Substitute Judge

Notion(s) Filing Case
Decision on Continuation of Proceedings - 06.06.2014 ŠEŠELJ Vojislav
(IT-03-67-AR15bis)

20. […] [T]he Rules do not explicitly regulate whether proceedings may be continued with a substitute Judge following the disqualification of a Judge at a more advanced stage, namely the deliberations stage. The Appeals Chamber observes that the guarantees provided for in Rules 15bis(C) and 15bis(D) of the Rules have been consistently applied or referred to in the present situation.[1]  The Appeals Chamber considers that these Rules are designed to ensure that an accused’s right to a fair trial is sufficiently safeguarded, and that the fair trial guarantees provided for in these Rules apply mutatis mutandis to the present situation. Under Rule 15bis(D) of the Rules, when a decision is taken to continue the proceedings with a substitute Judge even though the accused has withheld his consent, such a decision “is subject to appeal directly to a full bench of the Appeals Chamber by either party”.

21. Therefore, for the purposes of the admissibility of the Appeal, and in light of the spirit of these Rules, the Appeals Chamber considers that the same protection as that provided for by Rule 15bis(D) of the Rules should apply in the present case. The Appeals Chamber further observes that the interests of neither Šešelj nor the Prosecution are prejudiced by the adjudication of this Appeal.

22. In these particular circumstances, the Appeals Chamber holds that the Impugned Decision is subject to appeal directly to a full bench of the Appeals Chamber.

[…]

35.  […] [T]he Appeals Chamber recalls that a decision to continue the proceedings with a substitute Judge is a discretionary decision to which the Appeals Chamber owes deference:

The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the [Judges’] ruling may have resulted in injustice to the [appellant]”.[2]

36. In reaching its decision, the Trial Chamber must determine whether, taking all the circumstances into account, the continuation of proceedings would serve the interests of justice.[3] The parties “bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice”,[4] and accordingly taking into account whether a party has discharged this burden would be an immaterial consideration constituting an error.[5] Other errors previously identified by the Appeals Chamber include requiring the substitute Judge to evaluate whether the record itself – including the availability of video- or audio-recording – is compatible with the requirements of a fair trial.[6]

37.  The Appeals Chamber further recalls that:

There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[7]

In light of the discretion inherent in a decision to continue proceedings with a substitute Judge, the Appeals Chamber has “not consider[ed] it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge”, as “[t]he stage reached in each case need not always be the same”.[8]

[…]

41. The Appeals Chamber therefore considers that neither the Statute nor the Rules prevented the Trial Chamber from exercising its discretion to determine, within the circumstances of the particular case before it, whether it would serve the interests of justice to continue the proceedings with a substitute Judge. […]

[…]

44. […] [T]he Appeals Chamber recalls that the need for a substitute Judge to certify his or her familiarity with the record is among the “safeguards ensur[ing] that fair trial rights are not compromised”.[9] Moreover, the Appeals Chamber has previously confirmed that proceedings could continue even in the absence of video-recordings of previous testimony for the substitute Judge to review.[10] […] With regard to the possibility of recalling witnesses, this too has been previously treated by the Appeals Chamber as being a material consideration to be taken into account.[11]

[1] See Order of 3 September 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Following Decision of the Panel to Disqualify Judge Frederik Harhoff, 3 September 2013 (“Order of 3 September 2013”)], p. 2. (stating that “the interests of fairness and transparency” warrant the application of Rules 15bis(C) and 15bis(D) of the Rules mutatis mutandis to the present case); Order of 31 October 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Assigning a Judge Pursuant to Rule 15, 31 October 2013 (“Order of 31 October 2013”)], p. 2; Decision of 13 November 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision Inviting the Parties to Make Submissions on Continuation of Proceedings, 13 November 2013 (English translation filed on 18 November 2013) (“Decision of 13 November 2013”)], p. 3. (providing Šešelj with an opportunity to withhold his consent to the continuation of proceedings); Impugned Decision [See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Continuation of Proceedings (rendered in French on 13 December 2013, and filed in English and BCS on 23 December 2013) “Impugned Decision”], Separate Opinion of Judge Mandiaye Niang, paras 7-10, 12-14 (emphasizing that the two remaining Judges of the Trial Chamber were unanimous that the proceedings should be continued in the interests of justice); Impugned Decision, para. 51 and p. 22 (indicating that the newly appointed Judge must first become familiar with the proceedings and declare his familiarity with the record, before the proceedings continue); Motion [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Appeal of Professor Vojislav Šešelj Against the Decision of Trial Chamber III on Continuation of Proceedings Dated 13 December 2013”, filed on 30 December 2013 (“Motion”)], para. 5 (disputing the general applicability of Rule 15bis of the Rules, but in an appeal filed directly before the Appeals Chamber as would have been provided for in Rule 15bis(D) of the Rules); Response [Response to Appeal Against Decision on Continuation of the Proceedings, 20 January 2014 (“Response”)]., paras 3, 11 (referring twice to the Impugned Decision as comporting with “the object and purpose of Rule 15bis of the Rules”).

[2] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003 (“Nyiramasuhuko et al. Decision of 24 September 2003”), para. 23. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals Pursuant to Rule 15bis (D), 20 April 2007 (“Karemera et al. Decision of 20 April 2007”), para. 19.

[3] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004 (“Karemera et al. Reasons filed on 22 October 2004”), paras 52, 54. Judge Shahabuddeen and Judge Schomburg each provided a declaration in relation to this matter. See Karemera et al. Reasons filed on 22 October 2004, Declaration of Judge Shahabuddeen (“Karemera et al. Declaration of 22 October 2004”); The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Declaration of Judge Schomburg in Relation to Reasons for Decision of Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, dated 23 October 2004 (“Karemera et al. Declaration dated 23 October 2004”).

[4] Karemera et al. Reasons filed on 22 October 2004, paras 52, 54.

[5] Karemera et al. Reasons filed on 22 October 2004, paras 52, 54.

[6] Karemera et al. Reasons filed on 22 October 2004, para. 58 (“[T]he remaining Judges erred in considering that the substitute Judge should evaluate the ‘compatibility’ of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings. This observation is incorrect because […] the substitute Judge is to ‘familiarise’ himself or herself with ‘the record’ of the proceedings, whatever that record may contain. In any event, this is done after the [decision] to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial.”). The Appeals Chamber observes that this standard is not clearly reflected in the Nyiramasuhuko et al. case, in which it was considered that “the adequacy of the record of proceedings is a matter for the substitute judge to pass on” and that if the substitute Judge does not feel adequately acquainted with the proceedings, then he or she “will not give the required certificate”. Nyiramasuhuko et al. Decision of 24 September 2003, para. 33. Given that this issue is not material to the resolution of the present Motion, the Appeals Chamber will not address it further. See also Karemera et al. Reasons filed on 22 October 2004, paras 59, 61 (finding “the fact that the testimonies were given in a language not understood by the Bench” to be an immaterial consideration that should not have been taken into account).

[7] Karemera et al. Decision of 20 April 2007, para. 42; Nyiramasuhuko et al. Decision of 24 September 2003, para. 25.

[8] Nyiramasuhuko et al. Decision of 24 September 2003, para. 27.

[9] Karemera et al. Decision of 20 April 2007, para. 43. See also Nyiramasuhuko et al. Decision of 24 September 2003, para. 33.

[10] See Nyiramasuhuko et al. Decision of 24 September 2003, paras 29-35, 37-38.

[11] See Nyiramasuhuko et al. Decision of 24 September 2003, paras 34-35, 37-38.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

58. In the view of the Appeals Chamber, the remaining Judges erred in considering that the substitute Judge should evaluate the “compatibility” of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings.[1] This observation is incorrect because, under the Rules, the substitute Judge is not called upon to evaluate whether, in the circumstances, the lack of video-recordings is incompatible with the requirements of a fair trial. Rather, the substitute Judge is to “familiarise” himself or herself with “the record” of the proceedings, whatever that record may contain.[2] In any event, this is done after the remaining Judges decide to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial. Moreover, even if the substitute Judge would decide that fair trial demands that he or she observe the protected witnesses during their testimony, the substitute Judge alone could not ensure their recall.[3]

[1] Impugned Decision, para. 104.

[2] See Rule 15bis(D). As Judge Hunt pointed out in his Butare dissent, Rule 15bis(D) “does not give to the substituted Judge either the power or the obligation to determine the adequacy of the record of proceedings.” Butare Appeal Decision, Dissenting Opinion of Judge David Hunt, para. 36.

[3] See Butare Appeal Decision, Dissenting Opinion of Judge David Hunt, para. 36.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Appeals Chamber held that Rule 15bis(D) only relates to the remaining Judges’ decision to continue the proceedings with a substitute Judge, but not to the challenge of the subsequent exercise of discretion by the newly composed Trial Chamber to resume proceedings.

127. Rule 15 bis(D) of the Rules provides that if an accused withholds his consent to the continuation of the proceedings with a substitute Judge pursuant to Rule 15 bis(C) of the Rules, the remaining Judges may nonetheless decide to continue the proceedings with a substitute Judge if this would serve the interests of justice. It further specifies: […]

128. The Appeals Chamber agrees with Amicus Curiae that the appeal provided for under Rule 15 bis(D) of the Rules only relates to the remaining Judges’ decision to continue the proceedings with a substitute Judge, but not to the challenge of the subsequent exercise of discretion by the substitute Judge and/or the newly composed Trial Chamber to resume proceedings. The Trial Chamber, by continuing with the case with the substitute Judge, impliedly acquiesced in the certification that Judge Hanoteau was familiar with the case to the requisite degree. Amicus Curiae fails to bring forward any evidence that Judge Hanoteau had not sufficiently familiarised himself with the case to be able to properly discharge his functions. Consequently, Amicus Curiae does not demonstrate that the Trial Chamber abused its discretion in continuing the trial after receipt of the certificate of Judge Hanoteau and thus rendered the trial unfair. This sub-ground is dismissed. 

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

25. There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages. The Appellants have not attacked the procedure prescribed by Rule 15(A) or Rule 15(B). Under these provisions, a witness could be heard by two judges; that the procedure is, in effect, available only over a short period of time is not relevant to the principle involved. Nor have the Appellants attacked the procedure prescribed by the old Rule 15(C) by virtue of which, in a part-heard case, a substitute judge could come in for the remainder of the trial; that this was possible only with the consent of the accused (where opening statements had been made or evidence had begun to be presented) was, again, not relevant to the principle involved. And then there is the case of deposition evidence admitted under Rule 71. In all these cases, the temporarily absent judge or the substitute judge, as the case may be, is faced with the task of evaluating evidence not given before him.

[…]

34.     The recomposed Trial Chamber may recall witnesses so as to enable the substitute judge to assess their demeanour on particular points. The recall decision would be made by the recomposed Trial Chamber after the proposed judge has joined it. Where video-recordings are available, an absent judge who reviews such recordings does so as a member of the bench, as in all the cases mentioned in paragraph 25 above. In like manner, in this case the substitute judge would be hearing recalled testimony as a member of the recomposed Trial Chamber. The recall power lies within the normal competence of the recomposed Trial Chamber. It was not for the two judges to authorize it to exercise that competence, although they could note that competence.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

23. The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the judge’s ruling may have resulted in injustice to the appellants.”[1]

[…]

27. The Appeals Chamber does not consider it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge. The discretion to continue the trial with a substitute judge is a discretion; the Appeals Chamber can only interfere with the way in which the discretion has been exercised if it has been incorrectly exercised in the circumstances mentioned above.  The stage reached in each case need not always be the same. […]

[1] See R. v. McCann, (1991), 92 Cr. App. R. 239 at 251, per Beldam, L.J., reading the judgment of the Court of Appeal and citing Evans v. Bartlam, [1937] A.C.473. A civil case can likewise be interpreted to mean that, even if there is no other vitiating error, an appellate court could interfere with the exercise by the lower court of its discretion where the latter “has exceeded the generous ambit within which a reasonable disagreement is possible”.  See Lord Fraser of Tullybelton in G. v. G. (Minors: Custody Appeal), [1985] 2 All ER 210, H.L., at 228.

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Notion(s) Filing Case
Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

17.     The Appellants do not take their arguments as far as to suggest that consent is the source of the Tribunal’s competence to provide for continuation of a hearing with a substitute judge, and accordingly there is no need to consider the basis of that competence. The Tribunal will limit itself to observing that, as a matter of pleading, consent may preclude a party from questioning a decision to continue a hearing but that consent cannot give the Tribunal competence to continue if the Tribunal does not otherwise have it; the power of the Tribunal to continue the hearing with a substitute judge exists dehors consent. The Appeals Chamber takes the view that, though apparently absolute, the right to consent to continuation of the trial was not proprietorial but functional. The right to consent gave protection against possible arbitrariness in the exercise of the power of the Tribunal to continue the hearing with a substitute judge; consent was only a safeguard.

18. The question therefore is whether the safeguard provided through the mechanism of consent under the old Rule 15bis was replaced by the modifications made on 27 May 2003 by a safeguard of equivalent value. The new Rule 15bis contains various safeguards: the decision by the two remaining judges is a judicial one; it is taken after hearing both sides; the two remaining judges know the case as it has so far developed; their decision must be unanimous; an appointment can only be made once. Further, there is an unqualified right of appeal by either party from the decision taken by the two remaining judges direct to a full bench of the Appeals Chamber. Finally, in cases where the Appeals Chamber affirms the Trial Chamber’s decision or if no appeal is lodged, the newly assigned judge must certify that he has familiarised himself with the record of the proceedings; if he cannot give the required certificate of familiarisation, he cannot eventually be substituted.

19. In effect, under the new Rule 15bis, the purpose of the old safeguard is met by the various procedures mentioned in paragraph 18 above. In the opinion of the Appeals Chamber, the value of the old safeguard is equivalent to the value of the new one, with the consequence that no material prejudice results to the accused from providing for the application of the new safeguard where the accused withholds his consent: in both cases there is an equivalent protection against arbitrariness. It follows that, even if, in the case of a judge who has not been re-elected, there was a right to consent to continuation of the trial under the old provision, the operation of the newly amended Rule 15bis does not prejudice the rights of the Appellants in the pending trial.

See also para. 21.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

140. Turning to Nyiramasuhuko’s contention that Judge Bossa could not assess the demeanour of witnesses based on the audio-recordings, the Appeals Chamber is of the view that the importance of observing first-hand the demeanour of witnesses in court cannot be discounted on the ground that audio-recordings exist. Although the preference for live testimony to be heard by each judge does not represent an “unbending requirement”,[1] the Appeals Chamber is not convinced that audio‑recordings alone allow a substitute judge to thoroughly assess all aspects of the witness’s demeanour in court, in particular when the judge is not proficient in the language spoken by the witness.[2]

[…]

148.  The Appeals Chamber is of the view that transcripts or audio recordings of a witness’s testimony in court do not necessarily always allow a judge to assess thoroughly the witness’s possible aggressiveness, reluctance to answer questions, lack of emotion, silences, and arrogance. […]

164.  The Appeals Chamber reiterates that, while there is a clear preference for live testimony to be heard by each and every judge, this preference does not represent an unbending requirement.[3] […]

[1] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals pursuant to Rule 15bis(D), 20 April 2007 (“Karemera et al. 20 April 2007 Appeal Decision”), para. 42, quoting Appeal Decision on Continuation of Trial [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003], para. 25. See also Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR15bis, Decision on Appeal Against Decision on Continuation of Proceedings, 6 June 2014, para. 37; Appeal Decision on Continuation of Trial, para. 33 (“But [the substitute judge] may feel that, even in the absence of video‑recordings, the record of proceedings is enough to enable him to appreciate what has happened. Failure to review video-recordings which, because they are non-existent, do not form part of the record of the proceedings, does not mean that the judge has not familiarized himself with the record of the proceedings as the record stands and therefore does not disqualify him from joining the bench. He may decide to join the bench with any questions of demeanour being left to be resolved”.).

[2] The Appeals Chamber notes that the Oxford Dictionary defines “demeanour” as the “manner of comporting oneself outwardly or towards others”.

[3] See supra, para. 140.

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