Right to be tried without undue delay

Notion(s) Filing Case
Appeal Judgement - 04.02.2013 MUGENZI AND MUGIRANEZA (Government II)
(ICTR-99-50-A)

32.       The Appeals Chamber recalls that “because of the Tribunal’s mandate and of the inherent complexity of the cases before the Tribunal, it is not unreasonable to expect that the judicial process will not always be as expeditious as before domestic courts”.[1] In the circumstances of this case, which is one of the largest ever heard by the Tribunal, the significant period of time which elapsed during these proceedings can be reasonably explained by its size and complexity. The pace of the trial was not dissimilar from that of other multi-accused trials, where no undue delay has been identified.[2] As a result, the fact that some multi-accused cases may have proceeded at a more accelerated pace does not, in and of itself, demonstrate that the duration of proceedings in this case amounted to undue delay.

33.       Although the size and complexity of the case resulted from the Prosecution’s decision to jointly charge four senior government officials, Mugiraneza fails to demonstrate that this decision improperly prolonged his trial. The Appeals Chamber also considers speculative Mugenzi’s contention that investigative failings resulted in the size and complexity of the case or that the Prosecution acted impermissibly simply because much of the Prosecution’s case at trial was deemed unproven. The Appeals Chamber likewise dismisses Mugiraneza’s unsubstantiated contention that the Prosecution’s disclosure violations resulted in undue delay.

[1] Nahimana et al. Appeal Judgement, para. 1076.

[2] In the Bagosora et al. case, involving the trial of four senior military officers, the trial chamber heard 242 witnesses over the course of 408 trial days in proceedings which lasted 11 years. See Bagosora et al. Trial Judgement, paras. 76, 78, 84. See also Bagosora and Nsengiyumva Appeal Judgement, para. 38 (dismissing Anatole Nsengiyumva’s challenge to undue delay in the proceedings). In the Nahimana et al. case, the Appeals Chamber held that a period of seven years and eight months between the arrest of Jean-Bosco Barayagwiza and the issuance of the trial chamber’s judgement did not constitute undue delay, with the exception of some initial delays which violated his fundamental rights. In particular, the Appeals Chamber reasoned that Barayagwiza’s case was particularly complex due to the multiplicity of counts, the number of accused, witnesses, and exhibits, as well as the complexity of the facts and law. See Nahimana et al. Appeal Judgement, paras. 1072-1077. This case is nearly twice the size of the Nahimana et al. case. Compare Nahimana et al. Trial Judgement, paras. 50, 94 (93 witnesses over the course of 238 trial days) with Trial Judgement, para. 76 (171 witnesses over the course of 399 trial days).

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Decision on Witness List - 21.08.2007 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-AR73)

24.    The Appeals Chamber considers that the Trial Chamber’s duty to ensure the fairness and expeditiousness of trial proceedings entails a delicate balancing of interests, particularly in cases, as in the present one, where there are six accused. […]

 

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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 Interlocutory Appeal - 25.05.2001 KVOČKA et al.
(IT-98-30/1-AR73.5)

21. Procedural equality requires that the concept of a fair trial be applied taking into account the interests of both parties. The Prosecution acts on behalf of and in the interests of the international community.[1] Thus, as the international community has an interest in the enforcement of such guarantee, it cannot be deprived of it by the mere circumstance that the Appellant would like to waive his own entitlement to a fair trial.

 

[1] Prosecutor v. Zlatko Aleksovski, Decision on Prosecutor’s Appeal on Admissibility of Evidence, Case No.: IT-95-14/1-AR73, 16 February 1999, para 25.

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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

23. The Appeals Chamber considers that the Trial Chamber erred in finding that the length of Gatete’s pre-trial detention was not undue, given that it explicitly noted that the conduct of the Prosecution and the relevant authorities resulted in instances of pre-trial delay that could not be explained or justified.[1] By identifying such instances of pre-trial delay, the Appeals Chamber considers that the Trial Chamber itself ipso facto recognised that the conduct of the Prosecution and the relevant authorities unduly prolonged Gatete’s pre-trial detention. The Trial Chamber’s subsequent conclusion that “the delay was not undue” is thus incompatible with its prior acknowledgement that there were various pre-trial delays that could not be explained or justified. Accordingly, the Appeals Chamber finds that the Trial Chamber erred in its assessment of the delays occasioned by the conduct of the Prosecution and the relevant authorities.

[1] See Trial Judgement, paras. 61, 62.

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c)
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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

44. Notwithstanding Gatete’s failure to demonstrate that his ability to prepare or present his defence case was prejudiced by the delay, the Appeals Chamber finds that the pre-trial delay of more than seven years was undue given that the case against Gatete was not particularly complex. In the circumstances of this case, the Appeals Chamber considers that this protracted delay and the resulting prolonged pre-trial detention constitute prejudice per se.

45. […T]he Appeals Chamber considers that the Trial Chamber erred in finding that the length of Gatete’s pre-trial detention was not undue given that it explicitly noted that the conduct of the Prosecution and the relevant authorities resulted in instances of pre-trial delay that could not be explained or justified. Moreover, the Trial Chamber erred in finding that the case against Gatete was sufficiently complex to justify, in part, a pre-trial delay of more than seven years. Notwithstanding the necessary interval for pre-trial procedure, and the selection of the case for referral to Rwanda pursuant to Rule 11 bis of the Rules, the Appeals Chamber considers that the extent of pre-trial delay disproportionately exceeded the time reasonable for a case of such a relatively limited scope and scale and constitutes prejudice per se. Consequently, the Appeals Chamber finds that Gatete’s right to be tried without undue delay was violated and grants his first ground of appeal.

[1] See supra, Section III.A.1.(b). 

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c)
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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)
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Appeal Judgement - 09.10.2012 GATETE Jean Baptiste
(ICTR-00-61-A)

29. Whether a case is sufficiently complex to justify lengthy pre-trial detention is, in the view of the Appeals Chamber, a matter to be determined on a case-by-case basis. In the present instance, the Trial Chamber correctly observed that the case against Gatete could not be compared to multi-accused trials, which run for years and involve hundreds of trial days, hundreds of witnesses, and over a thousand exhibits. However, despite this assessment, the Trial Chamber found that the case was complex in light of the number of counts, allegations, and nature of the crimes charged. The Appeals Chamber considers that the Trial Chamber erred in this regard. Although the Indictment alleges crimes pertaining to different modes of liability and several different incidents, the Prosecution was nonetheless able to present its case in 13 days.[4] Moreover, the whole trial in this single-accused case ran for only 30 days, during which 49 witnesses were called and 146 exhibits were admitted.[5] Consequently, the Appeals Chamber does not consider that the allegations against Gatete justified a pre-trial delay of over seven years.[6] Accordingly, the Appeals Chamber finds that the Trial Chamber erred in finding the case particularly complex and in relying on this as one of the factors to support its finding that the pre-trial delay was not undue.

[1] Cf. Renzaho Appeal Judgement, paras. 238-240.

[2] Trial Judgement, para. 60.

[3] Trial Judgement, paras. 60, 64.

[4] Trial Judgement, Annex A, para. 14.

[5] See Trial Judgement, para. 60. Moreover, the Appeals Chamber recognises that all 22 witnesses called by the Prosecution were eye-witnesses who gave relatively short, uncomplicated testimony, and that no expert witnesses were called.

[6] The Appeals Chamber considers that, although the Trial Chamber erred in its evaluation of the complexity of the case, it took into account the correct factors, including the fact that the case had been selected for referral to Rwanda pursuant to Rule 11 bis of the Rules. See Trial Judgement, para. 64.

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c)
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Decision on Joinder - 25.10.2006 GOTOVINA et al.
(IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)

The Appeals Chamber held that joinder of cases will not adversely affect Čermak and Markač’s right to fair trial with undue delay, due to the fact that, even if they have been preparing longer than Gotovina for their trial, there is no start date for the trial in the immediate future.[1]  With respect to Čermak and Markač’s argument that Gotovina’s case adds complexity to their case and will lead to a long and procedurally complicated trial in violation of their right to a fair trial without undue delay, the Appeals Chamber held at para. 44:

44. […] Two separate trials, whether conducted simultaneously or otherwise, are still likely to require more court hours in total than one joint trial and require more judicial time and resources. Furthermore, two separate trials will likely lead to duplication of efforts. In addition, in light of the significant overlap the Trial Chamber found between the two cases on the basis of the amended indictments, Čermak and Markač fail to demonstrate that a joint trial with Gotovina will lead to a long and procedurally complicated trial. […] The Trial Chamber reasonably exercised its discretion in finding that overall, in this case, joinder will promote judicial economy and this weighs in favour of granting joinder.

[1] Decision, paras 40-41.

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Appeal Judgement - 01.04.2011 RENZAHO Tharcisse
(ICTR-97-31-A)

238. The right to be tried without undue delay is enshrined in Article 20(4)(c) of the Statute. The Appeals Chamber recalls that this right only protects the accused against undue delay, which is determined on a case-by-case basis.[1] A number of factors are relevant to this assessment, including: 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.[2]

239. The Appeals Chamber notes that Renzaho does not allege that undue delay was attributable to any Party or the Tribunal, or that he was prejudiced by the length of the proceedings. He points only to the length of his proceedings to support his assertion that he was denied the right to an expeditious trial. While the proceedings have been lengthy, the Appeals Chamber notes that the case against Renzaho was complex. With respect to the pre-trial phase, the Indictment was amended three times, altering the scope of the case.[3] Renzaho does not point to any error in this regard.

240. Further, the Indictment charged direct and superior responsibility under six Counts, including genocide, complicity in genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. Renzaho was charged with criminal conduct at several locations, over an extended period of time, including multiple killings and rapes. Although the Appeals Chamber accepts that preparing such a case for trial can reasonably require a lengthy period of time, it emphasizes that every effort should be made to bring cases to trial as expeditiously as possible.[4]

241. Turning to the trial phase, the Appeals Chamber notes that it lasted for thirteen months.[5] There is no assertion that the trial itself was unduly long, and the Appeals Chamber cannot find that this period was unreasonable. With respect to the delivery of the Trial Judgement, the Appeals Chamber notes that it was delivered one and a half years after the close of trial. In the context of this case, such a delay is concerning. The Appeals Chamber underscores that lengthy delays can give rise to serious questions regarding fairness to the accused. However, in view of the complexity of this case, including the number of charges and the volume of evidence produced by the Parties, Renzaho has not demonstrated that the delivery of the Trial Judgement was unduly delayed.

242. The Appeals Chamber is mindful that the right enshrined in Article 20(4)(c) of the Statute is fundamental. While the Appeals Chamber is concerned by the length of the proceedings as a whole, in the particular circumstances of this case, the Appeals Chamber finds that Renzaho has failed to demonstrate that his right to be tried without undue delay has been violated.

[1] Nahimana et al. Appeal Judgement, para. 1074. 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.

[2] Nahimana et al. Appeal Judgement, para. 1074. See also André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007, para. 13.

[3] See Trial Judgement, Annex A: Procedural History, paras. 832, 834, 835. See also supra, Chapter I (Introduction), fn. 6.

[4] See Nahimana et al. Appeal Judgement, para. 1076 (stating that “because of the Tribunal’s mandate and of the inherent complexity of the cases before the Tribunal, it is not unreasonable to expect that the judicial process will not always be as expeditious as before domestic courts”).

[5] The Prosecution’s case was conducted in two trial sessions, from 8 January to 7 February 2007 and from 2 to 6 March 2007. This constituted 21 trial days, during which the Trial Chamber heard 26 witnesses and admitted 118 exhibits. The Defence case was also conducted in two trial sessions, conducted from 17 May to 10 July 2007 and from 22 August to 6 September 2007. This constituted 28 trial days, which included 27 witnesses and 113 exhibits. See Trial Judgement, Annex A: Procedural History, paras. 837, 842.

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ICTR Statute Article 20(4)(c) ICTY Statute Article 21(4)(c)
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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)
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Decision Regarding Leave to Amend Indictment - 12.02.2004 BIZIMUNGU et al. (Government II)
(ICTR-99-50-AR50)

16.     The Prosecution is certainly correct that the Trial Chamber must consider all of the circumstances bearing on a motion to amend the indictment.  Interference with the orderly scheduling of trial, however, is one such circumstance.  The Appeals Chamber stated in Karemera that “a postponement of the trial date and a prolongation of the pretrial detention of the Accused” are “some, but not all”[1] of the considerations relevant to determining whether a proposed amendment would violate the right of the accused to a trial “without undue delay,”[2] which in turn bears on the broader question whether the amendment is justified under Rule 50 of the Rules. The Trial Chamber should also consider such factors as the nature and scope of the proposed amendments, whether the Prosecution was diligent in pursuing its investigations and in presenting the motion, whether the Accused and the Trial Chamber had prior notice of the Prosecution’s intention to seek leave to amend the indictment, when and in what circumstances such notice was given, whether the Prosecution seeks an improper tactical advantage,[3]and whether the addition of specific allegations will actually improve the ability of the Accused to respond to the case against them and thereby enhance the overall fairness of the trial.[4] Likewise, the Trial Chamber must also consider the risk of prejudice to the Accused and the extent to which such prejudice may be cured by methods other than denying the amendment, such as granting adjournments or permitting the Accused to recall witnesses for cross-examination.[5] The above list is not exhaustive; particular cases may present different circumstances that also bear on the proposed amendments.

 17.     […] [T]he Trial Chamber is not required to enumerate and dispose of all of the arguments raised in support of a motion.  Absent a showing that the Trial Chamber actually refused to consider any factors other than the determination that the amendment would delay the start of trial, or a showing that the Trial Chamber’s conclusion was so unreasonable that it cannot have considered all pertinent factors, the Appeals Chamber must conclude that the Trial Chamber took account of all of the arguments put to it.

[…]

19. […] Although the Prosecution may seek leave to expand its theory of the Accused’s liability after the confirmation of the original indictment, the risk of prejudice from such expansions is high and must be carefully weighed. On the other hand, amendments that narrow the indictment, and thereby increase the fairness and efficiency of proceedings, should be encouraged and usually accepted.

[1] [Prosecutor v. Karemera et al., 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 (“Karemera”)]], para. 19.

[2] Ibid., para. 13 (quoting Statute of the International Tribunal, Art. 20(4)(c)).

[3] See ibid., paras. 15, 20-30; Prosecutor v. Kovačević, No. IT-97-24-AR73, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, dated 2 July 1998, paras 29, 31.

[4] See Karemera, para. 27.

[5] See ibid., para. 28. 

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Decision Regarding Indictment and Speedy Trial - 27.02.2004 MUGIRANEZA Prosper
(ICTR-99-50-AR73)

Considering that the Appeals Chamber takes the view that it is necessary to consider, inter alia, the following factors when determining whether there has been a violation of the right to be tried without undue delay:

(1)     The length of the delay;

(2)     The complexity of the proceedings, such as the number of charges, the number of accused, the number of witnesses, the volume of evidence, the complexity of facts and law;

(3)     The conduct of the parties;

(4)     The conduct of the relevant authorities; and

(5)     The prejudice to the accused, if any;

 CONSIDERING that the Trial Chamber erred in considering the factor of the fundamental purpose of the Tribunal in its determination of whether the delay was undue;

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

366.  As for the remaining arguments relating to the conduct of the Prosecution and of the other relevant authorities, the Appeals Chamber finds merit in the submission that the Trial Chamber erred in concluding that it did not need to “consider the conduct of the Prosecution or other legal authorities.”[1] As held repeatedly, the conduct of the parties and of the relevant authorities are relevant factors to take into account in determining whether an accused’s fundamental right to a trial without undue delay has been infringed.[2] Given the significant length of the instant proceedings at the time it delivered its judgement, it was incumbent upon the Trial Chamber to carefully assess whether, besides the complexity of the case, the conduct of the parties and of other relevant authorities may have contributed to any unjustifiable delays in this case.

367. Concerning the conduct of the Prosecution, the Appeals Chamber observes that, from their arrests to the commencement of the trial on 12 June 2001, Nyiramasuhuko, Ntahobali, and Nsabimana spent almost four years in pre-trial detention, Nteziryayo three years, and Kanyabashi and Ndayambaje six years. The Appeals Chamber accepts that preparing such a case for trial can reasonably require a lengthy period of time but emphasises that every effort should be made to bring cases to trial as expeditiously as possible.[3]

[…]

372. It transpires from the procedural history summarised above that the Prosecution’s failure to comply with its disclosure obligations and lack of readiness delayed the start of the trial by several months. Although the Prosecution acknowledged its lack of readiness and belatedness in fulfilling its disclosure obligations, upon which the start of the trial depended, it does not provide any explanation as to why it was not in a position to disclose some of the relevant materials despite express orders from the Trial Chamber or why it repeatedly changed the date for its readiness to commence trial. While the trial was postponed by one month as a result of the death of Judge Kama,[4] the record shows that the fact that the trial was delayed to spring 2001 was largely caused by the Prosecution’s inability to meet its disclosure obligations and lack of readiness. In light of the foregoing, the Appeals Chamber finds that the Prosecution’s failure to fulfill its disclosure obligations created unjustified delays in the start of the trial.

373. With respect to the trial phase, the Appeals Chamber observes that, as highlighted by Ntahobali and Kanyabashi, the trial phase lasted over eight years and was thus proportionally longer than in other multi-accused cases at the Tribunal.[5] The Appeals Chamber, however, stresses that a more accelerated pace of other multi-accused cases does not, in and of itself, demonstrate undue delay.[6]

374. As noted by the Trial Chamber, the length of the proceedings was increased in this particular case by the replacement of a judge in the course of the trial, the presentation of six Defence cases and the plurality of cross-examinations for every witness.[7] Although not taken into account by the Trial Chamber when examining whether undue delay occurred, the Appeals Chamber further observes that, during the trial phase, the judges sitting in this case were also involved in several other proceedings before the Tribunal. Indeed, the Trial Chamber expressly noted in the “Procedural History” section of the Trial Judgement that it was not able to sit in the Nyiramasuhuko et al. case: (i) from 4 to 25 July 2001, 1 to 5 October 2001, 26 November to 13 December 2001, 16 September to 9 October 2002, 18 November to 12 December 2002, and 31 March to 24 April 2003 because all three judges of the Trial Chamber were seised of the Kajelijeli case; and (ii) from 3 to 25 September 2001, 28 January to 19 February 2002, 6 to 14 May 2002, 19 August to 12 September 2002, 13 January to 30 April 2003, and 5 to 15 May 2003 because all three judges of the Trial Chamber were seised of the Kamuhanda case.[8] Moreover, the Appeals Chamber notes that: (i) Judge Bossa, who was assigned to the case on 20 October 2003, was also at the time assigned to the Ndindabahizi case, which was in session notably from 27 October to 28 November 2003 and on 1 and 2 March 2004;[9] (ii) all three judges of the Trial Chamber were also seised of the Bisengimana sentencing case, in which they sat on 17 November 2005, 7 December 2005, 19 January 2006, and 20 April 2006;[10] and (iii) all three judges of the Trial Chamber were seised of the Nzabirinda sentencing case, in which they sat on 14 December 2006, 17 January 2007, and 23 February 2007.[11]

375. It is unquestionable that the pace of the trial was affected by the judges’ obligations in other cases. Whereas the proceedings in this case needed interruptions so as to allow the parties to prepare,[12] the judges’ obligations in other cases prevented them from sitting in this case for approximately 36 weeks. In light of the time required to dispose of the motions filed in these other cases, deliberate on their merits, and write the judgements, these additional obligations also necessarily significantly reduced the time the Trial Chamber judges could devote to the present case.

376. The Appeals Chamber observes that it was practice for judges of the Tribunal to participate simultaneously in multiple proceedings given the workload of the Tribunal during the relevant period.[13] It also notes that significant efforts were made by the authorities of the Tribunal to obtain the necessary resources to complete its mandate while ensuring the utmost respect for the rights of all accused.[14] However, in the particular circumstances of this case where the co-Accused had already been in detention for nearly 4 to 6 years at the start of the trial and which had already suffered from significant delays,[15] the Appeals Chamber concludes that the additional delays resulting from the judges’ simultaneous participation to other proceedings caused undue delay. The Appeals Chamber recalls that logistical considerations should not take priority over the trial chamber’s duty to safeguard the fairness of the proceedings.[16] In the same vein, the Appeals Chamber is of the view that organisational hurdles and lack of resources cannot reasonably justify the prolongation of proceedings that had already been significantly delayed.[17]

[1] Trial Judgement, para. 143.

[2] See supra, para. 346.

[3] See Renzaho Appeal Judgement, para. 240.

[4] In this respect, the Appeals Chamber rejects Ndayambaje’s undeveloped claim that the death of Judge Kama unduly delayed the commencement of the trial. See supra, fn. 856.

[5] For example:

- in the Ndindiliyimana et al. case, a four-accused case, the trial phase extended over four years and nine months;

- in the Bizimungu et al. case, a four-accused case, the trial phase lasted over five years;

- in the Bagosora et al. case, a four-accused case, the trial phase lasted for five years and two months; and

- in the Nahimana et al. case, a three-accused case, the trial phase lasted two years and ten months.

See Ndindiliyimana et al. Trial Judgement, Annex A, paras. 34, 134; Bizimungu et al. Trial Judgement, Annex A, paras. 29, 81; Bagosora et al. Trial Judgement, Annex A, paras. 2314, 2367; Nahimana et al. Trial Judgement, para. 94.

[6] See Mugenzi and Mugiraneza Appeal Judgement, para. 32.

[7] Trial Judgement, para. 139.

[8] Trial Judgement, paras. 6345, 6349, 6357, 6361, 6367, 6377, 6379, 6384, 6386, 6389, fns. 159, 160.

[9] See Ndindabahizi Trial Judgement, Section I.4, paras. 17, 21.

[10] See Bisengimana Sentencing Judgement, Section VI.A, paras. 220, 228, 233.

[11] See Nzabirinda Sentencing Judgement, Section II.A, paras. 9, 48.

[12] As regards the Prosecution’s heavy reliance on the fact that most of the co-Accused repeatedly requested more time to prepare their defence, the Appeals Chamber emphasises that an accused cannot be blamed for trying to take full advantage of the resources afforded by the law in their defence as long as his conduct is not obstructive. Noting that the right to a fair trial in Article 20 of the Statute is in pari materia with Article 6 of the European Convention on Human Rights, the Appeals Chamber considers that the jurisprudence of the European Court of Human Rights (“ECtHR”) may provide useful guidance for the interpretation of the right to trial without undue delay. In this regard, see, e.g., Yagci and Sargin v. Turkey, ECtHR, Nos. 16419/90 and 16426/90, Judgment, 8 June 1995, para. 66. Regarding the reliance on the jurisprudence of the ECtHR, see Prosecutor v. Milan Martić, Case No. IT-95-11-AR73.2, Decision on Appeal against the Trial Chamber’s Decision on the Evidence of Witness Milan Babić, 14 September 2006, paras. 18, 19.

[13] During the Nyiramasuhuko et al. trial, the Tribunal’s trial chambers were seised of 38 cases involving 53 accused.

[14] The Appeals Chamber notes that, in 2002, in response to the request made by the then President of the Tribunal to complete its tasks within a reasonable amount of time in order to “respect the rights of the accused and to meet the expectations of the victims, Rwandan society and the United Nations”, the Security Council established a pool of ad litem judges. See “Identical Letters dated 14 September 2001 from the Secretary-General addressed to the President of the General Assembly and the President of the Security Council”, UN Doc. A/56/265-S/2001/764, 19 September 2001, Appendix, p. 7; Security Council Resolution 1431 (2002), UN Doc. S/RES/1431, 6 September 2002, paras. 1, 2.

[15] The Appeals Chamber refers to the delays caused by the Prosecution’s lack of readiness, the replacement of Judge Maqutu, and the inability of witnesses to travel from Rwanda to Arusha as scheduled. See supra, paras. 364, 370-372.

[16] See Sainović et al. Appeal Judgement, para. 101; Haradinaj et al. Appeal Judgement, para. 46.

[17] The Appeals Chamber notes that the United Nations Human Rights Committee, the African Commission on Human and People’s Rights, and the ECtHR have held that it is for the contracting States to organise their legal systems in such a way that their courts can meet the requirement of a trial within a reasonable time. See, e.g., B. Lubuto v. Zambia, Human Rights Committee, Communication No. 390/1990 (Views adopted on 31 October 1995), UN Doc. CCPR/C/55/D/390/1990 (1995), 3 November 1995, para. 7.3 (“The Committee has noted the State party's explanations concerning the delay in the trial proceedings against the author. The Committee acknowledges the difficult economic situation of the State party, but wishes to emphasize that the rights set forth in the Covenant constitute minimum standards which all States parties have agreed to observe. Article 14, paragraph 3(c), states that all accused shall be entitled to be tried without delay, and this requirement applies equally to the right of review of conviction and sentence guaranteed by article 14, paragraph 5. The Committee considers that the period of eight years between the author's arrest in February 1980 and the final decision of the Supreme Court, dismissing his appeal, in February 1988, is incompatible with the requirements of article 14, paragraph 3(c).”); Human Rights Committee, General Comment No. 13: Article 14 (Administration of Justice), 13 April 1984, para. 10 (Views adopted on 12 May 2003), UN Doc. HRI/GEN/1/REV.6, p. 137 (“Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place “without undue delay”. To make this right effective, a procedure must be available in order to ensure that the trial will proceed “without undue delay”, both in first instance and on appeal.”); Haregewoin Gabre-Selassie and IHRDA (on behalf of former Dergue Officials) v. Ethiopia, African Commission on Human and People’s Rights, Communication No. 301/05, 12 October 2013, para. 235 (“The African Commission also agrees with the Complainants that the complexity of a case should not debar domestic courts from acting with due diligence in dealing with a case on the Merits. At any rate, it is the responsibilities of States Parties to the African Charter to organize their judiciary in such a way that the right guaranteed in Article 7 (1) (d) of the Charter can be effectively enjoyed”) (internal references omitted); EKO-Energie, SPOL. S.R.O v. The Czech Republic, ECtHR, No. 65191/01, Judgment, 17 May 2005, para. 33 (“The Court recalls that the Convention places a duty on the Contracting States to organize their legal system so as to allow the courts to comply with the requirements of Article 6 § 1 of the Convention, including that of trial within a reasonable time. Nonetheless, a temporary backlog of business might not involve liability on the part of the Contracting States provided that they take, with the requisite promptness, remedial action to deal with an exceptional situation of this kind.”); Mansur v. Turkey, ECtHR, No. 16026/90, Judgment, 8 June 1995, para. 68; Dobbertin v. France, ECtHR, No. 13089/87, Judgment, 25 February 1993, para. 44; Vocaturo v. Italy, ECtHR, No. 11891/85, Judgment, 24 May 1991, para. 17 (“As regards the excessive workload, the Court points out that under Article 6 para. 1 (art. 6-1) of the Convention everyone has the right to a final decision within a reasonable time in the determination of his civil rights and obligations. It is for the Contracting States to organise their legal systems in such a way that their courts can meet this requirement.”); Abdoella v. The Netherlands, ECtHR, No. 12728/87, Judgment, 25 November 1992, para. 24 (“Article 6 para. 1 (art. 6-1) imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements”.). See also Jean Paul Genie-Lacayo v. Nicaragua, Inter-American Court of Human Rights, Judgment, 29 January 1997, paras. 39, 80 (“There is excessive delay regarding the application for judicial review filed on 29/8/94 which still has not been disposed of. Even considering complexity of case, and excuses, impediments and substitution of judges of the Supreme Court of Justice, the 2 years that have elapsed since the application was admitted is not reasonable and a breach of art8(1).”).

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385.  The meaning of “legal prejudice” in the Trial Judgement is not clear. In any event, the Appeals Chamber clarifies that any form of prejudice that a party allegedly suffered as a result of undue delay ought to be considered. The Appeals Chamber finds that the Trial Chamber’s failure to expressly address the entirety of the co‑Accused’s arguments[1] and conduct a comprehensive assessment of their alleged prejudice in the Trial Judgement infringed the co‑Accused’s rights to a reasoned opinion under Article 22 of the Statute and Rule 88(C) of the Rules.

[…]

388.  However, the Appeals Chamber recalls its finding that the present proceedings were unduly delayed as a result of the Prosecution’s conduct and the Trial Chamber judges’ simultaneous assignment to multiple proceedings, delays which are not attributable to the co-Accused.[2] These delays prolonged the detention of the co‑Accused. The Appeals Chamber finds that these delays and the resulting prolonged detention constitute prejudice per se and that the Trial Chamber erred in concluding that the co‑Accused did not suffer prejudice.[3]

[1] The Appeals Chamber observes that Nyiramasuhuko and Ntahobali raised lengthy arguments regarding their prejudice that the Trial Chamber did not address in the 20 February 2004 Decision and 26 November 2008 Decision. See Nyiramasuhuko Appeal Brief, paras. 59-64, referring to 24 June 2003 Motion, paras. 164-190, 20 February 2004 Decision, para. 16; Ntahobali Appeal Brief, para. 4, referring to22 August 2008 Motion, paras. 53, 120, 134-136, 145‑152, 182, 183, 26 November 2008 Decision, paras. 54, 55, 59-61.

[2] See supra, para. 378.

[3] Cf. Gatete Appeal Judgement, paras. 44, 45.

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108. As to whether the joinder created undue delay and thus required the severance of the cases, the Appeals Chamber finds no error in the Trial Chamber’s finding that the fact that a joint trial might last longer than that of a single accused does not necessarily encroach the co‑accused’s right to be tried without undue delay.[1] The Appeals Chamber recalls that Article 20(4)(c) of the Statute makes clear that the right to be tried without undue delay does not protect against any delay in the proceedings; it protects against undue delay.[2] […] The Appeals Chamber finds that, although the joinder added some degree of complexity to the proceedings, the mere allegation that separate trials would have proceeded faster is insufficient to substantiate a claim that undue delay occurred as a result of the joinder and that it was unreasonable for the Trial Chamber to deny the severance of Nyiramasuhuko’s case.[3]

See also para. 365.

[1] See 7 April 2006 Decision, para. 75.

[2] Prosecutor v. Sefer Halilović, Case No. IT-01-48-A, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, 27 October 2006 (“Halilović Appeal Decision”), para. 17. See also Ndindiliyimana et al. Appeal Judgement, para. 43; Mugenzi and Mugiraneza Appeal Judgement, para. 30; Gatete Appeal Judgement, para. 18; Renzaho Appeal Judgement, para. 238; Nahimana et al. Appeal Judgement, para. 1074.

[3] Gotovina Appeal Decision on Joinder [Prosecutor v. Ante Gotovina et al., Cases Nos. IT-01-45-AR73.1, IT‑03-73-AR73.1, IT-03-73-AR73.2, Decision on Interlocutory Appeals Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 44. See also Neumeister v. Austria, European Court of Human Rights, No. 1936/63, Judgment, 27 June 1968 (“ECHR Neumeister Judgment”), para. 21 (“[t]he course of the investigation would probably have been accelerated had the Applicant’s case been severed from those of his co-accused, but nothing suggests that such a severance would here have been compatible with the good administration of justice”.).

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359. Turning to the merits of the submissions before it, the Appeals Chamber recalls that, as previously held, the length of an accused’s detention does not in itself constitute undue delay, and the fact that the co-Appellants had been detained for many years at the time of the issuance of the Trial Judgement is insufficient, in itself, to show that the Trial Chamber erred in its determination that there was no undue delay in the proceedings.[1] Because of the Tribunal’s mandate and of the inherent complexity of the cases before it, it is not unreasonable to expect that the judicial process will not always be as expeditious as before domestic courts.[2]

360.  It is well established in the Tribunal’s jurisprudence that the complexity of a case is one of the factors to be taken into account when assessing whether undue delay has occurred.[3] A number of factors are relevant to determining the level of complexity of a particular case, including the number of counts, the number of accused, the number of witnesses, the quantity of evidence, and the complexity of the facts and of the law.[4]

[1] See Ntabakuze Appeal Judgement, para. 20.

[2] Nahimana et al. Appeal Judgement, para. 1076. See also Mugenzi and Mugiraneza Appeal Judgement, para. 32.

[3] Cf. Mugenzi and Mugiraneza Appeal Judgement, para. 30; Gatete Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 1074.

[4] Cf. Renzaho Appeal Judgement, para. 238; Nahimana et al. Appeal Judgement, para. 1074. See also Rwamakuba Appeal Decision, para. 13.

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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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