Rule 15bis

Notion(s) Filing Case
Decision on Continuation of Proceedings - 06.06.2014 ŠEŠELJ Vojislav
(IT-03-67-AR15bis)

20. […] [T]he Rules do not explicitly regulate whether proceedings may be continued with a substitute Judge following the disqualification of a Judge at a more advanced stage, namely the deliberations stage. The Appeals Chamber observes that the guarantees provided for in Rules 15bis(C) and 15bis(D) of the Rules have been consistently applied or referred to in the present situation.[1]  The Appeals Chamber considers that these Rules are designed to ensure that an accused’s right to a fair trial is sufficiently safeguarded, and that the fair trial guarantees provided for in these Rules apply mutatis mutandis to the present situation. Under Rule 15bis(D) of the Rules, when a decision is taken to continue the proceedings with a substitute Judge even though the accused has withheld his consent, such a decision “is subject to appeal directly to a full bench of the Appeals Chamber by either party”.

21. Therefore, for the purposes of the admissibility of the Appeal, and in light of the spirit of these Rules, the Appeals Chamber considers that the same protection as that provided for by Rule 15bis(D) of the Rules should apply in the present case. The Appeals Chamber further observes that the interests of neither Šešelj nor the Prosecution are prejudiced by the adjudication of this Appeal.

22. In these particular circumstances, the Appeals Chamber holds that the Impugned Decision is subject to appeal directly to a full bench of the Appeals Chamber.

[…]

35.  […] [T]he Appeals Chamber recalls that a decision to continue the proceedings with a substitute Judge is a discretionary decision to which the Appeals Chamber owes deference:

The discretion of the Trial Chamber meant that the Trial Chamber had the right to establish the precise point within a margin of appreciation at which a continuation [of the proceedings] should be ordered. In that decision-making process, the Appeals Chamber can intervene only in limited circumstances, as, for example, where it is of the view that there was a failure to exercise the discretion, or that the Trial Chamber failed to take into account a material consideration or took into account an immaterial one and that the substance of its decision has in consequence been affected. It is not enough that the Appeals Chamber would have exercised the discretion differently. However, even if a trial court has not otherwise erred, the appellate “court must, if necessary, examine anew the relevant facts and circumstances to exercise a discretion by way of review if it thinks that the [Judges’] ruling may have resulted in injustice to the [appellant]”.[2]

36. In reaching its decision, the Trial Chamber must determine whether, taking all the circumstances into account, the continuation of proceedings would serve the interests of justice.[3] The parties “bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice”,[4] and accordingly taking into account whether a party has discharged this burden would be an immaterial consideration constituting an error.[5] Other errors previously identified by the Appeals Chamber include requiring the substitute Judge to evaluate whether the record itself – including the availability of video- or audio-recording – is compatible with the requirements of a fair trial.[6]

37.  The Appeals Chamber further recalls that:

There is a preference for live testimony to be heard by each and every judge. But that does not represent an unbending requirement. The Rules and the cases show that exceptions can be made. The exceptions may relate even to evidence involving an assessment of demeanour, various ways being available to assist a new judge to overcome any disadvantages.[7]

In light of the discretion inherent in a decision to continue proceedings with a substitute Judge, the Appeals Chamber has “not consider[ed] it useful to lay down a hard and fast relationship between the proportion of witnesses who have already testified and the exercise of the power to order a continuation of the trial with a substitute judge”, as “[t]he stage reached in each case need not always be the same”.[8]

[…]

41. The Appeals Chamber therefore considers that neither the Statute nor the Rules prevented the Trial Chamber from exercising its discretion to determine, within the circumstances of the particular case before it, whether it would serve the interests of justice to continue the proceedings with a substitute Judge. […]

[…]

44. […] [T]he Appeals Chamber recalls that the need for a substitute Judge to certify his or her familiarity with the record is among the “safeguards ensur[ing] that fair trial rights are not compromised”.[9] Moreover, the Appeals Chamber has previously confirmed that proceedings could continue even in the absence of video-recordings of previous testimony for the substitute Judge to review.[10] […] With regard to the possibility of recalling witnesses, this too has been previously treated by the Appeals Chamber as being a material consideration to be taken into account.[11]

[1] See Order of 3 September 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Following Decision of the Panel to Disqualify Judge Frederik Harhoff, 3 September 2013 (“Order of 3 September 2013”)], p. 2. (stating that “the interests of fairness and transparency” warrant the application of Rules 15bis(C) and 15bis(D) of the Rules mutatis mutandis to the present case); Order of 31 October 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Order Assigning a Judge Pursuant to Rule 15, 31 October 2013 (“Order of 31 October 2013”)], p. 2; Decision of 13 November 2013 [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision Inviting the Parties to Make Submissions on Continuation of Proceedings, 13 November 2013 (English translation filed on 18 November 2013) (“Decision of 13 November 2013”)], p. 3. (providing Šešelj with an opportunity to withhold his consent to the continuation of proceedings); Impugned Decision [See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Decision on Continuation of Proceedings (rendered in French on 13 December 2013, and filed in English and BCS on 23 December 2013) “Impugned Decision”], Separate Opinion of Judge Mandiaye Niang, paras 7-10, 12-14 (emphasizing that the two remaining Judges of the Trial Chamber were unanimous that the proceedings should be continued in the interests of justice); Impugned Decision, para. 51 and p. 22 (indicating that the newly appointed Judge must first become familiar with the proceedings and declare his familiarity with the record, before the proceedings continue); Motion [Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-T, Appeal of Professor Vojislav Šešelj Against the Decision of Trial Chamber III on Continuation of Proceedings Dated 13 December 2013”, filed on 30 December 2013 (“Motion”)], para. 5 (disputing the general applicability of Rule 15bis of the Rules, but in an appeal filed directly before the Appeals Chamber as would have been provided for in Rule 15bis(D) of the Rules); Response [Response to Appeal Against Decision on Continuation of the Proceedings, 20 January 2014 (“Response”)]., paras 3, 11 (referring twice to the Impugned Decision as comporting with “the object and purpose of Rule 15bis of the Rules”).

[2] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis(D), 24 September 2003 (“Nyiramasuhuko et al. Decision of 24 September 2003”), para. 23. See also The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.3, Decision on Appeals Pursuant to Rule 15bis (D), 20 April 2007 (“Karemera et al. Decision of 20 April 2007”), para. 19.

[3] The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Reasons for Decision on Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, 22 October 2004 (“Karemera et al. Reasons filed on 22 October 2004”), paras 52, 54. Judge Shahabuddeen and Judge Schomburg each provided a declaration in relation to this matter. See Karemera et al. Reasons filed on 22 October 2004, Declaration of Judge Shahabuddeen (“Karemera et al. Declaration of 22 October 2004”); The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-AR15bis.2, Declaration of Judge Schomburg in Relation to Reasons for Decision of Interlocutory Appeals Regarding the Continuation of Proceedings with a Substitute Judge and on Nzirorera’s Motion for Leave to Consider New Material, dated 23 October 2004 (“Karemera et al. Declaration dated 23 October 2004”).

[4] Karemera et al. Reasons filed on 22 October 2004, paras 52, 54.

[5] Karemera et al. Reasons filed on 22 October 2004, paras 52, 54.

[6] Karemera et al. Reasons filed on 22 October 2004, para. 58 (“[T]he remaining Judges erred in considering that the substitute Judge should evaluate the ‘compatibility’ of fair trial requirements with the fact that he or she is to acquaint himself or herself with the testimonies from the transcript and audio-recordings. This observation is incorrect because […] the substitute Judge is to ‘familiarise’ himself or herself with ‘the record’ of the proceedings, whatever that record may contain. In any event, this is done after the [decision] to continue the trial with a substitute Judge. Therefore, any evaluation of the record by the substitute Judge could have no effect on the decision to continue the trial.”). The Appeals Chamber observes that this standard is not clearly reflected in the Nyiramasuhuko et al. case, in which it was considered that “the adequacy of the record of proceedings is a matter for the substitute judge to pass on” and that if the substitute Judge does not feel adequately acquainted with the proceedings, then he or she “will not give the required certificate”. Nyiramasuhuko et al. Decision of 24 September 2003, para. 33. Given that this issue is not material to the resolution of the present Motion, the Appeals Chamber will not address it further. See also Karemera et al. Reasons filed on 22 October 2004, paras 59, 61 (finding “the fact that the testimonies were given in a language not understood by the Bench” to be an immaterial consideration that should not have been taken into account).

[7] Karemera et al. Decision of 20 April 2007, para. 42; Nyiramasuhuko et al. Decision of 24 September 2003, para. 25.

[8] Nyiramasuhuko et al. Decision of 24 September 2003, para. 27.

[9] Karemera et al. Decision of 20 April 2007, para. 43. See also Nyiramasuhuko et al. Decision of 24 September 2003, para. 33.

[10] See Nyiramasuhuko et al. Decision of 24 September 2003, paras 29-35, 37-38.

[11] See Nyiramasuhuko et al. Decision of 24 September 2003, paras 34-35, 37-38.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

49. Rule 15bis(D) of the Rules explicitly prescribes that the “remaining Judges” may decide to continue the proceedings. The Appeals Chamber noted this in the Butare case: “The new Rule 15bis(D) gives judicial power to the two remaining judges, namely, the power to decide whether or not it is in the interests of justice to continue a part-heard case with a substitute judge.”[1] The fact that the remaining Judges have ad litem rather than permanent status does not change anything under Rule 15bis(D). Article 12quater of the Statute unequivocally provides that ad litem Judges enjoy the same powers as the permanent Judges of the Tribunal, except in expressly delimited circumstances which do not include the power to decide to continue the proceedings under Rule 15bis(D).[2] Accordingly, on 21 June 2004, the Appeals Chamber directed the remaining Judges in the case to re-consider their decision to continue the proceedings with a substitute Judge after giving the parties an opportunity to be heard and taking account of their submissions.[3]

50. The Appeals Chamber finds that the remaining Judges were competent to render the Impugned Decision. […]

[1] Butare Appeal Decision [Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-98-42-A15bis, Decision in the Matter of Proceedings under Rule 15bis (D), 24 September 2003], para. 11 (emphasis added).

[2] Article 12quater of the Statute provides in relevant parts:

1. During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall:

(b) Enjoy, subject to paragraph 2 below, the same powers as the permanent judges of the International Tribunal for Rwanda;

2. During the period in which they are appointed to serve in the International Tribunal for Rwanda, ad litem judges shall not:

(b) Have power:

(i) To adopt rules of procedure and evidence pursuant to article 14 of the present Statute. They shall, however, be consulted before the adoption of those rules;

(ii) To review an indictment pursuant to article 18 of the present Statute;

(iii) To consult with the President of the International Tribunal for Rwanda in relation to the assignment of judges pursuant to article 13 of the present Statute or in relation to a pardon or commutation of sentence pursuant to article 27 of the present Statute;

(iv) To adjudicate in pre-trial proceedings.

See also Karemera and Nzirorera v. Prosecutor, Case No. ICTR-98-44-AR73.4, Decision on Interlocutory Appeals regarding Participation of Ad Litem Judges, 11 June 2004, p. 3 (“[P]ursuant to Article 12 quater of the Statute of the International Tribunal, ad litem judges enjoy the same powers as the permanent judges of the International Tribunal, with the exception of the right to review an indictment, the right to adjudicate in pre-trial proceedings and other administrative matters specifically enumerated in paragraph 2 of Article 12 quater of the Statute of the International Tribunal.”).

[3] Decision in the Matter of Proceedings under Rule 15bis(D) [21 June 2004], para. 13.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Substitute Judge and New Material - 22.10.2004 KAREMERA et al.
(ICTR-98-44-AR15bis.2)

52. … In the circumstances to which Rule 15bis(D) is addressed, it is not for a party to move the court, rather, the Rule allows the remaining Judges to take the initiative and act in their discretion, namely, decide to continue the proceedings with a substitute Judge if, taking all the circumstances into account, they unanimously determine that doing so would serve the interests of justice. The parties have a right to be heard before the decision is made, but they bear no burden of proving that continuing or not continuing the proceedings would better serve the interests of justice. Accordingly, it would constitute an error on the part of the remaining Judges to take into account that Defence submissions have not demonstrated that re-starting the trial would serve the interests of justice.
54. The issue under Rule 15bis(D) is whether taking all the circumstances into account, the Judges find that continuing the trial would serve the interests of justice. In answering this question, the Judges are to assess the totality of the circumstances rather than whether a party has demonstrated that continuing or re-starting the trial would better serve the interests of justice. In the view of the Appeals Chamber, although the remaining Judges noted that the Defence had not demonstrated certain facts, they did not base their findings on this observation, which would be an immaterial consideration, but, rather, they based them on the assessment of the underlying circumstances, which was material for their decision. Consequently, the Appeals Chamber finds that the remaining Judges did not abuse their discretion by taking into account an immaterial consideration, namely whether the Defence met a certain burden, and dismisses the Appeals on this point.

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ICTR Rule Rule 15 bis ICTY Rule Rule 15 bis
Notion(s) Filing Case
Decision on Extension of Mandate - 15.09.2006 KRAJIŠNIK Momčilo
(IT-00-39-AR73.2)

24.     Rule 15bis procedures are also inapplicable to the present circumstances, since they only apply when a Judge is unable to continue sitting in a part-heard case. In the present case and as explained above,[1] Judge Canivell has been explicitly and lawfully authorized to continue sitting in the case until the end of the trial. Consequently, the Appellant’s argument that he had a “legitimate expectation that Rule 15bis would be followed” and that the “Trial Chamber erred in neglecting to consider this fundamental principle of legal certainty”[2] is without merit.

[1] See supra, paras 4-6 [not reproduced here] and 16-19 [reproduced in this summary, except para. 19, which simply states the conclusion].

[2] Reply, paras 7-12.

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ICTR Rule Rule 15bis ICTY Rule Rule 15bis