Discretion in managing trials
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 28.09.2011 |
SETAKO Ephrem (ICTR-04-81-A) |
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19. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in the conduct of proceedings before them.[1] This discretion must be exercised consistently with Articles 19 and 20 of the Statute which require trial chambers to ensure that trials are fair and expeditious.[2] The Decision of 18 September 2007 granting leave to amend the 22 March 2004 Indictment relates to the general conduct of trial proceedings and thus falls within the discretion of the Trial Chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a discernible error resulting in prejudice to that party.[3] The Appeals Chamber will therefore limit its consideration to whether the Trial Chamber abused its discretion by committing a discernible error.[4] [1] Nchamihigo Appeal Judgement, para. 18; Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009 (“Ngirabatware Decision of 12 May 2009”), para. 22. [2] Nchamihigo Appeal Judgement, para. 18; Ngirabatware Decision of 12 May 2009, para. 22. [3] Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-AR73.19, Decision on Matthieu Ngirumpatse’s Appeal Against a Sanction Imposed on Counsel by Trial Chamber’s Decision of 1 September 2010, 21 March 2011, para. 12; Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.18, Decision on Joseph Nzirorera’s Appeal from Decision on Alleged Rule 66 Violation, 18 May 2010, para. 11; Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73, Decision on Kanyarukiga’s Interlocutory Appeal of Decision on Disclosure and Return of Exculpatory Documents, 19 February 2010, para. 9. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003, para. 9 (stating that “[i]f the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.”). [4] Nchamihigo Appeal Judgement, para. 18; Ngirabatware Decision of 12 May 2009, para. 8. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 19.07.2010 |
HARADINAJ et al. (IT-04-84-A) |
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39. The Appeals Chamber recalls that Trial Chambers enjoy considerable discretion in managing the trials before them. However, the manner in which such discretion is exercised by a Trial Chamber should be determined in accordance with the case before it. Indeed, what is reasonable in one trial is not automatically reasonable in another. Thus, the question of whether a Trial Chamber abused its discretion should not be considered in isolation, but rather should be assessed taking into account all the relevant circumstances of the case at hand. 40. Taken individually and outside the context of the trial, each of the Trial Chamber’s decisions concerning Kabashi and the other witness could be considered as falling within its scope of discretion. When these decisions are evaluated together, however, particularly in the context of the serious witness intimidation that formed the context of the Trial, it is clear that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of Kabashi and the other witness. […] 48. […] [T]he context of this trial was far from normal and required the Trial Chamber to proactively focus on ensuring the fairness of the proceedings in accordance with the Statute.[1] This required flexibility from the Trial Chamber with regard to subsidiary issues of witness scheduling, trial logistics, and deadlines. The Trial Chamber’s failure to show the required flexibility effectively helped to ensure that witness intimidation succeeded in denying the Prosecution an opportunity to present potentially crucial evidence in support of its case.[2] [1] The Appeals Chamber underscores that the Trial Chamber should have pursued every reasonable opportunity, whether upon the request of a party or propio motu, to obtain the evidence of Kabashi and the other witness in the context of this case. This approach should have included granting further extensions of time to assist the Prosecution in obtaining the testimony of key witnesses. [2] See Article 20(1) of the Statute. The Appeals Chamber notes that the Trial Chamber was on notice from the first day of the trial that witness intimidation posed a significant threat to the integrity of the judicial process. See T. 359-361 (5 March 2007) (Open Session). It notes that the Trial Chamber’s approach to issues such as witness confidentiality did not demonstrate sufficient respect for this threat, and resulted in the disclosure of confidential witnesses’ information. Cf. Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Order on Disclosure of Memorandum and on Interviews with a Prosecution Source and Witness, 13 December 2006 (“Decision of 13 December 2006”), p. 1; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Prosecution Motion for Protective Measures Concerning the Identity of a Person Who Can Provide Rule 68 Information Concerning Third Parties, 25 October 2006, filed confidentially, but rendered public by order of the Trial Chamber (see Decision of 13 December 2006, p. 9). The Trial Chamber also disclosed protected information about the health of a witness. See Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, Decision on Motion for Videolink [the other witness], 14 September 2007, para. 3. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 08.05.2012 |
KANYARUKIGA Gaspard (ICTR-02-78-A) |
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26. It is well established that trial chambers exercise discretion in relation to trial management, which includes decisions on adjournments.[1] The Appeals Chamber’s examination is therefore limited to establishing whether the Trial Chamber abused its discretionary power by committing a discernible error when it refused Kanyarukiga’s request to adjourn the start of the trial.[2] With respect to the laissez-passers, Kanyarukiga submitted to the Trial Chamber that the trial would move forward in a different manner if these documents were to be retrieved and that he was willing to “wait a few more weeks” until the Prosecution presented the results of its inquiry.[3] These arguments did not show that Kanyarukiga needed a postponement of the trial to prepare his defence. He has thus failed to demonstrate that the Trial Chamber abused its discretion in declining his adjournment request. 52. […] the Appeals Chamber notes that the timing of the Trial Chamber’s rulings on the admissibility of Prosecution evidence related to the general conduct of trial proceedings and was thus a matter within the discretion of the Trial Chamber. […] [1] See, e.g., Šešelj Decision of 16 September 2008 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.8, Decision on Prosecution’s Appeal Against the Trial Chamber’s Order Regarding the Resumption of Proceedings, 16 September 2008], para. 3; Prlić et al. Decision of 1 July 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants Appeal Against “Décision portent attribution du temps à la Défense pour la présentation des moyens à décharge, ” 1 July 2008], para. 15. See also Ngirabatware Decision of 12 May 2009 [Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009], para. 22; Karemera et al. Decision of 28 April 2006 [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006], paras. 7, 8. [2] See Šešelj Decision of 16 September 2008, para. 3. [3] T. 31 August 2009 pp. 4, 5, 7. In his motion for certification to appeal the Trial Chamber’s dismissal of his adjournment request, Kanyarukiga further explained that he was willing to accept a temporary infringement of his right to a speedy trial in order to ensure that the Prosecution provided the necessary answers to his queries before proceeding to trial. See The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-T, Motion for Certification to Appeal the Trial Chamber’s Decision on the Defence Motion to Adjourn Proceedings, 7 September 2009 (“Motion for Certification of 7 September 2009”), para. 7. He also stated that “it would be unfair to proceed before having given the Prosecution every chance to find the documents and/or to provide an adequate explanation for their absence.” See Motion for Certification of 7 September 2009, para. 6. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 18.03.2010 |
BIKINDI Simon (ICTR-01-72-A) |
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22. Pursuant to Article 19(1) of the Statute, the Trial Chamber is required to guarantee a fair and expeditious trial with full respect for the rights of the accused. However, it is not for the Trial Chamber to dictate to a party how to conduct its case. |
ICTR Statute Article 19(1) ICTY Statute Article 20(1) | |
| Notion(s) | Filing | Case |
| Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 |
KABUGA Félicien (MICT-13-38-AR80.3) |
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58. [T]he Appeals Chamber recalls that, in principle, trial chambers enjoy considerable discretion in relation to the management of proceedings before them.[1] Such discretion is exercised in a plethora of circumstances, for instance, in relation to the joinder of cases, the scheduling of trials, the admission and evaluation of evidence, in deciding points of practice and procedure, including in assignment of counsel, in determining whether an accused should be granted provisional release, and in imposing a sentence.[2] The unprecedented nature of a procedure, which is neither expressly allowed for nor specifically prohibited in the Statute or the Rules, does not per se indicate that such procedure falls outside a trial chamber’s discretionary power.[3] 59. In the present case, relying on its discretion to manage the proceedings before it, the Trial Chamber decided to adopt “an alternative finding procedure that resembles a trial as closely as possible”.[4] The Trial Chamber explained that, in the course of this procedure: (i) Kabuga’s attendance would be unnecessary due to his lack of fitness to participate effectively in the trial coupled with the fact that the procedure will not result in a conviction;[5] and (ii) the Prosecution would retain the burden to prove beyond reasonable doubt both the actus reus and mens rea elements of each charge against Kabuga.[6] The Appeals Chamber considers that, although seemingly procedural in nature, the essential elements of the “alternative finding procedure”, as defined by the Trial Chamber, impact Kabuga’s substantive rights “in the sense of there being a legitimate expectation to be tried in a certain way in order to achieve the fundamental objective of a fair trial”.[7] The Appeals Chamber therefore considers that whether the Trial Chamber is vested with discretion to conduct such an “alternative finding procedure” in lieu of a trial is ultimately a question of statutory interpretation.[8] 60. The Appeals Chamber recalls that the Statute is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in light of its object and purpose.[9] Turning first to the terms of the Statute […]. 61. The Appeals Chamber considers that a proper construction of the Statute, in accordance with the ordinary meaning to be given to the terms in their context, provides for the conduct of trials, without the possibility of conducting procedures that merely resemble trials in lieu of such trials.[10] This interpretation is also consistent with the object and purpose of the Statute as envisaged in United Nations Security Council Resolution 1966, in which the United Nations Security Council reaffirmed the need for the establishment of the Mechanism to carry out a number of essential functions of the ICTR, including “the trial of fugitives who are among the most senior leaders suspected of being most responsible for crimes”.[11] 62. The Appeals Chamber further recalls that the Statute and the Rules of the Mechanism reflect normative continuity with the statutes and rules of procedure and evidence of the ICTR and the ICTY.[12] In establishing the ICTR and adopting its statute, the United Nations Security Council appears to have intended to give the ICTR jurisdiction to prosecute persons responsible for serious violation of international humanitarian law through the conduct of trials.[13] […] 63. The Appeals Chamber echoes the Trial Chamber’s emphasis on the purpose for which the ICTR was established, which includes contributing to the process of national reconciliation in Rwanda and to the restoration and maintenance of peace.[14] Indeed, the United Nations Security Council unequivocally expressed its conviction in this regard when adopting the Statute of the ICTR (“ICTR Statute”), which is also reflected in the statements of various delegates at the meeting, who supported the establishment of the ad hoc tribunal as an instrument of national reconciliation.[15] Notwithstanding, a holistic reading of the relevant United Nations Security Council resolutions concerning the establishment of the ICTR and the Mechanism reflects that the framers intended to effect these goals through combating impunity by way of creating tribunals that would investigate, prosecute, and conduct proceedings, for the “sole purpose” of holding individuals criminally accountable for serious violations of international humanitarian law.[16] It is pertinent to recall in this regard that the fundamental mandate of the Mechanism to prosecute persons responsible for serious violations of international humanitarian law cannot be achieved if the accused and the Prosecution do not have the assurance of certainty and predictability in the application of the applicable law.[17] [1] See, e.g., Stanišić and Simatović Appeal Judgement, para. 295; Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Judgement, 8 June 2021 (public redacted) (“Mladić Appeal Judgement”), para. 107; Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Judgement, 20 March 2019 (public redacted) (“Karadžić Appeal Judgement”), para. 72. [2] See, e.g., Stanišić and Simatović Appeal Judgement, paras. 288, 320; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-AR80.2, Decision on an Appeal of a Decision on Félicien Kabuga’s Representation, 4 November 2022, para. 16; Mladić Appeal Judgement, paras. 84, 539; Karadžić Appeal Judgement, para. 198; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 29; Prosecutor v. Slobodan Milošević, Case No. IT-99-37-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 3. [3] Cf. Stanišić and Simatović Appeal Judgement, paras. 583, 592; Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.11, Decision on Appeal Against the Decision on the Accused’s Motion to Subpoena Zdravko Tolimir, 13 November 2013, para. 47; The Prosecutor v. Arséne Shalom Ntahobali and Pauline Nyiramasuhuko, Case No. ICTR-97-21-AR73, Decision on “Appeal of Accused Arséne Shalom Ntahobali Against the Decision on Kanyabashi’s Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”, 27 October 2006, para. 12. [4] Impugned Decision [Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Further Decision on Félicien Kabuga’s Fitness to Stand Trial, 6 June 2023], paras. 45, 57. [5] Impugned Decision, para. 58. [6] Impugned Decision, para. 57. [7] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis(D), 24 September 2003, para. 12. [8] See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal Judgement”), para. 98 (wherein, in discussing a question not expressly provided in its statute, the Appeals Chamber of the ICTY held that “[r]eferences to the law and practice in various countries and in international institutions are not necessarily determinative of the question as to the applicable law” and that “[u]ltimately, that question must be answered by an examination of the [ICTY] Statute and Rules, and a construction of them which gives due weight to the principles of interpretation (good faith, textuality, contextuality, and theology) set out in the 1969 Vienna Convention on the Law of Treaties”). [9] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 2137, referring to Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331. See also Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement, 20 February 2001, paras. 67, 68; Aleksovski Appeal Judgement, para. 98; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgement”), para. 282. [10] See Impugned Decision, para. 57 (wherein the Trial Chamber decided to adopt “an alternative finding procedure that resembles a trial as closely as possible”). [11] United Nations Security Council, Resolution 1966 (2010), U.N. Doc. S/RES/1966(2010), 22 December 2010 (“UNSC Resolution 1966 (2010)”), p. 1 (emphasis added). [12] Augustin Ngirabatware v. The Prosecutor, Case No. MICT-12-29-A, Judgement, 18 December 2014 (“Ngirabatware Appeal Judgement”), para. 6, referring to Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012 (“Munyarugarama Decision of 5 October 2012”), para. 5. [13] Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc S/25704, 3 May 1993 (“Secretary-General’s Report of 3 May 1993”), paras. 16, 99-107 (emphasis added). [14] See Impugned Decision, paras. 45, 51. See also UNSC Resolution 955 (1994), p. 1; UNSC Resolution 1966 (2010), p. 1. [15] See UNSC Resolution 1966 (2010), p. 1. See also, e.g., UN Doc. S/PV.3453 (8 November 1994), pp. 6, 8, 10, 12. [16] UNSC Resolution 1966 (2010), p. 1; UNSC Resolution 955 (1994), pp. 1, 2. See also United Nations Security Council Resolution 827 (1993), U.N. Doc. S/RES/827(1993), pp. 1, 2. [17] See Aleksovski Appeal Judgement, para. 113 (ii). |
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