Formal recognition of violation as remedy

Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

42.    As regards Nyiramasuhuko’s request for an appropriate remedy for the violations found at trial, the Appeals Chamber observes that the only violations determined to have occurred were the violations of her rights to be informed of the charges against her and of initial appearance without delay recognised in the 12 October 2000 Decision [The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, 12 October 2000 (originally filed in French, English translation filed on the same day)].[1] The Appeals Chamber recalls that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[2] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[3] In practice, “the effective remedy accorded by a Chamber for violations of an accused’s fair trial rights will almost always take the form of equitable or declaratory relief.”[4] The Appeals Chamber considers that, in situations where the violation has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[5] Nyiramasuhuko has not developed any argument to demonstrate that the recognition of the violations of her rights to be informed of the charges against her and of initial appearance without delay by Judge Kama in the 12 October 2000 Decision was not an effective remedy. Nyiramasuhuko’s claim is therefore dismissed.

See also para. 50.

[1] See Nyiramasuhuko Appeal Brief, para. 71 (p. 21). The Appeals Chamber notes that Nyiramasuhuko has failed to identify in her submissions any other violation recognised by the Trial Chamber that may require remedy and will therefore limit its consideration to the violations of her rights to be informed of the charges against her and of initial appearance without delay, which are expressly discussed in her submissions under this ground of appeal.

[2] André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007 (“Rwamakuba Appeal Decision”), para. 24. See also Kajelijeli Appeal Judgement, para. 255.

[3] Rwamakuba Appeal Decision, para. 27.

[4] Rwamakuba Appeal Decision, para. 27 and references cited therein.

[5] Cf. Rwamakuba Appeal Decision, para. 27; The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, Decision on Appropriate Remedy, 31 January 2007 (“Rwamakuba Decision”), para. 69; Bagosora et al. Trial Judgement, para. 97.

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