43. Article 20(1) of the Statute provides that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious […]”. This provision mirrors the corresponding guarantee provided for in international and regional human rights instruments:  the International Covenant on Civil and Political Rights (1966) (“ICCPR”),[1] the European Convention on Human Rights (1950),[2] and the American Convention on Human Rights (1969).[3]  The right to a fair trial is central to the rule of law: it upholds the due process of law.  The Defence submits that due process includes not only formal or procedural due process but also substantive due process.[4]

44. The parties do not dispute that the right to a fair trial guaranteed by the Statute covers the principle of equality of arms.  This interpretation accords with findings of the Human Rights Committee (“HRC”) under the ICCPR.  The HRC stated in Morael v. France[5] that a fair hearing under Article 14(1) of the ICCPR must at a minimum include, inter alia, equality of arms.  Similarly, in Robinson v. Jamaica[6] and Wolf v. Panama[7] the HRC found that there was inequality of arms in violation of the right  to a fair trial under Article 14(1) of the ICCPR.  Likewise, the case law under the ECHR cited by the Defence accepts that the principle is implicit in the fundamental right of the accused to a fair trial.  The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.  The Appeals Chamber finds that there is no reason to distinguish the notion of fair trial under Article 20(1) of the Statute from its equivalent in the ECHR and ICCPR, as interpreted by the relevant judicial and supervisory treaty bodies under those instruments. Consequently, the Chamber holds that the principle of equality of arms falls within the fair trial guarantee under the Statute.

46. The Defence contends that the minimum guarantee in Article 21(4)(b) of the Statute to adequate time and facilities for the preparation of defence at trial forms part of the principle of equality of arms, implicit in Article 20(1).  It argues that, since the authorities in the Republika Srpska failed to cooperate with the Defence, the Appellant did not have adequate facilities for the preparation of his defence, thereby prejudicing his enjoyment of equality of arms.

47. The Appeals Chamber accepts the argument of the Defence that, on this point, the relationship between Article 20(1) and Article 21(4)(b) is of the general to the particular.  It also agrees that, as a minimum, a fair trial must entitle the accused to adequate time and facilities for his defence.  

In order to decide on the scope of application of the principle of equality of arms, the Appeals Chamber  carried out a review of the international case-law in paragraphs 48–50. It then continued as follows:-

51. The case law mentioned so far relates to civil or criminal proceedings before domestic courts.  These courts have the capacity, if not directly, at least through the extensive enforcement powers of the State, to control matters that could materially affect the fairness of a trial.  It is a different matter for the International Tribunal.  The dilemma faced by this Tribunal is that, to hold trials, it must rely upon the cooperation of States without having the power to compel them to cooperate through enforcement measures.[8] The Tribunal must rely on the cooperation of States because evidence is often in the custody of a State and States can impede efforts made by counsel to find that evidence.  Moreover, without a police force, indictees can only be arrested or transferred to the International Tribunal through the cooperation of States or, pursuant to Sub-rule 59bis, through action by the Prosecution or the appropriate international bodies.  Lacking independent means of enforcement, the ultimate recourse available to the International Tribunal in the event of failure by a State to cooperate, in violation of its obligations under Article 29 of the Statute, is to report the non-compliance to the Security Council.[9]

52. In light of the above considerations, the Appeals Chamber is of the view that under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts.  This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.  The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.  Provisions under the Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side may have equal access to witnesses.  The Chambers are empowered to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.  This includes the power to:

(1) adopt witness protection measures, ranging from partial to full protection;

(2) take evidence by video-link or by way of deposition;

(3) summon witnesses and order their attendance;

(4) issue binding orders to States for, inter alia, the taking and production of evidence; and

(5) issue binding orders to States to assist a party or to summon a witness and order his or her attendance under the Rules.

A further important measure available in such circumstances is:

(6) for the President of the Tribunal to send, at the instance of the Trial Chamber, a request to the State authorities in question for their assistance in securing the attendance of a witness.

In addition, whenever the aforementioned measures have proved to be to no avail, a Chamber may, upon the request of a party or proprio motu:

(7) order that proceedings be adjourned or, if the circumstances so require, that they be stayed. 

22. The Appeals Chamber recalls that Trial Chambers enjoy considerable discretion in the conduct of the proceedings before them,[1] including in the scheduling of trials.[2] However, this discretion finds its limitation in the obligation imposed on Trial Chambers by Articles 19 and 20 of the Tribunal’s Statute (“Statute”) to ensure that a trial is fair and expeditious. 

23. In the Decision Setting the Trial Date, the Trial Chamber duly recalled the right of an accused to a fair trial within a reasonable time and pointed out its obligation to balance the need for the accused to have adequate time for the preparation of his case and the need for an expeditious trial.[3] It also correctly pointed out that “[i]n arriving at a decision regarding the scheduling of the trial, the Chamber considers all the relevant factors and appropriate concerns”.[4] However, the Appeals Chamber observes that nothing in the Impugned Decisions indicates that the Trial Chamber indeed did so.

24. The Trial Chamber reached its conclusion that there was no justification to vacate the original trial date and set the 18 May 2009 trial date[5] without expressly addressing Ngirabatware’s concerns as to the fairness of his trial or any of the relevant factors. While the Trial Chamber mentioned issues related to the staffing of the Defence team, it omitted to discuss the impact of the staffing situation of the Defence team on the Defence’s ability to prepare for trial within the available time.[6] Instead, the Trial Chamber merely stated that it “expected that the staffing position of the Defence team will be addressed and completed in a timely manner”.[7] Nowhere in the Impugned Decisions did the Trial Chamber consider the decisive question as to whether the time for preparation available to the Defence was objectively adequate to permit Ngirabatware to prepare his case in a manner consistent with his rights.

27. The Appeals Chamber finds that the Trial Chamber erred in failing to address the factors relevant to its making a fully informed and reasoned decision as to whether the setting of the 18 May 2009 trial date infringed Ngirabatware’s right to a fair trial, in particular his right to have adequate time for the preparation of his defence provided for in Article 20(4)(b) of the Statute. 

21. Reviewing the Trial Chamber’s reasoning as set out in both the Impugned Decision and various pre-trial proceedings demonstrates that it was well aware of the key issues impacting pre-trial preparation time: first, the size and scope of the Prosecution case, and the issues of disclosure and document review this raises, and, second, Karadžić’s decision to represent himself. In the 20 August 2009 and 8 September 2009 Status Conferences, and the 6 October 2009 Pre-Trial Hearing, the Trial Chamber specifically concerned itself with the parameters of the Prosecution case,[1] eventually reducing its scope and capping the number of hours for the Prosecution’s presentation.[2] These decisions were taken in the context of diverse efforts during the pre-trial period to facilitate document disclosure[3] and specific reminders to Karadžić that he prepare for trial[4] and request resources he needed to do so.[5] Given the Trial Chamber’s explicit consideration of the case’s size and the actions it took to reduce this, Karadžić’s contention that it ignored issues such as the case’s complexity, number of counts and charges, the gravity of the crimes and the status and scale of the disclosure process is not convincing.

24. Insofar as the Impugned Decision relied on reduced sitting times during trial to justify the October trial date, Karadžić fails to show that the Trial Chamber erred. The Appeals Chamber has included preparation time during trial as one factor in its assessment of whether defence teams were given adequate total preparation time,[6] and it was a valid factor for the Trial Chamber to take into consideration. […] While Karadžić’s defence team may have taken some time to recruit and may not be able to work on every trial issue he would wish them to, these advisors are a source of significant support, and their limitations are linked to Karadžić’s choice to be self-represented. The Appeals Chamber has explained that while “a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair” to self-represented defendants, “[a] defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel”.[7]

80. As part of his right to a fair trial (Article 20(1) of the Statute), an accused is entitled “to have adequate time and facilities for the preparation of his defence” (Article 21(4)(b) of the Statute). What constitutes “adequate time and facilities” cannot be assessed in the abstract, but will depend on the circumstances of the case.[1] Further, “[w]hen considering an appellant’s submission regarding this right, the Appeals Chamber must assess whether the Defence as a whole, and not any individual counsel, was deprived of adequate time and facilities.”[2]

81. The Appeals Chamber recalls that decisions relating to the general conduct of trial proceedings are matters within the discretion of the Trial Chamber. The Trial Chamber’s decisions concerning the time and facilities afforded to the Defence are such discretionary decisions which the Appeals Chamber must treat with deference. […]

The Appeals Chamber considered such factors as time for pre-trial preparation, motions for adjournment, procedural decision, time to prepare the final brief, etc. but did not conclude on any violation of this right (paras 82-95, see also paras 99-116).