Authorized length of time and number of witnesses
|Decision on Witness List - 21.08.2007||
NYIRAMASUHUKO et al. (Butare)
21. As noted above, Trial Chambers exercise discretion in relation to the conduct of proceedings before them. The Appeals Chamber notes that in the Orić case, the ICTY Appeals Chamber held that:
[a]lthough Rule 73ter gives the Trial Chamber the authority to limit the length of time and the number of witnesses allocated to the defence 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. 
Consequently, the Appeals Chamber must determine whether in ordering the Appellant to reduce the number of his witnesses, the Trial Chamber took into consideration the complexity of the Appellant’s case and determined that the maximum number of witnesses allotted to him was sufficient to allow the Appellant a fair opportunity to present his defence.
24. […] As already stated, the Appeals Chamber is satisfied that it was well within the discretion of the Trial Chamber to reduce the number of witnesses to be called by the Appellant by reference to the Pre-Defence Brief and “will-say” statements. The Appeals Chamber is further satisfied that in basing its decision on a consideration of the evidence to be adduced by the proposed witnesses, the Trial Chamber properly considered whether reducing the number of the Appellant’s witnesses to a maximum of thirty would still allow the Appellant the opportunity to present an adequate defence. Accordingly, the Appeals Chamber finds no error on the part of the Trial Chamber.
 See para. 10 supra.
 Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, (“Orić Decision”).
 Orić Decision, para. 8.
|Decision on Length of Defence Case - 20.07.2005||
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.” 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. 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.
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. [….]
 Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 44 (“Tadić Appeal Judgement”).
 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.
 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.”
 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).