[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. 

[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.

[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”.

[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.

[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.

[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. 

[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.

[1] Decision, paras 40-41.