19. With regard to the question whether Prosecution submissions fall within the scope of Rule 68 of the Rules, the Appeals Chamber recalls that the Prosecution is required pursuant to Rule 68 of the Rules to disclose material “[…] which in any way tends to suggest the innocence or mitigate the guilt of the accused […].” As a general rule, this obligation does not extend to interpretations and arguments based on such material made by the Prosecution and Blaškic in their “submissions, filed under seal”, as requested by the Appellant.[1] However, in extraordinary cases in which evidence becomes exculpatory only in connection with such a submission, the Prosecution has the obligation to disclose this submission pursuant to Rule 68 of the Rules. In this respect, the Appeals Chamber also recalls Rule 70 (A) of the Rules:

Notwithstanding the provisions of Rules 66 and 67, reports, memoranda, or other internal documents prepared be a party, its assistants or representatives in connection with the investigation or preparation of the case, are not subject to disclosure or notification under those Rules.

20. […] If evidence in open session testimony in other trials becomes exculpatory only in conjunction with closed session testimony that was not disclosed, the exculpatory nature of such evidence given in open session is unknown to an appellant, and the Prosecution has the obligation to disclose the open session testimony given in other trials that can only be understood in context.

19. There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided. A defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel. The legal system’s respect for a defendant’s decision to forgo assistance of counsel must be reciprocated by the acceptance of responsibility for the disadvantages this choice may bring.[1] Where an accused elects self-representation, the concerns about the fairness of the proceedings are, of course, heightened, and a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair.

13.     Rule 93 provides that “Evidence of a consistent pattern of conduct relevant to serious violations of international humanitarian law under the Statute may be admissible in the interests of justice.” Rule 93 does not create an exception to Rule 89(C), but rather is illustrative of a specific type of evidence which may be admitted by a Trial Chamber. Rule 93 must be read in conjunction with Rule 89(C), which permits a Trial Chamber to admit any relevant evidence which it deems to have probative value. Even where pattern evidence is relevant and deemed probative, the Trial Chamber may still decide to exclude the evidence in the interests of justice when its admission could lead to unfairness in the trial proceedings, such as when the probative value of the proposed evidence is outweighed by its prejudicial effect, pursuant to the Chamber’s duty to ensure a fair and expeditious trial as required by Article 19(1) of the Statute of the International Tribunal.

See also para. 14.

17.     […] [T]he Prosecutor alleges that the Trial Chamber erred by compartmentalizing its analysis of probative value. The Appeals Chamber affirms that the correct approach is to assess the aggregate probative value of the particular evidence against its aggregate prejudicial effect. […]. 

9. Because the question whether to grant leave to amend the indictment is committed to the discretion of the Trial Chamber by Rule 50 of the Rules, appellate intervention is warranted only in limited circumstances.  As the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) has explained, the party challenging the exercise of a discretion must show “that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”  If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.  However, if the Trial Chamber has committed an error that has prejudiced the party challenging the decision, the Appeals Chamber “will review the order made and, if appropriate and without fetter, substitute its own exercise of discretion for that of the Trial Chamber.”

12.  […] The Prosecution is entitled to decide that its theory of the accused’s criminal liability would be better expressed by an amended indictment.  Even if the trial can proceed on the basis of the Current Indictment, the Prosecution is not thereby precluded from seeking to amend it.

20. […] [A]lthough Rule 50 does not require the Prosecution to amend the indictment as soon as it discovers evidence supporting the amendment, neither may it delay giving notice of the changes to the Defence without any reason.  The Prosecution cannot earn a strategic advantage by holding an amendment in abeyance while the defence spends time and resources investigating allegations that the Prosecution does not intend to present at trial.  In this regard, it is worth recalling that a substantial delay will be considered undue “if it occur[s] because of any improper tactical advantage sought by the prosecution.”   Strategic efforts to undermine the conduct of proceedings cannot be tolerated, especially if designed to disadvantage the ability of the Defence to respond to the Prosecution’s case.  

18. […][T]he Appeals Chamber agrees that judicial economy may be a basis for rejecting a motion that is frivolous, wasteful, or that will cause duplication of proceedings.

19.     The Trial Chamber correctly considered that the Registrar has the primary responsibility in the determination of matters relating to remuneration of counsel under the Legal Aid System of the International Tribunal. The Appeals Chamber has already held that, where the Directive expressly provides for a review of the Registrar’s decision, the Trial Chamber cannot interfere in the Registrar’s decision, and its only option is to stay the trial until that procedure has been completed.[1] Where, however, the Directive does not expressly provide for a review of the Registrar’s decision, the Trial Chamber, pursuant to its statutory obligation to ensure the fairness of the trial, is competent to review the Registrar’s decision in the light of its effect upon the fairness of the trial.

20.     The exercise of such power should, however, be closely related to the fairness of the trial, and it should not be used as a substitute for a general power of review which has not been expressly provided in the Directive. […]

11.       The ICTY is entrusted with bringing justice to the former Yugoslavia.  First and foremost, this means justice for the victims, their relatives and other innocent people.  Justice, however, also means respect for the alleged perpetrators’ fundamental rights. Therefore, no distinction can be drawn between persons facing criminal procedures in their home country or on an international level.

12.      Rules 65 (B) and (D) of the Rules must therefore be read in the light of the ICCPR and ECHR and the relevant jurisprudence.

13.     Moreover, when interpreting Rule 65(B) and (D) of the Rules, the general principle of proportionality must be taken into account. A measure in public international law is proportional only when it is (1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target. Procedural measures should never be capricious or excessive. If it is sufficient to use a more lenient measure than mandatory detention, it must be applied.[1]