Principle of equality of arms

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Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)

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]

[1] Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14-/2-A, Decision on Application by Mario Čerkez for Extension of Time to File his Respondent’s Brief, 11 September 2001, para. 5. Even though the French version – the original being the English text – refers to “what is described as the fundamental right that criminal proceedings are accusatoire in nature – defined as meaning the opportunity for both the prosecution and the accused to have knowledge of and comment on the observations filed or evidence adduced by either party […]” (emphasis added), the term “accusatoire” is a wrong translation of the term “adversarial” and, in view of the references on which this relies, the term “contradictoire” should have been used.

[2] Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-AR73.3, Decision on Appeal by Dragan Papić against Ruling to Proceed by Deposition, 15 July 1999, para. 24.

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Decision on Witness List - 21.08.2007 NYIRAMASUHUKO et al. (Butare)

26. The Appeals Chamber recalls that in the Karemera et al. case, it endorsed the following reasoning of the ICTY Appeals Chamber in the Orić case:

The Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour which may require less time and fewer witnesses. This is sufficient reason to explain why 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.[3]

The Appeals Chamber considered that all parties were not entitled to call precisely equal numbers of witnesses and the Trial Chamber has the discretion to limit the number of witnesses a party may call. This discretion may be exercised pursuant to Rules 73bis and 73ter of the Rules. Where the Trial Chamber exercises this discretion, it must be subject to the full respect of the rights of the party concerned. In cases where an exercise of this discretion leads to a situation where one party has more witnesses than the other, this does not necessarily mean that the principle of equality of arms is violated.

[1] Prosecutor v. Édouard Karemera et al., Case No.ICTR-98-44-AR 15bis 3, Decision on Appeal Pursuant to Rule 15 bis (D), 20 April 2007, para. 27.

[2] Orić Decision.

[3] Orić Decision, para. 7 (internal footnotes omitted).

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