Right to a fair trial

Notion(s) Filing Case
Decision on Disclosure - 17.04.2007 ŠEŠELJ Vojislav
(IT-03-67-AR73.5)

19. […] The Trial Chamber considered the “particular circumstances” of Mr. Šešelj’s representation including the fact that he is “not officially assisted by persons fluent in one of the official languages of the Tribunal”,[1] and whether disclosure of Rule 66 (A) and (B) and Rule 68 (i) and (ii) materials in English and in electronic format would affect Mr. Šešelj’s rights under Article 21 of the Statute. It held that electronic disclosure of Rule 66 (A) and (B) and Rule 68(i) materials did not breach the fair hearing principle stipulated under Article 21 of the Statute so long as reasonable and necessary assistance in the circumstances is given to an accused and noted that Mr. Šešelj would be “entitled to receive from the Registry the basic equipment and training necessary to make effective use of material disclosed in electronic format”.[2] It also ruled that in addition to Rule 66(A) material, which expressly provides for disclosure in a language the accused understands, Rule 68(i) material should also be subject to the same language requirement, because of the crucial impact of such material on the accused’s guilt or innocence.[3] Mr. Šešelj does not provide any references to the jurisprudence that the Trial Chamber allegedly disregarded in reaching the Impugned Decision. Neither does Mr. Šešelj demonstrate in what way the Impugned Decision violated his rights under Article 21 of the Statute.

[1] Impugned Decision, para. 7.

[2] Ibid., paras 12-13.

[3] Ibid., para. 15.

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Notion(s) Filing Case
Decision on Evidence of Milan Babić - 14.09.2006 MARTIĆ Milan
(IT-95-11-AR73.2)

14. […] [W]hen tasked with the decision of whether to exclude evidence, the Trial Chamber is bound more particularly by Rule 89(D) to determine whether the probative value of the evidence is substantially outweighed by the need to ensure a fair trial.

In this case, the question was whether the incompleteness of the cross-examination and the disadvantage to the Appellant emanating from this, substantially outweighed the probative value of the evidence such that it should be removed from the trial record (para. 15).

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 27.11.2007 SIMBA Aloys
(ICTR-01-76-A)

41. The Appeals Chamber can conceive of situations where a fair trial is not possible because witnesses crucial to the Defence case refuse to testify due to State interference. In such cases, it is incumbent on the Defence to, first, demonstrate that such interference has in fact taken place and, second, exhaust all available measures to secure the taking of the witness’s testimony.

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Notion(s) Filing Case
Decision on Fresh Evidence - 26.02.2009 PRLIĆ et al.
(IT-04-74-AR73.14)

25. […] In this sense, the Appeals Chamber recalls that “where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence”.[1] In doing so, the Trial Chamber will have to consider “the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations”.[2] In striking the balance under Rule 89(D) of the Rules, the Trial Chamber will also consider the available measures to address the prejudice, if any, by “for example, providing more time for [re]-examination, adjourning the session, or granting the possibility of recalling the witness”.[3] If, on balance, the fresh evidence is found to be inadmissible during the presentation of the Defence case, the Prosecution may still, under certain conditions, seek its admission as evidence in rebuttal.[4]

27. In its Delić Decision, the Appeals Chamber emphasized that specifying the purpose of admission of fresh evidence despite the Defence’s objections is necessary in order to properly address the prejudice caused by such admission.[5] In this sense, the Appeals Chamber considers that the risk of prejudice caused by the admission of fresh evidence probative of guilt is potentially greater as compared to fresh evidence admitted with the sole purpose of impeaching the witness.[6]

30. […] In any case, considerations pertaining to the scope of cross-examination or any prejudice caused by the non-disclosure of the tendered material at an earlier stage may become relevant to the Trial Chamber’s decision on admission made on a case-by-case basis.[7] The Appeals Chamber re-emphasizes that what matters is that the admission of the fresh evidence tendered by the Prosecution after the closure of its case-in-chief is justified by the interests of justice and does not entail violation of the fair trial rights, which is in full compliance of Rules 85, 89(C), 89(D) and 90(F) of the Rules.

[1] Delić Decision, para. 22 (emphasis added).

[2] Ibid., para. 23.

[3] Id.

[4] Cf. Milošević Decision, para. 13.

[5] Delić Decision, para. 23.

[6] Cf. ibid., para. 22.

[7] See supra, paras 23-24; Impugned Decision, paras 24-26.

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ICTY Rule Rule 89(D)
Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

36. A Trial Chamber possesses broad powers with which to assure the fairness of a trial. Under Rule 54 of the Rules, a Trial Chamber has the power to issue such orders, subpoenas, warrants, and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial, which includes the power to: adopt witness protection measures; take evidence by video-conference link or by way of deposition; and summon witnesses and order their attendance. In addition, if such measures fail, upon the request of a party or proprio motu, a Trial Chamber can order that proceedings be adjourned or stayed.[1]

[1] Tadić Appeal Judgement, para. 52.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1)
Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

39. The Appeals Chamber recalls that Trial Chambers enjoy considerable discretion in managing the trials before them. However, the manner in which such discretion is exercised by a Trial Chamber should be determined in accordance with the case before it. Indeed, what is reasonable in one trial is not automatically reasonable in another. Thus, the question of whether a Trial Chamber abused its discretion should not be considered in isolation, but rather should be assessed taking into account all the relevant circumstances of the case at hand.

40. Taken individually and outside the context of the trial, each of the Trial Chamber’s decisions concerning Kabashi and the other witness could be considered as falling within its scope of discretion. When these decisions are evaluated together, however, particularly in the context of the serious witness intimidation that formed the context of the Trial, it is clear that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of Kabashi and the other witness. […]

48. […] [T]he context of this trial was far from normal and required the Trial Chamber to proactively focus on ensuring the fairness of the proceedings in accordance with the Statute.[1] This required flexibility from the Trial Chamber with regard to subsidiary issues of witness scheduling, trial logistics, and deadlines. The Trial Chamber’s failure to show the required flexibility effectively helped to ensure that witness intimidation succeeded in denying the Prosecution an opportunity to present potentially crucial evidence in support of its case.[2]

[1] The Appeals Chamber underscores that the Trial Chamber should have pursued every reasonable opportunity, whether upon the request of a party or propio motu, to obtain the evidence of Kabashi and the other witness in the context of this case. This approach should have included granting further extensions of time to assist the Prosecution in obtaining the testimony of key witnesses.

[2] See Article 20(1) of the Statute. The Appeals Chamber notes that the Trial Chamber was on notice from the first day of the trial that witness intimidation posed a significant threat to the integrity of the judicial process. See T. 359-361 (5 March 2007) (Open Session). It notes that the Trial Chamber’s approach to issues such as witness confidentiality did not demonstrate sufficient respect for this threat, and resulted in the disclosure of confidential witnesses’ information. Cf. Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Order on Disclosure of Memorandum and on Interviews with a Prosecution Source and Witness, 13 December 2006 (“Decision of 13 December 2006”), p. 1; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-PT, Prosecution Motion for Protective Measures Concerning the Identity of a Person Who Can Provide Rule 68 Information Concerning Third Parties, 25 October 2006, filed confidentially, but rendered public by order of the Trial Chamber (see Decision of 13 December 2006, p. 9). The Trial Chamber also disclosed protected information about the health of a witness. See Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, Decision on Motion for Videolink [the other witness], 14 September 2007, para. 3.

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Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

17. The Appeals Chamber recalls that, when a party alleges on appeal that its right to a fair trial has been infringed, the party must prove that the Trial Chamber violated a provision of the Statute and/or the Rules of Procedure and Evidence of the Tribunal (“Rules”) and that this violation caused prejudice that amounts to an error of law invalidating the Trial Judgement.[1] The Appeals Chamber notes that Trial Chamber decisions related to trial management, such as those determining the time available to a party to present its case as well as requests for additional time to present evidence, are discretionary decisions to which the Appeals Chamber accords deference.[2] Accordingly, the Appeals Chamber must determine whether the Trial Chamber abused its discretion by closing the Prosecution case before Kabashi and the other witness had testified, in violation of its obligation under Article 20(1) of the Statute to ensure that a trial is fair and conducted with due regard for the protection of victims and witnesses. If the Trial Chamber did abuse its discretion, the Appeals Chamber must determine whether this violation caused prejudice that amounted to an error of law invalidating the Trial Judgement.

[1] Galić Appeal Judgement, para. 21; Kordić and Čerkez Appeal Judgement, para. 119; Blaškić Appeal Judgement, para. 221; Kupreškić et al. Appeal Judgement, para. 87; Article 25(1)(a) of the Statute.

[2] Prosecutor v. Stanislav Galić, Case No. IT-98-29-AR73, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, para. 7 (referring specifically to the Trial Chamber’s discretion to set time limits on the presentation of the Prosecution’s case); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 20.

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Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

196. When the Defence asserts that the trial was unfair because witnesses crucial to the Defence refused to testify due to interference, it is incumbent on the Defence to, first, demonstrate that such interference has in fact taken place and, second, exhaust all available measures to secure the taking of the witnesses’ testimony.[1] When a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement.[2] Thus, the element of prejudice is an essential aspect of the proof required of an appellant alleging a violation of his or her fair trial rights.[3]

210. Recalling that when a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice as to amount to an error of law invalidating the judgement,[4] the Appeals Chamber will consider whether the Trial Chamber’s failure to ensure the timely completion of the Renzaho Investigation prior to the delivery of the Trial Judgement caused Renzaho prejudice of this gravity. […].

[1] Simba Appeal Judgement, para. 41. See also Tadić Appeal Judgement, para. 55.

[2] Hadžihasanović and Kubura Appeal Judgement, para. 130; Galić Appeal Judgement, para. 21; Kordić and Čerkez Appeal Judgement, para. 119.

[3] Hadžihasanović and Kabura Appeal Judgement, para. 130.

[4] See supra, Chapter V (Alleged Violations of the Right to a Fair Trial), Section C (Violation of the Right to Equality of Arms), para. 196.

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Notion(s) Filing Case
Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

207. The Appeals Chamber is deeply concerned about the allegations that the Defence Investigator intimidated prospective Defence witnesses. It considers that witness intimidation undermines the fundamental objectives of the Tribunal, provided in Article 20(2) of the Statute, including the objective to ensure that trials are fair.[1]

208. Considering the gravity of the allegations under investigation, the Appeals Chamber is of the view that the Trial Chamber was obliged to ensure that the Renzaho Investigation was carried out diligently and, in particular, that it was completed. It is unacceptable that the matter appears to have been simply abandoned at some juncture, without explanation.

209. Although the Appeals Chamber notes with concern the Defence’s failure to bring a motion at any point seeking the assistance of the Trial Chamber to secure the attendance of witnesses or the completion of the Renzaho Investigation, it recalls that “Trial Chambers must counter witness intimidation by taking all measures that are reasonably open to them, both at the request of the parties and proprio motu.”[2] In this particular instance, the Trial Chamber was obliged, at the very least, to ensure that a final report was received from Jean Haguma before delivering the Trial Judgement. By failing to do so, the Trial Chamber erred and brought into question Renzaho’s right to a fair trial under Article 20(2) of the Statute.

[1] See Haradinaj et al. Appeal Judgement, para. 35; Jean de Dieu Kamuhanda v. The Prosecutor, Case No. ICTR-99-54A-A, Oral Decision (Rule 115 and Contempt of False Testimony), 19 May 2005, p. 2.

[2] Haradinaj et al. Appeal Judgement, para. 35.

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Notion(s) Filing Case
Interlocutory Decision on Jurisdiction - 02.10.1995 TADIĆ Duško
(IT-94-1-AR72)

45. […] The important consideration in determining whether a tribunal has been "established by law" is not whether it was pre-established or established for a specific purpose or situation; what is important is that it be set up by a competent organ in keeping with the relevant legal procedures, and that it observes the requirements of procedural fairness. […]

46. An examination of the Statute of the International Tribunal, and of the Rules of Procedure and Evidence adopted pursuant to that Statute leads to the conclusion that it has been established in accordance with the rule of law. The fair trial guarantees in Article 14 of the International Covenant on Civil and Political Rights have been adopted almost verbatim in Article 21 of the Statute. Other fair trial guarantees appear in the Statute and the Rules of Procedure and Evidence. For example, Article 13, paragraph 1, of the Statute ensures the high moral character, impartiality, integrity and competence of the Judges of the International Tribunal, while various other provisions in the Rules ensure equality of arms and fair trial.

47. In conclusion, the Appeals Chamber finds that the International Tribunal has been established in accordance with the appropriate procedures under the United Nations Charter and provides all the necessary safeguards of a fair trial. It is thus "established by law."

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Notion(s) Filing Case
Decision on Motion for Severance - 24.07.2009 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

The Appeals Chamber emphasised that the considerations in relation to the Completion Strategy must be without impact upon the right to fair trial.

38.     Lastly, the Appeals Chamber dismisses Ntabakuze’s argument that a severance of his case would be supported by the “Security Council’s Completion Strategy”.[1] The Appeals Chamber recalls that although the “Completion Strategy” is reflected in Security Council Resolutions,[2] considerations of judicial economy may not impinge on the right of the parties to a fair trial.[3] Moreover, the “Completion Strategy” has no impact whatsoever upon a Chamber’s duty to ensure that the proceedings before it are conducted in a fair and expeditious manner.

[1] Motion, para. 28.

[2] Security Council Resolutions 1503 (2003) of 28 August 2003, 1534 (2004) of 26 March 2004, 1878 (2009) of 7 July 2009.

[3] Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009, para. 31; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR.73.4, Decision on Prosecution Appeal Concerning the Trial Chamber’s Ruling Reducing Time for the Prosecution Case, 6 February 2007, para. 23. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals Pursuant to Rule 15bis(D), 20 April 2007, para. 24. 

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Notion(s) Filing Case
Decision on Continuing Proceedings with a Substitute Judge - 20.04.2007 KAREMERA et al.
(ICTR-98-44-AR15bis.3)

At paras 42-43, the Appeals Chamber held:

42. The Appeals Chamber considers that the continuation of the proceedings with a substitute Judge in a case where witnesses have already been heard does not necessarily infringe on fair trial rights. As the Appeals Chamber previously stated:

[t]here is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[1]

43. The Appeals Chamber also considers that, pursuant to Rule 15bis (D) of the Rules, a substitute Judge may only join the bench “after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings.” These safeguards ensure that fair trials rights are not compromised. In the present case, the remaining Judges took into consideration that the substitute Judge will need to review the “records of the proceedings, including the transcripts, audio and video-recordings, to observe the demeanour of the witness” in determining that it would be in the interests of justice to continue the proceedings with a substitute Judge.[2]

[1] Butare Decision, para. 25.

[2] Impugned Decision, para. 69.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Appeal Judgement - 17.03.2009 KRAJIŠNIK Momčilo
(IT-00-39-A)

The Appeals Chamber considered allegations made by Krajišnik and Amicus curiae in relation to fair trial issues, including the alleged ineffective assistance of counsel, adequate time and facilities for the preparation of the defence, restrictions on the conduct of the defence, replacement of the substitute Judge. As a general conclusion on all issues raised in relation to fair trial, the Appeals Chamber stated as follows:

135. The Appeals Chamber has dismissed Amicus Curiae’s assertion that Krajišnik’s trial was unfair. That said, the Appeals Chamber notes that certain aspects of the conduct of the trial were not free from defects and may have created an appearance of unfairness. However, based on a holistic assessment of the trial record and the additional evidence on appeal, the Appeals Chamber is not satisfied that Amicus Curiae has shown that these defects amount to a miscarriage of justice which would undermine the fairness of the trial received by Krajišnik. This ground of appeal is therefore dismissed in its entirety.

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ICTR Rule Rule 19(1) ICTY Rule Rule 20(1)
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

51.     […] [T]he Appeals Chamber recalls that the principle of the right to a fair trial is part of customary international law. It is embodied in several international instruments, including Article 3 common to the Geneva Conventions[1] which, among other things, prohibits:

“the passing of sentences (…) without previous Judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples”[2].

          The Appeals Chamber notes that the Statute sets forth provisions guaranteeing the rights of the accused. According to Article 19(1) of the Statute, the Trial Chamber shall ensure that the trial is fair and that proceedings are conducted in accordance with the Rules of Procedure and Evidence, with full respect for the rights of the accused. Article 20 and various provisions of the Rules set forth the rights of the accused by echoing the guarantees contained in international and regional instruments[3].

[1] See Čelebeći Appeal Judgement, paras. 138 and 139.

[2] Article 3(d) of the Geneva Conventions of 12 August 1949.

[3] The instruments include: Article 10 of the Universal Declaration of Human Rights adopted by the United Nations General Assembly on 10 December 1948, A/Res.217 A (III); Article 14 of the International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by the General Assembly resolution 2200 A (XXI) of 16 December 1966; Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, (Rome, 4 November 1950;), Article 8 of the American Convention of Human Rights (San Jose, Costa Rica, 22 November 1969, Inter-American Specialized Conference on Human Rights). See also Tadić Appeal Judgement, para. 44 et seq.

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ICTR Statute Article 19(1);
Article 20
ICTY Statute Article 20;
Article 21
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

67.     The right of an accused to a fair trial implies the principle of equality of arms between the Prosecution and the Defence[1]. The Appeals Chamber finds that the Trial Chamber rightly held that:

“The notion of equality of arms is laid down in Article 20 of the Statute. Specifically, Article 20(2) states, “… the accused shall be entitled to a fair and public hearing… Article 20(4) also provides, “…the accused shall be entitled to the following minimum guarantees, in full equality…,” then follows a series of rights that must be respected, including the right to a legal counsel and the right to have adequate time and facilities to prepare his or her defence.”[2]

[…]

69.     The Appeals Chamber observes in this regard that equality of arms between the Defence and the Prosecution does not necessarily amount to the material equality of possessing the same financial and/or personal resources[3]. In deciding on the scope of the principle of equality of arms, ICTY Appeals Chamber in Tadić held that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case”[4].

[…]

73.     The Appeals Chamber concurs with ICTY Appeals Chamber's position expressed in Tadić, that the principle of equality of arms does not apply to “conditions, outside the control of a court”,[5] that prevented a party from securing the attendance of certain witnesses. […]

[1] Tadić Appeal Judgement, para. 48.

[2] Trial Judgement, para. 55.

[3] See, for example, Hentrich v. France, Eur. Court H. R., Judgement of 22 September 1994, para. 56.

[4] Tadić Appeal Judgement, para. 48, in which ICTY Appeals Chamber cites several cases brought before the European Commission on Human Rights.

[5] Tadić Appeal Judgement, para. 49.

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ICTR Statute Article 20 ICTY Statute Article 21
Notion(s) Filing Case
Appeal Judgement - 04.12.2001 KAYISHEMA & RUZINDANA
(ICTR-95-1-A)

80.     […] The Appeals Chamber […] agrees with the opinion expressed by the European Court of Human Rights, that:

“The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that criminal proceedings should be adversarial.[…] The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. Various ways are conceivable in which national law may secure that this requirement is met. However, whatever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon..”[1]

The adversarial principle under the Statute and the Rules is to the same effect […].

[1] Eur. Court H.R., Decision in Brandstetter v. Austria, 20 August 1991, Series A, No. 211, paras. 66 and 71. See also Eur. Court of HR, Decision in Ruiz-Mateos v. Spain, 23 June 1993, Series A No. 262, para. 63.

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Notion(s) Filing Case
Appeal Judgement - 19.07.2010 HARADINAJ et al.
(IT-04-84-A)

34. The central factual context of the Prosecution’s appeal is the unprecedented atmosphere of widespread and serious witness intimidation that surrounded the trial. The Trial Chamber acknowledged this in the Trial Judgement, observing that:

[…] throughout the trial, the Trial Chamber encountered significant difficulties in securing the testimony of a large number of witnesses. Many witnesses cited fear as a prominent reason for not wishing to appear before the Trial Chamber to give evidence. The Trial Chamber gained a strong impression that the trial was being held in an atmosphere where witnesses felt unsafe. This was due to a number of factors specific to Kosovo/Kosova, for example Kosovo/Kosova’s small communities and tight family and community networks which made guaranteeing anonymity difficult. The parties themselves agreed that an unstable security situation existed in Kosovo/Kosova that was particularly unfavourable to witnesses.[1]

35. In circumstances of witness intimidation such as this, it is incumbent upon a Trial Chamber to do its utmost to ensure that a fair trial is possible. Witness intimidation of the type described by the Trial Chamber undermines the fundamental objective of the Tribunal, enshrined in Article 20(1) of the Statute: to ensure that trials are fair, expeditious, and conducted with due regard for the protection of victims and witnesses. Countering witness intimidation is a primary and necessary function of a Trial Chamber. While a Trial Chamber is always required to “provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case”,[2] this obligation is especially pressing when outside forces seek to undermine the ability of a party to present its evidence at trial. For the Tribunal to function effectively, Trial Chambers must counter witness intimidation by taking all measures that are reasonably open to them, both at the request of the parties and proprio motu.

[1] [Haradinaj et al.] Trial Judgement, para. 6 (internal citations omitted).

[2] Tadić Appeal Judgement, para. 52.

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Notion(s) Filing Case
Decision on Arrest of Counsel - 06.10.2010 BAGOSORA et al. (Military I)
(ICTR-98-41-A)

18. The Appeals Chamber emphasizes that it will not lightly intervene in the domestic jurisdiction of a state. As the Chamber seized of Ntabakuze’s appeal, however, it has the duty to ensure the fairness of the proceedings in this case. To this end, it has competence under Article 28 of the Statute of the Tribunal (“Statute”) and Rules 54 and 107 of the Rules to issue any related order. Accordingly, the Appeals Chamber will only consider whether Rwanda’s exercise of its domestic jurisdiction in Erlinder’s case threatens the fairness of the proceedings in this case. […]

[…]

30. The Appeals Chamber recalls Rwanda’s intention to respect Erlinder’s functional immunity,[1] and stresses the need to respect it. Ntabakuze’s right to a fair trial cannot be protected where Erlinder faces investigation or prosecution in Rwanda on the basis of words spoken or written in the course of his representation of Ntabakuze before the Tribunal.

[1] Registrar’s Submissions of 15 July 2010, para. 9. 

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ICTR Statute Article 28 ICTY Statute Article 29 ICTR Rule Rule 54
Rule 107
Notion(s) Filing Case
Appeal Judgement - 24.03.2000 ALEKSOVSKI Zlatko
(IT-95-14/1-A)

104. The right of appeal is a component of the fair trial requirement[1] set out in Article 14 of the ICCPR, and Article 21(4) of the Statute. The right to a fair trial is, of course, a requirement of customary international law.[2]

105. An aspect of the fair trial requirement is the right of an accused to have like cases treated alike, so that in general, the same cases will be treated in the same way and decided as Judge Tanaka said, “possibly by the same reasoning.”[3]

106. The right to a fair trial requires and ensures the correction of errors made at trial.  At the hearing of an appeal, the principle of fairness is the ultimate corrective of errors of law and fact, but it is also a continuing requirement in any appeal in which a previous decision of an appellate body is being considered. 

[1] Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (1993) comments that the bundle of rights which constitute the right to a fair trial are those set out in Articles 14 and 15 of the International Covenant on Civil and Political Rights 1966 (“ICCPR”) (ibid., Article 14, para. 19).

[2] See Article 6 of the 1949 European Convention on Human Rights, Article 8 of the 1969 American Convention on Human Rights and Article 7 of the 1981 African Charter on Human and People’s Rights.

[3] See footnote 243, Judge Tanaka’s Separate Opinion.

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ICTR Statute Article 20(4) ICTY Statute Article 21(4) Other instruments International Covenant on Civil and Political Rights: Article 14.
Notion(s) Filing Case
Decision on Whether to Continue or Restart Trial - 24.09.2003 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A15bis)

24. The Appeals Chamber accepts that as between a speedy trial and an equitable trial preference should be given to the latter. But there is no necessary opposition between the two: a trial is inequitable if it is too long drawn out. Speed, in the sense of expeditiousness, is an element of an equitable trial. The Appeals Chamber does not consider that the Trial Chamber meant otherwise or that, in particular, it was deferring to expediency. The Appeals Chamber will credit the Trial Chamber with knowing of the distinction between “expeditiousness” and “expedience”. It notes that the Trial Chamber referred to the command in article 19.1 of the Statute that “Trial Chambers shall ensure that a trial is fair and expeditious …” and that it is in that sense – the sense of “expeditiousness” - that the expression “speedy trial” is understood in major jurisdictions.[1] […]

[1] See, for example, Black’s Law Dictionary, 7th ed., p. 1408.

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ICTR Statute Article 19(1) ICTY Statute Article 20(1)
Notion(s) Filing Case
Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

63.    The Appeals Chamber recalls that, if a party raises no objection to a particular issue before the Trial Chamber, in the absence of special circumstances, the Appeals Chamber will find that the party has waived its right to adduce the issue as a valid ground of appeal.[1] The Appeals Chamber, Judge Agius dissenting, does not consider that the seriousness of the violations alleged by Ndayambaje constitutes special circumstances warranting the consideration on the merits of these allegations raised for the first time in the Ndayambaje Appeal Brief or at the appeals hearing. In these circumstances, the Appeals Chamber, Judge Agius dissenting, dismisses without further consideration this part of Ground 15 of Ndayambaje’s appeal as well as Ndayambaje’s new allegation of error raised at the appeals hearing.

[1] See supra, fn. 157. This waiver principle has been applied to allegations of fair trial violations. See Bagosora and Nsengiyumva Appeal Judgement, para. 31 (right to initial appearance without delay); Musema Appeal Judgement, paras. 127 (right to effective cross-examination), 341 (right to have adequate time and facilities for the preparation of the defence); Akayesu Appeal Judgement, paras. 361, 370, 375, 376 (right to be informed promptly and in detail of the nature of the charges); Čelebići Appeal Judgement, paras. 640, 649, 650 (alleged violation of fair trial right to the attention of judges to the proceedings); Kambanda Appeal Judgement, paras. 25, 28 (right to counsel of own choosing); Tadić Appeal Judgement, para. 55 (right to equality of arms).

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