Rule 92 bis written statements/transcripts
|Decision on Rule 92 bis Evidence - 01.07.2010||
PRLIĆ et al.
31. The Appeals Chamber recalls that “every court possesses the inherent power to control the proceedings during the course of the trial”. Rule 73 ter of the Rules confers upon Trial Chambers the authority to determine the time allocated to the presentation of the defence case and the number of witnesses the defence may call. The Appeals Chamber does not see any reason why the application of this Rule should be limited to a Trial Chamber’s authority to determine the number of viva voce witnesses. The application of Rule 73 ter of the Rules extends to all categories of witnesses. However, a Trial Chamber’s authority to limit the number of witnesses allocated to the defence is “always subject to the general requirement that the rights of the accused pursuant to Article 21 of the Statute […] be respected”. Hence, a Trial Chamber is required to ensure that the number of witnesses it sets for the presentation of the defence case is sufficient to allow the accused a fair opportunity to present his case. The Appeals Chamber also recalls that it has previously held in this case that the Trial Chamber’s duty to ensure the fairness and expeditiousness of proceedings will often entail a delicate balancing of interests, particularly in a trial of this scope and complexity. Therefore, in the instant case, the Trial Chamber was required to consider, in light of the complexity and number of issues to be litigated, whether an appropriate balance was struck in reducing the number of Rule 92 bis witnesses that Praljak was allowed to present.
32. The Appeals Chamber observes that the same consideration applies to a Trial Chamber’s power to control the volume and length of Rule 92 bis material that a party can tender. A Trial Chamber is not inherently prohibited from exerting such control while exercising its discretion over the administration of trials. This is in line with Rule 90(F) of the Rules which confers upon Trial Chambers the authority to control the mode of presenting evidence. However, as stated by the Appeals Chamber, a Trial Chamber’s discretion in this regard is subject to its “obligation to respect the rights of an accused” and “must […] be exercised with caution, as it is, in principle, for both parties to structure their cases themselves”
36. Furthermore, the fact that Praljak was not granted the entire requested time [for the presentation of his defence case] does not in and of itself allow him to tender as many Rule 92 bis written statements or transcripts as he wishes. […].
37. […] Moreover, when written statements or transcripts containing an accused’s acts and conduct as charged in an indictment are tendered pursuant to Rule 92 bis of the Rules, Trial Chambers are not obliged to admit them pursuant to Rule 92 ter of the Rules requiring cross-examination. Taking this course of action is within a Trial Chamber’s discretion as long as the rights of the accused are protected.[…].
 Prlić et al. Appeal Decision of 11 May 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Following Trial Chamber’s Decision on Remand and Further Certification, 11 May 2007], para. 30 (emphasis in the original); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007 (“Prlić et al. Appeal Decision of 6 February 2007”), para. 14 (emphasis in the original).
 Rule 73 ter (E).
 Rule 73 ter (C). See also Orić Appeal Decision [Prosecutor v. Naser Orić, Case No. IT-03-68-AR73.2, Interlocutory Decision on Length of Defence Case, 20 July 2005], para. 8.
 Orić Appeal Decision, para. 8.
 Orić Appeal Decision, paras 8-9. See also Prlić et al. Appeal Decision of 1 July 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants [sic] Appeal Against “Décision portant attribution du temps à la Défense pour la présentation des moyens à décharge”, 1 July 2008], para. 16; Prlić et al. Appeal Decision of 11 May 2007, para. 29; Prlić et al. Appeal Decision of 6 February 2007, paras 14, 16.
 Prlić et al. Appeal Decision of 5 December 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.12, Decision on Slobodan Praljak’s Appeal of the Trial Chamber’s 13 October 2008 Order Limiting the Translation of Defence Evidence, 5 December 2008], para. 28; Prlić et al. Appeal Decision of 6 February 2007, para. 16.
 Cf. Prlić et al. Appeal Decision of 5 December 2008, para. 28, confirming the Trial Chamber’s application of Rule 90(F) of the Rules to its limitation on resources for translation available to Praljak.
 Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006 (“Galić Appeal Judgement”), para. 18, referring to Prosecutor v. Zdravko Tolimir, Radivoje Miletić & Milan Gvero, Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić's Interlocutory Appeal Against the Trial Chamber's Decision on Joinder of Accused, 27 January 2006, para. 29.
 Galić Appeal Judgement, para. 20.
 Rule 92 bis of the Rules provides in relevant part:
(A) A Trial Chamber may dispense with the attendance of a witness in person, and instead admit, in whole or in part, the evidence of a witness in the form of a written statement or a transcript of evidence, which was given by a witness in proceedings before the Tribunal, in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment […]
(C) The Trial Chamber shall decide, after hearing the parties, whether to require the witness to appear for cross-examination; if it does so decide, the provisions of Rule 92 ter shall apply (emphasis added).
Rule 92 ter of the Rules provides, in relevant part:
(A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement or transcript of evidence given by a witness in proceedings before the Tribunal, under the following conditions:
(i) the witness is present in court;
(ii) the witness is available for cross-examination and any questioning by the Judges […] (emphasis added).
 It follows that the Trial Chamber did not violate Article 21(1) of the Statute stipulating equality of all persons before the Tribunal. This provision does not mean that the treatment of every accused ought to be identical. The accused can be treated differently in light of their respective circumstances insofar as their rights are guaranteed.
Rule 92bis ICTY Rule Rule 73ter;