Remedy

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

1073. The Appeals Chamber observes at the outset that, in pleading the excessive length of the proceedings, the Appellant is in fact raising a substantive issue going to the regularity of the trial. However, inasmuch as the Appellant raises this issue in his appeal against sentence with a view to having it reduced, and a reduction of sentence is one of the remedies available to redress the alleged violation, the Appeals Chamber will examine these arguments in this section. Nevertheless, the Appeals Chamber notes that the length of the proceedings is not one of the factors that a Trial Chamber must consider, even as a mitigating circumstance, in the determination of the sentence.

1074. The right to be tried without undue delay is provided in Article 20(4)(c) of the Statute. This right only protects the accused against undue delays.[3] Whether there was undue delay is a question to be decided on a case by case basis.[4] The following factors are relevant:

- the length of the delay;

- the complexity of the proceedings (the number of counts, the number of accused, the number of witnesses, the quantity of evidence, the complexity of the facts and of the law);

- the conduct of the parties;

- the conduct of the authorities involved; and

- the prejudice to the accused, if any.[5]

1086. […] The precise remedy to be granted was thus left to the discretion of the Trial Chamber, since the Appeals Chamber could not anticipate at that time whether the Appellant would be found guilty or, a fortiori, what sentence he would receive. Hence the Appeals Chamber could not give the Trial Chamber more detailed instructions. Nor can the Appeals Chamber discern in what way the disposition of the Decision of 31 May 2000 in the Semanza case, as cited by the Appellant, was more precise than that of the Decision of 31 March 2000: the only difference is the express reference to Article 23 of the Statute in the Semanza decision.[6] Finally, the fact that the violation of the defendant’s rights was not treated as a mitigating circumstance did not constitute an error. What was important was that the sentence should be reduced in order to take account of the rights violation, and this was done.[7] The Appeals Chamber agrees with the Trial Chamber that the violation of the Appellant’s rights was not a mitigating circumstance in the true sense of the term.

1095. […] The Appeals Chamber agrees with the Trial Chamber that the remedy ordered in the Judgement did constitute a significant reduction of the sentence, which adequately compensated the Appellant for the violation of his fundamental rights. […]

Having set aside the convictions of Appellant Nahimana under Article 6(1) of the Statute for conspiracy to commit genocide, genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity), and having upheld his convictions under Article 6(3) of the Statute for direct and public incitement to commit genocide and persecution (crime against humanity), the Appeals Chamber reduced Nahimana’s sentence from life to 30 years of imprisonment.

Having set aside the convictions of Appellant Barayagwiza for conspiracy to commit genocide, convictions relating to RTLM broadcasts and those for direct and public incitement to commit genocide (under Article 6(1) of the Statute), and having upheld his convictions under Article 6(1) of the Statute for genocide (instigation), extermination (crime against humanity) and persecution (crime against humanity), the Appeals Chamber reduced Barayagwiza’s sentence from 35 to 32 years of imprisonment, noting that the sentence imposed by the Trial Chamber already reflected the reduction granted for various violations of his rights.

Having set aside the convictions of Appellant Ngeze for conspiracy to commit genocide, as well those with respect to Kangura publications under Article 6(1) for genocide and persecution (crimes against humanity), and those with respect to crimes in Gisenyi for genocide, direct and public incitement to commit genocide, extermination (crime against humanity) and persecution (crime against humanity); and having upheld his convictions for direct and public incitement to commit genocide (Kangura), genocide (aiding and abetting) and extermination (aiding and abetting), the Appeals Chamber reduced Ngeze’s sentence from life to 35 years of imprisonment.

[1] As the Appeals Chamber notes infra, other remedies are possible, such as the termination of proceedings against the accused or the award of compensation (see infra, footnote 2451).

[2] See supra XVII.A.

[3] The Prosecutor v. Sefer Halilović, Case No. IT-01-48-A, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, 27 October 2006 (“Halilović Decision”), para. 17.

[4] Halilović Decision, para. 17; 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. 14; The Prosecutor v. Milan Kovačević, Case No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, 2 July 1998, para. 28. See also The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-PT, Decision on Defence Motion for Stay of Proceedings, 3 June 2005, paras. 19 et seq.

[5] The Prosecutor v. Prosper Mugiraneza, Case No. ICTR-99-50-AR73, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, 27 February 2004.

[6] See Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000, point 6 of the Disposition:

DECIDES that for the violation of his rights, the Appellant is entitled to a remedy which shall be given when judgement is rendered by the Trial Chamber, as follows:

(a)        If he is found not guilty, the Appellant shall be entitled to financial compensation;

(b)        If he is found guilty, the Appellant’s sentence shall be reduced to take into account the violation of his rights, pursuant to Article 23 of the Statute.

[7] Judgement, para. 1107.

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Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

255. […] the Appeals Chamber reiterates that any violation of the accused’s rights entails the provision of an effective remedy pursuant to Article 2(3)(a) of the ICCPR. The Appeals Chamber considers that under the jurisprudence of this Tribunal, where the Appeals Chamber has found on interlocutory appeal that an accused’s rights have been violated, but not egregiously so, it will order the Trial Chamber to reduce the accused’s sentence if the accused is found guilty at trial.[1] With this in mind, the Appeals Chamber will take into consideration its findings here on violations of the Appellant’s rights when it turns to the task of determining the Appellant’s sentence in this Judgement in order to provide for an appropriate remedy.

320. The Appeals Chamber recalls that it concluded that the Appellant’s fundamental rights were violated during his arrest and detention prior to his initial appearance and consequently, that he is entitled to a remedy.[2] The Appeals Chamber therefore finds it appropriate to reduce the Appellant’s sentences as imposed by the Trial Chamber for his convictions at trial, which have been affirmed in this appeal.[3]

322. The Appeals Chamber notes that the Trial Chamber granted credit[4] to the Appellant pursuant to Rule 101(D) for time served pending surrender and trial as foreseen mandatorily under all circumstances and in each case. Therefore this credit was not a remedy for the suspect or accused’s rights having been violated during the period of his prolonged detention pending transfer and trial. Where a suspect or an accused’s rights have been violated during the period of his unlawful detention pending transfer and trial, Article 2(3)(a) of the ICCPR stipulates that “[a]ny person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”

[1] See Semanza, Decision, 31 May 2000, para. 129; Barayagwiza, Decision (Prosecutor’s Request for Review or Reconsideration) [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000], para. 75.

[2] See supra paras. 251-255.

[3] See Semanza, Decision, 31 May 2000, para. 129; Barayagwiza, Decision (Prosecutor’s Request for Review or Reconsideration), para. 75.

[4] Trial Judgement, paras. 966, 967, 970.

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Notion(s) Filing Case
Appeal Judgement - 27.02.2014 NDINDILYIMANA et al. (Military II)
(ICTR-00-56-A)

22. The Appeals Chamber recalls that, at trial, determining the appropriate remedy in light of a violation of Rule 68 of the Rules falls within the broad discretion of the trial chamber.[1] A trial chamber’s exercise of discretion will be reversed only if the challenged decision was based on an incorrect interpretation of governing law, was based on a patently incorrect conclusion of fact, or was so unfair or unreasonable as to constitute an abuse of the trial chamber’s discretion.

23. In the view of the Appeals Chamber, Ndindiliyimana does not demonstrate that the Trial Chamber abused its discretion in fashioning the remedies for the Prosecution’s disclosure violations. Recalling witnesses[3] and admitting new evidence[4] are appropriate remedies where disclosure violations have resulted in prejudice to an accused.[5] Where an accused’s fair trial rights have been violated, a reduction of the sentence may be an appropriate remedy if the accused was convicted at trial.[6] However, the relief requested by Ndindiliyimana at trial and on appeal – dismissal of the charges against him – is not necessarily appropriate even where prejudice to the accused has been demonstrated.[7]

[1] See The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR73.6, Decision on Joseph Nzirorera’s Interlocutory Appeal, 28 April 2006 (“Karemera et al. Appeal Decision of 28 April 2006”), para. 7 (“If a Rule 68 disclosure is extensive, parties are entitled to request an adjournment in order to properly prepare themselves. The authority best placed to determine what time is sufficient for an accused to prepare his defence is the Trial Chamber conducting the case”.)(internal citations omitted).

[2] Kalimanzira Appeal Judgement, para. 14; The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66(B) of the Tribunal’s Rules of Procedure and Evidence, 26 September 2006 (“Bagosora et al. Appeal Decision of 26 September 2006”), para. 6.

[3] Karemera et al. Appeal Decision of 28 April 2006, para. 8.

[4] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Decision on the Appellant’s Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000, para. 31. Cf. Ephrem Setako v. The Prosecutor, Case No. ICTR-04-81-A, Decision on Ephrem Setako’s Motion to Amend his Notice of Appeal and Motion to Admit Evidence, filed confidentially on 23 March 2011, public redacted version filed on 9 November 2011 (“Setako Appeal Decision of 23 March 2011”), para. 16.

[5] Where a violation of Rule 68 of the Rules has occurred, a chamber must examine whether the Defence has been prejudiced by the violation before considering whether a remedy is appropriate. Setako Appeal Decision of 23 March 2011, para. 14; Kalimanzira Appeal Judgement, para. 18.

[6] Kajelijeli Appeal Judgement, para. 255. Cf. Setako Appeal Judgement, para. 297.

[7] See Justin Mugenzi and Prosper Mugiraneza v. The Prosecutor, Case No. ICTR-99-50-A, Decision on Motions for Relief for Rule 68 Violations, 24 September 2012 (“Mugenzi and Mugiraneza Decision of 24 September 2012”), paras. 17, 22, 27, 28, 33, 38. 

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Notion(s) Filing Case
Appeal Judgement - 20.10.2010 RUKUNDO Emmanuel
(ICTR-2001-70-A)

119. […] When the Defence is of the view that the Prosecution introduces evidence of material facts of which it had no notice, it can make an objection to the admission of such evidence for lack of notice.[1] If the Trial Chamber agrees with the Defence that insufficient notice was given, the Trial Chamber may exclude the challenged evidence in relation to the unpleaded material facts, require the Prosecution to amend the indictment, grant an adjournment to allow the Defence adequate time to respond to the additional allegations, or take other measures to preserve the rights of the accused to a fair trial.[2] With respect to this last measure, the Appeals Chamber recalls that a Trial Chamber can also find the particular evidence inadmissible to prove a material fact of which the accused was not on notice, but admissible with respect to other allegations sufficiently pleaded.[3]

[1] The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-AR73, Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence, 18 September 2006 (“Bagosora et al. Appeal Decision”), para. 18. See also Furund‘ija Appeal Judgement, para. 61.

[2] Bagosora et al. Appeal Decision, para. 18.

[3] Arsène Shalom Ntahobali & Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-97-21-AR73, Decision of the Appeals by Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and QBZ Inadmissible”, 2 July 2004, para. 15 (“[A]]lthough on the basis of the present indictment it is not possible to convict Nyiramasuhuko in respect of her presence at the installation of Ndayambaje, evidence of this meeting can be admitted to the extent that it may be relevant to the proof of any allegation pleaded in the Indictment.”). See also Kanyarukiga Appeal Decision, para. 11; Bagosora et al. Appeal Decision, n. 40.

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Notion(s) Filing Case
Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

286. The Appeals Chamber recalls that any violation of a person’s rights entails the provision of an effective remedy pursuant to Article 2(3)(a) of the International Covenant on Civil and Political Rights of 1966. It is satisfied that a term of years, being by its nature a reduced sentence from that of life imprisonment, is the appropriate remedy for the violation of Gatete’s rights. In determining an appropriate remedy, the Appeals Chamber recalls its finding that Gatete has failed to demonstrate that he was prejudiced in either the preparation or the presentation of his case.

287. Having considered the gravity of the crimes for which Gatete’s convictions have been upheld and taking into account the violation of his rights, the Appeals Chamber sets aside Gatete’s sentence of life imprisonment and concludes that his sentence should be reduced to a term of 40 years’ imprisonment.

[1] International Covenant on Civil and Political Rights, 16 December 1966, entered into force on 23 March 1976.

[2] Cf. Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (an English translation was filed on 7 April 2000), p. 28; Nahimana et al. Trial Judgement, paras. 1106, 1107.

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c) Other instruments International Covenant on Civil and Political Rights; Article 2(3)(a)
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

42.    As regards Nyiramasuhuko’s request for an appropriate remedy for the violations found at trial, the Appeals Chamber observes that the only violations determined to have occurred were the violations of her rights to be informed of the charges against her and of initial appearance without delay recognised in the 12 October 2000 Decision [The Prosecutor v. Pauline Nyiramasuhuko and Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on the Defence Motion for Exclusion of Evidence and Restitution of Property Seized, 12 October 2000 (originally filed in French, English translation filed on the same day)].[1] The Appeals Chamber recalls that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[2] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[3] In practice, “the effective remedy accorded by a Chamber for violations of an accused’s fair trial rights will almost always take the form of equitable or declaratory relief.”[4] The Appeals Chamber considers that, in situations where the violation has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[5] Nyiramasuhuko has not developed any argument to demonstrate that the recognition of the violations of her rights to be informed of the charges against her and of initial appearance without delay by Judge Kama in the 12 October 2000 Decision was not an effective remedy. Nyiramasuhuko’s claim is therefore dismissed.

See also para. 50.

[1] See Nyiramasuhuko Appeal Brief, para. 71 (p. 21). The Appeals Chamber notes that Nyiramasuhuko has failed to identify in her submissions any other violation recognised by the Trial Chamber that may require remedy and will therefore limit its consideration to the violations of her rights to be informed of the charges against her and of initial appearance without delay, which are expressly discussed in her submissions under this ground of appeal.

[2] André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007 (“Rwamakuba Appeal Decision”), para. 24. See also Kajelijeli Appeal Judgement, para. 255.

[3] Rwamakuba Appeal Decision, para. 27.

[4] Rwamakuba Appeal Decision, para. 27 and references cited therein.

[5] Cf. Rwamakuba Appeal Decision, para. 27; The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, Decision on Appropriate Remedy, 31 January 2007 (“Rwamakuba Decision”), para. 69; Bagosora et al. Trial Judgement, para. 97.

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Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

391. The Appeals Chamber reiterates that “any violation, even if it entails a relative degree of prejudice, requires a proportionate remedy”.[1] The nature and form of the effective remedy should be proportional to the gravity of harm that is suffered.[2]

[…]

394. However, the Appeals Chamber does not find that the violation of the co‑Appellants’ right to be tried without undue delay and the prejudice they suffered were so serious or egregious as to justify a stay or the termination of the proceedings requested by Nyiramasuhuko, Ntahobali, Kanyabashi, Nteziryayo, and Ndayambaje.[3] Nevertheless, in light of the length of the undue delay, the Appeals Chamber is also not convinced that a formal recognition of the violation would constitute an effective remedy in the present case.

395. The Appeals Chamber observes that a reduction of sentence has been considered an effective remedy in cases where the breach of the fair trial rights resulted in the accused being detained impermissibly or for a longer period than necessary.[4] Financial compensation has also been envisioned in limited situations where the accused was ultimately not found guilty.[5] In the Rwamakuba case, where the accused was acquitted of all charges, a financial compensation was awarded to André Rwamakuba as part of an effective remedy for the violations of his rights to legal assistance and to initial appearance without delay.[6]

[1] Rwamakuba Appeal Decision [André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007], para. 24. See also Gatete Appeal Judgement, para. 286; Kajelijeli Appeal Judgement, para. 255. See also International Covenant on Civil and Political Rights, General Assembly Resolution 2200 A (XXI), UN Doc. A/RES/21/2200, 16 December 1966, entered into force on 23 March 1976 (“ICCPR”), Article 2(3)(a).

[2] Rwamakuba Appeal Decision, para. 27.

[3] Cf. Kajelijeli Appeal Judgement, para. 206 (internal references omitted):

[…] However, even if it were to reconsider the issue of its personal jurisdiction, the Appeals Chamber does not find that these newly and more detailed submitted breaches rise to the requisite level of egregiousness amounting to the Tribunal’s loss of personal jurisdiction. The Appeals Chamber is mindful that it must maintain the correct balance between “the fundamental rights of the accused and the essential interests of the international community in the prosecution of persons charged with serious violations of international humanitarian law.” While a Chamber may use its discretion under the circumstances of a case to decline to exercise jurisdiction, it should only do so “where to exercise that jurisdiction in light of serious and egregious violations of the accused’s rights would prove detrimental to the court’s integrity.” For example, “in circumstances where an accused is very seriously mistreated, maybe even subject to inhuman, cruel or degrading treatment, or torture, before being handed over to the Tribunal, this may constitute a legal impediment.” However, those cases are exceptional and, in most circumstances, the “remedy of setting aside jurisdiction, will . . . be disproportionate.” The Appeals Chamber gives due weight to the violations alleged by the Appellant; however, it does not consider that this case falls within the exceptional category of cases highlighted above.

[4] See Gatete Appeal Judgement, paras. 45, 286, 287; Kajelijeli Appeal Judgement, paras. 323, 324; Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (“Barayagwiza Review Decision”), para. 75; Semanza Appeal Decision [Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, dated 31 May 2000, filed 1 June 2000 (originally filed in French, English translation filed on 4 July 2001)], p. 34.

[5] See Barayagwiza Review Decision, para. 75; Semanza Appeal Decision, p. 34. See also Rwamakuba Appeal Decision, paras. 24-30.

[6] Rwamakuba Appeal Decision, paras. 31, 32.

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