Waiver of the right to attend trial

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)

On the basis of its review of multiple relevant sources,[1] the Appeals Chamber concluded:

107. It clearly emerges from the aforementioned concurring instruments and jurisprudence that, however firmly the right of the accused to be tried in his presence may be established in international law, that did not, on 23 October 2000, preclude the beneficiary of such right from refusing to exercise it.[2] Insofar as it is the accused himself who chooses not to exercise his right to be present, such waiver cannot be assimilated to a violation by a judicial forum of the right of the accused to be present at trial. Such right is clearly aimed at protecting the accused from any outside interference which would prevent him from effectively participating in his own trial; it cannot be violated when the accused has voluntarily chosen to waive it.

109. Pursuant to the foregoing case-law, the Appeals Chamber concludes that waiver by an accused of his right to be present at trial must be free and unequivocal (though it can be express or tacit) and done with full knowledge.[3] In this latter respect, the Appeals Chamber finds that the accused must have had prior notification as to the place and date of the trial, as well as of the charges against him or her. The accused must also be informed of his/her right to be present at trial and be informed that his or her presence is required at trial. The Appeals Chamber finds further that, where an accused who is in the custody of the Tribunal decides voluntarily not to be present at trial, it is in the interests of justice to assign him or her Counsel in order, in particular, to guarantee the effective exercise of the other rights enshrined in Article 20 of the Statute.[4] Moreover, Rule 82 bis of the Rules, which allows the Trial Chamber to adjust the proceedings where an accused has refused beforehand to be present during his or her trial, also imposes such conditions.[5]

116. In light of the foregoing, the Appeals Chamber finds that Appellant Barayagwiza freely, explicitly and unequivocally expressed his waiver of the right to be present during his trial hearings, after he had been duly informed by the Trial Chamber of the place and date of the trial, of the charges laid against him, of his right to be present at those hearings, and that his presence was required. At this stage of the analysis, the Appeals Chamber cannot determine any error in the finding reached by the Trial Chamber in regard to the Appellant’s refusal to attend trial. As to whether his interests were represented by counsel, the Appeals Chamber will now address this question, and accordingly reserves its overall finding on his third ground of appeal until the end of that analysis.

[1] Daniel Monguya Mbenge et al. v. Democratic Republic of the Congo, Communication No. 16/1977, UN Doc. CCPR/C/18/D/16/1977, 25 September 1983, para. 14(1); C. v. Italy, European Commission on Human Rights, No. 10889/84, ECHR, Decision of 11 May 1988 on the Admissibility of the Application; Medenica v. Switzerland, No. 20491/92, ECHR, Judgement, 14 June 2001, paras. 54-59; Somogyi v. Italy, No. 67972/01, ECHR, Judgement, 18 May 2004, para. 66; Sejdovic v. Italy, No 56581/00, ECHR, Judgement, 10 November 2004, paras. 30-31 (Judgement affirmed by the Grand Chamber of the European Court of Human Rights: Judgement, 1 March 2006); R.R. v. Italy, No. 42191/02, ECHR, Judgement, 9 June 2005, para. 50 ; Battisti v. France, No. 28796/05, ECHR, (Second Section) Décision sur la recevabilité du 12 décembre 2006 (irrecevabilité) ; The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, prepared by the African Human Rights Commission in 2001, point (N)(6)(c)(3); Prosecutor v. Milan Simić, Case No. IT 95-9/2-S, Sentencing Judgement, 17 October 2002, para. 8 and footnote 18; Rule 60(A)(i) and (B) of the Rules of the Special Court for Sierra Leone.

[2] The Appeals Chamber notes that the language of Article 63(1) of the Statute of the International Criminal Court (“The accused shall be present during the trial”) appears to express an obligation of the accused rather than a right. However, Article 61(2)(a) of the ICC Statute allows a Pre-Trial Chamber to hold a hearing to confirm the charges in the absence of the accused in the event that the accused has waived his or her right to be present.

[3] In fact, this is a similar standard to the one applied in assessing the validity of a suspect’s waiver of his right to be assisted by counsel during his or her questioning pursuant to Rule 42(B) of the Rules, (see The Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on the Prosecutor’s Motion for the Admission of Certain Materials Under Rule 89(C) of the Rules of Procedure and Evidence, 14 October 2004, paras. 18-19) or the validity of an accused’s waiver of his right not to testify against himself (see Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Vidoje Blagojević’s Oral Request, 30 July 2004, p. 8). See also Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Decision on Motion for Exclusion of Statement of Accused, 8 July 2005, paras. 22-23.

[4] Regarding this last point, the Appeals Chamber refers the reader to the section of the present Appeal Judgement on the right of Appelant Barayagwiza to legal assistance (paras 117-192)

[5] For an example of the application of Rule 82 bis, see Rwamakuba Trial Judgement, para. 9.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 82 bis
Notion(s) Filing Case
Order in Relation to the Appeal Hearing - 18.09.2017 ŠEŠELJ Vojislav

Pages 1-3

CONSIDERING that Šešelj has the right to be present at the upcoming hearing and that his presence is required;

CONSIDERING that Šešelj may waive his right to appear before the Appeals Chamber only if his interests are represented by counsel;

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;


CONSIDERING that, if Šešelj is unable to travel to The Hague for the hearing, he may request, pursuant to Rule 96 of the Rules, to participate therein by way of video-conference link;

[1] See Article 19(4)(d) of the Statute. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 16 May 2008 (original French version filed on 28 November 2007), paras. 96, 109 (“Nahimana et al. Appeal Judgement”).

[2] See Rules 98 and 131 of the Rules.

[3] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, paras. 10-12.

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IRMCT Statute Article 19(4)(d) IRMCT Rule Rule 96;
Rule 98;
Rule 131