Time allocated to Defence case

Notion(s) Filing Case
Decision on Attribution of Time to the Defence - 01.07.2008 PRLIĆ et al.
(IT-04-74-AR73.7)

16. All Appellants submit that the rights of the accused to a fair trial enshrined in Article 21 of the Statute should not be sacrificed to ensure the expeditiousness of proceedings.[1]  The Appeals Chamber recalls that, pursuant to Rules 73bis and 73ter of the Rules, the Trial Chamber is required to establish the number of witnesses each party may call and the amount of time allotted to each party. Specifically, Rule 73ter(E) of the Rules provides that, after having heard the defence and having reviewed the Rule 65ter submissions of each accused, the Trial Chamber shall determine the time available to the defence for presenting evidence. In exercising the discretionary power to allocate time, a Trial Chamber has the responsibility to ensure that “the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process under international human rights law.”[2] Recognizing that excessive limitations of time may also compromise the due process rights of the accused, the Appeals Chamber has previously held that the considerations of judicial economy should never impinge on the rights of the parties to a fair trial.[3] In particular, the time granted to an accused under Rule 73ter of the Rules must be reasonably proportional to the time allocated to the Prosecution, and objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights under Article 21 of the Statute.[4]

19. The Appeals Chamber considers that a “purely arithmetical calculation” for the allocation of time to the Defence may constitute an abuse of the Trial Chamber’s discretion. As noted in the Orić Decision, “a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides”.[5] However, the Appeals Chamber is not satisfied that the Impugned Decision was based on such an arithmetic division of time.

23. The Appeals Chamber notes that Rule 92bis to 92quater are aimed at ensuring the efficient presentation of evidence at trial and may be relied upon in lieu of viva voce evidence where it does not impact upon the fairness of the proceedings. In assessing the amount of time reasonably required for each Accused to present his case, the Trial Chamber was entitled to assume that the parties would present their cases as efficiently as possible and take advantage of the options available to them to reduce the time for presenting evidence, especially if repetitive or peripheral. In light of the Trial Chamber’s familiarity with the case to be presented by the Defence, it was reasonable for the Trial Chamber to consider that the Defence could make use of Rules 92bis and 92ter of the Rules in relation to some of the witnesses each intended to call.

25. The Appeals Chamber finds that the Trial Chamber’s decision to assess the relevance of proposed testimony prior to its presentation in evidence falls within the discretion accorded to the Trial Chamber in its management of the trial. There is no prohibition against a Trial Chamber’s  considering that some of the evidence sought to be presented will be repetitive when assessing, in application of Rule 73ter(E) and on the basis of the 65ter List presented by an accused, the time necessary for the fair presentation of the Defence case. The Appeals Chamber considers that this method is not only reasonable, but also presents the advantage of certainty, enabling the Defence to organize its strategy on the basis of the time allocated to it. The Appeals Chamber further notes that the Trial Chamber clarified in the Impugned Decision that it would adopt a flexible approach and, should the Defence establish that additional time was necessary, it would grant additional time.[6]  Consequently, the Appeals Chamber finds no error in the approach adopted by the Trial Chamber.

[1] Praljak Appeal, paras 55-61; Praljak Reply [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Slobodan Praljak’s Request for Leave to Reply to the Prosecution’s Response and Praljak’s Reply to the Prosecution’s Response, 22 May 2008], para. 32; Petković Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Petković Defence Appeal Against the Trial Chamber’s 25 April 2008 Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge, 2 May 2008], paras 25-36; Petkovic Reply [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7,  Milivoj Petković Defence Reply to Prosecution Consolidated Opposition to the Defence Appeals Concerning the Trial Chamber’s Ruling Dated 25 April 2008 Reducing Time for the Defence Case, 22 May 2008], para. 4; Stojić Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Bruno Stojić Appeal from 'Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge' Issued 25 April 2008, 2 May 2008], paras 10-11.  

[2] Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.2, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007 (“Prlić Initial Decision on Prosecution Time”), para. 23.

[3] Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory decision on Length of Defence Case (“Orić Decision”), para 8; Prlić Initial Decision on Prosecution Time, para. 23; Prlić Decision on Cross Examination [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006], p. 4.

[4] Orić Decision, paras 8-9.

[5] Orić Decision, para. 7.

[6] Impugned Decision, para. 45. 

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ICTR Rule Rule 73 ter;
Rule 82(A)
ICTY Rule Rule 73 ter (E);
Rule 82(A)
Notion(s) Filing Case
Decision on Attribution of Time to the Defence - 01.07.2008 PRLIĆ et al.
(IT-04-74-AR73.7)

27. The Appeals Chamber finds that it was not unreasonable for the Trial Chamber to consider, in evaluating the time to be allocated for a witness examination, whether the witness was included in the 65ter Lists of more than one Accused. The fact that a witness is common to more than one Accused certainly permits saving both the time necessary for certain procedural matters, such as the identification of the witness, and for acquiring substantive information, for example the general background of the witness. Further, in a case where the co-Accused are charged with the same crimes, it is not unreasonable to make the initial assumption that a witness called to testify by more than one Defence team could present, inter alia, evidence on subjects relevant to all of the defence cases concerned. […]

The Appeals Chamber considered how the requirement that the time granted to the accused must be reasonably proportional to the time allotted to the prosecution applies in the context of a multi-accused case:

34. The Appeals Chamber declines to accept the Prosecution’s argument that the proportionality standard should necessarily consider the “common elements” as a separate “unit” in the calculation of time and allocate each Accused one-seventh of the time allotted for the Prosecution case.[1] This argument belies the fact that, pursuant to Rule 82(A) of the Rules, each Accused should be allowed time to respond to the common elements of the Prosecution case as they relate to his particular case.

35. However, the Appeals Chamber emphasizes that the determination of the time to be granted to the Defence to present its case is the result of a highly contextual analysis. As a consequence, factors such as the presence of multiple accused make any strict numerical comparison to previous cases inapposite. In a case with multiple accused, the Prosecution is to divide the time allowed for the presentation of its case in order to prove the guilt of each individual accused for each of the crimes charged. Consequently, each individual accused is unlikely to challenge every piece of evidence presented by the Prosecution. Accordingly, the Appeals Chamber finds that the Orić Decision does not provide substantive guidelines for assessing what kind of disparity between the time allocated to the Prosecution and the time allocated to each accused would be too great in a case such as the instant one.[2]

36. The Praljak Defence argues that a case involving multiple Accused should not have the effect of legitimizing a disproportionate reduction of the defence case for the single Accused, as “the presence of other accused is at least as much of a burden as a benefit”.[3] The Praljak Defence argues, in particular, that in any multi-accused case there is a possibility that the co-accused function as “de facto additional prosecutors”, presenting inculpatory evidence for the other co-accused.[4] The Appeals Chamber notes that the eventuality that co-accused present evidence against other accused in the same trial, is counterbalanced by the guarantee, for each accused, to cross-examine witnesses presented by other co-accused and by the fact that each accused may request additional time in due course should good reasons exist.[5]

39. The Appeals Chamber recalls that, as stated in the Orić Decision, when discussing the proportionality between the time allowed to the Prosecution and to the Defence, an accused is not “necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution,” which has the burden of proving every element of the crimes charged beyond a reasonable doubt.[6] In a case with multiple accused, the issue of proportionality is affected not only by the burden of proof upon the Prosecution, but also by the circumstance that not all of the evidence presented by the Prosecution is directed to prove the responsibility of one individual Accused. […]

[1] Response [Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin ]orić and Berislav Pušić, Case No. IT-04-74-AR73.7, Prosecution Consolidated Opposition to the Defence Appeals Concerning the Trial Chamber’s Ruling Dated 25 April Reducing Time for the Accused Case, 16 May 2008], para. 25.

[2] Praljak Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Slobodan Praljak Appeal of the Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge”, Public with Confidential Annex, 2 May 2008], paras 20-27.

[3] Praljak Appeal, paras 28-29.

[4] Praljak Appeal, paras 28-29.

[5] See Rule 73ter of the Rules. See also Impugned Decision [Prosecutor v. Prlić et al., Case No. IT-04-74-T, Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge, 25 April 2008], para. 45.

[6] Orić Decision [Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005], para. 7.

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ICTR Rule Rule 73 ter;
Rule 82(A)
ICTY Rule Rule 73 ter(E);
Rule 82(A)
Notion(s) Filing Case
Decision on Duration of Defence Case - 29.01.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.10)

20. […] The Appeals Chamber is similarly unconvinced by Karadžić’s contention that the Trial Chamber’s decision to limit the length of his defence, on the basis that evidence he proposed to adduce was irrelevant, demonstrated a “double standard” applied to his detriment, given the large scope of the Prosecution’s case.[1] The Appeals Chamber recalls that the Trial Chamber granted Karadžić the same courtroom time as it granted the Prosecution,[2] and further notes the discretion accorded to the Trial Chamber to “assess the relevance of proposed testimony prior to its presentation”.[3] In these circumstances, the Appeals Chamber considers that Karadžić has not demonstrated any erroneous “double standard” by the Trial Chamber.[4] 

21. The Appeals Chamber notes that the Impugned Decision does not explicitly address Karadžić’s contention that his particular defence strategy involves disputing “everything except the weather”, and thus requires extensive courtroom time. However the Appeals Chamber is not satisfied that this omission constituted an error on the part of the Trial Chamber. The Appeals Chamber recalls that a Trial Chamber’s decision not to explicitly refer to a specific fact or contention does not necessarily demonstrate a failure to consider that issue. In addition, the Appeals Chamber notes that the Trial Chamber considered, inter alia, the duration and extent of Karadžić’s cross-examination of Prosecution witnesses, a consideration that suggests the Trial Chamber took into account Karadžić’s defence strategy when determining the amount of time allocated for the presentation of the defence case. In these circumstances, the Appeals Chamber, Judge Robinson dissenting, is not satisfied that Karadžić has demonstrated any error on the part of the Trial Chamber. 

22. The Appeals Chamber, Judge Robinson dissenting, finds no error in the Trial Chamber’s analysis of the parties’ direct and cross-examination of Prosecution witnesses. Karadžić contends that the Prosecution’s use of written testimony meant that the comparatively short duration of direct examination “bore absolutely no relation” to the breadth of testimony, or, accordingly, to the time he needed to cross‑examine Prosecution witnesses. He also submits that the limitations imposed by the Trial Chamber on the length of his cross-examinations further undermine the relevance of this consideration. However, the Appeals Chamber notes that the Trial Chamber did not merely compare the duration of direct and cross-examination during the Prosecution case, but also considered the nature and substance of Karadžić’s cross-examination, specifically observing that Karadžić elicited evidence relevant to his defence pursuant to Rule 90(H) of the Rules. The Appeals Chamber considers, Judge Robinson dissenting, that it is within a trial chamber’s discretion to determine that, in certain circumstances, the elicitation of such evidence is relevant to the time allocated to the defence for the presentation of its case. Recalling that a trial chamber’s decision on the allocation of time for the defence case is “the result of a highly contextual analysis”, the deference accorded to such decisions, and the trial chamber’s obligation to ensure that trials do not suffer undue delays, the Appeals Chamber, Judge Robinson dissenting, finds that the Trial Chamber did not err, in the circumstances of this case, by considering the duration and content of Karadžić’s cross-examination in allocating 300 hours for his defence.

[1] Reply [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.10, Reply Brief: Appeal from Decision on Duration of Defence Case, 25 October 2012], para. 21. See also Appeal [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.10, Appeal from Decision on Duration of Defence Case, 12 October 2012], paras 32-33; Reply, paras 11-12, 18-20.

[2] See supra [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.10, Decision on Appeal from Decision on Duration of Defence Case, 29 January 2013], n. 62.

[3] Prlić et al. Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants[’] Appeal Against “Décision portant attribution du temps à la défense pour la présentation des moyens à décharge”, 1 July 2008], para. 25.

[4] Reply, para. 21.

[5] Appeal, para. 42 (internal quotation omitted).

[6] See Appeal, paras 44-45.

[7] See Prlić et al. Decision, para. 48.

[8] Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Time Allocated to the Accused for the Presentation of his Case, 19 September 2012], paras 9-10.

[9] Appeal, para. 37. See also Appeal, paras 36, 38-39.

[10] See Reply, para. 10.

[11] Impugned Decision, paras 9-10.

[12] Prlić et al. Decision, para. 35.

[13] Prlić et al. Decision, para. 15.

[14] Prlić et al. Decision, para. 16.

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Decision on Duration of Defence Case - 29.01.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.10)

16. Turning to the parties’ central contentions, the Appeals Chamber, Judge Robinson dissenting, is satisfied that Karadžić has not demonstrated that 300 courtroom hours is an objectively inadequate amount of time for his defence. The Appeals Chamber recalls that, while the Trial Chamber was required to allocate sufficient time for Karadžić to present his defence,[1] it also has an obligation to ensure that proceedings do not suffer undue delays.[2] The Appeals Chamber further recalls that the allocation of time for the presentation of the defence case is based on a contextual analysis of the specific factors relevant to the case.[3] Considering that the Prosecution bears the burden of proof,[4] an allocation of time reasonably proportional to that granted to the Prosecution will often result in less time being granted to the defence for the presentation of its case.[5] The Appeals Chamber recalls that Karadžić and the Prosecution were each granted 300 hours to present their cases,[6] and further recalls that Karadžić has already used more than twice as much time as the Prosecution during the presentation of the Prosecution case.[7] In these circumstances, the Appeals Chamber, Judge Robinson dissenting, is not persuaded that Karadžić has demonstrated any objective unfairness in the Impugned Decision.

[1] Orić Decision [Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005], para. 8.

[2] Prlić et al. Decision, para. 16.

[3] Prlić et al. Decision, para. 35.

[4] See Statute, Article 21(3); Prosecutor v. Ante Gotovina and Mladen Markač, Case No. IT-06-90-A, Judgement, 16 November 2012, para. 63.

[5] See, e.g., Prosecutor v. Momčilo Perišić, Case No. IT-04-81-T, Judgement, 6 September 2011 (public with confidential Annex C), Annex A, paras 18 (allocation of 335 hours for the Prosecution’s case), 23 (allocation of 180 hours for the defence case); Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-T, Judgement, 3 March 2000 (originally filed in French; the English translation was filed on 20 April 2000), para. 53 (allocation of 75 trial days for the Prosecution’s case and 60 trial days for the defence case).

[6] See T. 6 October 2009 p. 467 (granting 300 hours for the Prosecution’s case); Impugned Decision, para. 14 (granting Karadžić 300 hours for his defence case).

[7] Impugned Decision, para. 9. While Karadžić contests the relevance of this comparison, (see Appeal, paras 36-39; Reply, paras 14-16) he does not challenge the accuracy of the Trial Chamber’s calculation that his cross-examinations of Prosecution witnesses took two and a half times as long as the Prosecution’s direct examinations (see generally Appeal; Reply).

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Decision on Duration of Defence Case - 29.01.2013 KARADŽIĆ Radovan
(IT-95-5/18-AR73.10)

18. The Appeals Chamber first turns to Karadžić’s contentions regarding the Adjudicated Facts. Contrary to Karadžić’s suggestion, the Judicial Notice Decisions did not suggest that he would be allocated additional time to rebut the Adjudicated Facts.[1] In addition, the Appeals Chamber, Judge Robinson dissenting, considers Karadžić is unconvincing in asserting that the Impugned Decision did not sufficiently assess the time he would need to rebut the Adjudicated Facts.[2] The Appeals Chamber notes that the Trial Chamber explicitly considered the “high number of adjudicated facts”[3] as one element underlying its decision granting Karadžić the same courtroom time as the Prosecution. The Trial Chamber also explicitly assessed the potential impact of the Adjudicated Facts on Karadžić’s case, concluding that not every Adjudicated Fact would need to be rebutted during Karadžić’s defence, as Karadžić had an opportunity to cross‑examine and elicit relevant evidence from Prosecution witnesses during the presentation of the Prosecution case.[4] While this analysis did not specify the amount of time being granted to rebut the Adjudicated Facts, the Appeals Chamber recalls that a trial chamber is “not obligated to justify its decision [on the allocation of time] with reference to each piece of evidence proposed”.[5] Accordingly, the Appeals Chamber, Judge Robinson dissenting, is not satisfied that Karadžić has demonstrated that the Impugned Decision’s analysis of the Adjudicated Facts was deficient.

19. The Appeals Chamber notes that Karadžić challenges the Impugned Decision by discussing the Trial Chamber’s analyses of certain Adjudicated Facts which he contends are demonstrative of the Trial Chamber’s general failure to consider the full import of the Adjudicated Facts.[6] However, the Appeals Chamber observes that the Trial Chamber was intimately aware of the scope of the Adjudicated Facts, as demonstrated by its multiple detailed decisions considering adjudicated facts proposed by the Prosecution.[7] In addition, the Appeals Chamber notes that the Impugned Decision explicitly considered that Karadžić had the opportunity to cross-examine Prosecution witnesses on many of the topics covered by the Adjudicated Facts, further demonstrating the Trial Chamber’s familiarity with this evidence.[8] In these circumstances, recalling that trial chambers enjoy broad discretion in evaluating evidence,[9] the Appeals Chamber, Judge Robinson dissenting, finds that Karadžić has not demonstrated that the Trial Chamber erred in its assessment of the import or scope of the Adjudicated Facts in its consideration of the time allocated for the defence case.

[1] See First Judicial Notice Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on First Prosecution Motion for Judicial Notice of Adjudicated Facts, 5 June 2009], para. 36; Third Judicial Notice Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Third Prosecution Motion for Judicial Notice of Adjudicated Facts, 9 July 2009], para. 61.

[2] See Reply, para. 4.

[3] Impugned Decision, para. 10.

[4] Impugned Decision, para. 10.

[5] Prlić et al. Decision, para. 69.

[6] Appeal, paras 29-31, 33.

[7] These decisions totalled nearly 150 pages. See [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on First Prosecution Motion for Judicial Notice of Adjudicated Facts, 5 June 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Third Prosecution Motion for Judicial Notice of Adjudicated Facts, 9 July 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Second Prosecution Motion for Judicial Notice of Adjudicated Facts, 9 October 2009; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Fourth Prosecution Motion for Judicial Notice of Adjudicated Facts, 14 June 2010; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Fifth Prosecution Motion for Judicial Notice of Adjudicated Facts, 14 June 2010; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Accused’s Motions for Reconsideration of Decisions on Judicial Notice of Adjudicated Facts, 14 June 2010; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Three Accused’s Motions for Reconsideration of Decisions on Judicial Notice of Adjudicated Facts, 4 May 2012].

[8] Impugned Decision, para. 10.

[9] See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000, para. 63 (“Trial [c]hambers are best placed to hear, assess and weigh the evidence […] presented at trial.”).

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Appeal Judgement - 23.01.2014 ŠAINOVIĆ et al.
(IT-05-87-A)

142. Regarding the questioning of Mijatović, the Appeals Chamber recalls that under Rules 85(B) and 90(F) of the Rules, it is within a trial chamber’s discretion to intervene where an issue requires clarification. A trial chamber may do so either by communicating with counsel or by directly clarifying the issue with the witness. As the Trial Chamber correctly observed, as long as its questions did not pursue an independent enquiry into the evidence of the witness, they were properly apportioned to the time of the examining party.[1]

[1] Decision of 16 April 2008 [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Lukić Defence Objection to February 2008 Report on Use of Time, 16 April 2008], para. 13.

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Decision on Length of Defence Case - 20.07.2005 ORIĆ Naser
(IT-03-68-AR73.2)

7.         The question of time limits and witness allocation is somewhat less straightforward.  The Appeals Chamber has long recognized that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.”[1]  At a minimum, “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity.[2]  This is not to say, however, that an Accused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution.  The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt.  Defense strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavor which may require less time and fewer witnesses.  This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.

8.       In addition, it should be noted that although Rule 73 ter gives the Trial Chamber the authority to limit the length of time and number of witnesses allocated to the defense case, such restrictions are always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute of the International Tribunal be respected.  Thus, in addition to the question whether, relative to the time allocated to the Prosecution, the time given to the Accused is reasonably proportional, a Trial Chamber must also consider whether the amount of time is objectively adequate to permit the Accused to set forth his case in a manner consistent with his rights.[3]

9.       The question, then, is whether, taking into account the complexity of the remaining issues, the amount of time and the number of witnesses allocated to Orić’s defense are reasonably proportional to the Prosecution’s allocation and sufficient to permit Orić a fair opportunity to present his case.  The Trial Chamber’s order leaves Orić nine weeks to present 30 witnesses.[4] [….]

[1] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 44 (“Tadić Appeal Judgement”).

[2] Tadić Appeal Judgement, paras. 48, 50 (discussing principles laid down by the European Court of Human Rights and by the Human Rights Committee); see also id. at para. 52 (“[U]nder 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.”); see generally Antonio Cassese, International Criminal Law, pp. 395-397.

[3] Plainly, it may not be possible to predict with precision before the Defense begins how much time will be necessary; thus, as the Trial Chamber correctly noted, Rule 73 ter allows for additional time to be granted later “in the interests of justice.”

[4] Orić’s Brief [Urgent Appeal of Trial Chamber’s Decision on Length of Defence Case, 7 July 2005], para. 4; see alsoT. 4 July 2005, p. 9148 (unofficial and uncorrected transcript) (noting that the 30 September 2005 deadline leaves the Defense nine weeks to present its case).

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Rule 73ter(E)
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Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

The ICTR Appeals Chamber followed the approach of the ICTY Appeals Chamber in the Orić case:

27. The Appeals Chamber notes that in the Orić case,[1] the ICTY Appeals Chamber stated that:

[t]he Appeals Chamber has long recognised that “the principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.” At a minimum, “equality of arms obliges a judicial body to ensure that neither party is put at a disadvantage when presenting its case,” certainly in terms of procedural equity. This is not to say, however, that an [a]ccused is necessarily entitled to precisely the same amount of time or the same number of witnesses as the Prosecution. The Prosecution has the burden of telling an entire story, of putting together a coherent narrative and proving every necessary element of the crimes charged beyond a reasonable doubt. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour which may require less time and fewer witnesses. This is sufficient reason to explain why a principle of basic proportionality, rather than a strict principle of mathematical equality, generally governs the relationship between the time and witnesses allocated to the two sides.[2]

28. The ICTY Appeals Chamber further held in the Orić Decision that the Trial Chamber has the authority to limit the length of time allocated to the Defence,[3] but that such limitations are always subject to the full respect for the rights of an accused as guaranteed in the Tribunal’s Statute.[4] Thus, in addition to whether the time given to an accused is relatively proportional to the time given to the Prosecution, the Trial Chamber must also consider whether the amount of time is objectively adequate to enable the accused to present his defence in a manner consistent with his rights.[5]  

[1] Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, (“Orić Decision”).

[2] Orić Decision, para. 7.

[3] Orić Decision, para. 8.

[4] Orić Decision, para. 8.

[5] Orić Decision, para. 8.

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