Physical presence

Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

296. The Appeals Chamber agrees with the Prosecution that physical presence at the time a crime is committed by the physical perpetrator is not required for liability to be incurred by a participant in a JCE.[1] However, as conceded by the Prosecution,[2] it may be taken as an indicator of a co-perpetrator’s contribution. Here, the Trial Chamber considered that there was “no direct evidence of the presence of Simba” at Cyanika Parish.[3] This appears to have been relevant primarily as a basis for the Trial Chamber’s finding that there was no evidence to support the idea that he shared the intent to participate in the common purpose of killing Tutsi there.[4] After finding generally that a common purpose existed to kill Tutsi at the three sites, it found that the Appellant shared the common purpose of killing Tutsi at Murambi Technical School and Kaduha Parish, but expressed its doubt that he equally shared the common purpose of killing Tutsi at Cyanika Parish.[5] As explained by the Trial Chamber, this doubt arose from the fact that there was “no direct evidence linking the Appellant to Cyanika Parish or indicating that he knew and accepted that it would also form part of the operation”.[6] It is apparent from this language that the Trial Chamber’s consideration of this issue focused on his intent to participate in the common purpose to kill the Tutsi at this site.[7] Therefore the Trial Chamber’s inquiry was broader than mere physical presence. The Appeals Chamber sees no error in this approach.

[1] Prosecution Appeal Brief, para. 40; Kvočka Appeal Judgement, paras 112-113, 276.

[2] Prosecution Appeal Brief, para. 44.

[3] Trial Judgement, para. 399. See also para. 134.

[4] Trial Judgement, para. 407.

[5] Trial Judgement, paras 406-407.

[6]Trial Judgement, para. 407. The Trial Chamber noted that the “only evidence directly connecting him to the massacre comes from Witness KSU”, but noted that this evidence had been excluded (Trial Judgement, para. 134).

[7] Trial Judgement, paras 134-136.

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

6. An accused appearing before the International Tribunal is entitled to certain minimum guarantees pursuant to Article 21(4) of the Statute of the International Tribunal (“Statute”).  Article 21(4)(d) of the Statute grants the accused the right “to be tried in his presence.”  The Appeals Chamber has interpreted this right as meaning that an accused has the right to be physically present.[1]  This right, however, is not absolute.[2]  An accused can waive or forfeit the right to be physically present at trial.[3]  For example, under Rule 80(B) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), the Trial Chamber may order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct, following a warning that such conduct may warrant the removal.  The Appeals Chamber has observed that the right of an accused to be present at trial pursuant to Rule 80(B) of the Rules can be restricted “on the basis of substantial trial disruptions.”[4]  The Appeals Chamber has further found that this Rule is not limited to intentional disruptions.[5]  However, in assessing a particular limitation on a statutory guarantee, such as the right to be physically present at trial, 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.[6]

[1] See 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 (“Nzirorera Decision”), para. 11 (citing Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision”), paras 11-13).

[2]See Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007, para. 96 et seq. See also Zigiranyirazo Decision, para. 14; Milošević Decision of 1 November 2004 [Prosecutor v. Slobodan Milošević, 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], para. 13.

[3] Zigiranyirazo Decision, para. 14 (citing Milošević Decision of 1 November 2004, para. 13). 

[4] Zigiranyirazo Decision, para. 14 (citing Milošević Decision of 1 November 2004, para. 13).

[5] Milošević Decision of 1 November 2004, para. 14 (finding that “it cannot be that the only kind of disruption legitimately cognizable by a Trial Chamber is the intentional variety”).

[6] See Zigiranyirazo Decision, para. 14 (citing Milošević Decision of 1 November 2004, para. 17). See also Nzirorera Decision, para. 11.  

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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)

Introductory note:

The accused challenged the Trial Chamber’s decision to hear a key prosecution witness, Michel Bagaragaza, testify in person in The Netherlands, while only allowing the accused to participate in the proceedings via video-link from Arusha (with the ability of counsel present in the Netherlands to intervene in the proceedings). Basing his challenge on Article 20(4)(d) of the Statute, the accused alleged that proceeding in this manner violated his fundamental right to be tried in his presence.

11. The Appeals Chamber considers that the physical presence of an accused before the court, as a general rule, is one of the most basic and common precepts of a fair criminal trial. The language and practical import of Article 20(4)(d) of the Statute are clear. First, as a matter of ordinary English, the term “presence” implies physical proximity.[1] A review of the French version of the Statute leads to the same conclusion, in particular in the context of the phrase “être présente au procès”,[2] conveying unambiguously that Article 20(4)(d) refers to physical presence at the trial.[3]

12. Both the Tribunal’s legal framework and practice as well as that of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) further reflect that Article 20(4)(d) provides for the physical presence of an accused at trial, as opposed to his facilitated presence via video-link. Initially, the Appeals Chamber observes that such a procedure, over an accused’s objection, is unprecedented before the Tribunal and before the ICTY.[4] It is not surprising, therefore, that there are no express provisions in the Statute and Rules of this Tribunal or of the ICTY for the participation of an accused by video-link in his or her own trial.[5] Indeed, Rule 65bis of the ICTY Rules of Procedure and Evidence illustrates very clearly that participation via video-link is not considered presence.[6] The same distinction between actual presence and constructive presence via video-link, which is evident in Rule 65bis of the ICTY Rules, also appears in the Statute of the International Criminal Court[7] and the Rules of Procedure and Evidence of the Special Court for Sierra Leone.[8] The Appeals Chamber further observes that other international,[9] regional,[10] and national[11] systems also share the view that the right to be present at trial implies physical presence.

13. The Appeals Chamber, therefore, confirms that an accused’s right to be tried in his or her presence implies a right to be physically present at trial. Applying the foregoing to the present case leads the Appeals Chamber to conclude that by proceeding as it did, the Trial Chamber restricted the Appellant’s right to be present at his trial. However, this does not end the necessary inquiry.

Outcome of the decision:

Paras 15, 17-20: Assessing whether the Trial Chamber properly exercised its discretion in restricting the accused’s right to be present at his trial, the Appeals Chamber noted that the Trial Chamber’s decision was predicated on Mr. Bagaragaza’s security concerns, the impact of video-link on the assessment of the witness, and logistical concerns preventing the Appellant from travelling to The Netherlands. Affirming that these objectives were of general importance, the Appeals Chamber was not satisfied that the Trial Chamber properly exercised its discretion in deciding to impose limitations on the Appellant’s right to be present at his trial. First, the Appeals Chamber agreed that by testifying for the Prosecution, Mr. Bagaragaza could be exposed to an increased risk to his security. However, the Appeals Chamber found the security concern alluded to by the Trial Chamber was not in fact related to the location of his testimony, or that injury could only be avoided by having Mr. Bagaragaza testify in The Netherlands. The Appeals Chamber also noted that the Trial Chamber failed to consider whether additional security measures might have allayed security threats posed to Mr. Bagaragaza if he were brought to Arusha to testify. Second, the Appeals Chamber noted that if the Trial Chamber had misgivings about its ability to adequately follow the testimony of a key witness through the use of video-link then such considerations applied with equal force to the ability of the accused and his counsel to follow the evidence and proceedings via video-link as well. Finally, the Appeals Chamber noted that the accused’s inability to attend proceedings in The Netherlands did not result from any action on his own part. Careful consideration of the feasibility of moving the trial to The Netherlands at the earliest opportunity, the Appeals Chamber suggested, might have identified the logistical barriers and feasible alternatives that would have avoided the situation as it currently stands.

Paras 21: Additionally, while the Trial Chamber attempted to give effect to the principle of the equality of arms by having the Prosecution also examine the witness from Arusha, the Appeals Chamber held that this remedial measure did not compensate for the accused’s independent, minimum guarantee to be present at his own trial. The Appeals Chamber noted that although the accused had counsel present in The Netherlands at the proceedings, the accused himself was thousands of kilometres away, connected to the proceedings only by means of audio-visual equipment. Finally, the Appeals Chamber emphasized that both the Trial Chamber and the Prosecution considered Mr. Bagaragaza as a key witness against the accused.

Paras 22-25: Based on the foregoing, the Appeals Chamber held that the Trial Chamber’s restrictions on the Appellant’s fair trial rights were unwarranted and excessive and thus failed the test of proportionality. Consequently, the Appeals Chamber determined that allowing the testimony of Mr. Bagaragaza to remain on the record would seriously damage the integrity of the proceedings, and that Rule 95 of the Rules required the exclusion of the testimony.

[1] See, e.g., The Oxford English Dictionary, Second Edition, Volume XII, p. 393 (for the definition of “presence”: “The fact or condition of being present; the state of being before, in front of, or in the same place with a person or thing; being there; attendance, company, society, association. Usually with of or possessive indicating the person or thing that is present.”), p. 395 (for the definition of “present”: “An adjective of relation; expressing a local or temporal relation to a person or thing which is the point of reference […] Being before, beside, with, or in the same place as the person to whom the word has relation; being in the place considered or mentioned; that is here (or there) […]”); Black’s Law Dictionary, Eighth Edition, (for the relevant definition of “presence”: “The state or fact of being in a particular place and time […]. Close physical proximity coupled with awareness […]”). See also United States v. Navarro, 169 F.3d 228, 234-239 (5th Cir. 1999) (interpreting the plain meaning of “presence” as requiring the physical presence of a defendant in court).

[2] Emphasis added.

[3] Le Nouveau Petit Robert, p. 1768 (for the definition of “présente” : “Qui est dans le lieu, le groupe se trouve la personne qui parle ou de laquelle on parle”); Gerard Cornu, Vocabulaire Juridique, p. 664 (“Qui se trouve ou se trouvait à un moment donné en un lieu déterminé. […] Qui concourt en personne l’accomplissement d’un acte ou au déroulement de la procédure. […]”).

[4] In the case of Milan Simić before the ICTY, the accused participated in his sentencing hearing towards the end of the trial process via video link because of his health condition. The Trial Chamber expressly noted, however, that during this period Mr. Simic filed a total of twenty-five waivers of his right to be present in court. See The Prosecutor v. Milan Simić, Sentencing Judgement, Case No. IT 95-9/2-S, 17 October 2002, para. 8.

[5] The Tribunal’s Rules and jurisprudence only contemplate the use of video-link technology in order to transmit the testimony of a witness to the court, if justified in narrow circumstances for witness protection concerns, or otherwise in the interests of justice. Rule 75 provides in pertinent part (emphasis added): “(A) A Judge or a Chamber may […] order appropriate measures to safeguard the privacy and security of victims and witness, provided that the measures are consistent with the rights of the accused. (B) A Chamber may hold an in camera proceeding to determine whether to order notably: (i) […] (c) giving of testimony through […] closed circuit television […] (iii) Appropriate measures to facilitate the testimony of vulnerable victims and witnesses, such as one-way closed circuit television.” In addition to specific witness protection concerns, the Tribunal’s jurisprudence also allows the hearing of a witness by video-link if it is otherwise in the interests of justice. See, e.g., The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T, Decision on Testimony by Video-Conference, 20 December 2004, para. 4 (“Video-conference testimony should be ordered where it is in the interests of justice, as that standard has been elaborated in ICTR and ICTY jurisprudence.”). The Rules of Procedure and Evidence of the ICTY authorize this explicitly in Rule 71bis (“At the request of either party, a Trial Chamber may, in the interests of justice, order that testimony be received via video-conference link.”).

[6] Rule 65bis(C) of the ICTY Rules provides in pertinent part: “With the written consent of the accused, given after receiving advice from his counsel, a status conference under this Rule may be conducted: (i) in his presence, but with his counsel participating either via tele-conference or video-conference; or (ii) in Chambers in his absence, but with his participation via tele-conference if he so wishes and/or participation of his counsel via tele-conference or video-conference.”

[7] See Statute of the International Criminal Court, Article 63 (“(1) The accused shall be present during the trial. (2) If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.”).

[8] The Appeals Chamber notes that Article 17(4)(d) of the Statute of the Special Court for Sierra Leone is identical to Article 20(4)(d) of the Tribunal’s Statute. Notably, similar to the International Criminal Court, Rule 80(B) of the Rules of Procedure and Evidence for the Special Court in Sierra Leone envisions an accused’s participation in his or her trial by video-link only after he or she has been removed for persistently disruptive conduct. This Rule provides in pertinent part: “In the event of removal, where possible, provision should be made for the accused to follow the proceeding by video-link.”

[9] See supra notes 44, 45 [here: notes 8 and 9] (discussing the International Criminal Court and the Special Court for Sierra Leone). The Appeals Chamber further observes that the language of Article 20(4)(d) of the Statute tracks Article 14 of the International Covenant on Civil and Political Rights. Under this provision, the Human Rights Committee has referred to an accused’s personal attendance at the proceedings as a component of a fair trial. See Views of the Human Rights Committee under Article 5, Paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, Communication No. 289/1988: Panama 8 April 1992, CCPR/C/44/289/1988 (Jurisprudence), para. 6.6 (“The Committee recalls that the concept of a 'fair trial' within the meaning of article 14, paragraph I, must be interpreted as requiring a number of conditions, such as equality of arms and respect for the principle of adversary proceedings. These requirements are not respected where, as in the present case, the accused is denied the opportunity to personally attend the proceedings, or where he is unable to properly instruct his legal representative.”) (Emphasis added).

[10] The European Convention on the Protection of Human Rights and Fundamental Freedoms refers in Article 6(3)(c) to an accused’s right “to defend himself in person […] ”. For the European Court of Human Rights, this implies the personal attendance of a defendant at trial as well as in certain procedures on appeal requiring the court to have personal impression of the defendant. See, e.g., Case of Stoichkov v. Bulgaria, Application no. 9808/02, Judgment, 24 March 2005, para. 56 (“It may thus be considered that the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial after he or she emerges – ranks as one of the essential requirements of Article 6 and is deeply entrenched in that provision.”); Case of Sejdovic v. Italy, Application no. 56581/00, Judgment, 1 March 2006, para. 84; Case of Michael Edward Cooke v. Austria, Application no. 25878/94, Judgement, 8 February 2000, paras. 35, 42, 43. (“The Court recalls that a person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at the first-instance hearing. However, the personal attendance of the defendant does not necessarily take on the same significance for an appeal hearing.”); Case of Colozza v. Italy, Application No. 9024/80, Judgment, 12 February 1985, para. 27 (“Although this is not expressly mentioned in paragraph 1 of Article 6 (art. 6-1), the object and purpose of the Article taken as a whole show that a person 'charged with a criminal offence' is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3 (art. 6-3-c, art. 6-3-d, art. 6-3-e) guarantee to 'everyone charged with a criminal offence' the right 'to defend himself in person', 'to examine or have examined witnesses' and 'to have the free assistance of an interpreter if he cannot understand or speak the language used in court', and it is difficult to see how he could exercise these rights without being present.”). See also Stefan Trechsel, Human Rights in Criminal Proceedings, pp. 252-253 (2006).

[11] Presence is also equated with physical presence in criminal trials in the United States. See, e.g., Federal Rule of Criminal Procedure 43(a). Federal Rules of Criminal Procedure 5 and 10 envision video-conferencing only, with the defendant’s consent, at the initial appearance and arraignment. See also Illinois v. Allen, 397 U.S. 337, 338 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom at every stage of his trial”); United States v. Navarro, 169 F.3d 228, 234-239 (5th Cir. 1999) (holding that an accused’s participation in his sentencing hearing by video-conference violated his right to be present at trial); United States v. Reynolds, 44 M.J. 726, 729 (United States Army Court of Criminal Appeals 1996)(“Consequently, the statutory and [Rules for Court Martial] provisions cited above appear to require that the military judge, accused, and counsel all to be at one location for the purpose of a court-martial. This interpretation not only comports with custom and tradition, but also is the one that best guarantees justice. For these reasons, we are satisfied that the telephonic procedures utilized in this case, when based on the meager justification of saving time and travel funds between two installations approximately 150 miles apart, did not comport with any reasonable concept of 'presence' anticipated by the [Uniform Code of Military Justice] and [Rules for Court Martial].”)(internal citations omitted); Riggins v. Nevada, 504 U.S. 127, 142 (1992)(Kennedy, J., concurring)(“It is a fundamental assumption of the adversary system that the trier of fact observes the accused throughout the trial, while the accused is either on the stand or sitting at the defense table. This assumption derives from the right to be present at trial, which in turn derives from the right to testify and rights under the Confrontation Clause. […] At all stages of the proceedings, the defendant's behavior, manner, facial expressions, and emotional responses, or their absence, combine to make an overall impression on the trier of fact, an impression that can have a powerful influence on the outcome of the trial. If the defendant takes the stand, as Riggins did, his demeanor can have a great bearing on his credibility and persuasiveness, and on the degree to which he evokes sympathy. The defendant's demeanor may also be relevant to his confrontation rights […]”) (internal citations omitted).

          In addition, in England and Wales, the right of an accused to be present in court at his or her trial is a matter of common law. See R. v. Lee Kun (1916) 1 Kings Bench Reports 337, at 341 (“There must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity [...] of answering it. The presence of the accused means not only that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings.").

           In Canada, an accused also has the right to be present in court during the trial. The Canadian Criminal Code envisions the possibility of an accused participating in his or her trial by video-link, but not for the hearing of evidence, unless he or she consents. See Canadian Criminal Code, Title XX, Section 650.

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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. Article 20(a)(d) of the Statute provides that an accused has a right “to be tried in his or her presence”. The Appeals Chamber has interpreted the scope of this right as meaning that an accused has a right to be physically present at his trial.[1]  […]

[1] See Zigiranyirazo Decision [Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on Interlocutory Appeal, 30 October 2006], paras. 11-13.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
Notion(s) Filing Case
Appeal Judgement - 28.02.2005 KVOČKA et al.
(IT-98-30/1-A)

112. The Appeals Chamber affirms that a co-perpetrator in a joint criminal enterprise need not physically commit any part of the actus reus of the crime involved.[1] Nor is the participant in a joint criminal enterprise required to be physically present when and where the crime is being committed.[2]

113. While it is legally possible for an accused to be held liable for crimes committed outside of his or her presence, the application of this possibility in a given case depends on the evidence. […].

[1] See e.g. Tadić Appeal Judgement, para. 192.

[2] Krnojelac Appeal Judgement, para. 81.

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Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ
(IT-98-32/1-A)

425. The Appeals Chamber notes that the physical presence of an aider and abettor at or near the scene of the crime may be a relevant factor in cases of aiding and abetting by tacit approval.[1] Further, the actus reus of aiding and abetting may be fulfilled remotely.[2] It is also well established that the actus reus of aiding and abetting may be fulfilled before, during, or after the principal crime has been perpetrated.[3] Thus, Sredoje Lukić’s submission that the Trial Chamber erroneously construed the actus reus of aiding and abetting is dismissed.

[1] Brđanin Appeal Judgement, paras 273, 277. See also Kayishema and Ruzindana Appeal Judgement, paras 201-202.

[2] Simić Appeal Judgement, para. 85; Blaškić Appeal Judgement, para. 48.

[3] Blagojević and Jokić Appeal Judgement, para. 132. See also Blaškić Appeal Judgement, para. 48; Simić Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 372.

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Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

153.   The Appeals Chamber also finds no merit in Ngirumpatse’s contention that the Trial Chamber failed to establish any connection between him and the various criminal acts or other participants in the joint criminal enterprise. In this respect, the Appeals Chamber notes that the Trial Chamber was not required to find that Ngirumpatse contributed to each criminal act, but rather that he made a significant contribution to the common purpose and that each of the crimes for which he was held responsible formed part of that purpose.[1] It is immaterial whether Ngirumpatse was out of the country while some of the criminal acts were perpetrated. A participant in a joint criminal enterprise is not required to be physically present when and where the crime is being committed.[2] […]

[1] Gotovina and Markač Appeal Judgement, para. 89; Brđanin Appeal Judgement, para. 418. The Appeals Chamber has previously held that responsibility for a joint criminal enterprise can in fact involve a “nation wide government-organized system of cruelty and injustice”. See The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44-AR72.4, Decision on Interlocutory Appeal Regarding Application of Joint Criminal Enterprise to the Crime of Genocide, 22 October 2004, para. 25. See also Brđanin Appeal Judgement, para. 423.

[2] See Kvočka et al. Appeal Judgement, para. 112.

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Notion(s) Filing Case
Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

259.   […] presence is not required for superior responsibility pursuant to Article 6(3) of the Statute, […]

See also para. 585.

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Notion(s) Filing Case
Decision on Continuation of Proceedings - 04.03.2016 HADŽIĆ Goran
(IT-04-75-AR73.1)

24.     […] The Appeals Chamber notes that, having concluded that Hadžić could not be physically present at trial,[1] the Trial Chamber did not then proceed to assess whether a restriction of Hadžić’s right to be present at trial was in service of a sufficiently important objective and whether that restriction would impair Hadžić’s right to be present no more than necessary to accomplish the identified objective.[2] The Appeals Chamber cannot agree with the Trial Chamber’s approach. Recalling the law as set out above,[3] the Appeals Chamber, Judge Afanđe dissenting, considers that, only once the Trial Chamber had determined whether a proportionate means of continuing the trial existed, i.e. in such a way as to impair Hadžić’s rights no more than necessary to accomplish the objective of a fair and expeditious completion of the proceedings, should the Trial Chamber have considered whether the circumstances of this case “[militate] against the continuation of proceedings and in favour of terminating or staying the case”.[4] As such, the Appeals Chamber, Judge Afanđe dissenting, finds that by failing to apply the proportionality principle, the Trial Chamber erred in law.

25.     […] it follows from the above that it was imperative for the Trial Chamber to explicitly address and give due consideration to all modalities proposed to it which may have assisted in limiting the impairment of Hadžić’s right to be present at trial no more than necessary to accomplish the objective of a fair and expeditious completion of the proceedings. […]

[1] Impugned Decision [Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Consolidated Decision on the Continuation of Proceedings, 26 October 2015], paras 62-63. The Appeals Chamber notes that the Prosecution does not challenge this aspect of the Impugned Decision.

[2] The Appeals Chamber observes that despite recalling the correct law in this respect, the Trial Chamber failed to apply the proportionality principle when considering whether the trial could be resumed even in Hadžić’s absence. See Impugned Decision, para. 61, fn. 284.

[3] See supra, para. 8.

[4] Impugned Decision, para. 56.

[5] See supra, paras 8, 24.

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