Deliberations

Notion(s) Filing Case
Decision on Motions to Annul and Reconsider - 27.09.2011 NAHIMANA et al. (Media case)
(ICTR-99-52B-R)

NOTING Mr. Nahimana’s submission that the Decisions of 22 April 2008 and 30 June 2010 should be annulled because they are signed exclusively by Judge Pocar and thus do not evince that the remainder of the Bench participated in the deliberations;

CONSIDERING that, in accordance with the consistent practice of the Appeals Chamber, the Presiding Judge signs decisions on behalf of the Bench after the conclusion of deliberations on a motion;

FINDING, therefore, that Mr. Nahimana’s argument that the Decisions of 22 April 2008 and 30 June 2010 be annulled on the basis that they were signed exclusively by the Presiding Judge lacks merit;

[1] Motion [Ferdinand Nahimana v. The Prosecutor, Case No. ICTR-99-52B-R, Demande d’annulation des décisions portant la seule signature du juge Fausto Pocar prises dans mon affaire après l’arrêt du 28 [n]ovembre 2007 ; Demande de réexamen de ma “Notice of application for reconsideration of Appeal Decision due to factual errors apparent on the record” du 27 [m]ars 2008 et dans le cas échéant, de ma requête du 27 [a]vril 2010, 13 September 2011], paras. 7-10.

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Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

133. The Appeals Chamber recalls that before taking up duties, every Judge of the Tribunal solemnly declares that he will perform his or her duties and exercise his or her powers honourably, faithfully, impartially and conscientiously.[1] There is a strong presumption that the Judges act in accordance with this oath.[2] A party must adduce sufficient evidence to rebut this presumption.[3] The Appeals Chamber is not convinced that Amicus Curiae has done so here.

134. Just as general observations on the length of the Trial Judgement, or of particular parts of the Trial Judgement, usually do not suffice to show an error of law because of a lack of reasoned opinion,[4] general comments on the length of the deliberations are insufficient to show improprieties in the deliberative process. Here, Amicus Curiae claims that it was impossible to deliberate properly on such a complex case in only 18 working days, but he brings no evidence to substantiate this claim. In particular, he fails to show that conclusions were reached by other persons than the Judges or that preparatory work overreached into the area of deliberation. In this connection, the Appeals Chamber considers that in cases of the size and complexity of the case at stake, given that as a matter of fairness judgements must be issued in a reasonable time, preparatory work can and should be done as the case goes. This is not to suggest that decisions should be taken by others than the Judges or that any improper decisions should be taken by the Judges in advance of hearing all the evidence. However, there are numerous steps than can and should be taken which will place the Bench in the best situation possible following closing arguments to prepare a reasoned, clear and concise judgement within a reasonable time frame. Against this background, the Appeals Chamber cannot infer that the deliberation process was corrupted. This sub-ground is dismissed.

[1] Rule 14 of the Rules.

[2] Furundžija Appeal Judgement, para. 197.

[3] Ibid.

[4] Kvoèka et al. Appeal Judgement, para. 25.

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Notion(s) Filing Case
Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

12.     With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary.

13.     I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4]

[…]

15.     This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right.

[1] See supra [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay, 31 January 2017], para. 9.

[2] See Theodor Meron, Judicial Independence and Impartiality in International Criminal Tribunals, 99 Am. J. Int’l L. 363-65 (2005).

[3] See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 19, 27.

[4] See ECHR Ref. No. 59/17.

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MICT Statute Article 19