Absence of a Judge

Notion(s) Filing Case
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

At paras 42-43, the Appeals Chamber held:

42. The Appeals Chamber considers that the continuation of the proceedings with a substitute Judge in a case where witnesses have already been heard does not necessarily infringe on fair trial rights. As the Appeals Chamber previously stated:

[t]here is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[1]

43. The Appeals Chamber also considers that, pursuant to Rule 15bis (D) of the Rules, a substitute Judge may only join the bench “after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings.” These safeguards ensure that fair trials rights are not compromised. In the present case, the remaining Judges took into consideration that the substitute Judge will need to review the “records of the proceedings, including the transcripts, audio and video-recordings, to observe the demeanour of the witness” in determining that it would be in the interests of justice to continue the proceedings with a substitute Judge.[2]

[1] Butare Decision, para. 25.

[2] Impugned Decision, para. 69.

Download full document
ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

The Appeals Chamber held in paragraph 19 of the decision that:

19. Rules 15bis (D) of the Rules confers on the remaining Judges the discretion to determine whether to continue the trial proceedings with a substitute Judge. In exercising this discretion, the remaining Judges have “the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered”.[1] The Appeals Chamber has previously stated that it can only intervene in this decision-making process in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the remaining Judges failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected.[2] It is not enough to show that the Appeals Chamber would have exercised the discretion differently.[3]

[1] The Prosecutor v. Pauline Nyiramasuhuko, Arsène Shalom Ntahobali, Sylvain Nsabimana, Alphonse Nteziryayo, Joseph Kanyabashi and Elie Ndayambaje, Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings Under Rule 15bis (D), 24 September 2003 (“Butare Decision”), para. 23.

[2] Butare Decision, para. 23.

[3] Butare Decision, para. 23.

Download full document
ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Rule 15bis(F) Decision - 31.05.2007 KAREMERA et al.
(ICTR-98-44-AR73.9)

Rule 15bis envisages situations where a Judge is unable to sit on a case. Rule 15bis(F), more specifically, reads:

In case of illness or an unfilled vacancy or in any other similar circumstances, the President may, if satisfied that it is in the interests of justice to do so, authorise a Chamber to conduct routine matters, such as the delivery of decisions, in the absence of one or more of its members.

The Appeals Chamber in the present case found:

10. […] The Appeals Chamber considers that routine matters, within the meaning of Rule 15bis (F) of the Rules, are generally matters of a regular and standardised nature, such as the convening of a status conference to organise exchanges between the parties, pursuant to Rule 65bis of the Rules. Other matters, both of a substantive and procedural nature, are generally non-routine, for the purposes of Rule 15bis (F) of the Rules.

Download full document
ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
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.

Download full document
MICT Statute Article 19
Notion(s) Filing Case
Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

16.     I recall that, while the Mechanism will not lightly intervene in a domestic jurisdiction,[1] there is clear authority to order a state to terminate proceedings against individuals on the basis of the immunity they enjoyed as a result of their connection with the Mechanism.[2] Such orders have been implemented.[3] In the present circumstances, an order to Turkey to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions in this case is entirely appropriate and necessary to ensure that the review proceedings can conclude. Such an order is binding on Turkey pursuant to Resolution 1966 adopted by the United Nations Security Council under Chapter VII of the United Nations Charter on 22 December 2010. Article 9 of Security Council Resolution 1966 requires that all States comply with orders issued by the Mechanism.

[1] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010 (“Bagosora et al. Decision of 6 October 2010”), para. 18.

[2] See Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Directed to the Republic of Croatia, 18 February 2011, p. 2; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, paras. 36, 45, 67, 71; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Stay of Proceedings, 27 January 2011 (“Bagosora et al. Decision of 27 January 2011”), para. 10; Bagosora et al Decision of 6 October 2010, paras. 20-31.

[3] See, e.g., Prosecutor v. Ante Gotovina et al.,Case No. IT-06-90-A, Communication dated 12 October 2011 from the Ministry of Justice of the Republic of Croatia (Proceedings Pursuant to the Order of the ICTY Trial Chamber Dated 18 February 2011), 14 October 2011 (confidential), Registry Pagination. 3043; Bagosora et al Decision of 27 January 2011, para. 10.

Download full document
MICT Statute Article 28