255. […] the Appeals Chamber reiterates that any violation of the accused’s rights entails the provision of an effective remedy pursuant to Article 2(3)(a) of the ICCPR. The Appeals Chamber considers that under the jurisprudence of this Tribunal, where the Appeals Chamber has found on interlocutory appeal that an accused’s rights have been violated, but not egregiously so, it will order the Trial Chamber to reduce the accused’s sentence if the accused is found guilty at trial.[1] With this in mind, the Appeals Chamber will take into consideration its findings here on violations of the Appellant’s rights when it turns to the task of determining the Appellant’s sentence in this Judgement in order to provide for an appropriate remedy.

320. The Appeals Chamber recalls that it concluded that the Appellant’s fundamental rights were violated during his arrest and detention prior to his initial appearance and consequently, that he is entitled to a remedy.[2] The Appeals Chamber therefore finds it appropriate to reduce the Appellant’s sentences as imposed by the Trial Chamber for his convictions at trial, which have been affirmed in this appeal.[3]

322. The Appeals Chamber notes that the Trial Chamber granted credit[4] to the Appellant pursuant to Rule 101(D) for time served pending surrender and trial as foreseen mandatorily under all circumstances and in each case. Therefore this credit was not a remedy for the suspect or accused’s rights having been violated during the period of his prolonged detention pending transfer and trial. Where a suspect or an accused’s rights have been violated during the period of his unlawful detention pending transfer and trial, Article 2(3)(a) of the ICCPR stipulates that “[a]ny person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”

119. […] When the Defence is of the view that the Prosecution introduces evidence of material facts of which it had no notice, it can make an objection to the admission of such evidence for lack of notice.[1] If the Trial Chamber agrees with the Defence that insufficient notice was given, the Trial Chamber may exclude the challenged evidence in relation to the unpleaded material facts, require the Prosecution to amend the indictment, grant an adjournment to allow the Defence adequate time to respond to the additional allegations, or take other measures to preserve the rights of the accused to a fair trial.[2] With respect to this last measure, the Appeals Chamber recalls that a Trial Chamber can also find the particular evidence inadmissible to prove a material fact of which the accused was not on notice, but admissible with respect to other allegations sufficiently pleaded.[3]

42.    As regards Nyiramasuhuko’s request for an appropriate remedy for the violations found at trial, the Appeals Chamber observes that the only violations determined to have occurred were the violations of her rights to be informed of the charges against her and of initial appearance without delay recognised in the 12 October 2000 Decision [The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, 12 October 2000 (originally filed in French, English translation filed on the same day)].[1] The Appeals Chamber recalls that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[2] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[3] In practice, “the effective remedy accorded by a Chamber for violations of an accused’s fair trial rights will almost always take the form of equitable or declaratory relief.”[4] The Appeals Chamber considers that, in situations where the violation has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[5] Nyiramasuhuko has not developed any argument to demonstrate that the recognition of the violations of her rights to be informed of the charges against her and of initial appearance without delay by Judge Kama in the 12 October 2000 Decision was not an effective remedy. Nyiramasuhuko’s claim is therefore dismissed.

See also para. 50.

85. The Appeals Chamber recalls that decisions concerning disclosure pursuant to Rules 66 and 68 of the ICTY Rules as well as remedies for disclosure violations relate to the general conduct of trial proceedings and therefore fall within the discretion of the trial chamber.[1] In order to successfully challenge a discretionary decision, the appealing party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to that party.[2] The Appeals Chamber will only reverse a trial chamber’s discretionary decision where it is found to be based on an incorrect interpretation of the governing law, based on a patently incorrect conclusion of fact, or where it is so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.[3]

See also para. 230.

[…]

88. […] The Appeals Chamber recalls that, if the Defence satisfies the Chamber that the Prosecution failed to comply with its disclosure obligations under Rule 68 of the ICTY Rules,[4] the Chamber must examine whether the Defence was prejudiced by that failure before considering whether a remedy is appropriate.[5] The onus is on the Defence to substantiate its claim of alleged prejudice from the disclosure violation.[6] […]

[…]

91. […] The Appeals Chamber observes that disclosure under Rule 68 of the ICTY Rules is a continuous obligation that does not require disclosure prior to the commencement of trial but “as soon as practicable”.[7] Karadžić does not substantiate his general contentions that he was deprived of the ability to develop a coherent defence strategy before trial due to disclosure during the trial or show how disclosure in the midst of his proceedings prejudiced his ability to review exculpatory material as well as conduct other aspects of his defence. […]

92. Karadžić’s contentions also fail to account for the resources and legal assistance available to him during his pre-trial and trial proceedings in order to, inter alia, review and assimilate extensive Prosecution disclosures.[8] Likewise, Karadžić’s submissions fail to account for the suspensions of proceedings and delays in the presentation of Prosecution witnesses that the Trial Chamber ordered for the purpose of ensuring his right to a fair trial.[9]

[…]

 96. The Appeals Chamber recalls that, to establish that the Prosecution is in breach of its disclosure obligations, the applicant must: (i) identify specifically the material sought; (ii) present a prima facie showing of its probable exculpatory nature; and (iii) prove that the material requested is in the custody or under the control of the Prosecution.[10] The Prosecution received the statement in December 2012 and disclosed it to Karadžić more than three years later.[11] The Appeals Chamber considers that, in the absence of any explanation, the disclosure did not occur as soon as practicable.[12] Having considered the arguments presented at trial and on appeal,[13] the Appeals Chamber is satisfied that the statement contains potentially exculpatory material.[14] Consequently, Karadžić has established that the Prosecution violated its disclosure obligation under Rule 68 of the ICTY Rules in relation to this statement.[15]

[…]

103. The Appeals Chamber observes that excluding relevant parts of the Prosecution evidence may be an appropriate remedy for a disclosure violation and that, in this regard, the exclusion of evidence for disclosure violations is an extreme remedy that should not be imposed unless the defence has demonstrated sufficient prejudice to justify such a remedy.[16] In this case, the Trial Chamber expressly recognized that Karadžić was prejudiced and that the disclosure violation “deprived” him of an opportunity to challenge Witness Okun during his cross-examination by reference to the statement.[17] The Trial Chamber addressed this prejudice by not relying on parts of Witness Okun’s evidence, namely by excluding evidence pertaining to Karadžić’s command and control as well as other evidence that did not “strictly” relate to the period between February and May 1992 discussed in the statement.[18] […]

757. The Appeals Chamber recalls that it has previously dismissed Karadžić’s appeal concerning the Trial Chamber’s findings in relation to disclosure violations and prejudice, including alleged undue delay resulting from the Prosecution’s disclosure practices.[1] In particular, the Appeals Chamber has found that the Trial Chamber’s orders to suspend proceedings in view of the Prosecution’s disclosure practices did not result in undue delay as such suspensions expressly sought to strike a balance between Karadžić’s rights to be tried without undue delay and to have adequate time and facilities to prepare his defence.[2] In light of the foregoing and mindful of the broad discretion trial chambers enjoy in determining what constitutes a mitigating circumstance, the Appeals Chamber finds that Karadžić demonstrates no error in the Trial Chamber’s refusal to consider the Prosecution’s disclosure violations in mitigation.