|Appeal Judgement - 20.02.2001||
DELALIĆ et al. (Čelebići)
625. No precedent in the international context was cited in relation to the specific issue raised by this ground of appeal, and none has been discovered by the Appeals Chamber’s own research. Guidance as to the legal principles relevant to an allegation that a trial judge was not always fully conscious of the trial proceedings may therefore be sought from the jurisprudence and experience of national legal systems. The national jurisprudence considered by the Appeals Chamber discloses that proof that a judge slept through, or was otherwise not completely attentive to, part of proceedings is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to a such degree as to give rise to a right to a new trial or other adequate remedy. The parties essentially agreed that these are the principles which apply to the issue before the Appeals Chamber.
626. The jurisprudence of national jurisdictions indicates that it must be proved by clear evidence that the judge was actually asleep or otherwise not fully conscious of the proceedings, rather than that he or she merely gave the appearance of being asleep. […]
630. […] As stated earlier, the national jurisprudence indicates that, before a remedy will be granted on the basis that a judge has been asleep or otherwise inattentive, it must be proved that some identifiable prejudice was caused thereby to the complaining party. In some continental systems where the sleeping or inattention of a judge may form the basis for a ground of appeal or revision of a judgement – for example, because the court was thereby not properly constituted – no separate reference is made to the necessity to demonstrate prejudice before such a ground would succeed. However, in order to establish a violation in those cases, a party must prove that the judge in question was unable to perceive “essential” or “crucial” events in the hearing. If such a standard of judicial inattention has been proved, some actual prejudice must necessarily have been incurred, or at least the proceedings must necessarily have been defective in a material way. The complaining party must prove the relevant prejudice by clear evidence. Indeed, it has been held that to grant a new trial on the basis of the inattention of a juror without clear proof of any prejudice caused thereby constitutes “a clear abuse of discretion”.
631. The prejudice which must be proved may be manifested where the judge fails in some identifiable way to assess the evidence properly or expresses an incorrect understanding of the evidence which was given or the submissions which were put. Elsewhere, it has been held that what must be proved is that the judge is completely inattentive to such a substantial or significant part of the proceedings that there has been a “significant defect” in the proceedings. The failure of counsel to object or to call attention to a judge’s sleeping or inattention during the proceedings is relevant to the question as to whether prejudice has been established. Failure of counsel to object will usually indicate that counsel formed the view at the time that the matters to which the judge was inattentive were not of such significance to his case that the proceedings could not continue without attention being called thereto.
632. The necessity that an appellant establish that some prejudice has actually been caused by a judge’s inattention before a remedy will be granted is simply a matter of common sense. It is clear that there are a number of legitimate reasons why a judge’s attention may briefly be drawn away from the court proceedings before him or her, including taking a note of the evidence or of a particular submission or looking up the transcript to check evidence previously given. It has been recognised in national jurisprudence that instances of inattention of that nature do not cause prejudice or undermine the fairness of the trial, but are an integral part of a judge’s task in assessing the case before him or her.
633. Moreover, where a judge of this Tribunal misses any evidence, there is not only a transcript to be read but also a video-tape to be viewed if the demeanour of the witness needs to be checked, and there are the observations of the other two judges to assist. Indeed, for these reasons it has been recognised in the Rules of Procedure and Evidence of the Tribunal that the short absence of a judge from trial proceedings need not necessarily prevent the continuation of the proceedings in the presence of the remaining two judges. Rule 15bis(A) states:
If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Trial Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than three days.
Although this rule was not in force at the time of the Čelebići trial proceedings, the fact of its adoption is a clear demonstration that the judges of the Tribunal meeting in plenary considered it to be consistent with the principles of a fair trial and with the Statute of the Tribunal to permit proceedings to be conducted in the temporary absence of one judge.
637. Reliance was also placed by Landžo on the principle that there must be the appearance of a fair trial, with the implication that even proof of an appearance that a judge was sleeping during proceedings is an adequate foundation for relief without proof of prejudice. […]
638. […] The Appeals Chamber does not accept that this was the correct approach. In relation generally to the right to a fair trial under Article 6 of the European Convention on Human Rights, the European Court of Human Rights has held that, despite
[…] the importance of appearances in the administration of justice, […] the standpoint of the persons concerned is not in itself decisive. The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified […].
See also paragraphs 640-649.
 Cases relating to jurors alleged to have been asleep during a trial are included in the present consideration.
 [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A (“Čelebići Case”), Supplemental Brief of the Appellant, Esad Landžo, in Support of the Fourth Ground of Appeal (Sleeping Judge), 7 December 1999], pp 7-8; [Čelebići Case, Respondent’s Brief of the Prosecution in Relation to Esad Landžo’s Fourth Ground of Appeal, 28 Jan 2000], para 3.3.
 R v Caley  WCBJ 1714 (British Columbia Supreme Court), at para 25 (to grant relief on the basis of the inattention of the judge there must be “clear and overwhelming evidence”); Sanborn v Commonwealth 975 SW 2d 905 (1998), at 911 (Supreme Court of Kentucky); Commonwealth v Keaton, 36 Mass App Ct 81 (1994), at 87; Bundesgerichtshof, Vol 11, p 74, Judgement of 22 November 1957 (German Federal Supreme Court of Justice); Bundesverwaltungsgericht, Judgement of Supreme Administrative Court, 24 Jan 1986 at para 12;  Neue Juristiche Wochenschrift 2721, at 2721; Illinois v McCraven 97 Ill App 3d 1075 (1981) (Appellate Court of Illinois), at 1076; People v Thurmond 175 Cal App 3d 865 (1985) (Court of Appeal, 2d District), at 874; Commonwealth Bank of Australia v Falzon  VSCA 79, para 10 (Supreme Court of Victoria, Court of Appeal).
 R v Moringiello  Crim LR 902; R v Edworthy  Crim LR 325; R v Tancred 14 April 1997, Court of Appeal (Criminal Division); Kozlowski v City of Chicago 13 Ill App 513 (the fact that a juror fell asleep during proceedings, absent an affirmative showing of prejudice to the complainant, is not a ground for a new trial); State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio) (must be a showing of “material prejudice”).
 See, in Germany, the Strafprozeßordnung, which provides by Article 338 (1) that an absolute ground for revision of a judgement is that the trial court was not constituted as provided. Article 338 (1) may be violated where a judge or lay assessor is asleep or otherwise “absent”.
 Bundesverwaltungsgericht (Supreme Administrative Court) Judgement of 24 January 1986,  Neue Juristiche Wochenschrift 2721, at 2721; Bundesgerichtshof (Federal Supreme Court of Justice) Vol 2, p 14, Judgement of 23 November 1951.
 State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio); United States of America v White and Keno 589 F 2d 1283 (1979) (Court of Appeals, 5th Circuit), at 1289.
 Ferman v Estwing Manufacturing Company, 31 Ill App 3d 229, at 233.
 See, e.g., Espinoza v The State of Texas, Tex App Lexis 5343, Judgement of 21 July 1999.
 Stathooles v Mount Isa Mines Ltd  2 Qd R 106 (Queensland Court of Appeal), at 113.
 The Chicago City Railway Company v John Anderson 193 Ill 9 (1901), at 13.
 Bundesgerichtshof (Federal Supreme Court of Justice) Vol 11 p 74, 22 November 1957, at 77: “There are numerous matters of behaviour and other circumstances by which a judge may give the impression to participants, especially to a defendant who is a layman in law, that he did not pay attention to a part of the events of the proceedings. Such an impression can even be made by actions to which the judge is legally obliged [sic]”.
 It was adopted at the Twenty-first Plenary Session, 15-17 Nov 1999, (Revision 17 of the Rules) and entered into force on 7 Dec 1999. The words “or for reasons of authorised Tribunal business” were inserted by Revision 19 of the Rules, with effect from 19 Jan 2001.
 Appeal Transcript, p 692.
 Kraska v Switzerland, Case No 90/1991/342/415, Judgement of 19 April 1993, para 32.