20. […] [T]he Rules do not explicitly regulate whether proceedings may be continued with a substitute Judge following the disqualification of a Judge at a more advanced stage, namely the deliberations stage. The Appeals Chamber observes that the guarantees provided for in Rules 15bis(C) and 15bis(D) of the Rules have been consistently applied or referred to in the present situation.[1]  The Appeals Chamber considers that these Rules are designed to ensure that an accused’s right to a fair trial is sufficiently safeguarded, and that the fair trial guarantees provided for in these Rules apply mutatis mutandis to the present situation. Under Rule 15bis(D) of the Rules, when a decision is taken to continue the proceedings with a substitute Judge even though the accused has withheld his consent, such a decision “is subject to appeal directly to a full bench of the Appeals Chamber by either party”.

21. Therefore, for the purposes of the admissibility of the Appeal, and in light of the spirit of these Rules, the Appeals Chamber considers that the same protection as that provided for by Rule 15bis(D) of the Rules should apply in the present case. The Appeals Chamber further observes that the interests of neither Šešelj nor the Prosecution are prejudiced by the adjudication of this Appeal.

22. In these particular circumstances, the Appeals Chamber holds that the Impugned Decision is subject to appeal directly to a full bench of the Appeals Chamber.

[…]

35.  […] [T]he Appeals Chamber recalls that a decision to continue the proceedings with a substitute Judge is a discretionary decision to which the Appeals Chamber owes deference:

The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the [Judges’] ruling may have resulted in injustice to the [appellant]”.[2]

36. In reaching its decision, the Trial Chamber must determine whether, taking all the circumstances into account, the continuation of proceedings would serve the interests of justice.[3] The parties “bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice”,[4] and accordingly taking into account whether a party has discharged this burden would be an immaterial consideration constituting an error.[5] Other errors previously identified by the Appeals Chamber include requiring the substitute Judge to evaluate whether the record itself – including the availability of video- or audio-recording – is compatible with the requirements of a fair trial.[6]

37.  The Appeals Chamber further recalls that:

There 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.[7]

In light of the discretion inherent in a decision to continue proceedings with a substitute Judge, the Appeals Chamber has “not consider[ed] it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge”, as “[t]he stage reached in each case need not always be the same”.[8]

[…]

41. The Appeals Chamber therefore considers that neither the Statute nor the Rules prevented the Trial Chamber from exercising its discretion to determine, within the circumstances of the particular case before it, whether it would serve the interests of justice to continue the proceedings with a substitute Judge. […]

[…]

44. […] [T]he Appeals Chamber recalls that the need for a substitute Judge to certify his or her familiarity with the record is among the “safeguards ensur[ing] that fair trial rights are not compromised”.[9] Moreover, the Appeals Chamber has previously confirmed that proceedings could continue even in the absence of video-recordings of previous testimony for the substitute Judge to review.[10] […] With regard to the possibility of recalling witnesses, this too has been previously treated by the Appeals Chamber as being a material consideration to be taken into account.[11]

52. … In the circumstances to which Rule 15bis(D) is addressed, it is not for a party to move the court, rather, the Rule allows the remaining Judges to take the initiative and act in their discretion, namely, decide to continue the proceedings with a substitute Judge if, taking all the circumstances into account, they unanimously determine that doing so would serve the interests of justice. The parties have a right to be heard before the decision is made, but they bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice. Accordingly, it would constitute an error on the part of the remaining Judges to take into account that Defence submissions have not demonstrated that re-starting the trial would serve the interests of justice.
54. The issue under Rule 15bis(D) is whether taking all the circumstances into account, the Judges find that continuing the trial would serve the interests of justice. In answering this question, the Judges are to assess the totality of the circumstances rather than whether a party has demonstrated that continuing or re-starting the trial would better serve the interests of justice. In the view of the Appeals Chamber, although the remaining Judges noted that the Defence had not demonstrated certain facts, they did not base their findings on this observation, which would be an immaterial consideration, but, rather, they based them on the assessment of the underlying circumstances, which was material for their decision. Consequently, the Appeals Chamber finds that the remaining Judges did not abuse their discretion by taking into account an immaterial consideration, namely whether the Defence met a certain burden, and dismisses the Appeals on this point.