Case No. IT-00-39-T
BEFORE TWO JUDGES OF TRIAL CHAMBER I
Judge Alphons Orie
Judge Joaquín Martín Canivell
Mr Hans Holthuis
16 December 2004
DECISION PURSUANT TO RULE 15 bis (D)
Office of the Prosecutor
Mr Mark B. Harmon
Mr Alan Tieger
Counsel for the Accused
Mr Nicholas Stewart
Ms Chrissa Loukas
- This is a decision of Judges Alphons Orie and Joaquím
Martín Canivell (the "Judges") of the
International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since 1991 (the
"Tribunal"), taken pursuant to Rule 15 bis (D) of the
Tribunal’s Rules of Procedure and Evidence (the "Rules").
- At a hearing held on 10 December 2004, following the announcement
of Judge Amin El Mahdi’s decision to withdraw from the case
as of 14 January 2005, the Presiding Judge invited the Accused
to declare whether or not he consented to the continuation
of the proceedings with a substitute judge pursuant to Rule
15 bis (C) of the Rules.1
- On 14 December 2004, the Accused, through his counsel, stated
his position that "he does not consent to a continuation of
the proceedings but wishes to have a rehearing." On the same
day the Presiding Judge reported to the President of the Tribunal
that Judge El Mahdi had decided to resign from his position
as a judge in this case because he was not re-elected and
the case is expected to run beyond the date on which his mandate
- On 15 December 2004, the Judges heard the parties on whether
the proceedings should be continued or restarted.
Submissions of the parties
- The Defence submitted that in view of the gravity of the
charges against the Accused, "he should have the assurance
if at all possible, when his trial starts, that all three
Judges should hear and, where appropriate, read all the evidence
throughout and on equal terms." The interests of justice and
the imperative of a fair trial require, according to the Defence,
that the principle of the oral hearing of witnesses be respected
and that the judges be given the opportunity to see and hear
all important witnesses in the courtroom in order to assess
their demeanour and evaluate their credibility. Any compromise
"should be kept to the absolute minimum." The Defence further
stated, as part its proposal for a trial de novo, that
it would not seek to reopen the question of the evidence admitted
so far under Rule 92 bis of the Rules, nor would it
seek to call the Rule 92 bis witnesses who have already
appeared for cross-examination in the course of these proceedings.
The Defence proposed, although not without reserving its final
position, that only certain "critical" witnesses from the
pool already heard would be called again to give evidence,
in whole or in part. The balance of the evidence heard so
far would simply be admitted in written form. The Defence
estimated the time required for rehearing the "critical" witnesses
to be 15 trial days.
- Counsel for the Defence emphasized that Mr Krajišnik prefers
a new trial irrespective of "any consequential timing implications."
Neither the public interest in a timely conclusion of the
proceedings, nor efficiency in use of resources, nor the Tribunal’s
completion strategy, should be considered by the Judges as
significant factors, or, with respect to the completion strategy,
as a factor at all.
- The Prosecution argued that the interests of justice require
that a substitute judge be appointed to this case to replace
Judge El Mahdi, and that the case be continued on from where
it was stopped. The Prosecution submitted that it is inherent
in Rule 15 bis that a judge may be substituted, provided
that he or she has familiarized himself or herself with the
trial record. The record of witness testimony and exhibits
in this case are available and can be provided to the substitute
judge in order to enable him or her to become familiar with
the case. The Prosecution mentioned the possibility that certain
witnesses could be recalled for further questioning on the
request of the substitute judge. The Prosecution expressed
the view that the Defence was seeking in effect a second opportunity
to cross-examine witnesses.
- The Judges recall, as a preliminary point, the Appeals Chamber’s
observation that "In the circumstances to which Rule 15 bis
(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 ... 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."3
The question is for the Judges to decide, with reference to
all the relevant circumstances.
- Rule 15 bis states, so far as is relevant:
(C) If, by reason of death, illness, resignation from the
Tribunal, or non-reelection, a Judge is, for any reason, unable
to continue sitting in a part-heard case for a period which
is likely to be longer than of a short duration, the Presiding
Judge shall report to the President who may assign another
Judge to the case and order either a rehearing or continuation
of the proceedings from that point. However, after the opening
statements provided for in Rule 84, or the beginning
of the presentation of evidence pursuant to Rule 85,
the continuation of the proceedings can only be ordered with
the consent of the accused, except as provided for in paragraph
(D) If, in the circumstances mentioned in the last sentence
of paragraph (C), the accused withholds his consent, the remaining
Judges may nonetheless decide to continue the proceedings
before a Trial Chamber with a substitute Judge if, taking
all the circumstances into account, they determine unanimously
that doing so would serve the interests of justice. This decision
is subject to appeal directly to a full bench of the Appeals
Chamber by either party. If no appeal is taken or the Appeals
Chamber affirms the decision of the Trial Chamber, the President
shall assign to the existing bench a Judge, who, however,
can join the bench only after he or she has certified that
he or she has familiarised himself or herself with the record
of the proceedings. Only one substitution under this paragraph
may be made.
- According to the latter paragraph, it is within the competence
of the remaining judges to decide to continue the proceedings
contrary to the wishes of the accused as long as they both
agree that, taking all the circumstances into account, the
interests of justice would "better be served"4
by continuing the proceedings, rather than by restarting them.
As the Defence in the present case puts it, the Judges are
faced with a "balancing exercise". The solution reached in
the interests of justice must accord with the fundamental
requirement of the overall fairness of the proceedings (Article
21 of the Tribunal’s Statute). The Judges understand "fairness
of the proceedings" to mean that the proceedings considered
as a whole, including the way in which the evidence was received,
- The Judges also agree with the Defence that, ideally, the
same three judges should hear all the evidence in a case,
and should hear it first-hand. The Defence allows that this
is not always possible, and agrees that the Rules provide
for "second-best" alternatives so as to avoid unnecessary
interruption or repetition of the proceedings. The Appeals
Chamber has noted "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 [a witness’s] demeanour, various ways being
available to assist a new judge to overcome any disadvantages."6
But the principle remains as the Defence has stated it, a
fact which, the Judges note, is brought home by the outer
limit on the use of Rule 15 bis (D): continuation with substitution
is permissible once only.
- The question which confronts the Judges, then, is whether
the circumstances in favour of continuing the proceedings
with a substitute judge outweigh the disadvantages of this
course of action, in particular any substantial derogation
from the above principle. Where this is the case, the continuation
of the proceedings would serve the interests of justice better
than the alternative course (restarting the case).
- The cut-off line is not clear in the abstract. The Appeals
Chamber has said that it does "not consider 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. ... The stage reached in each case need not always
be the same."7 The Judges agree
with this approach. Since a given case is likely to differ
significantly from another in its nature and history, it is
preferable that a court limits itself to an assessment of
its own particular circumstances in the light of applicable
- In the present case, just over one-third of Prosecution
witnesses have been heard. In the Judges’ opinion, a substitute
judge should have little difficulty mastering the case within
a reasonable amount of time. The fidelity and accessibility
of the trial record in this case is so high (video-recording
of proceedings, accurate transcripts, extensive reliance on
printed exhibits, significant reliance on filmed and taped
evidence) that the difference between a first-hand experience
of the case so far, and a second-hand review of it, is very
- The Judges accept that a gap between the level of familiarity
of the continuing judges and the substitute judge remains,
at least in theory. In the circumstances of the present case
the Judges perceive only a minor gap, which they expect to
be of little significance in practical terms. The recomposed
Trial Chamber may, of course, recall a witness for the benefit
of the substitute judge,8 whether
or not at the request of the parties. This would lessen any
gap, such as it is.
- The Judges consider that there have been no irregularities
in the course of the trial which cast doubt on its fairness.
Irregular proceedings would weigh in favour of restarting
the case. The Defence recalled in its submissions what it
sees as the issue of the insufficient time it has had to prepare
its case. The Trial Chamber has dealt with this issue several
times.9 A continuation of the
proceedings would give the Defence additional time to prepare
its case while the substitute judge familiarizes himself or
herself with the record of the proceedings. The Judges consider,
moreover, relevant the fact that they themselves have been
present throughout this case without missing any of the evidence
that has been presented.
- The Defence has insisted that restarting the trial in accordance
with its proposal would have low or insignificant cost implications.
The Judges do not accept this view, and consider that it would
be preferable to continue the trial. The costs (financial
and otherwise) of restarting the proceedings would be considerable.
A burden would be placed on witnesses who have already testified
and are called again. There is a risk of evidence becoming
unavailable. Other associated risks would include a change
in the current composition or strategy of the Defence team.
Because of the extra time that would have to be allocated
to this case, other accused persons will have to wait longer
until the commencement of their trials. These factors are
accorded some weight by the Judges in the balancing exercise.
- Most importantly, the gap in mastery of the case between
the substitute judge and the sitting judges is likely to be
of little practical significance.
- For all the above reasons, the Judges find that the scales
tip in favour of continuation with a substitute judge, even
taking into account the fact that no further substitutions
under Rule 15 bis (D) are permissible.
- Finally, the Judges note that they are not competent – or
at least not appropriately placed – to determine how a newly
reconstituted Trial Chamber (which may indeed not include
either of the present Judges) will decide matters of evidence
in a case starting anew.
FOR THE AFOREMENTIONED REASONS,
PURSUANT TO 15 bis (D) of the Rules,
THE JUDGES HEREBY:
DECIDE to continue the proceedings in this case with a substitute judge.
Done in English and French, the English text being authoritative.
Dated this 16th day of December 2004
At The Hague,
Joaquín Martín Canivell
[Seal of the Tribunal]
1. T. 9481-9486.
2. Report (to the President) under Rule 15 bis (C), 14 December 2004.
3. Prosecutor v. Karemera et al., Reasons for Decision on Interlocutory
Appeals Regarding Continuation of Proceedings with a Substitute Judge and
on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004,
4. The French version of the Rules reads "sert mieux l’intérêt
de la justice".
5. See Kostovski v. The Netherlands, ECHR, 20 November 1989, para.
6. Prosecutor v. Nyiramasuhuko et al., Decision in the Matter of Proceedings
Under Rule 15 bis (D), 24 September 2003, para. 25.
7. Ibid., para. 27.
8. See ibid., para. 35.
9. Decision on Defence Motion for Adjournment, 16 July 2004 (T. 4515-4520);
Decision on Defence Motion for Adjournment (Written Reasons), 21 September