The Prosecution challenged the compliance of the Impugned Decision on Remand with the Appeals Chamber’s direction to the Trial Chamber that it specifically consider whether the reduction of 107 hours from the 400 hours originally allocated to the Prosecution would allow it a fair opportunity to present its case in light of the complexity and number of issues that remain. The Appeals Chamber found:

28. The Appeals Chamber recognises that a substantial amount of time has been cut. It also takes note of the significant complexity and importance of this case amongst those that have and will have been prosecuted at the International Tribunal. [...]

29. The Appeals Chamber recognises that the reduction in time by the Trial Chamber will undoubtedly be seen to interfere with the presentation of the Prosecution’s case in that a cut will force the Prosecution to further revise and refine its trial strategy. It does not however, necessarily imply that the Prosecution will be unable to fairly and effectively present its case within the confines of the reduced time. The question before the Appeals Chamber is thus whether the Trial Chamber committed a discernable error in determining that the reduction of 107 hours would still allow the Prosecution a fair opportunity to present its case.

30. The Appeals Chamber has previously recalled in this case that “every court possesses the inherent power to control the proceedings during the course of the trial,”[1] and that it was within the discretion of the Trial Chamber to revise the time originally allocated to the Prosecution in the Decision Adopting Guidelines as a function of that power.[2] Following the remanding of the Impugned Decision and the renewed assessment carried out by the Trial Chamber, the Appeals Chamber finds the Trial Chamber acted within its discretion and defers to it in respect of the outcome of its assessment. The Appeals Chamber considers that the Trial Chamber has now clearly indicated the bases upon which it carried out its assessment, and is not persuaded that relevant factors have gone unconsidered or irrelevant factors have been accorded undue weight.[3] Furthermore, the Appeals Chamber does not find the Trial Chamber’s decision to be unfair or unreasonable as to constitute an abuse of its discretion.

31. The Appeals Chamber notes the Prosecution’s contention that the Trial Chamber’s reference to the use of Rules 92bis and 92ter of the Rules as a way to allow the Prosecution to present its case as efficiently as possible does not constitute a new or changed circumstance capable of justifying the cutting of the Prosecution’s time from 400 hours to 293 hours.[4] The Prosecution submits that in relying on these factors, the Trial Chamber is effectively “double-counting”, having used these rules in setting the original timeframe of 400 hours and now again using these same rules to justify the additional time cut.[5] Seeking to rely on the Milošević Appeal by the Amici, the Prosecution argues that the Trial Chamber has consequently given weight to extraneous or irrelevant considerations “which the Appeals Chamber has found to be an error in the exercise of discretion in the setting of time limits.”[6] The Appeals Chamber finds that this reference is inapposite. Noting that the Trial Chamber is the best placed authority to determine what amount of time is sufficient for the accused to prepare his defence, the Appeals Chamber in the Milošević Appeal by the Amici found that the “Trial Chamber’s decision was informed by sufficient factual information and by the appropriate legal principles, and did not take into account any impermissible factor” such as the completion target for the International Tribunal’s work.[7] In that case, the Appeals Chamber did not, as the Prosecution suggests, consider the use of Rules 92bis and 92ter to be extraneous or irrelevant considerations in determining the sufficiency of the time required for a party to prepare or present its case.[8]

32. Furthermore, it appears from the face of the Impugned Decision on Remand that the Trial Chamber was in fact careful not to “double count”. The Trial Chamber’s calculation of a savings of approximately 45 hours from the use of Rule 92ter represents the difference between the Prosecution’s estimation of the total time needed for the examination of all the witnesses who were examined prior to 28 February 2007 and the Registrar’s calculation of the time actually spent for the examination of these witnesses in court.[9]

33. Lastly, the Appeals Chamber notes that the Trial Chamber clearly indicated in the Decision Adopting Guidelines that any of the practices and guidelines contained therein were subject to being altered “as the trial progresses, in order to ensure that the proceedings are conducted in a fair and expeditious manner.”[10] Such changes were not necessarily predicated, as the Prosecution argues, on the demonstration of a new or changed circumstance.

At para. 14, the Appeals Chamber held:

14. At the outset, the Appeals Chamber recalls that “every court possesses the inherent power to control the proceedings during the course of the trial.”[1] It was therefore entirely within the Trial Chamber’s discretion in the Impugned Decision to revise the time originally allocated to the Prosecution in the Decision Adopting Guidelines as a function of that power.[2] However, with respect to the Prosecution’s first argument in this Interlocutory Appeal, the Appeals Chamber further recalls its previous holding in the Orić case that in setting time limits for the presentation of evidence, a Trial Chamber is required to consider whether the amount of time allocated is objectively adequate to permit the relevant party to fairly set forth its case.[3] While the Orić Decision applied to the setting of time limits rather than to their revision as in this case, the same logic applies. Furthermore, while that decision by the Appeals Chamber involved a reduction of the Defence’s case, under Article 20(1) of the Statute of the International Tribunal, the requirement of the fairness of a trial is not uniquely predicated on the fairness accorded to any one party.[4] Indeed, the principle of equality of arms, falling within the fair trial guarantee under the Statute,[5] applies to the Prosecution as well as the Defence.[6] As previously reasoned by the Appeals Chamber:

application of a fair trial in favour of both parties is understandable because the Prosecution acts on behalf of and in the interests of the community, including the victims of the offences charged (in cases before the Tribunal the Prosecutor acts on behalf of the international community). This principle of equality does not affect the fundamental protections given by the general law of Statute to the accused, and the trial proceeds against the background of those fundamental protections. Seen in this way, it is difficult to see how a trial could ever be considered fair where the accused is favoured at the expense of the Prosecution beyond a strict compliance with those fundamental protections.[7]

Thus, in this case, the question before the Appeals Chamber is whether the Trial Chamber, in reducing the Prosecution’s case by 107 hours, took into consideration the complexity of the remaining issues to be addressed and determined that the remainder of the time allotted to the Prosecution was sufficient for allowing it a fair opportunity to present its case.[8]

In the present case, the Appeals Chamber considered that:

16. The Appeals Chamber considers that although the Trial Chamber further based its decision on the fact that “adhering to these excessively long terms would not be in the interest of justice or in line with the right of the Accused to a fair and expeditious trial”,[9] it failed to adequately consider whether reducing the amount of time available to the Prosecution by 107 hours would still allow it the opportunity to fairly present its case.[10] The Trial Chamber’s duty to ensure the fairness and expeditiousness of proceedings will often entail a delicate balancing of interests. This is particularly so in a trial of this scope and complexity, for which there is little precedent. As stated previously, in allocating or revising the amount of time allotted to a party for the presentation of its case, the Trial Chamber is required to ensure that the allotted time is reasonably sufficient in light of the complexity and number of issues to be litigated.[11] In this sense, the Trial Chamber was required to assess whether the appropriate balance was struck in reducing the time available to the Prosecution for the presentation of its case. However, it failed to actually do so, merely stating in this regard that “the considerations of economy should never violate the right of the Parties to a fair trial.”[12] […]

The Appeals Chamber recalled that, in reducing the time allocated for the presentation of evidence, Trial Chambers must provide a reasoned opinion:

16. […] The Appeals Chamber recalls that a Trial Chamber must, at a minimum, provide reasoning in support of its findings on the substantive considerations relevant for a decision and considers that, in this case, the reasoning in the Impugned Decision in the absence of this assessment is insufficient in itself to support the reduction.[1] While it may be that, in light of the evidence presented to date, the reduction of 107 hours allocated to the Prosecution still permits it a fair opportunity to present its case, the Trial Chamber must specifically consider whether this is indeed so.