Paragraphs 12 and 13 of the Interlocutory Appeal contain the ratio of the Decision, finding that the Trial Chamber had not gone beyond the discretion allocated to it on evidentiary and procedural matters:

12. The Defence for Mr. Ntahobali argues that this procedure adopted by the Trial Chamber was impermissibly informal[1] since prior statements of an accused should be subject to an inquiry conducted “in accordance with pre-established rules of law which are known to the parties”[2] and not by merely requiring the parties to indicate their views on whether the Rules were complied with in taking the Previous Statements.[3] The Defence for Mr. Ntahobali has not identified any error in the procedure adopted by the Trial Chamber. The voir dire procedure originates from the common law and does not have a strictly defined process in this Tribunal.[4] There are no provisions in the Rules which direct Trial Chambers to adopt a formal procedure for determining whether they should conduct a voir dire. Instead, Rule 89(B) of the Rules provides that reference may be made to evidentiary rules “which will best favour a fair determination of the matter”. This discretion can extend to the conduct of a voir dire procedure when it is determined appropriate by the Trial Chamber.[5] The procedure conducted by the Trial Chamber permitted the parties to make submissions as to whether the Prosecution and Co-Accused could use the Previous Statements to impeach Mr. Ntahobali. The Trial Chamber considered the submissions of the parties on whether it was necessary to grant the request for a voir dire procedure by the Defence of Mr. Ntahobali, and after finding that it was not necessary, the Trial Chamber determined the admissibility of the Previous Statements on the basis of the submissions made by the parties. At several stages during the hearing[6] the Trial Chamber affirmed that this was the procedure to be followed, in particular when it stated:

We would like to hear the challenge, the basis of the challenge [to the admissibility of the Previous Statements]. And in the process, certainly, the Trial Chamber will examine the [admissibility] issue, including whether to determine the issue as presently presented, or whether there would be any need for voir – for trial within a trial, voir dire.[7]   

13. Therefore, the parties were informed of the procedure the Trial Chamber was adopting and made submissions pursuant to this procedure.[8] Indeed, the procedure adopted by the Trial Chamber, while characterised as one adopted to determine whether a voir dire procedure was necessary, was very similar to a voir dire. The Trial Chamber heard the parties on the circumstances surrounding the taking of the Previous Statements, admitting a written affidavit from Mr. Ntahobali into evidence on that issue, and decided that no further evidence was required to determine whether the Previous Statements were in accordance with the Rules. The Appeals Chamber does not see any abuse of the Trial Chamber’s discretion in the way that it chose to proceed.

Decision, para. 27:

27.     […] The Appeals Chamber agrees with Gotovina that a counsel’s duty of loyalty to a client extends even to cases where a client is not a party to the litigation. As stated under Article 14(D)(i) and (ii) of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal,

Counsel or his firm shall not represent a client with respect to a matter if: (i) such representation will be, or may reasonably be expected to be, adversely affected by representation of another client; (ii) representation of another client will be, or may reasonably be expected to be, adversely affected by such representation [. . .]. 

Čermak argued that by considering the amendment of the indictment together with the issue of joinder the Trial chamber skipped the indictment amendment procedure, preventing the defence from being heard and opposing the process of the amendment, and therefore violates the principle of a fair trial. The Appeals Chamber, however, held at para. 11:

11. […] First, Čermak fails to provide a basis in the Rules or in the jurisprudence of the International Tribunal in support of the proposition that it is required procedure for a Trial Chamber to consider amendments to the indictment first, separate from deciding on the issue of joinder. Furthermore, Čermak fails to demonstrate how addressing both issues together in one decision inevitably leads to a Trial Chamber skipping the appropriate analysis under Rule 50 of the Rules for determining whether proposed amendments to an indictment should be granted under the principle of a fair trial. […] 

With respect to Čermak’s arguments, asserting that the crimes for which he is charged cannot be part of the “same transactions” as his participation in the alleged joint criminal enterprise is said to have commenced at a different time, the Appeals Chamber, at para. 21,

[…] emphasizes that “the Trial Chamber is not required, at this stage in the proceedings, to determine whether there is sufficient evidence put forward by the Prosecution to support the allegations made against an accused in the indictment.”[1] Furthermore, there is no requirement that the acts or omissions alleged to form the same transaction took place at the same “exact” time or were committed together in the same “exact” place. What is essential is that there are factual allegations in the indictment sufficient to support a finding that the alleged acts or omissions form part of a common scheme, strategy or plan.[2]

At para. 22, the Appeals Chamber, referring to the Kordić and Čerkez case, further held that the particular role that an accused is alleged to have played in the “same transaction” is not determinative.

22. […] The acts or omissions alleged against an accused may be found to be part of the “same transaction” with another accused so long as there are other factual allegations in the indictment sufficient to support a finding that they form part of a common scheme, strategy or plan. Nor is there any specific requirement that an accused is alleged to have made a substantial contribution to the joint criminal enterprise.[3] […]

The Appeals Chamber held that joinder of cases will not adversely affect Čermak and Markač’s right to fair trial with undue delay, due to the fact that, even if they have been preparing longer than Gotovina for their trial, there is no start date for the trial in the immediate future.[1]  With respect to Čermak and Markač’s argument that Gotovina’s case adds complexity to their case and will lead to a long and procedurally complicated trial in violation of their right to a fair trial without undue delay, the Appeals Chamber held at para. 44:

44. […] Two separate trials, whether conducted simultaneously or otherwise, are still likely to require more court hours in total than one joint trial and require more judicial time and resources. Furthermore, two separate trials will likely lead to duplication of efforts. In addition, in light of the significant overlap the Trial Chamber found between the two cases on the basis of the amended indictments, Čermak and Markač fail to demonstrate that a joint trial with Gotovina will lead to a long and procedurally complicated trial. […] The Trial Chamber reasonably exercised its discretion in finding that overall, in this case, joinder will promote judicial economy and this weighs in favour of granting joinder.

The Appeals Chamber recalled that “the presentation of concurrent evidence or evidence that may not relate to an accused in the course of a joint trial does not, in and of itself, constitute serious prejudice to an accused.  In determining the guilt or innocence of an accused, it is to be expected that Judges of the International Tribunal will only take into account that evidence adduced to establish guilt with respect to that accused only.”[1]

The Appeals Chamber upheld in this decision another principle which had been laid down Milošević: the accused before the International Tribunal have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgement that they would be better off if represented by a counsel.[1]

The Appeals Chamber recalled that Article 21(4)(d) of the Statute provides the accused before the International Tribunal with the presumptive right of self representation. However, this right is not absolute and can be restricted where a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.[1] The right of  self-representation can be restricted irrespectively from the actual intention of the accused to obstruct the proceedings.[2] The Appeals Chamber recalled that, for the right to self-representation to be restricted, it is upon the Trial Chamber to decide

“Whether the appropriate circumstances exist and what they are is a matter for the Trial Chamber to determine on a case by case basis when considering the particular facts of a case as a whole.”[3]

In view of this principle, the Appeals Chamber affirmed that the Trial Chamber, in order to assign a Counsel to an accused who chose to self-represent himself, did not have to find that the accused’s behaviour the Trial Chamber had been “extremely disruptive to the point of rendering continuation of the proceedings practically impossible” but that “[a]ll that the Trial Chamber was required to do was find that appropriate circumstances, rising to the level of substantial and persistent obstruction to the proper and expeditious conduct of the trial exist, thereby warranting restriction of Šešelj’s right to self-representation.”[4]

The Appeals Chamber reaffirmed the validity of the proportionality principle as stated in the Milošević Decision on Defence Counsel.[1] In restricting the accused’s right to self-representation, the Trial Chamber must impose restrictions that are limited to the minimum extent necessary to protect the International Tribunal’s interest in assuring a reasonably expeditious trial.[2]

43. […] The Appeals Chamber recalls that for conduct to entail criminal liability it must be possible for the individual to determine ex ante, based on the facts available to him, that the act is criminal. Both Appellants knew that the information was given by a witness with protective measures in place. Thus, the Trial Chamber correctly held that the Appellants had the necessary mens rea.

44. The language of Rule 77 shows that a violation of a court order as such constitutes an interference with the International Tribunal’s administration of justice. It is not for a party or a third person to determine when an order “is serving the International Tribunal’s administration of justice”. It has already been established in the jurisprudence that any defiance of an order of the court interferes with the administration of justice.[1]