Trial in absentia

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

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] […]

show footnotes

[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.

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

64. The Appeals Chamber further recalls that it is bound to interpret the Statute and the Rules of the Mechanism in a manner consistent with the jurisprudence of the ICTR and the ICTY.[1] Mindful of its obligation in this regard, the Appeals Chamber observes that the elements of the “alternative finding procedure”, as defined by the Trial Chamber, appear to circumvent certain statutory guarantees afforded to all accused appearing before the Mechanism. In particular, the Trial Chamber’s conclusion that Kabuga’s attendance would be unnecessary in the course of the “alternative finding procedure” appears incompatible with the plain reading of Article 19(4)(d) of the Statute, which provides accused appearing before the Mechanism with the right to be tried in their presence. Binding jurisprudence has interpreted this statutory guarantee to mean that an accused has the right to be physically present at trial.[2] The Appeals Chamber has emphasized that the accused’s right to be tried in his or her presence is an “indispensable cornerstone of justice” and that the physical presence of an accused before the court, as a general rule, is one of the most basic and common precepts of a fair criminal trial.[3]

65. The Appeals Chamber is cognizant that the right of an accused to be present at trial is not absolute as it may be waived or forfeited by the accused or otherwise restricted based on substantial trial disruptions on the part of an accused that are unintentional in nature.[4] However, in assessing a particular limitation on the right of an accused to be physically present, trial chambers are required to take into account the proportionality principle, pursuant to which any restriction of 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.[5] The Appeals Chamber considers that, under the Mechanism’s legal framework, this assessment can be made only in relation to an accused who is fit to stand trial.[6] For to continue a trial against an unfit accused is to deny him or her the statutory guarantee to be tried in his or her presence.[7] Indeed, the Appeals Chamber of the ICTY and the ICTR has cautioned against holding proceedings in the absence of an accused falling under the primary jurisdiction of the ad hoc tribunals, unless the accused has waived his or her right to be present.[8] Combined with the inability of an unfit accused to instruct counsel,[9] the jurisprudence is clear that the prejudice to an accused resulting from continuing the trial, while he or she is unfit to stand, would amount to a miscarriage of justice.[10]

66. The Appeals Chamber further notes that, under the “alternative finding procedure”, the Prosecution would be required to prove beyond reasonable doubt both the actus reus and mens rea of the charged crimes without, however, the possibility of Kabuga being convicted.[11] The Appeals Chamber recalls that, under Rule 104 of the Rules, upon completion of the presentation of the parties’ cases, a trial chamber must deliberate and decide separately on each charge contained in the indictment on whether it is satisfied that guilt has been proven beyond reasonable doubt, and shall impose a sentence in respect of each finding of guilt if it finds the accused guilty on one or more of the charges. As the Appeals Chamber has previously held, the textual and contextual interpretation of the Rules supports the principle that once a charge is proven beyond a reasonable doubt, a finding of guilt follows.[12] The jurisprudence is clear that “a trial chamber is bound to enter convictions for all distinct crimes which have been proven in order to fully reflect the criminality of the convicted person”.[13] The “alternative finding procedure”, as delineated by the Trial Chamber, appears incompatible with this requirement. In addition, while the difference between a trial resulting in a conviction and proceedings in which all elements of the offence are proven but no conviction entered may appear marginal on its face, the second scenario essentially runs counter to the prohibition of holding trials in absentia.[14] The Appeals Chamber recalls that trials in absentia were intentionally excluded from the statutory framework of the Mechanism and its predecessor tribunals.[15]

67. The incompatibility of the “alternative finding procedure” with the existing Mechanism’s legal framework is also highlighted by the potential consequence that, if Kabuga were to be found responsible for the charged crimes but not convicted, he would be precluded from challenging such finding on appeal or from seeking a review. Significantly, under Articles 23 and 24 of the Statute, such remedies are afforded only to convicted persons and the Prosecution. It is uncertain in these circumstances how, under the “alternative finding procedure”, the accused’s right to an effective remedy would be ensured.[16] […]

show footnotes

[1] Ngirabatware Appeal Judgement, para. 6; Munyarugarama Decision of 5 October 2012, para. 6.

[2] See Hadžić Decision of 4 March 2016, para. 8; Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Decision on Defence Appeal of the Decision on Future Course of Proceedings, 16 May 2008 (“Stanišić and Simatović Decision of 16 May 2008”), para. 6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision of 30 October 2006”), paras. 11-13.

[3] Zigiranyirazo Decision of 30 October 2006, paras. 8, 11, referring to Milošević Decision of 1 November 2004 [Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel, 1 November 2004], paras. 11, 13.

[4] Hadžić Decision of 4 March 2016, para. 8; Stanišić and Simatović Decision of 16 May 2008, paras. 6, 15; Zigiranyirazo Decision of 30 October 2006, para. 14. The Appeals Chamber notes that the right of an accused who is fit to stand trial to be present can be restricted on the basis of substantial trial disruptions, which need not be intentional. See Milošević Decision of 1 November 2004, para. 14, n. 42 (wherein the Appeals Chamber of the ICTY considered the assignment of counsel to an accused who was considered fit to stand trial but “whose health, while good enough to engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors of trial work”).

[5] See Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Decision on the Scheduling of the Appeal Hearing and a Status Conference, 17 July 2020, para. 15; Hadžić Decision of 4 March 2016, para. 8; Stanišić and Simatović Decision of 16 May 2008, para. 6; Zigiranyirazo Decision of 30 October 2006, para. 14.

[6] See Hadžić Decision of 4 March 2016, para. 31 (wherein the Appeals Chamber of the ICTY invited the trial chamber to “reassess, based on the available and updated medical records, whether Hadžić is fit for trial, and if it finds this to be the case”, it ordered the trial chamber to “assess all reasonably available modalities for continuing the trial under the proportionality principle” (emphasis added)).

[7] See Zigiranyirazo Decision of 30 October 2006, para. 11 (wherein the Appeal Chamber of the ICTR held that the physical presence of an accused before the ICTR “as a general rule, is one of the most basic and common precepts of a fair criminal trial”).

[8] See Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010, n. 19; Nahimana et al. Appeal Judgement [Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007 (original filed in French, English translation filed on 16 May 2008)], paras. 96-109 and references cited therein; 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 (“Blaškić Decision of 29 October 1997”), para. 59.

[9] See Popović et al. Decision of 16 May 2011, para. 11; Zigiranyirazo Decision of 30 October 2006, para. 21 (wherein the Appeals Chamber of the ICTR held that the attempts of the trial chamber in that case “to give full respect to both the right to counsel and the principle of equality of arms do not compensate for the failure to accord the accused what is a separate and distinct minimum guarantee: the right to be present at his own trial”). Moreover, it is in circumstances where an accused’s refusal to communicate or instruct counsel frustrates the fair and expeditious trial that “[w]hat is required of counsel is that they act in what they perceive to be the best interests of the Accused” and that this “is […] all that can be reasonably expected of counsel in such circumstances”. See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 45.

[10] Strugar Appeal Judgement, para. 34 (wherein the Appeals Chamber of the ICTY considered that the issue of an accused’s fitness to stand trial is of such importance that the immediate resolution by the Appeals Chamber of any question of fitness would appear to be essential as “the prejudice to the accused resulting from continuing the trial while he or she is unfit to stand trial would amount to a miscarriage of justice”).

[11] Impugned Decision, para. 57.

[12] See Prosecutor v. Marie Rose Fatuma et al., Case No. MICT-18-116-A, Judgement, 29 June 2022, para. 93.

[13] See Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Judgement, 29 November 2017, para. 399; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Judgement, 30 January 2015, para. 538; Jean Baptiste Gatete v. The Prosecutor, Case No. ICTR-00-61-A, Judgement, 9 October 2012, para. 261. See also Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014, para. 711, referring, inter alia, to Strugar Appeal Judgement, para. 324, citing Stakić Appeal Judgement [Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgement, 22 March 2006], para. 358.

[14] See supra paras. 64 [Impugned Decision, nn. 65, 79, 124, referring, inter alia, to Witness Mezey, T. 23 March pp. 9-12, Witness Kennedy, T. 15 March 2023 p. 7, First Joint Monitoring Report, p. 4 (confirming that there was “evidence of vascular disease affecting the brain and previous cerebrovascular accidents, evidenced on the MRI by patchy ischemic and other age related changes to Mr. Kabuga’s brain”). See also Decision of 13 June 2022, para. 25], 65 [Impugned Decision, nn. 76, 78, 79, 124, 151, referring, inter alia, to Witness Kennedy, T. 15 March 2023 p. 7, Witness Mezey, T. 23 March 2023 p. 10, First Joint Monitoring Report, p. 4, Joint Statement of Dr. Kennedy and Dr. Mezey, 16 May 2022, p. 2. See also Decision of 13 June 2022, paras. 14, 15, 25, 35, 50, referring, inter alia, to Dr. Mezey’s Report of 28 January 2022, pp. 19, 20, paras. 53, 56, 57, 64, Witness Mezey, T. 1 June 2022 pp. 4, 5].

[15] See Secretary-General’s Report of 3 May 1993, para. 101 (stating that “[t]here 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” (internal reference omitted)).

[16] See Article 14(5) of the International Covenant on Civil and Political Rights. See also Articles 13 and 14 of the Convention on the Rights of Persons with Disabilities.

Download full document