(a)     The joint trial of the cases of the Prosecutor v Nyiramasuhuko and five other Accused[1] (the ‘Butare Cases’) started on 12 June 2001 before Judge William H SEKULE, Presiding, Judge Winston C Matanzima MAQUTU, and Judge Arlette RAMAROSON;

(b)    Following the elections of the Tribunal’s judges at the UN General Assembly on 31 January 2003 for the new mandate beginning on 25 May 2003, Judge Maqutu was not re-elected, with his term of office due to expire on 24 May 2003;

(c)     On 26 March 2003, President Navanethem PILLAY (as she then was) wrote to the UN Secretary-General for purposes of requesting the Security Council to, among other things, extend Judge Maqutu’s term at the Tribunal in order to enable him finish the trial of the Butare Cases, the Kamuhanda Case and the Kajelijeli Case, all of which are part-heard trials on the panel of which Judge Maqutu sat;

(d)    In the meantime, in an urgent communication dated 1 May 2003, President Pillay caused the Defence Counsel in the Butare Cases to be asked whether they would give their consent to the possible substitution of a new judge to replace Judge Maqutu, under the old Rule 15bis(C), for purposes of continuing the trial of the Butare Cases;

(e)     In their responses to President Pillay’s communication of 1 May 2003, none of the Accused gave the consent in question;

(f)      On 19 May 2003, the Security Council passed Resolution 1482, inter alia, extending Judge Maqutu’s term for purposes of finishing only the Kamuhanda and the Kajelijeli trials—but not the Butare trial;

(g)     In his capacity as the Presiding Judge in the Butare Cases, Judge Sekule formally reported to President Pillay on 21 May 2003 that as of 24 May 2003 Judge Maqutu would be unable to sit in the Butare Cases as his mandate for that case would expire on that date;

(h)     On 26 May 2003, Judge Erik MØSE was elected the new President of the Tribunal, following the expiry of the tenure of Judge Pillay as President; 

(i)       On 27 May 2003, Rule 15bis was amended, empowering the remaining judges of a Trial Chamber, under the new Rule 15bis(D), to decide to continue a part-heard trial with a substitute judge if, taking all the circumstances into account, they determined unanimously that it served the interest of justice so to continue;

(j)      On 28 May 2003, President Møse authorised the Trial Chamber to conduct routine matters, in conformity with Rule 15bis(F);

(k)    Also on 28 May 2003, acting in his capacity as the Presiding Judge in the Butare Cases, Judge Sekule caused the Parties in the case to be informed that the resumption of the proceedings for the session of 9 June 2003 to 10 July 2003 would not take place as earlier scheduled and, therefore, Counsel should not come to Arusha and witnesses not be brought; and that the Parties would be informed in due course of any further scheduling;

(l)       On 6 June 2003, President Møse wrote enquiring whether the Parties would be willing to reconsider their position and consent to a continuation of the trial with a judge replacing Judge Maqutu, in view of the fact that the Security Council had actually, finally declined to extend Judge Maqutu’s mandate for purposes of finishing the trial of the Butare Cases. And on 10 June 2003, President Møse supplemented his communication of 6 June 2003 by requiring the Parties to communicate their position by 16 June 2003;

(m)   In response to President Møse’s communication of 6 June 2003 (as amended on 10 June 2003), Defence Counsel for the Accused Sylvain NSABIMANA and the Prosecution indicated their consent to continue the trial with a substitute judge, one Defence Counsel did not consent, while the other Defence Counsel stated that the question posed to them was so important that they would need to consult extensively with their clients before making a decision;

(n)     On 19 June 2003, President Møse communicated to Counsel an extension of time (to 25 June 2003) within which to indicate their positions, as well as his assurances that the administrators of the UN Detention Facility in Arusha would extend reasonable cooperation to Counsel, in order to enable Counsel to consult with their clients by telephone. According to President Møse, the financial costs of a visit by Defence Counsel to the UNDF to have face-to-face discussions with their clients would be very high, noting that it would appear sufficient that arrangements are made to ensure ample time for consultations (by telephone) between Counsel and client;

(o)    In the meantime, certain Defence Counsel filed motions, with the Prosecution responding to at least one of those motions, engaging the question of the jurisdiction of the Chamber to proceed in the circumstances;

(p)    On 25 June 2003, in view of the motions of the Parties indicated above, Judge Sekule caused the Parties to be informed that pending the decision on which way to go under Rule 15bis, other proceedings in the case are at a standstill; and that the Parties would be informed of any further scheduling in respect of these cases;

(q)    On 26 June 2003, President Møse communicated to Judge Sekule and Judge Ramaroson (the ‘Remaining Judges’ in the trial) that only one of the six Accused gave consent to continue the trial with a substitute judge, while the remaining five Accused were opposed to continuing the trial in that manner;

(r)      On the same 26 June 2003, Presiding Judge Sekule and Judge Ramaroson issued a Scheduling Order, inviting submissions from the Parties on whether or not it is in the interest of justice to continue the trial with a substitute judge under Rule 15bis(D);

(s)     On 3 July 2003, Presiding Judge Sekule and Judge Ramaroson issued a Further Scheduling Order clarifying that there was not yet a decision on the        question whether the amended Rule 15bis(D) is applicable to the Butare Case in the present circumstances: this Further Scheduling Order was necessitated by certain processes filed since the Scheduling Order of 26 June 2003 in which it had been submitted that the Scheduling Order of 26 June 2003 warranted the conclusion that the Chamber had settled the question whether the new Rule 15bis(D) applies for purposes of that Scheduling Order, thereby rendering that particular question moot;

(i)      Ntahobali’s ‘Soumissions à la Chambre II faisant suite au “Scheduling Order in the Matter of Proceedings Under Rule 15bis(D)”’ filed on 3 July 2003;

(ii)      Ntahobali’s ‘Réponse à la requête de Pauline Nyiramasuhuko en arrêt des procédures pour abus de procédures (délais déraisonnables et procès inéquitable)’ filed on 3 July 2003, in which he subscribes to the submissions made by Nteziryayo, Ndayambaje and Nyiramasuhuko, without identifying the particular documents containing those submissions;

(iii)     Ntahobali’s ‘Requête d’extreme urgence d’Arsène Shalom Ntahobali visant l’arrêt des procedures et en déclaration de non applicabilité du nouvel amendement à l’article 15bis du règlement’ filed on 1 July 2003 ;

(iv)     Nteziryayo’s ‘Réponse d’Alphonse Nteziryayo au Scheduling Order in the Matter of Proceedings under Rule 15bis(D)’ filed on 30 June 2003;

(v)      Nteziryayo’s ‘Requête en extrême urgence d’Alphonse Nteziryayo aux fins de faire déclarer que l’article 15bis(C) et (D) du règlement de procédure et de preuve tel qu’amendé le 27 mai 2003 ne lui est pas opposable et requête, en conséquence, d’une ordonnance de recommencement du procès’ filed on 24 June 2003;

(vi)    Nyramasuhuko’s ‘Requête de Pauline Nyiramasuhuko en arrêt des procédures pour abus de procédures (délais déraisonnables et procès inéquitable)’ filed on 25 June 2003;

(vii)    Nyramasuhuko’s ‘Requête de Pauline Nyiramasuhuko aux fins de constater l’absence de juridiction sur sa personne et d’ordonner l’arrêt des procédures’ filed on 27 June 2003;

(viii)    Ndayambaje’s ‘Réponse d’Elie Ndayambaje au “Scheduling Order in the Matter of Proceedings Under Rule 15bis(D)”’ filed on 3 July 2003, in which Ndayambaje reiterated his submissions in his ‘Requête afin de reconnaître l’illégalité de la non prolongation du mandat du juge Winston Churchill M. Maqutu et afin de déclarer l’article 15bis(D) tel qu’amendé le 27 mai 2003, non applicable à la situation actuelle du requérant’ filed on 24 June 2003;

(ix)     Ndayambaje’s ‘Requête afin de reconnaître l’illégalité de la non prolongation du mandat du juge Winston Churchill M. Maqutu et afin de déclarer l’article 15bis(D) tel qu’amendé le 27 mai 2003, non applicable à la situation actuelle du requérant’ filed on 24 June 2003;

(x)      Kanyabahsi’s ‘Réponse de Joseph Kanyabashi à l’ordonnance intitulée “Scheduling Order in the Matter of Proceedings Under Rule 15bis(D)”’  filed on 4 July 2003;

(xi)     Kanyabashi’s ‘Réplique à la réponse du procureur relativement à la requête demandant que le procès se poursuive devant la Chambre II, composée des honorables Juges Sekule, Maqutu et Ramaroson et en arrêt des procédures’ filed on 30 June 2003;

(xii)    Kanyabashi’s ‘Requête en extrême urgence de Joseph Kanyabashi demandant qu’il soit statué en priorité sur sa requête déposée le 16 juin 2003 et quant à l’applicabilité de l’article 15bis du règlement, tel qu’amendé le 27 mai 2003’ filed on 27 June 2003;

(xiii)    Kanyabashi’s ‘Requête demandant que le procès se poursuive devant la Chambre II, composée des honorables Juges Sekule, Maqutu et Ramaroson et en arrêt des procédures’ filed on 16 June 2003;

(xiv)    the ‘Prosecutor’s Submissions in respect of the Matters Raised in the Scheduling Order dated 26 June 2003’ filed on 3 July 2003, in which the Prosecution deals with the submissions made by the Defence in all the foregoing processes to the extent that is relevant to the two questions involved in the present proceeding;

(xv)    the ‘Prosecutor’s Response to Ntahobali’s Motion for a Stay of Proceedings and Order for the Non-Applicability of the Newly Amended Rule 15bis’ filed on 3 July 2003;

(xvi)    the ‘Prosecutor’s Response to Kanyabashi’s Motion requesting Continuation of the Trial before Trial Chamber II Composed of Honourable Judges Sekule, Maqutu and Ramaroson and a Stay’ filed on 20 June 2003;

(xvii)   the ‘Prosecutor’s Response to Nteziryayo’s Motion Seeking Appointment of Third Judge, Declaration that Amended Rule 15bis Should Not Apply and that the Former Rule 15bis Should be Given Effect’ filed on 30 June 2003;

(xviii)  the ‘Prosecutor’s Response to Kanyabashi’s Urgent Motion Seeking a Ruling in respect of His Motion dated 15 June and Declaration as to Whether the Amended Rule 15bis Should be Given Effect’ filed on 30 June 2003;

(xix)   the ‘Prosecutor’s Response to Ndayambaje’s Motion Requesting Declaration that the Security Council Decision Not to Extend Judge Maqutu is Illegal, that the New Rule 15bis Should Not Apply and a Stay’ filed on 30 June 2003;

(xx)    the ‘Prosecutor’s Response to Nyramasuhuko’s Motion for a Stay of Proceedings and Abuse of Process’ filed on 30 June 2003;

(xxi)   the ‘Prosecutor’s Response to Nteziryayo’s Motion in Response to the Scheduling Order in the Matter of Proceedings under Rule 15bis(D)’ filed on 1 July 2003;

(xxii)  the ‘Prosecutor’s Response to Kanyabashi’s Reply Requesting Continuation of the Trial before Trial Chamber II Composed of the Honourable Judges Sekule, Maqutu and Ramaroson and a Stay’ filed on 2 July 2003;

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the Presiding Judge shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of the accused.

(C) If, by reason of death, illness, resignation from the Tribunal, non-reelection, non-extension of term of office, a Judge is unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the Presiding Judge shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of the accused, except as provided for in paragraph (D).

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), the accused withholds his consent, the remaining Judges may nonetheless decide to continue the proceedings before a Trial Chamber with a substitute Judge if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice. This decision is subject to appeal directly to a full bench of the Appeals Chamber by either party. If no appeal is taken or the Appeals Chamber affirms the decision of the Trial Chamber, the President shall assign to the existing bench a Judge, who, however, can join the bench only after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings. Only one substitution under this paragraph may be made.

An amendment shall enter into force immediately, but shall not operate to prejudice the rights of the accused in any pending case.

The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode.[9] [Emphasis added.] 

The rule applicable in cases of this sort is that, when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act.[10] [Emphases added.]

If the new Act affects Mr Vernezza’s substantive rights, it will not be held to apply to proceedings which have already commenced, unless a clear intention to that affect is manifested, see Colonial Sugar Refining Co Ltd v Irving [*Footnote 27]. But if the new Act affects matters of procedure only, then prima facie it applies to all actions, pending as well as future: for, as Lord Blackburn said: “Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be,” see Gardner v Lucas. [**Footnote 28.] [Emphases added.]

The right to a jury is one of the fundamental rights of citizenship and not a mere matter of procedure … and further, the right to have only the verdict of the full twelve was an essential part of the right to trial by jury which the accused had before the amendment was made. It is not merely a procedural matter.

1.      All persons shall be equal before the International Tribunal for Rwanda.

2.      In the determination of charges against him or her, the accused shall be entitled to a fair and public hearing, subject to Article 21 of the Statute.

3.      The accused shall be presumed innocent until proven guilty according to the provisions of the present Statute.

4.      In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a)     To be informed promptly and in detail in a language which he or she understands of the nature and cause of the charge against him or her;

(b)     To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing;

(c)     To be tried without undue delay;

(d)     To be tried in his or her presence, and to defend himself or herself in person or through legal assistance of his or her own choosing; to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interest of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it;

(e)     To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;

(f)      To have the free assistance of an interpreter if he or she cannot understand or speak the language used in the International Tribunal for Rwanda;

(g)     Not to be compelled to testify against himself or herself or to confess guilt.

(a)    We begin with the familiar consideration of speedy trial. Article 19(1) of the Statute of the Tribunal enjoins the Chamber to ‘ensure that a trial is fair and expeditious.’ Along with this, Article 20(4)(c) of the Statute gives to the Accused the right ‘to be tried without undue delay’.

(b)   In view of our obligation to consider all the circumstances, we cannot ignore the recent matter of Prosecutor v Bagosora & Ors[16] [the ‘Military I’ Cases]. The procedural circumstances of that case are, in a sense, even more remarkable than those of the Butare Cases. In the Military Cases, the trial was transferred to a new Trial Chamber, and the entire bench was reconstituted with three fresh judges, after the case had commenced and two witnesses had completed their testimonies. But, notwithstanding that there was no procedure in the Rules for such en banc reconstitution of judges in a pending case, all of the Accused strongly argued for the case to be continued before the new Bench; the Prosecution, on the other hand, preferred the case to start afresh. As the Trial Chamber observed: ‘All Defence Counsel expressed virtually identical positions, and subscribed to one another’s submissions. Citing the lengthy detention of their clients, all Defence Counsel expressed their strong preference for, and consent to, resumption of the trial from the point of adjournment. [Footnote omitted.]  Though neither the Statute nor the Rules directly address the issue at hand, continuation would be in the interests of the Accused, of justice, and of judicial economy. [*Footnote 6].’ [Emphasis added.] In their decision to continue the case from where it stopped, the Trial Chamber pronounced as follows, among other things:

Substantial interests and important rights subscribe the consent of the Accused here. The reason for consent, stated by Defence Counsel in open court, is the desire—indeed the right—of the Accused to be tried without undue delay. [**Footnote 13] Two of the Accused have been in the Tribunal’s custody since the beginning of 1997, some six and a half years. A decision that the rights of the Accused to a fair trial require a trial de novo, notwithstanding the preference of the Accused for a continuation, would impair their right to be tried without undue delay.  Defence counsel insisted that their clients would suffer no prejudice from a continuation of proceedings. They argued forcefully that further delay would prejudice the rights of the Accused. [***Footnote 14]. [Emphasis added.]

Surely, this decision in the Military I Cases is one juridical expression that may not be ignored when one is considering what may advance or impair ‘the rights of the accused’ and what is in the ‘interest of justice’, in what are at least similar circumstances as in the Butare Cases.

Similarly, in Prosecutor v Blaškić,[17] the ICTY President ordered the substitution of a judge after the conclusion of the case for the prosecution, with the consent of the Defence, enabling the trial to continue.[18] In that case the Defence also appeared to have been readier and more willing than the Prosecution to proceed with a substitute judge. It is a reasonable assumption that the Defence’s readiness and willingness to continue the trial with a replacement judge must have been actuated by what was described in the Military I decision, noted above, as ‘substantial interests and important rights’ that subscribed the consent of the Accused.

We note also that in Prosecutor v Kupreškić, both the Prosecution and the Defence had consented to the Order of the Chamber for the trial to continue temporarily by way of deposition in the temporary absence of one of the judges for health reasons. In the Order, the Chamber considered as follows:

[T]he unavailability of one of the members of the Trial Chamber must not prejudice the right of the accused to be tried without undue delay, as provided in Article 21(4)(c) of the Statute of the International Tribunal.[19]

(c)    We also note that the Accused Nsabimana, like the accused in the Military I Cases, the Blaškić Case and the Kupreškić Case noted above, has given his consent to continue the Butare trial with a substitute judge.

(d)   We note that in his consent, Nsabimana indicated that it is important that the substitute judge be given sufficient time to become familiar with the record of the proceedings thus far. That indeed is an important consideration.

(e)    In contrast, we note that the Non-Consenting Accused have expressed their strong desire to start the trial afresh. Their chief argument in this connection is that Article 19(1) affords the Accused the right to a ‘fair’ trial: and a fair trial includes a trial in which every judge in the case is given an opportunity to observe for himself or herself the demeanour of every witness called in the case. This indeed is an important consideration. It is, however, one that needs to be reconciled with other considerations, including, for example, the right to speedy trial. In this regard, we note, first, that the records of the proceedings do exist. Hence, in our view, it will be possible for a substitute judge to review these records as part of his or her duty and to draw inferences from them, even in the matter of witness demeanour. It is particularly presumed that this will be possible—and will be done—when the Parties make submissions on the matter of demeanour of particular witnesses at the end of the trial. Secondly, we are still in the case for the Prosecution and only twenty-three witnesses have been called so far. The Prosecution estimate that they have about sixty more witnesses to call. This means that any substitute judge assigned to the case at this point in the evidence will then be in a position to observe for himself or herself the larger bulk of the witnesses for the Prosecution and all the witnesses for the Defence. Thirdly, we stress that it is important for any judge in a case to observe every witness as they testify. Against this consideration, we also note the submission of the Prosecution to the effect that the Butare trial, as with every trial in this Tribunal, is conducted before a panel of three judges; and that it is only one of them that may be substituted under Rule 15bis(D) in order to continue with the trial. Fourthly, while consideration of the need for every judge to assess demeanour is certainly a very important one, we note that it must be considered with care, for any precedent that sets it up as the overriding consideration of what it means to have a fair trial will make it extremely difficult—if not impossible—ever to order continuation of a trial pursuant to Rule 15bis(D).

(f)     Where there is a conflict, as appears to exist in the circumstances, between the right to speedy trial and the inability of a substitute judge to observe the demeanour of any witness who has testified, it is easier to take steps (in the Butare Case as it now stands) to redress the problem of one judge not sitting in the case during the testimony of some witnesses—a minority of them for that matter—than it is to redress the problem of delay in the trial. As indicated above, the records will be reviewed and counsel could make submissions to assist the Substitute Judge and the other Judges to determine this issue. But it is more difficult to recoup wasted time, in view of the right to speedy trial, if time is lost as a result of recommencement of the trial. 

(g)    Also in taking all the circumstances into account in determining what is in the interest of justice, as well as in considering the rights of the Accused, we also consider that the right of due process of the law is not unique to accused persons in pending trials. Accused persons whose trials have not yet begun also do have a right to trial without undue delay. While about 18 accused persons (including the Butare Accused) are currently on trial, a far greater number (about 31 at the moment) are still in this Tribunal’s detention awaiting the commencement of their own trials. Any undue delay in the trial of an ongoing case will, in turn, affect the speedy trial rights of other accused persons awaiting trial.

(h)    In this exercise, we also need to consider that while providing for the rights of the accused, the drafters of the Statute made sure that due regard is had to the interests of the victims and witnesses in the process of administration of justice in this Tribunal. As Article 19(a) provides:

The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses. [Emphasis added.]

In the course of the Butare trial, many witnesses have testified. Some of them were vulnerable witnesses to whom the experience of testimony was a trying affair. Does it serve the interests of justice to have to restart the Butare trial and expose the witnesses and victims to a repeat of their testimony? We recall that this Tribunal and ICTY have had occasion in the past to pronounce upon the need to avoid duplication or repetition of evidence, minimise hardship to witnesses and have regard to judicial economy.[20] As this Tribunal pronounced when joining the Butare case into one trial:

The Tribunal considers that the argument raised by the Prosecutor relating to the need to protect victims and witnesses is of utmost importance and particularly relevant and, as such, cannot be entirely subordinated to the rights of the accused. There must, however, be a balance between these rights and the protection of the witnesses. To this end, the Trial Chamber holds the same view as Trial Chamber I in its Decision of 6 November 1996 in the case of Prosecutor v Kayishema … that “the requested joinder would allow for a better administration of justice by ensuring […] a better protection of victims’ and witnesses’ physical and mental safety, and by eliminating the need for them to make several journeys and to repeat their testimony.[21]

That pronouncement applies with necessary variation to the issues now at hand. Furthermore, it is conceivable that the personal circumstances of some of these witnesses may have changed, so much so that they may not return to testify. Some may have died. Is it in the interest of justice to expose this search for truth and justice to circumstances where witnesses who testified before may not appear again?

(i)      We also note the following recent pronouncement of ICTY Trial Chamber II in Prosecutor v Seselj considering the phrase ‘interests of justice’:

The phrase ‘in the interests of justice’ potentially has a broad scope [and] includes the right to a fair trial, which is not only a fundamental right of the Accused, but also a fundamental interest of the Tribunal related to its own legitimacy. In the context of the right to a fair trial, the length of the case, its size and complexity need to be taken into account.[22]

We fully agree with this pronouncement.

(j)     The Non-Consenting Accused desire the trial to restart. Indeed, a Rule 15bis(D) inquiry also contemplates the possibility of restarting the trial if the judges do not unanimously decide that it is in the interest of justice to continue with a substitute judge. Yet it is important to ask: What does restarting the case mean? And what are the procedural consequences of doing so? Does restarting mean another pre-trial conference, new witness lists, fresh motions for provisional releases, new witness protection motions, new opening statements, etc? And what will happen in the meantime? Will all the decisions thus far rendered in the case—and they are many—have to be swept aside and fresh ones made? In the Seselj decision, the ICTY Trial Chamber II said, and we agree, that in the context of a fair trial, the length of the case and its complexities need to be taken into account. The Butare Cases with six accused persons is certainly a very complex case, and has so far proven a lengthy one, with the rest of the Prosecution case (and all of the case for the six Accused) still ahead. Will restarting the case assist the length and complexities of this case or make things worse? We cannot, in the circumstances, ignore the concern that it may take a long time to bring the trial to where it is now, if the trial were to start afresh.

(k)   We also take due note of the financial costs to the public.[23] While monetary costs may not be an overriding consideration in the administration of justice, they may not, on the other hand, be ignored altogether. 

(l)      Finally, we also note that it is an important consideration to the administration of justice that proceedings must not be allowed to drag on endlessly. They must come to an end at some point.

i.      On the question whether the operation of Rule 15bis(D) does prejudice the substantive rights of the Accused, we are of the view that the recommencement of the Butare trial, pursuant to Rule 15bis(D), will prejudice the rights of the Accused more than it will advance them. Our finding remains the same even if the previous ability of the Accused (under the old Rule 15bis) to withhold consent and force a recommencement of a part-heard trial were to be deemed a substantive right, considering that rights of the accused must be viewed in context.

ii.      On the question whether it is in the interest of justice to continue the case with a substitute judge, taking all the circumstances into account, we find that the interests of justice are best served by continuing the trial with a substitute judge.

[…]

Under these conditions, after having discussed the matter with my colleagues, I asked the parties to the case to indicate how our work might be orgnised. From the opinions expressed, I should point out that the Prosecutor would prefer a solution permitting Judge Riad to continue to hear the case until its completion in the first instance. The Defence, however, although wishing our colleague a speedy recovery, has opted for having a replacement Judge found for Judge Riad so long as the said replacement Judge assumes his/her duties as quickly as possible. The accused confirmed his agreement orally.

The question was discussed for the last time at a status conference held on 21 January 1999 (provisional transcripts: French, pp 12894—12900; English, pp 17543—17553, copies of which have been submitted in confidential annex1), during which the parties stood by their respective positions and during which the Defence specified precisely the conditions for its agreement.

[…]