Right to be heard
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Continuation of Proceedings - 06.06.2014 |
ŠEŠELJ Vojislav (IT-03-67-AR15bis) |
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51. The Appeals Chamber recalls that the parties to a case have a right to be heard before a decision is made which can affect their rights.[1] […] [1] See, e.g., The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 21 June 2004, para. 9. |
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| Notion(s) | Filing | Case |
| Appeal Judgement - 05.07.2001 |
JELISIĆ Goran (IT-95-10-A) |
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The Trial Chamber decided that when acting proprio motu pursuant to a Rule 98bis judgement of acquittal, the prosecution had no right to be heard on the question of whether its evidence was insufficient to sustain a conviction. The Appeals Chamber held: 27. In the view of the Appeals Chamber, the fact that a Trial Chamber has a right to decide proprio motu entitles it to make a decision whether or not invited to do so by a party; but the fact that it can do so does not relieve it of the normal duty of a judicial body first to hear a party whose rights can be affected by the decision to be made.[1] Failure to hear a party against whom the Trial Chamber is provisionally inclined is not consistent with the requirement to hold a fair trial.[2] The Rules must be read on this basis, that is to say, that they include a right of the parties to be heard in accordance with the judicial character of the Trial Chamber. The availability of this right to the prosecution and its exercise of the right can be of importance to the making of a correct decision by the Trial Chamber: the latter could benefit in substantial ways from the analysis of the evidence made by the prosecution and from its argument on the applicable law.[3] [1] See generally R. v. Barking and Dagenham Justices, ex parte Director of Public Prosecutions [1995] Crim LR 953 (“Barking case”), and Director of Public Prosecution v. Cosier, Q.B.D., 5 April 2000 (“Cosier case”). [2] See Cosier case, supra. [3] See Cosier case, supra. For a more general observation on the importance of not deciding without first hearing counsel’s arguments, see Judge ad hoc Barwick’s dissenting opinion in Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 442. |
ICTR Rule Rule 98 bis ICTY Rule Rule 98 bis | |
| Notion(s) | Filing | Case |
| Reconsideration Decision - 20.09.2010 |
NZABONIMANA Callixte (ICTR-98-44D-AR7bis, ICTR-98-44D-AR7bis.2) |
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29. The Appeals Chamber considers that while a Trial Chamber may proprio motu decide to reconsider its own decision, this does not relieve it of its duty to hear a party whose rights may be affected by this reconsideration.[1] [1] See Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement, 5 July 2001, para. 27, referring to R. v. Barking and Dagenham Justices, ex parte Director of Public Prosecutions [1995] Crim LR 953, and Director of Public Prosecution v. Cosier, Q.B.D., 5 April 2000. |
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| Notion(s) | Filing | Case |
| Decision Refusing Leave to Appeal - 27.06.2003 |
ŠAINOVIĆ & OJDANIĆ (IT-99-37-AR65.2) |
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CONSIDERING that the “right” of an accused, who is represented, to be heard personally is not unfettered and is subject to the discretion of the Chamber before which the accused is appearing; |
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| Notion(s) | Filing | Case |
| Decision on Provisional Release - 31.10.2003 |
LIMAJ et al. (IT-03-66-AR65) |
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17. […] [T]he right to be heard personally is not absolute. The granting of an oral hearing is a matter for the discretion of a Chamber, and it may legitimately be regarded as unnecessary when, as in the present case, the information before the Trial Chamber is sufficient to enable the Chamber to reach an informed decision. […] Finally, the Trial Chamber is not obliged to explain prior to its final decision why a hearing is unnecessary or to notify the parties of this. |
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| Notion(s) | Filing | Case |
| Decision on Legal Aid - 07.02.2003 |
KVOČKA et al. (IT-98-30/1-A) |
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39. […] Where, however, action pursuant to the Directive detrimental to an accused is contemplated, procedural fairness dictates that the accused be afforded the right to be heard.[1] Bearing in mind that the withdrawal of legal aid may well impact negatively upon the accused’s ability to conduct his defence in the relevant criminal proceedings in the Tribunal, such a right entitles the accused to be given (a) notice of the allegations against him, (b) notice in reasonable detail of the nature of the material upon which the contemplated action is to be based, and (c) the opportunity to respond to that material. [1] cf Prosecutor v Jelisić, IT-95-10-A, Judgment, 5 July 2001, pars 27-28. |
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| Notion(s) | Filing | Case |
| Rule 15bis(D) Decision - 21.06.2004 |
KAREMERA et al. (ICTR-98-44-A15bis) |
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9. First, it is a matter of principle that the parties to a case have a right to be heard before a decision is made which can affect their rights. The ICTY Appeal Judgment in Jelisić states thus: In the view of the Appeals Chamber, the fact that a Trial Chamber has a right to decide proprio motu entitles it to make a decision whether or not invited to do so by a party; but the fact that it can do so does not relieve it of the normal duty of a judicial body first to hear a party whose rights can be affected by the decision to be made. Failure to hear a party against whom the Trial Chamber is provisionally inclined is not consistent with the requirement to hold a fair trial. The Rules must be read on this basis, that is to say, that they include a right of the parties to be heard in accordance with the judicial character of the Trial Chamber. The availability of this right to the prosecution and its exercise of the right can be of importance to the making of a correct decision by the Trial Chamber: the latter could benefit in substantial ways from the analysis of the evidence made by the prosecution and from its argument on the applicable law.[1] 10. Secondly, Rule 15bis (D) provides for a right of appeal from a decision made by the remaining judges of a Trial Chamber pursuant to that provision. The existence of such a right of appeal itself implies that the parties have a right to be heard at the making of the decision from which they appeal. [1] Judgement, Case No. IT-95-10-A, 5 July 2001, para. 27. |
ICTR Rule Rule 15 bis(D) ICTY Rule Rule 15 bis(D) | |
| Notion(s) | Filing | Case |
| Order on Assignment of Counsel - 17.02.2016 |
NGIRABATWARE Augustin (MICT-12-29) |
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Page.1: CONSIDERING that, in general, the Appeals Chamber only authorizes the assignment of counsel at the expense of the Mechanism where it cannot exclude the likelihood of success of a potential ground of review;[1] CONSIDERING that such a determination necessarily relates to the potential merits of the request for review and as corollary the Prosecution should have the opportunity to respond;[2] [1] See, e.g., Niyitegeka Decision of 13 July 2015 [Eliézer Niyitegeka v. The Prosecutor, Case No. MICT-12-16-R, Decision on Niyitegeka’s Request for Review and Assignment of Counsel, 13 July 2015], para. 12; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-R, Decision on Motion for Legal Assistance, 21 July 2009, para. 18. [2] In this respect, the Appeals Chamber further notes that, at the review stage, the assignment of counsel under the legal aid system has never been authorized on an ex parte basis by the Mechanism or the International Criminal Tribunal for Rwanda. |
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| Notion(s) | Filing | Case |
| Order on Assignment of Counsel - 17.02.2016 |
NGIRABATWARE Augustin (MICT-12-29) |
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Page. 2: CONSIDERING that, in limited circumstances, particularly sensitive material could be included in an ex parte annex so long as the motion is prepared in such a way to allow for a meaningful response;[1] [1] The Appeals Chamber notes that the requirement that an applicant provide information as to the potential grounds for review in the context of a request for the assignment of counsel at the expense of the Mechanism necessarily involves revealing certain aspects of the applicant’s strategy in connection with the eventual request for review. |
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