13. The third point considered by the Trial Chamber was delay.  This factor arises from Article 20(4)(c) of the Statute of the International Tribunal, which entitles all accused before the International Tribunal to be “tried without undue delay,” and is unquestionably an appropriate factor to consider in determining whether to grant leave to amend an indictment.  Guidance in interpreting Article 20(4)(c) can be found in the ICTY case of Prosecutor v. Kovačević,[1] in which the Trial Chamber refused amendment of an indictment on grounds that included undue delay.  The ICTY Appeals Chamber framed the question as “whether the additional time which the granting of the motion for leave to amend would occasion is reasonable in light of the right of the accused to a fair and expeditious trial.”[2]  The ICTY Appeals Chamber noted that the requirement of trial without undue delay, which the Statute of the ICTY expresses in language identical to Article 20(4)(c) of the Statute of the International Tribunal,[3] “must be interpreted according to the special features of each case.”[4]  Additionally, the specific guarantee against undue delay is one of several guarantees that make up the general requirement of a fair hearing, which is expressed in Article 20(2) of the Statute of the International Tribunal and Article 21(2) of the ICTY Statute.[5]  “[T]he timeliness of the Prosecutor’s request for leave to amend the Indictment must thus be measured within the framework of the overall requirement of the fairness of the proceedings.”[6] 

14. Kovačević stands for the principle that the right of an accused to an expeditious trial under Article 20(4)(c) turns on the circumstances of the particular case and is a facet of the right to a fair trial.  This Appeals Chamber made a similar point recently when it stated, albeit in a different context, that “[s]peed, in the sense of expeditiousness, is an element of an equitable trial.”  Trial Chambers of the International Tribunal have also used a case-specific analysis similar to that of Kovačević in determining whether proposed amendments to an indictment will cause “undue delay.”

15 […] [A] Trial Chamber must also examine the effect that the Amended Indictment would have on the overall proceedings.  Although amending an indictment frequently causes delay in the short term, the Appeals Chamber takes the view that this procedure can also have the overall effect of simplifying proceedings by narrowing the scope of allegations, by improving the Accused’s and the Tribunal’s understanding of the Prosecution’s case, or by averting possible challenges to the indictment or the evidence presented at trial.  The Appeals Chamber finds that a clearer and more specific indictment benefits the accused, not only because a streamlined indictment may result in shorter proceedings, but also because the accused can tailor their preparations to an indictment that more accurately reflects the case they will meet, thus resulting in a more effective defence.