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| Decision on Impeachment - 01.02.2008 |
POPOVIĆ et al. (IT-05-88-AR73.3) |
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31. The Appellants’ also misconstrue the Limaj Decision in arguing that it stands for the proposition that the contents of any previous inconsistent statement may only be received into evidence for assessing the credibility of the witness. To the contrary, the Limaj Decision affirms that such evidence may be admitted as hearsay evidence for the truth of its contents when it fulfills the criteria under the Tribunal’s Rules of being relevant and sufficiently reliable to be accepted as probative.[1] It also bears noting that this approach is consistent with the position at common law which has evolved alongside developments in the law on hearsay in recent years to allow for the admission of a prior inconsistent statement adduced in this manner for the truth of its contents.[2] While the position at common law is in no way determinative of the issue, it would seem unsound to adopt a stricter approach on this point. [1] Limaj Decision, paras. 18, 21. [2] In Canada, the traditional common law rule limiting the use of prior inconsistent statements to impeaching the credibility of the witness was overturned by the Supreme Court of Canada in the case of R. v. B. (K.G.), [1993] 1 S.C.R. 740. The Court found that the existing rule had been attenuated by developments in the law of hearsay. It held that prior inconsistent statements should be substantively admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity. In the United States of America the traditional common law rule was abandoned by the Federal Rules of Evidence, 28 U.S.C. app., Rule 801(d): “A Statement is not hearsay if … (1) Prior statement by witness - The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition”. In Australia the Evidence Act 1995 C.C.A. provides at section 60: “The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. With reference to section 60 see Adam v. The Queen 207 CLR 96 at 37: “by s. 60 of the Act, the prior statements would be admitted as evidence of the truth of their contents. But that difference brought about by s. 60 was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth.” In the United Kingdom, see the Criminal Justice Act 2003 c. 44 Pt 11 c 2, s 119: “(1) If in criminal proceedings a person gives oral evidence and (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c.18), the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.” See e.g. R v. Joyce, [2005] EWCA Crim 1785; R v. K N, [2006] EWCA Crim 3309. |
ICTR Rule Rule 89(C) ICTY Rule Rule 89(C) | |
| Notion(s) | Filing | Case |
| Decision on Impeachment - 01.02.2008 |
POPOVIĆ et al. (IT-05-88-AR73.3) |
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24. While the Tribunal is in no way bound by the rules of the common law[1] and the Rules do not provide clear guidance on the question of impeaching a party’s own witness, Rules 85 and 90 are nonetheless largely reflective of the common law system. It is the parties who call and question “their” witnesses in turn and who are then cross-examined by the opposing side.[2] Accordingly, recognizing that the procedure for the hearing of witnesses at the Tribunal is rooted in the adversarial process, it is important to be cautious in removing safeguards that belong to that process for reasons of fairness to the parties and for the purpose of ascertaining the truth; in this case, leaving the determination of adversity, and the green light to cross-examine, to the calling party rather than to the Trial Chamber.[3] 26. The Appeals Chamber considers that notwithstanding the exact form the impeachment procedure takes, the Trial Chamber must be the one to determine whether to allow the calling party to cross-examine its witness. It must also be the one to limit the scope of the questioning, if and to the extent it considers appropriate, within its discretion. Despite the Prosecution’s assertion that the Trial Chamber has not abandoned or undermined its authority to control the nature and extent of a witness’ examination under Rule 90(F), it is difficult to interpret the Impugned Decision otherwise. By stating that “a party need not seek permission to challenge the credibility of its own witness nor is the process of having a witness declared “hostile” necessary before taking such a step”, the Trial Chamber leaves no room for objections to impeachment.[4] Furthermore, objections to the scope of the challenge also appear to be precluded by the Trial Chamber’s assertion that it “would not place any limitations on the way in which such a challenge may be conducted.”[5] This is the prejudice occasioned by the discernible error. 28. The Trial Chamber’s practice to date, as well as that of other Trial Chambers,[6] demonstrates a general if not altogether consistent approach that puts the decision to allow a party to put a prior statement to its own witness and cross-examine that witness in the hands of the Trial Chamber. This may or may not be done on the basis of a prior determination of hostility. In this light the Appeals Chamber considers that the Trial Chamber’s decision to put the determination to impeach in the hands of the calling party constitutes a discernible error. It further considers that the Trial Chamber committed a discernible error in deciding to leave the scope of the challenge to the discretion of the impeaching party. It may be that the Trial Chamber will decide to allow a calling party to put a prior inconsistent statement to its witness in order to clarify a particular contradiction without declaring the witness hostile. The interests of justice dictate a certain measure of flexibility. However, this again will be a matter for the Trial Chamber to determine in the circumstances before it. [1] Rule 89(A) of the Rules. [2] See e.g. Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Decision on the Prosecution’s Motions to Admit Prior Statements as Substantive Evidence, 25 April 2005 (“Limaj Decision”), para. 8. [3] The determination of adversity lies with the court at common law. Canada, Australia and the United Kingdom all have nearly identical statutory provisions to this effect. Canada: Canada Evidence Act, R.S.C. 1985, C-5, s. 9: "A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, the party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony, but before the last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make the statement”; Australia: Evidence Act 1929 (S.A.), s. 27, see also, R v. Hutchison (1990) 53 SASR 587 at 592: "The crucial consideration is that the party calling the witness is unable, by reason of the witness's unwillingness to tell the truth or the whole truth, to elicit the true facts by non-leading questions"; United Kingdom: Criminal Procedure Act 1865 c18, s 3, see also, R v. Jobe, [2004] EWCA Crim 3155. See also United States of America: Federal Rules of Evidence, 28 U.S.C. app., Rules 607: “The credibility of a witness may be attacked by any party, including the party calling the witness" and Rule 611(c): “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions." See also, Ellis v. Chicago, 667 F2d 606 at 613 (7th Cir, 1981) (internal citations omitted): “In essence, Rule 611(c) codifies the traditional more of dealing with leading questions. It acknowledges that they are generally undesirable on direct examination, that they are usually permissible on cross-examination, and that there are exceptions to both of these propositions. Although not explicitly stated, the rule is consistent with what has long been the law – that in the use of leading question much must be left to the sound discretion of the trial judge who sees the witness and can, therefore, determine in the interests of truth and justice whether the circumstances justify leading questions to be propounded to a witness by the party producing them.” [4] [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, T. 15457-15458, Decision on Certification and Clarification of the Trial Chamber’s Oral Decision on Impeachment of a Party’s Own Witness, 21 November 2007], para. 14. [5] Id. [6] See e.g. Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, T. 807, 24 January 2002; Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, T. 2735-2742 and T. 4002-4010; Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-T, T. 8558-8559, 23 November 2004. See also, [Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Decision on Admission into Evidence of Prior Statement of a Witness, 5 July 2005], p. 3 (“the party calling the witness may challenge the witness’ credibility on portions of his or her testimony, without necessarily [seeking leave from the Trial Chamber], by confronting the witness with specific passages of his or her prior statement, so that explanations can be given for the alleged discrepancies and these explanations can be tested by cross-examination”); Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, T. 16732-16733. |
ICTR Rule Rule 90(F) ICTY Rule Rule 90(F) | |
| Notion(s) | Filing | Case |
| Decision on Expert Witness - 30.01.2008 |
POPOVIĆ et al. (IT-05-88-AR73.2) |
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7. The Appeals Chamber recalls that “sufficient reasons constituting good cause” pursuant to Rule 127(A)(i) and (B) of the Rules are required to recognize a late filing as validly done.[1] Exceptionally, the Appeals Chamber has, in specific circumstances, found good cause to recognize a late filing as validly done in the interests of justice.[2] […] The Appeals Chamber recalls that Counsel “is under an obligation to give absolute priority to observe the time limits as foreseen in the Rules” and that “a trip abroad” does not constitute good cause for an extension of the time limit.[3] Absence from The Hague does not constitute good cause either. See also the Joint Dissenting Opinion of Judge Liu and Judge Schomburg. [1] Prosecutor v. Milan Lukić et al., Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007 (“Lukić Decision”), para. 12. [2] See, for example, Lukić Decision, para. 12, in which the Appeals Chamber found that the Trial Chamber did not abuse its discretion in admitting supplementary material to the Prosecution’s response filed one day after the deadline “in light of the relevance of the information contained in the Prosecution [supplementary material]” for the issue before it and the “opportunity afforded to the Appellant to reply to it”. See also Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-AR63.5, Decision on Ljube Boškoski’s Interlocutory Appeal on Second Motion for Provisional Release, 28 August 2006, para. 9, in which the Appeals Chamber admitted an appeal filed one day after the deadline because it considered it to be in the interests of justice due to the “substantial importance of the Appeal for the rights of the Appellants.” [3] Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-A, Decision on Appellant Jean-Bosco Barayagwiza’s Motion for Extension of Time, 3 May 2007, p. 3. See, also Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Decision on Second Defence Motion to Enlarge Time for Filing of Replies, 1 April 2005, p. 4, in which the Pre-Appeal Judge stressed that “other professional commitments of counsel should not have any bearing on the responsibilities of counsel towards their client and the International Tribunal”. |
ICTR Rule Rule 116 ICTY Rule Rule 127 | |
| Notion(s) | Filing | Case |
| Decision on Expert Witness - 30.01.2008 |
POPOVIĆ et al. (IT-05-88-AR73.2) |
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20. In a recent Appeal Judgement issued in the Nahimana et al. case, the ICTR Appeals Chamber established that: C’est à la Chambre de première instance de déterminer si, au vu des éléments présentés par les parties, la personne proposée peut être reconnue en qualité de témoin expert. L’expert est tenu de déposer « dans la plus stricte neutralité en respectant l’objectivité scientifique ». La partie qui souhaite contester la partialité d’un témoin expert peut le faire par la voie du contre-interrogatoire, en faisant comparaître ses propres témoins experts ou au moyen d’une contre-expertise. Comme pour tout moyen de preuve présenté, c’est à la Chambre de première instance qu’il revient d’apprécier la fiabilité et la valeur probante du rapport et de la déposition du témoin expert.[1] In this Appeal Judgement, the ICTR Appeals Chamber also concurred with the principle set forth in the Brđanin Decision that “the mere fact that an expert witness is employed or paid by a party does not disqualify him or her from testifying as an expert witness”.[2] 21. As properly pointed out by the Trial Chamber, Rule 94bis of the Rules “does not provide specific guidelines on the admissibility of testimony given by expert witnesses, or criteria for the admission of their report”.[3] Trial Chambers have established the following requirements for the admissibility of expert statements or reports: (1) the proposed witness is classified as an expert; (2) the expert statements or reports meet the minimum standards of reliability; (3) the expert statements or reports are relevant and of probative value; (4) the content of the expert statements or reports fall within the accepted expertise of the expert witness.[4] As the Trial Chamber in this case,[5] Trial Chambers have also ruled that “concerns relating to the Witness’ independence and impartiality […] are matter of weight, not admissibility”.[6] Such a statement is consistent with the ICTR Appeals Chamber’s finding in the Nahimana et al. Appeal Judgement, quoted above, that a party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witness or by means of an expert opinion in reply.[7] 22. [L]ike any evidence, expert evidence is subject to the provisions contained in Rule 89(C) and (D) of the Rules. While this Rule grants Trial Chambers a broad discretion in assessing admissibility of evidence they deem relevant, this discretion is not unlimited. A piece of evidence may be so lacking in terms of the indicia of reliability that it is not probative and therefore inadmissible. This principle should not be interpreted to mean that definite proof of reliability must necessarily be shown for evidence to be admissible. Prima facie proof of reliability on the basis of sufficient indicia is enough at the admissibility stage.[8] The Appeals Chamber notes that in a limited number of instances, Trial Chambers have ruled inadmissible the evidence of a proposed expert witness on the ground that this evidence was so lacking in terms of the indicia of reliability because of lack of impartiality and independence or appearance of bias that it was not probative.[9] Such a determination has to be made on a case-by-case basis.[10] Finally, the Appeals Chamber reemphasizes that the decision by a Trial Chamber to admit evidence does not in any way constitute a binding determination as to its authenticity or credibility. These are matters to be assessed by the Trial Chamber at a later stage in the course of determining the weight to be attached to the evidence in question.[11] 31. […] The extent of Butler’s involvement with the Prosecution in the investigation and preparation of this case can be explored during cross-examination, thus giving the Appellants full opportunity to challenge the admissibility of Butler’s reports.[12] In this respect, it is worth emphasizing again that the Trial Chamber stated that accepting Butler as an expert and calling him to give evidence does not automatically entail that his reports would be admitted as evidence.[13] It is also noteworthy recalling that Judges of the Tribunal, as professional judges, are able to weigh evidence and consider it in its proper context, or when applicable, to disregard any particular piece of evidence they have heard or read.[14] Furthermore, they are required to write a reasoned decision, which is subject to appeal.[15] [1] Nahimana et al. Appeal Judgement, para. 199 (footnotes omitted). The official English translation is not available yet, but an unofficial translation is provided below for convenience: It is for the Trial Chamber to decide whether, on the basis of the evidence presented by the parties, the person proposed can be admitted as an expert witness. The expert is obliged to testify “with the utmost neutrality and with scientific objectivity”. The party alleging bias on the part of an expert witness may demonstrate the said bias through cross-examination, by calling its own expert witnesses or by means of an expert opinion in reply. Just as for any other evidence presented, it is for the Trial Chamber to assess the reliability and probative value of the expert report and testimony. [2] Nahimana et al. Appeal Judgement, para. 282, quoting Brđanin Decision [Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Decision on Prosecution’s Submission of Statement of Expert Witness Ewan Brown, 3 June 2003], p. 4. [3] Impugned Decision [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T,Decision on Defence Rule 94bis Notice Regarding Prosecution Expert Witness Richard Butler, 19 September 2007], para. 22. [4] Dragomir Milošević Decision [Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-T, Decision on Admission of Expert Report of Robert Donia, 15 February 2007], para. 6; Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 5; Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Milisav Sekulić Pursuant to Rule 94bis, and on Prosecution’s Motion to Exclude Certain Sections of the Military Expert Report of Milisav Sekulić, and on Prosecution Motion to Reconsider Order of 7 November 2006, 13 November 2006 (“Martić Decision of 13 November 2006”), pp. 3-4. [5] Impugned Decision, paras 26-27. [6] Brđanin Decision, p. 4; Dragomir Milošević Decision, para. 9; Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], paras 8, 12; Prosecutor v. Slobodan Milosević, Case No. IT-02-54-T, Decision on Admissibility of Expert Report of Kosta Čavoški, 1 March 2006, p. 2; Prosecutor v. Pavle Strugar, Case No. IT-01-42-PT, Decision on the Defence Motions to Oppose Admission of Prosecution Expert Reports Pursuant to Rule 94bis, 1 April 2004, p. 4. [7] Nahimana et al. Appeal Judgement, para. 199. [8] Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Decision on Prosecution Motion for Admission of Additional Evidence, 10 December 2004, para. 22; Georges Anderson Nderubumwe Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement, 26 May 2003 (“Rutaganda Appeal Judgement”), paras 33, 266; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-AR73.2, Decision on Application of Defendant Zejnil Delalić for Leave to Appeal against the Decision of the Trial Chamber of 19 January 1998 for the Admissibility of Evidence, 4 March 1998, para. 20. See, also Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.5, Decision on Appeal Regarding Statement of a Deceased Witness, 21 July 2000, para. 24, and Prosecutor v. Dario Kordić et al., Case No. IT-95-14/2-AR73.6, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000, para. 24. [9] In the Akayesu case, the Trial Chamber dismissed a Defence motion for the appearance of a person accused in another case before the ICTR for crimes related to those in its case, on the ground, inter alia, that “an expert must not only be a recognized expert in his field, but must also be impartial in the case” (Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on a Defence Motion for the Appearance of an Accused as an Expert Witness, 9 March 1998 (“Akayesu Decision”), p. 2). In the Milutinović Decision [Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Decision on Prosecution Request for Certification of Interlocutory Appeal of Decision on Admission of Witness Philip Coo’s Expert Report, 30 August 2006], the Trial Chamber found that the proposed expert witness was “too close to the team, in other words to the Prosecution presenting the case, to be regarded as an expert” and that “it could not regard his opinion as bearing the appearance of impartiality on which findings crucial to the determination of guilt of criminal charges might confidently be made” (paras 1, 10). See, also the three following decisions as illustrations of instances in which such an issue was raised: (1) In the Boškoski Decision [Prosecutor v. Ljube Boškoski et al., Case No. IT-04-82-T, Decision on Motion to Exclude the Prosecution’s Proposed Evidence of Expert Bezruchenko and his Report, 17 May 2007], the Trial Chamber stated that “the active involvement of a proposed expert witness in the investigation of the case on behalf of the Prosecution is a factor capable of affecting the reliability of that witness’ Report and potential evidence […] The involvement in a particular case may be such that the reliability of the opinions of the expert cannot be accepted.” (para. 12); (2) Decision on General Smith [Prosecutor v. Vujadin Popović, Case No. IT-05-88-T, Second Decision Regarding the Evidence of General Rupert Smith, 11 October 2007], p. 4, footnotes 14, 15; (3) Martić Decision of 9 November 2006 [Prosecutor v. Milan Martić, Case No. IT-95-11-T, Decision on Defence’s Submission of the Expert Report of Professor Smilja Avramov Pursuant to Rule 94bis, 9 November 2006], para. 10. [10] In this respect, the Appeals Chamber rejects the Prosecution’s suggestion that because Butler already testified as an expert witness in other cases, including before the Appeals Chamber, this automatically means that the Joint Defence Appeal should be dismissed. [11] Rutaganda Appeal Judgement, footnote 63. [12] In a rather similar instance, the Trial Chamber, after having found that the circumstances of the case were not the same as those in the Milutinović Decision, stated that “[t]he degree of [the expert witness’] connection with the Prosecution can be explored by the Defence in cross-examination and will be taken into account by the Chamber in assessing the weight to be attached to the evidence of the expert witness. It will be open to both Defence teams to examine the extent to which the involvement of [the expert witness] in the interviewing of witnesses and his subsequent reliance on statements and material obtained with his active participation affected the content of his Report and testimony” (Boškoski Decision, para. 12). [13] Impugned Decision, para. 31. [14] Prlić Decision on Admission of Transcript [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.6, Decision on Appeals against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 57. See, also the Trial Chamber’s statement in the Certification Decision, p. 2, that Bulter’s evidence “can be redacted or disregarded if the Trial Chamber’s finding is reversed”. [15] Prlić Decision on Admission of Transcript, para. 57. |
ICTR Rule
Rule 89(C); Rule 94 bis ICTY Rule Rule 89(C); Rule 94 bis |
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| Notion(s) | Filing | Case |
| Decision on Expert Witness - 30.01.2008 |
POPOVIĆ et al. (IT-05-88-AR73.2) |
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27. The Appeals Chamber recalls that the evidence of an expert witness is meant to provide some specialized knowledge – be it a skill or knowledge acquired through training[1] – that may assist the fact finder to understand the evidence presented.[2] It is established that: Expert witnesses are ordinarily afforded wide latitude to offer opinions within their expertise; their views need not be based upon firsthand knowledge or experience. Indeed, in the ordinary case the expert witness lacks personal familiarity with the particular case, but instead offers a view based on his or her specialized knowledge regarding a technical, scientific, or otherwise discrete set of ideas or concepts that is expected to lie outside the lay person’s ken.[3] 29. The Appeals Chamber is of the opinion that the fact that Butler may have acquired his knowledge on the organization and the general procedures of the VRS solely as a result of his six years of employment with the Prosecution – an allegation which is not substantiated by the Appellants – does not in itself affect his qualification as an expert. In this respect, the Appeals Chamber underlines the Trial Chamber’s ruling that before admitting Butler’s evidence, it will have to determine, inter alia, “whether there is transparency in the methods and sources used by the expert witness, including the established or assumed facts on which the expert witness relied”.[4] The Appeals Chamber further recalls that firsthand knowledge or experience is not required for qualifying as an expert;[5] thus the Appellants’ argument related to Butler’s lack of working experience with the VRS is without merit. [1] Nahimana et al. Appeal Judgement, para. 198; Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Oral Ruling on Qualification of Expert Witness Mbonyinkebe, 2 May 2005; Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, Oral Decision on the Qualification of Mr. Edmond Babin as Defence Expert Witness, 13 April 2005, para. 5; Brđanin Decision, p. 4; Prosecutor v. Stanislav Galić, IT-98-29-T, Decision on the Expert Witness Statements Submitted by the Defence, 27 January 2003, p. 3. [2] Semanza Appeal Judgement [Laurent Semanza v. Prosecutor, Case No. ICTR-97-20-A, Judgement, 20 May 2005], para. 303. See also Nahimana et al. Appeal Judgement, para. 198; Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-T, Decision on Casimir Bizimungu’s Urgent Motion for the Exclusion of the Report and Testimony of Déo Sebahire Mbonyinkebe (Rule 89(C)), 2 September 2005, para. 11; Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Motion for Exclusion of Expert Witness Statement of Filip Reyntjens, 28 September 2004, para. 8; Akayesu Decision, p. 2. [3] Semanza Appeal Judgement, para. 303; Nahimana et al. Appeal Judgement, para. 198. [4] Impugned Decision, paras 30-31 (footnotes omitted). [5] See, supra, para. 27. |
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| Decision on Review - 17.01.2008 |
GOTOVINA et al. (IT-06-90-AR108bis.2) |
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On 28 November 2007, Trial Chamber I denied a motion by Ante Gotovina for provisional release. It considered that, in the specific circumstances of the case, the guarantees offered by the Government of Croatia were not sufficient to satisfy the Trial Chamber that Gotovina, if provisionally released, would return to the International Tribunal when ordered. In this respect, the Trial Chamber found that, whereas the incentives not to appear for trial remain unchanged, such guarantees “were not sufficiently effective”. 5. Rule 108 bis of the Rules of Procedure and Evidence (“Rules” or “Rule”) provides a mechanism by which a State affected by a decision of a Trial Chamber may request review of that decision by the Appeals Chamber. For such a request to be admissible, the State in question must demonstrate that (i) it is directly affected by the Trial Chamber’s Decision and 6. In particular, the Appeals Chamber recalls that Rule 108 bis was adopted for a State to seek review of a decision that has affected its legal rights. This remedy is unavailable to a State which claims that a decision has affected its legitimate political interests.[3] 12. The Appeals Chamber finds that Croatia is not affected by the Decision, since the principle of sovereign equality enshrined in Article 2(1) of the United Nations Charter is not actually at stake. The Trial Chamber’s consideration on what effect to be given to a State’s guarantees does not affect a State’s legal right, as such guarantees are not dispositive of provisional release determinations. Rather, the Trial Chamber is required to assess all relevant factors relating to individual circumstances of an accused.[4] Here, the Trial Chamber’s decision to reject Gotovina’s request for provisional release was based on Gotovina’s individual circumstances, of which Croatia’s guarantees were only a part.[5] Thus, a Trial Chamber’s provisional release decision is emphatically not an assessment of the reliability of any particular government or the guarantees that it offers. 13. Furthermore, the Trial Chamber’s assessment of the guarantees cannot be said to have affected Croatia’s legal rights since Croatia has no legally cognizable interest either in securing Gotovina’s provisional release or in ensuring that a Trial Chamber will assesses its guarantee in one particular manner. [1] Rule 108 bis (A); see Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review Under Rule 108bis, 13 December 2006 (“Gotovina First Review Decision”), para. 6. [2] Id. [3] Prosecutor v. Janko Bobetko, Case No. IT-02-62-AR54bis & IT-02-62-AR108bis, Decision on Challenge by Croatia to Decision and Orders of Confirming Judge, 29 November 2002 (“Bobetko Decision”), para. 11; see also Gotovina First Review Decision, paras 7-8. [4] See, e.g., Prosecutor v. Vujadin Popović, Case No. IT-02-57-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Vujadin Popović’s Application for Provisional Release, 28 October 2005, para. 10 (“The Trial Chamber, moreover, did not have to rely on the guarantees just because they had been offered by Governments with power to arrest the Appellant. A Trial Chamber must evaluate government guarantees in light of the circumstances surrounding each individual applicant, and in some circumstances, it may be reasonable to place little weight on a government guarantee. Indeed, here the Trial Chamber did not err by failing to find the government guarantees determinative notwithstanding the issuing authorities’ track record regarding compliance.”) (citation omitted and emphasis added); Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.3, Decision on Interlocutory Appeal of Trial Chamber’s Decision Denying Ljubomir Borovčanin Provisional Release, 1 March 2007, para. 16 (noting that “the reliability of such a guarantee must always be determined in relation to the circumstances of an individual accused in each case”) (emphasis added); Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007, para. 21 (observing that “the Trial Chamber duly considered the weight to be accorded to the guarantees in relation to the particular circumstances of the Appellant’s case”) (emphasis added). [5] Cf. Gotovina First Review Decision, para. 8 and Bobetko Decision, para. 11. |
ICTY Rule Rule 108bis | |
| Notion(s) | Filing | Case |
| Decision on Review - 17.01.2008 |
GOTOVINA et al. (IT-06-90-AR108bis.2) |
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8. In the instant case, Croatia requests review of a decision, which was issued by Trial Chamber I upon motion of Gotovina.[1] Thus, according to the Rules, Gotovina has the right to be heard on this matter, while the Prosecution may be heard only if the Appeals Chamber considers it in the interests of justice.[2] The Appeals Chamber considers that, since Gotovina was arrested upon request of the Prosecution in the first place,[3] the interests of justice require that the Prosecution be heard in relation to this matter. The Prosecution Motion is therefore validly filed. [1] Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Defendant Ante Gotovina’s Motion for Provisional Release, 7 August 2007. [2] Rule 108 bis (B); Gotovina’s Motion to Strike, paras 2-3. [3] See, inter alia, Prosecutor v. Ante Gotovina, Case No. IT-01-45-I, Warrant of Arrest – Order for Surrender, 24 February 2004, p. 2. |
ICTY Rule Rule 108bis | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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414. Before considering in turn the various errors alleged by the Appellant, the Appeals Chamber notes that the Trial Chamber correctly enunciated the law applicable to alibi in paragraph 99 of the Judgement, which reads as follows: With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted]. 417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime.[1] It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi.[2] The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.[3] 418. There is thus no obligation on the Prosecution to investigate the alibi. […] In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement). [1] Kayishema and Ruzindana Appeal Judgement, para. 106. See also Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, para. 200. [2] Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, paras. 110-111. [3]Musema Appeal Judgement, para. 202. See also Limaj et al. Appeal Judgement, para. 63; Kamuhanda Appeal Judgement, para. 167; Kajelijeli Appeal Judgement, paras. 41-42. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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414. Before considering in turn the various errors alleged by the Appellant, the Appeals Chamber notes that the Trial Chamber correctly enunciated the law applicable to alibi in paragraph 99 of the Judgement, which reads as follows: With respect to alibi, the Chamber notes that in Musema, it was held that “[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the Accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful”[footnote omitted]. 417. The Appeals Chamber recalls that, in raising an alibi defence, the defendant is claiming that, objectively, he was not in a position to commit the crime.[1] It is for the accused to decide what line of defence to adopt in order to raise doubt in the mind of the judges as to his responsibility for the offences charged, in this case by producing evidence tending to support or to establish the alleged alibi.[2] The only purpose of an alibi is to cast reasonable doubt on the Prosecutor’s allegations, which must be proven beyond reasonable doubt. In alleging an alibi, the accused merely obliges the Prosecution to demonstrate that there is no reasonable likelihood that the alibi is true. In other words, the Prosecution must establish beyond a reasonable doubt that, “despite the alibi, the facts alleged are nevertheless true”.[3] 418. There is thus no obligation on the Prosecution to investigate the alibi. […] In the present case, the Appeals Chamber found that the Trial Chamber’s assessment of the alibi evidence was erroneous and concluded that it had not been established beyond reasonable doubt that the Appellant committed the crimes in question (paras 413-474 of the Appeal Judgement). [1] Kayishema and Ruzindana Appeal Judgement, para. 106. See also Niyitegeka Appeal Judgement, para. 60; Musema Appeal Judgement, para. 200. [2] Musema Appeal Judgement, para. 202; Kayishema and Ruzindana Appeal Judgement, paras. 110-111. [3]Musema Appeal Judgement, para. 202. See also Limaj et al. Appeal Judgement, para. 63; Kamuhanda Appeal Judgement, para. 167; Kajelijeli Appeal Judgement, paras. 41-42. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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478. The Appeals Chamber recalls that commission covers, primarily, the physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law, but also participation in a joint criminal enterprise.[1] […] [1] Tadić Appeal Judgement, para. 188. |
ICTR Statute Article 6(1) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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487. The Appeals Chamber recalls that it is inappropriate to convict an accused for a specific count under both Article 6(1) and Article 6(3) of the Statute. When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both Articles and the accused could be found liable under both provisions, the Trial Chamber should rather enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance.[1] [See also para. 667 of the Appeal Judgement] [1] Galić Appeal Judgement, para. 186; Jokić Appeal Judgement, paras. 23-28; Kajelijeli Appeal Judgement, para. 81; Kvočka et al. Appeal Judgement, para. 104; Kordić and Čerkez Appeal Judgement, paras. 34-35; Blaškić Appeal Judgement, para. 91. |
ICTR Statute
Article 6(1); Article 6(3) |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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896. The Appeals Chamber recalls that the actus reus of the crime of conspiracy to commit genocide is a concerted agreement to act for the purpose of committing genocide. While such actus reus can be proved by evidence of meetings to plan genocide, it can also be inferred from other evidence.[1] In particular, a concerted agreement to commit genocide may be inferred from the conduct of the conspirators.[2] However, as in any case where the Prosecutor seeks, on the basis of circumstantial evidence, to prove a particular fact upon which the guilt of the accused depends,[3] the existence of a conspiracy to commit genocide must be the only reasonable inference based on the totality of the evidence. 897. The Appeals Chamber takes the view that the concerted or coordinated action of a group of individuals can constitute evidence of an agreement. The qualifiers “concerted or coordinated” are important: as the Trial Chamber recognized, these words are “the central element that distinguishes conspiracy from ‘conscious parallelism’, the concept put forward by the Defence to explain the evidence in this case”.[4] The Appeals Chamber thus considers that the Appellants were not found guilty by association or by reason of the similarity of their conduct: rather, the Trial Chamber found that there had been a concerted or coordinated action and, on the basis inter alia of this factual finding, it inferred the existence of a conspiracy. […] 898. Turning to Appellant Barayagwiza’s argument, the Appeals Chamber considers that the agreement need not be a formal one.[5] It stresses in this respect that the United States Supreme Court has also recognized that the agreement required for conspiracy “need not be shown to have been explicit”.[6] The Appellant is thus mistaken in his submission that a tacit agreement is not sufficient as evidence of conspiracy to commit genocide. The Appeals Chamber recalls, however, that the evidence must establish beyond reasonable doubt a concerted agreement to act, and not mere similar conduct. 906. The Appeals Chamber finds that, even if this evidence is capable of demonstrating the existence of a conspiracy to commit genocide among the Appellants, on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt. It would also have been reasonable to find, on the basis of this evidence, that the Appellants had collaborated and entered into an agreement with a view to promoting the ideology of “Hutu power” in the context of the political struggle between Hutu and Tutsi, or even to disseminate ethnic hatred against the Tutsi, without, however, going as far as their destruction in whole or in part. Consequently, a reasonable trier of facts could not conclude that the only reasonable inference was that the Appellants had conspired together to commit genocide. [1] See, in this respect, Kajelijeli Trial Judgement, para. 787 (“[t]he agreement in a conspiracy is one that may be established by the prosecutor in no particular manner, but the evidence must show that an agreement had indeed been reached”). In the Ntakirutimana, Niyitegeka and Kajelijeli cases, the Trial judges noted that the accused had attended meetings although they did not require meetings as elements of the crime of conspiracy to commit genocide: see Kajelijeli Trial Judgement, paras. 434-453, 787-788, 794; Niyitegeka Trial Judgement, paras. 423-429; Ntakirutimana Trial Judgement, paras. 799-800. [2] In this respect, the Appeals Chamber notes that a number of legal systems explicitly recognize that the agreement can be inferred from the conduct of the parties to the conspiracy: United States: Glasser v. United States, 315 U.S. 60, 80 (1942); United Kingdom: R. v. Anderson, [1986] A.C. 27, 38; Canada: R. v. Gagnon, [1956] S.C.R. 635, para. 12. [3] Ntagerura et al. Appeal Judgement, paras. 306, 399; Stakić Appeal Judgement, para. 219; Krstić Appeal Judgement, para. 41; Vasiljević Appeal Judgement, paras. 120, 128, 131; Čelebići Appeal Judgement, para. 458. [4] Judgement, para. 1048. See also paras. 1045, 1047. [5] As held by common law courts with respect to conspiracy: see for example, R. v. Anderson, [1986] A.C. 27, 37 (United Kingdom). [6] Iannelli v. United States, 420 U.S. 770, 777, footnote 10 (1975), reaffirming Direct Sales Co. v. United States, 319 U.S. 703, 711-713 (1943). |
ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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907. The Appeals Chamber is of the opinion that in certain cases the existence of a conspiracy to commit genocide between individuals controlling institutions could be inferred from the interaction between these institutions. As explained above, the existence of the conspiracy would, however, have to be the only reasonable inference to be drawn from the evidence. |
ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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894. Conspiracy to commit genocide under Article 2(3)(b) of the Statute has been defined as “an agreement between two or more persons to commit the crime of genocide”.[1] The existence of such an agreement between individuals to commit genocide (or “concerted agreement to act”[2]) is its material element (actus reus); furthermore, the individuals involved in the agreement must have the intent to destroy in whole or in part a national, ethnical, racial or religious group as such (mens rea).[3] [1] Ntagerura et al. Appeal Judgement, para. 92. See also Kajelijeli Trial Judgement, para. 787; Niyitegeka Trial Judgement, para. 423; Ntakirutimana Trial Judgement, para. 798; Musema Trial Judgement, para. 191. [2] The jurisprudence of the Tribunal refers to an “agreement” and to a “concerted agreement to act”, in which a number of individuals join (Ntagerura et al. Appeal Judgement, para. 92; Kajelijeli Trial Judgement, paras. 787‑788; Niyitegeka Trial Judgement, para. 423; Musema Trial Judgement, para. 191). [3] Niyitegeka Trial Judgement, para. 423; Musema Trial Judgement, para. 192. |
ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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344. […] Defined as an agreement between two or more persons to commit the crime of genocide,[1] the crime of conspiracy as set forth in Article 2(3)(b) of the Statute comprises two elements, which must be pleaded in the indictment: (i) an agreement between individuals aimed at the commission of genocide; and (ii) the fact that the individuals taking part in the agreement possessed the intent to destroy in whole or in part, a national, ethnical, racial or religious group, as such.[2] […] [1] Ntagerura et al. Appeal Judgement, para. 92. [2] See infra XIV. A. |
ICTR Statute Article 2(3)(b) ICTY Statute Article 4(3)(b) | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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127. The Appeals Chamber would begin by noting that Rule 45 quater of the Rules expressly states that a “Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused”. However, this rule was introduced by an amendment of 6 July 2002 and was therefore not applicable to the situation of Appellant Barayagwiza before this date. Nevertheless, the Appeals Chamber finds that Article 19(1) of the Statute already at that time allowed a Trial Chamber to instruct the Registry to assign a counsel to represent the interests of the accused, even against his will, when the accused had waived his right to be present and participate at the hearings. […]In the instant case, it was open to the Trial Chamber to fulfil this obligation by requesting the Registrar to assign counsel to represent the interests of Appellant Barayagwiza.[1] The Appeals Chamber can find no error or abuse of power on the part of the Trial Chamber. [1] This is, moreover, the solution subsequently adopted with the introduction of Rule 82 bis of the Rules. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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124. The Appeals Chamber further notes that it was the Appellant who instructed his Counsel “not to represent [him] in this trial”, as is evident from the aforementioned excerpt from Appellant Barayagwiza’s statement of 23 October 2000,[1] his letters of 23 and 24 October 2000[2] and the motion to withdraw Counsel for Jean-Bosco Barayagwiza.[3] The Appellant does not, moreover, contest that he gave such instruction to his Counsel. In the circumstances, the Appeals Chamber cannot find that the Trial Chamber should have compelled them to be more active in defending the Appellant. Such an intervention would not have been consistent with the role of a Trial Chamber of the Tribunal.[4] The appeal on this point is accordingly dismissed. 125. […] In effect, the Appellant’s attitude amounted to a waiver of the right to examine or to have examined the witnesses who were being heard at the time.[5] [See also para. 165 of the Appeals Judgement] [1] See supra, para. 113. [2] Letters from Jean-Bosco Barayagwiza dated 23 and 24 October 2000 respectively, attached to the [Motion for Withdrawal of Counsel for Jean-Bosco Barayagwiza] of 26 October 2000. In the first letter, addressed to Presiding Judge Pillay, Appellant Barayagwiza states: “Under no circumstances are they authorized to represent me in any respect whatsoever in this trial”. In the second letter, he reiterates: “[m]y counsels are instructed not to represent me in that trial”. [3] [Motion for Withdrawal of Counsel for Jean-Bosco Barayagwiza], 26 October 2000, paras. 2-4, 8. [4] As the Appellant himself acknowledges (see, for example, Barayagwiza Appellant’s Brief, para. 74), the proceedings at the Tribunal are essentially adversarial and it is the parties who are primarily responsible for the conduct of the debate. A Trial Chamber cannot dictate to a party how to conduct its case. [5] In this respect, the Appeals Chamber notes that the ECHR recognized that an accused can waive his right to examine or cross-examine a witness. See, inter alia, Vaturi v. France, No. 75699/01, ECHR (first section), Judgement of 13 April 2006, para. 53, and Craxi v Italy, No. 34896/97, ECHR (first section), Judgement of 5 December 2002, paras. 90-91. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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130. The Appeals Chamber has for long recognized, pursuant to Article 20(4)(d) of the Statute, the right of an indigent accused to be represented by competent counsel.[1] It recalls that Rule 44(A) of the Rules provides: Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law. Articles 13 and 14 of the Directive on the Assignment of Defence Counsel set out the qualifications and formal requirements that the Registrar must verify prior to the assignment of any counsel; the presumption of competence enjoyed by all counsel working with the Tribunal is predicated upon these guarantees. Therefore, for an appeal alleging incompetence of trial counsel to succeed, an appellant must rebut the presumption of competence of said counsel by demonstrating that there was gross professional misconduct or negligence which occasioned a miscarriage of justice.[2] 131. […] [T]he responsibility for drawing the Trial Chamber’s attention, in accordance with the appropriate procedure, to what he considers to be a breach of the Tribunal’s Statute and Rules lies in the first place with the appellant[3] who claims that his right to assistance of counsel at trial has been violated.[4] Failing that, he must establish on appeal that his counsel’s incompetence was so manifest as to oblige the Trial Chamber to act.[5] He must further demonstrate that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice. [1] Akayesu Appeal Judgement, paras. 76 and 78; Kambanda Appeal Judgement, para. 34 and footnote 49. [2] Prosecutor v. Momir Nikolić, Case No. IT-02-60/1-A, Public Redacted version of the Decision on Motion to Admit Additional Evidence, 9 December 2004, para. 36; Akayesu Appeal Judgement, paras. 77, 78, 80; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Decision on the Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, paras. 48-49. These three cases refer to Counsel’s “gross incompetence”. In one decision in Blagojević, the ICTY Appeals Chamber refers to “misconduct or manifest professional negligence” (Prosecutor v. Vidoje Blagojević, Case No.IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace his Defence Team, 7 November 2003, para. 32). In paragraph 23 of the Blagojević and Jokić Appeal Judgement, the Appeals Chamber evokes gross incompetence. [3] Kambanda Appeal Judgement, para. 23. This principle was evoked by the ICTY Appeals Chamber in the Tadić Appeal Judgment, para. 55, in connection with the right to have the necessary time and facilities for the preparation of one’s defence, and by the ICTR in the Kayishema and Ruzindana Trial Judgement, para. 64. The Appeals Chamber considers that this principle applies in the same way to any complaint as to the quality of an accused’s representation. [4] Under Article 45(H) of the Rules, the Trial Chamber may, under exceptional circumstances, intervene at the request of the accused or his counsel, by “[instructing] the Registrar to replace an assigned counsel, upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings”. Articles 19 and 20 of the Directive on the Assignment of Defence Counsel set out the conditions for, respectively, withdrawal and replacement of Counsel. [5] A recent decision of the European Court of Human Rights confirms the obligation on national authorities to intervene in the event of manifest incompetence by assigned Counsel: “the Court is of the view that the conduct of the applicant cannot in itself relieve the authorities of their duty to ensure that the Accused is effectively represented. The above-mentioned shortcomings of the court-appointed lawyers were manifest, which put the onus on the domestic authorities to intervene”; Sannino v. Italy, No. 30961/03, ECHR, Appeal Judgement of 27 April 2006, para. 51. See also Kamasinski v. Austria, No. 9783/82, ECHR, Appeal Judgement of 19 December 1989, para. 65 (“the competent national authorities are required under Article 6 §3(c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way.”) |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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139. The Appeals Chamber considers that, when the accused is represented, the presence of his counsel or co-counsel at the hearing is essential. Thus, a counsel who absents himself without having ensured that his co-counsel will be present is committing gross professional misconduct. The same can be said for counsel or co-counsel absenting himself while being the only representative for the Defence of the accused and while the presentation of evidence continues (save in exceptional circumstances).[1] Furthermore, in both cases the manifest misconduct of the representatives of the accused obliges the Trial Chamber to act, for example by ordering an adjournment, and if necessary by sanctioning such behaviour. 140. […] The Appeals Chamber is of the opinion that the evidence presented in the absence of Counsel and Co-Counsel of the Appellant cannot be relied on against him,[2] and it will determine below if the findings of the Trial Chamber should be upheld in the absence of that evidence. [1] In this regard, the Appeals Chamber notes that the appointment of legal assistants is not subject to the verifications provided for in Rule 44(A) of the Rules and Articles 13 and 14 of the Directive on the Assignment of Defense Counsel in order to guarantee the competence of Counsel and Co-Counsel (see supra, para. 130). In the absence of such guarantees, it cannot be considered that a legal assistant in a Defence team has authority to represent the accused on the same basis as Counsel or Co-Counsel under Article 20(4)(d) of the Statute. Hence, Counsel and Co-Counsel for Appellant Barayagwiza could not validly be replaced by legal assistants. [2] In a recent decision, the Appeals Chamber referred back to the Trial Chamber the assessment of the prejudice resulting from continuation of the cross-examination of a witness in the absence of one of the co-accused, specifying that it falls to the Trial Chamber, if need be, to exclude the portion of the testimony taken in the appellant’s absence or to recall the witness (The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Motion Interlocutory Appeal concerning his Right to Be Present at Trial, 5 October 2007, para. 16). In the instant case, taking into account the impossibility of recalling the witnesses having testified in the absence of Appellant Barayagwiza and of his Counsel and Co-Counsel, the Appeals Chamber must dismiss all of the testimony against him obtained in these circumstances. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 28.11.2007 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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158. As to the alleged conflict of interest between Appellant Barayagwiza and his Counsel Barletta-Caldarera, the Appeals Chamber endorses the ICTY’s view that “[a] conflict of interests between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice”.[1] [1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojić against Trial Chamber’s Decision on Request for Appointment of Counsel, 24 November 2004, para. 22 (footnote omitted). See also Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.2, Decision on Ivan Cermak’s Interlocutory Appeal against Trial Chamber’s Decision on Conflict of Interest of Attorneys Čedo Prodanović and Jadranka Sloković, 29 June 2007, para. 16; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.1, Decision on Miroslav Šeparović’s Interlocutory Appeal against Trial Chamber’s Decisions on Conflict of Interest and Finding of Misconduct, 4 May 2007, para. 23. |
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