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| Decision on Withdrawal of Co-Counsel - 23.11.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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9. The Appeals Chamber has inherent power to review decisions of the Tribunal’s President concerning withdrawal of counsel where such decisions are closely related to issues involving the fairness of proceedings on appeal and if the procedure provided by Article 19 of the Directive has been followed. However, such review is neither a rehearing, nor an appeal, nor is it in any way similar to the review which a Chamber may undertake of its own judgement in accordance with Rule 119 of the Rules.[2] The Appeals Chamber recalls that judicial review of an administrative decision in relation to legal aid under the Directive is primarily concerned with the regularity of the procedure by which the Registrar and/or the President reached the impugned decision.[3] The decision will be quashed if the Registrar or the President: (a) failed to comply with the legal requirements of the Directive, or (b) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or (c) took into account irrelevant material or failed to take into account relevant material, or (d) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[4] The Appeals Chamber also specified that “[t]hese issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar [or President], but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled”.[5] Finally, in the review, the party contesting the administrative decision bears the onus of persuasion and must show that (a) an error of the nature described has occurred, and (b) that such error has significantly affected the impugned decision to his detriment.[6] [1] Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, 3 May 2005, paras 4 and 7; Decision on “Appellant Hassan Ngeze’s Motion for Leave to Permit his Defence Counsel to Communicate with him during Afternoon Friday, Saturday, Sunday and Public Holidays”, 25 April 2005, p. 3; Prosecutor v. Vidoje Blagojević, Case No. IT-02-60-AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojevic to Replace His Defence Team, 7 November 2003 (“Blagojević Appeal Decision”), para. 7. See also, Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR.73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003 (“Milutinović et al. Decision”), para. 19; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Request of Withdrawal of Defence Counsel), 2 February 2000, p. 2. [2] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003 (“Kvočka Decision”), para. 13. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on the Defence Motions for the Reinstatement of Jean Yaovi Degli as Lead Counsel for Gratien Kabiligi, 19 January 2005 (“Bagosora Decision of 19 January 2005”), para. 37; Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision [of the President] Affirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005, para. 4; The Prosecutor v. Vesselin Šljivančanin, Case No. IT-95-13/1-PT, Decision [of the President] on Assignment of Defence Counsel, 20 August 2003, para. 22 (“Šljivančanin Decision”). [3] Kvočka Decision, para. 13. See also Bagosora Decision of 19 January 2005, para. 37; Šljivančanin Decision, para. 22. [4] Id. [5] Kvočka Decision, para. 13. [6] Kvočka Decision, para. 14; Prosecutor v. Vidoje Blagojević & Dragan Jokić, Case No. IT-02-60-T, Decision on Independent Counsel for Vidoje Blagojević’s Motion to Instruct the Registrar to Appoint New Lead and Co-Counsel, 3 July 2003 (“Blagojević Trial Decision”), para. 116. |
Other instruments Directive on the Assignment of Defence Counsel (ICTR): Article 19. | |
| Notion(s) | Filing | Case |
| Decision on Withdrawal of Co-Counsel - 23.11.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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10. It has been repeatedly emphasized that the right to legal assistance financed by the Tribunal does not confer the right to counsel of one’s choosing.[1] When deciding on the assignment of counsel, some weight is accorded to the accused’s preference, but such preference may be overridden if it is in the interests of justice to do so.[2] The Appeals Chamber further recalls that an indigent accused does not have a right to a co-counsel, but, where appropriate and at the request of the lead counsel, the Registrar may appoint a co-counsel to assist the assigned lead counsel.[3] Accordingly, where co-counsel has been appointed and subsequently withdrawn, there is no guarantee that the co-counsel will be replaced.[4] Finally, the Appellant’s personal preferences are irrelevant to assignment or withdrawal of co-counsel.[5] [1] Blagojević Appeal Decision, para. 22 and footnote 54; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR73.1, Decision on Appeal by the Prosecution to Resolve Conflict of Interest Regarding Attorney Jovan Simić, 6 October 2004, para. 8; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001 (“Akayesu Appeal Judgement”), para. 61; Jean Kambanda v. The Prosecutor, Case No. ICTR 97-23-A, Judgement, 19 October 2000, para. 33. See also The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Maitre Paul Skolnik’s Application for Reconsideration of the Chamber’s Decision to Instruct the Registrar to Assign him as Lead Counsel for Gratien Kabiligi, 24 March 2005 (“Bagosora Decision of 24 March 2005”), para. 21; Bagosora Decision of 19 January 2005, para. 45; The Prosecutor v. Tharcisse Muvunyi et al., Case No. ICTR-2000-55-I , Decision on the Accused’s Request to Instruct the Registrar to Replace Assigned Lead Counsel, Article 20(4)(d) of the Statute and Rules 45 and 73 of the Rules of Procedure and Evidence, 18 November 2003, para. 6. [2] Barayagwiza Decision, p. 3; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.1, Decision on Appeal by Bruno Stojjić Against Trial Chamber Decision on Request for Appointment of Counsel, 24 November 2004, para. 19; Blagojević Appeal Decision, para. 22; Akayesu Appeal Judgement, para. 62. See also Bagosora Decision of 24 March 2005, para. 21; Blagojević Trial Decision, paras 86, 117; Prosecutor v. Duško Knežević, Case No. IT-95-4-PT, Decision on Accused’s Request for Review of Registrar’s Decision as to Assignment of Counsel, 6 September 2002, p. 3; The Prosecutor v. Gérard Ntakirutimana, Case Nos. ICTR-96-10-T and ICTR-96-17-T, Decision on the Motions of the Accused for Replacement of Assigned Counsel/Corr., 18 June 1997, p. 5. [3] Directive, Article 15(C) and (E). See The Prosecutor v. Augustin Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Defence Oral Motion for Adjournment of the Proceedings, 8 October 2004, para. 6 ; Le Procureur c. Aloys Simba, Affaire no ICTR-01-76-I, Décision portant report de la date d’ouverture du procès, 18 août 2004, para. 24 ; Blagojević Trial Decision, paras 77, 79, 118; Prosecutor v. Radislav Brđanin, Case No. IT-99-36-T, Confidential Order Relating to Lead Counsel’s Appeal from Registrar’s Confidential Decision of 7 March 2003, 1 April 2003, p. 7. [4] Blagojević Trial Decision, para. 79. [5] Cf. Blagojević Appeal Decision, para. 54. |
ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) | |
| Notion(s) | Filing | Case |
| Decision on Withdrawal of Co-Counsel - 23.11.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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16. Furthermore, the Appeals Chamber notes that proceedings in this appeal have been delayed for a significant time,[1] notably as a result of changes in the representation of the Appellant.[2] The Appeals Chamber also notes that the request for withdrawal of Co-Counsel came at a late stage of the proceedings, after the Appellant has filed his Reply Brief. At this stage, the introduction of a new co-counsel, unfamiliar with the case, will inevitably result in undue delay,[3] given that this person will require some time to get familiar with the case and its documents.[4] An unnecessary replacement of the current Co-Counsel who is thoroughly familiar with the case and who has already dedicated hundreds of hours to the Appellant’s appeal would be detrimental to the Appellant’s right to be tried fairly and expeditiously.[5] The Appeals Chamber thus finds that the Registrar and the President did not err in taking these factors into account.[6] [1] Decision on Jean Bosco Barayagwiza’s Motion Concerning the Registrar’s Decision to Appoint Counsel, 19 January 2005, p. 3. [2] See supra, paras 3-4. As a result of the change of Lead Counsel as well as the appointment of a new Defence team, including the current Co-Counsel, the current versions of the Appellant’s Notice of Appeal and Appellant’s Brief were filed as late as 12 October 2005, i.e. almost two years after the Trial Judgement. [3] See Bagosora Decision, para. 22; Blagojević Trial Decision, para. 119. [4] Prosecutor v. Radislav Brđanin, Case No. IT-99-36-T, Decision on Defence Motion for Adjournment, 10 March 2003, p. 2. [5] Cf. Blagojević Appeal Decision, para. 50. [6] Registrar’s Submissions, para. 12; President’s Decision, paras 6 and 8. |
Other instruments Directive on the Assignment of Defence Counsel (ICTR): Article 19. | |
| Notion(s) | Filing | Case |
| Decision on Withdrawal of Co-Counsel - 23.11.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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15. Moreover, the Appeals Chamber is satisfied that the Registrar and the President properly took into account other particular circumstances of the case, such as the potential delay in the proceedings as well as the proper use of the Tribunal’s resources.[1] Indeed, in the circumstances where no misconduct or manifest professional negligence on the part of the counsel is established, factors such as the efficient management of resources are directly relevant to the decision not to permit withdrawal of counsel.[2] […] [1] See Akayesu Appeal Judgement, para. 60; Prosecutor v. Vinko Martinović, Case No. IT-98-34-A, Decision by the Registrar re: Assignment of Counsel to Vinko Martinović, 19 May 2003, p. 2; Prosecutor v. Sefer Halilović, Case No. IT-01-48-PT, Decision by the Registrar to Withdraw the Assignment of Mr. Caglar as Counsel to the Accused and to Assign Mr. Hodžić, 18 February 2003, p. 2; Prosecutor v. Ranko Česić, Case No. IT-95-10/1-PT, and Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Decision by the Registrar, 6 January 2003, p. 2; The Prosecutor v. Pauline Nyiramasuhuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali’s Motion for Withdrawal of Counsel, 22 June 2001, paras 17-19; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Request by Accused Mucić for Assignment of New Counsel, 24 June 1996, para. 5. [2] Blagojević Appeal Decision, para. 32. |
Other instruments Directive on the Assignment of Defence Counsel (ICTR): Article 19. | |
| Notion(s) | Filing | Case |
| Review Decision - 23.11.2006 |
BLAŠKIĆ Tihomir (IT-95-14-R) |
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79. The Appeals Chamber recalls that it has recently been held that “cogent reasons in the interests of justice” demand a departure from the holding in the Čelebići Judgement on Sentence Appeal[1] that the Appeals Chamber has inherent power to reconsider its final judgement.[2] In the Žigić case, the Appeals Chamber considered that reconsideration of a final judgement is not consistent with the Statute of the International Tribunal, which provides for the right of appeal and the right of review, but not for a second right of appeal through reconsideration. Furthermore, it was reasoned that to allow for findings underlying a conviction, which have been affirmed on appeal, to be contested “on the basis of mere assertions of errors of fact or law is not in the interests of justice to the victims of crimes or the convicted persons, who are both entitled to certainty and finality of legal judgements.”[3] Finally, the Appeals Chamber found that the existing appeal and review proceedings under the Statute provide for sufficient guarantees of due process for the parties in a case before the International Tribunal.[4] 80. On the basis of this precedent and for the reasons stated therein, the Appeals Chamber holds that it does not have inherent power to reconsider the Appeals Judgement. [1] Prosecutor v. Zdravko Mucić, Hazim Delić and Esad Landzo, Case No. IT-96-21-Abis, Judgement on Sentence Appeal, 8 April 2003. [2] Prosecutor v. Zoran Žigić a/k/a “Ziga”, Case No. IT-98-30/1-A, Decision on Zoran Žigić’s “Motion for Reconsideration of Appeals Chamber Judgement IT-98-30/1-A Delivered on 28 February 2006”, 26 June 2006, para. 9. [3] Ibid. [4] Ibid. |
ICTR Statute Article 25 ICTY Statute Article 26 | |
| Notion(s) | Filing | Case |
| Review Decision - 23.11.2006 |
BLAŠKIĆ Tihomir (IT-95-14-R) |
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7. The combined effect of Article 26 of the Statute and Rules 119 and 120 of the Rules is such that for a moving party to succeed in persuading a Chamber to review its judgement, the party must first satisfy the following cumulative requirements:[1] a) there is a new fact; b) the new fact was not known to the moving party at the time of the original proceedings; c) the failure to discover the new fact was not due to a lack of due diligence on the part of the moving party; and d) the new fact could have been a decisive factor in reaching the original decision. 8. In “wholly exceptional circumstances”, review may still be permitted even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] In such a case, where a Chamber “is presented with a new fact that is of such strength that it would affect the verdict […],” it may determine that review of its judgement is necessary because the impact of the new fact on the decision is such that to ignore it would lead to a miscarriage of justice.[3] [1] See Prosecutor v Josipović, Case No. IT-95-16-R2, Decision on Motion for Review, 7 March 2003 para. 12 (“Josipović Review Decision”). See also Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Request for Review, 30 June 2006 (“Niyitegeka Review Decision”), paras. 6-7; Prosecutor v. Žigić, Case No. IT-98-30/1-R.2, Decision on Zoran Žigić’s Request for Review under Rule 119, 25 August 2006, para. 8; Prosecutor v. Radić, Case No. IT-98-30/1-R.1, Decision on Defence Request for Review, 31 October 2006 (“Radić Review Decision”), para. 10. [2] Josipović Review Decision, para. 13, citing Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000 (“Barayagwiza Review Decision”), para. 15; Niyitegeka Review Decision, para. 7; Radić Review Decision, para. 11. [3] Prosecutor v Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002 (“Tadić Review Decision”), paras. 26, 27 (emphasis added). |
ICTR Statute Article 25 ICTY Statute Article 26 ICTR Rule Rule 120; Rule 121 ICTY Rule Rule 119; Rule 120 | |
| Notion(s) | Filing | Case |
| Review Decision - 23.11.2006 |
BLAŠKIĆ Tihomir (IT-95-14-R) |
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17. In a review proceeding, the moving party defines for the Chamber its purported “new facts.” It is then for the review Chamber to compare those alleged new facts against the previously litigated facts as found in the plain language of the final judgement or decision at issue and the record underlying that final judgement or decision. Where the “new facts” are identical to facts already at issue, then review under Rule 119 is not available. Of course, at times, the facts previously litigated are not entirely clear and they could be interpreted more broadly or narrowly vis-à-vis the alleged new facts. In those cases, the review Chamber does not, a priori, decide to interpret the previous facts more narrowly. It will, after considering the final judgement or decision and underlying record, weigh the arguments of the parties in order to determine the most appropriate characterization of the facts as they were considered by the original Chamber for purposes of comparing them to the purported “new facts.” 18. The Appeals Chamber does not consider that its past jurisprudence supports the Prosecution’s position that, as a rule, review Chambers have maintained a narrow focus on previously litigated facts despite there being “broad facts” that were at issue in the original proceedings to which the proffered “new facts” were related. In other words, the Appeals Chamber does not find that past review Chambers have been inclined to compare alleged “new facts” against “narrow facts” previously litigated rather than against related “broad facts” in the original proceedings. Rather, the focus has rightly been on looking to the previously litigated facts that are most relevant vis-à-vis the alleged “new fact”, whether “broad” or “narrow”, to determine whether they preclude the availability of a review. |
ICTR Statute
Article 25
ICTY Statute
Article 26
ICTR Rule
Rule 120 Rule 121 ICTY Rule Rule 119 Rule 120 |
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| Notion(s) | Filing | Case |
| Decision on Withdrawal of Co-Counsel - 23.11.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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At paras 11-14, the Appeals Chamber recalls that such exceptional circumstances, assessed case by case, might be constituted by a breakdown of trust, but not by an accused’s refusal to cooperate and, in the present case, by the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy. 11. Under Article 19(A)(ii) of the Directive the Registrar may, in exceptional circumstances and at the request of lead counsel, withdraw the assignment of co-counsel.[1] The burden of proof of existence of such circumstances squarely lies on lead counsel.[2] The Appeals Chamber emphasizes that each case must be considered on its own and that what constitutes exceptional circumstances justifying a request for withdrawal may vary from one case to another. In addition, exceptional circumstances justifying withdrawal of a co-counsel might be substantially different from those applicable to withdrawal of a lead counsel. 12. The Appeals Chamber considers that the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy does not constitute an exceptional circumstance justifying a withdrawal of Co-Counsel. The Appeals Chamber notes that, in most decisions holding that a breakdown of trust between the accused and his legal representatives constituted an exceptional circumstance justifying the withdrawal of assignment, the breach of trust was attributable to one or more of the following circumstances: alleged incompetence or lack of knowledge of the Rwandan context and history; a lack of initiative in the defence of the accused; an exceptional workload incompatible with other professional commitments; a breach of professional responsibilities, including the obligation to communicate with the client; and misconduct or manifest negligence.[3] No allegations of this kind were made against Co-Counsel in the present case. Therefore, the Appeals Chamber is not convinced that the Registrar’s Decision and the President’s Decision contradict the Tribunal’s jurisprudence. 13. The Appeals Chamber recalls that, according to the jurisprudence of both the Tribunal and the ICTY, an accused’s refusal to cooperate with his lawyers does not constitute an exceptional circumstance warranting the Registrar’s withdrawal of assigned counsel.[4] More precisely, an accused does not have the right to unilaterally destroy the trust between himself and his counsel, or to claim a breakdown in communication through unilateral actions, in the hope that such actions will result in the withdrawal of his counsel by the Registrar.[5] A lack of trust in counsel based on disagreements in approach to one’s defence strategy is distinguishable from a lack of trust due to a breach by counsel in fulfilling his professional and ethical responsibilities in the course of representation.[6] Thus, a divergence of opinion as to the defence strategy cannot in itself justify that there is a loss of trust in the counsel’s abilities or commitment to the case. It is even more so when the divergence is between an appellant and a co-counsel, whose mandate is to assist the lead counsel.[7] 14. In the present case, Lead Counsel did not provide the Registrar with any specific complaints regarding the performance of Co-Counsel that may have warranted her disqualification on the grounds of ineffective assistance or breach of professional duties. The Appeals Chamber rejects the Appellant’s argument that it is sufficient “to state in broad terms” that the trust and confidence have broken down[8] and, consequently, finds that it was open to the Registrar and the President to conclude that the Appellant’s request for withdrawal was not justified.[9] [1] The Appeals Chamber notes that Article 20(A) of the ICTY Directive on the Assignment of Defence Counsel No. 1/94, IT/73/REV.11 does not contain the requirement of “exceptional circumstances” and instead refers to “the interests of justice”. This difference should be born in mind when making parallels between the jurisprudence of the two Tribunals. [2] See Blagojević Trial Decision, para. 116. [3] See The Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision by the Registrar of Withdrawal of Mrs. Danielle Girard as Co-Counsel for the Accused François-Xavier Nzuwonemeye, 13 October 2005, p. 3; Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-T, Decision by the Registrar of Withdrawal of Mr. Alfred Pognon, Lead Counsel for Athanase Seromba, 10 May 2005, p. 3; Blagojević Trial Decision, para. 119; The Prosecutor v. Theoneste Bagosora, Case No. ICTR-96-7-T, Decision on the Request by the Accused for Change of Assigned Counsel, 26 June 1997; Prosecutor v. Duško Tadić, Case No IT-94-1-A, Registrar’s Decision on Withdrawal of Co-Counsel, 2 September 1997, p. 1; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on the Request of the Accused for the Replacement of Assigned Counsel, 20 November 1996, pp. 2-3. [4] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision Affirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005 (“Milošević Decision of 2005”), para. 9. [5] Blagojević Appeal Decision, para. 51. See also Bagosora Decision of 24 March 2005, paras 21, 30; The Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Assigned Counsel’s Motion for Withdrawal, 7 December 2004 (“Milošević Decision of 2004”), para. 18; Blagojević Trial Decision, para. 100. [6] Blagojević Trial Decision, paras 106, 120. [7] See supra, para. 10. [8] Motion, para. 5. [9] Cf. Blagojević Trial Decision, para. 90 confirmed by Blagojević Appeal Decision. |
Other instruments ICTY Directive on the Assignment of Defence Counsel, Article 19(A)(ii) | |
| Notion(s) | Filing | Case |
| Review Decision - 23.11.2006 |
BLAŠKIĆ Tihomir (IT-95-14-R) |
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14. The Appeals Chamber recalls that a new fact within the meaning of Article 26 of the Statute and Rules 119 and 120 of the Rules refers to “new information of an evidentiary nature of a fact that was not in issue during the trial or appeal proceedings”.[1] This “means that it must not have been among the factors that the deciding body could have taken into account in reaching its verdict.”[2] In other words, “[w]hat is relevant is whether the deciding body […] knew about the fact or not” in arriving at its decision.[3] [1] Prosecutor v Jelisić, Case No. IT-95-10-R, Decision on Motion for Review, 2 May 2002 (“Jelisić Review Decision”), p. 3. [2] Tadić Review Decision, para. 25. [3] Ibid.; see also Niyitegeka Review Decision, para. 6. |
ICTY Statute
Article 26
ICTY Rule
Rule 119; Rule 120 |
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| Notion(s) | Filing | Case |
| Review Decision - 23.11.2006 |
BLAŠKIĆ Tihomir (IT-95-14-R) |
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22. The Appeals Chamber recalls that “[t]he jurisprudence of the Tribunal with respect to proceedings under Article 26 of the Statute and Rule 119 is clear”: “review is only available with respect to final judgement.”[1] A “final judgement” in the sense of those provisions under the Statute and Rules is a decision “which terminates the proceedings; only such a decision may be subject to review.”[2] […] 23. The Appeals Chamber considers that the above cited jurisprudence establishes that the scope of review proceedings before the International Tribunal does not extend to decisions reached during the ongoing proceedings in a case prior to the rendering of the final judgement or final decision. Indeed, in the Barayagwiza Review Decision, the Appeals Chamber explicitly held that interlocutory decisions are not subject to review after the rendering of the final judgement or final decision.[3] Review proceedings are, by their very nature, extraordinary and exceptional because they allow for the re-opening of a closed case and thus, are limited to the final judgement or decision in a case, especially in light of the fact that there is no time-limit for an accused seeking review. If decisions reached prior to the final judgement or final decision were also subject to review, the outcome of a case would always be in question and the parties would never reach resolution. […] [1] Josipović Review Decision, para. 15; see also Niyitegeka Review Decision, para. 8; Tadić Review Decision, para. 14; Barayagwiza Review Decision, para. 49. [2] Barayagwiza Review Decision, para. 49. [3] Barayagwiza Review Decision, fn. 64. |
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| Decision on Translation of Exhibits - 20.11.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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The Appeals Chamber recalled that, at the appellate stage, a request for revision of translation of trial exhibits can only be granted if a party demonstrates that there exist legitimate doubts on the accuracy of the material in question and that it is in the interests of just to clarify them. Moreover, the Appeals Chamber emphasized that, at an advanced stage of the appellate proceedings, such request could only be granted if the party can show that it would be necessary in order to avoid a miscarriage of justice. 13. Pour justifier, au stade de l’appel, une demande de révision de la traduction de pièces à conviction déposées en première instance, l’Appelant doit démontrer que des doutes légitimes existent quant à l’exactitude de la traduction et qu’il est dans l’intérêt de la justice de clarifier la question à ce stade de la procédure[1]. Considérant le stade avancé de la procédure d’appel en l’espèce, la Chambre d’appel n’accordera une telle demande que si elle considère, au vu des traductions visées par l’Appelant, que l’exclusion de ces documents conduirait à un déni de justice. […] Enfin, la contestation de l’interprétation retenue par la Chambre de première instance s’agissant d’un document traduit, ainsi que les allégations selon lesquelles la Chambre de première instance n’a pas pris en considération des documents que l’Appelant estime pertinents, y compris les documents non traduits, relèvent de l’appel au fond et ne seront donc pas examinées dans la présente décision. [See also paras 15 and 17] [1] Voir, par analogie, The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases No. ICTR-96-10-A and ICTR-96-17-A, Decision on Defence Motion to Strike Annex B from the Prosecution Response Brief and for Re-Certification of the Record, 24 June 2004, p. 3. |
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| Review Decision - 31.10.2006 |
RADIĆ Mlađo (IT-98-30/1-R.1) |
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At paras 9-11, the Appeals Chamber recalled the law applicable to review proceedings: 9. Review proceedings are governed by the following provisions of the Statute and Rules: Article 26 of the Statute provides that: Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgement. Rule 119 deals with the request for review and stipulates that: Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place. Rule 120 provides for a preliminary examination and states that: If a majority of Judges of the Chamber constituted pursuant to Rule 119 agrees that the new fact, if proved, could have been a decisive factor in reaching a decision, the Chamber shall review the judgement, and pronounce a further judgement after hearing the parties. 10. The combined effect of these provisions of the Statute and the Rules is that in order for a Chamber to proceed to the review of its decision, the moving party must demonstrate that: there is a new fact; the new fact was not known to the moving party at the time of the proceedings before the Trial Chamber or the Appeals Chamber; the lack of discovery of the new fact was not due to a lack of diligence on the part of the moving party; and the new fact, if proved, could have been a decisive factor in reaching the original decision.[1] 11. In "wholly exceptional circumstances", where the impact of a new fact on the decision would be such that to ignore it would lead to a miscarriage of justice, the Chambers may review their decision even though the new fact was known to the moving party, or was discoverable by it through the exercise of due diligence.[2] As stated in the Tadić Review: the Appeals Chamber, whenever it is presented with a new fact that is of such strength that it would affect the verdict, may, in order to prevent a miscarriage of justice, step in and examine whether or not the new fact is a decisive factor, even though the second and third criteria under Rule 119 of the Rules may not be formally met.[3] [1] Prosecutor v. Niyitegeka, Case No. ICTR-96-14-R, Decision on Request for Review (“Niyitegeka Review”), para. 6; Prosecutor v. Josipović, Case No. IT-95-16-R.2, Decision on Motion for Review, 7 March 2003 ("Josipović Review"), para. 12; Prosecutor v. Delić, Case No. IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002 ("Delić Review"), para. 8; Prosecutor v. Tadić, Case No. IT-94-1-R, Decision on Motion for Review, 30 July 2002, ("Tadić Review"), para. 20; Prosecutor v. Barayagwiza, Case No. ICTR-97-19-AR72, Decision on Prosecutor’s Request for Review or Reconsideration, 31 March 2000, ("Barayagwiza Review"), para 41. [2] Josipović Review, para. 13 citing Barayagwiza Review, para. 65. See also Niyitegeka Review, para. 7. [3] Tadić Review, para 27. |
ICTR Statute
Article 25
ICTY Statute
Article 26
ICTR Rule
Rule 120; Rule 121 |
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| Notion(s) | Filing | Case |
| Decision on Expunging Disclosure - 30.10.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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6. The Appeals Chamber recalls that the Prosecution’s obligation under Rule 68 of the Rules is positive and continuous,[1] and that the determination of what material meets Rule 68 disclosure requirements is primarily a fact-based judgement made by and under the responsibility of the Prosecution.[2] The Prosecution “is under no legal obligation to consult with an accused to reach a decision on what material suggests the innocence or mitigates the guilt of an accused or affects the credibility of the Prosecution’s evidence”.[3] Therefore, the Appeals Chamber would not intervene in the exercise of the Prosecution’s discretion, unless it is shown that the Prosecution abused it and, where there is no evidence to the contrary, will assume that the Prosecution is acting in good faith.[4] [1] Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006 (“Bralo Decision”), para. 29; Prosecutor v. Théoneste Bagosora et al., Case Nos ICTR-98-41-AR73, ITCR-98-41-AR73(B), Decision on Interlocutory Appeals on Witness Protection Orders, 6 October 2005, para. 44; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, [confidential] Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Paško Ljubičić under Rule 68, 30 March 2004 (“Blaškić 30 March 2004 Decision”), para. 32; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (“Blaškić26 September 2000 Decision”), paras 29-32. [2] Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006, para. 16; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Appellant’s Motion for Disclosure Pursuant to Rule 68 and Motion for an Order to the Registrar to Disclose Certain Materials, 7 December 2004 (“Brđanin 7 December 2004 Decision”), p. 3; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Appeal Judgement, 29 July 2004 (“Blaškić Appeals Judgement”), para. 264; Prosecutor v. Tihomir Blaškić, Case No IT-95-14-A, Decision on Prosecution’s Application to Seek Guidance from the Appeals Chamber regarding Redaction of the Statement of “Witness Two” for the purposes of Disclosure to Dario Kordić under Rule 68, 4 March 2004, (“Blaškić 4 March 2004 Decision”), para. 44; Blaškić 30 March 2004 Decision, paras 31-32; Blaškić26 September 2000 Decision, paras 38, 45. [3] Kordić and Čerkez, Case No. IT-95-14/2-A, Judgement, 17 December 2004, para. 183; Blaškić Appeals Judgement, para. 264; Blaškić 4 March 2004 Decision, para. 44. [4] Bralo Decision, para. 31; Brđanin 7 December 2004 Decision, p. 3; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision, 22 March 2004, p. 3; Georges Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Decision on Urgent Defence Motion for Disclosure and Admission of Additional Evidence and Scheduling Order, 12 December 2002, pp 4-5; Alfred Musema v. Prosecutor, Case No. ICTR-96-13-A, Decision on the Appellant’s Motions for the Production of Material, Suspension of Extension of the Briefing Schedule, and Additional Filings, 18 May 2001, p. 4; Blaškić 26 September 2000 Decision, para. 39. |
ICTR Rule Rule 68 ICTY Rule Rule 68 | |
| Notion(s) | Filing | Case |
| Decision on Expunging Disclosure - 30.10.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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8. […] The appropriate procedure for disclosure of materials under Rule 68 of the Rules when a case is before the Appeals Chamber is to serve the Defence with such material.[1] Where the Prosecution files its disclosure with the Registry for purposes of keeping it in the Registry archives, the Prosecution shall do so without copying the Appeals Chamber. Where the Prosecution considers it necessary to advise the Appeals Chamber of its further disclosures of Rule 68 material to the Defence, it may file a status report before the Appeals Chamber informing them of the fact and date but not the nature of that disclosure or the communicated material. 12. The Appeals Chamber hereby INSTRUCTS the Prosecution to follow the procedure described in paragraph eight above for its future disclosures under Rule 68 of the Rules. The Appeals Chamber also INSTRUCTS the Registry to ensure that any copies of disclosures filed with it by the Prosecution are to be kept in its records without communicating the disclosed material to the Appeals Chamber. [1] In this respect, the Appeals Chamber recalls its recent decision, in which it held that the Prosecution’s obligation under Rule 68(A) of the Rules “extends beyond simply making available its entire evidence collection in a searchable format”, since it “cannot serve as a surrogate for the Prosecution’s individualized consideration of the material in its possession”. (Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.7, Decision on Interlocutory Appeal Regarding the Role of the Prosecutor’s Electronic Disclosure Suite in Discharging Disclosure Obligations, 30 June 2006, para. 10). The Appeals Chamber also found that the EDS does not make documents “reasonably accessible as a general matter”, nor does it allow to assume that the Defence knows about all material included therein, to the extent that the Prosecution could be relieved of its Rule 68 obligation. (Ibid., para. 15). In this sense, it has been suggested that the Prosecution should either “separate[] a special file for Rule 68 material or draw[] the attention of the Defence to such material in writing and permanently update[] the special file or the written notice”. (Id.) See also Bralo Decision, para. 35. |
ICTR Rule Rule 68 ICTY Rule Rule 68 | |
| Notion(s) | Filing | Case |
| Decision on Expunging Disclosure - 30.10.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
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9. [T]he Appeals Chamber recalls that under Rule 75(F)(ii), the Prosecution, in discharge of its disclosure obligations, should notify the Defence to whom the disclosure is being made of the nature of the applicable protective measures. The Appeals Chamber notes that such notification was included by the Prosecution in the Impugned Disclosure.[1] Consequently, the Appeals Chamber finds the Appellant’s contention that the Prosecution failed to meet its Rule 75(F) obligation irrelevant and in any case moot in light of Michel Bagaragaza’s open session testimony in the Zigiranyirazo case on 13 June 2006. [1] Impugned Disclosure, para. 3: “Mr. Jean-Bosco Barayagwiza is therefore reminded of his obligation to maintain the strict confidentiality of the disclosed statements. Mr. Michel Bagaragaza is a protected witness as exemplified in the attached Trial Chamber decisions in The Prosecutor v. Protais Zigiranyirazo”. |
ICTR Rule Rule 75 ICTY Rule Rule 75 | |
| Notion(s) | Filing | Case |
| Decision on Interlocutory Appeal - 30.10.2006 |
ZIGIRANYIRAZO Protais (ICTR-01-73-AR73) |
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8. Article 20(4)(d) of the Statute provides that an accused has a right “to be tried in his or her presence.” This right has been equated with other “indispensable cornerstone[s] of justice”, such as the right to counsel, the right to remain silent, the right to confront witnesses against them, and the right to a speedy trial.[1] […] [1] Slobodan Milošević v. The Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, paras. 11, 13 (“Milošević Appeal Decision”). |
ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) | |
| Notion(s) | Filing | Case |
| Decision on Interlocutory Appeal - 30.10.2006 |
ZIGIRANYIRAZO Protais (ICTR-01-73-AR73) |
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Introductory note: The accused challenged the Trial Chamber’s decision to hear a key prosecution witness, Michel Bagaragaza, testify in person in The Netherlands, while only allowing the accused to participate in the proceedings via video-link from Arusha (with the ability of counsel present in the Netherlands to intervene in the proceedings). Basing his challenge on Article 20(4)(d) of the Statute, the accused alleged that proceeding in this manner violated his fundamental right to be tried in his presence. 11. The Appeals Chamber considers that the physical presence of an accused before the court, as a general rule, is one of the most basic and common precepts of a fair criminal trial. The language and practical import of Article 20(4)(d) of the Statute are clear. First, as a matter of ordinary English, the term “presence” implies physical proximity.[1] A review of the French version of the Statute leads to the same conclusion, in particular in the context of the phrase “être présente au procès”,[2] conveying unambiguously that Article 20(4)(d) refers to physical presence at the trial.[3] 12. Both the Tribunal’s legal framework and practice as well as that of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) further reflect that Article 20(4)(d) provides for the physical presence of an accused at trial, as opposed to his facilitated presence via video-link. Initially, the Appeals Chamber observes that such a procedure, over an accused’s objection, is unprecedented before the Tribunal and before the ICTY.[4] It is not surprising, therefore, that there are no express provisions in the Statute and Rules of this Tribunal or of the ICTY for the participation of an accused by video-link in his or her own trial.[5] Indeed, Rule 65bis of the ICTY Rules of Procedure and Evidence illustrates very clearly that participation via video-link is not considered presence.[6] The same distinction between actual presence and constructive presence via video-link, which is evident in Rule 65bis of the ICTY Rules, also appears in the Statute of the International Criminal Court[7] and the Rules of Procedure and Evidence of the Special Court for Sierra Leone.[8] The Appeals Chamber further observes that other international,[9] regional,[10] and national[11] systems also share the view that the right to be present at trial implies physical presence. 13. The Appeals Chamber, therefore, confirms that an accused’s right to be tried in his or her presence implies a right to be physically present at trial. Applying the foregoing to the present case leads the Appeals Chamber to conclude that by proceeding as it did, the Trial Chamber restricted the Appellant’s right to be present at his trial. However, this does not end the necessary inquiry. Outcome of the decision: Paras 15, 17-20: Assessing whether the Trial Chamber properly exercised its discretion in restricting the accused’s right to be present at his trial, the Appeals Chamber noted that the Trial Chamber’s decision was predicated on Mr. Bagaragaza’s security concerns, the impact of video-link on the assessment of the witness, and logistical concerns preventing the Appellant from travelling to The Netherlands. Affirming that these objectives were of general importance, the Appeals Chamber was not satisfied that the Trial Chamber properly exercised its discretion in deciding to impose limitations on the Appellant’s right to be present at his trial. First, the Appeals Chamber agreed that by testifying for the Prosecution, Mr. Bagaragaza could be exposed to an increased risk to his security. However, the Appeals Chamber found the security concern alluded to by the Trial Chamber was not in fact related to the location of his testimony, or that injury could only be avoided by having Mr. Bagaragaza testify in The Netherlands. The Appeals Chamber also noted that the Trial Chamber failed to consider whether additional security measures might have allayed security threats posed to Mr. Bagaragaza if he were brought to Arusha to testify. Second, the Appeals Chamber noted that if the Trial Chamber had misgivings about its ability to adequately follow the testimony of a key witness through the use of video-link then such considerations applied with equal force to the ability of the accused and his counsel to follow the evidence and proceedings via video-link as well. Finally, the Appeals Chamber noted that the accused’s inability to attend proceedings in The Netherlands did not result from any action on his own part. Careful consideration of the feasibility of moving the trial to The Netherlands at the earliest opportunity, the Appeals Chamber suggested, might have identified the logistical barriers and feasible alternatives that would have avoided the situation as it currently stands. Paras 21: Additionally, while the Trial Chamber attempted to give effect to the principle of the equality of arms by having the Prosecution also examine the witness from Arusha, the Appeals Chamber held that this remedial measure did not compensate for the accused’s independent, minimum guarantee to be present at his own trial. The Appeals Chamber noted that although the accused had counsel present in The Netherlands at the proceedings, the accused himself was thousands of kilometres away, connected to the proceedings only by means of audio-visual equipment. Finally, the Appeals Chamber emphasized that both the Trial Chamber and the Prosecution considered Mr. Bagaragaza as a key witness against the accused. Paras 22-25: Based on the foregoing, the Appeals Chamber held that the Trial Chamber’s restrictions on the Appellant’s fair trial rights were unwarranted and excessive and thus failed the test of proportionality. Consequently, the Appeals Chamber determined that allowing the testimony of Mr. Bagaragaza to remain on the record would seriously damage the integrity of the proceedings, and that Rule 95 of the Rules required the exclusion of the testimony. [1] See, e.g., The Oxford English Dictionary, Second Edition, Volume XII, p. 393 (for the definition of “presence”: “The fact or condition of being present; the state of being before, in front of, or in the same place with a person or thing; being there; attendance, company, society, association. Usually with of or possessive indicating the person or thing that is present.”), p. 395 (for the definition of “present”: “An adjective of relation; expressing a local or temporal relation to a person or thing which is the point of reference […] Being before, beside, with, or in the same place as the person to whom the word has relation; being in the place considered or mentioned; that is here (or there) […]”); Black’s Law Dictionary, Eighth Edition, (for the relevant definition of “presence”: “The state or fact of being in a particular place and time […]. Close physical proximity coupled with awareness […]”). See also United States v. Navarro, 169 F.3d 228, 234-239 (5th Cir. 1999) (interpreting the plain meaning of “presence” as requiring the physical presence of a defendant in court). [2] Emphasis added. [3] Le Nouveau Petit Robert, p. 1768 (for the definition of “présente” : “Qui est dans le lieu, le groupe se trouve la personne qui parle ou de laquelle on parle”); Gerard Cornu, Vocabulaire Juridique, p. 664 (“Qui se trouve ou se trouvait à un moment donné en un lieu déterminé. […] Qui concourt en personne l’accomplissement d’un acte ou au déroulement de la procédure. […]”). [4] In the case of Milan Simić before the ICTY, the accused participated in his sentencing hearing towards the end of the trial process via video link because of his health condition. The Trial Chamber expressly noted, however, that during this period Mr. Simic filed a total of twenty-five waivers of his right to be present in court. See The Prosecutor v. Milan Simić, Sentencing Judgement, Case No. IT 95-9/2-S, 17 October 2002, para. 8. [5] The Tribunal’s Rules and jurisprudence only contemplate the use of video-link technology in order to transmit the testimony of a witness to the court, if justified in narrow circumstances for witness protection concerns, or otherwise in the interests of justice. Rule 75 provides in pertinent part (emphasis added): “(A) A Judge or a Chamber may […] order appropriate measures to safeguard the privacy and security of victims and witness, provided that the measures are consistent with the rights of the accused. (B) A Chamber may hold an in camera proceeding to determine whether to order notably: (i) […] (c) giving of testimony through […] closed circuit television […] (iii) Appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.” In addition to specific witness protection concerns, the Tribunal’s jurisprudence also allows the hearing of a witness by video-link if it is otherwise in the interests of justice. See, e.g., The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Testimony by Video-Conference, 20 December 2004, para. 4 (“Video-conference testimony should be ordered where it is in the interests of justice, as that standard has been elaborated in ICTR and ICTY jurisprudence.”). The Rules of Procedure and Evidence of the ICTY authorize this explicitly in Rule 71bis (“At the request of either party, a Trial Chamber may, in the interests of justice, order that testimony be received via video-conference link.”). [6] Rule 65bis(C) of the ICTY Rules provides in pertinent part: “With the written consent of the accused, given after receiving advice from his counsel, a status conference under this Rule may be conducted: (i) in his presence, but with his counsel participating either via tele-conference or video-conference; or (ii) in Chambers in his absence, but with his participation via tele-conference if he so wishes and/or participation of his counsel via tele-conference or video-conference.” [7] See Statute of the International Criminal Court, Article 63 (“(1) The accused shall be present during the trial. (2) If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.”). [8] The Appeals Chamber notes that Article 17(4)(d) of the Statute of the Special Court for Sierra Leone is identical to Article 20(4)(d) of the Tribunal’s Statute. Notably, similar to the International Criminal Court, Rule 80(B) of the Rules of Procedure and Evidence for the Special Court in Sierra Leone envisions an accused’s participation in his or her trial by video-link only after he or she has been removed for persistently disruptive conduct. This Rule provides in pertinent part: “In the event of removal, where possible, provision should be made for the accused to follow the proceeding by video-link.” [9] See supra notes 44, 45 [here: notes 8 and 9] (discussing the International Criminal Court and the Special Court for Sierra Leone). The Appeals Chamber further observes that the language of Article 20(4)(d) of the Statute tracks Article 14 of the International Covenant on Civil and Political Rights. Under this provision, the Human Rights Committee has referred to an accused’s personal attendance at the proceedings as a component of a fair trial. See Views of the Human Rights Committee under Article 5, Paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, Communication No. 289/1988: Panama 8 April 1992, CCPR/C/44/289/1988 (Jurisprudence), para. 6.6 (“The Committee recalls that the concept of a 'fair trial' within the meaning of article 14, paragraph I, must be interpreted as requiring a number of conditions, such as equality of arms and respect for the principle of adversary proceedings. These requirements are not respected where, as in the present case, the accused is denied the opportunity to personally attend the proceedings, or where he is unable to properly instruct his legal representative.”) (Emphasis added). [10] The European Convention on the Protection of Human Rights and Fundamental Freedoms refers in Article 6(3)(c) to an accused’s right “to defend himself in person […] ”. For the European Court of Human Rights, this implies the personal attendance of a defendant at trial as well as in certain procedures on appeal requiring the court to have personal impression of the defendant. See, e.g., Case of Stoichkov v. Bulgaria, Application no. 9808/02, Judgment, 24 March 2005, para. 56 (“It may thus be considered that the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial after he or she emerges – ranks as one of the essential requirements of Article 6 and is deeply entrenched in that provision.”); Case of Sejdovic v. Italy, Application no. 56581/00, Judgment, 1 March 2006, para. 84; Case of Michael Edward Cooke v. Austria, Application no. 25878/94, Judgement, 8 February 2000, paras. 35, 42, 43. (“The Court recalls that a person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance hearing. However, the personal attendance of the defendant does not necessarily take on the same significance for an appeal hearing.”); Case of Colozza v. Italy, Application No. 9024/80, Judgment, 12 February 1985, para. 27 (“Although this is not expressly mentioned in paragraph 1 of Article 6 (art. 6-1), the object and purpose of the Article taken as a whole show that a person 'charged with a criminal offence' is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 (art. 6-3-c, art. 6-3-d, art. 6-3-e) guarantee to 'everyone charged with a criminal offence' the right 'to defend himself in person', 'to examine or have examined witnesses' and 'to have the free assistance of an interpreter if he cannot understand or speak the language used in court', and it is difficult to see how he could exercise these rights without being present.”). See also Stefan Trechsel, Human Rights in Criminal Proceedings, pp. 252-253 (2006). [11] Presence is also equated with physical presence in criminal trials in the United States. See, e.g., Federal Rule of Criminal Procedure 43(a). Federal Rules of Criminal Procedure 5 and 10 envision video-conferencing only, with the defendant’s consent, at the initial appearance and arraignment. See also Illinois v. Allen, 397 U.S. 337, 338 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial”); United States v. Navarro, 169 F.3d 228, 234-239 (5th Cir. 1999) (holding that an accused’s participation in his sentencing hearing by video-conference violated his right to be present at trial); United States v. Reynolds, 44 M.J. 726, 729 (United States Army Court of Criminal Appeals 1996)(“Consequently, the statutory and [Rules for Court Martial] provisions cited above appear to require that the military judge, accused, and counsel all to be at one location for the purpose of a court-martial. This interpretation not only comports with custom and tradition, but also is the one that best guarantees justice. For these reasons, we are satisfied that the telephonic procedures utilized in this case, when based on the meager justification of saving time and travel funds between two installations approximately 150 miles apart, did not comport with any reasonable concept of 'presence' anticipated by the [Uniform Code of Military Justice] and [Rules for Court Martial].”)(internal citations omitted); Riggins v. Nevada, 504 U.S. 127, 142 (1992)(Kennedy, J., concurring)(“It is a fundamental assumption of the adversary system that the trier of fact observes the accused throughout the trial, while the accused is either on the stand or sitting at the defense table. This assumption derives from the right to be present at trial, which in turn derives from the right to testify and rights under the Confrontation Clause. […] At all stages of the proceedings, the defendant's behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial. If the defendant takes the stand, as Riggins did, his demeanor can have a great bearing on his credibility and persuasiveness, and on the degree to which he evokes sympathy. The defendant's demeanor may also be relevant to his confrontation rights […]”) (internal citations omitted). In addition, in England and Wales, the right of an accused to be present in court at his or her trial is a matter of common law. See R. v. Lee Kun (1916) 1 Kings Bench Reports 337, at 341 (“There must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity [...] of answering it. The presence of the accused means not only that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings."). In Canada, an accused also has the right to be present in court during the trial. The Canadian Criminal Code envisions the possibility of an accused participating in his or her trial by video-link, but not for the hearing of evidence, unless he or she consents. See Canadian Criminal Code, Title XX, Section 650. |
ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) | |
| Notion(s) | Filing | Case |
| Decision on Interlocutory Appeal - 30.10.2006 |
ZIGIRANYIRAZO Protais (ICTR-01-73-AR73) |
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14. The parties acknowledge that an accused’s right to be tried in his or her presence is not absolute.[1] The ICTY Appeals Chamber has observed as much,[2] and this Appeals Chamber agrees. An accused person can waive or forfeit the right to be present at trial. For example, Rule 80(B) of the Rules allows a Trial Chamber to remove a persistently disruptive accused. Referring to the equivalent provision in the ICTY Rules, the ICTY Appeals Chamber observed that an accused’s right to be present for his or her trial can be restricted “on the basis of substantial trial disruptions”.[3] In assessing a particular limitation on a statutory guarantee, the Appeals Chamber bears in mind the proportionality principle, pursuant to which any restriction on a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.[4] The explicit exception provided by Rule 80(B) and the ICTY Appeals Chamber’s reference to “substantial trial disruptions” provide a useful measure by which to assess other restrictions on the right to be present at trial. (emphasis added) [1] Zigiranyirazo Appeal, para. 44; Prosecution Response, para. 11. [2] Milošević Appeal Decision, para. 13 (“If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right to self -representation any differently.”). [3] Milošević Appeal Decision, para. 13. [4] Milošević Appeal Decision, para. 17. The Appeals Chamber further notes that the situation envisioned under Rule 15bis, allowing inter alia proceedings to continue for a limited period in the absence of one of the judges, does not inform the present dispute which concerns the absence of the accused. |
ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) | |
| Notion(s) | Filing | Case |
| Decision on Interlocutory Appeal - 30.10.2006 |
ZIGIRANYIRAZO Protais (ICTR-01-73-AR73) |
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The ICTR Appeals Chamber recalled the following: 9. Decisions relating to the general conduct of trial proceedings are matters within the discretion of the Trial Chamber. A Trial Chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion. [1] The Prosecutor v. Théoneste Bagosora et al., Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, Case No. 98-41-AR73, 25 September 2006, para. 6 (“Bagosora Appeal Decision”); Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-AR73(C), Decision on Interlocutory Appeal, 29 May 2006, para. 5 (“Muvunyi Appeal Decision”). [2] Bagosora Appeal Decision, para 6; Muvunyi Appeal Decision, para. 5. See also The Prosecutor v. Théoneste Bagosora et al., Case Nos. ICTR-98-41-AR73, ICTR-98-41-AR73(B), Decision on Interlocutory Appeals of Decision on Witness Protection Orders, 6 October 2005, para. 3. |
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| Notion(s) | Filing | Case |
| Decision on Voir Dire and Statements of the Accused - 27.10.2006 |
NTAHOBALI & NYIRAMASUHUKO (ICTR-97-21-AR73) |
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Footnote four of the Interlocutory Appeal cites the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the Tribunal, Section III(8) read together with Section I, permitting ten days from the filing of an interlocutory appeal for the filing of a response. |
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