20. […] [T]he Rules do not explicitly regulate whether proceedings may be continued with a substitute Judge following the disqualification of a Judge at a more advanced stage, namely the deliberations stage. The Appeals Chamber observes that the guarantees provided for in Rules 15bis(C) and 15bis(D) of the Rules have been consistently applied or referred to in the present situation.[1]  The Appeals Chamber considers that these Rules are designed to ensure that an accused’s right to a fair trial is sufficiently safeguarded, and that the fair trial guarantees provided for in these Rules apply mutatis mutandis to the present situation. Under Rule 15bis(D) of the Rules, when a decision is taken to continue the proceedings with a substitute Judge even though the accused has withheld his consent, such a decision “is subject to appeal directly to a full bench of the Appeals Chamber by either party”.

21. Therefore, for the purposes of the admissibility of the Appeal, and in light of the spirit of these Rules, the Appeals Chamber considers that the same protection as that provided for by Rule 15bis(D) of the Rules should apply in the present case. The Appeals Chamber further observes that the interests of neither Šešelj nor the Prosecution are prejudiced by the adjudication of this Appeal.

22. In these particular circumstances, the Appeals Chamber holds that the Impugned Decision is subject to appeal directly to a full bench of the Appeals Chamber.

[…]

35.  […] [T]he Appeals Chamber recalls that a decision to continue the proceedings with a substitute Judge is a discretionary decision to which the Appeals Chamber owes deference:

The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the [Judges’] ruling may have resulted in injustice to the [appellant]”.[2]

36. In reaching its decision, the Trial Chamber must determine whether, taking all the circumstances into account, the continuation of proceedings would serve the interests of justice.[3] The parties “bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice”,[4] and accordingly taking into account whether a party has discharged this burden would be an immaterial consideration constituting an error.[5] Other errors previously identified by the Appeals Chamber include requiring the substitute Judge to evaluate whether the record itself – including the availability of video- or audio-recording – is compatible with the requirements of a fair trial.[6]

37.  The Appeals Chamber further recalls that:

There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[7]

In light of the discretion inherent in a decision to continue proceedings with a substitute Judge, the Appeals Chamber has “not consider[ed] it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge”, as “[t]he stage reached in each case need not always be the same”.[8]

[…]

41. The Appeals Chamber therefore considers that neither the Statute nor the Rules prevented the Trial Chamber from exercising its discretion to determine, within the circumstances of the particular case before it, whether it would serve the interests of justice to continue the proceedings with a substitute Judge. […]

[…]

44. […] [T]he Appeals Chamber recalls that the need for a substitute Judge to certify his or her familiarity with the record is among the “safeguards ensur[ing] that fair trial rights are not compromised”.[9] Moreover, the Appeals Chamber has previously confirmed that proceedings could continue even in the absence of video-recordings of previous testimony for the substitute Judge to review.[10] […] With regard to the possibility of recalling witnesses, this too has been previously treated by the Appeals Chamber as being a material consideration to be taken into account.[11]

14.     The Appeals Chamber turns first to Stanković’s challenge to the composition of the Referral Bench. Rule 11bis of the ICTY Rules does not require that a request for revocation be considered by a differently composed bench than the one that referred the case to a national jurisdiction. Indeed, Rule 11bis of the ICTY Rules simply refers to the “Referral Bench” throughout, which is defined in Rule 11bis(A) of the ICTY Rules as “a bench of three Permanent Judges selected from the Trial Chambers”. […]

12.     Where an appeal is filed against a decision denying a request for revocation of a referral, the issue before the Appeals Chamber is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but whether the Referral Bench has correctly exercised its discretion in reaching that decision.[1] A party challenging such a decision must show that the Referral Bench: (i) misdirected itself either as to the legal principle to be applied, or as to the law which is relevant to the exercise of its discretion; (ii) gave weight to irrelevant considerations or failed to give sufficient weight to relevant considerations; (iii) made an error as to the facts upon which it has exercised its discretion; or (iv) its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Referral Bench must have failed to exercise its discretion properly.[2]

15. Turning to Stanković’s challenges to the Impugned Decision, the Appeals Chamber notes that the Referral Bench considered that Stanković filed the Revocation Request after the Appellate Panel in Bosnia and Herzegovina had affirmed his conviction.[1] The Referral Bench noted, however, that it “may revoke a referral order proprio motu in the circumstance of a grave violation left unchallenged by the Prosecution or untimely submitted”.[2] Thus, having examined Stanković’s submissions, the Referral Bench concluded that:

[i]n the absence of previously unidentified or grave violations of Stanković’s right to a fair trial, the Referral Bench considers that it would be contrary to the intention of Rule 11bis to order a case referred to the authorities of a State to be sent back to the Tribunal after the trial and appeal proceedings have concluded in that State.[3]

16.     The Appeals Chamber notes that Rule 11bis(F) of the ICTY Rules, Article 6(6) of the MICT Statute, and Rule 14(C) of the MICT Rules unequivocally provide that revocation of a referral order may occur only before the accused has been found guilty or acquitted by a national court. As recalled above, the proceedings against Stanković before the courts of Bosnia and Herzegovina were completed in April 2007.[4] The Appeals Chamber further notes that, contrary to Stanković’s submission,[5] the panel of the State Court and the Appellate Panel of Bosnia and Herzegovina were composed of different judges.[6] Therefore, to the extent that Stanković argues that there is no final judgement against him due to irregularities in the composition of the Appellate Panel, his submission is unsubstantiated.

17.     Accordingly, the Appeals Chamber finds that the Referral Bench correctly considered that it would be contrary to the intention of Rule 11bis of the ICTY Rules to revoke a referral order after the legal proceedings in the respective State have been completed. Absent any explicit legal basis for such revocation, the Appeals Chamber finds that it need not consider further whether the Referral Bench committed a discernible error in finding that there were no grounds to revoke the referral of Stanković’s case to the authorities of Bosnia and Herzegovina.

21. […] The Appeals Chamber is not at liberty to revisit the Registrar’s and the President’s findings as to Praljak’s ability to reimburse the Tribunal for the funds incurred for his defence. […]

35.     […] [T]he Appeals Chamber turns to the argument that it may order the termination of proceedings and release of an accused after interlocutory review of a denial of an accused’s rights, including during appellate proceedings. The doctrine of “abuse of process” allows a court to decline to exercise jurisdiction either because it will be impossible to give the accused a fair trial or because it offends the court’s sense of justice and propriety to try the accused in the circumstances of a particular case.[1] The question in cases of abuse of process is not whether it is “necessary” for a court to issue an interlocutory decision terminating proceedings (as for Rule 54 of the Rules examined above), but whether a court should continue to exercise jurisdiction over a case in light of serious and egregious violations of the accused’s rights that would prove detrimental to the court’s integrity.[2] The discretionary power of a court to stay or terminate proceedings by reason of abuse of process applies during the trial phase of a case, and is mostly concerned with prosecutorial misconduct, since its main purposes are to prevent wrongful convictions and preserve the integrity of the judicial system.[3] An allegation of partiality of a trial judge is a ground to appeal a conviction on the basis that it is unsafe.[4]

See also para. 22.

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

20.     Neither the Statute nor the Rules explicitly regulate motions for a declaration of mistrial or to vacate a trial judgement. Pursuant to Rules 54 and 107 of the Rules, the Appeals Chamber may issue such orders as may be necessary for the conduct of proceedings.[1]

139. Finally, in support of his contention that the Trial Chamber violated Rule 87(B) of the Rules, Nzuwonemeye points to several paragraphs of the Trial Judgement, in which he claims that the Trial Chamber erred by making joint findings related to him and Sagahutu.[1]

140. The Appeals Chamber recalls that Rule 87(B) of the Rules provides in the pertinent part that “[i]f two or more accused are tried together under Rule 48, separate findings shall be made as to each accused”. Notwithstanding this provision, the Appeals Chamber observes that the Rules anticipate that two or more accused may be tried together on the basis of the same crimes.[2] Indeed, jurisprudence regarding the advantages of joint trials reflects that they may be used to ensure that the same evidence is available and assessed with regard to each accused and thus result in a greater likelihood of consistent evaluation of the evidence, findings, and verdicts on the basis of the same facts.[3] In this context, a trial chamber may make findings of guilt for more than one co-accused on the basis of the same evidence so long as a majority of the trial chamber is satisfied that each accused’s guilt is established beyond reasonable doubt.[4]

141. The Trial Chamber concluded that Nzuwonemeye’s involvement in the killings of the Prime Minister and the Belgian peacekeepers had been proved in light of the evidence before it.[5] It made individualized findings regarding the applicable forms of responsibility and separately identified the counts and crimes for which Nzuwonemeye was convicted.[6] Accordingly, the Appeals Chamber is not convinced that Nzuwonemeye has identified any violation of Rule 87(B) of the Rules.

22. The Appeals Chamber recalls that, at trial, determining the appropriate remedy in light of a violation of Rule 68 of the Rules falls within the broad discretion of the trial chamber.[1] 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.

23. In the view of the Appeals Chamber, Ndindiliyimana does not demonstrate that the Trial Chamber abused its discretion in fashioning the remedies for the Prosecution’s disclosure violations. Recalling witnesses[3] and admitting new evidence[4] are appropriate remedies where disclosure violations have resulted in prejudice to an accused.[5] Where an accused’s fair trial rights have been violated, a reduction of the sentence may be an appropriate remedy if the accused was convicted at trial.[6] However, the relief requested by Ndindiliyimana at trial and on appeal – dismissal of the charges against him – is not necessarily appropriate even where prejudice to the accused has been demonstrated.[7]