| Text search | Notions | Case | Filing | Date range | Tribunal |
|---|---|---|---|---|---|
Showing 2493 results (20 per page)
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Expunging Disclosure - 30.10.2006 |
NAHIMANA et al. (Media case) (ICTR-99-52-A) |
|
|
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) |
|
|
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) |
|
|
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) |
|
|
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) |
|
|
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) |
|
|
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) |
|
|
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. |
||
| Notion(s) | Filing | Case |
| Decision on Voir Dire and Statements of the Accused - 27.10.2006 |
NTAHOBALI & NYIRAMASUHUKO (ICTR-97-21-AR73) |
|
|
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. |
||
| Notion(s) | Filing | Case |
| Decision on Voir Dire and Statements of the Accused - 27.10.2006 |
NTAHOBALI & NYIRAMASUHUKO (ICTR-97-21-AR73) |
|
|
Paragraphs 12 and 13 of the Interlocutory Appeal contain the ratio of the Decision, finding that the Trial Chamber had not gone beyond the discretion allocated to it on evidentiary and procedural matters: 12. The Defence for Mr. Ntahobali argues that this procedure adopted by the Trial Chamber was impermissibly informal[1] since prior statements of an accused should be subject to an inquiry conducted “in accordance with pre-established rules of law which are known to the parties”[2] and not by merely requiring the parties to indicate their views on whether the Rules were complied with in taking the Previous Statements.[3] The Defence for Mr. Ntahobali has not identified any error in the procedure adopted by the Trial Chamber. The voir dire procedure originates from the common law and does not have a strictly defined process in this Tribunal.[4] There are no provisions in the Rules which direct Trial Chambers to adopt a formal procedure for determining whether they should conduct a voir dire. Instead, Rule 89(B) of the Rules provides that reference may be made to evidentiary rules “which will best favour a fair determination of the matter”. This discretion can extend to the conduct of a voir dire procedure when it is determined appropriate by the Trial Chamber.[5] The procedure conducted by the Trial Chamber permitted the parties to make submissions as to whether the Prosecution and Co-Accused could use the Previous Statements to impeach Mr. Ntahobali. The Trial Chamber considered the submissions of the parties on whether it was necessary to grant the request for a voir dire procedure by the Defence of Mr. Ntahobali, and after finding that it was not necessary, the Trial Chamber determined the admissibility of the Previous Statements on the basis of the submissions made by the parties. At several stages during the hearing[6] the Trial Chamber affirmed that this was the procedure to be followed, in particular when it stated: We would like to hear the challenge, the basis of the challenge [to the admissibility of the Previous Statements]. And in the process, certainly, the Trial Chamber will examine the [admissibility] issue, including whether to determine the issue as presently presented, or whether there would be any need for voir – for trial within a trial, voir dire.[7] 13. Therefore, the parties were informed of the procedure the Trial Chamber was adopting and made submissions pursuant to this procedure.[8] Indeed, the procedure adopted by the Trial Chamber, while characterised as one adopted to determine whether a voir dire procedure was necessary, was very similar to a voir dire. The Trial Chamber heard the parties on the circumstances surrounding the taking of the Previous Statements, admitting a written affidavit from Mr. Ntahobali into evidence on that issue, and decided that no further evidence was required to determine whether the Previous Statements were in accordance with the Rules. The Appeals Chamber does not see any abuse of the Trial Chamber’s discretion in the way that it chose to proceed. [1] [The Prosecutor v. Arsène Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73 (Joint Case No. ICTR-98-42-T), Appel de l’Accusé Arsène Shalom Ntahobali à l’Encontre de la Décision Intitulée “Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 8 June 2006 (“Interlocutory Appeal”)], para. 5. [2] Interlocutory Appeal, para. 8. [3] Interlocutory Appeal, para. 6. [4] As an example of the flexibility with which the voir dire procedure is utilised at trial, voir dire examinations have previously been deferred to the cross-examination stage in determining a Witness’s qualification as an Expert Witness: Prosecutor v. Muvunyi, Case No. ICTR-2000-55A-T, Decision on the Prosecutor’s Motion for Admission of Testimony of Expert Witness Rule 92bis of the Rules, 24 March 2005, para. 27. See also [ The Prosecutor v. [efer Halilović, Case No. IT-01-48-AR73.2, Decision on Interlocutory Appeal Concerning Admission of Record of Interview of the Accused from the Bar Table, 19 August 2005, para. 5 (“Halilović Decision”)], para. 46 finding that a voir dire procedure is not necessarily required for identifying the voluntariness of an interview of an accused, although “there may be certain advantages in doing so.” [5] Halilović Decision, para. 46. [6]T. 9 May 2006, pp. 3, 16, 42; T. 15 May 2006, p. 16. [7]T. 9 May 2003, p. 16. [8] See the full submissions on T. 8 May 2006 pp. 76-78; T. 9 May 2006; T. 15 May 2006. |
ICTR Rule Rule 89(B) | |
| Notion(s) | Filing | Case |
| Decision on Voir Dire and Statements of the Accused - 27.10.2006 |
NTAHOBALI & NYIRAMASUHUKO (ICTR-97-21-AR73) |
|
|
Paragraph 16 of the Interlocutory Appeal affirms that confessions require consideration under Rule 63 as well as Rule 92 and is not an appropriate basis of distinction in holding a voir dire: 16. The Defence for Mr. Ntahobali further argues that the Trial Chamber erred by distinguishing the Previous Statements (as interviews by the Prosecution investigators) from a confession, in finding that a voir dire procedure is inappropriate in this case. The Appeals Chamber notes that a confession does indeed require additional consideration under the Rules as confessions are specially addressed under Rule 92 of the Rules. However, this provision requires the confession to be conducted in strict compliance with Rule 63 of the Rules. Therefore the distinction between confessions and interviews of the accused is not an appropriate basis for deciding when to conduct a voir dire because both forms of statements require the same consideration under Rule 63. However, contrary to submissions of the Defence for Mr. Ntahobali, the Trial Chamber did not merely rely upon such a distinction in deciding not to conduct a voir dire procedure as the Trial Chamber additionally found that the “circumstances of the case” did not require further investigation. |
ICTR Rule
Rule 63; Rule 92 ICTY Rule Rule 63; Rule 92 |
|
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
Decision, para. 27: 27. […] The Appeals Chamber agrees with Gotovina that a counsel’s duty of loyalty to a client extends even to cases where a client is not a party to the litigation. As stated under Article 14(D)(i) and (ii) of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, Counsel or his firm shall not represent a client with respect to a matter if: (i) such representation will be, or may reasonably be expected to be, adversely affected by representation of another client; (ii) representation of another client will be, or may reasonably be expected to be, adversely affected by such representation [. . .]. |
Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal. | |
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
Regarding the Accused’s right to choose counsel, the Appeals Chamber, at para. 30, recalled that […] while the right to choose counsel is a fundamental right under Article 21(4)(b) and (d) of the Statute, this right is not without limits.[1] An accused may choose counsel, but this right does not guarantee that counsel will accept if chosen or always remain counsel for that accused due to a perceived conflict of interests that may arise or for any other reason. As previously stated by the Appeals Chamber, “[o]ne of the limits to the accused’s choice is a conflict of interest affecting his counsel.”[2] [1] Prosecutor v. 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. [2] Decision, para. 30, citing Prosecutor v. 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 |
||
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
Čermak argued that by considering the amendment of the indictment together with the issue of joinder the Trial chamber skipped the indictment amendment procedure, preventing the defence from being heard and opposing the process of the amendment, and therefore violates the principle of a fair trial. The Appeals Chamber, however, held at para. 11: 11. […] First, Čermak fails to provide a basis in the Rules or in the jurisprudence of the International Tribunal in support of the proposition that it is required procedure for a Trial Chamber to consider amendments to the indictment first, separate from deciding on the issue of joinder. Furthermore, Čermak fails to demonstrate how addressing both issues together in one decision inevitably leads to a Trial Chamber skipping the appropriate analysis under Rule 50 of the Rules for determining whether proposed amendments to an indictment should be granted under the principle of a fair trial. […] |
ICTR Rule Rule 50 ICTY Rule Rule 50 | |
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
At para. 12, the Appeals Chamber held that the Trial Chamber originally assigned to a case must not necessarily be the Trial Chamber authorized to consider any proposed amendments to the indictment: 12. […] A Trial Chamber is fully capable of properly applying the principles of Rule 50 and determining whether amendments to the indictment should be granted, and it is irrelevant to that purpose whether or not the Trial Chamber considering proposed amendments was the Trial chamber originally assigned to the case. |
ICTR Rule Rule 50 ICTY Rule Rule 50 | |
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
With respect to Čermak’s arguments, asserting that the crimes for which he is charged cannot be part of the “same transactions” as his participation in the alleged joint criminal enterprise is said to have commenced at a different time, the Appeals Chamber, at para. 21, […] emphasizes that “the Trial Chamber is not required, at this stage in the proceedings, to determine whether there is sufficient evidence put forward by the Prosecution to support the allegations made against an accused in the indictment.”[1] Furthermore, there is no requirement that the acts or omissions alleged to form the same transaction took place at the same “exact” time or were committed together in the same “exact” place. What is essential is that there are factual allegations in the indictment sufficient to support a finding that the alleged acts or omissions form part of a common scheme, strategy or plan.[2] At para. 22, the Appeals Chamber, referring to the Kordić and Čerkez case, further held that the particular role that an accused is alleged to have played in the “same transaction” is not determinative. 22. […] The acts or omissions alleged against an accused may be found to be part of the “same transaction” with another accused so long as there are other factual allegations in the indictment sufficient to support a finding that they form part of a common scheme, strategy or plan. Nor is there any specific requirement that an accused is alleged to have made a substantial contribution to the joint criminal enterprise.[3] […] [1] Prosecutor v. Vinko Pandurević & Milorad Trbić, Case No. IT-05-86-AR73.1, Decision on Vinko Pandurević’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 24 January 2006 (“Pandurević Decision on Joinder”), para. 13. [2] Decision, para. 21, referring to Impugned Decision, paras 7, 17. [3] Decision, para. 22, referring to Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005, para. 97. |
ICTR Rule Rule 48 ICTY Rule Rule 48 | |
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
Čermak and Gotovina alleged that, in a joint trial, there is a potential for different defence theories between themselves resulting in different declarations regarding certain facts and thus giving rise to serious prejudice. The Appeals Chamber, however, held differently at para. 37: The Appeals Chamber agrees with the Trial Chamber that “[a] joint trial does not require a joint defence, and necessarily envisages the case where each accused may seek to blame the other.”[1] Likewise, the Appeals Chamber agrees that “the mere possibility of mutually antagonistic defences does not in itself constitute a conflict of interests capable of causing serious prejudice. This is because trials at the Tribunal are conducted by professional judges who are capable of determining the guilt or innocence of each accused.”[2] [1] Impugned Decision, para. 68 citing Prosecutor v. Brđanin and Talić, Case No. IT-99-36-PT, Decision on Motions by Momir Talić for a Separate Trial and for Leave to File a Reply, 9 March 2000 (“Brđanin and Talić Separate Trial Decision”), para. 29. See also Prosecutor v. Brđanin and Talić, Case No. IT-99-36-AR72.2, Decision on Request to Appeal, 16 May 2000; Prosecutor v. Popović et al., Case Nos. IT-02-57-PT, IT-02-58-PT, IT-02-63-PT, IT-02-64-PT, IT-04-80-PT, IT-05-86-PT, Decision on Motion for Joinder, 21 September 2005, para. 33; Prosecutor v. Ntahobali, Case No. ICTR-97-21-T, Joint Case No. ICTR-98-42-T, Decision on Ntahobali’s Motion for Separate Trial, 2 February 2005, paras 34-39. [2] Prosecutor v. Milan Martić, Case No. IT-95-11-PT, Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Prosecutor v. Šešelj, Case No. IT-03-67-PT, Decision on Prosecution Motion for Joinder, 10 November 2005; Brđanin and Talić Separate Trial Decision, para. 21, citing Prosecutor v. Simić et al., Case No. IT-95-9-PT, Decision on Defence Motion to Sever Defendant and Counts, 15 March 1999. |
ICTR Rule Rule 48 ICTY Rule Rule 48 | |
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
The Appeals Chamber held that joinder of cases will not adversely affect Čermak and Markač’s right to fair trial with undue delay, due to the fact that, even if they have been preparing longer than Gotovina for their trial, there is no start date for the trial in the immediate future.[1] With respect to Čermak and Markač’s argument that Gotovina’s case adds complexity to their case and will lead to a long and procedurally complicated trial in violation of their right to a fair trial without undue delay, the Appeals Chamber held at para. 44: 44. […] Two separate trials, whether conducted simultaneously or otherwise, are still likely to require more court hours in total than one joint trial and require more judicial time and resources. Furthermore, two separate trials will likely lead to duplication of efforts. In addition, in light of the significant overlap the Trial Chamber found between the two cases on the basis of the amended indictments, Čermak and Markač fail to demonstrate that a joint trial with Gotovina will lead to a long and procedurally complicated trial. […] The Trial Chamber reasonably exercised its discretion in finding that overall, in this case, joinder will promote judicial economy and this weighs in favour of granting joinder. [1] Decision, paras 40-41. |
ICTR Rule Rule 48 ICTY Rule Rule 48 | |
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
The Appeals Chamber noted the Trial Chamber’s consideration of the Prosecution’s position that “most [of its] witnesses for the two cases are identical and likely need to be called for both trials”.[1] Consequently, the Appeals Chamber found that there will be lesser hardship for some witnesses if only one trial is held and that this should weigh in favour of joinder.[2] Moreover, if some witnesses are specific for charges alleged with regard to just one of the appellants, it is unlikely that they will suffer hardship by being cross-examined by each Appellant for a total of three times. In any event, as previously noted by the Appeals Chamber, under Rule 90(F) of the Rules, the Trial Chamber can mitigate any potential burden to a witness caused by consecutive cross-examination because it “has discretion to regulate the examination of witnesses so as to avoid repetitive questioning during cross-examination” subject to the obligation to respect the rights of the accused.[3] [1] Impugned Decision, para. 77. [2] Decision, para. 47. [3] Ibid, para. 48, referring to Prosecutor v. Zdravko Tolimir, Radivoje Miletić & Milan Gvero, Case No. IT-04-80-AR73.1, Decision on Radivoje Miletić’s Interlocutory Appeal Against the Trial Chamber’s Decision on Joinder of Accused, 27 January 2006, para. 29. Rule 90 (F) provides that “[t]he Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time.” |
ICTR Rule Rule 48 ICTY Rule Rule 48 | |
| Notion(s) | Filing | Case |
| Decision on Joinder - 25.10.2006 |
GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2) |
|
|
The Appeals Chamber recalled that “the presentation of concurrent evidence or evidence that may not relate to an accused in the course of a joint trial does not, in and of itself, constitute serious prejudice to an accused. In determining the guilt or innocence of an accused, it is to be expected that Judges of the International Tribunal will only take into account that evidence adduced to establish guilt with respect to that accused only.”[1] [1] Decision, para. 38, referring to Pandurević Decision on Joinder, para. 25. |
ICTR Rule Rule 48 ICTY Rule Rule 48 | |
| Notion(s) | Filing | Case |
| Decision on Assignment of Counsel - 20.10.2006 |
ŠEŠELJ Vojislav (IT-03-67-AR73.3) |
|
|
In its Decision of 21 August 2006, Trial Chamber I had appointed a defence counsel to Šešelj and clarified that the accused could participate to the proceedings only through such counsel. The accused’s personal participation could only have been allowed by the Trial Chamber after having taken “into account all circumstances and after having heard from the Counsel”.[1] The Appeals Chamber, recalling a principle laid down in the Milošević case[2], affirmed that an accused can file submissions to the Appeals Chamber in an appeal filed by his Counsel, even if the authorization of the Trial Chamber is missing.[3] [1] Impugned Decision, para. 80. [2] Milošević Decision on Defence Counsel, paras. 7 and 16. [3] Decision, paras. 11-12. |
||