Fair trial

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Appeal Judgement - 28.09.2011 SETAKO Ephrem
(ICTR-04-81-A)

19. The Appeals Chamber recalls that trial chambers enjoy considerable discretion in the conduct of proceedings before them.[1] This discretion must be exercised consistently with Articles 19 and 20 of the Statute which require trial chambers to ensure that trials are fair and expeditious.[2] The Decision of 18 September 2007 granting leave to amend the 22 March 2004 Indictment relates to the general conduct of trial proceedings and thus falls within the discretion of the Trial Chamber. In order to successfully challenge a discretionary decision, a party must demonstrate that the trial chamber has committed a discernible error resulting in prejudice to that party.[3] The Appeals Chamber will therefore limit its consideration to whether the Trial Chamber abused its discretion by committing a discernible error.[4]

[1] Nchamihigo Appeal Judgement, para. 18; Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009 (“Ngirabatware Decision of 12 May 2009”), para. 22.

[2] Nchamihigo Appeal Judgement, para. 18; Ngirabatware Decision of 12 May 2009, para. 22.

[3] Édouard Karemera and Matthieu Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-AR73.19, Decision on Matthieu Ngirumpatse’s Appeal Against a Sanction Imposed on Counsel by Trial Chamber’s Decision of 1 September 2010, 21 March 2011, para. 12; Édouard Karemera et al. v. The Prosecutor, Case No. ICTR-98-44-AR73.18, Decision on Joseph Nzirorera’s Appeal from Decision on Alleged Rule 66 Violation, 18 May 2010, para. 11; Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-AR73, Decision on Kanyarukiga’s Interlocutory Appeal of Decision on Disclosure and Return of Exculpatory Documents, 19 February 2010, para. 9. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, 19 December 2003, para. 9 (stating that “[i]f the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.”).

[4] Nchamihigo Appeal Judgement, para. 18; Ngirabatware Decision of 12 May 2009, para. 8. 

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Decision on Referral - 09.10.2008 MUNYAKAZI Yussuf
(ICTR-97-36-R11bis)

The Appeals Chamber considered whether the Trial Chamber had erred in concluding that Rwanda does not respect the independence of the judiciary and that the composition of the High Court of Rwanda does not accord with the right to be tried by an independent tribunal and the right to a fair trial.  The Appeals Chamber held:

26. While the Appeals Chamber shares the Trial Chamber’s concern about the fact that politically sensitive cases, such as genocide cases, will be tried by a single judge, it is nonetheless not persuaded that the composition of the High Court by a single judge is as such incompatible with Munyakazi’s right to a fair trial. The Appeals Chamber recalls that international legal instruments, including human rights conventions, do not require that a trial or appeal be heard by a specific number of judges to be fair and independent.[1] The Appeals Chamber also notes that the Opinion of the Consultative Council of European Judges, which the Trial Chamber cites in support of its finding,[2] is recommendatory only.[3] There is also no evidence on the record in this case that single judge trials in Rwanda, which commenced with judicial reforms in 2004, have been more susceptible to outside interference or pressure, particularly from the Rwandan Government, than previous trials involving panels of judges.

27. The Appeals Chamber also finds that the Trial Chamber erred in considering that Munyakazi’s right to a fair trial would be further compromised as a result of the limited review powers of the Supreme Court. Article 16 of the Transfer Law provides that appeals may be heard on an error on a question of law invalidating the decision or an error of fact which has occasioned a miscarriage of justice. This is not an unusual standard of review in appellate proceedings; it is in fact the applicable standard before this Tribunal.[4] There was also no information before the Trial Chamber that would allow it to conclude that the Supreme Court could not re-examine witnesses or make its own findings of fact.

29. Further, the Appeals Chamber finds that the Trial Chamber erred in considering that there was a serious risk of government interference with the judiciary in Rwanda. The Trial Chamber primarily based its conclusion on Rwanda’s reaction to Jean-Bosco Barayagwiza’s successful appeal concerning the violation of his rights, and the reactions of the Rwandan government to certain indictments issued in Spain and France.[5] However, the Appeals Chamber recalls that the Barayagwiza Decision was issued nine years ago. It notes that the Tribunal has since acquitted five persons, and that Rwanda has not suspended its cooperation with the Tribunal as a result of these acquittals. The Appeals Chamber also observes that the Trial Chamber did not take into account the continued cooperation of the Rwandan government with the Tribunal.[6] The Appeals Chamber also considers that the reaction of the Rwandan government to foreign indictments does not necessarily indicate how Rwanda would react to rulings by its own courts, and thus does not constitute a sufficient reason to find that there is a significant risk of interference by the government in transfer cases before the Rwandan High Court and Supreme Court.

30. The only other information referred to by the Trial Chamber in support of its findings relating to the independence of the Rwandan judiciary was the 2007 United States State Department Report cited by the ICDAA in its amicus curiae brief.[7] However, this report states only in very general terms that there are constraints on judicial independence, and “that government officials had sometimes attempted to influence individual cases, primarily in gacaca cases”.[8] The Trial Chamber did not cite any other information supporting its findings relating to the independence of the judiciary, and, notably, did not refer to any information demonstrating actual interference by the Rwandan government in any cases before the Rwandan courts. Moreover, other evidence submitted by the amicus curiae during the referral proceedings concerning interference with the judiciary primarily involved gacaca cases, rather than the High Court or Supreme Court, which will adjudicate the transfer cases, and failed to mention any specific incidents of judicial interference.[9] The Appeals Chamber therefore finds that, based on the record before it, no reasonable Trial Chamber would have concluded that there was sufficient risk of government interference with the Rwandan judiciary to warrant denying the Prosecution’s request to transfer Munyakazi to Rwanda.

The Appeals Chamber also considered whether the Trial Chamber erred in concluding that Munyakazi’s fair trial right relating to the attendance of witnesses cannot be guaranteed in Rwanda at present.  The Appeals Chamber found with respect to witnesses within Rwanda that:

37.  The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[10] The Trial Chamber noted with particular concern the submission from HRW that at least eight genocide survivors were murdered in 2007, including persons who had, or intended, to testify in genocide trials.[11] There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent.[12] The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to “genocidal ideology”.[13] The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences, including threats, harassment, torture, arrest, or being killed. It therefore finds that the Trial Chamber did not err in concluding that it was unlikely that Defence witnesses would feel secure enough to testify in a transferred case.

38. The Trial Chamber further held that there were concerns with respect to the witness protection program in Rwanda.[14] The Appeals Chamber notes that no judicial system can guarantee absolute witness protection.[15] However, it is not persuaded that the Trial Chamber erred in finding that Rwanda’s witness protection service currently lacks resources, and is understaffed. The Appeals Chamber agrees with the Prosecution that the fact that the witness protection service is presently administered by the Office of the Prosecutor General and that threats of harassment are reported to the police does not necessarily render the service inadequate. However, it finds that, based on the information before it, the Trial Chamber did not err in finding that witnesses would be afraid to avail themselves of its services for this reason.[16]

The Appeals Chamber found with respect to witnesses outside Rwanda:

40. The Appeals Chamber finds that the Trial Chamber did not err in accepting Munyakazi’s assertion that most of its witnesses reside outside Rwanda, as this is usual for cases before the Tribunal, and is supported by information from HRW.[17] The Appeals Chamber also finds that there was sufficient information before the Trial Chamber that, despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda.[18] It therefore finds that the Trial Chamber did not err in concluding, based on information before it, that despite the protections available in Rwandan law, many witnesses residing abroad would fear intimidation and threats.

41. With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber notes that Rwanda has several mutual assistance agreements with states in the region and elsewhere in Africa, and that agreements have been arranged with other states as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[19] Further, the Appeals Chamber notes that United Nations Security Council Resolution 1503, calling on all states to assist national jurisdictions where cases have been transferred, provides a clear basis for requesting and obtaining cooperation.[20] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to secure the attendance or evidence of witnesses from abroad, or the cooperation of other states.

42. The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person. However, it is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony, and that it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[21]

43. Considering the totality of the circumstances, although the Appeals Chamber finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to secure the attendance or evidence of witnesses from abroad, or the cooperation of other states, it dismisses this sub-ground of appeal.

The Appeals Chamber therefore held that:

45. [...] the Trial Chamber did not err in concluding that Munyakazi’s right to obtain the attendance of, and to examine, Defence witnesses under the same conditions as witnesses called by the Prosecution, cannot be guaranteed at this time in Rwanda. The Appeals Chamber therefore dismisses this ground of appeal.

[1] International Covenant on Civil and Political Rights (adopted 19 December, 1966, entered into force 23 March 1976) 999 UNTS 171 (“ICCPR”), Articles 19, 20; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (“ACHPR”), Article 7. Rwanda ratified the ICCPR on 16 April 1975 and the ACHPR on 15 July 1983.

[2] Rule 11bis Decision [Decision on the Prosecutor’s Request for Referral of Case to the Republic of Rwanda, 28 May 2008], para. 47.

[3] Opinion No. 6 (2004)  of the Consultative Council of European Judges (CCJE) to the Attention of the Committee of Ministers of Fair Trial Within a Reasonable Time and Judge’s Role in Trials Taking into Account Alternative Means of Dispute Settlement, CCJE (2004) OP No. 6, 22-24 November 2004, para. 61, referring to Recommendation No. R (87) 18 of the Committee of Ministers of Member States Concerning the Simplification of Criminal Justice (Adopted by the Committee of Ministers on 17 September 1987 at the 410th Meeting of the Ministers’ Deputies), para. III.d.2.

[4] Article 24(1) of the Statute. See also Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement, 7 July 2006, para. 7, quoting The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Cases No. ICTR-96-10-A and ICTR-96-17-A, Judgement, 13 December 2004, para. 11 (citations omitted) and para. 8, quoting Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, para. 40 (citations omitted); Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 5. See further Mikaeli Muhimana v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, 21 May 2007, paras. 7, 8; Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgement, 22 March 2006, para. 8; Prosecutor v. Mitar Vasiljević Case No. IT-98-32-A, Judgement, 25 February 2004, para. 6.

[5] Rule 11bis Decision, paras. 41-46.

[6] The Prosecutor of the Tribunal indicated to the United Nations Security Council on 17 June 2008 that “Rwanda continues to cooperate effectively with the Tribunal”. UN Doc. S/PV.5697, p. 15 and UN Doc. S/PV.5796, p. 11. President Byron also indicated to the United Nations Security Council on 17 June 2008 that “Rwanda has continued to cooperate with the Tribunal by facilitating a steady flow of witnesses from Kigali to Arusha”. UN Doc. S/PV.5697, p. 10.

[7] Rule 11bis Decision, para. 48, fn. 89, referring to Brief of Amicus Curiae, International Criminal Defence Attorneys Association (ICDAA) Concerning the Request for Referral of the Accused Yussuf Munyakazi to Rwanda pursuant to Rule 11bis of the Rules of Procedure and Evidence (“ICDAA Amicus Brief”), para. 8, citing Country US State Department’s Report on Human Practices – 2006, submitted to the United States Congress by Secretary of State Condoleeza Rice, released by the Bureau of Democracy, Human Rights and Labor, March 6, 2007 (“U.S. State Department Report 2007”).

[8] ICDAA Amicus Brief, para. 8, citing U.S. State Department Report 2007.

[9] The amicus curiae brief submitted by HRW refers to interviews with 25 high-ranking Rwandan judicial officials stating that the courts were not independent, but provides no information about the basis for this view, or any cases of actual attempts to interfere with the judiciary. See Brief of Human Rights Watch as Amicus Curiae in Opposition to Rule 11bis Transfer, 17 March 2008 (“HRW Amicus Brief”), para. 51.

[10] HRW Amicus Brief, paras. 89-102; ICDAA Amicus Brief, paras. 83, 85. The Appeals Chamber also notes the case of Aloys Simba v. The Prosecutor, where the Trial Chamber found that the Rwandan authorities had interfered with Defence Witness HBK, resulting in his refusal to testify. See Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement, para. 47, referring to The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Judgement, paras. 49-50.

[11] HRW Amicus Brief, para. 96.

[12] HRW Amicus Brief, para. 37.

[13] Rule 11bis Decision, para. 61, referring to HRW Amicus Brief, paras. 30-40.

[14] Rule 11bis Decision, para. 62.

[15] Janković Appeal Decision, para. 49.

[16] ICDAA Amicus Brief, para. 87; HRW Amicus Brief, para. 87.

[17] See HRW Amicus Brief, para. 38. See also footnote 16 of the Response, citing the example of The Prosecutor v. Simeon Nchamihigo, Case No. ICTR-01-63, where 91% of the defence witnesses came from abroad, The Prosecutor v. André Ntagerura, Case No. ICTR-96-10, where 100% of the defence witnesses came from abroad, and The Prosecutor v. Samuel Imanishimwe, Case No. ICTR-97-36, where 100% of the defence witnesses were from abroad.

[18] See HRW Amicus Brief, para. 104, indicating that in interviews with two dozen Rwandans living abroad, no one was willing to travel to Rwanda to testify for the defence. See also the statement by the Rwandan Minister of Justice regarding the immunity for witnesses granted under Article 14 of the Transfer Law, cited in the HRW Amicus Brief at para. 39, and quoted by the Trial Chamber in para. 61 of the Rule 11bis Decision. The Appeals Chamber finds that this statement, which according to HRW, was widely circulated in the diaspora, may contribute to the unwillingness of witnesses residing outside of Rwanda to return to Rwanda to testify. However, the Appeals Chamber finds that the Trial Chamber referred to this quote out of context, as it cited it to demonstrate that the Government would condone the arrests of witnesses who had testified for the Tribunal after their return to Rwanda. The Minister was in fact speaking about the immunity guaranteed under Article 14 of the Transfer Law to witnesses testifying in transfer cases.  Moreover, the Trial Chamber discusses these arrests in the same paragraph as it discusses genocidal ideology, thus implying that defence witnesses who were arrested upon returning to Rwanda after their testimony were arrested for harbouring genocidal ideology. There is no indication that this was the case, and the Minister’s statement did not relate to genocidal ideology.

[19] Rwanda Amicus Brief, para. 23.  Rwanda is a party to the agreement of Mutual Legal Assistance in Criminal Matters of the East Africa Police Chiefs Organisation with many states in the region and elsewhere including Kenya, Uganda, Tanzania, Burundi, Djibouti, Eritrea, Seychelles and Sudan, and has a Mutual Legal Assistance Protocol with states under the Convention Establishing the Economic Community of the Great Lakes Countries (CEPGL).  Rwanda has also negotiated an extradition Memorandum of Understanding with the United Kingdom, and it is cooperating with many justice systems including those of New Zealand, Finland, Denmark and Germany.

[20] Security Council Resolution 1503 states at paragraph 1 that the Security Council “[c]alls on the international community to assist national jurisdictions, as part of the completion strategy, in improving their capacity to prosecute cases transferred from the ICTY and the ICTR [...]”. S/RES/1503 (2003). See Stanković Appeal Decision, paragraph 26, where the Appeals Chamber approved of the Trial Chamber’s consideration of Security Council Resolution 1503 and interpreted this paragraph of the resolution as implicitly including cooperation with respect to witnesses.

[21] Rule 11bis Decision, para. 65.

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Decision on Referral - 04.12.2008 HATEGEKIMANA Idelphonse
(ICTR-00-55B-R11bis)

The Appeals Chamber considered whether the Trial Chamber erred in law and in fact by (1) holding that Hategekimana will not obtain the attendance and examination of Defence witnesses residing inside Rwanda and abroad under the same conditions as witnesses against him; and (2) failing to give equal weight to the monitoring and revocation mechanisms available under Rwandan law as a means to deal with the availability of witnesses, despite doing so elsewhere in the Rule 11bis Decision in regard to other issues.

With regard to witnesses within Rwanda, the Appeals Chamber held:

21.    The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that defence witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[1] The Trial Chamber noted that HRW, ICDAA and Hategekimana provided examples of witnesses who had been threatened or harassed after testifying before the Tribunal as well as ordinary and Gacaca courts in Rwanda.[2] It also noted that some witnesses were arrested or accused in Gacaca proceedings in Rwanda after testifying[3] and that, according to HRW, some witnesses were afraid to testify for fear of prosecution under Rwandan laws concerning genocidal ideology.[4]

22.    The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the defence as a result of the fear that they may face serious consequences, including prosecution, threats, harassment, torture, arrest, or even murder.[5] The Appeals Chamber considers that it was therefore not necessary for the Trial Chamber to satisfy itself that individual Defence witnesses in this particular case are reluctant to testify for these reasons. It consequently finds that the Trial Chamber did not err in concluding that witnesses in Rwanda may be unwilling to testify for the Defence.

23.    The Appeals Chamber further considers that in making its finding on the availability of witnesses, the Trial Chamber did take into account the safeguards in Rwandan law to facilitate or if necessary enforce the attendance of witnesses living in Rwanda and abroad, including immunity and safe passage for defence witnesses. The Trial Chamber explicitly considered Article 14 of the Transfer Law which deals with the assistance and protection of witnesses, including defence witnesses.[6]

As for witnesses outside Rwanda, the Appeals Chamber found that

24.    […] the Trial Chamber did explicitly consider the provisions of Rwandan law relating to measures put into place to facilitate witness protection and safety, including Article 14 of the Transfer Law.[7] The Appeals Chamber further finds that the Trial Chamber did not err in accepting Hategekimana’s assertion that most of his witnesses reside outside Rwanda, as this is usual for cases before the Tribunal.[8] The Trial Chamber also expressly referred to the submissions from HRW in finding that witnesses residing outside Rwanda may be unwilling to travel to Rwanda to testify,[9] and that some Defence witnesses may be prevented from returning to Rwanda to testify, as a consequence of their refugee status.[10] The Appeals Chamber therefore finds that the Trial Chamber did not err in concluding, based on the information before it, that despite the protections available in Rwandan law, Hategekimana may face difficulties in obtaining the testimony of witnesses living outside Rwanda.

25.    With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber, recalling its findings in Munyakazi and Kanyarukiga, and noting Rwanda’s submissions in this case, finds that Rwanda has several mutual assistance agreements with States in the region and elsewhere in Africa, and that agreements have been negotiated with other States as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[11] Further, the Appeals Chamber reiterates that United Nations Security Council Resolution 1503, calling on all States to assist national jurisdictions where cases have been referred, provides a clear basis for requesting and obtaining cooperation.[12] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters, or to secure the attendance or evidence of witnesses from abroad.

26.    The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person.[13] The Appeals Chamber further notes Rwanda’s submission that this procedure is intended to be an exceptional measure and that the possibility also exists for evidence to be taken abroad.[14] However, the Appeals Chamber is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony,[15] and that it would be a violation of the principle of equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[16]

[1] Request for Permission to Appear as Amicus Curiae Pursuant to Rule 74 of the ICTR Rules of Procedure and Evidence on behalf of Human Rights Watch, 27 February 2008, paras. 89-94, 97-102 (“HRW Amicus Brief”); Further Submissions as Amicus Curiae in Response to Queries from the Chamber on Behalf of Human Rights Watch, 10 April 2008, paras. 7-11 (“HRW Further Submissions”); Brief of Amicus Curiae International Criminal Defence Attorneys Association (ICDAA) Concerning the Request for Referral of Idelphonse [sic] Hategekimana to Rwanda Pursuant to Rule 11bis of the Rules of Procedure and Evidence, 4 April 2008, paras. 100-126, 131 (“ICDAA Amicus Brief”). See also Kanyarukiga Appeal Decision, para. 26; Munyakazi Appeal Decision, para. 37.

[2] Rule 11bis Decision, para. 63.

[3] Rule 11bis Decision, paras. 63, 65.

[4] Rule 11bis Decision, para. 66, citing HRW Further Submissions, paras. 22-25. See also Rule 11bis Decision, para. 63.

[5] Rule 11bis Decision, para. 67; ICDAA Amicus Brief, paras. 100-126, 131; HRW Amicus Brief, paras. 89-94, 97-102; HRW Further Submissions, paras. 7-11. See also Munyakazi Appeal Decision, para. 37; Kanyarukiga Appeal Decision, para. 26.

[6] Rule 11bis Decision, para. 62.

[7] See supra para. 22.

[8] See Munyakazi Appeal Decision, para. 40; Kanyarukiga Appeal Decision, para. 31.

[9] Rule 11bis Decision, para. 68, citing HRW Amicus Brief, paras. 38-40.

[10] Rule 11bis Decision, para. 68.

[11] Munyakazi Appeal Decision, para. 41; Kanyarukiga Appeal Decision, para. 32. See also Rwanda Amicus Brief, para. 7(a).

[12] Munyakazi Appeal Decision, para. 41; Kanyarukiga Appeal Decision, para. 32. Security Council Resolution 1503 states at paragraph 1 that the Security Council “[c]alls on the international community to assist national jurisdictions, as part of the completion strategy, in improving their capacity to prosecute cases transferred from the ICTY and the ICTR [...]”. S/RES/1503 (2003). See Stanković Appeal Decision, para. 26, where the Appeals Chamber approved of the Trial Chamber’s consideration of Security Council Resolution 1503 and interpreted this paragraph of the resolution as implicitly including cooperation with respect to witnesses.

[13] See also Munyakazi Appeal Decision, para. 42; Kanyarukiga Appeal Decision, para. 33.

[14] Rwanda Amicus Brief, para. 7(b).

[15] Rule 11bis Decision, para. 70. See also Munyakazi Appeal Decision, para. 42; Kanyarukiga Appeal Decision, para. 33.

[16] Rule 11bis Decision, para. 70. See also Munyakazi Appeal Decision, para. 42; Kanyarukiga Appeal Decision, para. 33.

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Appeal Judgement - 15.07.1999 TADIĆ Duško
(IT-94-1-A)

43. Article 20(1) of the Statute provides that “[t]he Trial Chambers shall ensure that a trial is fair and expeditious […]”. This provision mirrors the corresponding guarantee provided for in international and regional human rights instruments:  the International Covenant on Civil and Political Rights (1966) (“ICCPR”),[1] the European Convention on Human Rights (1950),[2] and the American Convention on Human Rights (1969).[3]  The right to a fair trial is central to the rule of law: it upholds the due process of law.  The Defence submits that due process includes not only formal or procedural due process but also substantive due process.[4]

44. The parties do not dispute that the right to a fair trial guaranteed by the Statute covers the principle of equality of arms.  This interpretation accords with findings of the Human Rights Committee (“HRC”) under the ICCPR.  The HRC stated in Morael v. France[5] that a fair hearing under Article 14(1) of the ICCPR must at a minimum include, inter alia, equality of arms.  Similarly, in Robinson v. Jamaica[6] and Wolf v. Panama[7] the HRC found that there was inequality of arms in violation of the right  to a fair trial under Article 14(1) of the ICCPR.  Likewise, the case law under the ECHR cited by the Defence accepts that the principle is implicit in the fundamental right of the accused to a fair trial.  The principle of equality of arms between the prosecutor and accused in a criminal trial goes to the heart of the fair trial guarantee.  The Appeals Chamber finds that there is no reason to distinguish the notion of fair trial under Article 20(1) of the Statute from its equivalent in the ECHR and ICCPR, as interpreted by the relevant judicial and supervisory treaty bodies under those instruments. Consequently, the Chamber holds that the principle of equality of arms falls within the fair trial guarantee under the Statute.

46. The Defence contends that the minimum guarantee in Article 21(4)(b) of the Statute to adequate time and facilities for the preparation of defence at trial forms part of the principle of equality of arms, implicit in Article 20(1).  It argues that, since the authorities in the Republika Srpska failed to cooperate with the Defence, the Appellant did not have adequate facilities for the preparation of his defence, thereby prejudicing his enjoyment of equality of arms.

47. The Appeals Chamber accepts the argument of the Defence that, on this point, the relationship between Article 20(1) and Article 21(4)(b) is of the general to the particular.  It also agrees that, as a minimum, a fair trial must entitle the accused to adequate time and facilities for his defence.  

In order to decide on the scope of application of the principle of equality of arms, the Appeals Chamber  carried out a review of the international case-law in paragraphs 48–50. It then continued as follows:-

51. The case law mentioned so far relates to civil or criminal proceedings before domestic courts.  These courts have the capacity, if not directly, at least through the extensive enforcement powers of the State, to control matters that could materially affect the fairness of a trial.  It is a different matter for the International Tribunal.  The dilemma faced by this Tribunal is that, to hold trials, it must rely upon the cooperation of States without having the power to compel them to cooperate through enforcement measures.[8] The Tribunal must rely on the cooperation of States because evidence is often in the custody of a State and States can impede efforts made by counsel to find that evidence.  Moreover, without a police force, indictees can only be arrested or transferred to the International Tribunal through the cooperation of States or, pursuant to Sub-rule 59bis, through action by the Prosecution or the appropriate international bodies.  Lacking independent means of enforcement, the ultimate recourse available to the International Tribunal in the event of failure by a State to cooperate, in violation of its obligations under Article 29 of the Statute, is to report the non-compliance to the Security Council.[9]

52. In light of the above considerations, the Appeals Chamber is of the view that under the Statute of the International Tribunal the principle of equality of arms must be given a more liberal interpretation than that normally upheld with regard to proceedings before domestic courts.  This principle means that the Prosecution and the Defence must be equal before the Trial Chamber.  It follows that the Chamber shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case.  The Trial Chambers are mindful of the difficulties encountered by the parties in tracing and gaining access to evidence in the territory of the former Yugoslavia where some States have not been forthcoming in complying with their legal obligation to cooperate with the Tribunal.  Provisions under the Statute and the Rules exist to alleviate the difficulties faced by the parties so that each side may have equal access to witnesses.  The Chambers are empowered to issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.  This includes the power to:

(1) adopt witness protection measures, ranging from partial to full protection;

(2) take evidence by video-link or by way of deposition;

(3) summon witnesses and order their attendance;

(4) issue binding orders to States for, inter alia, the taking and production of evidence; and

(5) issue binding orders to States to assist a party or to summon a witness and order his or her attendance under the Rules.

A further important measure available in such circumstances is:

(6) for the President of the Tribunal to send, at the instance of the Trial Chamber, a request to the State authorities in question for their assistance in securing the attendance of a witness.

In addition, whenever the aforementioned measures have proved to be to no avail, a Chamber may, upon the request of a party or proprio motu:

(7) order that proceedings be adjourned or, if the circumstances so require, that they be stayed. 

[1] Article 14(1) of the ICCPR provides in part:  “All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. […].”

[2] Article 6(1) of the ECHR provides in part:  “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

[3] Article 8(1) of the American Convention on Human Rights provides in part:

“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal or any other nature.”

[4] T. 29-35 (19 April 1999).

[5] Morael v. France, Communication No. 207/1986, 28 July 1989, U.N. Doc. CCPR/8/Add/1, 416.

[6] Robinson v. Jamaica, Communication No. 223/1987, 30 March 1989, U.N. Doc. CCPR/8/Add.1, 426.

[7] Wolf v. Panama, Communication No. 289/1988, 26 March 1992, U.N. Doc. CCPR/11/Add.1, 399.

[8] See “Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997”, The Prosecutor v. Tihomir Blaškić, Case No.: IT-95-14-AR108bis, Appeals Chamber, 29 October 1997, para. 26.

[9] Ibid., para. 33.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1)
Notion(s) Filing Case
Decision on Referral - 30.10.2008 KANYARUKIGA Gaspard
(ICTR-2002-78-R11bis)

With respect to the working conditions for the Defence in Rwanda, the Appeals Chamber held:

21.    The Appeals Chamber notes that it is unclear how the mechanisms of monitoring and revocation under the Rules would constitute sufficient safeguards for the defence with regard to obtaining documents in a timely manner and visiting detainees. The Appeals Chamber further notes that Article 15 of the Transfer Law, while ensuring Defence Counsel and staff the right to enter and move freely within Rwanda and freedom from search, seizure, arrest or detention in the performance of their legal duties, is silent on the issues of obtaining documents from the Rwandan authorities or visiting detainees. Article 13(4) of the Transfer Law, on the other hand, does provide the right of the Accused to adequate time and facilities to prepare his defence, which could constitute the basis for seeking a remedy before the Rwandan courts. As the Trial Chamber did not make any specific finding that such issues could not be so remedied, however, the Appeals Chamber finds no error in the Trial Chamber’s conclusion that defence teams have experienced impediments in obtaining documents from the Rwandan authorities and in meeting witnesses. The Appeals Chamber considers that these obstacles, whilst not sufficient in and of themselves to prevent referral of a case to Rwanda under Rule 11bis, do indicate that working conditions for the defence may be difficult in Rwanda, which in turn has a bearing on the fairness of the trial.

With regard to the issue of whether the Trial Chamber erred in finding that the Defence might face problems in obtaining witnesses residing inside Rwanda because they will be afraid to testify, the Appeals Chamber held:

26.    The Appeals Chamber considers that there was sufficient information before the Trial Chamber of harassment of witnesses testifying in Rwanda, and that witnesses who have given evidence before the Tribunal experienced threats, torture, arrests and detentions, and, in some instances, were killed.[1] There was also information before the Trial Chamber of persons who refused, out of fear, to testify in defence of people they knew to be innocent.[2] The Trial Chamber further noted that some defence witnesses feared that, if they testified, they would be indicted to face trial before the Gacaca courts, or accused of adhering to “genocidal ideology”.[3] The Appeals Chamber observes that the information available to the Trial Chamber demonstrates that regardless of whether their fears are well-founded, witnesses in Rwanda may be unwilling to testify for the Defence as a result of the fear that they may face serious consequences, including threats, harassment, torture, arrest, or even murder.[4] It therefore finds that the Trial Chamber did not err in concluding that Kanyarukiga might face problems in obtaining witnesses residing in Rwanda because they would be afraid to testify.

27.    The Appeals Chamber agrees with the Trial Chamber’s conclusion that the fact that the Rwandan witness protection service is administered by the Office of the Prosecutor General and that threats of harassment are reported to the police does not necessarily render it inadequate.[5] However, it finds that, based on the information before it,[6] the Trial Chamber did not err in finding that witnesses would be afraid to avail themselves of its services for these reasons.

The Appeals Chamber also considered whether the Trial Chamber erred in finding that the Defence will not be able to call witnesses residing outside Rwanda, to the extent and in the manner that will ensure a fair trial:[7]

31.    The Appeals Chamber finds that the Trial Chamber did not err in accepting Kanyarukiga’s assertion that most of his witnesses reside outside Rwanda, as this is usual for cases before the Tribunal,[8] and is supported by information from HRW.[9] The Appeals Chamber also finds that there was sufficient information before the Trial Chamber that, despite the protections available under Rwandan law, many witnesses residing outside Rwanda would be afraid to testify in Rwanda.[10] It therefore finds that the Trial Chamber did not err in concluding, based on the information before it, that despite the protections available in Rwandan law, it was not satisfied that Kanyarukiga would be able to call witnesses residing outside Rwanda to the extent and in a manner which would ensure a fair trial if the case were transferred to Rwanda.

32.    With respect to Rwanda’s ability to compel witnesses to testify, the Appeals Chamber recalls its finding in Munyakazi that Rwanda has several mutual assistance agreements with states in the region and elsewhere in Africa, and that agreements have been negotiated with other states as part of Rwanda’s cooperation with the Tribunal and in the conduct of its domestic trials.[11] It therefore finds that the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters that would make it difficult to secure the attendance of witnesses. Further, the Appeals Chamber reiterates that United Nations Security Council Resolution 1503, calling on all states to assist national jurisdictions where cases have been referred, provides a clear basis for requesting and obtaining cooperation.[12] The Trial Chamber took note of the Resolution, but concluded that it was not convinced that it would be in itself sufficient to ensure the availability of Defence witnesses.[13] Given the finding made above as to the likely difficulty that Kanyarukiga would face in bringing witnesses outside Rwanda to testify in view of the genuine fear they harbour, the Appeals Chamber agrees with the Trial Chamber.

33.    The Appeals Chamber considers that Rwanda has established that video-link facilities are available, and that video-link testimony would likely be authorized in cases where witnesses residing outside Rwanda genuinely fear to testify in person. However, the Appeals Chamber is of the opinion that the Trial Chamber did not err in finding that the availability of video-link facilities is not a completely satisfactory solution with respect to the testimony of witnesses residing outside Rwanda, given that it is preferable to hear direct witness testimony,[14] and that it would be a violation of the principle of the equality of arms if the majority of Defence witnesses would testify by video-link while the majority of Prosecution witnesses would testify in person.[15]

34.    The Appeals Chamber finds that while the Trial Chamber erred in holding that Rwanda had not taken any steps to conclude conventions on mutual assistance in criminal matters, the totality of circumstances indicate that the Trial Chamber was correct in concluding that Kanyarukiga would still face significant difficulties in securing the attendance of witnesses who reside outside Rwanda to the extent and in a manner which would jeopardize his right to a fair trial.

35.    The Appeals Chamber therefore finds that, in light of the above, the Trial Chamber did not err in holding, based on the information before it, that if the case were to be transferred to Rwanda, Kanyarukiga might face difficulties in obtaining witnesses residing within Rwanda because they would be afraid to testify, and that he would not be able to call witnesses residing outside Rwanda, to the extent and in a manner that would ensure a fair trial. The Appeals Chamber therefore dismisses this sub-ground of appeal.

[1] Brief of Human Rights Watch as Amicus Curiae in Opposition to Rule 11 bis Transfer, 27 February 2008 (“HRW Amicus Brief”), paras. 89-102; Brief of Amicus Curiae, International Criminal Defence Attorneys Association (ICDAA) Concerning the Request for Referral of the Accused Gaspard Kanyarukiga to Rwanda pursuant to Rule 11bis of the Rules of Procedure and Evidence (“ICDAA Amicus Brief”), paras. 87, 89. See also Munyakazi Appeal Decision, para. 37.

[2] HRW Amicus Brief, para. 37.

[3] Rule11bis Decision, para. 72, referring to HRW Amicus Brief, paras. 30-40.

[4] See also Munyakazi Appeal Decision, para. 37.

[5] See also Munyakazi Appeal Decision, para. 38.

[6] ICDAA Amicus Brief, para. 85; HRW Amicus Brief, para. 87.

[7] Rule 11bis Decision, para. 81.

[8] Munyakazi Appeal Decision, para. 40.

[9] See HRW Amicus Brief, para. 38.

[10] See HRW Amicus Brief, para. 10, indicating that in interviews with two dozen Rwandans living abroad, no one was willing to travel to Rwanda to testify for the defence. See also the statement by the Rwandan Minister of Justice regarding immunity for witnesses granted pursuant to Article 14 of the Transfer Law, cited in the HRW Amicus Brief at para. 39, and quoted by the Trial Chamber in fn. 107 of the Rule 11bis Decision. The Appeals Chamber finds that this statement, which according to HRW, was widely circulated in the diaspora, may contribute to the unwillingness of witnesses residing outside of Rwanda to return to Rwanda to testify. See also Munyakazi Appeal Decision, para. 40.

[11] Munyakazi Appeal Decision, para. 41. See Rwanda Amicus Brief, para. 10, referring to Rwanda Amicus Brief (Munyakazi), para. 23. Rwanda is a party to the agreement of Mutual Legal Assistance in Criminal Matters of the East Africa Police Chiefs Organisation with many states in the region and elsewhere including Kenya, Uganda, Tanzania, Burundi, Djibouti, Eritrea, Seychelles and Sudan, and has a Mutual Legal Assistance Protocol with states under the Convention Establishing the Economic Community of the Great Lakes Countries (CEPGL). Rwanda has also negotiated an extradition Memorandum of Understanding with the United Kingdom, and it is cooperating with many justice systems including those of New Zealand, Finland, Denmark and Germany.

[12] Munyakazi Appeal Decision, para. 41. Security Council Resolution 1503 states at paragraph 1 that the Security Council “[c]alls on the international community to assist national jurisdictions, as part of the completion strategy, in improving their capacity to prosecute cases transferred from the ICTY and the ICTR [...]”, S/RES/1503 (2003). See Stanković Appeal Decision, para. 26, where the Appeals Chamber approved of the Trial Chamber’s consideration of Security Council Resolution 1503 and interpreted this paragraph of the resolution as implicitly including cooperation with respect to witnesses.

[13] Rule 11bis Decision, fn. 109.

[14] See also Munyakazi Appeal Decision, para. 42.

[15] Rule 11bis Decision, paras. 79, 80. See also Munyakazi Appeal Decision, para. 42.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

26. It is well established that trial chambers exercise discretion in relation to trial management, which includes decisions on adjournments.[1] The Appeals Chamber’s examination is therefore limited to establishing whether the Trial Chamber abused its discretionary power by committing a discernible error when it refused Kanyarukiga’s request to adjourn the start of the trial.[2] With respect to the laissez-passers, Kanyarukiga submitted to the Trial Chamber that the trial would move forward in a different manner if these documents were to be retrieved and that he was willing to “wait a few more weeks” until the Prosecution presented the results of its inquiry.[3] These arguments did not show that Kanyarukiga needed a postponement of the trial to prepare his defence. He has thus failed to demonstrate that the Trial Chamber abused its discretion in declining his adjournment request.

52. […] the Appeals Chamber notes that the timing of the Trial Chamber’s rulings on the admissibility of Prosecution evidence related to the general conduct of trial proceedings and was thus a matter within the discretion of the Trial Chamber. […]

[1] See, e.g., Šešelj Decision of 16 September 2008 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR73.8, Decision on Prosecution’s Appeal Against the Trial Chamber’s Order Regarding the Resumption of Proceedings, 16 September 2008], para. 3; Prlić et al. Decision of 1 July 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.7, Decision on Defendants Appeal Against “Décision portent attribution du temps à la Défense pour la présentation des moyens à décharge, ” 1 July 2008], para. 15. See also Ngirabatware Decision of 12 May 2009 [Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009], para. 22; Karemera et al. Decision of 28 April 2006 [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006], paras. 7, 8.

[2] See Šešelj Decision of 16 September 2008, para. 3.

[3] T. 31 August 2009 pp. 4, 5, 7. In his motion for certification to appeal the Trial Chamber’s dismissal of his adjournment request, Kanyarukiga further explained that he was willing to accept a temporary infringement of his right to a speedy trial in order to ensure that the Prosecution provided the necessary answers to his queries before proceeding to trial. See The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-02-78-T, Motion for Certification to Appeal the Trial Chamber’s Decision on the Defence Motion to Adjourn Proceedings, 7 September 2009 (“Motion for Certification of 7 September 2009”), para. 7. He also stated that “it would be unfair to proceed before having given the Prosecution every chance to find the documents and/or to provide an adequate explanation for their absence.” See Motion for Certification of 7 September 2009, para. 6.

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Appeal Judgement - 08.05.2012 KANYARUKIGA Gaspard
(ICTR-02-78-A)

52. The Appeals Chamber recalls that when a party alleges on appeal that its right to a fair trial has been infringed, it must prove that the trial chamber violated a provision of the Statute and/or the Rules and that this violation caused prejudice which amounts to an error of law invalidating the trial judgement.[1] […] The Appeals Chamber would only reverse such a decision [related to the general conduct of trial proceedings] where it was demonstrated that the Trial Chamber committed a discernible error in rendering the decision, based on an incorrect interpretation of the governing law or a patently incorrect conclusion of fact, or where the decision was so unfair or unreasonable so as to constitute an abuse of the Trial Chamber’s discretion.[2]

[1] Haradinaj et al. Appeal Judgement, para. 17; Krajišnik Appeal Judgement, para. 28.

[2] See, e.g., Kalimanzira Appeal Judgement, para. 14; Rukundo Appeal Judgement, para. 147.

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Referral Decision - 16.12.2011 UWINKINDI Jean
(ICTR-01-75-AR11bis)

28. The Appeals Chamber is not convinced that the Referral Chamber erred in failing to address the issue of which party bears the burden of proof, or that it placed an inappropriate burden on the Defence in this respect. In its submissions, the Prosecution acknowledged that it bore the burden of proof to demonstrate that Mr. Uwinkindi’s trial in Rwanda will be fair.[1] The Appeals Chamber considers that, in cases where the Prosecution requests referral, it bears the burden of proof to demonstrate that the conditions set out in Rule 11bis of the Rules are met. However, the Appeals Chamber recalls that a designated trial chamber may also rely on any information and orders it reasonably finds necessary in determining whether the proceedings following the transfer will be fair.[2] A review of the Impugned Decision as a whole reflects that the Referral Chamber correctly regarded the burden of proof as falling on the Prosecution and also acted within its discretion in relying on other information or its own orders to satisfy itself that Mr. Uwinkindi’s trial in Rwanda will be fair.

[1] [Prosecutor’s Response Brief, 28 September 2011 (“Response Brief”)], para. 10.

[2] Stanković Appeal Decision, para. 50. See also Impugned Decision, para. 16.

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Referral Decision - 16.12.2011 UWINKINDI Jean
(ICTR-01-75-AR11bis)

50. The parties do not dispute that, on its face, Article 59 of the [Rwandan Code of Criminal Procedure (“RCCP”)] could bar the presentation of evidence by an accused or any defence witnesses who are suspected of involvement in an offence.[1] The Appeals Chamber notes, however, that the Referral Chamber interpreted Article 59 of the RCCP as being inconsistent with Article 13(10) of the Transfer Law and therefore inapplicable in any case transferred to Rwanda by the Tribunal pursuant to Article 25 of the Transfer Law. Implicit in this ruling is the Referral Chamber’s conclusion that, in light of the Transfer Law, Mr. Uwinkindi would not be precluded from presenting the evidence of a witness suspected of involvement in an offence or presenting evidence on his own behalf. In this respect, the Appeals Chamber recalls that the Rules of the Tribunal guarantee an accused the right to appear as a “witness” in his own defence.[2] It further notes that parties before the Tribunal are permitted to, and do, rely on accomplice witnesses or other witnesses who are suspected of being involved in the commission of crimes.[3]

51. The Appeals Chamber observes that the Transfer Law is not as clear as it could be in relation to the right of all parties to present evidence of witnesses without limitation in any referred case, and notes that Article 59 of the RCCP is ambivalent as to whether the proscription it contains applies equally to witnesses called by prosecutors in Rwanda. The Appeals Chamber is nonetheless satisfied that it was within the discretion of the Referral Chamber to conclude that Article 59 of the RCCP would not be applied in any referred case and that the Transfer Law guaranteed the accused the requisite fair trial rights with regard to the presentation of witness evidence.

[1] See [Defence Reply to the Prosecutor’s Response Brief to the Defence Appeal Brief Against the Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, 4 October 2011 (“Reply Brief”)], paras. 22, 23; Response Brief, para. 33.

[2] Rule 85(C) of the Rules. See also Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, para. 27; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement, 30 November 2006, paras. 19, 22.

[3] See Impugned Decision, para. 39. Cf. Siméon Nchamihigo v. The Prosecutor, Case No. ICTR-01-63-A, Judgement, 18 March 2010, paras. 42-48.

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Referral Decision - 16.12.2011 UWINKINDI Jean
(ICTR-01-75-AR11bis)

61. The Appeals Chamber observes that, in assessing the availability of defence witness testimony, the Referral Chamber correctly noted that its role was not to determine whether the witnesses’ fears were well-founded, but instead to focus on the likelihood that Mr. Uwinkindi will be able to secure their appearance on his behalf under the same conditions as those testifying against him.[1] The Appeals Chamber further considers that the Referral Chamber emphasized the need for adequate legal safeguards to address the subjective fears that might discourage witnesses from testifying,[2] and demonstrated awareness of the range of fears expressed by Mr. Uwinkindi’s potential defence witnesses about appearing at a trial in Rwanda. In particular, the Referral Chamber noted that most witnesses feared prosecution under Rwanda’s genocide ideology law, while others feared that they would be killed, abducted, transferred to prisons away from their families, or persecuted in prison as a repercussion for their testimony, or that their family members would be subjected to retaliation.[3]

62. The Appeals Chamber considers that the Referral Chamber acted within its discretion in finding that the recent amendments to relevant laws and enhancements to witness protection services constitute sufficient assurances to address defence witnesses’ concerns and to help secure their appearance. Notably, with regard to securing witnesses’ appearances, the Referral Chamber considered: (i) defence and amicus curiae submissions indicating past cases in which defence witnesses have been subjected to prosecutions, intimidation, and actual or threatened violent reprisals for testifying; and (ii) previous findings by the Appeals Chamber in Rule 11bis decisions confirming fear of these consequences as obstacles to securing defence witness testimony.[4] Despite the similarity between the concerns expressed by defence witnesses in this case and those in previous referral cases, the Referral Chamber acted within its discretion in finding it “logical to assume that with the amendments made to [the Transfer Law] regarding witness immunity, the creation of a new witness protection programme, and the safeguards imposed by the Chamber on Rwanda,” the Appeals Chamber’s previous findings that witnesses may be unwilling to testify are “no longer a compelling reason for denying referral.”[5]

64. The Referral Chamber acted within the scope of its discretion in relying on the existence of such a legal framework as a primary basis for determining whether an accused will be able to secure the attendance of reluctant witnesses.[6] The Appeals Chamber has previously held that a designated trial chamber could reasonably deny referral notwithstanding the existence of this framework, largely due to the specific finding that the accused may face difficulties in securing the attendance of witnesses to the extent that it would jeopardize his right to a fair trial.[7] However, it is equally within the discretion of a trial chamber to find that the ability to compel testimony is a factor which can be taken into account in addressing the subjective fears of defence witnesses. The Appeals Chamber is satisfied that the Referral Chamber had a reasonable basis to conclude that Mr. Uwinkindi will be able to secure the attendance of witnesses.

66. The Appeals Chamber notes, however, that the existence of witness protection services and a regime for obtaining compulsory process is not necessarily a panacea for securing the testimony of defence witnesses who have obtained refugee status in countries outside Rwanda. It would be unreasonable to require refugees, for whom a well-founded fear of persecution upon returning to Rwanda has been determined, to appear as witnesses in Rwanda before the High Court. The Referral Chamber considered, however, that the Transfer Law allows for alternative methods of obtaining testimony from witnesses abroad: by deposition, video-link, or a judge sitting in a foreign jurisdiction.[8] Given the variety of alternative means available under the Transfer Law for securing such testimony, the Appeals Chamber is not convinced that the Referral Chamber committed a discernible error by failing to determine whether video-link was technically feasible in each of the countries where Mr. Uwinkindi’s potential witnesses are located.

67. The Appeals Chamber further notes that it would be a violation of the principle of equality of arms if the majority of defence witnesses appeared by means substantially different from those for the Prosecution.[9] However, the Appeals Chamber notes that Mr. Uwinkindi has not identified how many of his potential witnesses might fall into this category or that it constitutes a sufficiently significant part of his possible evidence. It cannot be said that hearing a portion of evidence from either party by alternative means per se amounts to a violation of an accused’s rights. The relevant inquiry is a fact-based assessment that is best left to a chamber with a fully developed record as to the nature of the evidence against the accused, and with specific knowledge of the nature of the proposed defence case and the relevant sources of evidence.

[1] Impugned Decision, paras. 85, 90.

[2] Impugned Decision, para. 103.

[3] Impugned Decision, paras. 88-90.

[4] Impugned Decision, paras. 99, 100.

[5] Impugned Decision, para. 100.

[6] Cf. Stanković Appeal Judgement, para. 26.

[7] See [The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 4 December 2008], paras. 22-25, 30.

[8] See Impugned Decision, paras. 109, 112, 113.

[9] See [The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision on the Prosecution’s Appeal Against Decision on Referral Under Rule 11bis, 9 October 2008], para. 42.

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ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
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Decision on Interlocutory Appeal - 25.05.2001 KVOČKA et al.
(IT-98-30/1-AR73.5)

21. Procedural equality requires that the concept of a fair trial be applied taking into account the interests of both parties. The Prosecution acts on behalf of and in the interests of the international community.[1] Thus, as the international community has an interest in the enforcement of such guarantee, it cannot be deprived of it by the mere circumstance that the Appellant would like to waive his own entitlement to a fair trial.

 

[1] Prosecutor v. Zlatko Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, Case No.: IT-95-14/1-AR73, 16 February 1999, para 25.

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Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

34. […] [T]he Appeals Chamber is not persuaded that Markač’s right to a fair trial would be adversely affected merely as a result of the reopening of the Prosecution’s case.[1] What is important for the Trial Chamber is to ascertain that following the reopening of the Prosecution’s case, the proceedings are indeed conducted with full respect for the principle of equality of arms. […]

[1] Markač Appeal, para. 29.

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Decision on Exclusion of Evidence - 19.12.2003 BAGOSORA et al. (Military I)
(ICTR-98-41-AR93 & ICTR-98-41-AR93.2)

11.     The decision to admit or exclude evidence pursuant to Rule 89(C) is one within the discretion of the Trial Chamber and, therefore, appellate intervention is warranted only in limited circumstances. The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) has summarized the applicable standard of review as follows: “It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a ‘discernible’ error made by the Trial Chamber. It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.”[1] If the Trial Chamber has properly exercised its discretion, the Appeals Chamber may not intervene solely because it may have exercised the discretion differently.[2]

[…]

16.     The Appeals Chamber affirms that the Trial Chamber has a broad discretion to direct the course of the proceedings in accordance with its fundamental duty to ensure a fair and expeditious trial pursuant to Article 19(1) of the Statute. In pursuit of these goals, the Trial Chamber may choose to exclude otherwise relevant and probative evidence where its prejudicial effect will adversely affect the fairness or expeditiousness of the proceedings. […]

[1] Prosecutor v. Milosević, Nos. IT-99-37-AR73, IT-01-50-AR73 & IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 5 (footnotes omitted).

[2] Ibid., para. 4.

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Decision Regarding Leave to Amend Indictment - 19.12.2003 KAREMERA et al.
(ICTR-98-44-AR73 )

17. […][T]he determination whether proceedings will be rendered unfair by the filing of an amended indictment must consider the risk of prejudice to the accused. 

See also para. 28.

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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

8.       The Trial Chamber’s determination of whether the engagement of certain staff would lead to actual bias or the appearance of bias is a discretionary decision to which the Appeals Chamber must accord deference.[1] […]

[…]

23.     […] The Appeals Chamber considers that the Impugned Decision concerns the engagement of staff to assist the Trial Chamber and recalls that a trial chamber’s determination in this respect is a discretionary decision to which the Appeals Chamber must accord deference.[2] However, the Appeals Chamber emphasizes that trial chambers must exercise their discretion consistently with Articles 20 and 21 of the Statute, which require trial chambers to ensure that a trial is fair and expeditious.[3]

[1] The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009 (“Bizimungu et al. Appeal Decision”), para. 4.

[2] Bizimungu et al. Appeal Decision, para. 4.  See also supra, para. 8.

[3] See Nyiramasuhuko et al. Appeal Judgement, para. 138; Ildéphonse Nizeyimana v. The Prosecutor, Case No. ICTR‑00-55C-A, Judgement, 29 September 2014, para. 286; Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009, para. 22.

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Decision on Fair Trial and Presumption of Innocence - 27.02.2017 MLADIĆ Ratko
(IT-09-92-AR73.6)

9.       The Appeals Chamber recalls that legal officers assisting Judges at the Tribunal are not subject to the same standards of impartiality as the Judges of the Tribunal, and that judicial decision-making is the sole purview of the Judges.[1] Legal officers merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.[2]

10.     Notwithstanding the above, in some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial.[3] In this respect, the Appeals Chamber recalls in particular, that an unacceptable appearance of bias exists, inter alia, where the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[4] The Appeals Chamber further recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal and which cannot be easily rebutted.[5]

[…]

37.     When addressing whether the impartiality of the Judges in this case could be affected by the Impugned Staff’s involvement in the Karadžić case, the Trial Chamber found that, even though “there is a considerable degree of overlap between the Karadžić case and the present case”, “a properly informed and reasonable observer would not consider […] that the judges in the present case ha[ve] failed to maintain the high degree of integrity and impartiality to which they are sworn, even if they or the Impugned Staff had worked on both cases.”[6] It added that a properly informed and reasonable observer would not expect that the Judges in this case would do anything other than rule fairly on the issues before them, relying exclusively on the evidence adduced in the present case, even if they or their staff had been exposed to evidence in both cases.[7] The Trial Chamber concluded that the presumption of impartiality attached to the Judges in this case had not been rebutted on the basis that the Impugned Staff had worked on an overlapping case in which factual findings were made in relation to Mladić.[8]

38.     With respect to Mladić’s argument that the Trial Chamber failed to sufficiently reason its conclusions relating to the application of the reasonable observer test,[9] the Appeals Chamber considers that Mladić’s arguments effectively amount to a challenge to how the reasonable observer test has been interpreted in the case law. The Appeals Chamber is of the view that Mladić’s argument reflects his disagreement with the jurisprudence relied upon by the Trial Chamber and set out in detail in the applicable law section of the Impugned Decision,[10] as well as with the Trial Chamber’s reliance on this jurisprudence when assessing whether the Impugned Staff’s involvement in the Karadžić case could lead to an appearance of bias of the Judges in this case[11] without explaining how the Trial Chamber erred in following this case law. The Appeals Chamber finds that Mladić fails to demonstrate an error in the Trial Chamber’s reasoning.

39.     Moreover, the Appeals Chamber recalls that “‘mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves’, to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges.”[12] Accordingly, the Appeals Chamber does not consider that a staff’s previous work on an overlapping case is, in and of itself, sufficient to impugn the Judges’ impartiality or the appearance thereof. The Appeals Chamber therefore finds no merit to Mladić’s argument that a reasonable observer would consider that the fact that the Impugned Staff previously worked on the closely-related Karadžić case, is sufficient to rebut the impartiality of the Judges in this case.

See also paragraphs 30, 33.

[1] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 273, referring to, inter alia, Bizimungu et al. Appeal Decision, para. 9, Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR‑00-55B-A, Judgement, 8 May 2012 (“Hategekimana Appeal Judgement”), para. 20.

[2] Nyiramasuhuko et al. Appeal Judgement, para. 273; Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], para. 9.

[3] Bizimungu et al. Appeal Decision, para. 11.

[4] See, e.g., Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Judgement, 30 June 2016 (“Stanišić and Župljanin Appeal Judgement”), para. 43 and references cited therein.

[5] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 44 and references cited therein; Nyiramasuhuko et al. Appeal Judgement, para. 273; Hategekimana Appeal Judgement, para. 16.

[6] Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 22.

[7] Impugned Decision, para. 23.

[8] Impugned Decision, para. 26.

[9] See supra, para. 17.

[10] Impugned Decision, paras 9-10.

[11] Impugned Decision, paras 22-23.

[12] Hategekimana Appeal Judgement, para. 20, quoting Bizimungu et al. Appeal Decision, para. 10.

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