Case No. IT-00-39-T


Judge Alphons Orie
Judge Joaquín Martín Canivell
Mr Hans Holthuis

Decision of:
16 December 2004







Office of the Prosecutor

Mr Mark B. Harmon
Mr Alan Tieger

Counsel for the Accused

Mr Nicholas Stewart
Ms Chrissa Loukas


  1. 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").
  2. 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
  3. 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 will expire.2
  4. On 15 December 2004, the Judges heard the parties on whether the proceedings should be continued or restarted.
  5. Submissions of the parties

  6. 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.
  7. 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.
  8. 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.
  9. Discussion

  10. 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.
  11. Rule 15 bis states, so far as is relevant:
  12. (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).

    (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.

  13. 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, were fair.5
  14. 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.
  15. 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).
  16. 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 principle.
  17. 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 limited.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. 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.


PURSUANT TO 15 bis (D) of the Rules,


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,
The Netherlands

Alphons Orie

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, para. 52.
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. 39.
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 2004.