31. The Appeals Chamber recalls that “every court possesses the inherent power to control the proceedings during the course of the trial”.[1] Rule 73 ter of the Rules confers upon Trial Chambers the authority to determine the time allocated to the presentation of the defence case[2] and the number of witnesses the defence may call.[3] The Appeals Chamber does not see any reason why the application of this Rule should be limited to a Trial Chamber’s authority to determine the number of viva voce witnesses. The application of Rule 73 ter of the Rules extends to all categories of witnesses. However, a Trial Chamber’s authority to limit the number of witnesses allocated to the defence is “always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute […] be respected”.[4] Hence, a Trial Chamber is required to ensure that the number of witnesses it sets for the presentation of the defence case is sufficient to allow the accused a fair opportunity to present his case.[5] The Appeals Chamber also recalls that it has previously held in this case that the Trial Chamber’s duty to ensure the fairness and expeditiousness of proceedings will often entail a delicate balancing of interests, particularly in a trial of this scope and complexity.[6] Therefore, in the instant case, the Trial Chamber was required to consider, in light of the complexity and number of issues to be litigated, whether an appropriate balance was struck in reducing the number of Rule 92 bis witnesses that Praljak was allowed to present.

32. The Appeals Chamber observes that the same consideration applies to a Trial Chamber’s power to control the volume and length of Rule 92 bis material that a party can tender. A Trial Chamber is not inherently prohibited from exerting such control while exercising its discretion over the administration of trials. This is in line with Rule 90(F) of the Rules which confers upon Trial Chambers the authority to control the mode of presenting evidence.[7] However, as stated by the Appeals Chamber, a Trial Chamber’s discretion in this regard is subject to its “obligation to respect the rights of an accused”[8] and “must […] be exercised with caution, as it is, in principle, for both parties to structure their cases themselves”[9]

[…]

36. Furthermore, the fact that Praljak was not granted the entire requested time [for the presentation of his defence case] does not in and of itself allow him to tender as many Rule 92 bis written statements or transcripts as he wishes. […].

37. […] Moreover, when written statements or transcripts containing an accused’s acts and conduct as charged in an indictment are tendered pursuant to Rule 92 bis of the Rules, Trial Chambers are not obliged to admit them pursuant to Rule 92 ter of the Rules requiring cross-examination.[10] Taking this course of action is within a Trial Chamber’s discretion as long as the rights of the accused are protected.[11][…].

19. The Appeals Chamber has already held that when an accused is effectively represented by counsel, it is, in principle, for the counsel to conduct the examination of witnesses.[1] It has however recognized that Trial Chambers may, under exceptional circumstances, authorize an accused to participate in the examination in person.[2] It has also been established that the Trial Chambers are entitled under Rule 90(F) of the Tribunal’s Rules of Procedure and Evidence (“Rules”) to exercise control over the manner in which such examination is conducted,[3] including ensuring that it “is not impeded by useless and irrelevant questions”.[4]

20. […] In these circumstances, the real issue currently before the Appeals Chamber is whether the Trial Chamber committed a discernable error in defining those “exceptional circumstances” by providing its clarification of the term “specific expertise”.

21. […] The Appeals Chamber reiterates that it is within the Trial Chamber’s discretionary power to define the circumstances under which it can allow the Appellant to intervene in the examination of witnesses. However, it did not need, at this stage of the proceedings, to further restrict the criteria that would apply to all his future requests for personal intervention. Although the Trial Chamber based its decision on its experience concerning previous interventions of the Appellant, the Appeals Chamber considers that the Trial Chamber should have allowed more flexibility for its assessment of the notion of specific expertise and perform such assessment on a case-by-case basis when faced with a specific request. The approach taken by the Trial Chamber could potentially lead to violation of the Appellant’s rights under Article 21 of the Statute and thus constitutes an abuse of discretion.

22. Moreover, the Appeals Chamber emphasizes that both Guideline C (as amended by the Trial Chamber’s Decision of 10 May 2007) and Guideline 1 refer to “exceptional circumstances” which relate in particular to the events in which the Appellant participated personally or issues falling within his specific expertise, and should therefore not be read as restricting those circumstances to these two scenarios.[5] Indeed, various other circumstances may still arise during the proceedings which may justify the Appellant’s participation in the examination.[6]

16. The Appeals Chamber notes that “managerial decisions, such as whether to make a site visit, are left to the discretion of the Trial Chamber”.[1] In the instant case, the Appellant does not demonstrate that the Trial Chamber abused its discretion in finding that site visits were unnecessary to assess the credibility of the evidence and the charges against the Appellant. […]

The Prosecution challenged the compliance of the Impugned Decision on Remand with the Appeals Chamber’s direction to the Trial Chamber that it specifically consider whether the reduction of 107 hours from the 400 hours originally allocated to the Prosecution would allow it a fair opportunity to present its case in light of the complexity and number of issues that remain. The Appeals Chamber found:

28. The Appeals Chamber recognises that a substantial amount of time has been cut. It also takes note of the significant complexity and importance of this case amongst those that have and will have been prosecuted at the International Tribunal. [...]

29. The Appeals Chamber recognises that the reduction in time by the Trial Chamber will undoubtedly be seen to interfere with the presentation of the Prosecution’s case in that a cut will force the Prosecution to further revise and refine its trial strategy. It does not however, necessarily imply that the Prosecution will be unable to fairly and effectively present its case within the confines of the reduced time. The question before the Appeals Chamber is thus whether the Trial Chamber committed a discernable error in determining that the reduction of 107 hours would still allow the Prosecution a fair opportunity to present its case.

30. The Appeals Chamber has previously recalled in this case that “every court possesses the inherent power to control the proceedings during the course of the trial,”[1] and that it was within the discretion of the Trial Chamber to revise the time originally allocated to the Prosecution in the Decision Adopting Guidelines as a function of that power.[2] Following the remanding of the Impugned Decision and the renewed assessment carried out by the Trial Chamber, the Appeals Chamber finds the Trial Chamber acted within its discretion and defers to it in respect of the outcome of its assessment. The Appeals Chamber considers that the Trial Chamber has now clearly indicated the bases upon which it carried out its assessment, and is not persuaded that relevant factors have gone unconsidered or irrelevant factors have been accorded undue weight.[3] Furthermore, the Appeals Chamber does not find the Trial Chamber’s decision to be unfair or unreasonable as to constitute an abuse of its discretion.

31. The Appeals Chamber notes the Prosecution’s contention that the Trial Chamber’s reference to the use of Rules 92bis and 92ter of the Rules as a way to allow the Prosecution to present its case as efficiently as possible does not constitute a new or changed circumstance capable of justifying the cutting of the Prosecution’s time from 400 hours to 293 hours.[4] The Prosecution submits that in relying on these factors, the Trial Chamber is effectively “double-counting”, having used these rules in setting the original timeframe of 400 hours and now again using these same rules to justify the additional time cut.[5] Seeking to rely on the Milošević Appeal by the Amici, the Prosecution argues that the Trial Chamber has consequently given weight to extraneous or irrelevant considerations “which the Appeals Chamber has found to be an error in the exercise of discretion in the setting of time limits.”[6] The Appeals Chamber finds that this reference is inapposite. Noting that the Trial Chamber is the best placed authority to determine what amount of time is sufficient for the accused to prepare his defence, the Appeals Chamber in the Milošević Appeal by the Amici found that the “Trial Chamber’s decision was informed by sufficient factual information and by the appropriate legal principles, and did not take into account any impermissible factor” such as the completion target for the International Tribunal’s work.[7] In that case, the Appeals Chamber did not, as the Prosecution suggests, consider the use of Rules 92bis and 92ter to be extraneous or irrelevant considerations in determining the sufficiency of the time required for a party to prepare or present its case.[8]

32. Furthermore, it appears from the face of the Impugned Decision on Remand that the Trial Chamber was in fact careful not to “double count”. The Trial Chamber’s calculation of a savings of approximately 45 hours from the use of Rule 92ter represents the difference between the Prosecution’s estimation of the total time needed for the examination of all the witnesses who were examined prior to 28 February 2007 and the Registrar’s calculation of the time actually spent for the examination of these witnesses in court.[9]

33. Lastly, the Appeals Chamber notes that the Trial Chamber clearly indicated in the Decision Adopting Guidelines that any of the practices and guidelines contained therein were subject to being altered “as the trial progresses, in order to ensure that the proceedings are conducted in a fair and expeditious manner.”[10] Such changes were not necessarily predicated, as the Prosecution argues, on the demonstration of a new or changed circumstance.

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.

23. […] The Trial Chamber did not state that because the Completion Strategy is reflected in a Security Council resolution, it is therefore bound to its deadlines in the management of this trial. Rather, it merely considered the Completion Strategy as one factor to be weighed in the Impugned Decision while correctly stressing that it would not allow the “considerations of economy” to “violate the right of the Parties to a fair trial.”[1] The Appeals Chamber notes however, as it has done previously in this case, that Completion Strategy considerations aside,

time and resource constraints exist in all judicial institutions and that a legitimate concern in this trial, which involves six accused, is 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]

20. […] [T]he Appeals Chamber reiterates that the imposition of time limits in a trial – whether calculated in months or hours – is entirely the prerogative of the Trial Chamber. The true intent and extent of the independence accorded to the Prosecutor under Article 16 of Statute is to ensure that no “government or other institution or person, including the Judges of the Tribunal, can direct the Prosecutor as to whom he or she is to investigate or to charge.”[1] The Appeals Chamber maintains that it is erroneous for the Prosecution to suggest that its independence extends to the way in which its case is to be presented before a Trial Chamber.[2]

29. It is well established in the jurisprudence of this Tribunal that equality of arms does not mean equality of resources, but rather that each party must have a reasonable opportunity to defend its interests under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent.[1]  In this respect, the Appeals Chamber is not persuaded by Praljak’s argument that translation resources allocated to the Prosecution are relevant to the determination as to which resources should be allocated to him for the conduct of his defence. 

See also Karadžić Decision on Languages, 4 June 2009.

45. [...] [T]he Appeals Chamber recalls that the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions.[1]

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. 

26. It is well established that trial chambers exercise discretion in relation to trial management, which includes decisions on adjournments.[1] The Appeals Chamber’s examination is therefore limited to establishing whether the Trial Chamber abused its discretionary power by committing a discernible error when it refused Kanyarukiga’s request to adjourn the start of the trial.[2] With respect to the laissez-passers, Kanyarukiga submitted to the Trial Chamber that the trial would move forward in a different manner if these documents were to be retrieved and that he was willing to “wait a few more weeks” until the Prosecution presented the results of its inquiry.[3] These arguments did not show that Kanyarukiga needed a postponement of the trial to prepare his defence. He has thus failed to demonstrate that the Trial Chamber abused its discretion in declining his adjournment request.

52. […] the Appeals Chamber notes that the timing of the Trial Chamber’s rulings on the admissibility of Prosecution evidence related to the general conduct of trial proceedings and was thus a matter within the discretion of the Trial Chamber. […]

42. The Appeals Chamber recalls that under Rule 90(F) of the Rules, the trial chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) [m]ake the interrogation and presentation effective for the ascertainment of the truth; and (ii) [a]void needless consumption of time.” Trial chambers therefore enjoy discretion in setting the parameters of cross-examination.[1] When addressing a submission concerning the modalities of cross-examination, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

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.

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]

23. In the course of discharging their duty to ensure that a trial is fair and expeditious,[1] Trial Chambers enjoy considerable discretion in scheduling trials.[2] The Appeals Chamber recalls that “it is not possible to set a standard of what constitutes adequate time to prepare a defence. The length of the preparation period depends on a number of factors specific to each case”.[3] Thus, a Trial Chamber’s assessment of the time and resources required to prepare for trial is such a “fact-intensive exercise” that Karadžić’s comparisons to other cases are of little assistance and limited relevance.[4]

25. […] Based on the information provided, the Trial Chamber conducted considerably detailed analyses concerning the quantity and nature of the disclosed items, as well as reasons for their disclosure at this stage of the proceedings.[5] The Trial Chamber found that much of the disclosure made to Karadžić during the adjournment period was unavoidable […].[6] […]. Taking into account that Karadžić had already had 18 months to prepare, the Trial Chamber found that the volume of additional disclosure did not justify further delay to the hearing of evidence.[7] The Trial Chamber also considered other means to ensure that Karadžić’s rights were not prejudiced by late disclosure, such as granting him additional time to prepare for his cross-examination or familiarise himself with the disclosure, or allowing him to re-call a witness, upon a showing of good cause.[8]

26. […] Regarding the Prosecution’s motions relating to judicial notice, bar table and amendment of the Rule 65ter exhibit list,[9] to which Karadžić was supposed to respond during the adjournment period, the Trial Chamber has already granted extensions of time of four to six weeks to respond in view of their voluminous nature.[10] Taking into account the President’s analysis of the same motions, the Trial Chamber held that any difficulty Karadžić had faced in responding to these motions during the adjournment period due to the limitation on the defence funding could be remedied by granting further extensions of time to respond.[11] […].

28. In light of the above, the Appeals Chamber is satisfied that the Trial Chamber took into account all the relevant factors, including the impact of the February 2010 President Decision on the staffing of Karadžić’s defence team and possible remedies for the period when his team was understaffed. As a result, the Trial Chamber made no error in assessing that further postponement of the trial was not justified. Karadžić has failed to demonstrate that the Trial Chamber abused its discretion in reaching this conclusion.

The ICTR Appeals Chamber recalled the following:

9. Decisions relating to the general conduct of trial proceedings are matters within the discretion of the Trial Chamber. A Trial Chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.

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] [….]

The Appeals Chamber considered the implications of Security Council Resolution 1503 (2003)[1] and Security Council Resolution 1534 (2004)[2] on on-going trials in light of the 31 December 2008 deadline to complete all trials. It held that when assessing these implications, the overriding consideration must be the strict adherence to the “minimum guarantees afforded to accused persons pursuant to Article 20 of the Tribunal’s Statute”:

24. The Appeals Chamber notes that the remaining Judges expressed the view that the completion of all trials by 31 December 2008 is “more of a target date”[3] and that there was “nothing to suggest that unfair decisions and actions will be taken with regard to cases that are pending on 31 December 2008.”[4] The Appeals Chamber also notes that resolution 1503 urges the Tribunal to formalise a strategy to enable the Tribunal “to achieve its objective” of completing all trials by the end of 2008[5] and calls on the Tribunal “to take all possible measures” in this regard.[6] The Appeals Chamber is of the view that when assessing the implications of resolution 1503 and resolution 1534 to on-going trials, the overriding consideration must be the strict adherence to the minimum guarantees afforded to accused persons pursuant to Article 20 of the Tribunal’s Statute. The Appeals Chamber considers that the remaining Judges properly addressed this overriding consideration and sees no error in their interpretation of their obligations in the context of resolution 1503 and resolution 1534.  The remaining Judges considered that the trial in the Applicants’ case could be completed fairly and expeditiously by 31 December 2008, by using appropriate trial management methods within their discretion and taking reasonable decisions.[7] In the event of the trial not being completed by the end of 2008, the remaining Judges stated that “reasonable decisions will be taken in the interests of justice [and] taking into account the rights of each co-Accused.”[8] The Appeals Chamber finds no error in this approach.

119. As noted above,[1] the Trial Chamber exceptionally and temporarily allowed Krajišnik to supplement his Counsel’s cross-examination with his own questions to the witness pending final decision on his request to self-represent.[2] The Appeals Chamber is of the view that the Trial Chamber acted within its discretion in doing so. The Appeals Chamber has already recognised that an accused represented by counsel may in certain circumstances directly put questions to a witness, subject to the Trial Chamber’s supervision.[3] In the Appeals Chamber’s opinion, the circumstances at hand (the pending request to self-represent) made it appropriate to allow Krajišnik to put questions to the witnesses after the cross-examination of Counsel. The Appeals Chamber further notes that the Trial Chamber explicitly warned Krajišnik of the risks connected with taking an active role in cross-examinations.[4] In the circumstances, the Appeals Chamber is not persuaded that Amicus Curiae has shown that the Trial Chamber’s decision rendered the trial unfair. The only concrete prejudice alleged by Amicus Curiae concerns Krajišnik’s handling of the cross-examination of Witness Davidović,[5] but he does not provide any reference in this regard and the Appeals Chamber can not thus assess this contention.

23. Relying upon the Appeals Chamber’s holding in the Čelebići Appeal Judgement, the Trial Chamber stated the law applicable to a request for reopening a party’s case as follows:

[W]hen considering an application for reopening a case to allow for the admission of fresh evidence, a Trial Chamber should first determine whether the evidence could, with reasonable diligence, have been identified and presented in the case-in-chief of the party making the application. If not, the Trial Chamber has the discretion to admit it, and should consider whether its probative value is substantially outweighed by the need to ensure a fair trial. When making this determination, the Trial Chamber should consider the stage in the trial at which the evidence is sought to be adduced and the potential delay that would be caused to the trial.[1]

24. The Appeals Chamber finds that the Trial Chamber correctly articulated the applicable legal standard. […] [T]he Appeals Chamber notes that an evaluation of what constitutes fresh evidence and whether the Prosecution has met its obligation of reasonable diligence is highly contextual, depending on the factual circumstances of each case. Thus, any assessment in this respect should be carried out on a case-by-case basis.[2]

[…]

35. [T]he Appeals Chamber recalls that in a case where the evidence is sought to be presented at a very advanced stage of the proceedings, the Prosecution should establish that the evidence could not have been obtained, even if after the close of its case, at an earlier stage in the trial.[3] […]

34. […] [T]he Appeals Chamber is not persuaded that Markač’s right to a fair trial would be adversely affected merely as a result of the reopening of the Prosecution’s case.[1] What is important for the Trial Chamber is to ascertain that following the reopening of the Prosecution’s case, the proceedings are indeed conducted with full respect for the principle of equality of arms. […]

22. Pursuant to Article 19(1) of the Statute, the Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused. However, it is not for the Trial Chamber to dictate to a party how to conduct its case.

51.     Article 20(1) of the Statute provides that “[a]ll persons shall be equal before the [Tribunal]”. The Appeals Chamber recalls that this provision encompasses the requirement that there be no discrimination in the enforcement or application of the law.[1]

[…]

55.     […] the Appeals Chamber recalls that “[i]t is beyond question that the Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation of indictments”.[2] This discretion is not unlimited, but must be exercised within the restrictions imposed by the Statute and the Rules.[3]

56.     The Appeals Chamber observes that the Prosecution alleged that Ngirumpatse made arrangements with Bagosora to obtain weapons for the Interahamwe on 11 April 1994,[4] and that Bagosora was not charged for this particular event.[5] However, the Appeals Chamber rejects Ngirumpatse’s contention that this fact alone could substantiate an allegation of unequal treatment.[…]

12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.

13.     I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4]

[…]

15.     This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.

26. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in relation to the management of the proceedings before them, including as to the modalities of the presentation of evidence.[1] This discretion, however, must be exercised in accordance with Article 20(1) of the ICTY Statute, which requires trial chambers to ensure that trials are fair and conducted with full respect for the rights of the accused.[2] Where a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the violation caused prejudice that amounts to an error of law invalidating the judgement.[3]

See also para. 72.

27. The right of an accused to represent himself, which is guaranteed by the ICTY Statute and has been held to be an “indispensable cornerstone of justice”, is nonetheless not absolute and may be subject to certain limitations.[4] In this respect, any limitation must be guided by the proportionality principle, that is, it must serve a sufficiently important aim that is compatible with the ICTY Statute and not impair the right more than necessary to accomplish such aim.[5]

[…]

29. The Appeals Chamber considers that Karadžić has failed to demonstrate that the Trial Chamber’s decision that his testimonial evidence be led by his legal advisor rather than be presented in narrative form interfered with his right to represent himself.[6] While Karadžić points to submissions made by his legal advisor that the decision essentially imposed his legal advisor as his “counsel” for the purpose of Karadžić’s examination,[7] this does not demonstrate that the decision curtailed his right to represent himself. Specifically, Karadžić does not show, for example, that the decision impacted his ability as a self-represented defendant to control the preparation and execution of his examination-in-chief, including the organization and substance of the questions to be asked by his legal advisor and the evidence elicited. The Appeals Chamber considers that the Trial Chamber’s decision respected Karadžić’s right to self-representation and the right to testify and finds no merit in his argument that he was forced to choose between the two.