15. The Appeals Chamber recalls that in the Impugned Decision, the Trial Chamber found that derogation from the right of the Accused to be present at trial was warranted given that his health condition regularly interferes with the right to a fair and expeditious trial.  The Prosecution correctly points out that derogation from the right to be present is reasonable under some circumstances and that derogation may be justified even on the basis of substantial trial disruptions on the part of an accused that are unintentional in nature.  The question before the Appeals Chamber is whether derogation from the right to be present through the establishment of a video-conference link that enables the Accused to participate in his trial from the UNDU was reasonable under the circumstances of this case.

16. The Appeals Chamber observes that in determining whether derogation from the Accused’s right to be present at trial was justified, the Trial Chamber considered the proportionality principle.[3]  Specifically, the Trial Chamber noted that any restrictions on a fundamental right “must be the least intrusive instrument amongst those which might achieve the desired result.”[4]  The Trial Chamber further considered that in the Zigiranyirazo Decision, the Appeals Chamber held that the need to ensure a reasonably expeditious trial is an objective of general importance and accordingly concluded that its task in the instant case was to “strike an appropriate balance between the reasonably expeditious resolution of the case and the need to protect the Accused’s right to be present at his trial.”[5]

18. The Appeals Chamber considers that in determining the future course of the proceedings in this case, the Trial Chamber’s decision to balance the right of the Accused to be present with the right of both the Accused and his co-Accused to an expeditious trial was reasonable. […] 

19. The Appeals Chamber emphasizes that the right to be present is a fundamental right, and although the Prosecution correctly points out that derogation from this right may be warranted in light of substantial trial delays, the Appeals Chamber agrees with the Defence that derogation is not appropriate when reasonable alternatives exist.  The Appeals Chamber notes that in choosing to establish the video-conference link, the Trial Chamber excluded other potential options, including, as the Prosecution observes, allowing the case to remain in the pre-trial phase for three to six months.[6]  The Appeals Chamber considers that, given the existence of this reasonable alternative, which could potentially secure the Accused’s ability to fully exercise his right to be present at trial within a relatively short period of time, the Trial Chamber erred in choosing an alternative that restricted this right. 

20. The Appeals Chamber further notes that in establishing the video-conference link to enable the Accused to participate in the proceedings from the UNDU when he is too unwell to physically attend court, the Trial Chamber failed to consider whether, given his physical and mental state, he would nevertheless be able to effectively participate in his trial via the video-conference link.  The Appeals Chamber finds that a reasonable Trial Chamber would have considered this factor in its decision and accordingly finds that the Trial Chamber’s failure to do so amounts to a discernible error.

14. The parties acknowledge that an accused’s right to be tried in his or her presence is not absolute.[1] The ICTY Appeals Chamber has observed as much,[2] and this Appeals Chamber agrees. An accused person can waive or forfeit the right to be present at trial. For example, Rule 80(B) of the Rules allows a Trial Chamber to remove a persistently disruptive accused. Referring to the equivalent provision in the ICTY Rules, the ICTY Appeals Chamber observed that an accused’s right to be present for his or her trial can be restricted “on the basis of substantial trial disruptions”.[3] In assessing a particular limitation on a statutory guarantee, the Appeals Chamber bears in mind the proportionality principle, pursuant to which any restriction on a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.[4] The explicit exception provided by Rule 80(B) and the ICTY Appeals Chamber’s reference to “substantial trial disruptions” provide a useful measure by which to assess other restrictions on the right to be present at trial. (emphasis added)

CONSIDERING that Article 21(4) of the Statute of the Tribunal does not provide an accused and his counsel with a right to be present at a hearing of an application for provisional release of his co-accused, since an application for provisional release can not be construed as constituting proceedings in the determination of charges against the accused;

CONSIDERING that the Appellant has failed to show that, in law, a co-accused and his counsel are entitled to be present at a hearing of an application for provisional release of the other co-accused;

CONSIDERING that there was no breach of Rules 48 and 82(A) of the Rules, as the said Rules do not provide the Appellant with a right to attend the hearing of the application for provisional release by co-accused […];