Adjournment of proceedings to prepare one's defence

Notion(s) Filing Case
Decision on Interlocutory Appeal - 28.04.2006 KAREMERA et al.

Background: the Prosecution disclosed to the Defence a judgement of a Rwandan court that implicated a Prosecution witness right before that witness testified. The Defence requested that the Trial Chamber stay the proceedings. In the present interlocutory appeal, the Appellant (Defence) argued that the Trial Chamber erred as a matter of law by failing to provide him with adequate time and facilities to prepare his defence in violation of his rights under Article 20(4)(b) of the Statute.

The Appeals Chamber recalled the standard of review with regard to adjournment and found that the Trial Chamber did not abuse its discretion in finding that, in the circumstances of the case, no prejudice resulted from the late disclosures. The Appeals Chamber held that a Trial Chamber can “control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights”.

See paras 7-8:

7. The Prosecution’s obligation to disclose potentially exculpatory material is essential to a fair trial.[1] However, not every violation of this important obligation implicates a violation of an accused’s fair trial rights, warranting a remedy.[2] If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves.[3] The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case.[4]

8. Mr. Nzirorera raised the issue of his need for investigations arising from the late disclosure before the Trial Chamber.[5] In the Impugned Decision, the Trial Chamber expressly considered the impact of the late disclosure on Mr. Nzirorera’s ability to prepare for Witness UB’s testimony and determined that the late disclosure would not interfere with an effective cross-examination.[6] Furthermore, the Trial Chamber noted that it would provide appropriate additional relief on a case-by-case basis and indicated that it might be appropriate to recall the witness if further investigations warranted additional cross-examination.[7] In the present circumstances, the Appeals Chamber cannot say that the Trial Chamber abused its discretion in declining to stay the proceedings. The Appeals Chamber considers that in long and complicated cases, it is necessary for a Trial Chamber to exercise its discretion to control the progress of the proceedings as appropriate, provided that it does not encroach on fair trial rights.[8]

[1] The Prosecutor v. Théoneste Bagosora et al., ICTR Case Nos. 98-41-AR73, 98-41-AR73(B), Decision on Interlocutory Appeals on Witness Protection Orders, 6 October 2005, para. 44; The Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Appeal Judgement, 17 December 2004, paras. 183, 242 (“Kordić and Čerkez Appeal Judgement”); The Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement, 20 July 2004, para. 264 (“Blaškić Appeal Judgement”); The Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, 19 April 2004, para. 180 (“Krstić Appeal Judgement”); The Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004, p. 3 (“Brđanin Decision”).

[2] Kordić and Čerkez Appeal Judgement, para. 179 (“Once the Defence has satisfied a Chamber that the Prosecution has failed to comply with Rule 68, the Chamber, in addressing what is the appropriate remedy (if any) must examine whether or not the Defence has been prejudiced by a breach of Rule 68 […].”)(emphasis added). See also The Prosecutor v. Juvénal Kajelijeli, ICTR Case No. 98-44A-A, Judgement, 23 May 2005, para. 262 (Kajelijeli Appeal Judgement”); Blaškić Appeal Judgement, paras. 295, 303; Krstić Appeal Judgement, para. 153.

[3] Krstić Appeal Judgement, para. 206.

[4] The 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. 18.

[5]T. 13 February 2006 p. 16.

[6] Impugned Decision, p. 8.

[7] Impugned Decision, pp. 3, 8, 10.

[8] See Kordić and Čerkez Appeal Judgement, para. 196.

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ICTY Rule Rule 68 bis