52. … In the circumstances to which Rule 15bis(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, namely, decide to continue the proceedings with a substitute Judge if, taking all the circumstances into account, they unanimously determine that doing so would serve the interests of justice. 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. Accordingly, it would constitute an error on the part of the remaining Judges to take into account that Defence submissions have not demonstrated that re-starting the trial would serve the interests of justice.
54. The issue under Rule 15bis(D) is whether taking all the circumstances into account, the Judges find that continuing the trial would serve the interests of justice. In answering this question, the Judges are to assess the totality of the circumstances rather than whether a party has demonstrated that continuing or re-starting the trial would better serve the interests of justice. In the view of the Appeals Chamber, although the remaining Judges noted that the Defence had not demonstrated certain facts, they did not base their findings on this observation, which would be an immaterial consideration, but, rather, they based them on the assessment of the underlying circumstances, which was material for their decision. Consequently, the Appeals Chamber finds that the remaining Judges did not abuse their discretion by taking into account an immaterial consideration, namely whether the Defence met a certain burden, and dismisses the Appeals on this point.