Right to be tried before an independent tribunal

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

28. The right of an accused to be tried before an independent tribunal is an integral component of his right to a fair trial as provided in Articles 19 and 20 of the Statute.[1] […] The independence of the Judges of the Tribunal is guaranteed by the standards for their selection,[2] the method of their appointment, their conditions of serviceand the immunity they enjoy. The Appeals Chamber further notes that the independence of the Tribunal as a judicial organ was affirmed by the Secretary-General at the time when the Tribunal was created,[6] and the Chamber reaffirms that this institutional independence means that the Tribunal is entirely independent of the organs of the United Nations[7] and of any State or group of States.[8] Accordingly, the Appeals Chamber considers that there is a strong presumption that the Judges of the Tribunal take their decisions in full independence, and it is for the Appellant to rebut this presumption.

32. […][T]he Appeals Chamber considers that the fact that pressures were exerted is not enough to establish that the Judges who ruled in this context on the Prosecutor’s Request for Review or Reconsideration were influenced by those pressures.

[1] Galić Appeal Judgement, para. 37; Kayishema and Ruzindana Appeal Judgement, paras. 51 and 55; Furundžija Appeal Judgement, para. 177.

[2] See Article 12 of the Statute, which provides that the Judges of the Tribunal “shall be persons of high moral character, impartiality and integrity, who possess the qualifications required in their respective countries for appointment to the highest judicial offices”.

[3] See Articles 12 bis and 12 ter of the Statute. In particular, the Judges of the Tribunal shall be elected by the General Assembly from a list submitted by the Security Council, which prevents abusive or discriminatory nominations and ensures that no State or group of States shall play a dominating role in the nomination of Judges.

[4] The conditions of service and compensation for Judges of the Tribunal are established by the General Assembly (see for example, Questions relating to the programme budget for the biennium 1998–1999, UN Doc. A/RES/53/214, 11 February 1999, section VIII). These ensure that Judges have financial security during and after their mandate.

[5] The Judges' privileges and immunities set out in Article 29(2) of the Statute guarantee their independence by protecting them from personal civil suits for improper acts or omissions in the exercise of their judicial functions.

[6] Report of the Secretary-General pursuant to paragraph 5 of Security Council Resolution 955 (1994), 13 February 1995 (U.N. Doc S/1995/134) (“UN Secretary-General’s Report, 13 February 1995”), para. 8.

[7] Kayishema and Ruzindana Appeal Judgement, para. 55.

[8] UN Secretary-General’s Report, 13 February 1995, para. 8.

[9] The Appeals Chamber notes that the European Court of Human Rights ruled in the case of Naletilić v. Croatia (European Court of Human Rights, Decision as to the Admissibility of Application No. 51891/99, 4 May 2000, para. (1) on the impartial and independent character of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“ICTY”), and found that ICTY was “an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence, in view of the content of its Statute and Rules of Procedure”. It should be emphasised that these same guarantees were reproduced in the Statute and Rules of the Tribunal, the Statute of the Tribunal being an adaptation of that of ICTY and the Rules of the Tribunal being based on those of ICTY (see paragraphs 9 and 18 of the UN Secretary-General’s Report of 13 February 1995 and Article 14 of the Statute which provides that the Judges would adopt the Rules of Evidence and Procedure of ICTY (“ICTY Rules”) with such changes as they deemed necessary).

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