Flexibility of time-limits

Notion(s) Filing Case
Decision on Interlocutory Appeal - 04.07.2006 PRLIĆ et al.

In its Oral Decision of 8 May 2006, the Trial Chamber adopted three principles concerning cross-examination guidelines for the six accused in this case. They included 1) the total time limit of cross-examination by the Defence shall not in principle exceed the Prosecution’s direct-examination and if Defence cannot agree the time will be allocated equally, 2) the Defence will rotate their order of cross-examining witnesses, and 3) the allocation of time for cross-examination will be altered if a witness’s testimony goes to the responsibility of one of the accused.[1]

In their interlocutory Appeal, the Appellants submit that the Trial Chamber abused its discretion by committing the following:

(a) severely restricting the fundamental right of the Accused to cross-examine the witnesses against them;

(b) applying rigid time-constraints in preference to using less restrictive methods of control;

(c) effectively requiring the Accused to exercise the right of cross-examination as a group rather than individually, regardless of conflicts of interest, and to bargain with each other for time to cross-examine;

(d) preventing Defence Counsel from affording effective assistance of counsel to the Accused; and

(e) failing to exercise judicial independence by subjugating the fight of the Accused to a fair trial to the political and economic pressures imposed upon the Trial Chamber by the UN Security Council through the Completion Strategy.[2]

The Prosecution submitted that the Trial Chamber decision was rather “a practical and flexible guideline that ensures a fair and expeditious trial, discourages unfocused and irrelevant cross-examination, and facilitates the scheduling of witnesses who must travel internationally to testify before the International Tribunal”.[3]

The Appeals Chamber noted that each of the Defence teams had 1/6 of the time allocated to Prosecution (unless another agreement was reached),[4] and the Trial Chamber could allocate the time differently depending on whether a witness’ testimony spoke directly to the culpability of the one of the accused.[5] Additionally, the Appeals Chamber referred to the Tribunal’s established practice of avoiding “rigid time limits”[6] for cross-examination, “in particular, since the Trial Chamber reserves its power to modify the time allowed for cross-examination as necessary and allows the Appellants to adjust the specified time allocation by agreement among themselves.”[7]

Therefore, the Appeals Chamber found that the Trial Chamber was “sufficiently flexible”[8] in preserving the Defendant’s right to cross-examination as stated in the Statute, while also balancing the needs and right to a fair trial of each individual defendant.

[1] Decision on Defence Request Filed Jointly by the Six Accused for Certification of Interlocutory Appeal Against the Oral Decision of 8 May on Time Allocated for Cross-Examination by Defence, 29 May 2006; see  also Transcript, 8 May 2006, pp. 1475-76, 1485-86.

[2] Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence, 15 June 2006, para. 1.

[3] Prosecution Response to Joint Defence Interlocutory Appeal Against the Trial Chamber’s Decision Relating to Cross-Examination by Defence, 22 June 2006, para. 1.1.

[4] Oral Decision on Cross-Examination by Defence, 8 May 2006, T. 1474-1476.

[5] Decision, p. 3.

[6] Decision, p. 4.

[7] Decision, page 4, referring to: Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision Adopting Guidelines on the Standards Governing the Presentation of Evidence and The Conduct of Counsel in Court, 13 April 2006, Annex A, para. 11: “In the interest of ensuring fair and expeditious conduct of the trial proceedings, the parties are requested to adhere to the principle that the time for cross-examination of a witness should not exceed the time allotted for the examination-in-chief of that witness, unless there are particular circumstances requiring that the cross-examination be extended”; see also Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, T. 1063, 7 September 1999; Prosecutor v. Mladen Naletilić and Vinko Martinović, Case  No. IT-98-34-T, T. 12248, 10 June 2002 (closed session); Prosecutor v. Momčilo Krajišnik, Case No.  IT-00-39-T, T.  2652, 23 April 2004, where the Trial Chamber indicated as a guideline that the cross-examination of witnesses should take approximately 60 percent of the time allocated for the examination-in-chief; Prosecutor v.  Slobodan  Milošević, Case No. IT-02-54-T, Third Order on the  Use  of  Time  in  the  Defence  Case  and  Decision  on  Prosecution's  Further Submissions on the Recording and Use of Time during the Defence Case, 19 May 2005, p. 1, where the judges ordered that 60 percent of the time allocated to the Accused to present his case-in-chief  would  be allocated to the Prosecution for  cross-examination  during  the  Defence  case.

[8] Id.

Download full document
ICTR Rule Rule 90(F) ICTY Rule Rule 90(F)