The Appeals Chamber found that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of certain Prosecution witnesses.
The majority opined that the Trial Chamber placed undue emphasis on ensuring that the Prosecution took no more than its pre-allotted time to present its case, and that the Trial Chamber’s deadlines for presenting evidence were respected, irrespective of the possibility of securing the testimony of two key witnesses.
The majority concluded that the Trial Chamber failed to take sufficient steps to counter the witness intimidation. Given the potential importance of these witnesses to the Prosecution’s case, the error, in the majority view, undermined the fairness of the proceedings and resulted in a miscarriage of justice.
In its Partially Dissenting Opinion, the presiding judge Robinson (the President of the Tribunal) opined that these findings of the majority bring into question the limits of the trial and appellate functions.
The judge disagreed with the majority for several reasons.
First, the judge noted that, in effect, the majority approached the appeal by asking whether the Trial Chamber could have done more to assist the Prosecution in securing the attendance of its witnesses, when the relevant area of inquiry was whether, in light of all the circumstances, what it did was reasonable.
The judge recalled that in this case, the Trial Chamber thrice extended the time for the Prosecution to present its case. It did so because it wanted to provide the Prosecution as much time as possible to secure the attendance of these important witnesses.
Second, in the judge’s view, what the majority opinion amounts to a substitution of its own discretion for the discretion exercised by the Trial Chamber, and that can only be done where a discernible error on the part of the Trial Chamber can be demonstrated.
The judge opined that the majority opinion constitutes an overstepping by the Appeals Chamber of its boundaries. According to the judge, this is a dangerous precedent, which militates against the proper discharge by the Tribunal of its mandate.
Haradinaj et al., Judgement, Case No. IT-04-84-A, App. Ch., 19 July 2010.