37. The Appeals Chamber is mindful that the principle of equality of arms must be interpreted in light of the particular circumstances surrounding cases of contempt under Rule 77(D) of the Rules[1] where there is no opposing party to an accused and where a trial chamber prosecutes the alleged contempt itself. As the prosecuting authority, a trial chamber acting pursuant to Rule 77(D) of the Rules drafts the charges contained in the order in lieu of indictment, may present evidence on those charges and examine witnesses led by the defence. As the judicial authority, a trial chamber acting pursuant to Rule 77(D) of the Rules decides on defence motions and objections during the pre-trial and trial stages, and delivers a judgement after the close of the evidence and the hearing of defence arguments. Notwithstanding the dual prosecutorial and judicial roles contemplated under Rule 77(D) of the Rules, the Appeals Chamber recalls that a trial chamber continues to abide by the principle of equality of arms in ensuring that the accused is not substantially disadvantaged in the presentation of his case and that he likewise benefits from the fair trial guarantees embodied in the Statute[2].

24.     […] The principle of equality of arms would be violated only if either party is put at a disadvantage when presenting its case. […]

16. All Appellants submit that the rights of the accused to a fair trial enshrined in Article 21 of the Statute should not be sacrificed to ensure the expeditiousness of proceedings.[1]  The Appeals Chamber recalls that, pursuant to Rules 73bis and 73ter of the Rules, the Trial Chamber is required to establish the number of witnesses each party may call and the amount of time allotted to each party. Specifically, Rule 73ter(E) of the Rules provides that, after having heard the defence and having reviewed the Rule 65ter submissions of each accused, the Trial Chamber shall determine the time available to the defence for presenting evidence. In exercising the discretionary power to allocate time, a Trial Chamber has the responsibility to ensure that “the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.”[2] Recognizing that excessive limitations of time may also compromise the due process rights of the accused, the Appeals Chamber has previously held that the considerations of judicial economy should never impinge on the rights of the parties to a fair trial.[3] In particular, the time granted to an accused under Rule 73ter of the Rules must be reasonably proportional to the time allocated to the Prosecution, and objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights under Article 21 of the Statute.[4]

19. The Appeals Chamber considers that a “purely arithmetical calculation” for the allocation of time to the Defence may constitute an abuse of the Trial Chamber’s discretion. As noted in the Orić Decision, “a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides”.[5] However, the Appeals Chamber is not satisfied that the Impugned Decision was based on such an arithmetic division of time.

23. The Appeals Chamber notes that Rule 92bis to 92quater are aimed at ensuring the efficient presentation of evidence at trial and may be relied upon in lieu of viva voce evidence where it does not impact upon the fairness of the proceedings. In assessing the amount of time reasonably required for each Accused to present his case, the Trial Chamber was entitled to assume that the parties would present their cases as efficiently as possible and take advantage of the options available to them to reduce the time for presenting evidence, especially if repetitive or peripheral. In light of the Trial Chamber’s familiarity with the case to be presented by the Defence, it was reasonable for the Trial Chamber to consider that the Defence could make use of Rules 92bis and 92ter of the Rules in relation to some of the witnesses each intended to call.

25. The Appeals Chamber finds that the Trial Chamber’s decision to assess the relevance of proposed testimony prior to its presentation in evidence falls within the discretion accorded to the Trial Chamber in its management of the trial. There is no prohibition against a Trial Chamber’s  considering that some of the evidence sought to be presented will be repetitive when assessing, in application of Rule 73ter(E) and on the basis of the 65ter List presented by an accused, the time necessary for the fair presentation of the Defence case. The Appeals Chamber considers that this method is not only reasonable, but also presents the advantage of certainty, enabling the Defence to organize its strategy on the basis of the time allocated to it. The Appeals Chamber further notes that the Trial Chamber clarified in the Impugned Decision that it would adopt a flexible approach and, should the Defence establish that additional time was necessary, it would grant additional time.[6]  Consequently, the Appeals Chamber finds no error in the approach adopted by the Trial Chamber.

1.         Paras 98-103:  Although “Equality of arms, particularly the principle of audi alteram partem, is generally thought to apply just before courts”,[1] the Appeals Chamber stated that “the principle has some applicability outside the walls of the Tribunal.” (para. 98).  In this case, the Appeals Chamber found that the principle applied and was violated where UNMIK was delegated the authority to vary the conditions of the Accused’s provisional release without considering the views of the Prosecution.  

181. The Appeals Chamber accepts the view that the concept of a fair trial includes equal opportunity to present one’s case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party.[1] Considering the latter right under the principle of equality of arms, the Appeals Chamber of ICTY held that Article 21(4)(e) of the Statute of ICTY:

serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution. In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses.[2]

43. Article 20(1) of the Statute provides that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious […]”. This provision mirrors the corresponding guarantee provided for in international and regional human rights instruments:  the International Covenant on Civil and Political Rights (1966) (“ICCPR”),[1] the European Convention on Human Rights (1950),[2] and the American Convention on Human Rights (1969).[3]  The right to a fair trial is central to the rule of law: it upholds the due process of law.  The Defence submits that due process includes not only formal or procedural due process but also substantive due process.[4]

44. The parties do not dispute that the right to a fair trial guaranteed by the Statute covers the principle of equality of arms.  This interpretation accords with findings of the Human Rights Committee (“HRC”) under the ICCPR.  The HRC stated in Morael v. France[5] that a fair hearing under Article 14(1) of the ICCPR must at a minimum include, inter alia, equality of arms.  Similarly, in Robinson v. Jamaica[6] and Wolf v. Panama[7] the HRC found that there was inequality of arms in violation of the right  to a fair trial under Article 14(1) of the ICCPR.  Likewise, the case law under the ECHR cited by the Defence accepts that the principle is implicit in the fundamental right of the accused to a fair trial.  The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.  The Appeals Chamber finds that there is no reason to distinguish the notion of fair trial under Article 20(1) of the Statute from its equivalent in the ECHR and ICCPR, as interpreted by the relevant judicial and supervisory treaty bodies under those instruments. Consequently, the Chamber holds that the principle of equality of arms falls within the fair trial guarantee under the Statute.

46. The Defence contends that the minimum guarantee in Article 21(4)(b) of the Statute to adequate time and facilities for the preparation of defence at trial forms part of the principle of equality of arms, implicit in Article 20(1).  It argues that, since the authorities in the Republika Srpska failed to cooperate with the Defence, the Appellant did not have adequate facilities for the preparation of his defence, thereby prejudicing his enjoyment of equality of arms.

47. The Appeals Chamber accepts the argument of the Defence that, on this point, the relationship between Article 20(1) and Article 21(4)(b) is of the general to the particular.  It also agrees that, as a minimum, a fair trial must entitle the accused to adequate time and facilities for his defence.  

In order to decide on the scope of application of the principle of equality of arms, the Appeals Chamber  carried out a review of the international case-law in paragraphs 48–50. It then continued as follows:-

51. The case law mentioned so far relates to civil or criminal proceedings before domestic courts.  These courts have the capacity, if not directly, at least through the extensive enforcement powers of the State, to control matters that could materially affect the fairness of a trial.  It is a different matter for the International Tribunal.  The dilemma faced by this Tribunal is that, to hold trials, it must rely upon the cooperation of States without having the power to compel them to cooperate through enforcement measures.[8] The Tribunal must rely on the cooperation of States because evidence is often in the custody of a State and States can impede efforts made by counsel to find that evidence.  Moreover, without a police force, indictees can only be arrested or transferred to the International Tribunal through the cooperation of States or, pursuant to Sub-rule 59bis, through action by the Prosecution or the appropriate international bodies.  Lacking independent means of enforcement, the ultimate recourse available to the International Tribunal in the event of failure by a State to cooperate, in violation of its obligations under Article 29 of the Statute, is to report the non-compliance to the Security Council.[9]

52. In light of the above considerations, the Appeals Chamber is of the view that under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts.  This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.  The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.  Provisions under the Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side may have equal access to witnesses.  The Chambers are empowered to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.  This includes the power to:

(1) adopt witness protection measures, ranging from partial to full protection;

(2) take evidence by video-link or by way of deposition;

(3) summon witnesses and order their attendance;

(4) issue binding orders to States for, inter alia, the taking and production of evidence; and

(5) issue binding orders to States to assist a party or to summon a witness and order his or her attendance under the Rules.

A further important measure available in such circumstances is:

(6) for the President of the Tribunal to send, at the instance of the Trial Chamber, a request to the State authorities in question for their assistance in securing the attendance of a witness.

In addition, whenever the aforementioned measures have proved to be to no avail, a Chamber may, upon the request of a party or proprio motu:

(7) order that proceedings be adjourned or, if the circumstances so require, that they be stayed. 

19. […] Equality of arms is a broad concept that constitutes an inherent element of a fair trial. According to the principle of equality of arms each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. It is a protection afforded to the accused to ensure that he is given procedural rights equal to those of the Prosecution in the course of criminal proceedings. Those procedural rights include giving the accused effective ways to challenge evidence produced by the Prosecution.

20. The principle of "equality of arms" inheres in the requirement that the accused be recognised the right to a fair trial. Basically, this principle embodies the notion that the accused should be afforded procedural equality with respect to the Prosecution. Its purpose is to give each party equal access to the processes of the Tribunal, or an equal opportunity to seek procedural relief where relief is needed.[4] The right to equality of arms does not include a right to equality of relief.[5] […]

32. The Appeals Chamber can identify no error in the Trial Chamber’s decision not to postpone the commencement of trial in the absence of Kalimanzira’s lead counsel. As the Trial Chamber noted, the purpose of a co-counsel is not only to assist the lead counsel but indeed to conduct the case in order to allow the proceedings to continue in the event of an unforeseeable absence of the lead counsel. A review of the record reflects that the Trial Chamber was mindful of the additional difficulties that this situation imposed on the Defence and accommodated these by, inter alia, postponing the cross-examination of the first five witnesses.[1]

33. Significantly, Kalimanzira does not allege that Ms. Guissé’s performance was ineffective. Indeed, as noted above, the Trial Chamber acknowledged her competence both at the outset of the session and after its conclusion. Furthermore, the record indicates that Ms. Guissé was in fact in consultation with Mr. Vercken during the first trial session and sought his instruction.[2] Kalimanzira also did not seek the recall of any of the witnesses for further cross-examination on the basis of Ms. Guissé’s performance after Mr. Vercken’s return.

34. As to the disparity between the Prosecution and the Defence teams during this period, the Appeals Chamber has held that “the equality of arms principle requires a judicial body to ensure that neither party is put at a disadvantage when presenting its case.”[3] This principle does not require, however, material equality between the parties in terms of financial or human resources.[4] Therefore, there is no merit in Kalimanzira’s submission that his rights were violated simply because the Prosecution had a larger team of lawyers during this period.

67.     The right of an accused to a fair trial implies the principle of equality of arms between the Prosecution and the Defence[1]. The Appeals Chamber finds that the Trial Chamber rightly held that:

“The notion of equality of arms is laid down in Article 20 of the Statute. Specifically, Article 20(2) states, “… the accused shall be entitled to a fair and public hearing… Article 20(4) also provides, “…the accused shall be entitled to the following minimum guarantees, in full equality…,” then follows a series of rights that must be respected, including the right to a legal counsel and the right to have adequate time and facilities to prepare his or her defence.”[2]

[…]

69.     The Appeals Chamber observes in this regard that equality of arms between the Defence and the Prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources[3]. In deciding on the scope of the principle of equality of arms, ICTY Appeals Chamber in Tadić held that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case”[4].

[…]

73.     The Appeals Chamber concurs with ICTY Appeals Chamber's position expressed in Tadić, that the principle of equality of arms does not apply to “conditions, outside the control of a court”,[5] that prevented a party from securing the attendance of certain witnesses. […]