Right to be tried in his or her own presence

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

97. As an initial point, the Appeals Chamber finds the jurisprudence invoked by Appellant Barayagwiza to be irrelevant. The Decisions in Karemera et al. and Blaškić concern trials “by default”, in other words, a situation where an indictee has yet to be apprehended or is on the run and, not, as in the instant case, a situation where an accused who is in the custody of the Tribunal voluntarily chooses not to appear for trial. […] Thus, in both decisions in Karemera et al., Trial Chamber III had to decide on a motion for separate trials in a situation where two of the six co-accused had not yet been apprehended.[1]In Blaškić, the ICTY Appeals Chamber envisaged a situation where a person accused of a crime under the ICTY Statute refused to participate in his trial, and held that “it would not be appropriate to hold in absentia proceedings against persons falling under the primary jurisdiction of the International Tribunal”, stating in this connection that “even when the accused has clearly waived his right to be tried in his presence (Article 21(4)(d) of the Statute), it would prove extremely difficult or even impossible for an international criminal court to determine the innocence or guilt of that accused”.[2] The Appeals Chamber notes, however, that the matter before the ICTY Appeals Chamber was of a totally different nature from that raised in the instant case[3] and that it thus ruled on the issue of trial in the absence of the accused only as an incidental matter; its ruling could not be interpreted as prohibiting the conduct of a trial in the absence of an accused who had clearly waived his right to attend and participate.

98. Moreover, contrary to Appellant Barayagwiza’s assertion, the Secretary-General’s Report of 3 May 1993 does not preclude conducting a trial in a situation where the accused refuses to attend the proceedings. While it is true that in paragraph 101 of the Report the Secretary-General states: “There is a widespread perception that trials in absentia should not be provided for in the statute as this would not be consistent with Article 14 of the International Covenant on Civil and Political Rights, which provides that the Accused shall be entitled to be tried in his presence”, both its placement in the report[4] and the wording of this paragraph show that the expression “in absentia” refers here to an accused who has not yet been arrested by the Tribunal.

99. In view of the foregoing, the Appeals Chamber is not convinced that the precedents cited by the Appellant support the view that a trial in the absence of the accused is prohibited for and by the ad hoc Criminal Tribunals where an accused who has been apprehended and informed of the charges against him refuses to be present for trial. Conversely, in a recent interlocutory decision, this Appeals Chamber explicitly held that the right of an accused person to be present at trial is not absolute and that an accused before this Tribunal can waive that right.[5] […]

[1] The Prosecutor v. Augustin Bizimana et al., Case No. ICTR-98-44-I, Decision on the Prosecutor’s Motion for Separate Trial and for Leave to File an Amended Indictment, 8 October 2003, paras. 1-3; The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, “Decision on Severance of André Rwamakuba and Amendments of the Indictments”, 7 December 2004, para. 24.

[2] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of The Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 59.

[3] The Appeals Chamber had to determine the power of a Judge or of a Trial Chamber to issue a binding order and the appropriate remedies in case of non-compliance therewith. More specifically, the ICTY Appeals Chamber was contemplating a situation where a person called by either party to testify in a trial fails to answer ICTY’s summons and, when prosecuted for contempt of court under Rule 77 of ICTY Rules as a result of such non-compliance, also fails to attend the contempt hearings. Moreover, footnote 83 of the Decision reveals that the Appeals Chamber of ICTY was referring to an accused who is not yet apprehended, and hence to a trial “by default”, and not to a situation where a defendant in the custody of the Tribunal refuses to attend proceedings.

[4] The Appeals Chamber notes in this regard that paragraph 101 immediately precedes the paragraph on arrest and formal charging by the accused’s initial appearance in court.

[5] Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, “Decision on Interlocutory Appeal”, 30 October 2006, para. 14. Prior to this Decision it seems that the Trial Chambers adopted a similar practice, sometimes based on Rule 82 bis of the Rules; see The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, T. 6 June 2005, pp. 2-5; The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-T, T. 23 January 2006, pp. 13-14. Regarding the non-absolute nature of the accused’s right to attend proceedings, the Appeals Chamber recalls for example that Rule 80(B) of the Rules allows a Trial Chamber to order the removal of an accused from the proceedings if he has persisted in disruptive conduct following a warning that he may be removed. See also 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, para. 11.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 82 bis
Notion(s) Filing Case
Appeal Judgement - 28.11.2007 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

On the basis of its review of multiple relevant sources,[1] the Appeals Chamber concluded:

107. It clearly emerges from the aforementioned concurring instruments and jurisprudence that, however firmly the right of the accused to be tried in his presence may be established in international law, that did not, on 23 October 2000, preclude the beneficiary of such right from refusing to exercise it.[2] Insofar as it is the accused himself who chooses not to exercise his right to be present, such waiver cannot be assimilated to a violation by a judicial forum of the right of the accused to be present at trial. Such right is clearly aimed at protecting the accused from any outside interference which would prevent him from effectively participating in his own trial; it cannot be violated when the accused has voluntarily chosen to waive it.

109. Pursuant to the foregoing case-law, the Appeals Chamber concludes that waiver by an accused of his right to be present at trial must be free and unequivocal (though it can be express or tacit) and done with full knowledge.[3] In this latter respect, the Appeals Chamber finds that the accused must have had prior notification as to the place and date of the trial, as well as of the charges against him or her. The accused must also be informed of his/her right to be present at trial and be informed that his or her presence is required at trial. The Appeals Chamber finds further that, where an accused who is in the custody of the Tribunal decides voluntarily not to be present at trial, it is in the interests of justice to assign him or her Counsel in order, in particular, to guarantee the effective exercise of the other rights enshrined in Article 20 of the Statute.[4] Moreover, Rule 82 bis of the Rules, which allows the Trial Chamber to adjust the proceedings where an accused has refused beforehand to be present during his or her trial, also imposes such conditions.[5]

116. In light of the foregoing, the Appeals Chamber finds that Appellant Barayagwiza freely, explicitly and unequivocally expressed his waiver of the right to be present during his trial hearings, after he had been duly informed by the Trial Chamber of the place and date of the trial, of the charges laid against him, of his right to be present at those hearings, and that his presence was required. At this stage of the analysis, the Appeals Chamber cannot determine any error in the finding reached by the Trial Chamber in regard to the Appellant’s refusal to attend trial. As to whether his interests were represented by counsel, the Appeals Chamber will now address this question, and accordingly reserves its overall finding on his third ground of appeal until the end of that analysis.

[1] Daniel Monguya Mbenge et al. v. Democratic Republic of the Congo, Communication No. 16/1977, UN Doc. CCPR/C/18/D/16/1977, 25 September 1983, para. 14(1); C. v. Italy, European Commission on Human Rights, No. 10889/84, ECHR, Decision of 11 May 1988 on the Admissibility of the Application; Medenica v. Switzerland, No. 20491/92, ECHR, Judgement, 14 June 2001, paras. 54-59; Somogyi v. Italy, No. 67972/01, ECHR, Judgement, 18 May 2004, para. 66; Sejdovic v. Italy, No 56581/00, ECHR, Judgement, 10 November 2004, paras. 30-31 (Judgement affirmed by the Grand Chamber of the European Court of Human Rights: Judgement, 1 March 2006); R.R. v. Italy, No. 42191/02, ECHR, Judgement, 9 June 2005, para. 50 ; Battisti v. France, No. 28796/05, ECHR, (Second Section) Décision sur la recevabilité du 12 décembre 2006 (irrecevabilité) ; The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, prepared by the African Human Rights Commission in 2001, point (N)(6)(c)(3); Prosecutor v. Milan Simić, Case No. IT 95-9/2-S, Sentencing Judgement, 17 October 2002, para. 8 and footnote 18; Rule 60(A)(i) and (B) of the Rules of the Special Court for Sierra Leone.

[2] The Appeals Chamber notes that the language of Article 63(1) of the Statute of the International Criminal Court (“The accused shall be present during the trial”) appears to express an obligation of the accused rather than a right. However, Article 61(2)(a) of the ICC Statute allows a Pre-Trial Chamber to hold a hearing to confirm the charges in the absence of the accused in the event that the accused has waived his or her right to be present.

[3] In fact, this is a similar standard to the one applied in assessing the validity of a suspect’s waiver of his right to be assisted by counsel during his or her questioning pursuant to Rule 42(B) of the Rules, (see The Prosecutor v. Bagosora et al., Case No. ICTR-98-41-T, Decision on the Prosecutor’s Motion for the Admission of Certain Materials Under Rule 89(C) of the Rules of Procedure and Evidence, 14 October 2004, paras. 18-19) or the validity of an accused’s waiver of his right not to testify against himself (see Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-T, Decision on Vidoje Blagojević’s Oral Request, 30 July 2004, p. 8). See also Prosecutor v. Sefer Halilović, Case No. IT-01-48-T, Decision on Motion for Exclusion of Statement of Accused, 8 July 2005, paras. 22-23.

[4] Regarding this last point, the Appeals Chamber refers the reader to the section of the present Appeal Judgement on the right of Appelant Barayagwiza to legal assistance (paras 117-192)

[5] For an example of the application of Rule 82 bis, see Rwamakuba Trial Judgement, para. 9.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 82 bis
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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)
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Decision on Interlocutory Appeal - 30.10.2006 ZIGIRANYIRAZO Protais
(ICTR-01-73-AR73)

8. Article 20(4)(d) of the Statute provides that an accused has a right “to be tried in his or her presence.” This right has been equated with other “indispensable cornerstone[s] of justice”, such as the right to counsel, the right to remain silent, the right to confront witnesses against them, and the right to a speedy trial.[1] […]

[1] 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, paras. 11, 13 (“Milošević Appeal Decision”).

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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)
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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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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)
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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)
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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)
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Decision on Right to Be Present - 05.10.2007 KAREMERA et al.
(ICTR-98-44-AR73.10)

15. The Appeals Chamber agrees that the right to an expeditious trial as a right guaranteed to all accused by the Statute of the Tribunal was a relevant consideration for the Trial Chamber in balancing whether or not to proceed in the absence of the Appellant. However, in the circumstances of this complex and lengthy case, the Appeals Chamber is not satisfied that the three day delay to the trial was sufficient to outweigh the statutory right of the Appellant to be present at his own trial when the absence of the Appellant was due to no fault of his own. […]

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d)
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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)
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Order in Relation to the Appeal Hearing - 18.09.2017 ŠEŠELJ Vojislav
(MICT-16-99-A)

Pages 1-3

CONSIDERING that Šešelj has the right to be present at the upcoming hearing and that his presence is required;

CONSIDERING that Šešelj may waive his right to appear before the Appeals Chamber only if his interests are represented by counsel;

CONSIDERING that Šešelj has elected to represent himself and that he has the right to self‑representation at the appeal stage;

[…]

CONSIDERING that, if Šešelj is unable to travel to The Hague for the hearing, he may request, pursuant to Rule 96 of the Rules, to participate therein by way of video-conference link;

[1] See Article 19(4)(d) of the Statute. See also Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 16 May 2008 (original French version filed on 28 November 2007), paras. 96, 109 (“Nahimana et al. Appeal Judgement”).

[2] See Rules 98 and 131 of the Rules.

[3] Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-A, Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007, paras. 10-12.

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MICT Statute Article 19(4)(d) MICT Rule Rule 96;
Rule 98;
Rule 131