Participation by video-conference

Notion(s) Filing Case
Decision on the Course of Proceedings - 16.05.2008 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73.2)

15. The Appeals Chamber recalls that in the Impugned Decision, the Trial Chamber found that derogation from the right of the Accused to be present at trial was warranted given that his health condition regularly interferes with the right to a fair and expeditious trial.  The Prosecution correctly points out that derogation from the right to be present is reasonable under some circumstances and that derogation may be justified even on the basis of substantial trial disruptions on the part of an accused that are unintentional in nature.  The question before the Appeals Chamber is whether derogation from the right to be present through the establishment of a video-conference link that enables the Accused to participate in his trial from the UNDU was reasonable under the circumstances of this case.

16. The Appeals Chamber observes that in determining whether derogation from the Accused’s right to be present at trial was justified, the Trial Chamber considered the proportionality principle.[3]  Specifically, the Trial Chamber noted that any restrictions on a fundamental right “must be the least intrusive instrument amongst those which might achieve the desired result.”[4]  The Trial Chamber further considered that in the Zigiranyirazo Decision, the Appeals Chamber held that the need to ensure a reasonably expeditious trial is an objective of general importance and accordingly concluded that its task in the instant case was to “strike an appropriate balance between the reasonably expeditious resolution of the case and the need to protect the Accused’s right to be present at his trial.”[5]

18. The Appeals Chamber considers that in determining the future course of the proceedings in this case, the Trial Chamber’s decision to balance the right of the Accused to be present with the right of both the Accused and his co-Accused to an expeditious trial was reasonable. […] 

19. The Appeals Chamber emphasizes that the right to be present is a fundamental right, and although the Prosecution correctly points out that derogation from this right may be warranted in light of substantial trial delays, the Appeals Chamber agrees with the Defence that derogation is not appropriate when reasonable alternatives exist.  The Appeals Chamber notes that in choosing to establish the video-conference link, the Trial Chamber excluded other potential options, including, as the Prosecution observes, allowing the case to remain in the pre-trial phase for three to six months.[6]  The Appeals Chamber considers that, given the existence of this reasonable alternative, which could potentially secure the Accused’s ability to fully exercise his right to be present at trial within a relatively short period of time, the Trial Chamber erred in choosing an alternative that restricted this right. 

20. The Appeals Chamber further notes that in establishing the video-conference link to enable the Accused to participate in the proceedings from the UNDU when he is too unwell to physically attend court, the Trial Chamber failed to consider whether, given his physical and mental state, he would nevertheless be able to effectively participate in his trial via the video-conference link.  The Appeals Chamber finds that a reasonable Trial Chamber would have considered this factor in its decision and accordingly finds that the Trial Chamber’s failure to do so amounts to a discernible error.

[1] Impugned Decision [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Future Course of Proceedings, 9 April 2008], para. 15.

[2] Prosecution Response [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Prosecution’s Response to “Defence Appeal of the Decision on Future Course of Proceedings,” filed publicly with confidential annex, 5 May 2008], para. 45.

[3] Impugned Decision, para. 10.

[4] Impugned Decision, para. 10 (citing the United Nations Human Rights Committee, compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/rev.6, 12 May 2003, p. 176).

[5] Impugned Decision, para. 11.

[6] Prosecution Response [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Prosecution’s Response to “Defence Appeal of the Decision on Future Course of Proceedings,” filed publicly with confidential annex, 5 May 2008 ], para. 33.

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Notion(s) Filing Case
Order in Relation to the Appeal Hearing - 18.09.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Pages 1-3

CONSIDERING that Šešelj has the right to be present at the upcoming hearing and that his presence is required;

CONSIDERING that Šešelj may waive his right to appear before the Appeals Chamber only if his interests are represented by counsel;

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, if Šešelj is unable to travel to The Hague for the hearing, he may request, pursuant to Rule 96 of the Rules, to participate therein by way of video-conference link;

[1] See Article 19(4)(d) of the Statute. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 16 May 2008 (original French version filed on 28 November 2007), paras. 96, 109 (“Nahimana et al. Appeal Judgement”).

[2] See Rules 98 and 131 of the Rules.

[3] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, paras. 10-12.

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IRMCT Statute Article 19(4)(d) IRMCT Rule Rule 96;
Rule 98;
Rule 131
Notion(s) Filing Case
Decision on Defence Urgent Motion to Postpone Pronouncement of Judgement - 28.05.2021 MLADIĆ Ratko
(MICT-13-56-A)

Page 3

RECALLING that the right to be present during appeal proceedings does not require physical presence in the courtroom, at least where no additional evidence is being admitted, and can be satisfied through videoconference link;[15]

[15] See [Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Decision on the Scheduling of the Appeal Hearing and a Status Conference, 17 July 2020], paras. 16, 17.

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Notion(s) Filing Case
Decision on Defence Urgent Motion to Postpone Pronouncement of Judgement - 28.05.2021 MLADIĆ Ratko
(MICT-13-56-A)

Page 3

RECALLING that counsel have an obligation to represent their client and to comply with orders of the Appeals Chamber,[16] and that, where the client is represented by counsel and co-counsel, either one may assume the responsibility for participating in proceedings;[17]  

[…]

CONSIDERING that, notwithstanding Co-Counsel’s unavailability, the Defence has failed to demonstrate that Mr. Mladić or his Lead Counsel cannot be present for the Pronouncement of Judgement, in court or via videoconference;[19]

[…]

CONSIDERING that […] Mr. Mladić has been able to communicate with his legal team and provide instructions following the issuance of the Scheduling Order, and in doing so he, inter alia, “spoke definitively” and “provided his unwavering position”;[21]

FINDING that, in light of the considerations above, the Defence has failed to justify the request to stay the Pronouncement of Judgement and postpone it until a time when both counsel can be present in court in person with Mr. Mladić;

[…]

[16] See [Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A,] Decision on a Defence Motion to Reconsider the “Decision on Defence Submissions”, 20 August 2020 (“Decision of 20 August 2020”), p. 3, n. 17; [Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A,] Decision on Defence Submissions, 14 August 2020 (“Decision of 14 August 2020”), p. 5, n. 30 and references cited therein.

[17] See Decision of 20 August 2020, p. 3, n. 17; Decision of 14 August 2020, p. 5, n. 31 and references cited therein.

[19] [Footnote omitted].

[21] [Footnote omitted].

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IRMCT Rule Rule 144(D)