DISSENTING OPINION OF JUDGE DAVID HUNT

Background to the appeal

1.         The five appellants (Arsène Shalom Ntahobali, Pauline Nyiramasuhukuo, Alphonse Nteziryayo, Joseph Kanyabashi and Elie Ndayambaje), together with a sixth accused (Sylvain Nsabimana), have been standing trial before Trial Chamber II in the Rwanda Tribunal since 12 June 2001.  The judges assigned to Trial Chamber for that purpose were Judges Sekule, Maqutu and Ramaroson.

2.         Trial Chamber II was hearing this case contemporaneously with two other cases, for reasons which are not immediately apparent.  The mandate (or term of office) of all three judges was due to conclude on 24 May of this year.  At the election of judges for a new mandate, conducted by the UN General Assembly on 31 January of this year, Judge Maqutu was not re‑elected.  In March, Judge Pillay (then the President of the Rwanda Tribunal) requested the UN Secretary-General to seek from the UN Security Council an extension of Judge Muqutu’s mandate to enable him to conclude all three cases he was hearing.  On 19 May, the Security Council passed a resolution extending Judge Maqutu’s mandate in relation to the other two cases but not in relation to this case.  His mandate in relation to this case accordingly expired on 24 May.

3.         As at 24 May, the only provisions in the Rules of Procedure and Evidence (“Rules”) dealing with the inability of a judge to take part in a hearing were to be found in Rule 15bis (“Absence of a Judge”):

4.         On 27 May, the judges of the Rwanda Tribunal amended the Rule, so that the existing par (C) was replaced by new paragraphs (C), (D) and (E), in the following terms:

The existing par (D) was redesignated as par (F).

5.         On 28 May, Judge Møse (who had become the President of the Tribunal) authorised the two remaining members of the Trial Chamber to conduct routine matters in accordance with the Rule.  That power was given to the President both by the Rule as it stood on 24 May (in par (D)) and thereafter (in par F)).  The President then wrote to the parties asking whether, in the light of the events which had occurred, they would consent to the continuation of the trial with another judge being substituted for Judge Maqutu.  Such consent would have been sufficient to enable the President to assign another judge pursuant to the new par (C), and the absence of consent would have been relevant to the determination to be made pursuant to the new par (D) as to whether the continuation of the trial with a substituted judge would serve the interests of justice.  Both Sylvain Nsabimana and the prosecution consented, but all five appellants opposed the continuation of the trial.  Two of the appellants filed motions by which they sought, inter alia, a ruling as to whether the two remaining judges had “jurisdiction” to determine whether the amended Rule 15bis rather than the Rule as it existed on 24 May was applicable in the circumstances of this case.

6.         The two remaining judges of the Trial Chamber invited submissions from the parties both as to whether the amended Rule applied and, if so, as to whether the interests of justice would be served by continuing the trial with a substituted judge.  They subsequently concluded that the amended Rule applied, and that the interests of justice would be so served.[1]  The appellants then appealed.[2]  They argue that the two remaining judges of the Trial Chamber erred:

There are various subsidiary issues raised by the appellants, and these can be dealt with when considering these three principal issues.

The power of the two remaining judges to rule that they had power to determine whether the amended Rule was applicable

7.         The appellants argue that Rule 15bis in the form in which it stood as at 24 May 2003 (when Judge Maqutu’s mandate in relation to this case expired) is the only relevant source of power for the two remaining judges of the Trial Chamber to determine any issue in the case, and that the extent of those powers depend upon other determinations made by the President of the Tribunal.  They submit that Rule 15bis does not permit the two remaining judges to determine whether the amended Rule was applicable to this case, which is not a “routine matter” covered by the Rule, and which could only have been determined by a Trial Chamber “legally constituted to that effect”.[4]

8.         The Trial Chamber rejected the argument that the issue as to whether the amended Rule was applicable to the present case was separate from the issue as to whether the interests of justice would be served by continuing this trial with a new judge as a result of the expiration of Judge Maqutu’s mandate.[5]  This was correct.  The interpretation of, for example, a rule relating to the admissibility of evidence is not separate from the application of that rule to the determination of the admissibility of the evidence in question.  In the present case, the two remaining judges were obliged to determine which version of Rule 15bis was applicable to the situation in which they found themselves after 27 May before they could act under either version.  The issue as to whether the amended Rule was applicable was necessarily incidental to their task under Rule 15bis.  The arguments of the appellants to the contrary are rejected.

9.         It has also been submitted that Rule 15bis was amended by the judges (including the two remaining judges of this Trial Chamber) in order to resolve the issue which had arisen in the present case, and that an objective observer could therefore infer that the two remaining judges were not impartial.[6]  There is no substance in this submission.  The judges of the Rwanda Tribunal were merely following their usual practice of adopting relevant amendments which had previously been made by the judges of Yugoslav Tribunal to that Tribunal’s Rules.  Those amendments were made by the judges of the Yugoslav Tribunal on 12 December 2002 (before the election for the Rwanda judges had taken place), and they were adopted by the judges of the Rwanda Tribunal on the first occasion upon which that Tribunal’s Rules were being considered by those judges since December.  The Rules can only be amended by the judges of the Tribunal.  There can be no valid (or responsible) submission that judges who necessarily must take part in the Rule-making process fail to act impartially when they are called upon to determine either the proper interpretation of a rule which they have amended or its application in a particular case.  It would be equally without substance to infer that a judge’s impartiality in determining either the interpretation or application of a Rule could be challenged according to how he or she voted in the Rule-making process.

10.       Another submission which has been made is that the Security Council acted unlawfully in refusing to “renew” Judge Maqutu’s mandate to hear the present case (i) by violating the “right to equality” of all accused as guaranteed by Article 20(1) of the Tribunal’s Statute, and (ii) by contravening “the principle of irremovability” and thereby the independence of the Tribunal, as a judge whose mandate had not been renewed [in the General Assembly election] may continue to form part of the Trial Chamber only “if he or she begs authorisation from the Security Council”.[7]  The second part of this submission is in part based upon the deletion of the second sentence of Rule 14bis at the meeting of the judges on 27 May.  As at 24 May, that Rule was in these terms:

This submission is also without substance.  The second sentence would have had no validity in the situation where the judge’s mandate had expired;  it could have been valid only in relation to the internal arrangements made by the President in assigning judges.  The Tribunal’s Statute provides for the election of its judges by the General Assembly for a term of four years.  The Security Council cannot be required to overcome the problems created by an unsuccessful nomination for re‑election by automatically extending every unsuccessful judge’s mandate merely because he or she may be part-heard in a trial.  Whether it is appropriate in the particular case to extend the mandate of such a judge in order to finish a trial is a matter for the Security Council and not for the Tribunal to determine.  The fact that Judge Maqutu was hearing three cases contemporaneously at the time his mandate expired was no doubt a substantial reason for the Security Council’s decision.  The submission is rejected.

The decision that the amended Rule was applicable in this case

11.       The appellants had argued in the Trial Chamber that the application of the amended Rule to a case which was part-heard at the time when the amendment was adopted offended the presumption against the retrospective application of legislation.[8]  The issue here concerns Rule 6(C), which at all relevant times has been in the following terms:

The appellants had argued (and continue to argue) that, prior to the amendment, they had a substantive right to refuse their consent to the continuation of the trial with a substituted judge, and that the removal of that right by the amendment to Rule 15bis prejudiced them.[9]  The Trial Chamber held that the right to refuse such consent was not a fundamental right to which Rule 6(C) applied.[10]  Alternatively, the Trial Chamber held that, even if the right to refuse consent were to be regarded as a fundamental right, Rule 6(C) required it to take into account other interests of justice which put the rights of the appellants in their “proper legal context”.[11]  There are three issues which must be considered here.

12.       First, the appellants’ claim that such a right to refuse their consent to a continuation of the trial existed prior to the amendment depends upon whether Rule 15bis(C) in its original form applied to the situation where a judge was unable to continue sitting because he or she had not been re-elected.  That Rule 15bis permitted the President of the Tribunal to order a continuation of the hearing with another judge where one of the judges of the Trial Chamber was “for any reason” unable to continue sitting in the part-heard case “for a period which is likely to be longer than of a short duration”.  The non-re-election of such a judge hardly creates an inability to continue sitting for a period of short duration, and such a situation was not contemplated by the Rule.  The Tribunal has undoubtedly always had an inherent jurisdiction to make such an order where a judge has not been re-elected, and that jurisdiction does not depend upon the consent of the accused, but it was not provided for in the Rules.  The amended Rule 15bis(D) makes such a provision for the first time, so that the position at present when a judge has not been re-elected is that (1) the President may order the trial to continue pursuant to par (C), but in certain circumstances only with the consent of the accused, and (2) where the consent of the accused has been withheld, the two remaining judges of the Trial Chamber may order the trial to continue pursuant to par (D), but only if they are satisfied that such continuation would serve the interests of justice.

13.       Secondly, the obligation of the Trial Chamber at all times is to ensure that the trial is fair, with full respects for the rights of the accused.[12]  The right of the accused to a fair trial is a fundamental right to which Rule 6(C) applies.  The issue under Rule 6(C) as to whether Rule 15bis operates immediately in the present case therefore depends upon whether its operation will prejudice that fundamental right.  This means that, in order to determine the application of the amended Rule, it is necessary in the present case to consider the merits of the determination of the ruling that the interests of justice would be served by continuing the trial with a substituted judge.

14.       Thirdly, the Trial Chamber was in error in interpreting Rule 6(C) as requiring it to take into account other interests of justice which put those rights of the accused in their “proper context”.  The interests of justice generally are relevant to the operation of the amended Rule 15bis once it is determined that the amended Rule applies, but they are wholly irrelevant to the issue as to whether Rule 6(C) denies the immediate operation of that amended Rule.  If there is a fundamental right of the accused which is prejudiced by the immediate operation of an amended rule, then the amendment does not operate in relation to the case against that accused.[13]

The decision that the interests of justice would be served by continuing the trial

15.       The phrase “interests of justice” is a protean one.  It is used throughout the Rules in various situations, with obviously different connotations.  The interests of justice must be taken into account in determining whether a Chamber or a judge may exercise their functions away from the seat of the Tribunal,[14] whether the Registrar should be instructed to assign counsel to represent the interests of the accused,[15] whether the conduct of counsel for either party warrants the imposition of sanctions by a Chamber,[16] whether a judge or a Trial Chamber may, in exceptional circumstances, order non-disclosure of any document or information to the public until further order,[17] whether an indictment or document or information should not be disclosed,[18] whether depositions may be taken for a trial,[19] whether the prosecutor’s list of witnesses may be reinstated or varied after the commencement of the trial,[20] whether the public should be excluded from the proceedings,[21] whether persons who have been charged jointly should be tried separately,[22] whether the usual order of calling witnesses should be varied,[23] whether evidence of a consistent pattern of conduct may be admitted,[24] and whether additional evidence should be admitted on appeal.[25]

16.       The Trial Chamber correctly observed that prejudice to an accused is always a matter of “interest” to the administration of justice,[26] but it also observed that even the violation of a substantive right of the accused cannot be considered in isolation, and it does not prevent the interests of justice being served.[27]  It may be that, in the context of considering only the claimed loss of the right to refuse consent to the continuation of the trial, and after setting out what may be described as the procedural entitlements of the accused enumerated in Article 20 of the Statute, this observation was not intended to suggest that the interests of justice may be served by denying the accused a fair trial.  But the observation was unfortunate in its generality.  There may be many difficulties placed in the way of the accused in the course of applying an “interests of justice” test in various situations, so that the trial is not a perfect one (such as the need to protect victims and witnesses), but the absence of perfection does not mean that the trial will not be a fair one.[28]  However, the interests of justice cannot be served where the accused is denied a fair trial.

17.       Although no-one has expressly referred to this matter in the present case, it is necessary to emphasise that the very proper endorsement by the Security Council “in the strongest terms” of the Completion Strategy of the Yugoslav Tribunal, and its urging of the Rwanda Tribunal to formalise a similar strategy to complete its work within a particular time,[29] should not be interpreted as an encouragement by the Security Council to either Tribunal to conduct its trials so that they would be other than fair trials.  The adoption by both Tribunals just at this time of the express power to order the continuation of a trial against the wishes of the accused where one judge is unable to continue in a trial should not therefore be seen as a warrant to conduct a trial which is no longer a fair trial for the accused.

18.       In considering the interests of justice, the Trial Chamber took into account a number of matters – the right of the accused to be tried without undue delay, the need for judicial economy, the fact that other proceedings have been continued with a substituted judge by consent, the fact that one of the accused in the present case (Sylvain Nsabimana) had consented to the trial continuing, the rights of victims and witnesses, the possibility that some of the witnesses may not return to give evidence in a new trial, the length of the case, its size and complexity, the rights of other accused awaiting trial who will have to wait longer for a trial date, the financial cost, and the fact that “proceedings must not be allowed to drag on endlessly – they must come to an end at some point”.  The Trial Chamber appears to have had some difficulty in stating what would be involved in starting the trial anew,[30] but all of the appellants have accepted that they would remain bound by the rulings made during the trial to date, although they maintain their existing right to challenge those decisions on appeal against conviction.[31]

19.       The “chief argument” of the appellants which the Trial Chamber considered was that their right to a fair trial required each judge in the case to be given the opportunity to observe for himself or herself the demeanour of every witness called in the case.  The Trial Chamber accepted that this was “indeed […] an important consideration”, but said that it was, however, one which needed to be “reconciled with other considerations, including, for example, the right to a speedy trial”.  It disposed of the argument in this way:[32]

The second point made by the Trial Chamber is that, as only 23 witnesses had not been seen by the substituted judge of an anticipated 83 witnesses to be called by the prosecution, that judge will have observed the “bulk” of the witnesses for the Prosecution and all the witnesses for the Defence.  Thirdly, although the Trial Chamber stressed that “it is important for any judge in a case to observe every witness as they testify”, only one judge may be substituted and the other two judges will have seen all the witnesses.  The fourth point was expressed in this way:[33]

Fourthly, while consideration of the need for every judge to assess demeanour is certainly a very important one, we note that it must be considered with care, for any precedent that sets it up as the overriding consideration of what it means to have a fair trial will make it extremely difficult – if not impossible – ever to order continuation of a trial pursuant to Rule 15bis(D).

The Trial Chamber expressed its conclusion in relation to this issue in the following terms:[34]

20.       The decision by the Trial Chamber was, of course, a discretionary one.  It is for the party challenging the exercise of a discretion to identify for the Appeals Chamber a “discernible” error made by the Trial Chamber.  It must be demonstrated that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that it has given weight to extraneous or irrelevant considerations, or that it has failed to give weight or sufficient weight to relevant considerations, or that it has made an error as to the facts upon which it has exercised its discretion.  In relation to the Trial Chamber’s findings of fact upon which it based its exercise of discretion, the party challenging any such finding must demonstrate that the particular finding was one which no reasonable tribunal of fact could have reached, or that it was invalidated by an error of law.  Both in determining whether the Trial Chamber incorrectly exercised its discretion and (in the event that it becomes necessary to do so) in the exercise of its own discretion, the Appeals Chamber is in the same position as was the Trial Chamber to decide the correct principle to be applied or any other issue of law which is relevant to the exercise of the discretion.  Even if the precise nature of the error made in the exercise of the discretion may not be apparent on the face of the impugned decision, the result may nevertheless be so unreasonable or plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.  Once the Appeals Chamber is satisfied that the error in the exercise of the Trial Chamber’s discretion has prejudiced the party which complains of the exercise, it will review the order made and, if appropriate and without fetter, substitute its own exercise of discretion for that of the Trial Chamber.[36]

21.       It is not possible to lay down any hard and fast rules as to what is and what is not relevant to the interests of justice in every case where a judge has not been re-elected and where the issue is whether the continuation of the trial serves those interests, beyond repeating that, whatever detriment may be caused to the accused in such a case by taking other interests into account, the trial must remain a fair one, even though perhaps not a perfect one.

22.       The weight afforded by the Trial Chamber to some of the considerations it took into account gives rise to considerable concern.  In this particular case, where the appellants have conceded – albeit reluctantly – that acceptance of their argument (that only a new trial will be a fair trial) will prejudice their right to the expedition which the continuation of the trial would have afforded them, it is surprising that the first interest which the Trial Chamber has taken into account in holding that the interests of justice would be served by such a continuation was the right of the appellants to be tried without undue delay.  It is even more surprising that the right to a speedy trial should in these circumstances be identified as the main factor to outweigh the need for a trial in which each of the three judges who determine the result will have had the opportunity of observing all of the witnesses.  The right to a speedy trial remained relevant, but the prominence given to it in this case suggests that the Trial Chamber may have placed more importance upon that right than it warranted in those circumstances.  Moreover, the inadequacy of the resources available to the Tribunal to try other accused persons who have been in custody for a long period and the financial cost of the Tribunal were also issues of minimal weight in a case such as this, yet they too have been taken into account in outweighing the right of these appellants to a trial in which each judge will have had the opportunity of observing all the witnesses.  However, these blemishes, even taken cumulatively, are insufficient in themselves to demonstrate an error in the exercise by the Trial Chamber of the wide discretion which Rule 15bis(D) gives to it.

23.       The fact that other proceedings have been continued with a substituted judge by consent is completely irrelevant to whether particular proceedings should be continued against the wishes of an accused.  A party can always consent to an order against his interests if he wishes to do so (even where contrary to a specific provision in the Rules), provided that the order is otherwise within the jurisdiction of the Tribunal.  But the context in which those other proceedings were discussed at various places in the Trial Chamber’s Decision does not suggest that it placed any weight upon that fact in the present case.  What the context does suggest is that the Trial Chamber referred to that fact only in order to acknowledge the importance given to the consent of the accused in those cases.  The Trial Chamber was not in error in doing so.  The fact that one of the accused in the present case had consented to the continuation of the trial was relevant to the interests of justice, in that it would mean a bifurcated trial and thus additional expenditure of judicial resources, but it would have been preferable had the Trial Chamber also expressly recognised that, in the current joint trial, each of the appellants is to be accorded the same rights as if he were being tried separately.[37]  However, this does not demonstrate an error in the exercise of the Trial Chamber’s discretion either.

24.       The Trial Chamber Decision does nevertheless demonstrate error in relation to three matters.

25.       The first concerns the clear indication that the Trial Chamber did not accept that it is necessary to the fairness of a trial for all three judges to have the opportunity to observe, independently, the demeanour of all witnesses.  The Trial Chamber said that such a recognition would make it “extremely difficult – if not impossible – ever to order continuation of a trial pursuant to Rule 15bis(D)”,[38] and it proceeded to make such an order despite the fact that one of the judges had not seen 23 of the witnesses.  The Trial Chamber made no reference to any prospect that the substituted judge would have an opportunity to observe such demeanour for himself or herself.  It cannot be disputed that, as the Trial Chamber conceded, it is important for all three trial judges to be able to observe, independently, the demeanour of all witnesses.  The absence of that opportunity on appeal has been identified as the basis for the rule that the Appeals Chamber must give a margin of deference to a finding of fact reached by a Trial Chamber.[39]  If the substituted judge has not had the same advantage as the other two judges of observing witnesses, that judge must necessarily have to give deference to what the other judges had observed, and therefore has no independent basis for judging that demeanour.  Reading the transcript, or listening to the submissions of counsel, places the substituted judge in no better position than the Appeals Chamber in hearing an appeal in determining the facts of the case.  The opportunity to see the demeanour of the witnesses has always been regarded as essential.

26.       When Rule 15bis was first introduced in the Yugoslav Tribunal allowing a trial to continue for three days in the absence of a judge, the period selected was a relatively short one because it was recognised that the absent judge would not only be expected to read the transcript of the evidence given in his or her absence but must also be given the opportunity to view the video-recording of that evidence in order to judge for himself or herself the demeanour of the witnesses when giving that evidence.  In the context of a continuing trial, the period over which this would be practicable was necessarily short.  The opportunity to view the video-recording has, however, been regarded as essential.[40]  That opportunity to view the video-recording places an absent judge in the same position as the Trial Chamber itself in relation to evidence which had been taken by way of deposition (when the proceedings are also video-taped).[41]  The more extensive task involved in the amended Rule 15bis has been justified (and it could only be justified) upon the basis that an opportunity to view the video-recording of the evidence is essential, and the amended Rule itself contemplates that this may take some time.  The Rwanda Tribunal merely copied the original Rule and the amended Rule without alteration.

27.       The second error made by the Trial Chamber is that it has not referred to the fact that, of the 23 witnesses who have already given evidence in the trial, 22 of them were protected witnesses.  In accordance with the usual practice in the Rwanda Tribunal, a protected witness is not included in the video-recording of the trial.  There is simply nothing to which the substituted judge can refer in order to make an independent assessment of the demeanour of those witnesses.[42]  There is some doubt as to whether the witnesses’ own voices can be heard on the audio-tape, but (even if the witnesses’ own voices can be heard) the substituted judge will receive no more than minimal assistance from hearing the witnesses’ voices unless he or she speaks the same language as the witnesses.  As it was the usual practice of the Rwanda Tribunal not to include any protected witnesses on the video-recording, the Trial Chamber was necessarily aware of the absence of any such video-recording in this case.  Yet all that the Trial Chamber did was to make the suggestion (which has already been refuted) that the substituted judge could determine the absent witnesses’ demeanour from reading the transcript and from the submissions of counsel.[43]  The evidence given by these witnesses is said by the appellants to be vital to the case against them, and the prosecution appears to accept that this is so.  Although Rule 15bis(D) provides that the newly assigned judge must certify a familiarity “with the record of the proceedings” before he or she can join the bench, the absence of any video-recording means that such a certification provides no protection at all to the appellants that such judge is in a position to assess the demeanour of the witnesses.  The absence of any reference to this important matter which was directly relevant to the exercise of the Trial Chamber’s discretion indicates clearly that it gave gravely insufficient weight to this issue.

28.       The third error made by the Trial Chamber concerns its assessment that it was “easier” to continue with a substituted judge than to redress the “problem” of delay in starting again, in that it appears to have assumed that all 23 witnesses would have to give their evidence in full again at a new trial.  The Trial Chamber gave no consideration to the prospect that an extensive use of Rule 92bis(D) where applicable,[44] together with a limited right to cross-examine the witnesses in order to assist the substituted judge to assess their demeanour, could well have reduced the “problem” of delay by a substantial amount.

29.       These three errors of omission demonstrated so far establish failures by the Trial Chamber either to take into account or to give sufficient weight to relevant and important matters in the exercise of its discretion.  The exercise of that discretion has accordingly miscarried.  But there has also been an error of commission made by the Trial Chamber.

30.       Judicial expedience should play no part in decisions relating to the fairness of a trial.  There are, however, two clear indications in the Trial Chamber Decision that expedience did in fact play a substantial part in the conclusion reached.  There is the observation to which reference has already made that, if it is necessary for all three judges to have an opportunity to assess the demeanour of all the witnesses, it will be extremely difficult – if not impossible – for an order to be made pursuant to Rule 15bis(D) for the continuation of the trial.  The Trial Chamber then proceeded to determine whether the continuation of the trial served the interests of justice in the present case by reference to which was the “easier” course to follow.  Picking the “easier” course could be justified only if the interests which opposed the new trial which the appellants sought were very weighty indeed.  As already pointed out, the main interest upon which the Trial Chamber relied was the right to a speedy trial, in circumstances where the appellants have accepted a loss of expedition in order to obtain a fair trial.  None of the other interests identified by the Trial Chamber, even taken cumulatively, warranted this determination being made for the sake of expedience.  The Trial Chamber therefore erred by giving weight to an extraneous consideration.

31.       There is yet another basis upon which the exercise of the Trial Chamber’s discretion miscarried.  The decision reached that the interests of justice were served by a continuation, despite the absence of any opportunity for the substituted judge to assess the demeanour of 22 of the 23 witnesses who have given evidence in the trial to date, was (on the basis of the factors to which the Trial Chamber did give weight, which excluded any prospect that that judge would have such an opportunity by having witnesses recalled) so unreasonable or plainly unjust that the Trial Chamber failed to exercise its discretion properly.  The consequences of these three independent findings that the exercise of discretion miscarried would normally be for the Appeals Chamber to quash the decision and then to consider for itself what the proper exercise of discretion should be.

32.       The Appeals Chamber’s Decision in the present case has interpreted the failure of the Trial Chamber to refer to the fact that there is no video-recording of 22 protected witnesses as strongly suggesting that no submission had been made by the appellants concerning this point.[45]  It has accordingly declined to consider the point, “more particularly in the light of the fact that it does not have the benefit of any views of the two judges on it”.[46]  An appellate court cannot validly abdicate its responsibility to determine an appeal against the exercise of discretion, where that appeal is based upon the failure of the first instance court to give sufficient weight to a relevant consideration, simply because it has not had the benefit of any views from that court upon that issue.  It is the very absence of such views which demonstrates that the first instance court failed to give sufficient weight to that relevant consideration and that the exercise of its discretion thereby miscarried.

33.       As already stated, the Trial Chamber was necessarily aware of the absence of any such video-recording.  They did not need to be told of that fact by the appellants.[47]  The Appeals Chamber has accepted that it is essential for a fair trial that all the judges have the ability to evaluate the demeanour of the witnesses and that, in the absence of a video-recording, the substituted judge will not be able to make that evaluation.[48]  The failure of a Trial Chamber to give sufficient weight to such a relevant and important matter in the exercise of its discretion cannot be overlooked merely because a party may not have told the Trial Chamber something which the judges already knew.  The Trial Chamber described the appellants’ argument that their right to a fair trial required each judge in the case to be given the opportunity to observe for himself or herself the demeanour of every witness called in their case as their “chief” argument.  Instead of squarely facing up to the problem caused by the absence of any video-recordings of 22 of 23 of the witnesses already called, the Trial Chamber said that such a right needed to be reconciled with other considerations such as a right to a speedy trial.  The Trial Chamber therefore was in error by failing to give sufficient weight to the need for all three judges to have the ability to evaluate the demeanour of the witnesses and to the fact that, in the absence of a video-recording, the substituted judge would not be able to make that evaluation without the witnesses being called to give evidence again.

34.       The solution proposed by the Appeals Chamber’s Decision is that, although it is correct to say that the ability of the judges to evaluate demeanour (or credibility, as the Appeals Chamber has put it) is essential to the fairness of the trial –

(a)        it is for the substituted judge to determine the adequacy of the record of proceedings, and that if he is unable thereby to familiarise himself with the earlier proceedings he will not join the bench;  and

(b)        (i)         the substituted judge may feel that, even in the absence of video-recordings of these witnesses, the record which is available is sufficient to enable him “to appreciate what has happened”;  or

            (ii)        if not, the substituted judge may decide to join the bench with any questions of demeanour being left to be resolved by the recomposed Trial Chamber deciding to recall witnesses for the substituted judge to assess their demeanour on particular points if, in the view of that Trial Chamber, the point involves a matter of credibility which that judge may need to resolve in that manner.[49]

35.       Before dealing with the merits of this proposed solution, it must be pointed out that, as such a relevant solution had not been considered by the Trial Chamber, and particularly as the Trial Chamber clearly declined to accept the premise accepted by the Appeals Chamber that the opportunity for all three judges to observe, independently, the demeanour of all witnesses is essential to the fairness of the trial, it necessarily follows that the exercise of the Trial Chamber’s discretion miscarried.  In those circumstances, the only order which the Appeals Chamber can  appropriately make is to uphold the appeal, quash the Trial Chamber’s Decision and exercise its own discretion as to whether the interests of justice would be served by the continuation of the trial.  If the Appeals Chamber feels itself to be in the position to do so, it could then make orders directing the recomposed Trial Chamber to consider the recall of witnesses as already outlined.  If the appeal is simply dismissed without any such orders being made, the position remains as it now is, without any obligation upon the Trial Chamber to carry out the solution proposed.

36.       But there is a flaw in the Appeals Chamber’s reasoning.  Rule 15bis(D) provides only that the substituted judge may not join the bench until he or she “has certified that he or she has familiarised himself or herself with the record of the proceedings”.  It does not give to the substituted judge either the power or the obligation to determine the adequacy of the record of proceedings.  The substituted judge may join the bench even if he or she is not satisfied that it will be possible to observe the demeanour of the witnesses either from the record without any video-recordings or from that record plus the recalling of some of the witnesses.  As it has already been pointed out, the certification required by Rule 15bis(D) provides no protection to the appellants that the substituted judge is in a position to assess the demeanour of the witnesses.  This flaw leads to a number of problems.  Without any order from the Appeals Chamber to the recomposed Trial Chamber to consider such a procedure, the substituted judge cannot insist upon witnesses being recalled.  What is to happen should the substituted judge remain dissatisfied with his or her ability to assess the demeanour of the witnesses because, for example, some of the witnesses nominated for recall have died or are too sick or too frightened to re-appear?[50]  Is he or she obliged to disclose this dissatisfaction to the parties?  Does the recomposed Trial Chamber continue, or does it have power to reconsider its decision to continue the trial notwithstanding the dismissal of this appeal?  The Appeals Chamber’s proposed solution, without the appeal being upheld, provides no safeguards at all.

37.       In exercising my own discretion were the appeal to be upheld, I would not accept the solution which the Appeals Chamber Decision has proposed.  Whilst I accept that recalling witnesses will enable the substituted judge to observe their demeanour if they do reappear, I do not believe that the Appeals Chamber is in any position to assess for itself upon the material before it an issue which the Trial Chamber failed to consider – whether recalling witnesses to give evidence in the existing trial (as the Appeals Chamber Decision suggests) would cause greater delay than starting a new trial with the probable advantages of the procedures afforded by Rule 92bis.  Only the two remaining members of the Trial Chamber can make that assessment.

Disposition

38.       Accordingly, I would uphold the appeal, quash the Trial Chamber’s Decision and remit the matter to the two remaining judges of the Trial Chamber to reconsider the matter in the light of what has been said in this Dissenting Opinion.

Done in English and French, the English text being authoritative.

Dated this 24^th day of September 2003,
At The Hague,
The Netherlands.

________________________

Judge David Hunt 

[Seal of the Tribunal]

[1]     Prosecutor v Nyiramasuhukuo et al, ICTR-98-42-T, Decision in the Matter of Proceedings Under Rule 15bis(D), 15 July 2003 (“Trial Chamber Decision”).

[2]     Notice of Appeal of “Decision in the Matter of Proceedings Under Rule 15bis(D)” Dated 15 July 2003, 20 July 2003 (“Ntahobali Appeal”);  Notice of Appeal by Pauline Nyiramasuhukuo Against the Decision in the Matter of Proceedings Under Rule 15bis(D), 19 July 2003 (“Nyiramasuhukuo Appeal”);  Alphonse Nteziryayo’s Appeal Against the Decision “Decision in the Matter of Proceedings Under Rule 15bis(D)” Rendered by Judges Sekule, Presiding, and Ramaroson on 15 July 2003, 18 July 2003 (“Nteziryayo Appeal”);  Appeal Pursuant to Rule 15(D) and (E) of the Rules of Procedure and Evidence, 22 July 2003 (“Kanyabashi Appeal”);  Notice of Appeal Against the Decision Entitled [sic]: "Decision in the Matter of Proceedings Under Rule 15bis(D)" (Rules 15bis(D) and 107bis of the Rules of Procedure and Evidence), 22 July 2003 (“Ndayambaje Appeal”).

[3]     Ntahobali Appeal, par 3;  Nyiramasuhuko Appeal, pars 2-3, 14;  Kanyabashi Appeal, pars 22-34;  Ndayambaje Appeal, par 15.

[4]     Ntahobali Appeal, par 23;  Ndayambaje Appeal, par 9;  Nyiramasuhuko Appeal, pars 9-10.

[5]     Trial Chamber Decision, pars 8, 10.

[6]     Nteziryayo Appeal, par 15;  Kanyabashi Appeal, par 19.

[7]     Kanyabashi Appeal, pars 15-19.

[8]     Ntahobali Appeal, par 15;  Ndayambaje Appeal, par 11.

[9]     Nyiramasuhko Appeal, par 7, 19 -20;  Nteziryayo Appeal, pars 24-25;  Kanyabashi Appeal, par 40;  Ndayambaje Appeal, pars 13-14.

[10]    Trial Chamber Decision, par 24.

[11]    Ibid, par 25.

[12]    Statute, Article 19.1

[13]    The Appeals Chamber of the Yugoslav Tribunal has recognised a distinction between a “right” and a “procedural entitlement”:  Prosecutor v Blaškić, IT-95-14-AR108bis, Decision on Prosecution Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997, 12 Aug 1997, par 12.

[14]    Rule 4.

[15]    Rule 45quarter.

[16]    Rule 46(A).

[17]    Rule 53(A).

[18]    Rule 53(C).

[19]    Rule 71(A).

[20]    Rule 73bis(E).

[21]    Rule 79(A)(iii).

[22]    Rule 82(B).

[23]    Rule 85(A).

[24]    Rule 93(A).

[25]    Rule 115(B).

[26]    Trial Chamber Decision, par 31.

[27]    Ibid, par 30.

[28]    Prosecutor v Tadić, Decision on the Prosecutor’s Motion Requesting Measures for Victims and Witnesses, (1995) I JR ICTY 123 at 179 [ICTY-94-1-PT, at par 72];  Prosecutor v Brđanin & Talić, ICTY-99-36-PT, Decision on Motion by Prosecution for Protective Measures, 3 July 2000, par 31.

[29]    UN Security Council Resolution 1503, 28 Aug 2003.

[30]    Trial Chamber Decision, par 33(j).

[31]    Ntahabali Appeal, par 53;  Nyiramasuhuko Appeal, par 47;  Nteziryayo Appeal, pars 35-37;  Kanyabashi Appeal, par 49;  Ndayambaje Appeal, pars 26-27.

[32]    Trial Chamber Decision, par 33(e).

[33]    Ibid, par 33(e).

[34]    Ibid, par 33(f).

[35]    This is a reference to the case of Prosecutor v Nyiramasuhukuo from which the present appeal is brought (see footnote 1).

[36]    Prosecutor v Milošević, ICTY-99-37-AR73, ICTY-01-50-AR73 & ICTY-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal From Refusal to Order Joinder, 18 Apr 2002, pars 5-6.

[37]    Rule 82(A).

[38]    The relevant passage in the Trial Chamber Decision is quoted in par 19, supra.

[39]    Prosecutor v Tadić, ICTY-94-1-A, Judgment, 15 July 199, par 64;  Prosecutor v Aleksovski, ICTY-95-14/1-A, Judgment, 24 Feb 2000, par 63;  Prosecutor v Delalić et al, ICTY-96-21, Judgment, 20 Feb 2000, par 330;  Prosecutor v Bagilishema, ICTR-95-1A-A, Reasons for Judgment, 13 Dec 2002, pars 11-12.

[40]    It is not suggested that a judge who has not seen the evidence of a number of witnesses would be required to view the video-recording of the evidence of every such witness, or even the whole of the evidence of any such witness.  It would usually be necessary for the judge to view the video-recording of only the relevant parts of those particular witnesses whose evidence is important to the case of either party which is genuinely in dispute (as shown, for example, by the transcript of the cross-examination).

[41]    The purist would no doubt say that a judge who is not present when the evidence is given is denied the opportunity to ask his or her own questions of the witness.  Questions are ordinarily asked by trial judges for one of two reasons.  The first is to achieve clarity in the evidence.  It is, however, the obligation of counsel who calls the witness or who cross-examines him or her to ensure that the evidence of that witness is given clearly;  it is not the obligation of the judges to do so.  The second reason for a judge to ask questions – when sitting as the tribunal of fact – is ordinarily to test the accuracy or the honesty of the witness.  The use of that opportunity by judges is rarely to the advantage of the party calling the witness, and its loss is not usually to the disadvantage of the accused.  This is but an imperfection;  it is does not render the trial unfair.

[42]    The position in the Yugoslav Tribunal is different.  When a protected witness gives evidence in public session, the face of the witness as shown to the public is distorted.  One camera focussed on the witness nevertheless records on a separate video-tape the undistorted picture of the witness, and this undistorted version is always available to enable a judge to see the witness giving evidence again (or for the first time).

[43]    Paragraph 25, supra.

[44]    “A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.”

[45]    Appeals Chamber Decision, par 31.  The Appeals Chamber has not been favoured with the submissions made before the Trial Chamber.  The interpretation placed upon the absence from the appeal briefs of any reference to such submissions having been made to the Trial Chamber is, in my view, highly speculative.

[46]    Appeals Chamber Decision, par 31.

[47]    That the judges went on to make the extraordinary suggestion that the substituted judge could determine the absent witness’s demeanour from reading the transcript and from the submissions of counsel shows beyond any doubt that they were aware of the absence of any video-recording.

[48]    Ibid, par 30.

[49]    Ibid, pars 33-35.

[50]    It is understood that many of the witnesses were infected with AIDS.