Instructions from the accused

Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

124. The Appeals Chamber further notes that it was the Appellant who instructed his Counsel “not to represent [him] in this trial”, as is evident from the aforementioned excerpt from Appellant Barayagwiza’s statement of 23 October 2000,[1] his letters of 23 and 24 October 2000[2] and the motion to withdraw Counsel for Jean-Bosco Barayagwiza.[3] The Appellant does not, moreover, contest that he gave such instruction to his Counsel. In the circumstances, the Appeals Chamber cannot find that the Trial Chamber should have compelled them to be more active in defending the Appellant. Such an intervention would not have been consistent with the role of a Trial Chamber of the Tribunal.[4] The appeal on this point is accordingly dismissed.

125. […] In effect, the Appellant’s attitude amounted to a waiver of the right to examine or to have examined the witnesses who were being heard at the time.[5] [See also para. 165 of the Appeals Judgement]

[1] See supra, para. 113.

[2] Letters from Jean-Bosco Barayagwiza dated 23 and 24 October 2000 respectively, attached to the [Motion for Withdrawal of Counsel for Jean-Bosco Barayagwiza] of 26 October 2000. In the first letter, addressed to Presiding Judge Pillay, Appellant Barayagwiza states: “Under no circumstances are they authorized to represent me in any respect whatsoever in this trial”. In the second letter, he reiterates: “[m]y counsels are instructed not to represent me in that trial”.

[3] [Motion for Withdrawal of Counsel for Jean-Bosco Barayagwiza], 26 October 2000, paras. 2-4, 8.

[4] As the Appellant himself acknowledges (see, for example, Barayagwiza Appellant’s Brief, para. 74), the proceedings at the Tribunal are essentially adversarial and it is the parties who are primarily responsible for the conduct of the debate. A Trial Chamber cannot dictate to a party how to conduct its case.

[5] In this respect, the Appeals Chamber notes that the ECHR recognized that an accused can waive his right to examine or cross-examine a witness. See, inter alia, Vaturi v. France, No. 75699/01, ECHR (first section), Judgement of 13 April 2006, para. 53, and Craxi v Italy, No. 34896/97, ECHR (first section), Judgement of 5 December 2002, paras. 90-91.

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