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.