24.    The Appeals Chamber considers that the Trial Chamber’s duty to ensure the fairness and expeditiousness of trial proceedings entails a delicate balancing of interests, particularly in cases, as in the present one, where there are six accused. […]

21. Procedural equality requires that the concept of a fair trial be applied taking into account the interests of both parties. The Prosecution acts on behalf of and in the interests of the international community.[1] Thus, as the international community has an interest in the enforcement of such guarantee, it cannot be deprived of it by the mere circumstance that the Appellant would like to waive his own entitlement to a fair trial.

44. Notwithstanding Gatete’s failure to demonstrate that his ability to prepare or present his defence case was prejudiced by the delay, the Appeals Chamber finds that the pre-trial delay of more than seven years was undue given that the case against Gatete was not particularly complex. In the circumstances of this case, the Appeals Chamber considers that this protracted delay and the resulting prolonged pre-trial detention constitute prejudice per se.

45. […T]he Appeals Chamber considers that the Trial Chamber erred in finding that the length of Gatete’s pre-trial detention was not undue given that it explicitly noted that the conduct of the Prosecution and the relevant authorities resulted in instances of pre-trial delay that could not be explained or justified. Moreover, the Trial Chamber erred in finding that the case against Gatete was sufficiently complex to justify, in part, a pre-trial delay of more than seven years. Notwithstanding the necessary interval for pre-trial procedure, and the selection of the case for referral to Rwanda pursuant to Rule 11 bis of the Rules, the Appeals Chamber considers that the extent of pre-trial delay disproportionately exceeded the time reasonable for a case of such a relatively limited scope and scale and constitutes prejudice per se. Consequently, the Appeals Chamber finds that Gatete’s right to be tried without undue delay was violated and grants his first ground of appeal.

29. Whether a case is sufficiently complex to justify lengthy pre-trial detention is, in the view of the Appeals Chamber, a matter to be determined on a case-by-case basis. In the present instance, the Trial Chamber correctly observed that the case against Gatete could not be compared to multi-accused trials, which run for years and involve hundreds of trial days, hundreds of witnesses, and over a thousand exhibits. However, despite this assessment, the Trial Chamber found that the case was complex in light of the number of counts, allegations, and nature of the crimes charged. The Appeals Chamber considers that the Trial Chamber erred in this regard. Although the Indictment alleges crimes pertaining to different modes of liability and several different incidents, the Prosecution was nonetheless able to present its case in 13 days.[4] Moreover, the whole trial in this single-accused case ran for only 30 days, during which 49 witnesses were called and 146 exhibits were admitted.[5] Consequently, the Appeals Chamber does not consider that the allegations against Gatete justified a pre-trial delay of over seven years.[6] Accordingly, the Appeals Chamber finds that the Trial Chamber erred in finding the case particularly complex and in relying on this as one of the factors to support its finding that the pre-trial delay was not undue.

238. The right to be tried without undue delay is enshrined in Article 20(4)(c) of the Statute. The Appeals Chamber recalls that this right only protects the accused against undue delay, which is determined on a case-by-case basis.[1] A number of factors are relevant to this assessment, including: the length of the delay; the complexity of the proceedings (the number of counts, the number of accused, the number of witnesses, the quantity of evidence, the complexity of the facts and of the law); the conduct of the parties; the conduct of the authorities involved; and the prejudice to the accused, if any.[2]

239. The Appeals Chamber notes that Renzaho does not allege that undue delay was attributable to any Party or the Tribunal, or that he was prejudiced by the length of the proceedings. He points only to the length of his proceedings to support his assertion that he was denied the right to an expeditious trial. While the proceedings have been lengthy, the Appeals Chamber notes that the case against Renzaho was complex. With respect to the pre-trial phase, the Indictment was amended three times, altering the scope of the case.[3] Renzaho does not point to any error in this regard.

240. Further, the Indictment charged direct and superior responsibility under six Counts, including genocide, complicity in genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Renzaho was charged with criminal conduct at several locations, over an extended period of time, including multiple killings and rapes. Although the Appeals Chamber accepts that preparing such a case for trial can reasonably require a lengthy period of time, it emphasizes that every effort should be made to bring cases to trial as expeditiously as possible.[4]

241. Turning to the trial phase, the Appeals Chamber notes that it lasted for thirteen months.[5] There is no assertion that the trial itself was unduly long, and the Appeals Chamber cannot find that this period was unreasonable. With respect to the delivery of the Trial Judgement, the Appeals Chamber notes that it was delivered one and a half years after the close of trial. In the context of this case, such a delay is concerning. The Appeals Chamber underscores that lengthy delays can give rise to serious questions regarding fairness to the accused. However, in view of the complexity of this case, including the number of charges and the volume of evidence produced by the Parties, Renzaho has not demonstrated that the delivery of the Trial Judgement was unduly delayed.

242. The Appeals Chamber is mindful that the right enshrined in Article 20(4)(c) of the Statute is fundamental. While the Appeals Chamber is concerned by the length of the proceedings as a whole, in the particular circumstances of this case, the Appeals Chamber finds that Renzaho has failed to demonstrate that his right to be tried without undue delay has been violated.

16.     The Prosecution is certainly correct that the Trial Chamber must consider all of the circumstances bearing on a motion to amend the indictment.  Interference with the orderly scheduling of trial, however, is one such circumstance.  The Appeals Chamber stated in Karemera that “a postponement of the trial date and a prolongation of the pretrial detention of the Accused” are “some, but not all”[1] of the considerations relevant to determining whether a proposed amendment would violate the right of the accused to a trial “without undue delay,”[2] which in turn bears on the broader question whether the amendment is justified under Rule 50 of the Rules. The Trial Chamber should also consider such factors as the nature and scope of the proposed amendments, whether the Prosecution was diligent in pursuing its investigations and in presenting the motion, whether the Accused and the Trial Chamber had prior notice of the Prosecution’s intention to seek leave to amend the indictment, when and in what circumstances such notice was given, whether the Prosecution seeks an improper tactical advantage,[3]and whether the addition of specific allegations will actually improve the ability of the Accused to respond to the case against them and thereby enhance the overall fairness of the trial.[4] Likewise, the Trial Chamber must also consider the risk of prejudice to the Accused and the extent to which such prejudice may be cured by methods other than denying the amendment, such as granting adjournments or permitting the Accused to recall witnesses for cross-examination.[5] The above list is not exhaustive; particular cases may present different circumstances that also bear on the proposed amendments.

 17.     […] [T]he Trial Chamber is not required to enumerate and dispose of all of the arguments raised in support of a motion.  Absent a showing that the Trial Chamber actually refused to consider any factors other than the determination that the amendment would delay the start of trial, or a showing that the Trial Chamber’s conclusion was so unreasonable that it cannot have considered all pertinent factors, the Appeals Chamber must conclude that the Trial Chamber took account of all of the arguments put to it.

[…]

19. […] Although the Prosecution may seek leave to expand its theory of the Accused’s liability after the confirmation of the original indictment, the risk of prejudice from such expansions is high and must be carefully weighed. On the other hand, amendments that narrow the indictment, and thereby increase the fairness and efficiency of proceedings, should be encouraged and usually accepted.

366.  As for the remaining arguments relating to the conduct of the Prosecution and of the other relevant authorities, the Appeals Chamber finds merit in the submission that the Trial Chamber erred in concluding that it did not need to “consider the conduct of the Prosecution or other legal authorities.”[1] As held repeatedly, the conduct of the parties and of the relevant authorities are relevant factors to take into account in determining whether an accused’s fundamental right to a trial without undue delay has been infringed.[2] Given the significant length of the instant proceedings at the time it delivered its judgement, it was incumbent upon the Trial Chamber to carefully assess whether, besides the complexity of the case, the conduct of the parties and of other relevant authorities may have contributed to any unjustifiable delays in this case.

367. Concerning the conduct of the Prosecution, the Appeals Chamber observes that, from their arrests to the commencement of the trial on 12 June 2001, Nyiramasuhuko, Ntahobali, and Nsabimana spent almost four years in pre-trial detention, Nteziryayo three years, and Kanyabashi and Ndayambaje six years. The Appeals Chamber accepts that preparing such a case for trial can reasonably require a lengthy period of time but emphasises that every effort should be made to bring cases to trial as expeditiously as possible.[3]

[…]

372. It transpires from the procedural history summarised above that the Prosecution’s failure to comply with its disclosure obligations and lack of readiness delayed the start of the trial by several months. Although the Prosecution acknowledged its lack of readiness and belatedness in fulfilling its disclosure obligations, upon which the start of the trial depended, it does not provide any explanation as to why it was not in a position to disclose some of the relevant materials despite express orders from the Trial Chamber or why it repeatedly changed the date for its readiness to commence trial. While the trial was postponed by one month as a result of the death of Judge Kama,[4] the record shows that the fact that the trial was delayed to spring 2001 was largely caused by the Prosecution’s inability to meet its disclosure obligations and lack of readiness. In light of the foregoing, the Appeals Chamber finds that the Prosecution’s failure to fulfill its disclosure obligations created unjustified delays in the start of the trial.

373. With respect to the trial phase, the Appeals Chamber observes that, as highlighted by Ntahobali and Kanyabashi, the trial phase lasted over eight years and was thus proportionally longer than in other multi-accused cases at the Tribunal.[5] The Appeals Chamber, however, stresses that a more accelerated pace of other multi-accused cases does not, in and of itself, demonstrate undue delay.[6]

374. As noted by the Trial Chamber, the length of the proceedings was increased in this particular case by the replacement of a judge in the course of the trial, the presentation of six Defence cases and the plurality of cross-examinations for every witness.[7] Although not taken into account by the Trial Chamber when examining whether undue delay occurred, the Appeals Chamber further observes that, during the trial phase, the judges sitting in this case were also involved in several other proceedings before the Tribunal. Indeed, the Trial Chamber expressly noted in the “Procedural History” section of the Trial Judgement that it was not able to sit in the Nyiramasuhuko et al. case: (i) from 4 to 25 July 2001, 1 to 5 October 2001, 26 November to 13 December 2001, 16 September to 9 October 2002, 18 November to 12 December 2002, and 31 March to 24 April 2003 because all three judges of the Trial Chamber were seised of the Kajelijeli case; and (ii) from 3 to 25 September 2001, 28 January to 19 February 2002, 6 to 14 May 2002, 19 August to 12 September 2002, 13 January to 30 April 2003, and 5 to 15 May 2003 because all three judges of the Trial Chamber were seised of the Kamuhanda case.[8] Moreover, the Appeals Chamber notes that: (i) Judge Bossa, who was assigned to the case on 20 October 2003, was also at the time assigned to the Ndindabahizi case, which was in session notably from 27 October to 28 November 2003 and on 1 and 2 March 2004;[9] (ii) all three judges of the Trial Chamber were also seised of the Bisengimana sentencing case, in which they sat on 17 November 2005, 7 December 2005, 19 January 2006, and 20 April 2006;[10] and (iii) all three judges of the Trial Chamber were seised of the Nzabirinda sentencing case, in which they sat on 14 December 2006, 17 January 2007, and 23 February 2007.[11]

375. It is unquestionable that the pace of the trial was affected by the judges’ obligations in other cases. Whereas the proceedings in this case needed interruptions so as to allow the parties to prepare,[12] the judges’ obligations in other cases prevented them from sitting in this case for approximately 36 weeks. In light of the time required to dispose of the motions filed in these other cases, deliberate on their merits, and write the judgements, these additional obligations also necessarily significantly reduced the time the Trial Chamber judges could devote to the present case.

376. The Appeals Chamber observes that it was practice for judges of the Tribunal to participate simultaneously in multiple proceedings given the workload of the Tribunal during the relevant period.[13] It also notes that significant efforts were made by the authorities of the Tribunal to obtain the necessary resources to complete its mandate while ensuring the utmost respect for the rights of all accused.[14] However, in the particular circumstances of this case where the co-Accused had already been in detention for nearly 4 to 6 years at the start of the trial and which had already suffered from significant delays,[15] the Appeals Chamber concludes that the additional delays resulting from the judges’ simultaneous participation to other proceedings caused undue delay. The Appeals Chamber recalls that logistical considerations should not take priority over the trial chamber’s duty to safeguard the fairness of the proceedings.[16] In the same vein, the Appeals Chamber is of the view that organisational hurdles and lack of resources cannot reasonably justify the prolongation of proceedings that had already been significantly delayed.[17]

108. As to whether the joinder created undue delay and thus required the severance of the cases, the Appeals Chamber finds no error in the Trial Chamber’s finding that the fact that a joint trial might last longer than that of a single accused does not necessarily encroach the co‑accused’s right to be tried without undue delay.[1] The Appeals Chamber recalls that Article 20(4)(c) of the Statute makes clear that the right to be tried without undue delay does not protect against any delay in the proceedings; it protects against undue delay.[2] […] The Appeals Chamber finds that, although the joinder added some degree of complexity to the proceedings, the mere allegation that separate trials would have proceeded faster is insufficient to substantiate a claim that undue delay occurred as a result of the joinder and that it was unreasonable for the Trial Chamber to deny the severance of Nyiramasuhuko’s case.[3]

See also para. 365.

391. The Appeals Chamber reiterates that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[1] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[2]

[…]

394. However, the Appeals Chamber does not find that the violation of the co‑Appellants’ right to be tried without undue delay and the prejudice they suffered were so serious or egregious as to justify a stay or the termination of the proceedings requested by Nyiramasuhuko, Ntahobali, Kanyabashi, Nteziryayo, and Ndayambaje.[3] Nevertheless, in light of the length of the undue delay, the Appeals Chamber is also not convinced that a formal recognition of the violation would constitute an effective remedy in the present case.

395. The Appeals Chamber observes that a reduction of sentence has been considered an effective remedy in cases where the breach of the fair trial rights resulted in the accused being detained impermissibly or for a longer period than necessary.[4] Financial compensation has also been envisioned in limited situations where the accused was ultimately not found guilty.[5] In the Rwamakuba case, where the accused was acquitted of all charges, a financial compensation was awarded to André Rwamakuba as part of an effective remedy for the violations of his rights to legal assistance and to initial appearance without delay.[6]

89. […] [T]he Appeals Chamber recalls that the right to be tried without undue delay is enshrined in Article 21(4)(c) of the ICTY Statute and protects an accused against undue delay, which is determined on a case-by-case basis.[1][DT1]  A number of factors are relevant to this assessment, including the length of the delay, the complexity of the proceedings, the conduct of the parties, the conduct of the relevant authorities, and the prejudice to the accused, if any.[2]

90. Bearing this in mind, the Appeals Chamber is not persuaded that the suspensions ordered by the Trial Chamber unduly delayed the proceedings or resulted in per se prejudice to Karadžić. Suspensions due to extensive disclosure in the midst of proceedings are precisely the remedy that may be necessary to ensure an accused’s right to a fair trial.[3] In this case, the orders suspending the proceedings expressly sought to strike a balance between Karadžić’s right to a trial without undue delay and his right to have adequate time and facilities for the preparation of his defence.[4] The relevant decisions provided Karadžić the time to review and incorporate newly disclosed material into his trial preparations and instructed the Prosecution to devote its resources to reviewing information in its possession to ensure that all necessary disclosure was complete.[5] Finally, Karadžić has not shown that the individual or cumulative duration of any suspensions ordered unduly delayed the proceedings.