Violation of right to a fair trial

Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

130. Further, the Appeals Chamber recalls that “[w]here a party alleges on appeal that the right to a fair trial has been infringed, it must prove that the violation caused such prejudice to it as to amount to an error of law invalidating the judgement”.[1] Thus, the element of prejudice forms an essential aspect of proof required of an appellant in relation to the appeal alleging a violation of his fair trial rights. […].

[1] Galić Appeal Judgement, para. 21; Kordić and Čerkez Appeal Judgement, para. 119.

Download full document
Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

625. No precedent in the international context was cited in relation to the specific issue raised by this ground of appeal, and none has been discovered by the Appeals Chamber’s own research.  Guidance as to the legal principles relevant to an allegation that a trial judge was not always fully conscious of the trial proceedings may therefore be sought from the jurisprudence and experience of national legal systems.  The national jurisprudence considered by the Appeals Chamber discloses that proof that a judge slept through, or was otherwise not completely attentive to, part of proceedings is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to a such degree as to give rise to a right to a new trial or other adequate remedy.[1]  The parties essentially agreed that these are the principles which apply to the issue before the Appeals Chamber.[2]

626. The jurisprudence of national jurisdictions indicates that it must be proved by clear evidence that the judge was actually asleep or otherwise not fully conscious of the proceedings, rather than that he or she merely gave the appearance of being asleep.[3]  […]

[…]

630. […] As stated earlier, the national jurisprudence indicates that, before a remedy will be granted on the basis that a judge has been asleep or otherwise inattentive, it must be proved that some identifiable prejudice was caused thereby to the complaining party.[4]  In some continental systems where the sleeping or inattention of a judge may form the basis for a ground of appeal or revision of a judgement – for example, because the court was thereby not properly constituted[5] – no separate reference is made to the necessity to demonstrate prejudice before such a ground would succeed.  However, in order to establish a violation in those cases, a party must prove that the judge in question was unable to perceive “essential” or “crucial” events in the hearing.[6]  If such a standard of judicial inattention has been proved, some actual prejudice must necessarily have been incurred, or at least the proceedings must necessarily have been defective in a material way.  The complaining party must prove the relevant prejudice by clear evidence.[7]  Indeed, it has been held that to grant a new trial on the basis of the inattention of a juror without clear proof of any prejudice caused thereby constitutes “a clear abuse of discretion”.[8]

631. The prejudice which must be proved may be manifested where the judge fails in some identifiable way to assess the evidence properly or expresses an incorrect understanding of the evidence which was given or the submissions which were put.[9]  Elsewhere, it has been held that what must be proved is that the judge is completely inattentive to such a substantial or significant part of the proceedings that there has been a “significant defect” in the proceedings.[10]  The failure of counsel to object or to call attention to a judge’s sleeping or inattention during the proceedings is relevant to the question as to whether prejudice has been established.  Failure of counsel to object will usually indicate that counsel formed the view at the time that the matters to which the judge was inattentive were not of such significance to his case that the proceedings could not continue without attention being called thereto.[11]

632. The necessity that an appellant establish that some prejudice has actually been caused by a judge’s inattention before a remedy will be granted is simply a matter of common sense.  It is clear that there are a number of legitimate reasons why a judge’s attention may briefly be drawn away from the court proceedings before him or her, including taking a note of the evidence or of a particular submission or looking up the transcript to check evidence previously given.  It has been recognised in national jurisprudence that instances of inattention of that nature do not cause prejudice or undermine the fairness of the trial, but are an integral part of a judge’s task in assessing the case before him or her.[12]

633. Moreover, where a judge of this Tribunal misses any evidence, there is not only a transcript to be read but also a video-tape to be viewed if the demeanour of the witness needs to be checked, and there are the observations of the other two judges to assist.  Indeed, for these reasons it has been recognised in the Rules of Procedure and Evidence of the Tribunal that the short absence of a judge from trial proceedings need not necessarily prevent the continuation of the proceedings in the presence of the remaining two judges.  Rule 15bis(A) states: 

If (i) a Judge is, for illness or other urgent personal reasons, or for reasons of authorised Tribunal business unable to continue sitting in a part-heard case for a period which is likely to be of short duration, and (ii) the remaining Judges of the Trial Chamber are satisfied that it is in the interests of justice to do so, those remaining Judges of the Chamber may order that the hearing of the case continue in the absence of that Judge for a period of not more than three days.

Although this rule was not in force at the time of the Čelebići trial proceedings,[13] the fact of its adoption is a clear demonstration that the judges of the Tribunal meeting in plenary considered it to be consistent with the principles of a fair trial and with the Statute of the Tribunal to permit proceedings to be conducted in the temporary absence of one judge.

[…]

637. Reliance was also placed by Landžo on the principle that there must be the appearance of a fair trial,[14] with the implication that even proof of an appearance that a judge was sleeping during proceedings is an adequate foundation for relief without proof of prejudice. […]

638. […] The Appeals Chamber does not accept that this was the correct approach.  In relation generally to the right to a fair trial under Article 6 of the European Convention on Human Rights, the European Court of Human Rights has held that, despite

[…] the importance of appearances in the administration of justice, […] the standpoint of the persons concerned is not in itself decisive.  The misgivings of the individuals before the courts, for instance with regard to the fairness of the proceedings, must in addition be capable of being held to be objectively justified […].[15]

See also paragraphs 640-649.

 

[1]    Cases relating to jurors alleged to have been asleep during a trial are included in the present consideration.

[2]    [Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A (“Čelebići Case”), Supplemental Brief of the Appellant, Esad Landžo, in Support of the Fourth Ground of Appeal (Sleeping Judge), 7 December 1999], pp 7-8; [Čelebići Case, Respondent’s Brief of the Prosecution in Relation to Esad Landžo’s Fourth Ground of Appeal, 28 Jan 2000], para 3.3.

[3]    R v Caley [1997] WCBJ 1714 (British Columbia Supreme Court), at para 25 (to grant relief on the basis of the inattention of the judge there must be “clear and overwhelming evidence”); Sanborn v Commonwealth 975 SW 2d 905 (1998), at 911 (Supreme Court of Kentucky); Commonwealth v Keaton, 36 Mass App Ct 81 (1994), at 87; Bundesgerichtshof, Vol 11, p 74, Judgement of 22 November 1957 (German Federal Supreme Court of Justice); Bundesverwaltungsgericht, Judgement of Supreme Administrative Court, 24 Jan 1986 at para 12; [1986] Neue Juristiche Wochenschrift 2721, at 2721; Illinois v McCraven 97 Ill App 3d 1075 (1981) (Appellate Court of Illinois), at 1076; People v Thurmond 175 Cal App 3d 865 (1985) (Court of Appeal, 2d District), at 874; Commonwealth Bank of Australia v Falzon [1998] VSCA 79, para 10 (Supreme Court of Victoria, Court of Appeal).

[4]    R v Moringiello [1997] Crim LR 902; R v Edworthy [1961] Crim LR 325; R v Tancred 14 April 1997, Court of Appeal (Criminal Division); Kozlowski v City of Chicago 13 Ill App 513 (the fact that a juror fell asleep during proceedings, absent an affirmative showing of prejudice to the complainant, is not a ground for a new trial); State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio) (must be a showing of “material prejudice”).

[5]    See, in Germany, the Strafprozeßordnung, which provides by Article 338 (1) that an absolute ground for revision of a judgement is that the trial court was not constituted as provided.  Article 338 (1) may be violated where a judge or lay assessor is asleep or otherwise “absent”.

[6]    Bundesverwaltungsgericht (Supreme Administrative Court) Judgement of 24 January 1986, [1986] Neue Juristiche Wochenschrift 2721, at 2721; Bundesgerichtshof (Federal Supreme Court of Justice) Vol 2, p 14, Judgement of 23 November 1951.

[7]    State of Ohio v Dean, Ohio App Lexis 3873, Judgement of 20 Sept 1988 (Court of Appeals of Ohio); United States of America v White and Keno 589 F 2d 1283 (1979) (Court of Appeals, 5th Circuit), at 1289.

[8]    Ferman v Estwing Manufacturing Company, 31 Ill App 3d 229, at 233.

[9]    See, e.g., Espinoza v The State of Texas, Tex App Lexis 5343, Judgement of 21 July 1999.

[10]   Stathooles v Mount Isa Mines Ltd [1997] 2 Qd R 106 (Queensland Court of Appeal), at 113.

[11]   The Chicago City Railway Company v John Anderson 193 Ill 9 (1901), at 13.

[12]   Bundesgerichtshof (Federal Supreme Court of Justice) Vol 11 p 74, 22 November 1957, at 77:  “There are numerous matters of behaviour and other circumstances by which a judge may give the impression to participants, especially to a defendant who is a layman in law, that he did not pay attention to a part of the events of the proceedings.  Such an impression can even be made by actions to which the judge is legally obliged [sic]”.

[13]   It was adopted at the Twenty-first Plenary Session, 15-17 Nov 1999, (Revision 17 of the Rules) and entered into force on 7 Dec 1999.  The words “or for reasons of authorised Tribunal business” were inserted by Revision 19 of the Rules, with effect from 19 Jan 2001.

[14]   Appeal Transcript, p 692.

[15]   Kraska v Switzerland, Case No 90/1991/342/415, Judgement of 19 April 1993, para 32.

Download full document
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

35. The Appeals Chamber recalls that Article 21(4)(d) of the ICTY Statute guarantees the fundamental right of an accused to be tried in his presence. This right is not absolute, however, and may be subject to limitations.[1] As with other qualified statutory rights of an accused, including the right to be self-represented, any limitation on the right of the accused to be tried in his presence must serve a sufficiently important aim that is compatible with the ICTY Statute and must not impair the right more than necessary to accomplish such aim.[2]

[…] 

37. […] In view of the above, the Appeals Chamber finds no error in the Trial Chamber’s consideration that conducting the site visits in Sarajevo and Srebrenica in the presence of Karadžić would inevitably pose a considerable security risk for Karadžić as well as the other participants in the site visit delegations.[3] The Appeals Chamber therefore finds that the Trial Chamber’s decision to conduct the site visits without Karadžić being present served the sufficiently important aim of ensuring its ability to perform its functions in the given circumstances and did not impair his right more than necessary to accomplish it.[4]

[…]

39. The Appeals Chamber finds that the minutes of the site visits therefore reveal the exchange of submissions between the parties and the Trial Chamber’s interactions with various persons at some of the sites. The minutes also confirm that, although the impugned decisions indicated that the purpose of the site visits was not to gather evidence or hear submissions but to enable the Trial Chamber to familiarize itself with the locations referred to in the Indictment, the conduct during the visits did not comply with the limitations imposed by the Trial Chamber. Consequently, the Appeals Chamber finds that the two site visits formed part of the trial proceedings,[5] and that, in light of the conduct during them, the site visits violated Karadžić’s right to be tried in his presence. The Appeals Chamber will proceed to examine whether Karadžić suffered prejudice as a result of this violation.

40.  […] Although Karadžić submits that “[t]he observations made during the site visit undoubtedly affected the Trial Chamber’s overall assessment of the events, and its findings in the judgement”,[6] he does not point to any concrete disadvantage or prejudice suffered as a result of the site visits having been conducted in his absence.[7]

41. The Appeals Chamber reiterates that any violation of the right to a fair trial of an accused requires a remedy.[8] The nature and form of the effective remedy should be proportional to the gravity of the harm suffered.[9] The Appeals Chamber also recalls that, in situations where a violation of the accused’s fair trial rights has not materially prejudiced the accused, a formal recognition of the violation may be considered an effective remedy.[10] For the reasons set out above, the Appeals Chamber considers that its recognition of the violation of Karadžić’s right to be present during the site visits constitutes an effective remedy.

[1] [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. Decision of 5 October 2007”)], para. 11; [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 (“Milošević Decision of 1 November 2004”)], paras. 12, 13.

[2] Karemera et al. Decision of 5 October 2007, para. 11, referring to [Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-AR73, Decision on Interlocutory Appeal, 30 October 2006], para. 14. See also Milošević Decision of 1 November 2004, paras. 17, 18. Cf. [Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-AR65, Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003], para. 13.

[3] Cf. Prosecutor v. Stanislav Galić, Case No. IT-98-29-T, Decision on Prosecution’s Motion for the Trial Chamber to Travel to Sarajevo, 4 February 2003 (“Galić Decision of 4 February 2003”), paras. 12, 13.

[4] The Appeals Chamber notes that Karadžić submitted to the Trial Chamber that he believed that “a site visit would be beneficial” and that the Trial Chamber, having considered the matter, decided that the site visit would assist its determination of the charges in the Indictment. See [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Order on Submissions for a Site Visit, 15 November 2010], paras. 2, 5; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Site Visit, 28 January 2011], paras. 1, 2, 4, 5, 11; [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on Second Site Visit, 10 February 2012], para. 2.

[5] See also Galić Decision of 4 February 2003, para. 15.

[6] Karadžić Appeal Brief, para. 30.

[7] The Appeals Chamber also considers that Karadžić’s reliance on non-binding and distinguishable domestic authorities in support of his submissions does not demonstrate error by the Trial Chamber.

[8] Nyiramasuhuko et al. Appeal Judgement, para. 42; André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007 (“Rwamakuba Decision of 13 September 2007”), para. 24. See also Kajelijeli Appeal Judgement, para. 255.

[9] Nyiramasuhuko et al. Appeal Judgement, para. 42, n. 120 and reference cited therein.

[10] Nyiramasuhuko et al. Appeal Judgement, para. 42 and references cited therein.

Download full document
ICTY Statute Article 21(4)
Notion(s) Filing Case
Appeal Judgement - 19.03.2019 KARADŽIĆ Radovan
(MICT-13-55-A)

449. The Appeals Chamber recalls that under Article 21(4)(e) of the ICTY Statute an accused has the right to examine, or have examined, the witnesses against him. In relation to challenges to a trial chamber’s reliance on evidence admitted pursuant to Rule 92 bis of the ICTY Rules when the defendants did not have an opportunity to cross-examine the witness, the Appeals Chamber of the ICTY stated:

[A] conviction may not rest solely, or in a decisive manner, on the evidence of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial. This principle applies “to any fact which is indispensable for a conviction”, meaning “the findings that a trier of fact has to reach beyond reasonable doubt”. It is considered to “run counter to the principles of fairness […] to allow a conviction based on evidence of this kind without sufficient corroboration”.[1]

The Appeals Chamber adopts this statement of the law.

[…]

458. […] The Appeals Chamber recalls that the principle that no conviction can rest solely or decisively on untested evidence without sufficient corroboration stems from the fundamental right of the accused to examine, or have examined, the witnesses against him, which is enshrined in Article 21(4)(e) of the ICTY Statute.[2] As Karadžić alleges a violation of his fair trial rights, he must demonstrate that such a violation occurred and show that it caused prejudice amounting to an error of law invalidating the trial judgement.[3]

See also paras. 460 to 473.

474. […] [T]he Appeals Chamber finds, Judges Joensen and de Prada dissenting, that Karadžić has established that the Trial Chamber violated his fundamental right to examine, or have examined, the witnesses against him under Article 21(4)(e) of the ICTY Statute by convicting him after having impermissibly relied solely or decisively on untested evidence in reaching findings in relation to Scheduled Incidents C.27.5, B.20.4, and E.11.1 as well as Scheduled Incident B.13.1 with respect to the killing of one detainee in Kula prison and Scheduled Incident C.22.5 in relation to the mistreatment of two Muslim men at the Magarice military facility. The Appeals Chamber finds that such violations prevented Karadžić from testing evidence related to these specific events which the Trial Chamber relied upon in convicting him. This has resulted in material prejudice invalidating the judgement to the extent that his convictions are based upon these findings. The Appeals Chamber, Judges Joensen and de Prada dissenting, considers that the only appropriate remedy is to set aside, in part, Karadžić’s convictions to the extent they rely on these findings. The impact, if any, such errors may have had on Karadžić’s sentence will be evaluated below.

See also paras. 475, 776, 777.

[1] Popović et al. Appeal Judgement, para. 96 (internal references omitted). See also Prlić et al. Appeal Judgement, para. 137; Martić Appeal Judgement, para. 192, n. 486.

[2] See Đorđević Appeal Judgement, para. 807; [Prosecutor v. Jadranko Prlić, Bruno Stojić, Slobodan Praljak, Milivoj Petković, Valentin Ćorić, and Berislav Pušić, Case No. IT-04-74-AR73.6, Decision on Appeals Against Decision Admitting Transcript of Jadranko Prlić’s Questioning into Evidence, 23 November 2007], para. 59.

[3] Šainović et al. Appeal Judgement, para. 29; Nyiramasuhuko et al. Appeal Judgement, para. 346.

Download full document
ICTY Statute Article 21(4)(e) ICTY Rule Rule 92bis