear in oral argument that it would not be able to put forward a “fair and reasonable case” should the Trial Chamber reduce its total number of allocated hours by one fourth. See  T. 9316, 1 November 2006; T. 9532, 6 November, 2006.

[11] Orić Decision, paras 8-9.

[12] Impugned Decision, para. 16.

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20. […] [T]he Appeals Chamber reiterates that the imposition of time limits in a trial – whether calculated in months or hours – is entirely the prerogative of the Trial Chamber. The true intent and extent of the independence accorded to the Prosecutor under Article 16 of Statute is to ensure that no “government or other institution or person, including the Judges of the Tribunal, can direct the Prosecutor as to whom he or she is to investigate or to charge.”[1] The Appeals Chamber maintains that it is erroneous for the Prosecution to suggest that its independence extends to the way in which its case is to be presented before a Trial Chamber.[2]

[1] Milošević Decision to Impose Time Limit, para. 12.

[2] Ibid., para. 13.

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At para. 8 of its Decision, the Appeals Chamber recalled the standard applicable to Trial Chambers’ decision on trial management:

8. It is well established in the jurisprudence of the International Tribunal that Trial Chambers exercise discretion in relation to trial management.[1] The Trial Chamber’s decision in this case to reduce the time allocated to the Prosecution for the presentation of its evidence was a discretionary decision to which the Appeals Chamber accords deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] The Appeals Chamber’s examination is therefore limited to establishing whether the Trial Chamber has abused its discretionary power by committing a discernible error.[3] The Appeals Chamber will only overturn a Trial Chamber’s exercise of its discretion where it is found to be “(1) based on an incorrect interpretation of governing law; (2) based on a patently incorrect conclusion of fact; or (3) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.”[4]

[1] 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 Decision on Cross-Examination”), p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006 (“Decision on Radivoje Miletić’s Interlocutory Appeal”) para. 4; Prosecutor v. Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004 (“Milošević Decision on the Assignment of Defence Counsel”) para. 9; Prosecutor v. Milošević, Case No. IT-02-54-AR73, Reasons for Refusal of Leave to Appeal from Decision to Impose Time Limit, 16 May 2002 (“Milošević Decision to Impose Time Limit”), at para. 14: “The prosecution concedes, correctly, that the decision by the Trial Chamber to impose a time limit within which the prosecution was to present its case was a discretionary one.”

[2] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4; Milošević Decision on Defense Counsel, para. 9.

[3] Prlić Decision on Cross-Examination, p. 3 citing Prosecutor v. Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 4: “Where an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision”, see also paras 5-6; see also Milošević Decision on the Assignment of Defence Counsel, para. 10; Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005 (“Stanišić Provisional Release Decision”), para. 6.

[4] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Stanišić Provisional Release Decision, para. 6 & n. 10. The Appeals Chamber will also consider whether the Trial Chamber “has given weight to extraneous or irrelevant considerations or that it has failed to give weight or sufficient weight to relevant considerations . . . .” Ibid

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Decision on Translation - 04.09.2008 PRLIĆ et al.
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29. It is well established in the jurisprudence of this Tribunal that equality of arms does not mean equality of resources, but rather 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.[1]  In this respect, the Appeals Chamber is not persuaded by Praljak’s argument that translation resources allocated to the Prosecution are relevant to the determination as to which resources should be allocated to him for the conduct of his defence. 

See also Karadžić Decision on Languages, 4 June 2009.

[1] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, paras 44-55; Prosecutor v. Zlatko Aleskovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, paras 23-25; The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement, 1 June 2001, para. 69; Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, paras 23-24; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004, paras 175-177; Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, paras 7-9; Decision of 1 July 2008, para. 39.

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9. The Appeals Chamber considers that the Trial Chamber’s calculations were indeed erroneous.  The Trial Chamber reasoned in the Impugned Order that “since the co-accused must respond to similar allegations from the Prosecution, a similar number of standard United Nations pages of documents should allow each one of them to effectively ensure his own defence”.[1]  Assuming this reasoning is appropriate in light of the specific circumstances of each accused, the total number of pages to be allocated to Praljak is to be compared with the total number of pages of translations received or to be received by the co-accused in question, including both the pages already translated and those pending translation.

19. The Appeals Chamber considers that the Trial Chamber did not commit a discernable error in requesting in advance a detailed description of the documents that Praljak wanted to have translated.  Without this information, the Trial Chamber could not make a reasonable assessment as to what translation resources were justifiably needed by the Defence. For the Trial Chamber to have left such an assessment until the opening of the Defence case, at which time the precise contours of the Defence case would be known, would only result in unnecessary delays in the translation process.  An early assessment of the resources to be allocated to the parties ensures the smooth and expeditious conduct of the proceedings and the request of the Trial Chamber clearly falls within its discretionary power based on its familiarity with the case and its daily management of the trial.

20. While the Appeals Chamber is satisfied that the approach of the Trial Chamber fell well within its discretionary power, it is nevertheless concerned that the assessment of the Trial Chamber was in violation of the right of an accused being tried jointly to be accorded the same rights as if he were tried separately in accordance with Rule 82 of the Rules.  The Appeals Chamber notes that the Trial Chamber decided on the translation resources to be allocated to Praljak by reference to those already allocated to his co-defendants without considering whether that reference point was sufficient to take into account Praljak’s specific needs.  If a comparison among resources to be allocated to co-defendants is relevant to ensure the fair treatment of each defendant vis-à-vis each other, the Trial Chamber must still ultimately make an assessment of the resources of each accused separately in order to ensure these resources are sufficient for the conduct of that accused’s case pursuant to Article 21(4)(b) of the Statute.

25. The Appeals Chamber finds that Rule 3(E) of the Rules, which provides “(t)he Registrar shall make any necessary arrangements for interpretation and translation into and from the working languages” does not preclude the Trial Chamber from imposing a reasonable limitation on what translation resources should be made available to an accused to ensure a fair trial.  The authority to impose such a limitation flows from the Trial Chamber’s responsibility and authority of managing the proceedings before it.  As such, it is within the Trial Chamber’s discretion to limit the translation resources made available to the parties provided that the limitation is consistent with the statutory rights of an accused, including Article 21(4)(e) of the Statute.

26. The Appeals Chamber further notes that it is not necessarily inconsistent for the Trial Chamber to limit both the time available for oral testimony and the translation resources available for written testimony if the combined limitations do not hinder the capacity of the accused to present an adequate defence.  The key requirement under Article 21(4)(b) of the Statute is that the assessment of each measure ­ such as the limitation on translation services ­ must be made in the context of the totality of the other measures taken, including the limitations on oral testimony.

[1] Impugned Order [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Ordonnance portant sur la demande de Slobodan Praljak relative à la traduction de documents, 16 May 2008], p. 8 (emphasis added).

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Appeal Judgement - 26.05.2003 RUTAGANDA George
(ICTR-96-3-A)

45. [...] [T]he Appeals Chamber recalls that the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions.[1]

[1] Akayesu Appeal Judgement, para. 318.

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

182. Under Rule 90(F) of the Rules, the Trial Chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”. The Appeals Chamber recalls that the Trial Chamber has discretion to determine the modalities of examination-in-chief, cross-examination and re-examination so as to accord with the purposes of Rule 90(F). In this regard, it should be emphasised that:

the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions.[1]

When addressing a submission concerning the modalities of examination, cross-examination or re-examination of witnesses, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

[1] Rutaganda Appeal Judgement, para. 45. See also Akayesu Appeal Judgement, para. 318.

[2] Rutaganda Appeal Judgement, paras. 99 and 102.

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Appeal Judgement - 18.03.2010 NCHAMIHIGO Siméon
(ICTR-01-63-A)

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”.[1] 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. 

[1] 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). 

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Decision on Trial Date - 12.05.2009 NGIRABATWARE Augustin
(ICTR-99-54-A)

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.[1] However, the Appeals Chamber stresses that these considerations should never impinge on the rights of the parties to a fair trial.[2]

See also paras 22-24, 27 above.

[1] 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.

[2] 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.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

26. It is well established that trial chambers exercise discretion in relation to trial management, which includes decisions on adjournments.[1] 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.[2] 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.[3] 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. […]

[1] 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.

[2] See Šešelj Decision of 16 September 2008, para. 3.

[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.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

52. The Appeals Chamber recalls that when a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the trial chamber violated a provision of the Statute and/or the Rules and that this violation caused prejudice which amounts to an error of law invalidating the trial judgement.[1] […] The Appeals Chamber would only reverse such a decision [related to the general conduct of trial proceedings] where it was demonstrated that the Trial Chamber committed a discernible error in rendering the decision, based on an incorrect interpretation of the governing law or a patently incorrect conclusion of fact, or where the decision was so unfair or unreasonable so as to constitute an abuse of the Trial Chamber’s discretion.[2]

[1] Haradinaj et al. Appeal Judgement, para. 17; Krajišnik Appeal Judgement, para. 28.

[2] See, e.g., Kalimanzira Appeal Judgement, para. 14; Rukundo Appeal Judgement, para. 147.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

42. The Appeals Chamber recalls that under Rule 90(F) of the Rules, the trial chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) [m]ake the interrogation and presentation effective for the ascertainment of the truth; and (ii) [a]void needless consumption of time.” Trial chambers therefore enjoy discretion in setting the parameters of cross-examination.[1] When addressing a submission concerning the modalities of cross-examination, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

[1] Rukundo Appeal Judgement, para. 133; Nahimana et al. Appeal Judgement, para. 182. See also Prlić et al. Decision of 4 July 2006 [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], p. 3.

[2] Nahimana et al. Appeal Judgement, para. 182, referring to Rutaganda Appeal Judgement, paras. 99, 102.

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Decision on Duration of Defence Case - 29.01.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.10)

20. […] The Appeals Chamber is similarly unconvinced by Karadžić’s contention that the Trial Chamber’s decision to limit the length of his defence, on the basis that evidence he proposed to adduce was irrelevant, demonstrated a “double standard” applied to his detriment, given the large scope of the Prosecution’s case.[1] The Appeals Chamber recalls that the Trial Chamber granted Karadžić the same courtroom time as it granted the Prosecution,[2] and further notes the discretion accorded to the Trial Chamber to “assess the relevance of proposed testimony prior to its presentation”.[3] In these circumstances, the Appeals Chamber considers that Karadžić has not demonstrated any erroneous “double standard” by the Trial Chamber.[4] 

21. The Appeals Chamber notes that the Impugned Decision does not explicitly address Karadžić’s contention that his particular defence strategy involves disputing “everything except the weather”, and thus requires extensive courtroom time. However the Appeals Chamber is not satisfied that this omission constituted an error on the part of the Trial Chamber. The Appeals Chamber recalls that a Trial Chamber’s decision not to explicitly refer to a specific fact or contention does not necessarily demonstrate a failure to consider that issue. In addition, the Appeals Chamber notes that the Trial Chamber considered, inter alia, the duration and extent of Karadžić’s cross-examination of Prosecution witnesses, a consideration that suggests the Trial Chamber took into account Karadžić’s defence strategy when determining the amount of time allocated for the presentation of the defence case. In these circumstances, the Appeals Chamber, Judge Robinson dissenting, is not satisfied that Karadžić has demonstrated any error on the part of the Trial Chamber. 

22. The Appeals Chamber, Judge Robinson dissenting, finds no error in the Trial Chamber’s analysis of the parties’ direct and cross-examination of Prosecution witnesses. Karadžić contends that the Prosecution’s use of written testimony meant that the comparatively short duration of direct examination “bore absolutely no relation” to the breadth of testimony, or, accordingly, to the time he needed to cross‑examine Prosecution witnesses. He also submits that the limitations imposed by the Trial Chamber on the length of his cross-examinations further undermine the relevance of this consideration. However, the Appeals Chamber notes that the Trial Chamber did not merely compare the duration of direct and cross-examination during the Prosecution case, but also considered the nature and substance of Karadžić’s cross-examination, specifically observing that Karadžić elicited evidence relevant to his defence pursuant to Rule 90(H) of the Rules. The Appeals Chamber considers, Judge Robinson dissenting, that it is within a trial chamber’s discretion to determine that, in certain circumstances, the elicitation of such evidence is relevant to the time allocated to the defence for the presentation of its case. Recalling that a trial chamber’s decision on the allocation of time for the defence case is “the result of a highly contextual analysis”, the deference accorded to such decisions, and the trial chamber’s obligation to ensure that trials do not suffer undue delays, the Appeals Chamber, Judge Robinson dissenting, finds that the Trial Chamber did not err, in the circumstances of this case, by considering the duration and content of Karadžić’s cross-examination in allocating 300 hours for his defence.

[1] Reply [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.10, Reply Brief: Appeal from Decision on Duration of Defence Case, 25 October 2012], para. 21. See also Appeal [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.10, Appeal from Decision on Duration of Defence Case, 12 October 2012], paras 32-33; Reply, paras 11-12, 18-20.

[2] See supra [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.10, Decision on Appeal from Decision on Duration of Defence Case, 29 January 2013], n. 62.

[3] Prlić et al. Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants[’] Appeal Against “Décision portant attribution du temps à la défense pour la présentation des moyens à décharge”, 1 July 2008], para. 25.

[4] Reply, para. 21.

[5] Appeal, para. 42 (internal quotation omitted).

[6] See Appeal, paras 44-45.

[7] See Prlić et al. Decision, para. 48.

[8] Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Time Allocated to the Accused for the Presentation of his Case, 19 September 2012], paras 9-10.

[9] Appeal, para. 37. See also Appeal, paras 36, 38-39.

[10] See Reply, para. 10.

[11] Impugned Decision, paras 9-10.

[12] Prlić et al. Decision, para. 35.

[13] Prlić et al. Decision, para. 15.

[14] Prlić et al. Decision, para. 16.

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Decision on Duration of Defence Case - 29.01.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.10)

16. Turning to the parties’ central contentions, the Appeals Chamber, Judge Robinson dissenting, is satisfied that Karadžić has not demonstrated that 300 courtroom hours is an objectively inadequate amount of time for his defence. The Appeals Chamber recalls that, while the Trial Chamber was required to allocate sufficient time for Karadžić to present his defence,[1] it also has an obligation to ensure that proceedings do not suffer undue delays.[2] The Appeals Chamber further recalls that the allocation of time for the presentation of the defence case is based on a contextual analysis of the specific factors relevant to the case.[3] Considering that the Prosecution bears the burden of proof,[4] an allocation of time reasonably proportional to that granted to the Prosecution will often result in less time being granted to the defence for the presentation of its case.[5] The Appeals Chamber recalls that Karadžić and the Prosecution were each granted 300 hours to present their cases,[6] and further recalls that Karadžić has already used more than twice as much time as the Prosecution during the presentation of the Prosecution case.[7] In these circumstances, the Appeals Chamber, Judge Robinson dissenting, is not persuaded that Karadžić has demonstrated any objective unfairness in the Impugned Decision.

[1] Orić Decision [Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005], para. 8.

[2] Prlić et al. Decision, para. 16.

[3] Prlić et al. Decision, para. 35.

[4] See Statute, Article 21(3); Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Judgement, 16 November 2012, para. 63.

[5] See, e.g., Prosecutor v. Momčilo Perišić, Case No. IT-04-81-T, Judgement, 6 September 2011 (public with confidential Annex C), Annex A, paras 18 (allocation of 335 hours for the Prosecution’s case), 23 (allocation of 180 hours for the defence case); Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement, 3 March 2000 (originally filed in French; the English translation was filed on 20 April 2000), para. 53 (allocation of 75 trial days for the Prosecution’s case and 60 trial days for the defence case).

[6] See T. 6 October 2009 p. 467 (granting 300 hours for the Prosecution’s case); Impugned Decision, para. 14 (granting Karadžić 300 hours for his defence case).

[7] Impugned Decision, para. 9. While Karadžić contests the relevance of this comparison, (see Appeal, paras 36-39; Reply, paras 14-16) he does not challenge the accuracy of the Trial Chamber’s calculation that his cross-examinations of Prosecution witnesses took two and a half times as long as the Prosecution’s direct examinations (see generally Appeal; Reply).

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Decision on Duration of Defence Case - 29.01.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.10)

18. The Appeals Chamber first turns to Karadžić’s contentions regarding the Adjudicated Facts. Contrary to Karadžić’s suggestion, the Judicial Notice Decisions did not suggest that he would be allocated additional time to rebut the Adjudicated Facts.[1] In addition, the Appeals Chamber, Judge Robinson dissenting, considers Karadžić is unconvincing in asserting that the Impugned Decision did not sufficiently assess the time he would need to rebut the Adjudicated Facts.[2] The Appeals Chamber notes that the Trial Chamber explicitly considered the “high number of adjudicated facts”[3] as one element underlying its decision granting Karadžić the same courtroom time as the Prosecution. The Trial Chamber also explicitly assessed the potential impact of the Adjudicated Facts on Karadžić’s case, concluding that not every Adjudicated Fact would need to be rebutted during Karadžić’s defence, as Karadžić had an opportunity to cross‑examine and elicit relevant evidence from Prosecution witnesses during the presentation of the Prosecution case.[4] While this analysis did not specify the amount of time being granted to rebut the Adjudicated Facts, the Appeals Chamber recalls that a trial chamber is “not obligated to justify its decision [on the allocation of time] with reference to each piece of evidence proposed”.[5] Accordingly, the Appeals Chamber, Judge Robinson dissenting, is not satisfied that Karadžić has demonstrated that the Impugned Decision’s analysis of the Adjudicated Facts was deficient.

19. The Appeals Chamber notes that Karadžić challenges the Impugned Decision by discussing the Trial Chamber’s analyses of certain Adjudicated Facts which he contends are demonstrative of the Trial Chamber’s general failure to consider the full import of the Adjudicated Facts.[6] However, the Appeals Chamber observes that the Trial Chamber was intimately aware of the scope of the Adjudicated Facts, as demonstrated by its multiple detailed decisions considering adjudicated facts proposed by the Prosecution.[7] In addition, the Appeals Chamber notes that the Impugned Decision explicitly considered that Karadžić had the opportunity to cross-examine Prosecution witnesses on many of the topics covered by the Adjudicated Facts, further demonstrating the Trial Chamber’s familiarity with this evidence.[8] In these circumstances, recalling that trial chambers enjoy broad discretion in evaluating evidence,[9] the Appeals Chamber, Judge Robinson dissenting, finds that Karadžić has not demonstrated that the Trial Chamber erred in its assessment of the import or scope of the Adjudicated Facts in its consideration of the time allocated for the defence case.

[1] See First Judicial Notice Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on First Prosecution Motion for Judicial Notice of Adjudicated Facts, 5 June 2009], para. 36; Third Judicial Notice Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Third Prosecution Motion for Judicial Notice of Adjudicated Facts, 9 July 2009], para. 61.

[2] See Reply, para. 4.

[3] Impugned Decision, para. 10.

[4] Impugned Decision, para. 10.

[5] Prlić et al. Decision, para. 69.

[6] Appeal, paras 29-31, 33.

[7] These decisions totalled nearly 150 pages. See [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on First Prosecution Motion for Judicial Notice of Adjudicated Facts, 5 June 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Third Prosecution Motion for Judicial Notice of Adjudicated Facts, 9 July 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Second Prosecution Motion for Judicial Notice of Adjudicated Facts, 9 October 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Fourth Prosecution Motion for Judicial Notice of Adjudicated Facts, 14 June 2010; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Fifth Prosecution Motion for Judicial Notice of Adjudicated Facts, 14 June 2010; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Accused’s Motions for Reconsideration of Decisions on Judicial Notice of Adjudicated Facts, 14 June 2010; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Three Accused’s Motions for Reconsideration of Decisions on Judicial Notice of Adjudicated Facts, 4 May 2012].

[8] Impugned Decision, para. 10.

[9] See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 63 (“Trial [c]hambers are best placed to hear, assess and weigh the evidence […] presented at trial.”).

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

142. Regarding the questioning of Mijatović, the Appeals Chamber recalls that under Rules 85(B) and 90(F) of the Rules, it is within a trial chamber’s discretion to intervene where an issue requires clarification. A trial chamber may do so either by communicating with counsel or by directly clarifying the issue with the witness. As the Trial Chamber correctly observed, as long as its questions did not pursue an independent enquiry into the evidence of the witness, they were properly apportioned to the time of the examining party.[1]

[1] Decision of 16 April 2008 [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Lukić Defence Objection to February 2008 Report on Use of Time, 16 April 2008], para. 13.

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

114.   The Appeals Chamber notes that the Trial Chamber’s decisions setting time limits within which Lukić was required to file the translations of the exhibits on his Rule 65 ter list are discretionary decisions to which the Appeals Chamber must accord deference.[1] It further recalls that, pursuant to Rule 3(E) of the Rules, “[t]he Registrar shall make any necessary arrangements for interpretation and translation into and from the working languages” of the Tribunal. This obligation does not imply, however, that the parties have unlimited access to the translation resources of the Tribunal. Rather, a trial chamber may impose certain limitations provided that they are consistent with the right of the accused to have adequate time and facilities for the preparation of his defence.[2] Any such limitations must be based on a reasonable assessment of the Defence needs of each particular accused in a multi-accused trial, taking into account the legal and factual complexity of the case.[3] Accordingly, it is not appropriate to limit a party’s access to translation resources solely because of CLSS capacity restraints.[4]

[1] Cf. Krajišnik Appeal Judgement, para. 81, and references therein.

[2] See Article 21(4)(b) of the Statute. See also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.9, Decision on Slobodan Praljak’s Appeal Against the Trial Chamber’s Decision of 16 May 2008 on Translation of Documents, 4 September 2008 (“Prlić Decision of 4 September 2008”), para. 25.

[3] See Prlić Decision of 5 December 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.12, Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s 13 October 2008 Order Limiting the Translation of Defence Evidence, 5 December 2008], para. 28, referring to Prlić Decision of 6 February 2007 [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], para. 16.

[4] Prlić Decision of 5 December 2008, para. 24.

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Decision on Postponement of Trial - 31.03.2010 KARADŽIĆ Radovan
(IT-95-5/18-AR73.7)

23. In the course of discharging their duty to ensure that a trial is fair and expeditious,[1] Trial Chambers enjoy considerable discretion in scheduling trials.[2] 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”.[3] 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.[4]

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.[5] The Trial Chamber found that much of the disclosure made to Karadžić during the adjournment period was unavoidable […].[6] […]. 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.[7] 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.[8]

26. […] Regarding the Prosecution’s motions relating to judicial notice, bar table and amendment of the Rule 65ter exhibit list,[9] 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.[10] 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.[11] […].

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.

[1] 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.

[2] Ngirabatware Decision, para. 22; Milošević Decision, para. 16.

[3] 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.

[4] See Appeal Decision on Commencement of Trial, paras 19, 23. See also Ngirabataware Decision, para. 28.

[5] Impugned Decision, paras 25-37.

[6] Id., para. 38.

[7] Id., para. 39.

[8] Id., para. 40.

[9] 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.

[10] 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.

[11] 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.

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ICTR Statute Article 19(1);
Article 20(4)(d)
ICTY Statute Article 20(1);
Article 21(4)(d)
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Decision on Trial Date - 13.10.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.5)

19. [R]ather than establishing that the calculation of pre-trial preparation time is a mechanically “objective” task,[1] the Ngirabatware Decision underscores 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”.[2] A Trial Chamber’s assessment of the amount of pre-trial preparation required in each case is a fact-intensive exercise but also involves an exercise of the Trial Chamber’s judgement. The factors cited in the Ngirabatware Decision and addressed by both Karadžić and the Prosecution are specifically described as examples of indicia that might impact a Trial Chamber’s assessment of the pre-trial preparation period,[3] rather than constituting a required “objective” checklist for Trial Chambers.  

20. […] The Appeals Chamber reiterates that assessing the amount of pre-trial preparation required is not a mechanical duty, and also that “[w]hile a Trial Chamber has an obligation to provide reasons for its decision, it is not required to articulate the reasoning in detail”.[4] […] The Appeals Chamber underscores that “[i]n examining whether the Trial Chamber has considered appropriate factors in sufficient measure” with regard to pre-trial preparation, “the Appeals Chamber is not limited to the text of the order issued by the Trial Chamber”. Instead, it will look to relevant decisions and transcripts of recent status and pre-trial conferences in order to determine “whether the Trial Chamber gave the issues involved due consideration”.[5]

[1] See Appeal [Appeal of Decision on Commencement of Trial, 25 September 2009], para. 31.

[2] Ngirabatware Decision [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. 28; see also Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Appeal Judgement, 28 November 2007, para. 220.

[3] Ngirabatware Decision, para. 28.

[4] Milošević Decision [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation of the Defence Case, 20 January 2004], para. 7 (internal citations omitted).

[5] Milošević Decision, para. 7.

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Decision on Interlocutory Appeal - 30.10.2006 ZIGIRANYIRAZO Protais
(ICTR-01-73-AR73)

The ICTR Appeals Chamber recalled the following:

9. Decisions relating to the general conduct of trial proceedings are matters within the discretion of the Trial Chamber. 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.

[1] The Prosecutor v. Théoneste Bagosora et al., Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, Case No. 98-41-AR73, 25 September 2006, para. 6 (“Bagosora Appeal Decision”); Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-AR73(C), Decision on Interlocutory Appeal, 29 May 2006, para. 5 (“Muvunyi Appeal Decision”).

[2] Bagosora Appeal Decision, para 6; Muvunyi Appeal Decision, para. 5. See also The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 3.

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Decision on Right to Be Present - 05.10.2007 KAREMERA et al.
(ICTR-98-44-AR73.10)

7. Decisions relating to the general conduct of trial proceedings are matters within the discretion of the Trial Chamber. The Impugned Decision, which ruled on the right of the accused to be present at trial, was such a discretionary decision to which the Appeals Chamber must accord deference. Such deference is based on the recognition by the Appeals Chamber of “the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case.”[2] A Trial Chamber’s exercise of discretion will thus be reversed only if the Appellant demonstrates that the Trial Chamber made a discernible error in the Impugned Decision because it 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.

[1] See The Prosecutor v. Élie Ndayambaje et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeals against the Decision of Trial Chamber II of 21 March 2007 concerning the Dismissal of Motions to Vary his Witness List, 21 August 2007 (“Kanyabashi Decision”); The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.8, Decision on Interlocutory Appeal Regarding Witness Proofing, 11 May 2007, para. 3; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision”), para. 9.

[2] Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 4; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004, para. 9.

[3] See Kanyabashi Decision, para. 10; Zigiranyirazo Decision, para. 9.

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Decision on Length of Defence Case - 20.07.2005 ORIĆ Naser
(IT-03-68-AR73.2)

7.         The question of time limits and witness allocation is somewhat less straightforward.  The Appeals Chamber has long recognized that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.”[1]  At a minimum, “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity.[2]  This is not to say, however, that an Accused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution.  The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt.  Defense strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavor which may require less time and fewer witnesses.  This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.

8.       In addition, it should be noted that although Rule 73 ter gives the Trial Chamber the authority to limit the length of time and number of witnesses allocated to the defense case, such restrictions are always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute of the International Tribunal be respected.  Thus, in addition to the question whether, relative to the time allocated to the Prosecution, the time given to the Accused is reasonably proportional, a Trial Chamber must also consider whether the amount of time is objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights.[3]

9.       The question, then, is whether, taking into account the complexity of the remaining issues, the amount of time and the number of witnesses allocated to Orić’s defense are reasonably proportional to the Prosecution’s allocation and sufficient to permit Orić a fair opportunity to present his case.  The Trial Chamber’s order leaves Orić nine weeks to present 30 witnesses.[4] [….]

[1] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 44 (“Tadić Appeal Judgement”).

[2] Tadić Appeal Judgement, paras. 48, 50 (discussing principles laid down by the European Court of Human Rights and by the Human Rights Committee); see also id. at para. 52 (“[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.”); see generally Antonio Cassese, International Criminal Law, pp. 395-397.

[3] Plainly, it may not be possible to predict with precision before the Defense begins how much time will be necessary; thus, as the Trial Chamber correctly noted, Rule 73 ter allows for additional time to be granted later “in the interests of justice.”

[4] Orić’s Brief [Urgent Appeal of Trial Chamber’s Decision on Length of Defence Case, 7 July 2005], para. 4; see alsoT. 4 July 2005, p. 9148 (unofficial and uncorrected transcript) (noting that the 30 September 2005 deadline leaves the Defense nine weeks to present its case).

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ICTR Statute Article 21 ICTR Rule Rule 73ter ICTY Rule Rule 73ter(C);
Rule 73ter(E)
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Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

283.    The Appeals Chamber agrees that the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identified and presented in the case in chief of the party making the application.  If it is shown that the evidence could not have been found with the exercise of reasonable diligence before the close of the case, the Trial Chamber should exercise its discretion as to whether to admit the evidence by reference to the probative value of the evidence and the fairness to the accused of admitting it late in the proceedings.  These latter factors can be regarded as falling under the general discretion, reflected in Rule 89 (D) of the Rules, to exclude evidence where its probative value is substantially outweighed by the need to ensure a fair trial.  […]

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Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

The Appeals Chamber considered the implications of Security Council Resolution 1503 (2003)[1] and Security Council Resolution 1534 (2004)[2] on on-going trials in light of the 31 December 2008 deadline to complete all trials. It held that when assessing these implications, the overriding consideration must be the strict adherence to the “minimum guarantees afforded to accused persons pursuant to Article 20 of the Tribunal’s Statute”:

24. The Appeals Chamber notes that the remaining Judges expressed the view that the completion of all trials by 31 December 2008 is “more of a target date”[3] and that there was “nothing to suggest that unfair decisions and actions will be taken with regard to cases that are pending on 31 December 2008.”[4] The Appeals Chamber also notes that resolution 1503 urges the Tribunal to formalise a strategy to enable the Tribunal “to achieve its objective” of completing all trials by the end of 2008[5] and calls on the Tribunal “to take all possible measures” in this regard.[6] The Appeals Chamber is of the view that when assessing the implications of resolution 1503 and resolution 1534 to on-going trials, the overriding consideration must be the strict adherence to the minimum guarantees afforded to accused persons pursuant to Article 20 of the Tribunal’s Statute. The Appeals Chamber considers that the remaining Judges properly addressed this overriding consideration and sees no error in their interpretation of their obligations in the context of resolution 1503 and resolution 1534.  The remaining Judges considered that the trial in the Applicants’ case could be completed fairly and expeditiously by 31 December 2008, by using appropriate trial management methods within their discretion and taking reasonable decisions.[7] In the event of the trial not being completed by the end of 2008, the remaining Judges stated that “reasonable decisions will be taken in the interests of justice [and] taking into account the rights of each co-Accused.”[8] The Appeals Chamber finds no error in this approach.

[1] S/RES/1503 (2003) (“Resolution 1503”).

[2] S/RES/1534 (2004) (“Resolution 1534”).

[3] Impugned Decision, para. 87.

[4] Impugned Decision, para. 87.

[5] Resolution 1503, p. 2.

[6] Resolution 1503, p. 3 at para. 7; Resolution 1534, p. 2 at para. 3.

[7] Impugned Decision, para. 87.

[8] Impugned Decision, para. 87.

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Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

The ICTR Appeals Chamber followed the approach of the ICTY Appeals Chamber in the Orić case:

27. The Appeals Chamber notes that in the Orić case,[1] the ICTY Appeals Chamber stated that:

[t]he Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour which may require less time and fewer witnesses. This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.[2]

28. The ICTY Appeals Chamber further held in the Orić Decision that the Trial Chamber has the authority to limit the length of time allocated to the Defence,[3] but that such limitations are always subject to the full respect for the rights of an accused as guaranteed in the Tribunal’s Statute.[4] Thus, in addition to whether the time given to an accused is relatively proportional to the time given to the Prosecution, the Trial Chamber must also consider whether the amount of time is objectively adequate to enable the accused to present his defence in a manner consistent with his rights.[5]  

[1] Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, (“Orić Decision”).

[2] Orić Decision, para. 7.

[3] Orić Decision, para. 8.

[4] Orić Decision, para. 8.

[5] Orić Decision, para. 8.

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Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

119. As noted above,[1] the Trial Chamber exceptionally and temporarily allowed Krajišnik to supplement his Counsel’s cross-examination with his own questions to the witness pending final decision on his request to self-represent.[2] The Appeals Chamber is of the view that the Trial Chamber acted within its discretion in doing so. The Appeals Chamber has already recognised that an accused represented by counsel may in certain circumstances directly put questions to a witness, subject to the Trial Chamber’s supervision.[3] In the Appeals Chamber’s opinion, the circumstances at hand (the pending request to self-represent) made it appropriate to allow Krajišnik to put questions to the witnesses after the cross-examination of Counsel. The Appeals Chamber further notes that the Trial Chamber explicitly warned Krajišnik of the risks connected with taking an active role in cross-examinations.[4] In the circumstances, the Appeals Chamber is not persuaded that Amicus Curiae has shown that the Trial Chamber’s decision rendered the trial unfair. The only concrete prejudice alleged by Amicus Curiae concerns Krajišnik’s handling of the cross-examination of Witness Davidović,[5] but he does not provide any reference in this regard and the Appeals Chamber can not thus assess this contention.

[1] See supraIII.A.1.

[2] Trial Judgement, para. 1245. This practice was extended even after Krajišnik’s request for self-representation was denied: the Trial Chamber allowed Krajišnik a limited role in complementing his Counsel’s examination-in-chief of Defence witnesses, subject to the Trial Chamber’s supervision (T. 17205-17206; Trial Judgement, para. 1246). Amicus Curiae does not seem to argue that the Trial Chamber erred in doing so. In any case, the Appeals Chamber can see no error in this, for the reasons given below.

[3] Prosecutor v. Jandranko Prlić et al., Case No. IT-04-74-AR73.5, Decision on Praljak’s Appeal of the Trial Chamber’s 10 May 2007 Decision on the Mode of Interrogating Witnesses, 24 August 2007. See also Nahimana et al, Appeal Judgement, para. 267; Prosecutor v. Jandranko Prlić et al., Case No. IT-04-74-AR73.11, Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s Decision on the Direct Examination of Witnesses Dated 26 June 2008, 11 September 2008, para. 22.

[4] T. 13440:

[…] your lack of legal experience means that there is a serious risk that you’ll damage your position. You should be aware that if you inadvertently damage your position through questioning witnesses, that it's something you shall have to live with. The Chamber therefore strongly advises you to consult your assigned counsel about any line of questioning you wish to pursue.

[5] Amicus Curiae’s Reply, para. 24.

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Decision on Leave to Appeal (Prosecution) - 14.12.2001 GALIĆ Stanislav
(IT-98-29-AR73)

7. Rule 73[bis](E) is a powerful tool for preventing excessive and unnecessary time being taken by the prosecution, and it is intended to ensure that the prosecution litigates only those issues which are really in dispute and which are necessary to determine for the purposes of its case.  Its introduction followed serious excesses by prosecution teams in the past.  Taken by itself, or in conjunction with Rule 73bis(C) (which permits the Trial Chamber to set for itself the number of witnesses the prosecution may call), Rule 73bis(E) requires the Trial Chamber to consider with care whether the issues really in dispute have been clearly identified so that a proper assessment of the time needed for the prosecution can be made.  […]

12. Reference has already been made to Rule 73bis(F), which permits the Trial Chamber during the trial to grant a request by the prosecution for additional time to present evidence “if this is in the interests of justice”.[1]  This provision, however, appears to contemplate an extension of the time originally determined principally (although not necessarily wholly) because of circumstances which have arisen since the original determination was made.  The exercise of the power given by Rule 73bis(F) does not therefore automatically cure any prejudice created by an error made in the original determination.

[1]     Paragraph 3, supra.

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ICTY Rule Rule 73 bis
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Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

23. Relying upon the Appeals Chamber’s holding in the Čelebići Appeal Judgement, the Trial Chamber stated the law applicable to a request for reopening a party’s case as follows:

[W]hen considering an application for reopening a case to allow for the admission of fresh evidence, a Trial Chamber should first determine whether the evidence could, with reasonable diligence, have been identified and presented in the case-in-chief of the party making the application. If not, the Trial Chamber has the discretion to admit it, and should consider whether its probative value is substantially outweighed by the need to ensure a fair trial. When making this determination, the Trial Chamber should consider the stage in the trial at which the evidence is sought to be adduced and the potential delay that would be caused to the trial.[1]

24. The Appeals Chamber finds that the Trial Chamber correctly articulated the applicable legal standard. […] [T]he Appeals Chamber notes that an evaluation of what constitutes fresh evidence and whether the Prosecution has met its obligation of reasonable diligence is highly contextual, depending on the factual circumstances of each case. Thus, any assessment in this respect should be carried out on a case-by-case basis.[2]

[…]

35. [T]he Appeals Chamber recalls that in a case where the evidence is sought to be presented at a very advanced stage of the proceedings, the Prosecution should establish that the evidence could not have been obtained, even if after the close of its case, at an earlier stage in the trial.[3] […]

[1] Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Decision on Prosecution’s Motion to Reopen its Case, 21 April 2010 (confidential)], para. 10 (footnotes omitted).

[2] Popović Decision of 24 September 2008 [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.5, Decision on Vujadin Popović’s Interlocutory Appeal Against the Decision on the Prosecution’s Motion to Reopen its Case-in-Chief, 24 September 2008], para. 10.

[3] Čelebići Appeal Judgement [Prosecutor v. Zejnil Delalić, et al., Case No. IT-96-21-A, Judgement, 20 February 2001], para. 286.

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Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

25. As to the standard applied by the Trial Chamber with respect to what constitutes fresh evidence, Čermak and Markač seem to argue that because the Prosecution had evidence in its possession showing that Bilobrk was a forensic technician involved in the work of the sanitation teams at Knin, his testimony could not constitute fresh evidence for the purposes of reopening the Prosecution’s case-in-chief.[1] The Appeals Chamber does not agree with this interpretation. The evidence that the Prosecution seeks to introduce is Bilobrk’s specific testimony concerning Čermak’s or someone else’s alleged suggestion to plant weapons by the bodies of the victims in Grubori. In this respect, the fact that the Prosecution was unaware of this part of Bilobrk’s testimony until the results of the investigation conducted by the Croatian authorities became known, is uncontested by the parties.[2] Accordingly, the Trial Chamber correctly focused its assessment on whether the specific testimony of Bilobrk may constitute fresh evidence for the purposes of reopening the Prosecution’s case-in-chief. […]

[1] Čermak Appeal [Ivan Čermak’s Interlocutory Appeal Against the Decision on Prosecution’s Motion to Reopen its Case, 17 May 2010 (confidential)], paras 11, 18; Markač Appeal [Defendant Mladen Markač’s Appeal of the Trial Chamber’s 21 April 2010 Decision on Prosecution’s Motion to Re-Open its Case, 17 May 2010 (confidential)], para. 27.

[2] The Appeals Chamber further notes that the category of fresh evidence could include evidence in a party’s possession, which becomes significant only in the light of other fresh evidence (Popović Decision of 24 September 2008, para. 11).

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Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

34. […] [T]he Appeals Chamber is not persuaded that Markač’s right to a fair trial would be adversely affected merely as a result of the reopening of the Prosecution’s case.[1] What is important for the Trial Chamber is to ascertain that following the reopening of the Prosecution’s case, the proceedings are indeed conducted with full respect for the principle of equality of arms. […]

[1] Markač Appeal, para. 29.

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Decision on Interlocutory Appeal - 04.07.2006 PRLIĆ et al.
(IT-04-74-AR73.2)

The Appeals Chamber held (Decision, p. 3):

[…] in interlocutory appeals dealing with trial management rulings, the Appeals Chamber shall afford deference to the Trial Chamber’s discretion[1] and the examination by the Appeals Chamber shall be limited to establishing whether the Trial Chamber has fallen into error or has abused its discretionary power;[2]

[1] Decision on Radivoje Miletić’s Interlocutory Appeal, para. 4: “Deference is afforded to the Trial Chamber’s discretion in these decisions because they ‘draw on the Trial Chamber’s organic familiarity with the day-to-day conduct of the parties and practical demands of the case, and require a complex balancing of intangibles in crafting a case-specific order to properly regulate a highly variable set of trial proceedings.’”, citing Milošević Decision on the Assignment of Defence Counsel, para. 9.

[2] Prosecutor v. Milošević, Case Nos. IT-99-37-AR73, IT-01-50-AR73, and IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 4: “Where an appeal is brought from a discretionary decision of a Trial Chamber, the issue in that appeal is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”, see also paras 5-6; see also Milošević Decision on the Assignment of Defence Counsel, para. 10; Decision on Radivoje Miletić’s Interlocutory Appeal, para. 6 citing Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005, para. 6.

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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

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.

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Appeal Judgement - 18.03.2010 BIKINDI Simon
(ICTR-01-72-A)

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.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1)
Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

51.     Article 20(1) of the Statute provides that “[a]ll persons shall be equal before the [Tribunal]”. The Appeals Chamber recalls that this provision encompasses the requirement that there be no discrimination in the enforcement or application of the law.[1]

[…]

55.     […] the Appeals Chamber recalls that “[i]t is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments”.[2] This discretion is not unlimited, but must be exercised within the restrictions imposed by the Statute and the Rules.[3]

56.     The Appeals Chamber observes that the Prosecution alleged that Ngirumpatse made arrangements with Bagosora to obtain weapons for the Interahamwe on 11 April 1994,[4] and that Bagosora was not charged for this particular event.[5] However, the Appeals Chamber rejects Ngirumpatse’s contention that this fact alone could substantiate an allegation of unequal treatment.[…]

[1] See Delalić et al. Appeal Judgement, para. 605 (addressing a mirror provision in Article 21 of the ICTY Statute), referring to Article 7 of the Universal Declaration of Human Rights; Article 14 of the International Covenant on Civil and Political Rights; Article 75 of the Additional Protocol I to the Geneva Conventions; Article 29 of the Rome Statute of the International Criminal Court.

[2] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement, 12 October 2009 (“Karadžić Appeal Decision of 12 October 2009”), para. 41; Akayesu Appeal Judgement, para. 94; Delalić et al. Appeal Judgement, para. 602.

[3] Karadžić Appeal Decision of 12 October 2009, para. 41; Delalić et al. Appeal Judgement, paras. 602, 603.

[4] See Indictment, paras. 38, 39. See also [Karemera and Ngirumpatse] Trial Judgement, paras. 716, 739, 740, 1450(1). The Appeals Chamber addresses elsewhere Ngirumpatse’s contention that this allegation was placed “[o]n or about 10 April 1994”, and that this was inconsistent with the Trial Chamber’s finding that the distribution of weapons took place on 11 April 1994. See infra para. 366.

[5] See generally Bagosora et al. Trial Judgement.

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ICTR Statute Article 20(1) ICTY Statute Article 21(1)
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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

174. Rule 73bis(E) of the Rules provides that after the commencement of the trial, the Prosecutor, if he considers it to be in the interests of justice, may move the trial chamber for leave to reinstate the list of witnesses or to vary his decision as to which witnesses are to be called. The rule does not impose a time limit to validly raise a request under this provision. However, the jurisprudence of both the Tribunal and the ICTY indicates that, when assessing whether it is in the interests of justice to permit the Prosecution to vary its witness list, the trial chamber shall take into account the potential prejudice to the Defence and the stage of the proceedings among other factors.[1] The Appeals Chamber nonetheless emphasises that decisions concerning the variation of a party’s witness list are among the discretionary decisions of the trial chamber to which the Appeals Chamber must accord deference.[2]

[…]

178. […] [T]he purpose of Rule 73bis(E) of the Rules is to allow the Prosecution to correct its prior assessment of which witnesses to call “after the commencement of [t]rial”. Nothing in Rule 73bis(E) of the Rules requires that the addition of new witnesses be conditioned upon the removal of witnesses who were expected to testify about the same facts.[3] […]

179. […] Furthermore, while the Appeals Chamber observes that trial chambers of the ICTY have previously emphasised considerations such as the stage of the proceedings and the justification provided in support of requests for the amendment of witness lists,[4] the Appeals Chamber finds that Ntahobali’s reliance on the Mrkšić et al. decisions is not pertinent. The Appeals Chamber stresses that the manner in which the discretion to manage trials is exercised by a trial chamber should be determined in accordance with the case before it; what is reasonable in one trial is not automatically reasonable in another.[5] The question of whether a trial chamber abused its discretion should not be considered in isolation, but rather by taking into account all relevant circumstances of the case at hand.[6] It can therefore not be held that granting a request for the addition of witnesses in the last stages of a party’s presentation of its case is per se unreasonable and prejudicial to the opposing party; such an assessment rather requires a careful balancing of various interests and circumstances on a case-by-case basis.

[1] See Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-T, Decision on Prosecution’s Motion for Leave to Amend the Rule 65ter Witness List and for Disclosure of an Expert Witness Report Pursuant to Rule 94bis, 31 August 2010, para. 4; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Prosecution’s Motion for Leave to Amend Its Witness List to Add Witness KDZ597, 1 July 2010, para. 5; Prosecutor v. Momčilo Perišić, Case No. IT‑04-81-T, Decision on Prosecution’s Motion to Substitute Expert Witness, 30 October 2009 (“Perišić 30 October 2009 Decision”), para. 6; Prosecutor v. Vlastimir Đorđević, Case No. IT-05-87/1-T, Decision on Prosecution’s Motion to Add Milan Đaković to the Rule 65ter Witness List, 21 May 2009 (“Đorđević 21 May 2009 Decision”), para. 6; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Prosecutor’s Motion for Leave to Vary the Witness List Pursuant to Rule 73bis(E), 21 May 2004, para. 13. See also The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Prosecution Motion to Vary Its List of Witnesses: Rule 73 bis (E) of the Rules, 11 February 2005, paras. 22, 23.

[2] See Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-AR73(C), Decision on Ngirabatware’s Appeal of the Decision Reducing the Number of Defence Witnesses, 20 February 2012 (“Ngirabatware Appeal Decision”), para. 12; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-AR73, Decision on Joseph Kanyabashi’s Appeal Against the Decision of Trial Chamber II of 21 March 2007 Concerning the Dismissal of Motions to Vary His Witness List, 21 August 2007 (“21 August 2007 Appeal Decision”), para. 10; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-AR73.1, Decision on Interlocutory Appeal Against Second Decision Precluding the Prosecution from Adding General Wesley Clark to Its 65ter Witness List, 20 April 2007 (“Milutinović et al. Appeal Decision”), paras. 9, 10.

[3] See The Prosecutor v. Augustin Ngirabatware, Case No. ICTR-99-54-T, Decision on Prosecution Motion for Leave to Vary Its Witness List, 28 January 2010, para. 50, referring to The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Sagahutu’s Request to Vary His Witness List, 26 May 2008, paras. 5, 6.

[4] See, e.g., Perišić 30 October 2009 Decision, para. 6; Đorđević 21 May 2009 Decision, para. 5; Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-T, Decision on Prosecution’s Motion to Amend Prosecution’s Witness List (Dr. Fagel), 3 November 2008, p. 3.

[5] Haradinaj et al. Appeal Judgement, para. 39.

[6] Haradinaj et al. Appeal Judgement, para. 39.

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ICTR Rule Rule 73bis(E) ICTY Rule Rule 73bis(F)
Notion(s) Filing Case
Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.

13.     I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4]

[…]

15.     This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.

[1] See supra [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay, 31 January 2017], para. 9.

[2] See Theodor Meron, Judicial Independence and Impartiality in International Criminal Tribunals, 99 Am. J. Int’l L. 363-65 (2005).

[3] See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 19, 27.

[4] See ECHR Ref. No. 59/17.

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IRMCT Statute Article 19