Ad litem Judges

Notion(s) Filing Case
Decision on Admission of Evidence - 12.01.2009 PRLIĆ et al.

27. […] The Appeals Chamber recalls that decisions and judgements are issued by a Trial Chamber as the body authorized to do so. In accordance with Article 23(2) of the Statute and Rule 87(A) of the Rules, judgements, and by logical implication other decisions, are rendered by a majority of the Judges assigned to a case. This has been the consistent practice of the Tribunal. The binding effect of judgements or decisions does not depend on whether they were rendered unanimously or by a majority. Whenever a Chamber renders a decision in accordance with the Statute, the decision is that of the Chamber and not merely a bundle of opinions of individual judges.[1] Therefore, provided that the majority’s decision is not shown to be erroneous, an accused or an appellant cannot claim any violation of his or her fair trial rights based on the fact that the minority Judge(s) reached a different conclusion. […]

[1] Cf. International Court of Justice, South West Africa, Second Phase, Judgement of 18 July 1966, Dissenting Opinion of Judge Jessup, I.C.J. Reports 1966, p. 325, fn. 1.

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ICTR Statute Article 22(2) ICTY Statute Article 23(2) ICTR Rule Rule 87(A) ICTY Rule Rule 87(A)
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Decision on Extension of Mandate - 15.09.2006 KRAJIŠNIK Momčilo

18.     Furthermore, the statutory limitation on the cumulative period of service of ad litem judges under Article 13bis(2) [sic: 13ter(2)] should be interpreted in light of its object, purpose, context and practical policy considerations, or raison d’être of the provision in question.[1] In this regard, the Appeals Chamber agrees with the Prosecution that “the choice of a three-year cumulative service limit appears to have been primarily motivated by budgetary considerations, and not by any issues concerning the fair trial of an accused”.[2] Further, even at the time of establishment of the mechanism providing for the institution of ad litem judges, it was considered logically conceivable that extensions of service might be necessary where a trial would last longer than three years.[3] It is obvious that, in these circumstances, preventing Judge Canivell from sitting in the Krajišnik case until the end of the trial would in fact be detrimental to the right of the Accused[4] to be tried without undue delay under Article 21 of the Statute, this being the expression of the fundamental right enshrined in Article 14(3)(c) of the International Covenant on Civil and Political Rights of 1966.[5]

25.     […] Allowing Judge Canivell to sit until the end of the present case has been done out of a legitimate concern in this trial to ensure that the proceedings do not suffer undue delays and that the trial is completed within a reasonable time, which is recognized as a fundamental right of due process.[6]

[1] Cf. Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR72.1, Decision on the Interlocutory Appeal Concerning Jurisdiction, 31 August 2004, para. 12; Tadić Decision [The Prosecutor v. Duško Tadić a.k.a. “Dule”, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995], para. 88; See also Archbold, International criminal Courts (Practice, Procedure, Evidence), 2005, paras 5-22 through 5-41.

[2] Response, paras 29-31.

[3] Report of the Advisory Committee on Administrative and Budgetary Questions to the General Assembly, “Conditions of Service for the ad litem Judges of the International Tribunal for the Former Yugoslavia”, A/55/806, 23 February 2001, para. 14.

[4] And importantly, of other accused awaiting trial in the UN Detention Unit in The Hague.

[5] Article 14(3) of the ICCPR: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: […] (c) To be tried without undue delay […]”.

[6] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.2, Decision on Joint Defence Interlocutory Appeal against the Trial Chamber’s Oral Decision of 8 May 2006 Relating to Cross-Examination by Defence and on Association of Defense Counsel’s Request for Leave to File an Amicus Curiae Brief, 4 July 2006, p. 4; See supra, para. 25 [reproduced above].

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ICTR Statute Article 12 ter(2) ICTY Statute Article 13 ter(2)