14. […] [W]hen tasked with the decision of whether to exclude evidence, the Trial Chamber is bound more particularly by Rule 89(D) to determine whether the probative value of the evidence is substantially outweighed by the need to ensure a fair trial.

In this case, the question was whether the incompleteness of the cross-examination and the disadvantage to the Appellant emanating from this, substantially outweighed the probative value of the evidence such that it should be removed from the trial record (para. 15).

25. […] In this sense, the Appeals Chamber recalls that “where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence”.[1] In doing so, the Trial Chamber will have to consider “the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations”.[2] In striking the balance under Rule 89(D) of the Rules, the Trial Chamber will also consider the available measures to address the prejudice, if any, by “for example, providing more time for [re]-examination, adjourning the session, or granting the possibility of recalling the witness”.[3] If, on balance, the fresh evidence is found to be inadmissible during the presentation of the Defence case, the Prosecution may still, under certain conditions, seek its admission as evidence in rebuttal.[4]

27. In its Delić Decision, the Appeals Chamber emphasized that specifying the purpose of admission of fresh evidence despite the Defence’s objections is necessary in order to properly address the prejudice caused by such admission.[5] In this sense, the Appeals Chamber considers that the risk of prejudice caused by the admission of fresh evidence probative of guilt is potentially greater as compared to fresh evidence admitted with the sole purpose of impeaching the witness.[6]

30. […] In any case, considerations pertaining to the scope of cross-examination or any prejudice caused by the non-disclosure of the tendered material at an earlier stage may become relevant to the Trial Chamber’s decision on admission made on a case-by-case basis.[7] The Appeals Chamber re-emphasizes that what matters is that the admission of the fresh evidence tendered by the Prosecution after the closure of its case-in-chief is justified by the interests of justice and does not entail violation of the fair trial rights, which is in full compliance of Rules 85, 89(C), 89(D) and 90(F) of the Rules.

39. The Appeals Chamber recalls that Trial Chambers enjoy considerable discretion in managing the trials before them. However, the manner in which such discretion is exercised by a Trial Chamber should be determined in accordance with the case before it. Indeed, what is reasonable in one trial is not automatically reasonable in another. Thus, the question of whether a Trial Chamber abused its discretion should not be considered in isolation, but rather should be assessed taking into account all the relevant circumstances of the case at hand.

40. Taken individually and outside the context of the trial, each of the Trial Chamber’s decisions concerning Kabashi and the other witness could be considered as falling within its scope of discretion. When these decisions are evaluated together, however, particularly in the context of the serious witness intimidation that formed the context of the Trial, it is clear that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of Kabashi and the other witness. […]

48. […] [T]he context of this trial was far from normal and required the Trial Chamber to proactively focus on ensuring the fairness of the proceedings in accordance with the Statute.[1] This required flexibility from the Trial Chamber with regard to subsidiary issues of witness scheduling, trial logistics, and deadlines. The Trial Chamber’s failure to show the required flexibility effectively helped to ensure that witness intimidation succeeded in denying the Prosecution an opportunity to present potentially crucial evidence in support of its case.[2]

196. When the Defence asserts that the trial was unfair because witnesses crucial to the Defence refused to testify due to interference, it is incumbent on the Defence to, first, demonstrate that such interference has in fact taken place and, second, exhaust all available measures to secure the taking of the witnesses’ testimony.[1] When a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement.[2] Thus, the element of prejudice is an essential aspect of the proof required of an appellant alleging a violation of his or her fair trial rights.[3]

210. Recalling that when a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement,[4] the Appeals Chamber will consider whether the Trial Chamber’s failure to ensure the timely completion of the Renzaho Investigation prior to the delivery of the Trial Judgement caused Renzaho prejudice of this gravity. […].

45. […] The important consideration in determining whether a tribunal has been "established by law" is not whether it was pre-established or established for a specific purpose or situation; what is important is that it be set up by a competent organ in keeping with the relevant legal procedures, and that it observes the requirements of procedural fairness. […]

46. An examination of the Statute of the International Tribunal, and of the Rules of Procedure and Evidence adopted pursuant to that Statute leads to the conclusion that it has been established in accordance with the rule of law. The fair trial guarantees in Article 14 of the International Covenant on Civil and Political Rights have been adopted almost verbatim in Article 21 of the Statute. Other fair trial guarantees appear in the Statute and the Rules of Procedure and Evidence. For example, Article 13, paragraph 1, of the Statute ensures the high moral character, impartiality, integrity and competence of the Judges of the International Tribunal, while various other provisions in the Rules ensure equality of arms and fair trial.

47. In conclusion, the Appeals Chamber finds that the International Tribunal has been established in accordance with the appropriate procedures under the United Nations Charter and provides all the necessary safeguards of a fair trial. It is thus "established by law."

At paras 42-43, the Appeals Chamber held:

42. The Appeals Chamber considers that the continuation of the proceedings with a substitute Judge in a case where witnesses have already been heard does not necessarily infringe on fair trial rights. As the Appeals Chamber previously stated:

[t]here is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[1]

43. The Appeals Chamber also considers that, pursuant to Rule 15bis (D) of the Rules, a substitute Judge may only join the bench “after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings.” These safeguards ensure that fair trials rights are not compromised. In the present case, the remaining Judges took into consideration that the substitute Judge will need to review the “records of the proceedings, including the transcripts, audio and video-recordings, to observe the demeanour of the witness” in determining that it would be in the interests of justice to continue the proceedings with a substitute Judge.[2]

51.     […] [T]he Appeals Chamber recalls that the principle of the right to a fair trial is part of customary international law. It is embodied in several international instruments, including Article 3 common to the Geneva Conventions[1] which, among other things, prohibits:

“the passing of sentences (…) without previous Judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”[2].

          The Appeals Chamber notes that the Statute sets forth provisions guaranteeing the rights of the accused. According to Article 19(1) of the Statute, the Trial Chamber shall ensure that the trial is fair and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused. Article 20 and various provisions of the Rules set forth the rights of the accused by echoing the guarantees contained in international and regional instruments[3].

80.     […] The Appeals Chamber […] agrees with the opinion expressed by the European Court of Human Rights, that:

“The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial.[…] The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may secure that this requirement is met. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon..”[1]

The adversarial principle under the Statute and the Rules is to the same effect […].

18. The Appeals Chamber emphasizes that it will not lightly intervene in the domestic jurisdiction of a state. As the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case. To this end, it has competence under Article 28 of the Statute of the Tribunal (“Statute”) and Rules 54 and 107 of the Rules to issue any related order. Accordingly, the Appeals Chamber will only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatens the fairness of the proceedings in this case. […]

[…]

30. The Appeals Chamber recalls Rwanda’s intention to respect Erlinder’s functional immunity,[1] and stresses the need to respect it. Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

24. The Appeals Chamber accepts that as between a speedy trial and an equitable trial preference should be given to the latter. But there is no necessary opposition between the two: a trial is inequitable if it is too long drawn out. Speed, in the sense of expeditiousness, is an element of an equitable trial. The Appeals Chamber does not consider that the Trial Chamber meant otherwise or that, in particular, it was deferring to expediency. The Appeals Chamber will credit the Trial Chamber with knowing of the distinction between “expeditiousness” and “expedience”. It notes that the Trial Chamber referred to the command in article 19.1 of the Statute that “Trial Chambers shall ensure that a trial is fair and expeditious …” and that it is in that sense – the sense of “expeditiousness” - that the expression “speedy trial” is understood in major jurisdictions.[1] […]

84. The Appeals Chamber recalls that decisions concerning the scheduling of trials and their modalities are discretionary decisions of the trial chamber to which the Appeals Chamber accords deference.[1] The trial chamber’s discretion, however, must be exercised in accordance with Articles 20(1) and 21 of the ICTY Statute, which require trial chambers to ensure that trials are fair and conducted with full respect for the rights of the accused.[2]

26. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in relation to the management of the proceedings before them, including as to the modalities of the presentation of evidence.[1] This discretion, however, must be exercised in accordance with Article 20(1) of the ICTY Statute, which requires trial chambers to ensure that trials are fair and conducted with full respect for the rights of the accused.[2] Where a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the violation caused prejudice that amounts to an error of law invalidating the judgement.[3]

See also para. 72.

27. The right of an accused to represent himself, which is guaranteed by the ICTY Statute and has been held to be an “indispensable cornerstone of justice”, is nonetheless not absolute and may be subject to certain limitations.[4] In this respect, any limitation must be guided by the proportionality principle, that is, it must serve a sufficiently important aim that is compatible with the ICTY Statute and not impair the right more than necessary to accomplish such aim.[5]

[…]

29. The Appeals Chamber considers that Karadžić has failed to demonstrate that the Trial Chamber’s decision that his testimonial evidence be led by his legal advisor rather than be presented in narrative form interfered with his right to represent himself.[6] While Karadžić points to submissions made by his legal advisor that the decision essentially imposed his legal advisor as his “counsel” for the purpose of Karadžić’s examination,[7] this does not demonstrate that the decision curtailed his right to represent himself. Specifically, Karadžić does not show, for example, that the decision impacted his ability as a self-represented defendant to control the preparation and execution of his examination-in-chief, including the organization and substance of the questions to be asked by his legal advisor and the evidence elicited. The Appeals Chamber considers that the Trial Chamber’s decision respected Karadžić’s right to self-representation and the right to testify and finds no merit in his argument that he was forced to choose between the two.