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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Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

35. The Appeals Chamber recalls that Article 21(4)(d) of the ICTY Statute guarantees the fundamental right of an accused to be tried in his presence. This right is not absolute, however, and may be subject to limitations.[1] As with other qualified statutory rights of an accused, including the right to be self-represented, any limitation on the right of the accused to be tried in his presence must serve a sufficiently important aim that is compatible with the ICTY Statute and must not impair the right more than necessary to accomplish such aim.[2]

[…] 

37. […] In view of the above, the Appeals Chamber finds no error in the Trial Chamber’s consideration that conducting the site visits in Sarajevo and Srebrenica in the presence of Karadžić would inevitably pose a considerable security risk for Karadžić as well as the other participants in the site visit delegations.[3] The Appeals Chamber therefore finds that the Trial Chamber’s decision to conduct the site visits without Karadžić being present served the sufficiently important aim of ensuring its ability to perform its functions in the given circumstances and did not impair his right more than necessary to accomplish it.[4]

[…]

39. The Appeals Chamber finds that the minutes of the site visits therefore reveal the exchange of submissions between the parties and the Trial Chamber’s interactions with various persons at some of the sites. The minutes also confirm that, although the impugned decisions indicated that the purpose of the site visits was not to gather evidence or hear submissions but to enable the Trial Chamber to familiarize itself with the locations referred to in the Indictment, the conduct during the visits did not comply with the limitations imposed by the Trial Chamber. Consequently, the Appeals Chamber finds that the two site visits formed part of the trial proceedings,[5] and that, in light of the conduct during them, the site visits violated Karadžić’s right to be tried in his presence. The Appeals Chamber will proceed to examine whether Karadžić suffered prejudice as a result of this violation.

40.  […] Although Karadžić submits that “[t]he observations made during the site visit undoubtedly affected the Trial Chamber’s overall assessment of the events, and its findings in the judgement”,[6] he does not point to any concrete disadvantage or prejudice suffered as a result of the site visits having been conducted in his absence.[7]

41. The Appeals Chamber reiterates that any violation of the right to a fair trial of an accused requires a remedy.[8] The nature and form of the effective remedy should be proportional to the gravity of the harm suffered.[9] The Appeals Chamber also recalls that, in situations where a violation of the accused’s fair trial rights has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[10] For the reasons set out above, the Appeals Chamber considers that its recognition of the violation of Karadžić’s right to be present during the site visits constitutes an effective remedy.

[1] [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 (“Karemera et al. Decision of 5 October 2007”)], para. 11; [Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 (“Milošević Decision of 1 November 2004”)], paras. 12, 13.

[2] Karemera et al. Decision of 5 October 2007, para. 11, referring to [Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-AR73, Decision on Interlocutory Appeal, 30 October 2006], para. 14. See also Milošević Decision of 1 November 2004, paras. 17, 18. Cf. [Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65, Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003], para. 13.

[3] Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Decision on Prosecution’s Motion for the Trial Chamber to Travel to Sarajevo, 4 February 2003 (“Galić Decision of 4 February 2003”), paras. 12, 13.

[4] The Appeals Chamber notes that Karadžić submitted to the Trial Chamber that he believed that “a site visit would be beneficial” and that the Trial Chamber, having considered the matter, decided that the site visit would assist its determination of the charges in the Indictment. See [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Order on Submissions for a Site Visit, 15 November 2010], paras. 2, 5; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Site Visit, 28 January 2011], paras. 1, 2, 4, 5, 11; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Second Site Visit, 10 February 2012], para. 2.

[5] See also Galić Decision of 4 February 2003, para. 15.

[6] Karadžić Appeal Brief, para. 30.

[7] The Appeals Chamber also considers that Karadžić’s reliance on non-binding and distinguishable domestic authorities in support of his submissions does not demonstrate error by the Trial Chamber.

[8] Nyiramasuhuko et al. Appeal Judgement, para. 42; André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007 (“Rwamakuba Decision of 13 September 2007”), para. 24. See also Kajelijeli Appeal Judgement, para. 255.

[9] Nyiramasuhuko et al. Appeal Judgement, para. 42, n. 120 and reference cited therein.

[10] Nyiramasuhuko et al. Appeal Judgement, para. 42 and references cited therein.

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ICTY Statute Article 21(4)