Judge Theodor Meron
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Wolfgang Schomburg
Mr Hans Holthuis
25 April 2005
DECISION ON INTERLOCUTORY APPEAL OF DECISION ON SECOND DEFENCE MOTION FOR ADJOURNMENT
Counsel for the Prosecutor:
Mr Mark B Harmon
Mr Alan Tieger
Mr Thomas Hannis
Counsel for the Defence:
Mr Nicholas Stewart, QC
Ms Chrissa Loukas
1. Following certification by the Trial Chamber pursuant to Rule 73(B),1 Defence Counsel for Momcilo Krajisnik (“Krajisnik Defence”) has filed this interlocutory appeal before the Appeals Chamber appealing the Trial Chamber’s decision on the second defence motion (“Motion”) for an adjournment (“Impugned Decision”).2
2. The interlocutory appeal is against the refusal of the Trial Chamber to grant the Krajisnik Defence a six month adjournment. The Krajisnik Defence argued before the Trial Chamber that this adjournment was necessary to ensure the fair trial of Krajisnik. It argued that it has had insufficient time and resources to prepare a defence to the minimum standard necessary, and that as the Prosecution case continues, it lags further behind. The Trial Chamber rejected the Motion, holding that the Krajisnik Defence had been given sufficient time and resources to prepare an adequate defence, and that it would have additional time to do so prior to the presentation of the defence case and during that presentation. In rendering the Impugned Decision the Trial Chamber stated that it would “continue to monitor the state of the Accused’s defence to ensure a fair trial.”3 The Krajisnik Defence advances twelve grounds of appeal against the Impugned Decision upon which it argues that the Trial Chamber erred or abused its discretion. It also argues that, taking into account all of the circumstances it presented to the Trial Chamber, the Impugned Decision is not one that any reasonable Trial Chamber could have reached.
3. The Krajisnik Defence has requested that this interlocutory appeal be dealt with by way of a public oral hearing in the presence of Momcilo Krajisnik.4 It claims that the factual background to the Motion is complex and that the Trial Chamber made numerous errors when dismissing the Motion. It says that it is extremely important for the Krajisnik Defence to be given an opportunity to make oral submissions to the Appeals Chamber to avoid the Appeals Chamber making similar or other factual errors and misunderstandings.5
4. It is not the ordinary practice of the Appeals Chamber to hear oral argument on interlocutory appeals. For the Appeals Chamber to depart from this practice it must be demonstrated that there are reasons why matters cannot be addressed effectively in writing.6 The Appeals Chamber is not satisfied that the Krajisnik Defence has demonstrated that there are such reasons in this interlocutory appeal and the application for an oral hearing is denied.
5. Pursuant to the Practice Direction on Procedure for the Filing of Written Submissions in Appeals Proceedings Before the International Tribunal,7 the reply of the Krajisnik Defence was due to be filed 4 days following the filing of the Prosecution response on 1 April 2005.8 The Krajisnik Defence filed its reply on 8 April 2005, three days later than it was due, and requested that the Appeals Chamber accept the reply as validly filed pursuant to Rule 127 of the Rules of Procedure and Evidence (“Rules”).9
6. For the Appeals Chamber to accept a late filing as validly filed, Rule 127 requires the moving party to show good cause. The Krajisnik Defence says that the reply was not timely filed because Counsel assumed that he had 7 days in which to reply to the Prosecution’s response, and that it is in the interests of justice for the Appeals Chamber to accept the filing. Erroneous assumptions by Counsel are not good cause justifying an extension of time pursuant to Rule 127 of the Rules. Furthermore, the Krajisnik Defence fails to offer any sufficient reason as to why the acceptance of its reply would be in the interests of justice other than the general statement that this interlocutory appeal addresses an “important issue.”10 For these reasons, the Appeals Chamber denies the request by the Krajisnik Defence to recognise its reply as validly filed.
7. The Impugned Decision of the Trial Chamber refusing the Krajisnik Motion for an adjournment is an exercise of judicial discretion.11 When reviewing a Trial Chamber’s exercise of discretion, the issue is not whether the Appeals Chamber agrees with the decision of the Trial Chamber but whether the Trial Chamber has properly exercised its discretion in reaching that decision.12 In order for the Appeals Chamber to interfere in the Trial Chamber’s exercise of its discretion, the Krajisnik Defence must identify a discernable error on the part of the Trial Chamber. The following constitute such discernible errors: that the Trial Chamber misdirected itself either as to the principle to be applied or as to the law relevant to the exercise of its discretion; took into account irrelevant considerations, or failed to take into account relevant considerations, or gave insufficient weight to relevant considerations; made an error as to the facts upon which it has exercised its discretion; or reached a decision that no reasonable Trial Chamber could have reached such that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.13 Only if the Krajisnik Defence is able to demonstrate such an error on the part of the Trial Chamber may the Appeals Chamber interfere with the decision of the Trial Chamber and, if it considers appropriate, substitute the Trial Chamber’s exercise of the discretion with its own.14
8. The Krajisnik Defence submitted in its Motion that the relevant enquiry to be undertaken by the Trial Chamber is “whether the Defence has had and will have adequate time to be prepared for the remainder of the trial so as to ensure that Krajisnik will receive a fair trial.”15 It claims that the Trial Chamber erred in concluding that the test it propounded was not “entirely accurate”.16 It says that it was not asking the Trial Chamber “to analyse Mr Krajisnik’s time and facilities ‘fully’ in terms of the question whether his ‘most recently appointed defence team’ has had the required time and facilities.”17 It argues that the word “Defence” does not exclude Krajisnik, but that where Counsel is inadequately prepared to present an effective defence that inadequacy cannot be remedied by “any separate knowledge or preparedness of Mr Krajisnik himself.”18 The Krajisnik Defence claims that this submission is consistent with the Chamber’s reference to “the entirety of the proceedings” in the Ocalan case.19
9. The Krajisnik Defence claims that the Trial Chamber also wrongly applied the findings of the Mayzit case,20 and that the Mayzit case cannot be compared to the situation of this case. It says that the Mayzit case correctly identified two stages to an accused’s opportunity to organise his defence: (i) The accused’s opportunity to obtain legal representation of his own choosing if he does not represent himself, and (ii) the opportunity of the legal representatives to effectively prepare and conduct his defence.21 The Krajisnik Defence claims that the European Court of Human Rights in the Mayzit case was dealing with the first stage, whereas the Motion here relates to the second stage.22
10. The Krajisnik Defence further argues that the opportunity for an accused to effectively prepare and conduct his case includes the ability of counsel to provide effective assistance to the preparation and conduct of the defence. “Thus, when an accused is represented by counsel, the accused as well as counsel must be afforded adequate time and facilities to be prepared at all times before and during the trial so as to enable his counsel to conduct his defence effectively.”23 The Krajisnik Defence says that the Trial Chamber noted that current counsel “have run Mr Krajisnik’s defence in a diligent and professional manner in all circumstances,” but failed to consider “or give sufficient weight to a necessary corollary of that stipulation, which is that the current defence team has used Mr Krajisnik in a diligent and professional manner as a link between the old and new defence teams.”24
11. The Krajisnik Defence also claims that the Trial Chamber failed to give sufficient consideration to the issue of whether the Defence is currently adequately prepared to conduct his defence in a manner which secures a fair trial. It says that calculations of times and facilities used to date are just one factor to be taken into account in determining that issue.25 It argues further that the Trial Chamber gave insufficient weight or no weight to a number of changes which occurred following the Trial Chamber’s issuing of its written decision rejecting the first motion for an adjournment in September 2004, (“September Decision ”) and since the Trial Chamber heard the Krajisnik Defence’s oral submissions in July 2004. These include the fact that (i) the Defence has had six further months to attempt to catch up with preparation to a reasonable level but has still been unable to do so; and (ii) the Prosecution case has proceeded further.26 The Krajisnik Defence claims that these changes “make it more dangerous then ever to deprive the Defence of adequate preparation time for the remainder of the Prosecution case.”27
12. In its Response, the Prosecution claims that the Krajisnik Defence does not actually demonstrate any legal error in the Trial Chamber’s identification and discussion of the “controlling test”, in that regard must be had to the entirety of the proceedings.28 It says that, with respect to the Trial Chamber’s use of the Mayzit case, the Trial Chamber did not discuss that case’s factual findings, but appropriately cited to the following legal principle from the judgement in a footnote: “The Accused must have had the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court, and thus to influence the outcome of the proceedings. The provision is violated only if this is made impossible.”29 The Prosecution argues that as a general concept this statement is unobjectionable and not limited to the factual matrix of the Mayzit case.30 It points out that the Krajisnik Defence itself relies upon this statement in support of its appeal.31
13. The Prosecution says the argument that the Trial Chamber failed to consider that the Krajisnik Defence has used Krajisnik professionally and diligently as a link between the old and new teams is not clear and does not show how the Trial Chamber is alleged to have abused its discretion.32
14. The Prosecution also rejects the Krajisnik Defence’s claim that the Trial Chamber failed to give sufficient consideration to the issue as to the current preparedness to conduct an effective defence. It argues that the Trial Chamber did give reasonable consideration in the Impugned Decision, and the September Decision, to the time and resources allocated to the defence case.33 Further, it says that the Trial Chamber did consider the time available to the defence during the six months time period in question, and did take into account the progress of the Prosecution case at the time it issued the Impugned Decision.34
15. The Appeals Chamber is not satisfied that the Trial Chamber erred in the legal test it applied in considering whether the defence has had and will have adequate time to prepare for the remainder of the trial so as to ensure that Krajisnik receives a fair trial. The Trial Chamber by its analysis also did not exclude Krajisnik as part of the defence, and thus any misunderstanding by the Trial Chamber of the submission made did not prevent the Trial Chamber from properly analysing the relevant factors.
16. The Appeals Chamber is also not satisfied that the Krajisnik Defence has shown any error by the Trial Chamber with respect to its reference to the Mayzit case. The Trial Chamber referenced that case to support its statement that, when regard is had to the entirety of the proceedings, “this means not only the time and facilities afforded to an accused’s most recently appointed defence team, but also, usually, to the time and facilities afforded to an accused himself or herself since the beginning of the case.”35 This is a general principle independent of the factual circumstances of the Mayzit case.
17. The Appeals Chamber also does not accept that the Trial Chamber failed to consider that the Krajisnik Defence did benefit from the accused as the link from the old and new defence teams. While the argument is not developed by the Krajisnik Defence, it appears that its claim is that even though it has had the benefit of the accused’s knowledge about his case, it has still been unable to adequately prepare his defence. Also, the Krajisnik Defence seems to argue that the fact that the accused may have knowledge about his case cannot rectify or make up for the fact that it has had insufficient time itself to prepare his defence.
18. The Trial Chamber clearly considered very closely the time that had been made available to the Krajisnik Defence and its submissions that the time was inadequate. While the Trial Chamber did place weight on the ability of Krajisnik to assist his defence, the capability of Krajisnik was a relevant consideration, which the Krajisnik Defence has itself conceded. However, the Appeals Chamber does not accept the claim of the Krajisnik Defence that the Trial Chamber abused its discretion by considering that the accused’s ability to assist could remedy an inability on the part of the appointed defence to represent the accused. The fact that the accused could assist the Krajisnik Defence in identifying the relevant issues of the defence was one factor taken into account by the Trial Chamber in considering whether or not the Krajisnik Defence had been accorded adequate time to prepare. There was no abuse of discretion on the part of the Trial Chamber in so doing.
19. The final claim of the Krajisnik Defence in relation to this ground of appeal is that the Trial Chamber failed to take into account or to give sufficient weight to relevant changes since the issuing of its September Decision and hearing of oral submissions in July 2004, namely that the Defence has had a further six months to catch up and has been unable to do so, and that the Prosecution case has proceeded further. Again the Appeals Chamber does not accept the argument of the Krajisnik Defence. The Trial Chamber heard supplementary and oral submissions for the Defence on 25 February 2005. It made clear that in the Impugned Decision it was considering what had changed since September 2004 “to make ground for another motion on the same point” and that the Defence argument was that “its preparation was seriously lagging in several areas.”36 The Appeals Chamber is satisfied that these considerations were at the forefront of the Trial Chamber’s consideration of the Motion.
20. The Krajisnik Defence says that the Trial Chamber’s calculation that it has had at least 141 full days for trial preparation since the start of the trial on 3 February 2004 was acknowledged by the Trial Chamber to be rough and incomplete.37 It argues that the Trial Chamber’s description of that time as being available for trial preparation is unrealistic, unless the Trial Chamber used that phrase to encompass all aspects of work on the case. The Krajisnik Defence argues that much of its time is taken up with other issues not directly related to trial preparation, such as preparation of the adjournment Motion, Rule 15bis issues and application for a new trial, other matters that normally would have been done pre-trial, communications and dealings with the Registry and team management issues.38 The Krajisnik Defence claims that consideration of these factors “casts a more detailed light on the Trial Chamber’s reference at paragraph 2 of the Decision to ‘a block of seven unplanned-for contiguous out-of-court weeks’.”39
21. The Krajisnik Defence argues that the Trial Chamber failed to properly consider that at all times a significant portion of lead and co-counsel’s time is taken up with matters that are not directly productive to evidentiary hearings, and that a significant part of Counsel’s time has, since 10 December 2004, been taken up with work that should have been done prior to the start of the trial.40 It claims that even this work was delayed because it had to await a massive amount of sorting of material by junior team members that continued until December 2004 and that trial schedule demands, including the application for a new trial, made it impracticable for counsel to commence that time-consuming work until late December 2004.
22. In its Response, the Prosecution says that there is nothing in the Impugned Decision to suggest that the Trial Chamber assumed that all of defence counsel’s time would be spent preparing for evidentiary hearings, or that the Trial Chamber did not take into account the fact that defence counsel would spend part of their time catching up on other tasks relevant to the defence case. As such, the Krajisnik Defence has failed to identify any error in the Trial Chamber’s exercise of its discretion.41
23. The Appeals Chamber is satisfied that the Trial Chamber gave sufficient weight to the arguments of the Defence that they were having difficulty in catching up with work which should have been completed pre-trial. In the Impugned Decision the Trial Chamber noted that since the Trial commenced, the Krajisnik Defence has had several thousand out-of-court hours available to it to prepare. The Trial Chamber also noted that the transfer of case materials from the old team to the new team had been problematic, in that there were communication delays and the material was in a disorderly state and that it had always taken these difficulties into account and “had adjusted the start and pace of the trial accordingly.”42 The Trial Chamber considered the submission that counsel had been able to read only 15% of the documents between them, which it calculated as representing 38% of the English collection, a finding that is not challenged by Counsel. The Trial Chamber further considered the specific areas in which the Krajisnik Defence claimed to be insufficiently prepared. It reasonably found that adequate time had been allowed for preparation of cross examination of witnesses, and that in other areas the Krajisnik Defence would have sufficient time during preparation of the defence case, and in the presentation of it, to prepare adequately.43 The Appeals Chamber is not satisfied that the Krajisnik Defence has identified any abuse of discretion in the reasoning of the Trial Chamber.
24. The Krajisnik Defence claims that the Trial Chamber attached no separate or sufficient weight to the Defence submission that the lack of time and facilities has resulted in the Defence being unable to adequately formulate a defence strategy, instead finding that the Defence did not elaborate on this point in its Motion, and that the point was already considered in other parts of the Impugned Decision. The Krajisnik Defence says that this is a critical matter which is on its own a sufficient justification for the grant of a significant adjournment.44
25. The Krajisnik Defence argues that the Trial Chamber did not say that it rejected this assertion in the Motion and it could not reasonably have done so. It argues that this factor, coupled with the stipulation of the Trial Chamber in paragraph 10 of the Impugned Decision, “Sthe DefenceC has run Mr Krajisnik’s defence in a diligent and professional manner in all circumstances,”45 means that if the trial continues without a substantial adjournment, the development of an adequate defence strategy “will never be done in time (except by sacrificing other essential tasks, so that he does not receive an adequate defence and a fair trial anyway.)”46
26. The Krajisnik Defence argues that the Trial Chamber could not have expected it to elaborate on the development of a defence strategy as this matter is “at the heart of confidential conduct of the defence case” and that it is a critical issue which has not been given sufficient weight in the Trial Chambers decision.47
27. In its Response, the Prosecution says that the Krajisnik Defence has not indicated why it has not been able to find time to produce a working strategy and that it is reasonable to expect that it would have used some of the time available to it prior to trial or during one of the adjournments in the case to do so.48 The Prosecution argues further that an explanation of the failure to produce a strategy does not necessarily require revelation of the details of that strategy and that the Defence is required by Rule 65 ter of the Rules to file prior to trial a pre-trial brief containing “in general terms the nature of the Accused’s defence.”49
28. The Trial Chamber did not address this submission separately in the Impugned Decision but dismissed it as not elaborated and as not raising any new issue not already covered in other parts of the decision.50 However, the Appeals Chamber is not satisfied that the Trial Chamber abused its discretion by taking this approach. It is fundamental that the preparation of the Krajisnik Defence will necessarily be directed by a defence strategy and it is clear from the Impugned Decision that the Trial Chamber considered that any trial preparation would necessarily be carried out pursuant to the defence strategy.51
29. The Appeals Chamber does not accept that the Trial Chamber abused its discretion in considering that the issue of time to prepare an adequate defence strategy was tied to other issues relating to trial preparation in general. The defence strategy will both inform the use of evidence and itself be informed by the evidence found to be available. A defence strategy can also be expected to be developed and refined in light of the case presented by the Prosecution as that case unfolds. Accordingly, if the Defence has not had sufficient time at this juncture to prepare an adequate strategy; it should allocate its available time to that task prior to the presentation of its own case, when it has the benefit of having heard the Prosecution case in its entirety.
30. The Krajisnik Defence claims that the Trial Chamber placed undue weight on the fact that the first defence team billed in excess of 26,500 hours for case preparation. It says that the Trial Chamber was aware of the “serious deficiencies of Mr Krajisnik’s previous defence team” and it was incorrect to make any inference that the hours billed by the previous defence team are directly reflected in productive work for the Defence. It argues further that any benefit that may have been gained by Mr Krajisnik from the work of his first team “has been seriously insufficient and does not alter the factual position as it is now.”52
31. The Krajisnik Defence argues that unless Mr Krajisnik himself is to blame for the ineffective use of hours by the previous defence team, a position not supported by the material before the Trial Chamber, the hours billed by the previous defence team can be given no weight at all. It claims that so far as the hours billed by the previous defence team might have led to an inference of adequate preparation for trial, that presumption is rebutted by the only reasonable conclusion on the facts, that the defence is not adequately prepared for the trial.53
32. In its Response, the Prosecution claims that the Trial Chamber noted that the previous defence team had billed in excess of 26,500 hours for trial preparation and, as the Trial Chamber stated its awareness of the “serious deficiencies” of Mr Krajisnik’s previous defence team, its reference to those hours previously billed was not inappropriate and does not show that the Trial Chamber placed undue reliance upon this fact.54
33. In the Impugned Decision, the Trial Chamber, in noting the amount of hours billed for case preparation by the previous defence team, also noted that the transfer of case materials from the old team to the new team was problematic for the new defence team.55 What the Trial Chamber further considered, however, was that there had been no submission that the Accused himself did not benefit from the work of the first defence team and that there was no doubt that the Accused was in a position to serve as an important link between the old and new teams. As such, the Appeals Chamber is not satisfied that the Trial Chamber abused its discretion by placing undue weight upon the hours billed by the previous defence team, or that it was in error to place some weight on this factor. The Krajisnik Defence does not dispute that the Accused would have received some benefit from his first defence team or that the Krajisnik Defence has used the Accused and his knowledge of his case in the preparation of his defence. In fact, one of the complaints made by the Krajisnik Defence is that the Trial Chamber did not adequately consider how it had made use of Mr Krajisnik as a link between the old and new teams.
34. The Krajisnik Defence claims that the Trial Chamber’s speculation that they “may not have had the full cooperation of the Accused at all times” is not supported by any evidence that would permit the Trial Chamber to conclude that Mr Krajisnik has done less than could be expected to assist his present counsel, or that he has acted deliberately or unreasonably to undermine the work of his previous defence counsel.56
35. In Response, the Prosecution says that the Krajisnik Defence does not identify any error or abuse of discretion by the Trial Chamber in including this observation in the Impugned Decision.57
36. The Trial Chamber made the observation that the Krajisnik Defence may not always have had the full cooperation of the accused in the Impugned Decision as part of its acknowledgement of some of the difficulties faced by the Krajisnik Defence. However, elsewhere in the Impugned Decision it did emphasise the assistance that the Accused could provide the Defence. Thus the observation does not appear to have been accorded any weight by the Trial Chamber in the Impugned Decision.
37. The Krajisnik Defence argues that the Trial Chamber observed in the Impugned Decision that the Motion did not “clearly distinguish between documents disclosed as central to the Prosecution’s case and routine disclosures of exculpatory and other relevant material” and that “it is not clear from the motion what overlap or repetition there is in the reams of documents cited.”58 It says that this lack of clarity is a consequence of the position in which the Defence now finds itself. It argues that the Trial Chamber’s description of some disclosures as “routine” places insufficient weight on the fact that documents not central to the case still require careful sorting to make sure that no relevant material is overlooked and it is difficult to determine what material is relevant when overall preparation is inadequate.59
38. The Krajisnik Defence refers to the finding in the Impugned Decision that the Defence has read 38% of the English collection and the comment of the Trial Chamber that this “is not insignificant progress”.60 It argues that this description is a “manifestly unreasonable view” which seriously fails to take into account the risks for the adequacy of Mr Krajisnik’s Defence in light of the fact that, more than one year after the trial, the Defence has not had the time to read the remaining 62% of the English collection. This is in circumstances where the Prosecution case is projected to end in approximately four months.61
39. The Krajisnik Defence refers to the Trial Chamber’s finding that it was not persuaded that defence counsel must be given the necessary time and facilities to “serially peruse the collected material for there to be a fair trial,” its reference to “labour-saving strategies, documentation and technologies which zero in on material relevant to the strategy,” its emphasis on the fact that disclosure by the Prosecution has been organised in various ways, and its statement that the progress of the trial has assisted in the identification of contested and uncontested issues. It claims that this reasoning “clearly does not apply the stipulation that the Defence have run Mr Krajisnik’s defence in a diligent and professional manner in all the circumstances.”62
40. The Krajisnik Defence argues further that the Trial Chamber appears to reject the “safe minimum level” standard which is put forward by the Krajisnik Defence as being necessary to ensure a fair trial. It argues that the “safe minimum level ” is a comprehensible phrase which indicates an incontrovertible standard. It argues that the rejection by the Trial Chamber of this standard means that the Krajisnik Defence is expected to continue conducting the defence where there is “an appreciable risk that Mr Krajisnik’s overall defence (that is to say, during the remainder of the Prosecution case and thereafter) will fall below what is necessary to ensure that he receives a fair trial.”63
41. In its Response, the Prosecution refers the Appeals Chamber to the oral submissions made by it to the Trial Chamber. The submissions related to the efforts made by the Prosecution to assist the Defence in being able to quickly search for and retrieve relevant items within the material disclosed to the Defence. The Prosecution also claims that while it had disclosed a considerable quantity of material in this case, much of that material had already been disclosed in a non-electronic form. The Prosecution claims further that almost half of the material disclosed to the Defence are witness statements and other documents relating to witnesses the Prosecution was ordered to remove from its witness list, and that it is the Prosecution’s practice in this case to identify and disclose to the Defence prior to the appearance of the relevant witness potential exhibits which might be relied upon.64 The Prosecution says that against the backdrop of these circumstances, and coupled with the “sophisticated electronic search tools available to counsel,” the Trial Chamber did not abuse its discretion by its findings in the Impugned Decision.65
42. The Appeals Chamber is not satisfied that the Trial Chamber failed to place sufficient weight on the difficulties that the Krajisnik Defence has been having in organising and reading all the material disclosed to it. The reason why the Trial Chamber was not persuaded that these difficulties justified the adjournment sought was not just because of the labour-saving devices at the disposal of the Defence, but also because the Defence would be aided by the knowledge of the accused himself. That is, the Trial Chamber was not persuaded that it was essential to the fair trial of the accused that all the available material be considered by Counsel, because the knowledge of the accused will assist the Defence in identifying what material is relevant to the defence.66 There is no discernible abuse of discretion in the approach of the Trial Chamber.
43. The Krajisnik Defence argues that the Trial Chamber incorrectly assumed that it did not have the benefit of three additional full-time support staff by its statement that Mr Krajisnik is “assumed to be employing very nearly three additional full- time support staff (at the Registry’s rate of US$3,600 per month per one support staff person) since the commencement of the trial, and indeed, up until the end of the trial.”67 It claims that is has retained three full-time investigators in Republika Srpska since the beginning of the trial, but that they are support staff without legal qualifications. As such, they cannot be expected to have carried out the task of interviewing witnesses without counsel being directly involved. It claims that it has only had time to dedicate eight hours to interviewing witnesses in Bosnia, and that it will be impossible for counsel to have sufficient direct involvement without a substantial adjournment.68
44. The Krajisnik Defence argues further that the issue of interviewing witnesses is more than an issue of distribution of work among team members. It argues that it does not matter how much work in Bosnia is allocated to other team members; more counsel time is required than will be possible unless a substantial adjournment is granted. It claims that by dealing with its submission by reference to the financial position, the Trial Chamber failed to give any or sufficient weight to the real issue: that defence counsel do not have anywhere near adequate time to carry out all their non-delegable essential tasks.69
45. In response, the Prosecution argues that this ground of appeal involves matters of general case management, staffing and deployment of resources. It says that these are all matters involving decisions as to the distribution of resources and are within the discretion of the defence team. It says that the Trial Chamber’s consideration of these issues shows no error or abuse of discretion.70
46. The Appeals Chamber is not satisfied that the Krajisnik Defence has identified any abuse of discretion in the approach taken by the Trial Chamber. The Trial Chamber’s reference to the financial means available to the Defence was made to illustrate that the Defence is assumed to have available funds to retain sufficient field assistance. On the basis of the funds that should be available, counsel has had the benefit of a minimum of 3,675 hours for the identification and interviewing of witnesses since 3 February 2004.71 If, however, those funds were not being made available because Mr Krajisnik were withholding his assessed contribution, he could not complain if he receives less service from his defence team.72
47. There was also no abuse of discretion in the Trial Chamber’s consideration of this issue as being one of work distribution among members of the defence team, of which the Chamber generally should not be concerned.73
48. The Krajisnik Defence claims that the Trial Chamber erred by stating in response to
its submission regarding the impact of a lack of time and facilities on its ability to identify and interview experts that “it will not be drawn into an issue arising from time-management choices made by the Accused’s team.”74 The Krajisnik Defence claims that this misstates the point. It argues that Defence’s difficulties in preparing expert evidence are an important illustration of the fundamental problem, “which is that whatever time-management choices have been or could alternatively have been made, it has been and always would have been impossible for the Defence to cover all the essential tasks to bring Mr Krajisnik’s defence to an adequate state where a very substantial adjournment would not be needed now.”75
49. The Krajisnik Defence also claims that the statement by the Trial Chamber that “the motion indicates that around 110 co-counsel hours have been spent on reviewing the state of expert evidence,” is a misstatement of the Motion and the facts. It claims that these 110 co-counsel hours were spent on the particular review identified and that both Counsel have spent a lot more time than that on experts, but this is still less than is actually required.76
50. The Krajisnik Defence further argues that the Trial Chamber’s conclusion that it would be possible for the Defence to regain lost ground during the presentation of the Defence case is objectionable on at least three grounds: “(i) it fails to attach sufficient weight to its own correct implication that not all the lost ground can be regained; (ii) it fails to attach sufficient weight to how much ground has been lost and how difficult it will be to find time to recover that ground; and (iii) the Prosecution case will move from the half-way mark to the three-quarter mark and then to completion before the Defence has any serious opportunity of making up lost ground given the other demands of the case on lead and co-counsel.” 77 It claims that some of that ground can be recovered only by continuing to sacrifice other essential tasks.78
51. In its Response, the Prosecution relies on the arguments it made in relation to the preceding ground of appeal that the issue was essentially one of general case management solely within the discretion of the defence team and that the Trial Chamber’s consideration discloses no error.79
52. The Appeals Chamber is not satisfied that the Krajisnik Defence has identified any abuse of discretion in the Trial Chamber’s consideration of its submission in relation to expert evidence. The Trial Chamber considered the submission that the Defence had not yet had the benefit of expert comment on the Prosecution evidence as it had insufficient time to identify or interview experts and that the Motion suggested that around 110 co-counsel hours had been spent on reviewing the state of expert evidence.80 The Trial Chamber agreed that the issue was of importance but that the factor was not relevant in considering the need of an adjournment. This was because it was up to the Krajisnik Defence to make realistic use of the time available for preparation, and to find a proper balance between the apportionment of tasks. There was no abuse of discretion on the part of the Trial Chamber in considering further that it was possible for the Defence to gain lost ground during the presentation of its case, or that the issue was one arising from time-management choices made by the Accused’s team.81
53. The Krajisnik Defence argues that the Trial Chamber concluded that Mr Krajisnik’s withholding of his assessed contribution to the defence team had significantly contributed to the defence team’s falling behind in locating and interviewing witnesses.82 The Krajisnik Defence says that while Mr Krajisnik has not been paying his contribution, the Trial Chamber was not justified in assuming that the work that would have been paid for by that contribution has not been done without making further inquiries of the Defence. It claims that much of that work has continued since the beginning of trial. Regardless, the Krajisnik Defence argues that the Trial Chamber wrongly concluded that it is the non-payment of Mr Krajisnik’s contribution that has caused insufficient counsel time to be allocated to witness interviews. It says that the problem is the inability of the two counsel to find the time to deal with that task in addition to other essential tasks.83
54. The Krajisnik Defence says that even if Mr Krajisnik had paid his full contribution at all times so that Counsel had those funds available to it, those funds would not, in any event, have reasonably supported a third counsel on the defence team.84
55. In its Response the Prosecution argues that the Trial Chamber’s inference is a reasonable one to draw from the fact that Krajisnik has decided not to pay his assessed contribution. If he did pay, the defence team would have more resources with which to prepare his defence. As such, no abuse of discretion exists in the Trial Chamber’s observations.85
56. The Appeals Chamber is not satisfied that the Trial Chamber abused its discretion in considering the possible impact of non-payment of the assessed contribution by Mr Krajisnik on his Defence. In its Motion to the Trial Chamber the Krajisnik Defence submitted that “there have been problems over Mr Krajisnik’s assessed contribution to his defence costs. STheseC problems have not aggravated to any appreciable degree the difficulties for the defence team in The Hague in getting on top of this case as quickly as they reasonably can.”86 As the Krajisnik Defence also informed the Trial Chamber “that all of the Accused’s legal aid allocation is spent on staff based at The Hague,”87 a reasonable inference was that there were difficulties with respect to payment of support staff not located in The Hague. While Counsel claim that work has continued regardless of payment, a rather suprising submission, the Trial Chamber committed no abuse of discretion in observing that possible non-payment by the Accused of his assessed contribution could have an impact on the resources available for preparation. Furthermore, the Appeals Chamber notes that the Trial Chamber did not conclude that actual non-payment was responsible for the submitted difficulties of adequate preparation.88
57. The Krajisnik Defence claims that in response to its submission that a lack of time and facilities also has meant that taking adequate instructions from Mr Krajisnik has been hindered by counsel’s inadequate knowledge of the material in the case, the Trial Chamber erred in stating that “the Accused has the knowledge, capacity, and opportunity to give adequate instructions to his counsel.”89 The Krajisnik Defence claims that the Trial Chamber should have included the caveat that Mr Krajisnik will face difficulties using his knowledge and capabilities in an effective manner without guidance from his counsel and that, the Trial Chamber erred in referring to opportunity “because it fails to give any or any sufficient weight to the fact that very substantial amount of counsel’s time is needed for Mr Krajisnik to be able to use that opportunity adequately.”90
58. In response, the Prosecution claims that in the part of the Impugned Decision referred to by the Krajisnik Defence, the Trial Chamber specifically referred to its preceding discussion: “Realistic use must be made of the time available for preparation, and if the Accused and his counsel decide to apportion this time in one way rather than another, it is for the Defence to find a proper balance along the way…The Chamber will not be drawn into an issue arising from time-management choices made by the Accused’s team,”91 and that this is a reasonable position for the Trial Chamber to have taken. It says that the amount of time the Krajisnik Defence allocates to taking instructions from Mr Krajisnik is a matter for the Krajisnik Defence, and that the Trial Chamber’s decision not to interfere with that apportionment of time was not unreasonable and discloses no abuse of discretion.92
59. The Appeals Chamber is not satisfied that the Trial Chamber erred by considering that counsel for the accused had the opportunity to consult with their client. The Trial Chamber had already identified the out-of-court time that had been made available to the Krajisnik Defence and satisfied itself that this was a reasonable amount of time for the Krajisnik Defence to adequately prepare for this case.93 The issue as to what apportionment of that time the Krajisnik Defence should allocate to taking instructions from its client is an issue related to the management of the defence team, which is not something that the Trial Chamber should interfere with. As such, there was no abuse of discretion in the Trial Chamber’s consideration of this submission.
60. The Krajisnik Defence argues that the Trial Chamber misunderstood the Defence’s submissions regarding the language difficulties in preparing the defence by concluding that they “seem to be about staffing issues.”94 It argues that this failure to give sufficient weight to the practical effects of the language difficulties in this case constitutes an error on the part of the Trial Chamber. It says that whatever the composition and balance of the overall defence team, the language issue is and will remain a major consideration in the handling of Mr Krajisnik’s case. The more active Mr Krajisnik is in his defence, the more resources will be needed to facilitate this communication. It argues that the Trial Chamber’s decision to reject the application for trial transcripts to be made available in the language of the accused increases the burden on Mr Krajisnik as he has to work from tapes.95
61. In its Response the Prosecution refers to the arguments made in relation to the other grounds of appeal it says concern issues of Defence discretion and the distribution of resources.96
62. The Appeals Chamber is not satisfied that the Krajisnik Defence has identified any error in the Trial Chamber’s exercise of its discretion by treating this issue as being one related to staffing, namely, the availability of a BCS speaker on the team.97 There was no error in the conclusion of the Trial Chamber that an adjournment would not solve this issue where the Trial Chamber has already determined that sufficient time has been made available to the Krajisnik Defence to prepare the defence of this case.
63. In conclusion, the Krajisnik Defence argues that the Trial Chamber erred in not granting a substantial adjournment, arguing that “all other difficulties of time and resources are insignificant in relation to the problem of the two assigned counsel finding sufficient time to do the minimum essential tasks required to be carried out by one or the other (or sometimes both) of them personally.”98 It claims that the material provided to the Trial Chamber does not reasonably support any other conclusion and the Decision is not within the boundaries of reasonable exercise of judicial discretion.99 It argues that the only reasonable conclusion available to the Trial Chamber, even assuming full contribution from Mr Krajisnik at all times, is that on the existing financial resources there could only be two counsel assigned to conduct the defence, and that without a substantial adjournment it will be impossible for them to conduct the defence of Mr Krajisnik adequately to ensure that he receives a fair trial.100
64. In its Response, the Prosecution says that this ground is a summary of arguments contained elsewhere and that it identifies no particular abuse of discretion.101
65. Having identified no discernible error in the decision of the Trial Chamber, the Appeals Chamber is not persuaded that the Impugned Decision is a decision that no reasonable Chamber could have reached. The Trial Chamber is in the best position to determine whether the Defence has been given adequate time and facilities to prepare for the defence of a case, having supervised the proceedings since their commencement. The Impugned Decision took account of all of the submissions made by the Krajisnik Defence and in rejecting those submissions was guided by the appropriate legal principles. As such, the resulting decision to reject the Motion was not so unreasonable as to permit the Appeals Chamber to draw an inference of abuse of discretion on the part of the Trial Chamber.
66. The interlocutory appeal of the Krajisnik Defence is dismissed.
Done in English and French, the English text being authoritative.
Dated this 25th day of April 2005,
At The Hague,
Judge Theodor Meron
[Seal of the Tribunal]