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.

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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.

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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.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis