Equality of arms

Notion(s) Filing Case
Contempt Appeal Judgement - 30.05.2013 ŠEŠELJ Vojislav
(IT-03-67-R77.4-A)

37. The Appeals Chamber is mindful that the principle of equality of arms must be interpreted in light of the particular circumstances surrounding cases of contempt under Rule 77(D) of the Rules[1] where there is no opposing party to an accused and where a trial chamber prosecutes the alleged contempt itself. As the prosecuting authority, a trial chamber acting pursuant to Rule 77(D) of the Rules drafts the charges contained in the order in lieu of indictment, may present evidence on those charges and examine witnesses led by the defence. As the judicial authority, a trial chamber acting pursuant to Rule 77(D) of the Rules decides on defence motions and objections during the pre-trial and trial stages, and delivers a judgement after the close of the evidence and the hearing of defence arguments. Notwithstanding the dual prosecutorial and judicial roles contemplated under Rule 77(D) of the Rules, the Appeals Chamber recalls that a trial chamber continues to abide by the principle of equality of arms in ensuring that the accused is not substantially disadvantaged in the presentation of his case and that he likewise benefits from the fair trial guarantees embodied in the Statute[2].

[1] If a Chamber considers that there are sufficient grounds to proceed against a person for contempt, the Chamber may:

(i) in circumstances described in paragraph (C)(i), direct the Prosecutor to prosecute the matter; or (ii) in circumstances

described in paragraph (C)(ii) or (ill), issue an order in lieu of indictment and either direct amicus curiae to prosecute

the matter or prosecute the matter itself (emphasis added).

[2] See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgment on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001, para. 56, referring to Prosecutor v. Simić et aI., Case No. IT-95-9-R77, Scheduling

Order in the Matter of Allegations Against Accused Milan Simić and his Counsel, 7 July 1999, pp. 3-6, "It is therefore essential that, where a chamber initiates proceedings for contempt itself, it formulates at an early stage the nature of the charge with the precision expected of an indictment, and that it gives the parties the opportunity to debate what is required to be proved. It is the only way that the alleged contemnor can be afforded a fair trial."

Download full document
ICTR Rule Rule 77 ICTY Rule Rule 77
Notion(s) Filing Case
Decision on Rule 92 bis Evidence - 01.07.2010 PRLIĆ et al.
(IT-04-74-AR73.17)

15. The Appeals Chamber has held 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] However, this does not necessarily mean that an accused is “entitled to precisely the same amount of time or the same number of witnesses as the Prosecution”, since the latter bears the burden of proving every element of the crimes charged beyond reasonable doubt.[2] As a result, “a principle of basic proportionality” governs the time and the number of witnesses allocated between the Prosecution and an accused.[3] The Appeals Chamber also recalls that:

[i]n a case with multiple accused, the issue of proportionality is affected not only by the burden of proof upon the Prosecution, but also by the circumstance that not all of the evidence presented by the Prosecution is directed to prove the responsibility of one individual Accused.[4]

16. Therefore, as the Trial Chamber correctly concluded,[5] the fact that the Trial Chamber admitted into evidence 101 statements and transcripts tendered by the Prosecution pursuant to Rule 92 bis of the Rules does not in and of itself authorise Praljak to have the same or similar number of statements or transcripts admitted under the same Rule. Also, the Trial Chamber did not set a limit on the number and length of Rule 92 bis statements and transcripts that the Prosecution could tender. However, it does not follow that the Trial Chamber is prevented from imposing a limit on the amount of Rule 92 bis evidence that an accused can tender. Nor does the fact that the Prosecution resorted to Rule 92 bis of the Rules as a result of the reduction of its court time by the Trial Chamber, in and of itself, provide Praljak with any justification for tendering the same amount of Rule 92 bis evidence on the ground that he was allocated less court time than requested.

[1] Orić Appeal Decision, para. 7; Tadić Appeal Judgement, para. 44. In this context, the Appeals Chamber recalls that Article 21(4)(e) of the Statute “serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution”, see Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-AR73.3, Decision on Appeal by Dragan Papić against Ruling to Proceed by Deposition, 15 July 1999 (“Kupreškić et al. Appeal Decision”), para. 24.

[2] Orić Appeal Decision, para. 7; Prlić et al. Appeal Decision of 1 July 2008, para. 39. See also Kupreškić et al. Appeal Decision, para. 24.

[3] Orić Appeal Decision, para. 7.

[4] Prlić et al. Appeal Decision of 1 July 2008, para. 39. See also Prlić et al. Appeal Decision of 1 July 2008, para. 35.

[5] First Impugned Decision, para. 34.

Download full document
ICTR Rule Rule 73ter;
Rule 92bis
ICTY Rule Rule 73ter;
Rule 92bis
Notion(s) Filing Case
Decision Regarding Additional Funds - 13.11.2003 MILUTINOVIĆ et al.
(IT-99-37-AR73.2)

24.     […] The principle of equality of arms would be violated only if either party is put at a disadvantage when presenting its case. […]

Download full document
Notion(s) Filing Case
Decision After Remand - 11.05.2007 PRLIĆ et al.
(IT-04-74-AR73.4)

38. […] In exercising its discretion to control the proceedings, the Trial Chamber is working to ensure that the trial is completed within a reasonable time. The reduction of the Prosecution’s time for examination-in-chief also resulted in a cut to the Defence’s time for cross-examination. Furthermore, the modalities and allocation of time for presentation of the Accused’s case is yet to be determined by the Trial Chamber.[1]  When the proceedings reach that stage, the Appeals Chamber recalls that under the jurisprudence of the International Tribunal, the Trial Chamber will be bound to apply the longstanding principle of equality of arms[2] to ensure that a basic proportionality will govern the relationship between the time and number of witnesses allocated to all sides. In any case, the Prosecution has failed to demonstrate a discernible error committed by the Trial Chamber in this respect.

[1] Impugned Decision [Prosecutor v. Prlić et al., Case No. IT-04-74-T, Decision on Adoption of New Measures to Bring the Trial to an End within a Reasonable Time, 13 November 2006], para. 22 reads in relevant part: “In view of the fact that the time allocated for cross-examination is proportional to the duration of the examination-in-chief, it also impinges on the Defence. The Chamber shall deal with the modalities and the time to be allocated for the presentation of the Defence case at a later date”; see also, Prlić et al. Joint Response [Joint Defence Response of Jadranko Prlić, Slobodan Praljak and Berislav Pušić to Prosecution Appeal Concerning the Trial Chamber’s Ruling Dated 13 November 2006 Reducing Time for the Prosecution Case, 11 December 2006], para. 7 (“The Accused have strong reason to fear that their own time for presenting the Defence case, should they be called upon to do so, will be reduced, resulting in unfairness to the Defence and the real probability of injustice.”). The Petković Response and the Petković Defence Response to Prosecution Notice of Decision on Remand additionally take issue with the impact of the Impugned Decision on the time available to the Accused for the cross-examination of the Prosecution witnesses, paras. 11-13 and 5, respectively. It should be noted that the Petković Defence was denied certification to appeal against the Impugned Decision.

[2] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 44 (“The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.”); Orić Decision, para. 7 (“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 equality.”).

Download full document
Notion(s) Filing Case
Decision on Attribution of Time to the Defence - 01.07.2008 PRLIĆ et al.
(IT-04-74-AR73.7)

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.

[1] Praljak Appeal, paras 55-61; Praljak Reply [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Slobodan Praljak’s Request for Leave to Reply to the Prosecution’s Response and Praljak’s Reply to the Prosecution’s Response, 22 May 2008], para. 32; Petković Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Petković Defence Appeal Against the Trial Chamber’s 25 April 2008 Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge, 2 May 2008], paras 25-36; Petkovic Reply [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7,  Milivoj Petković Defence Reply to Prosecution Consolidated Opposition to the Defence Appeals Concerning the Trial Chamber’s Ruling Dated 25 April 2008 Reducing Time for the Defence Case, 22 May 2008], para. 4; Stojić Appeal [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.7, Bruno Stojić Appeal from 'Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge' Issued 25 April 2008, 2 May 2008], paras 10-11.  

[2] Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.2, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007 (“Prlić Initial Decision on Prosecution Time”), para. 23.

[3] Prosecutor v. Orić, Case No. IT-03-68-AR73.2, Interlocutory decision on Length of Defence Case (“Orić Decision”), para 8; Prlić Initial Decision on Prosecution Time, para. 23; Prlić Decision on Cross Examination [Prosecutor v. Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal Against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination By Defence and on Association of Defence Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006], p. 4.

[4] Orić Decision, paras 8-9.

[5] Orić Decision, para. 7.

[6] Impugned Decision, para. 45. 

Download full document
ICTR Rule Rule 73 ter;
Rule 82(A)
ICTY Rule Rule 73 ter (E);
Rule 82(A)
Notion(s) Filing Case
Decision on Translation - 04.09.2008 PRLIĆ et al.
(IT-04-74-AR73.9)

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.

[1] Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, paras 44-55; Prosecutor v. Zlatko Aleskovski, Case No. IT-95-14/1-AR73, Decision on Prosecutor’s Appeal on Admissibility of Evidence, 16 February 1999, paras 23-25; The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-A, Judgement, 1 June 2001, para. 69; Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, paras 23-24; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004, paras 175-177; Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005, paras 7-9; Decision of 1 July 2008, para. 39.

Download full document
Notion(s) Filing Case
Decision on Modified Provisional Release - 10.03.2006 HARADINAJ et al.
(IT-04-84-AR65.1)

1.         Paras 98-103:  Although “Equality of arms, particularly the principle of audi alteram partem, is generally thought to apply just before courts”,[1] the Appeals Chamber stated that “the principle has some applicability outside the walls of the Tribunal.” (para. 98).  In this case, the Appeals Chamber found that the principle applied and was violated where UNMIK was delegated the authority to vary the conditions of the Accused’s provisional release without considering the views of the Prosecution.  

[1] See, e.g., Prosecutor v. Jelisić, Case No. IT-95-10-A, Judgement, 5 July 2001, para. 25.

Download full document
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

220. [...] As to the principle of equality of arms, the Appeals Chamber adds that this does not amount to material equality between the parties in terms of financial and/or human resources.[1] […]

[1] Kordić and Čerkez Appeal Judgement, para. 176; Kayishema and Ruzindana Appeal Judgement, para. 69. See also Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on Appellants Dario Kordić and Mario Čerkez’s Request for Assistance of the Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post Appeal Pleadings and Hearing Transcripts Filed in Prosecutor v. Blaškič, 16 May 2002, paras. 19-20.

Download full document
ICTR Statute Article 19(1);
Article 20(4)(e)
ICTY Statute Article 20(1);
Article 20(4)(e)
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

181. The Appeals Chamber accepts the view that the concept of a fair trial includes equal opportunity to present one’s case and the fundamental right that criminal proceedings should be adversarial in nature, with both prosecution and accused having the opportunity to have knowledge of and comment on the observations filed or evidence adduced by either party.[1] Considering the latter right under the principle of equality of arms, the Appeals Chamber of ICTY held that Article 21(4)(e) of the Statute of ICTY:

serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution. In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses.[2]

[1] Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14-/2-A, Decision on Application by Mario Čerkez for Extension of Time to File his Respondent’s Brief, 11 September 2001, para. 5. Even though the French version – the original being the English text – refers to “what is described as the fundamental right that criminal proceedings are accusatoire in nature – defined as meaning the opportunity for both the prosecution and the accused to have knowledge of and comment on the observations filed or evidence adduced by either party […]” (emphasis added), the term “accusatoire” is a wrong translation of the term “adversarial” and, in view of the references on which this relies, the term “contradictoire” should have been used.

[2] Prosecutor v. Zoran Kupreškić et al., Case No. IT-95-16-AR73.3, Decision on Appeal by Dragan Papić against Ruling to Proceed by Deposition, 15 July 1999, para. 24.

Download full document
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

43. Article 20(1) of the Statute provides that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious […]”. This provision mirrors the corresponding guarantee provided for in international and regional human rights instruments:  the International Covenant on Civil and Political Rights (1966) (“ICCPR”),[1] the European Convention on Human Rights (1950),[2] and the American Convention on Human Rights (1969).[3]  The right to a fair trial is central to the rule of law: it upholds the due process of law.  The Defence submits that due process includes not only formal or procedural due process but also substantive due process.[4]

44. The parties do not dispute that the right to a fair trial guaranteed by the Statute covers the principle of equality of arms.  This interpretation accords with findings of the Human Rights Committee (“HRC”) under the ICCPR.  The HRC stated in Morael v. France[5] that a fair hearing under Article 14(1) of the ICCPR must at a minimum include, inter alia, equality of arms.  Similarly, in Robinson v. Jamaica[6] and Wolf v. Panama[7] the HRC found that there was inequality of arms in violation of the right  to a fair trial under Article 14(1) of the ICCPR.  Likewise, the case law under the ECHR cited by the Defence accepts that the principle is implicit in the fundamental right of the accused to a fair trial.  The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.  The Appeals Chamber finds that there is no reason to distinguish the notion of fair trial under Article 20(1) of the Statute from its equivalent in the ECHR and ICCPR, as interpreted by the relevant judicial and supervisory treaty bodies under those instruments. Consequently, the Chamber holds that the principle of equality of arms falls within the fair trial guarantee under the Statute.

46. The Defence contends that the minimum guarantee in Article 21(4)(b) of the Statute to adequate time and facilities for the preparation of defence at trial forms part of the principle of equality of arms, implicit in Article 20(1).  It argues that, since the authorities in the Republika Srpska failed to cooperate with the Defence, the Appellant did not have adequate facilities for the preparation of his defence, thereby prejudicing his enjoyment of equality of arms.

47. The Appeals Chamber accepts the argument of the Defence that, on this point, the relationship between Article 20(1) and Article 21(4)(b) is of the general to the particular.  It also agrees that, as a minimum, a fair trial must entitle the accused to adequate time and facilities for his defence.  

In order to decide on the scope of application of the principle of equality of arms, the Appeals Chamber  carried out a review of the international case-law in paragraphs 48–50. It then continued as follows:-

51. The case law mentioned so far relates to civil or criminal proceedings before domestic courts.  These courts have the capacity, if not directly, at least through the extensive enforcement powers of the State, to control matters that could materially affect the fairness of a trial.  It is a different matter for the International Tribunal.  The dilemma faced by this Tribunal is that, to hold trials, it must rely upon the cooperation of States without having the power to compel them to cooperate through enforcement measures.[8] The Tribunal must rely on the cooperation of States because evidence is often in the custody of a State and States can impede efforts made by counsel to find that evidence.  Moreover, without a police force, indictees can only be arrested or transferred to the International Tribunal through the cooperation of States or, pursuant to Sub-rule 59bis, through action by the Prosecution or the appropriate international bodies.  Lacking independent means of enforcement, the ultimate recourse available to the International Tribunal in the event of failure by a State to cooperate, in violation of its obligations under Article 29 of the Statute, is to report the non-compliance to the Security Council.[9]

52. In light of the above considerations, the Appeals Chamber is of the view that under 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.  This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.  The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.  Provisions under the Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side may have equal access to witnesses.  The Chambers are empowered to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.  This includes the power to:

(1) adopt witness protection measures, ranging from partial to full protection;

(2) take evidence by video-link or by way of deposition;

(3) summon witnesses and order their attendance;

(4) issue binding orders to States for, inter alia, the taking and production of evidence; and

(5) issue binding orders to States to assist a party or to summon a witness and order his or her attendance under the Rules.

A further important measure available in such circumstances is:

(6) for the President of the Tribunal to send, at the instance of the Trial Chamber, a request to the State authorities in question for their assistance in securing the attendance of a witness.

In addition, whenever the aforementioned measures have proved to be to no avail, a Chamber may, upon the request of a party or proprio motu:

(7) order that proceedings be adjourned or, if the circumstances so require, that they be stayed. 

[1] Article 14(1) of the ICCPR provides in part:  “All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […].”

[2] Article 6(1) of the ECHR provides in part:  “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

[3] Article 8(1) of the American Convention on Human Rights provides in part:

“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal or any other nature.”

[4] T. 29-35 (19 April 1999).

[5] Morael v. France, Communication No. 207/1986, 28 July 1989, U.N. Doc. CCPR/8/Add/1, 416.

[6] Robinson v. Jamaica, Communication No. 223/1987, 30 March 1989, U.N. Doc. CCPR/8/Add.1, 426.

[7] Wolf v. Panama, Communication No. 289/1988, 26 March 1992, U.N. Doc. CCPR/11/Add.1, 399.

[8] See “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, The Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-AR108bis, Appeals Chamber, 29 October 1997, para. 26.

[9] Ibid., para. 33.

Download full document
ICTR Statute Article 19(1) ICTY Statute Article 20(1)
Notion(s) Filing Case
Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

43. Article 20(1) of the Statute provides that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious […]”. This provision mirrors the corresponding guarantee provided for in international and regional human rights instruments:  the International Covenant on Civil and Political Rights (1966) (“ICCPR”),[1] the European Convention on Human Rights (1950),[2] and the American Convention on Human Rights (1969).[3]  The right to a fair trial is central to the rule of law: it upholds the due process of law.  The Defence submits that due process includes not only formal or procedural due process but also substantive due process.[4]

44. The parties do not dispute that the right to a fair trial guaranteed by the Statute covers the principle of equality of arms.  This interpretation accords with findings of the Human Rights Committee (“HRC”) under the ICCPR.  The HRC stated in Morael v. France[5] that a fair hearing under Article 14(1) of the ICCPR must at a minimum include, inter alia, equality of arms.  Similarly, in Robinson v. Jamaica[6] and Wolf v. Panama[7] the HRC found that there was inequality of arms in violation of the right  to a fair trial under Article 14(1) of the ICCPR.  Likewise, the case law under the ECHR cited by the Defence accepts that the principle is implicit in the fundamental right of the accused to a fair trial.  The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.  The Appeals Chamber finds that there is no reason to distinguish the notion of fair trial under Article 20(1) of the Statute from its equivalent in the ECHR and ICCPR, as interpreted by the relevant judicial and supervisory treaty bodies under those instruments. Consequently, the Chamber holds that the principle of equality of arms falls within the fair trial guarantee under the Statute.

46. The Defence contends that the minimum guarantee in Article 21(4)(b) of the Statute to adequate time and facilities for the preparation of defence at trial forms part of the principle of equality of arms, implicit in Article 20(1).  It argues that, since the authorities in the Republika Srpska failed to cooperate with the Defence, the Appellant did not have adequate facilities for the preparation of his defence, thereby prejudicing his enjoyment of equality of arms.

47. The Appeals Chamber accepts the argument of the Defence that, on this point, the relationship between Article 20(1) and Article 21(4)(b) is of the general to the particular.  It also agrees that, as a minimum, a fair trial must entitle the accused to adequate time and facilities for his defence.  

In order to decide on the scope of application of the principle of equality of arms, the Appeals Chamber  carried out a review of the international case-law in paragraphs 48–50. It then continued as follows:-

51. The case law mentioned so far relates to civil or criminal proceedings before domestic courts.  These courts have the capacity, if not directly, at least through the extensive enforcement powers of the State, to control matters that could materially affect the fairness of a trial.  It is a different matter for the International Tribunal.  The dilemma faced by this Tribunal is that, to hold trials, it must rely upon the cooperation of States without having the power to compel them to cooperate through enforcement measures.[8] The Tribunal must rely on the cooperation of States because evidence is often in the custody of a State and States can impede efforts made by counsel to find that evidence.  Moreover, without a police force, indictees can only be arrested or transferred to the International Tribunal through the cooperation of States or, pursuant to Sub-rule 59bis, through action by the Prosecution or the appropriate international bodies.  Lacking independent means of enforcement, the ultimate recourse available to the International Tribunal in the event of failure by a State to cooperate, in violation of its obligations under Article 29 of the Statute, is to report the non-compliance to the Security Council.[9]

52. In light of the above considerations, the Appeals Chamber is of the view that under 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.  This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.  The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.  Provisions under the Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side may have equal access to witnesses.  The Chambers are empowered to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.  This includes the power to:

(1) adopt witness protection measures, ranging from partial to full protection;

(2) take evidence by video-link or by way of deposition;

(3) summon witnesses and order their attendance;

(4) issue binding orders to States for, inter alia, the taking and production of evidence; and

(5) issue binding orders to States to assist a party or to summon a witness and order his or her attendance under the Rules.

A further important measure available in such circumstances is:

(6) for the President of the Tribunal to send, at the instance of the Trial Chamber, a request to the State authorities in question for their assistance in securing the attendance of a witness.

In addition, whenever the aforementioned measures have proved to be to no avail, a Chamber may, upon the request of a party or proprio motu:

(7) order that proceedings be adjourned or, if the circumstances so require, that they be stayed. 

[1] Article 14(1) of the ICCPR provides in part:  “All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […].”

[2] Article 6(1) of the ECHR provides in part:  “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

[3] Article 8(1) of the American Convention on Human Rights provides in part:

“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal or any other nature.”

[4] T. 29-35 (19 April 1999).

[5] Morael v. France, Communication No. 207/1986, 28 July 1989, U.N. Doc. CCPR/8/Add/1, 416.

[6] Robinson v. Jamaica, Communication No. 223/1987, 30 March 1989, U.N. Doc. CCPR/8/Add.1, 426.

[7] Wolf v. Panama, Communication No. 289/1988, 26 March 1992, U.N. Doc. CCPR/11/Add.1, 399.

[8] See “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, The Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-AR108bis, Appeals Chamber, 29 October 1997, para. 26.

[9] Ibid., para. 33.

Download full document
ICTR Statute Article 20(4)(b) ICTY Statute Article 21(4)(b)
Notion(s) Filing Case
Decision on Admissibility of Evidence - 16.02.1999 ALEKSOVSKI Zlatko
(IT-95-14/1-AR73)

23. Article 21 of the Statute […] has been interpreted in many Decisions of the Tribunal as having been based upon the well-known international law principle of "equality of arms". There has, however, been some difference of opinion expressed as to whether the principle relates only to the position of the accused – that is, that it provides merely that the accused is to be afforded the same rights as the Prosecution – or whether it relates to equality between both parties. […]

[…]

25. This application of the concept of a fair trial in favour of both parties is understandable […]. [I]t is difficult to see how a trial could ever be considered to be fair where the accused is favoured to the expense of the Prosecution […].

Download full document
ICTR Statute Article 20 ICTY Statute Article 21
Notion(s) Filing Case
Decision on Access - 16.05.2002 BLAŠKIĆ Tihomir
(IT-95-14-A)

19. […] Equality of arms is a broad concept that constitutes an inherent element of a fair trial. According to the principle of equality of arms each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent. It is a protection afforded to the accused to ensure that he is given procedural rights equal to those of the Prosecution in the course of criminal proceedings. Those procedural rights include giving the accused effective ways to challenge evidence produced by the Prosecution.

20. The principle of "equality of arms" inheres in the requirement that the accused be recognised the right to a fair trial. Basically, this principle embodies the notion that the accused should be afforded procedural equality with respect to the Prosecution. Its purpose is to give each party equal access to the processes of the Tribunal, or an equal opportunity to seek procedural relief where relief is needed.[4] The right to equality of arms does not include a right to equality of relief.[5] […]

[1] See Foucher v. France, 25 Eur. H.R.Rep. 234 para 34 (1997).

[2] See Prosecutor v. Aleksovski, Decision on Prosecutor's Appeal on Admissibility of Evidence, Case No. I-95-14/1-A, 16 February 1999, at paras 23-25. Where the Appeals Chamber refers to a number of judgements of the European Court of Human Rights that discuss the concept of the principle of equality of arms. The Appeals Chamber in Tadić held that “under 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.” Additionally, noting that the Chambers are empowered to issue any necessary orders, summonses, subpoenas, warrants, and transfer orders to aid an investigation or effectuate a trial, the Appeals Chamber determined that a Chamber therefore, “shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.” Prosecutor v. Duško Tadić, Judgement, Case No.: IT-94-1-A, 15 July 1999, at para 52.

[3] Niderost - Huber v. Switzerland, 1997 - I Eur. Ct. H.R. 101, 107 (1997).

[4] Prosecutor v. Duško Tadić, Judgement, Case No.: IT-94-1-A, 15 July 1999, at paras. 48,50, 51.

[5] Prosecutor v. Kordić, Decision on Application by Mario Čerkez for Extension of Time to File his Respondent’s Brief, 11 September 2001, paras. 7-9.

Download full document
Notion(s) Filing Case
Deposition Decision - 15.07.1999 KUPREŠKIĆ et al.
(IT-95-16-AR73.3)

24. […] [Article 21(4)(e)] serves to ensure that the accused is placed in a position of procedural equality in respect of obtaining the attendance and examination of witnesses with that of the Prosecution.  In other words, the same set of rules must apply to the right of the two parties to obtain the attendance and examination of witnesses.  It does not follow from Article 21(4)(e) that the application of the relevant rules has to result in the witnesses of the two parties giving evidence in exactly the same manner.  Thus, the Appellant’s understanding of his right as embodied in Article 21(4)(e) of the Statute appears to rest on a misconception when he contends that, since all the witnesses for the Prosecution were heard directly before the Trial Chamber, that gives him an automatic right to have all his witnesses heard directly before the Trial Chamber as well.

Download full document
ICTR Statute Article 20(4)(e) ICTY Statute Article 21(4)(e)
Notion(s) Filing Case
Appeal Judgement - 20.10.2010 KALIMANZIRA Callixte
(ICTR-05-88-A)

32. The Appeals Chamber can identify no error in the Trial Chamber’s decision not to postpone the commencement of trial in the absence of Kalimanzira’s lead counsel. As the Trial Chamber noted, the purpose of a co-counsel is not only to assist the lead counsel but indeed to conduct the case in order to allow the proceedings to continue in the event of an unforeseeable absence of the lead counsel. A review of the record reflects that the Trial Chamber was mindful of the additional difficulties that this situation imposed on the Defence and accommodated these by, inter alia, postponing the cross-examination of the first five witnesses.[1]

33. Significantly, Kalimanzira does not allege that Ms. Guissé’s performance was ineffective. Indeed, as noted above, the Trial Chamber acknowledged her competence both at the outset of the session and after its conclusion. Furthermore, the record indicates that Ms. Guissé was in fact in consultation with Mr. Vercken during the first trial session and sought his instruction.[2] Kalimanzira also did not seek the recall of any of the witnesses for further cross-examination on the basis of Ms. Guissé’s performance after Mr. Vercken’s return.

34. As to the disparity between the Prosecution and the Defence teams during this period, the Appeals Chamber has held that “the equality of arms principle requires a judicial body to ensure that neither party is put at a disadvantage when presenting its case.”[3] This principle does not require, however, material equality between the parties in terms of financial or human resources.[4] Therefore, there is no merit in Kalimanzira’s submission that his rights were violated simply because the Prosecution had a larger team of lawyers during this period.

[1] See supra [Callixte Kalimanzira’s Appeal Brief, 1 February 2010 (“Kalimanzira Appeal Brief”)] paras. 28, 29.

[2] See T. 20 May 2008 p. 59 (“Mr. President, at this point, I have a motion. And it's almost 5 p.m. I know under what special circumstances I find myself, and I would like to make use of the break, between today and tomorrow, to forward the transcripts of the hearings to my lead counsel so that he can send his observations to me. This is a witness who is testifying to a number of facts about Mr. Kalimanzira. And given the importance of this testimony, I pray you to grant this motion. And on the second point, maybe on a humanitarian – from a humanitarian standpoint, and to consider the work that the Defence has done over the past two days, and, Mr. President, sir, to grant me this half hour that I'm asking from the Chamber, once more, in view of the exceptional circumstances in which Mr. Kalimanzira Defence team [sic] finds itself, and to get the observations of my lead counsel, who is the one who is heading Mr. Kalimanzira's Defence, to repeat myself.”).

[3] Nahimana et al. Appeal Judgement, para. 173.

[4] Nahimana et al. Appeal Judgement, para. 220. See also Kayishema and Ruzindana Appeal Judgement, para. 69.

Download full document
Notion(s) Filing Case
Decision on Witness List - 21.08.2007 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-AR73)

26. The Appeals Chamber recalls that in the Karemera et al. case, it endorsed the following reasoning of the ICTY Appeals Chamber in the Orić case:

The Appeals Chamber has long recognised 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 obliges 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 [a]ccused 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. Defence strategy, by contrast, often focuses on poking specifically targeted holes in the Prosecution’s case, an endeavour 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.[3]

The Appeals Chamber considered that all parties were not entitled to call precisely equal numbers of witnesses and the Trial Chamber has the discretion to limit the number of witnesses a party may call. This discretion may be exercised pursuant to Rules 73bis and 73ter of the Rules. Where the Trial Chamber exercises this discretion, it must be subject to the full respect of the rights of the party concerned. In cases where an exercise of this discretion leads to a situation where one party has more witnesses than the other, this does not necessarily mean that the principle of equality of arms is violated.

[1] Prosecutor v. Édouard Karemera et al., Case No.ICTR-98-44-AR 15bis 3, Decision on Appeal Pursuant to Rule 15 bis (D), 20 April 2007, para. 27.

[2] Orić Decision.

[3] Orić Decision, para. 7 (internal footnotes omitted).

Download full document
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

67.     The right of an accused to a fair trial implies the principle of equality of arms between the Prosecution and the Defence[1]. The Appeals Chamber finds that the Trial Chamber rightly held that:

“The notion of equality of arms is laid down in Article 20 of the Statute. Specifically, Article 20(2) states, “… the accused shall be entitled to a fair and public hearing… Article 20(4) also provides, “…the accused shall be entitled to the following minimum guarantees, in full equality…,” then follows a series of rights that must be respected, including the right to a legal counsel and the right to have adequate time and facilities to prepare his or her defence.”[2]

[…]

69.     The Appeals Chamber observes in this regard that equality of arms between the Defence and the Prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources[3]. In deciding on the scope of the principle of equality of arms, ICTY Appeals Chamber in Tadić held that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case”[4].

[…]

73.     The Appeals Chamber concurs with ICTY Appeals Chamber's position expressed in Tadić, that the principle of equality of arms does not apply to “conditions, outside the control of a court”,[5] that prevented a party from securing the attendance of certain witnesses. […]

[1] Tadić Appeal Judgement, para. 48.

[2] Trial Judgement, para. 55.

[3] See, for example, Hentrich v. France, Eur. Court H. R., Judgement of 22 September 1994, para. 56.

[4] Tadić Appeal Judgement, para. 48, in which ICTY Appeals Chamber cites several cases brought before the European Commission on Human Rights.

[5] Tadić Appeal Judgement, para. 49.

Download full document
ICTR Statute Article 20 ICTY Statute Article 21