97. The Appeals Chamber has not considered the video recording of the site visit, as it is not part of the record. The Appeals Chamber strongly emphasises that a detailed record of a Trial Chamber’s site visit should normally be maintained[1] and form part of the trial record. The purpose of a site visit is to assist a Trial Chamber in its determination of the issues, and therefore it is incumbent upon the Trial Chamber to ensure that the parties are able to review effectively any findings made by the Trial Chamber in reliance on observations made during the site visit.[2]

48. Turning to the Appellant’s contention that the Trial Chamber erred in law by failing to keep records from the site visit, the Appeals Chamber first notes that at no time during the trial proceedings did the Appellant object to the absence of such materials.[1] Moreover, the Appeals Chamber notes that the Trial Chamber considered the parties’ submissions on the observations made during the site visit in reaching its findings,[2] and explained how its observations affected the assessment of the evidence.[3] Therefore, the Appeals Chamber does not agree that, in relying on its observations, the Trial Chamber denied the Appellant the right to present a full defence and to be provided with a reasoned opinion. The Appeals Chamber emphasizes that detailed records of Trial Chamber’s site visits should normally be kept. The purpose of a site visit is to assist a Trial Chamber in its determination of the issues and therefore it is incumbent upon the Trial Chamber to ensure that the parties are able to effectively review any findings made by the Trial Chamber in reliance on observations made during the site visit.[4] The Appeals Chamber however finds that in this case the Appellant has not demonstrated that he was prejudiced by his inability to challenge the Trial Chamber’s observations and that the parties had the opportunity to make arguments based on their observations of the site visit in their closing arguments and closing briefs to which the Trial Chamber referred in its Judgement.[5]

35. The Appeals Chamber recalls that Article 21(4)(d) of the ICTY Statute guarantees the fundamental right of an accused to be tried in his presence. This right is not absolute, however, and may be subject to limitations.[1] As with other qualified statutory rights of an accused, including the right to be self-represented, any limitation on the right of the accused to be tried in his presence must serve a sufficiently important aim that is compatible with the ICTY Statute and must not impair the right more than necessary to accomplish such aim.[2]

[…] 

37. […] In view of the above, the Appeals Chamber finds no error in the Trial Chamber’s consideration that conducting the site visits in Sarajevo and Srebrenica in the presence of Karadžić would inevitably pose a considerable security risk for Karadžić as well as the other participants in the site visit delegations.[3] The Appeals Chamber therefore finds that the Trial Chamber’s decision to conduct the site visits without Karadžić being present served the sufficiently important aim of ensuring its ability to perform its functions in the given circumstances and did not impair his right more than necessary to accomplish it.[4]

[…]

39. The Appeals Chamber finds that the minutes of the site visits therefore reveal the exchange of submissions between the parties and the Trial Chamber’s interactions with various persons at some of the sites. The minutes also confirm that, although the impugned decisions indicated that the purpose of the site visits was not to gather evidence or hear submissions but to enable the Trial Chamber to familiarize itself with the locations referred to in the Indictment, the conduct during the visits did not comply with the limitations imposed by the Trial Chamber. Consequently, the Appeals Chamber finds that the two site visits formed part of the trial proceedings,[5] and that, in light of the conduct during them, the site visits violated Karadžić’s right to be tried in his presence. The Appeals Chamber will proceed to examine whether Karadžić suffered prejudice as a result of this violation.

40.  […] Although Karadžić submits that “[t]he observations made during the site visit undoubtedly affected the Trial Chamber’s overall assessment of the events, and its findings in the judgement”,[6] he does not point to any concrete disadvantage or prejudice suffered as a result of the site visits having been conducted in his absence.[7]

41. The Appeals Chamber reiterates that any violation of the right to a fair trial of an accused requires a remedy.[8] The nature and form of the effective remedy should be proportional to the gravity of the harm suffered.[9] The Appeals Chamber also recalls that, in situations where a violation of the accused’s fair trial rights has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[10] For the reasons set out above, the Appeals Chamber considers that its recognition of the violation of Karadžić’s right to be present during the site visits constitutes an effective remedy.