The Trial Chamber commenced the trial while there was still a pending preliminary motion objecting to certain defects in the Indictment. The Appeals Chamber found

31. […] that in deciding to start the trial prior to ruling on the pending Motion of 29 August 2006, the Trial Chamber violated the express provision of Rule 72(A) of the Rules that preliminary motions “shall be disposed of […] before the commencement of the opening statements”.[1] Because the language of Rule 72(A) of the Rules is mandatory, the Trial Chamber committed a discernible error of law when it allowed the trial to commence without disposing of the Appellant’s motion. 

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. 

The Appeals Chamber then considered the Trial Chamber’s demand that the Prosecution file a “marked-up version of the indictment and its schedules”[1] including footnotes explaining all changes of the indictment, subsequent to an invitation of the Trial Chamber pursuant to Rule 73bis(D) of the Rules. It assessed whether this required a delay in the start of the trial:

26. [T]he Trial Chamber reduced the size of the case Karadžić faced by accepting the propositions of the Prosecution’s 31 August 73bis(D) Submission.[[2]] However, the amount of time provided to Karadžić for reviewing the marked-up indictment is exceedingly short and risks rendering the trial unfair, even when the only potential changes are reductions in the Prosecution’s charges. In the context of this case, the Trial Chamber was obligated to ensure that Karadžić had sufficient time to read the marked-up and clarified indictment before the commencement of trial. Its failure to do so constitutes an abuse of discretion.