Trial in absentia

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)

97. As an initial point, the Appeals Chamber finds the jurisprudence invoked by Appellant Barayagwiza to be irrelevant. The Decisions in Karemera et al. and Blaškić concern trials “by default”, in other words, a situation where an indictee has yet to be apprehended or is on the run and, not, as in the instant case, a situation where an accused who is in the custody of the Tribunal voluntarily chooses not to appear for trial. […] Thus, in both decisions in Karemera et al., Trial Chamber III had to decide on a motion for separate trials in a situation where two of the six co-accused had not yet been apprehended.[1]In Blaškić, the ICTY Appeals Chamber envisaged a situation where a person accused of a crime under the ICTY Statute refused to participate in his trial, and held that “it would not be appropriate to hold in absentia proceedings against persons falling under the primary jurisdiction of the International Tribunal”, stating in this connection that “even when the accused has clearly waived his right to be tried in his presence (Article 21(4)(d) of the Statute), it would prove extremely difficult or even impossible for an international criminal court to determine the innocence or guilt of that accused”.[2] The Appeals Chamber notes, however, that the matter before the ICTY Appeals Chamber was of a totally different nature from that raised in the instant case[3] and that it thus ruled on the issue of trial in the absence of the accused only as an incidental matter; its ruling could not be interpreted as prohibiting the conduct of a trial in the absence of an accused who had clearly waived his right to attend and participate.

98. Moreover, contrary to Appellant Barayagwiza’s assertion, the Secretary-General’s Report of 3 May 1993 does not preclude conducting a trial in a situation where the accused refuses to attend the proceedings. While it is true that in paragraph 101 of the Report the Secretary-General states: “There is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with Article 14 of the International Covenant on Civil and Political Rights, which provides that the Accused shall be entitled to be tried in his presence”, both its placement in the report[4] and the wording of this paragraph show that the expression “in absentia” refers here to an accused who has not yet been arrested by the Tribunal.

99. In view of the foregoing, the Appeals Chamber is not convinced that the precedents cited by the Appellant support the view that a trial in the absence of the accused is prohibited for and by the ad hoc Criminal Tribunals where an accused who has been apprehended and informed of the charges against him refuses to be present for trial. Conversely, in a recent interlocutory decision, this Appeals Chamber explicitly held that the right of an accused person to be present at trial is not absolute and that an accused before this Tribunal can waive that right.[5] […]

[1] The Prosecutor v. Augustin Bizimana et al., Case No. ICTR-98-44-I, Decision on the Prosecutor’s Motion for Separate Trial and for Leave to File an Amended Indictment, 8 October 2003, paras. 1-3; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, “Decision on Severance of André Rwamakuba and Amendments of the Indictments”, 7 December 2004, para. 24.

[2] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of The Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 59.

[3] The Appeals Chamber had to determine the power of a Judge or of a Trial Chamber to issue a binding order and the appropriate remedies in case of non-compliance therewith. More specifically, the ICTY Appeals Chamber was contemplating a situation where a person called by either party to testify in a trial fails to answer ICTY’s summons and, when prosecuted for contempt of court under Rule 77 of ICTY Rules as a result of such non-compliance, also fails to attend the contempt hearings. Moreover, footnote 83 of the Decision reveals that the Appeals Chamber of ICTY was referring to an accused who is not yet apprehended, and hence to a trial “by default”, and not to a situation where a defendant in the custody of the Tribunal refuses to attend proceedings.

[4] The Appeals Chamber notes in this regard that paragraph 101 immediately precedes the paragraph on arrest and formal charging by the accused’s initial appearance in court.

[5] Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, “Decision on Interlocutory Appeal”, 30 October 2006, para. 14. Prior to this Decision it seems that the Trial Chambers adopted a similar practice, sometimes based on Rule 82 bis of the Rules; see The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, T. 6 June 2005, pp. 2-5; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, T. 23 January 2006, pp. 13-14. Regarding the non-absolute nature of the accused’s right to attend proceedings, the Appeals Chamber recalls for example that Rule 80(B) of the Rules allows a Trial Chamber to order the removal of an accused from the proceedings if he has persisted in disruptive conduct following a warning that he may be removed. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Interlocutory Appeal Concerning his Right to be Present at Trial, 5 October 2007, para. 11.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 82 bis