Limits to that right

Notion(s) Filing Case
Decision on the Course of Proceedings - 16.05.2008 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73.2)

15. The Appeals Chamber recalls that in the Impugned Decision, the Trial Chamber found that derogation from the right of the Accused to be present at trial was warranted given that his health condition regularly interferes with the right to a fair and expeditious trial.  The Prosecution correctly points out that derogation from the right to be present is reasonable under some circumstances and that derogation may be justified even on the basis of substantial trial disruptions on the part of an accused that are unintentional in nature.  The question before the Appeals Chamber is whether derogation from the right to be present through the establishment of a video-conference link that enables the Accused to participate in his trial from the UNDU was reasonable under the circumstances of this case.

16. The Appeals Chamber observes that in determining whether derogation from the Accused’s right to be present at trial was justified, the Trial Chamber considered the proportionality principle.[3]  Specifically, the Trial Chamber noted that any restrictions on a fundamental right “must be the least intrusive instrument amongst those which might achieve the desired result.”[4]  The Trial Chamber further considered that in the Zigiranyirazo Decision, the Appeals Chamber held that the need to ensure a reasonably expeditious trial is an objective of general importance and accordingly concluded that its task in the instant case was to “strike an appropriate balance between the reasonably expeditious resolution of the case and the need to protect the Accused’s right to be present at his trial.”[5]

18. The Appeals Chamber considers that in determining the future course of the proceedings in this case, the Trial Chamber’s decision to balance the right of the Accused to be present with the right of both the Accused and his co-Accused to an expeditious trial was reasonable. […] 

19. The Appeals Chamber emphasizes that the right to be present is a fundamental right, and although the Prosecution correctly points out that derogation from this right may be warranted in light of substantial trial delays, the Appeals Chamber agrees with the Defence that derogation is not appropriate when reasonable alternatives exist.  The Appeals Chamber notes that in choosing to establish the video-conference link, the Trial Chamber excluded other potential options, including, as the Prosecution observes, allowing the case to remain in the pre-trial phase for three to six months.[6]  The Appeals Chamber considers that, given the existence of this reasonable alternative, which could potentially secure the Accused’s ability to fully exercise his right to be present at trial within a relatively short period of time, the Trial Chamber erred in choosing an alternative that restricted this right. 

20. The Appeals Chamber further notes that in establishing the video-conference link to enable the Accused to participate in the proceedings from the UNDU when he is too unwell to physically attend court, the Trial Chamber failed to consider whether, given his physical and mental state, he would nevertheless be able to effectively participate in his trial via the video-conference link.  The Appeals Chamber finds that a reasonable Trial Chamber would have considered this factor in its decision and accordingly finds that the Trial Chamber’s failure to do so amounts to a discernible error.

[1] Impugned Decision [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Future Course of Proceedings, 9 April 2008], para. 15.

[2] Prosecution Response [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Prosecution’s Response to “Defence Appeal of the Decision on Future Course of Proceedings,” filed publicly with confidential annex, 5 May 2008], para. 45.

[3] Impugned Decision, para. 10.

[4] Impugned Decision, para. 10 (citing the United Nations Human Rights Committee, compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/rev.6, 12 May 2003, p. 176).

[5] Impugned Decision, para. 11.

[6] Prosecution Response [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Prosecution’s Response to “Defence Appeal of the Decision on Future Course of Proceedings,” filed publicly with confidential annex, 5 May 2008 ], para. 33.

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Notion(s) Filing Case
Appeal Judgement - 14.12.2011 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

58. One of the principal factors which led the Trial Chamber to deny the adjournment was that none of the witnesses due to testify during Nsengiyumva’s absence was adverse or particularly relevant to him.[1] The Appeals Chamber recalls that, in a decision in the Karemera et al. case rendered on 5 October 2007, it held that “[i]n the circumstances of a joint trial, it is irrelevant for the purpose of [determining whether to continue trial in absence of an accused due to no fault of his own] whether or not the witness’s testimony was likely to concern the alleged acts and conduct of a co-accused only”.[2] However, the Appeals Chamber considers that cogent reasons exist for departing from this particular aspect of the Karemera et al. Appeal Decision of 5 October 2007. The Appeals Chamber is of the view that, contrary to its statement in the Karemera et al. case, the relevance of a witness’s testimony to an accused is a factor which can be considered by the Trial Chamber in determining whether to continue trial in the absence of that accused. It considers that the statement in the Karemera et al. Appeal Decision of 5 October 2007 constitutes an unnecessary restriction on a Trial Chamber’s discretion to regulate the conduct of proceedings at trial depending on the needs and circumstances of each case. Accordingly, the Appeals Chamber considers that the Trial Chamber did not err in relying on this factor in reaching its initial Decision Denying Adjournment.

[1] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Nsengiyumva Motion for Adjour[n]ment Due to Illness of the Accused, 17 November 2006 (“Decision Denying Adjournment”), paras. 9, 11, 12.

[2] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.10, Decision on Nzirorera’s Interlocutory Appeal Concerning his Right to be Present at Trial, 5 October 2007 (“Karemera et al. Appeal Decision of 5 October 2007”), para. 15. 

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Interlocutory Appeal - 30.10.2006 ZIGIRANYIRAZO Protais
(ICTR-01-73-AR73)

14. The parties acknowledge that an accused’s right to be tried in his or her presence is not absolute.[1] The ICTY Appeals Chamber has observed as much,[2] and this Appeals Chamber agrees. An accused person can waive or forfeit the right to be present at trial. For example, Rule 80(B) of the Rules allows a Trial Chamber to remove a persistently disruptive accused. Referring to the equivalent provision in the ICTY Rules, the ICTY Appeals Chamber observed that an accused’s right to be present for his or her trial can be restricted “on the basis of substantial trial disruptions”.[3] In assessing a particular limitation on a statutory guarantee, the Appeals Chamber bears in mind the proportionality principle, pursuant to which any restriction on a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.[4] The explicit exception provided by Rule 80(B) and the ICTY Appeals Chamber’s reference to “substantial trial disruptions” provide a useful measure by which to assess other restrictions on the right to be present at trial. (emphasis added)

[1] Zigiranyirazo Appeal, para. 44; Prosecution Response, para. 11.

[2] Milošević Appeal Decision, para. 13 (“If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right to self -representation any differently.”).

[3] Milošević Appeal Decision, para. 13.

[4] Milošević Appeal Decision, para. 17. The Appeals Chamber further notes that the situation envisioned under Rule 15bis, allowing inter alia proceedings to continue for a limited period in the absence of one of the judges, does not inform the present dispute which concerns the absence of the accused. 

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Right to Be Present - 05.10.2007 KAREMERA et al.
(ICTR-98-44-AR73.10)

11. […] However, the Appeals Chambers of both this Tribunal and of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) have also held that the right to be present at trial is not absolute.[1] In the Zigiranyirazo Decision, this Appeals Chamber held that an accused person can waive or forfeit the right to be present at trial.[2] The Appeals Chamber noted that Rule 80(B) of the Rules allows a Trial Chamber to remove an accused for persistent disruption of the proceedings. It further held that in determining to restrict any statutory right of an accused, the Appeals Chamber must take into account “the proportionality principle, pursuant to which any restriction on a fundamental right must be in service of a sufficiently important objective and must impair the right no more than is necessary to accomplish the objective.”[3]

[1] See Zigiranyirazo Decision, para. 14; Slobodan Milošević v. The Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004 (“Milošević Decision”), para. 13.

[2] See Zigiranyirazo Decision, para. 14.

[3] Id. (footnotes omitted).

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Decision on Interlocutory Appeal - 15.02.2002 KRAJIŠNIK Momčilo
(IT-00-39&40-AR73.3)

CONSIDERING that Article 21(4) of the Statute of the Tribunal does not provide an accused and his counsel with a right to be present at a hearing of an application for provisional release of his co-accused, since an application for provisional release can not be construed as constituting proceedings in the determination of charges against the accused;

CONSIDERING that the Appellant has failed to show that, in law, a co-accused and his counsel are entitled to be present at a hearing of an application for provisional release of the other co-accused;

CONSIDERING that there was no breach of Rules 48 and 82(A) of the Rules, as the said Rules do not provide the Appellant with a right to attend the hearing of the application for provisional release by co-accused […];

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)