9. The Appeals Chamber recalls the function of the President of the Tribunal (“President”) to coordinate the work of the Chambers, which includes the power to assign the resolution of judicial matters to a Trial Chamber, a bench of three judges, or a single judge.[1]

10. The Appeals Chamber recalls that it is well established that in undertaking a first judicial review of an administrative decision, the Trial Chamber, Appeals Chamber or President, as the case may be, must apply the standard set out in the Kvočka et al. Appeal Decision.[1] The Kvočka et al. Appeal Decision first considered the nature of a judicial review of an administrative decision:

A judicial review of such an administrative decision is not a rehearing. Nor is it an appeal, or in any way similar to the review which a Chamber may undertake of its own judgment in accordance with Rule 119 of the Rules of Procedure and Evidence. A judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which [the] Registrar reached the particular decision and the manner in which he reached it.[2]

With this approach in mind, the Kvočka et al. Appeal Decision then set out that an administrative decision by the Registrar will be quashed if the decision-maker:

(a) failed to comply with the legal requirements of the Directive, or

(b) failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or

(c) took into account irrelevant material or failed to take into account relevant material, or

(d) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).[3]

The Kvočka et al. Appeal Decision also specified that “[t]hese issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar, but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled”.[4] Finally, in the review, the party contesting the administrative decision bears the onus of persuasion and must show that (a) an error of the nature described has occurred, and (b) that such error has significantly affected the impugned decision to his detriment.[5]

12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.

13.     I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4]

[…]

15.     This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.

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CONSIDERING that the Rules require the holding of a status conference at regular intervals only at the pre-trial stage of the proceedings following the initial appearance of the accused[1] and pending appeal if a convicted person is in custody following the filing of a notice of appeal;[2]

CONSIDERING that, in the absence of an express requirement in the Rules, a status conference or other procedural hearing may be held by a judge or a Chamber if it is in the interests of justice or required for the proper preparation of the hearing;

CONSIDERING that Ngirabatware has not shown that a status conference is necessary because he does not identify any specific issue that he wishes to raise in relation to his mental or physical condition or in relation to the preparation of the review hearing;[3]

CONSIDERING that the conditions of detention of the detainees under the authority of the Mechanism at the United Nations Detention Facility in Arusha are supervised by the President and that, therefore, there is a separate avenue for raising concerns in relation to the detainees’ mental and physical condition;[4]