Conduct of the Prosecution and the relevant authorities

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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste

23. The Appeals Chamber considers that the Trial Chamber erred in finding that the length of Gatete’s pre-trial detention was not undue, given that it explicitly noted that the conduct of the Prosecution and the relevant authorities resulted in instances of pre-trial delay that could not be explained or justified.[1] By identifying such instances of pre-trial delay, the Appeals Chamber considers that the Trial Chamber itself ipso facto recognised that the conduct of the Prosecution and the relevant authorities unduly prolonged Gatete’s pre-trial detention. The Trial Chamber’s subsequent conclusion that “the delay was not undue” is thus incompatible with its prior acknowledgement that there were various pre-trial delays that could not be explained or justified. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in its assessment of the delays occasioned by the conduct of the Prosecution and the relevant authorities.

[1] See Trial Judgement, paras. 61, 62.

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c)
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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)

366.  As for the remaining arguments relating to the conduct of the Prosecution and of the other relevant authorities, the Appeals Chamber finds merit in the submission that the Trial Chamber erred in concluding that it did not need to “consider the conduct of the Prosecution or other legal authorities.”[1] As held repeatedly, the conduct of the parties and of the relevant authorities are relevant factors to take into account in determining whether an accused’s fundamental right to a trial without undue delay has been infringed.[2] Given the significant length of the instant proceedings at the time it delivered its judgement, it was incumbent upon the Trial Chamber to carefully assess whether, besides the complexity of the case, the conduct of the parties and of other relevant authorities may have contributed to any unjustifiable delays in this case.

367. Concerning the conduct of the Prosecution, the Appeals Chamber observes that, from their arrests to the commencement of the trial on 12 June 2001, Nyiramasuhuko, Ntahobali, and Nsabimana spent almost four years in pre-trial detention, Nteziryayo three years, and Kanyabashi and Ndayambaje six years. The Appeals Chamber accepts that preparing such a case for trial can reasonably require a lengthy period of time but emphasises that every effort should be made to bring cases to trial as expeditiously as possible.[3]


372. It transpires from the procedural history summarised above that the Prosecution’s failure to comply with its disclosure obligations and lack of readiness delayed the start of the trial by several months. Although the Prosecution acknowledged its lack of readiness and belatedness in fulfilling its disclosure obligations, upon which the start of the trial depended, it does not provide any explanation as to why it was not in a position to disclose some of the relevant materials despite express orders from the Trial Chamber or why it repeatedly changed the date for its readiness to commence trial. While the trial was postponed by one month as a result of the death of Judge Kama,[4] the record shows that the fact that the trial was delayed to spring 2001 was largely caused by the Prosecution’s inability to meet its disclosure obligations and lack of readiness. In light of the foregoing, the Appeals Chamber finds that the Prosecution’s failure to fulfill its disclosure obligations created unjustified delays in the start of the trial.

373. With respect to the trial phase, the Appeals Chamber observes that, as highlighted by Ntahobali and Kanyabashi, the trial phase lasted over eight years and was thus proportionally longer than in other multi-accused cases at the Tribunal.[5] The Appeals Chamber, however, stresses that a more accelerated pace of other multi-accused cases does not, in and of itself, demonstrate undue delay.[6]

374. As noted by the Trial Chamber, the length of the proceedings was increased in this particular case by the replacement of a judge in the course of the trial, the presentation of six Defence cases and the plurality of cross-examinations for every witness.[7] Although not taken into account by the Trial Chamber when examining whether undue delay occurred, the Appeals Chamber further observes that, during the trial phase, the judges sitting in this case were also involved in several other proceedings before the Tribunal. Indeed, the Trial Chamber expressly noted in the “Procedural History” section of the Trial Judgement that it was not able to sit in the Nyiramasuhuko et al. case: (i) from 4 to 25 July 2001, 1 to 5 October 2001, 26 November to 13 December 2001, 16 September to 9 October 2002, 18 November to 12 December 2002, and 31 March to 24 April 2003 because all three judges of the Trial Chamber were seised of the Kajelijeli case; and (ii) from 3 to 25 September 2001, 28 January to 19 February 2002, 6 to 14 May 2002, 19 August to 12 September 2002, 13 January to 30 April 2003, and 5 to 15 May 2003 because all three judges of the Trial Chamber were seised of the Kamuhanda case.[8] Moreover, the Appeals Chamber notes that: (i) Judge Bossa, who was assigned to the case on 20 October 2003, was also at the time assigned to the Ndindabahizi case, which was in session notably from 27 October to 28 November 2003 and on 1 and 2 March 2004;[9] (ii) all three judges of the Trial Chamber were also seised of the Bisengimana sentencing case, in which they sat on 17 November 2005, 7 December 2005, 19 January 2006, and 20 April 2006;[10] and (iii) all three judges of the Trial Chamber were seised of the Nzabirinda sentencing case, in which they sat on 14 December 2006, 17 January 2007, and 23 February 2007.[11]

375. It is unquestionable that the pace of the trial was affected by the judges’ obligations in other cases. Whereas the proceedings in this case needed interruptions so as to allow the parties to prepare,[12] the judges’ obligations in other cases prevented them from sitting in this case for approximately 36 weeks. In light of the time required to dispose of the motions filed in these other cases, deliberate on their merits, and write the judgements, these additional obligations also necessarily significantly reduced the time the Trial Chamber judges could devote to the present case.

376. The Appeals Chamber observes that it was practice for judges of the Tribunal to participate simultaneously in multiple proceedings given the workload of the Tribunal during the relevant period.[13] It also notes that significant efforts were made by the authorities of the Tribunal to obtain the necessary resources to complete its mandate while ensuring the utmost respect for the rights of all accused.[14] However, in the particular circumstances of this case where the co-Accused had already been in detention for nearly 4 to 6 years at the start of the trial and which had already suffered from significant delays,[15] the Appeals Chamber concludes that the additional delays resulting from the judges’ simultaneous participation to other proceedings caused undue delay. The Appeals Chamber recalls that logistical considerations should not take priority over the trial chamber’s duty to safeguard the fairness of the proceedings.[16] In the same vein, the Appeals Chamber is of the view that organisational hurdles and lack of resources cannot reasonably justify the prolongation of proceedings that had already been significantly delayed.[17]

[1] Trial Judgement, para. 143.

[2] See supra, para. 346.

[3] See Renzaho Appeal Judgement, para. 240.

[4] In this respect, the Appeals Chamber rejects Ndayambaje’s undeveloped claim that the death of Judge Kama unduly delayed the commencement of the trial. See supra, fn. 856.

[5] For example:

- in the Ndindiliyimana et al. case, a four-accused case, the trial phase extended over four years and nine months;

- in the Bizimungu et al. case, a four-accused case, the trial phase lasted over five years;

- in the Bagosora et al. case, a four-accused case, the trial phase lasted for five years and two months; and

- in the Nahimana et al. case, a three-accused case, the trial phase lasted two years and ten months.

See Ndindiliyimana et al. Trial Judgement, Annex A, paras. 34, 134; Bizimungu et al. Trial Judgement, Annex A, paras. 29, 81; Bagosora et al. Trial Judgement, Annex A, paras. 2314, 2367; Nahimana et al. Trial Judgement, para. 94.

[6] See Mugenzi and Mugiraneza Appeal Judgement, para. 32.

[7] Trial Judgement, para. 139.

[8] Trial Judgement, paras. 6345, 6349, 6357, 6361, 6367, 6377, 6379, 6384, 6386, 6389, fns. 159, 160.

[9] See Ndindabahizi Trial Judgement, Section I.4, paras. 17, 21.

[10] See Bisengimana Sentencing Judgement, Section VI.A, paras. 220, 228, 233.

[11] See Nzabirinda Sentencing Judgement, Section II.A, paras. 9, 48.

[12] As regards the Prosecution’s heavy reliance on the fact that most of the co-Accused repeatedly requested more time to prepare their defence, the Appeals Chamber emphasises that an accused cannot be blamed for trying to take full advantage of the resources afforded by the law in their defence as long as his conduct is not obstructive. Noting that the right to a fair trial in Article 20 of the Statute is in pari materia with Article 6 of the European Convention on Human Rights, the Appeals Chamber considers that the jurisprudence of the European Court of Human Rights (“ECtHR”) may provide useful guidance for the interpretation of the right to trial without undue delay. In this regard, see, e.g., Yagci and Sargin v. Turkey, ECtHR, Nos. 16419/90 and 16426/90, Judgment, 8 June 1995, para. 66. Regarding the reliance on the jurisprudence of the ECtHR, see Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006, paras. 18, 19.

[13] During the Nyiramasuhuko et al. trial, the Tribunal’s trial chambers were seised of 38 cases involving 53 accused.

[14] The Appeals Chamber notes that, in 2002, in response to the request made by the then President of the Tribunal to complete its tasks within a reasonable amount of time in order to “respect the rights of the accused and to meet the expectations of the victims, Rwandan society and the United Nations”, the Security Council established a pool of ad litem judges. See “Identical Letters dated 14 September 2001 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council”, UN Doc. A/56/265-S/2001/764, 19 September 2001, Appendix, p. 7; Security Council Resolution 1431 (2002), UN Doc. S/RES/1431, 6 September 2002, paras. 1, 2.

[15] The Appeals Chamber refers to the delays caused by the Prosecution’s lack of readiness, the replacement of Judge Maqutu, and the inability of witnesses to travel from Rwanda to Arusha as scheduled. See supra, paras. 364, 370-372.

[16] See Sainović et al. Appeal Judgement, para. 101; Haradinaj et al. Appeal Judgement, para. 46.

[17] The Appeals Chamber notes that the United Nations Human Rights Committee, the African Commission on Human and People’s Rights, and the ECtHR have held that it is for the contracting States to organise their legal systems in such a way that their courts can meet the requirement of a trial within a reasonable time. See, e.g., B. Lubuto v. Zambia, Human Rights Committee, Communication No. 390/1990 (Views adopted on 31 October 1995), UN Doc. CCPR/C/55/D/390/1990 (1995), 3 November 1995, para. 7.3 (“The Committee has noted the State party's explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author's arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c).”); Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice), 13 April 1984, para. 10 (Views adopted on 12 May 2003), UN Doc. HRI/GEN/1/REV.6, p. 137 (“Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place “without undue delay”. To make this right effective, a procedure must be available in order to ensure that the trial will proceed “without undue delay”, both in first instance and on appeal.”); Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v. Ethiopia, African Commission on Human and People’s Rights, Communication No. 301/05, 12 October 2013, para. 235 (“The African Commission also agrees with the Complainants that the complexity of a case should not debar domestic courts from acting with due diligence in dealing with a case on the Merits. At any rate, it is the responsibilities of States Parties to the African Charter to organize their judiciary in such a way that the right guaranteed in Article 7 (1) (d) of the Charter can be effectively enjoyed”) (internal references omitted); EKO-Energie, SPOL. S.R.O v. The Czech Republic, ECtHR, No. 65191/01, Judgment, 17 May 2005, para. 33 (“The Court recalls that the Convention places a duty on the Contracting States to organize their legal system so as to allow the courts to comply with the requirements of Article 6 § 1 of the Convention, including that of trial within a reasonable time. Nonetheless, a temporary backlog of business might not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind.”); Mansur v. Turkey, ECtHR, No. 16026/90, Judgment, 8 June 1995, para. 68; Dobbertin v. France, ECtHR, No. 13089/87, Judgment, 25 February 1993, para. 44; Vocaturo v. Italy, ECtHR, No. 11891/85, Judgment, 24 May 1991, para. 17 (“As regards the excessive workload, the Court points out that under Article 6 para. 1 (art. 6-1) of the Convention everyone has the right to a final decision within a reasonable time in the determination of his civil rights and obligations. It is for the Contracting States to organise their legal systems in such a way that their courts can meet this requirement.”); Abdoella v. The Netherlands, ECtHR, No. 12728/87, Judgment, 25 November 1992, para. 24 (“Article 6 para. 1 (art. 6-1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements”.). See also Jean Paul Genie-Lacayo v. Nicaragua, Inter-American Court of Human Rights, Judgment, 29 January 1997, paras. 39, 80 (“There is excessive delay regarding the application for judicial review filed on 29/8/94 which still has not been disposed of. Even considering complexity of case, and excuses, impediments and substitution of judges of the Supreme Court of Justice, the 2 years that have elapsed since the application was admitted is not reasonable and a breach of art8(1).”).

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