23. There is no question that, as the Trial Chamber recognized and held in the Impugned Decision, Mr. Rwamakuba is entitled to an effective remedy for the violation of his right to legal assistance as well as his right to an initial appearance without delay. Trial Chamber II recognized the existence of these violations,[1] and the Appeals Chamber indicated that Mr. Rwamakuba could “seek reparation” for them.[2] Moreover, the Appeals Chamber, after considering nearly identical violations in the Kajelijeli Appeal Judgement, reached the same conclusion and, accordingly, reduced the sentence imposed in that case.[3] The two principal questions for the Appeals Chamber are whether the Tribunal is empowered to award financial compensation as an effective remedy for a violation of the fundamental rights of the accused and, if so, whether it was appropriate to award Mr. Rwamakuba financial compensation as an effective remedy in the present case.

24. The Appeals Chamber has previously held that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy.”[4] It follows very plainly from the Appeals Chamber’s decisions in the Barayagwiza and Semanza cases that a remedy for a violation of the rights of the accused may include an award of financial compensation, as both decisions envisioned financial compensation being fixed at the time of judgement, if the accused were acquitted.[5] In this respect, the Appeals Chamber is not persuaded by the Registrar’s submissions that the absence of an explicit provision providing for financial compensation in the Statute for violations of the rights of the accused as well as the Security Council’s decision not to amend the Statute to expressly include such a remedy indicate that it is not available.

25. First, while there is no right to compensation for an acquittal per se, there is a right in international law to an effective remedy for violations of the rights of the accused, as reflected in Article 2(3)(a) of the ICCPR.[6] In this respect, the ICCPR specifically envisions compensation as an appropriate remedy in certain circumstances, such as the case of unlawful arrest or detention.[7] The Appeals Chamber has previously held that the ICCPR is a persuasive authority in determining the Tribunal’s powers under international law.[8]

26. The authority in the Statute to provide an effective remedy flows from Article 19(1) of the Statute, which obliges the Trial Chambers to ensure a fair trial and full respect for the accused’s rights. The existence of fair trial guarantees in the Statute necessarily presumes their proper enforcement.[9] In this respect, the Appeals Chamber observes that the Statute and Rules do not expressly provide for other forms of effective remedy, such as the reduction of sentences, yet such a remedy has been accorded on several occasions.[10] Moreover, the submissions of the Presidents of this Tribunal and of the ICTY seeking an amendment of the Statute from the Security Council to provide for financial compensation do not suggest that an effective remedy in the form of financial compensation cannot be ordered and paid in the absence of an express provision. At the time of making the submissions, the Appeals Chamber had already issued two decisions envisioning possible awards of compensation to remedy fair trial rights violations and the submissions themselves recognized the authority of the Tribunals to order financial compensation as an effective remedy in the form of an “exceptional ruling” or an “ex gratia payment”. [11] The request for a statutory amendment merely expressed the preference of the Presidents for a specific statutory provision so that it would be beyond dispute that any award of compensation would be paid “according to law”.[12] Against this backdrop, the Appeals Chamber will not assume that the Security Council’s inaction was intended to interfere with the Tribunal’s inherent authority to order compensation in appropriate circumstances. Accordingly, the Appeals Chamber can identify no error of law on the part of the Trial Chamber in finding that it had the authority in general to award an effective remedy for the violations of Mr. Rwamakuba’s rights as an accused person, including financial compensation.

27. The question remains, however, whether it was appropriate for the Trial Chamber to award Mr. Rwamakuba financial compensation in the present case, as part of the remedy for the violations of his right to legal assistance and to an initial appearance without delay. The jurisprudence of the Appeals Chamber reflects that the nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[13] In practice, the effective remedy accorded by a Chamber for violations of an accused’s fair trial rights will almost always take the form of equitable or declaratory relief.[14] In the past, the Appeals Chamber has envisioned financial compensation as a form of effective remedy only in situations where, amongst other violations, an accused was impermissibly detained without being informed of the charges against him.[15] This is in line with Article 9(5) of the ICCPR which provides for an enforceable right to compensation in the event of an unlawful arrest or detention.[16]

28. Bearing this in mind, the Appeals Chamber recalls that Mr. Rwamakuba was detained in the Tribunal’s detention facilities for a total of 167 days from the date of his transfer on 22 October 1998 until his initial appearance held on 7 April 1999, of which he spent 125 days without assigned counsel.[17] As the Appeals Chamber in the Kajelijeli case already pointed out in relation to the rights of a suspect,[18] a judge is called upon to make an accused familiar with the charges, to verify an accused’s identity, to examine any obvious challenges to the case, to inquire into the medical condition of an accused, and to notify a person enjoying the confidence of the detainee[19] and consular officers.[20]  The Appeals Chamber further stressed that:

Rule 62 is unequivocal that an initial appearance is to be scheduled without delay. There are purposes for an initial appearance apart from entering a plea including: reading out the official charges against the accused, ascertaining the identity of the detainee, allowing the Trial Chamber or Judge to ensure that the rights of the accused while in detention are being respected, giving an opportunity for the accused to voice any complaints, and scheduling a trial date or date for a sentencing hearing, in the case of a guilty plea, without delay.[21]

The Appeals Chamber considers the violations of Mr. Rwamakuba’s rights attributable to the Tribunal and financial compensation to be an effective remedy. The nature of the violations suffered by Mr. Rwamakuba is no less significant than in other cases where such compensation was envisioned to be fixed at the time of judgement if the accused were found not guilty (as opposed to a reduction in sentence in case the accused were found guilty).[22] Accordingly, the Appeals Chamber can identify no error on the part of the Trial Chamber in finding that financial compensation is an appropriate form of an effective remedy to address the violations of Mr. Rwamakuba’s rights.

29. Moreover, the Appeals Chamber is not persuaded by the Registrar’s submission that the award of two thousand United States dollars has no basis in fact. It is not disputed that Mr. Rwamakuba’s suffered serious violations of his fundamental rights. In the Kajelijeli Appeal Judgement, the Appeals Chamber did not demand or cite additional proof of specific harm in according an appropriate remedy in that case, which involved a significant reduction in sentence.[23] Moreover, as noted above, the Appeals Chamber in the Barayagwiza and Semanza cases envisioned the award of compensation, in the event of an acquittal, to be fixed at the time of judgement.[24]

30. Finally, the Appeals Chamber also agrees with the Trial Chamber that internal institutional considerations related to the execution of an order, including budgetary matters, are separate considerations from the Tribunal’s authority to award an effective remedy in the form of financial compensation in appropriate circumstances and in compliance with its international obligations.[25] Budgetary considerations cannot interfere with the Tribunal’s authority to award financial compensation as an effective remedy for a human rights violation; similarly, at the domestic level, a State cannot advance the argument that there are no budgetary resources available to justify a refusal to award compensation. The Appeals Chamber has confirmed the Tribunal’s general authority to award compensation in appropriate and limited circumstances. In addition, it has affirmed the reasonableness of the award in the present case.

13. […] While stating that States are under a duty to cooperate with the Tribunal at all stages of the procedure under Article 28 of the Statute, the Trial Chamber considered that in the present case, the Registrar had a specific authority to request a State’s cooperation based on his mandate to execute the Tribunal’s decision,[1] and that it could “not conclude that an order requesting the cooperation of Canada is necessary, [finding] on the contrary, that the Canadian Government ha[d] complied with its obligations, in its relations with the Registrar”.[2] The Appeals Chamber thus finds no contradiction in the Decision of the President and the Decision of the Trial Chamber in respect of Article 28 of the Statute.

15. […] The Appeals Chamber finds that the diplomatic initiatives of the Registrar in relation to relocation do not fall within the ambit of the obligation of States to cooperate with the Tribunal under Article 28 of the Statute. Such an obligation pertains solely to the “investigation and prosecution of persons accused of committing serious violations of international humanitarian law”,[3] and hence does not extend to the relocation of acquitted persons. The Appeals Chamber thus finds that, contrary to the President’s Decision and the Trial Chamber’s Decision which both considered requests for cooperation – by a Trial Chamber in the former case and the Registrar in the latter case – with regard to the question whether relocation of acquitted persons fall within the scope of Article 28 of the Statute, there is no legal duty under Article 28 of the Statute for States to cooperate in the relocation of acquitted persons.

19 […] While the Tribunal does not have the ability to direct any State to accept the Appellant on its territory or to fully investigate whether the Appellant’s life or liberty would be at risk should he be returned to Rwanda or to another African country, it has nonetheless a duty to ensure the welfare of the acquitted person, and to that extent, to enquire whether the Appellant’s life or liberty would be at risk upon relocation to a given country. In this regard, the Appeals Chamber notes that, notwithstanding the limitations on the capacity of the Tribunal to secure relocation for the Appellant, the Registrar is continuing his efforts to find a solution to the present situation.[1] As part of such efforts, the Appeals Chamber requests the Registrar to make enquiries with the Office of the United Nations High Commissioner for Refugees and solicit its assistance in relocating the Appellant.