The Appellant was arguing that his right to an expeditious trial pursuant to Article 21(4)(c) of the Statute would be infringed by a joinder of cases.  The Appeals Chamber most importantly held that “[i]t is well within the Trial Chamber’s discretion to take into consideration judicial economy when determining whether joinder would be appropriate” (para. 26). 

The Appellant was arguing that the Trial Chamber erred in finding that it could regulate the cross-examination of witnesses. In his view, this would violate both his right to cross-examine witnesses under Article 21(4)(e) of the Statute and Rule 82(A) of the Rules according to which in “joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.”

The Appeals Chamber found the following:

29. […] The Trial Chamber was correct to note that in a joint trial, a Trial Chamber has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination. Rule 90(F) specifically provides that “[t]he 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.” Of course, this power is subject to Trial Chamber’s obligation to respect the rights of an accused, including the right to cross-examine witnesses under Article 21(4)(e) of the Statute.[1] The Appellant fails to show how the Trial Chamber’s regulation of the cross-examination of witnesses in this joint trial by, for example, avoiding repetitive questioning, would result in prejudice to him. Rather, the Trial Chamber’s regulation should mitigate any potential prejudice to him. At trial, the Appellant will have the opportunity to object where he feels that the Trial Chamber has erred in finding that another Accused’s cross-examination of a witness is sufficient to cover his defence such that he does not need to also engage in cross-examination of that same witness. The Trial Chamber will consider each objection carefully under its obligation to respect norms of due process and the rights of the Appellant. 

3. The Appeals Chamber does not accept that Counsel’s commitment to other cases at this Tribunal constitutes “good cause” pursuant to Rule 127.  Counsel assigned to represent accused at this Tribunal are expected to organise their work schedules in order to meet their obligations to respect the time limits for filings on appeals laid down in the Practice Direction.[1]  Counsel would have been able to calculate, upon the filing of the Appellant’s Appeal, the due date for the Prosecution Response and subsequently the Appellant’s Reply and is expected to have organised her work schedule to meet those due dates.  Accordingly, “good cause” has not been shown, and the Reply of the Appellant will not be considered in this Appeal.

P. 4: CONSIDERING that the Appeals Chamber has the statutory duty to ensure the fairness of the proceedings on appeal[1] and, thus, has jurisdiction to review decisions of the Tribunal’s Registrar and President;

P. 4: CONSIDERING, however, that the exercise of such jurisdiction should be closely related to the fairness of proceedings on appeal and should not be used as a substitute for a general power of review which has not been expressly provided by the Rules of Detention;[2]

P. 4: CONSIDERING that the Appellant has not identified any impact by the issues raised in his Motion on his right to fair proceedings;

P. 4: FINDING that the detention conditions raised by the Appellant are not related to the fairness of proceedings on appeal and that, therefore, the Appellant’s right to fair proceedings has not been infringed by the outcome of the President’s Decision;

P. 4: FINDING, therefore, that the Appellant has exhausted all available remedies and that the Appeals Chamber has no jurisdiction in this matter

P. 4: FINDING also that, had the procedure of the Detention Rules been followed, the Appeals Chamber would only have jurisdiction to review a Registrar’s or President’s decision if the issues in question were closely related to the fairness of the proceedings on appeal;[1]

P. 3: NOTING that, according to Rules 82 and 83 of the Detention Rules, where a detainee is not satisfied with the conditions of his or her detention, he or she is entitled to “make a complaint to the Commanding Officer or his representative at any time” and, in case of an unsatisfactory response, to “make a written complaint, without censorship, to the Registrar, who shall forward it to the President”;

P. 4: FINDING that the complaint procedure for the detention conditions has not been duly followed by the Appellant and that he has not yet exhausted the remedies made available to him by the Detention Rules;

Pp. 4-5: CONSIDERING that medical, psychological, and psychiatric examinations pursuant to Rule 74bis are typically ordered to establish the accused’s fitness to stay in custody, his ability to stand trial,[1] his mental state at the time of the acts charged, as well as sentencing considerations such as ability to be reintegrated in society;[2]

P. 5: FINDING that the Appellant has not demonstrated that any of these concerns are implicated, and specifically has not demonstrated any threat to the fairness of the proceedings on appeal;

P. 5: FINDING therefore, that the Appellant has not demonstrated the need for an independent psychological examination under Rule 74bis;

P. 5: FINDING that, in these circumstances and at this stage, the Appeals Chamber sees no reason to order a psychological or psychiatric examination of the Appellant pursuant to Rule 74bis of the Rules

21.  Rule 6(D) of the Rules provides that amendments to the Rules “shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case”.  The Appeal Chamber considers that the same principle applies to changes in the procedural requirements set out by the Tribunal’s practice directions.  […]

When examining the Trial Chamber’s finding that it was satisfied that the Accused, if released, will not pose a danger to victims, witnesses or other persons, the Appeals Chamber held:

11. The Trial Chamber “consider[ed] that there is nothing to suggest that, if released, the Accused will pose” such a danger, and “that the Trial Chamber thereby previously [only] identified the [question of whether the Accused would appear for trial] as being in issue”.[1]  The Trial Chamber is not obliged to deal with all possible factors when deciding whether it is satisfied the requirements of Rule 65(B) are fulfilled, but at a minimum, the Trial Chamber must provide reasoning to support its findings regarding the substantive considerations relevant to its decision.[2]  Here, the Trial Chamber appears, in effect, to have switched the burden to the Prosecution to show that the Accused would pose a danger if released.  In the putative absence of such information, the Trial Chamber appears to have assumed the lack of a danger posed by the Accused’s release.  If the Trial Chamber found, as it must have done so here, that the Accused upon release will pose no danger to persons, then it must provide the reasons for reaching that finding.

17. The Appeals Chamber first considers the Prosecution’s arguments with regard to the Accused’s senior position in Republika Srpska in 1992. The Appeals Chamber recalls its previous holding that “the weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position he held prior to his arrest.”[1] The rationale behind taking into consideration an accused’s prior position is that he or she may possess very valuable information on a government providing a guarantee that could be disclosed to the International Tribunal.[2] This would serve as a disincentive for a government to enforce its guarantee to arrest an accused after provisional release, if needed, to stand trial.[3]

19. The Appeals Chamber finds that the Trial Chamber erred in its conclusion that it need not weigh the Accused’s senior position prior to his transfer because there was no information before it suggesting that the Accused held a position in the Republic of Serbia, the government providing the guarantee and the country to which he was to be provisionally released. The fundamental question before the Trial Chamber is not whether the Accused held a position in the same government as that providing the guarantee.[4] Rather, it is to consider “what would occur if the relevant authority were obliged under its guarantee to arrest the accused person seeking provisional release”[5] in light of the Accused’s former position, regardless of where it was held. Thus, the Trial Chamber is simply to consider whether the evidence suggests that an accused, by virtue of a prior senior position, may have any information that would provide a disincentive for the State authority providing a guarantee on behalf of the accused to enforce that guarantee.[6]