Citation
MICT-13-38-AR80.3
A191 - A153
07 August 2023
UNITED
NATIONS
International Residual Mechanism
for Criminal Tribunals
Case No.:
MICT-13-38-AR80.3
Date:
7 August 2023
Original:
English
IN THE APPEALS CHAMBER
Before:
Judge Carmel Agius, Presiding
Judge Burton Hall
Judge Liu Daqun
Judge Aminatta Lois Runeni N’gum
Judge José Ricardo de Prada Solaesa
Registrar:
Mr. Abubacarr M. Tambadou
Decision of:
7 August 2023
PROSECUTOR
v.
FÉLICIEN KABUGA
PUBLIC
DECISION ON APPEALS OF FURTHER DECISION ON FÉLICIEN
KABUGA’S FITNESS TO STAND TRIAL
Office of the Prosecutor:
Mr. Serge Brammertz
Mr. Rashid S. Rashid
Mr. Rupert Elderkin
Counsel for Mr. Félicien Kabuga:
Mr. Emmanuel Altit
191
JN
MICT-13-38-AR80.3
1.
The Appeals Chamber of the International Residual Mechanism for Criminal
Tribunals (“Appeals Chamber” and “Mechanism”, respectively)1 is seised of the appeals filed by
the Defence of Mr. Félicien Kabuga (“Defence” and “Kabuga”, respectively) and the Office of the
Prosecutor of the Mechanism (“Prosecution”) on 23 June 2023,2 against a decision issued by the
Trial Chamber of the Mechanism (“Trial Chamber”) on 6 June 2023.3 In the Impugned Decision,
the Trial Chamber, by majority, Judge El Baaj dissenting, found that Kabuga was unfit to stand trial
and decided to proceed with an “alternative finding procedure”.4 The Defence and the Prosecution
filed responses on 3 July 2023 and 4 July 2023, respectively.5 The Prosecution filed a reply on
7 July 2023.6 The Defence did not file a reply.
I. PROCEDURAL BACKGROUND
2.
Kabuga was indicted before the International Criminal Tribunal for Rwanda (“ICTR”) in
November 1997,7 but remained a fugitive until his arrest in France on 16 May 2020.8 On
26 October 2020, Kabuga was temporarily transferred to the Hague branch of the Mechanism for a
detailed medical assessment.9 Following initial orders for medical evaluations, since
December 2020 the Trial Chamber has been receiving biweekly medical reports on Kabuga’s health
See Order Assigning Appeals to a Bench of the Appeals Chamber, 23 June 2023, p. 1. See also Decision on Urgent
Defence Request, 28 June 2023 (confidential), n. 1.
2
Appeal Against the “Further Decision on Félicien Kabuga’s Fitness to Stand Trial” of 6 June 2023, 23 June 2023
(original filed in French; English translation filed on 29 June 2023) (“Defence Appeal”); Prosecution Interlocutory
Appeal of Decision that Kabuga is Not Fit to Stand Trial, 23 June 2023 (confidential with confidential and ex parte
annex; public redacted version filed on 26 June 2023) (“Prosecution Appeal”). See Prosecutor v. Félicien Kabuga, Case
No. MICT-13-38-T, Decision on Motions for Certification to Appeal the Further Decision on Félicien Kabuga’s Fitness
to Stand Trial, 16 June 2023 (“Decision of 16 June 2023”), p. 2.
3
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Further Decision on Félicien Kabuga’s Fitness to Stand
Trial, 6 June 2023 (“Impugned Decision”).
4
Impugned Decision, para. 59. See also Impugned Decision, Dissenting Opinion of Judge Mustapha El Baaj
(“Dissenting Opinion”).
5
Defence Response to the “Prosecution Interlocutory Appeal of Decision that Kabuga is Not Fit to Stand Trial” Filed
on 23 June 2023, 3 July 2023 (original filed in French; English translation filed on 6 July 2023) (confidential)
(“Defence Response”); Prosecution Response to Kabuga’s Appeal of the Trial Chamber’s 6 June 2023 Decision
Ordering the Accommodation of the Alternative Finding Procedure, 4 July 2023 (public with confidential Annex A)
(“Prosecution Response”).
6
Prosecution Reply to Kabuga’s Response to Prosecution Interlocutory Appeal of Further Fitness Decision, 7 July 2023
(confidential) (“Prosecution Reply”).
7
See Prosecutor v. Félicien Kabuga, Case No. ICTR-97-22-I, Decision Confirming the Indictment, 26 November 1997
(confidential). See also Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Prosecution’s Second Amended
Indictment, 1 March 2021 (public with public and confidential annexes); Prosecutor v. Félicien Kabuga, Case No.
MICT-13-38-PT, Decision on Prosecution Motion to Amend the Indictment, 24 February 2021, para. 22.
8
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-I, Decision on Félicien Kabuga’s Motion to Amend the Arrest
Warrant and Order for Transfer, 21 October 2020 (“Decision of 21 October 2020”), para. 2.
9
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-I, Order Scheduling an Initial Appearance, 8 November 2020,
pp. 1, 2, referring, inter alia, to Decision of 21 October 2020, paras. 11-18.
1
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from the Medical Officer at the United Nations Detention Unit (“UNDU”) at the Hague branch of
the Mechanism.10
3.
On 22 January 2021, while the proceedings against Kabuga were still at the pre-trial phase,
the Defence filed a motion before the Trial Chamber seeking, pursuant to Rule 84(A) of the Rules
of Procedure and Evidence of the Mechanism (“Rules”), medical examination by independent
experts to assess, inter alia, Kabuga’s fitness to stand trial.11 On 15 April 2021, the Trial Chamber
granted, in part, the request and ordered the Registrar of the Mechanism (“Registrar” or “Registry”)
to appoint an independent expert gerontologist to examine Kabuga and assist in ascertaining his
fitness to stand trial.12 Subsequently, the Trial Chamber ordered further examinations of Kabuga by
two independent forensic psychiatrists13 and granted requests by the Prosecution and the Defence to
appoint medical experts of their choice to examine Kabuga.14
4.
On 13 June 2022, having considered the medical record before it, the Trial Chamber found
that the Defence had not established that Kabuga was at the time unfit for trial, especially in view of
accommodations that could be adopted.15 The Trial Chamber further decided that Kabuga should
remain detained at the Hague branch of the Mechanism and that his trial should commence and
proceed there until otherwise decided.16 On 12 August 2022, the Appeals Chamber, by majority,
dismissed the Defence’s appeal challenging the Trial Chamber’s finding on Kabuga’s fitness to
stand trial.17 Trial proceedings against Kabuga commenced on 29 September 2022 and, from the
10
Impugned Decision, para. 2. See also Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Decision on
Félicien Kabuga’s Fitness to Stand Trial and to be Transferred to and Detained in Arusha, 13 June 2022 (“Decision of
13 June 2022”), para. 3.
11
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Defence Motion Seeking an Order for an Expert Medical
Assessment Pursuant to Rule 84 of the Rules of Procedure and Evidence, 22 January 2021 (confidential) (original filed
in French; English translation filed on 2 February 2021), paras. 23, 47-49, p. 17.
12
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Decision on Defence Motion Seeking an Order for Expert
Medical Assessments Pursuant to Rule 84, 15 April 2021 (confidential) (“Decision of 15 April 2021”), para. 19. See
also Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-AR80.1, Decision on an Appeal of a Decision on Félicien
Kabuga’s Fitness to Stand Trial, 12 August 2022 (“Decision of 12 August 2022”), para. 3.
13
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Order for Further Independent Medical Expert
Evaluation, 1 December 2021 (confidential), pp. 2, 3; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT,
Decision on Prosecution Motion for Further Fitness Evaluation and Order for Independent Expert Evaluation,
15 March 2022 (confidential) (“Decision of 15 March 2022”), paras. 25, 28. See also Decision of 12 August 2022,
paras. 3, 6.
14
See Decision of 15 March 2022, para. 28; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Decision on
Defence Motion for Appointment of a Defence Medical Expert, 13 May 2022 (confidential), p. 2. See also Decision of
12 August 2022, paras. 7, 8.
15
See Impugned Decision, para. 5; Decision of 13 June 2022, paras. 8-10, 14-17, 19, 20, 22, 25-30, 33-37, 44-57, 62.
16
Decision of 13 June 2022, para. 62.
17
Decision of 12 August 2022, para. 22. See also Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Decision
on Félicien Kabuga’s Motion for Certification to Appeal the Decision of 13 June 2022, 23 June 2022, p. 2.
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date of their commencement until 22 December 2022, the Trial Chamber held in-court hearings for
a total of 29 days.18
5.
In compliance with a Trial Chamber’s instruction, on 13 July 2022, the Registrar appointed
Professor Gillian Mezey (“Dr. Mezey”), forensic psychiatrist, Professor Henry Gerard Kennedy
(“Dr. Kennedy”), forensic psychiatrist, and Professor Patrick Cras (“Dr. Cras”), neurologist, as
members of a panel of independent medical experts (“Experts”) to periodically monitor Kabuga’s
health and submit, every 180 days, joint reports on Kabuga’s fitness for trial.19 On
12 December 2022, the Registrar filed the first joint monitoring report prepared by the Experts
(“First Joint Monitoring Report”).20 In the report, the Experts agreed that Kabuga had, at the time of
the assessment, reduced cognitive reserve with his cognitive functioning tending to fluctuate day to
day, and that there was “evidence of vascular disease affecting the brain and previous
cerebrovascular accidents”.21 In terms of Kabuga’s capacities to participate in the proceedings and
to exercise his fair trial rights, the Experts agreed that he was able to plead, to understand the nature
of the charges against him, and to understand the consequence of the proceedings.22 However, the
Experts were unanimously of the view that Kabuga was not able to understand the course of the
proceedings or testify.23 Two of the Experts also opined that Kabuga did not have the capacity to
instruct counsel.24 The Experts concluded that on the days of the assessments, which were
performed on 11 and 21 November 2022, Kabuga “was not fit to participate in his trial”.25 The
Experts also recommended “supports” to assist Kabuga’s participation in the trial proceedings,
subject to an improvement in his cognitive capacities compared to when he was assessed.26
6.
On 13 December 2022, the Trial Chamber rejected a Defence urgent request for a stay of
proceedings and decided to continue hearing witness evidence.27 The Trial Chamber instructed the
18
Impugned Decision, para. 8.
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Registrar’s Submission in Relation to the “Decision on
Félicien Kabuga’s Fitness to Stand Trial and to be Transferred to and Detained in Arusha” of 13 June 2022,
18 July 2022 (public with confidential annex), paras. 2-4. See also Decision of 13 June 2022, para. 62.
20
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Registrar’s Submission in Relation to the “Decision on
Félicien Kabuga’s Fitness to Stand Trial and to be Transferred to and Detained in Arusha” of 13 June 2022,
12 December 2022 (public with confidential annex), para. 5, Annex.
21
First Joint Monitoring Report, pp. 3-5.
22
First Joint Monitoring Report, pp. 5, 7, 8.
23
First Joint Monitoring Report, pp. 5-8.
24
First Joint Monitoring Report, p. 7.
25
First Joint Monitoring Report, p. 10.
26
First Joint Monitoring Report, pp. 8, 9.
27
T. 13 December 2022 p. 7 (private session); T. 14 December 2022 pp. 1-3 (private session). See also Prosecutor v.
Félicien Kabuga, Case No. MICT-13-38-T, Urgent Defence Request for a Stay of Proceedings on the Grounds of
Félicien Kabuga’s Unfitness to Stand Trial, Established by the Panel of Experts, 13 December 2022 (confidential)
(original filed in French; English translation filed on 16 December 2022), p. 2. The Trial Chamber also denied a related
Defence request for certification to appeal the Trial Chamber’s determination on the stay of proceedings. See
19
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Registry to have the Experts re-evaluate Kabuga within 90 days of 28 November 2022, and to file a
monitoring report thereafter.28 The resumption of trial proceedings, originally scheduled for
17 January 2023, was adjourned due to reports by the UNDU Medical Officer detailing several
health incidents that Kabuga had suffered in January and early February 2023.29 Trial proceedings
eventually resumed on 14 February 2023 with adjusted modalities, including reduced court
schedule and Kabuga’s attendance by video-conference link from the UNDU.30
7.
On 6 March 2023, the Registrar filed the second joint monitoring report prepared by the
Experts (“Second Joint Monitoring Report”).31 In the report, the Experts unanimously agreed that
Kabuga’s mental capacities had “deteriorated significantly” since their previous assessments and
that “it is now apparent that this is a progressive process”.32 The Experts also concluded that
Kabuga remained capable of expressing his will and preference in limited areas concerning his own
health and well-being.33 The Experts further agreed that Kabuga “now meets clinical criteria for
dementia” and expressed their confidence that he “is not fit to participate meaningfully in his trial”,
even with modalities and accommodations put in place.34
8.
On 6 March 2023, the Trial Chamber adjourned the evidentiary hearing scheduled to resume
the following day and, on 8 March 2023, held a procedural hearing for the purpose of receiving
submissions from the parties on the practical and procedural implications of the Second Joint
Monitoring Report.35 Following the parties’ submissions, the Trial Chamber heard the testimonies
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Decision on Félicien Kabuga’s Motion for Certification to
Appeal the Oral Decision of 14 December 2022, 11 January 2023 (confidential), p. 3.
28
T. 14 December 2022 p. 3 (private session).
29
Impugned Decision, para. 12; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Registrar’s Submission in
Relation to the “Order Following Initial Appearance” of 25 November 2020, 4 January 2023 (public with confidential
annex), Annex; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Registrar’s Submission in Relation to the
“Order Following Initial Appearance” of 25 November 2020, 11 January 2023 (public with confidential annex), Annex;
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Registrar’s Submission in Relation to the “Order Following
Initial Appearance” of 25 November 2020, 26 January 2023 (public with confidential annex), Annex; Prosecutor v.
Félicien Kabuga, Case No. MICT-13-38-T, Registrar’s Submission in Relation to the “Order Following Initial
Appearance” of 25 November 2020, 8 February 2023 (public with confidential annex), Annex.
30
See Impugned Decision, para. 15.
31
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Registrar’s Submission in Relation to the Oral Ruling of
14 December 2022, 6 March 2023 (confidential with confidential annex), para. 7, Annex.
32
Second Joint Monitoring Report, Registry Pagination (“RP.”) 5029.
33
Second Joint Monitoring Report, RP. 5029.
34
Second Joint Monitoring Report, RP. 5029.
35
See Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Further Order on Proceedings, 6 March 2023, p. 1;
T. 8 March 2023 pp. 2-30.
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of Dr. Kennedy, Dr. Mezey, and Dr. Cras between 15 and 29 March 202336 and, on 30 March 2023,
received further oral submissions from the parties concerning Kabuga’s fitness to stand trial.37
9.
While the Trial Chamber’s deliberations on Kabuga’s fitness to stand trial were ongoing, on
25 April 2023, the Trial Chamber ordered the parties to file submissions concerning the
consequences should Kabuga be found unfit for trial, taking into account relevant international
jurisprudence and domestic practice, “in particular the possibility of proceeding with an
examination of facts”.38 The Trial Chamber also specifically instructed the parties to take into
account in their submissions the Guidelines from the Committee on the Rights of Persons with
Disabilities interpreting Article 14 of the United Nations Convention on the Rights of Persons with
Disabilities.39 On 9 May 2023, the Prosecution and the Defence filed submissions in accordance
with the Trial Chamber’s order and, on 16 May 2023, both parties submitted their respective
responses.40
10.
On 6 June 2023, the Trial Chamber issued the Impugned Decision, finding, by majority, that
Kabuga was not fit for trial and that he was very unlikely to regain fitness in the future.41 As a
consequence of this finding and with reference to its discretion to manage the proceedings before it,
the Trial Chamber considered it necessary to identify a procedure to be followed, in line with its
duty to respect and ensure respect for all generally accepted human rights norms and with due
regard for the purposes for which the Mechanism and its predecessor tribunals were established.42
Having considered the options of terminating the proceedings, imposing a stay of proceedings, and
conducting an “alternative finding procedure”, the Trial Chamber concluded that “the best way to
ensure respect for [Kabuga’s] rights and to effectuate the goals of the Mechanism is to adopt an
Dr. Kennedy testified on 15, 16, and 17 March 2023. See T. 15 March 2023 pp. 2-22; T. 16 March 2023 pp. 3-45;
T. 17 March 2023 pp. 1-39. Dr. Mezey testified on 23 March 2023. See T. 23 March 2023 pp. 1-49. Dr. Cras testified
on 29 March 2023. See T. 29 March 2023 pp. 1-52.
37
See T. 30 March 2023 pp. 1-47.
38
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Order for Submissions, 25 April 2023 (“Order of
25 April 2023”), pp. 1, 2.
39
Order of 25 April 2023, p. 1. See also UN General Assembly, Convention on the Rights of Persons with Disabilities,
A/RES/61/106, 24 January 2007.
40
See Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Prosecution Submission Concerning the Consequences
of a Potential Decision that Kabuga is Unfit, 9 May 2023; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T,
Defence Submission in Response to the Chamber’s Order of 25 April 2023, 9 May 2023 (original filed in French;
English translation filed on 15 May 2023); Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Defence Response
to the “Prosecution Submission Concerning the Consequences of a Potential Decision that Kabuga is Unfit” Filed on
9 May 2023, 16 May 2023 (original filed in French; English translation filed on 19 May 2023); Prosecutor v. Félicien
Kabuga, Case No. MICT-13-38-T, Prosecution Response to Kabuga’s Submission Pursuant to the Chamber’s
25 April 2023 Order, 16 May 2023. See also Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Decision on
Defence Motion to Dismiss In Limine the Prosecution Submission of 9 May 2023, 25 May 2023.
41
Impugned Decision, paras. 39, 57, 59.
42
Impugned Decision, para. 45.
36
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alternative finding procedure that resembles a trial as closely as possible, but without the possibility
of a conviction”.43
11.
On 16 June 2023, upon requests by the Prosecution and the Defence,44 the Trial Chamber
certified for appeal the issues of “Kabuga’s fitness to stand trial and the consequences thereof”.45
On appeal, the Prosecution advances two grounds of appeal, arguing that the Trial Chamber erred in
law by applying an incorrect legal standard,46 and abused its discretion in evaluating the evidence
relating to Kabuga’s fitness to stand trial.47 Consequently, the Prosecution requests that the Appeals
Chamber reverse the Trial Chamber’s determination that Kabuga is unfit to participate
meaningfully in his trial.48 The Defence advances three grounds of appeal, alleging that the Trial
Chamber erred in law in failing to order a stay of proceedings,49 in deciding to hold an “alternative
finding procedure”,50 and in failing to order Kabuga’s release.51 As a consequence, the Defence
requests that the Appeals Chamber reverse the Impugned Decision, impose a stay of proceedings,
and order Kabuga’s release.52 The Appeals Chamber will address the parties’ contentions in turn.
II. DISCUSSION
A. Preliminary Matters
12.
The Appeals Chamber notes that the Prosecution Response, which was due on 3 July 2023,
was filed a day later.53 On 4 July 2023, the Prosecution filed an urgent motion, requesting that the
Appeals Chamber recognize the Prosecution Response as validly and timely filed.54 The
Prosecution explains that it followed the practice of the Trial Chamber whereby filings would be
considered timely if submitted by 11:59 p.m. the Hague time, in view of the location of the trial.55
According to the Prosecution, accounting for the time difference with Arusha, this resulted in the
See Impugned Decision, paras. 46-57.
See Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Prosecution Request for Certification to Appeal
Further Decision on Félicien Kabuga’s Fitness to Stand Trial, 13 June 2023; Prosecutor v. Félicien Kabuga, Case No.
MICT-13-38-T, Defence Request for Certification to Appeal the “Further Decision on Félicien Kabuga’s Fitness to
Stand Trial” Issued on 6 June 2023, 13 June 2023 (original filed in French; English translation filed on 20 June 2023).
45
Decision of 16 June 2023, p. 2.
46
See Prosecution Appeal, paras. 2, 4-13.
47
See Prosecution Appeal, paras. 2, 14-29.
48
Prosecution Appeal, paras. 3, 31.
49
See Defence Appeal, paras. 68, 71-87.
50
See Defence Appeal, paras. 68, 88-104.
51
See Defence Appeal, paras. 68, 105-111.
52
Defence Appeal, para. 112.
53
See Rules 132(B) and 152(A) of the Rules; Practice Direction on Requirements and Procedures for Appeals,
MICT/10/Rev.1, 20 February 2019 (“Practice Direction”), para. 26. See also Practice Direction on Judicial Records,
MICT/42, 25 May 2023, Articles 14 and 15.
54
Prosecution Urgent Request Pursuant to Rule 154, 4 July 2023 (public with confidential Annex A) (“Prosecution
Request”), para. 4.
43
44
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Prosecution Response being filed half an hour after the deadline.56 The Appeals Chamber finds that,
in view of the significance of the issues on appeal and taking into account that the Defence does not
oppose the Prosecution’s request,57 it is in the interests of justice to exercise its discretion and
recognize the Prosecution Response as validly filed.58
13.
In addition, on 18 July 2023, the Defence filed a motion, requesting that both parties be
granted access to a Magnetic Resonance Imaging (“MRI”) of Kabuga’s brain, carried out in
June 2023, and the related radiology report (collectively, “MRI Results”), which were referenced in
a recent UNDU Medical Report.59 The Defence contends that the existence of a new MRI that
corroborates prior medical evidence on Kabuga’s cognitive decline is an essential element to be
considered in the context of the Prosecution Appeal, and that access to the MRI Results will enable
the Defence to seek its admission as additional evidence on appeal pursuant to Rule 142(A) of the
Rules.60 The Prosecution responds that it has no objection to the Defence request for access and, in
turn, requests that the parties be allowed to share the MRI Results with their respective consulting
experts.61
14.
The Appeals Chamber observes that the Trial Chamber routinely granted the Defence and
the Prosecution access to medical reports concerning Kabuga’s health, allowing them to share such
reports with their respective consulting experts on a confidential basis.62 In the present
circumstances, the Appeals Chamber sees no reason for taking a different approach and finds it
appropriate to grant the sought access on this basis.
15.
The Appeals Chamber, however, does not consider it necessary to adjourn the adjudication
of the Prosecution Appeal, in view of the Defence intention to seek the admission of the MRI
Prosecution Request, para. 2, referring to T. 18 August 2022 p. 9.
Prosecution Request, para. 3, Annex A.
57
Defence Response to the “Prosecution Urgent Request Pursuant to Rule 154” Filed on 4 July 2023, 6 July 2023
(original filed in French; English translation filed on 7 July 2023), para. 13.
58
See Rule 154(A) of the Rules; Practice Direction, para. 31.
59
Defence Request Pursuant to Rule 142 of the Rules of Procedure and Evidence, 18 July 2023 (confidential) (original
filed in French; English translation filed on 20 July 2023) (“Request for Access”), paras. 7, 15, p. 3. See also
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Registrar’s Submission in Relation to the “Order Following
Initial Appearance” of 25 November 2020, 12 July 2023 (public with confidential annex), Annex (“UNDU Medical
Report of 11 July 2023”); T. 17 July 2023 pp. 9, 10.
60
Request for Access, paras. 12-15, p. 3.
61
Prosecution Response to “Requête de la Défense en vertu de l’Article 142 du Règlement de procédure et de preuve”,
19 July 2023 (confidential), para. 1.
62
See, e.g., Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Decision on the Conduct of Trial Proceedings,
13 February 2023, para. 6, n. 15; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Order for Submissions in
Relation to the Joint Monitoring Report and on Request for Access, 15 December 2022 (confidential), pp. 1, 2;
Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-T, Decision on Prosecution Urgent Request for Access to
Medical Records, 28 February 2022 (confidential), p. 2; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT,
Decision on Defence Requests for Access and Order for Further Disclosure, 24 February 2021, pp. 1, 4.
55
56
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Results as additional evidence on appeal, pursuant to Rule 142 of the Rules. The Appeals Chamber
notes that, in relation to the MRI Results, the UNDU Medical Report of 11 July 2023 states that
“the scan shows both evidence of a past stroke and significant loss of brain tissue, accompanied by
signs of vascular damage (small vessel disease)” and “excludes any new neurological process to
explain […] Kabuga’s cognitive impairment”.63 The Appeals Chamber observes that, despite the
fact that the existence of the MRI Results became known to the parties only after the issuance of the
Impugned Decision, information regarding Kabuga suffering from strokes, loss of brain tissue, and
vascular disease is not new and was considered and discussed by the Experts.64 The information
contained in the MRI Results would therefore appear, in material aspects, cumulative of other
evidence on the record that the Trial Chamber already considered in reaching its finding that
Kabuga is not fit to stand trial.65
16.
In addition, in view of the Appeals Chamber’s conclusions below on the Prosecution
Appeal,66 not allowing the Defence an additional opportunity to bolster the Trial Chamber’s finding
that is the subject of the Prosecution Appeal will result in no prejudice to Kabuga.67 To the
contrary, the interests of justice dictate that the matter before the Appeals Chamber be resolved as
expeditiously as possible and that unnecessary delays be avoided. This does not preclude the parties
from raising issues in relation to the MRI Results before the Trial Chamber, in view of the outcome
of the present Decision.
B. The Prosecution Appeal
1. Background
17.
In the Impugned Decision, the Trial Chamber, by majority, found that Kabuga was not fit
for trial and that it was very unlikely he would regain fitness in the future.68 In arriving at this
conclusion, the Trial Chamber considered the extensive medical record before it, including the First
63
UNDU Medical Report of 11 July 2023, para. 3.
See Impugned Decision, nn. 65, 79, 124, referring, inter alia, to Witness Mezey, T. 23 March pp. 9-12, Witness
Kennedy, T. 15 March 2023 p. 7, First Joint Monitoring Report, p. 4 (confirming that there was “evidence of vascular
disease affecting the brain and previous cerebrovascular accidents, evidenced on the MRI by patchy ischemic and other
age related changes to Mr. Kabuga’s brain”). See also Decision of 13 June 2022, para. 25.
65
See Impugned Decision, nn. 76, 78, 79, 124, 151, referring, inter alia, to Witness Kennedy, T. 15 March 2023 p. 7,
Witness Mezey, T. 23 March 2023 p. 10, First Joint Monitoring Report, p. 4, Joint Statement of Dr. Kennedy and
Dr. Mezey, 16 May 2022, p. 2. See also Decision of 13 June 2022, paras. 14, 15, 25, 35, 50, referring, inter alia, to
Dr. Mezey’s Report of 28 January 2022, pp. 19, 20, paras. 53, 56, 57, 64, Witness Mezey, T. 1 June 2022 pp. 4, 5.
66
See infra para. 48.
67
Cf. Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. MICT-15-96-A, Decision on Jovica Stanišić’s
Motion for Admission of Additional Evidence, 21 December 2022, para. 15; Prosecutor v. Jovica Stanišić and Franko
Simatović, Case No. IT-03-69-AR65.1, Decision on Stanišić’s Applications Under Rule 115 to Present Additional
Evidence in His Response to the Prosecution’s Appeal, 3 December 2004, paras. 14, 16.
68
Impugned Decision, paras. 39, 59.
64
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Joint Monitoring Report, the Second Joint Monitoring Report, and the testimonies of Dr. Kennedy,
Dr. Mezey, and Dr. Cras.69 The Trial Chamber found that the vast majority of the evidence before it
supported the conclusion that Kabuga was unfit for trial.70
18.
In relation to Kabuga’s evolving health condition, the Trial Chamber recalled that, in its first
decision on Kabuga’s fitness to stand trial issued in June 2022, it had placed particular weight on
the evidence of Dr. Kennedy and Dr. Mezey who, at the time, disagreed about the severity and
consequences of Kabuga’s cognitive impairments.71 Emphasizing the impressive credentials and
extensive relevant experience of Dr. Kennedy, Dr. Mezey, and Dr. Cras, the Trial Chamber
observed that, this time, all three experts agreed that Kabuga’s cognitive and physical functions
have progressively and significantly deteriorated since the pre-trial stage, that he has severe
dementia, and that he could not participate meaningfully in his trial, even with accommodations.72
The Trial Chamber noted the Experts’ unanimous opinion that Kabuga’s condition is characterised
by progressive and irreversible decline.73
19.
The Trial Chamber particularly noted the convergence in the Experts’ conclusions that
Kabuga lacks four capacities crucial to meaningful participation in a trial, namely the ability to
understand the course of proceedings, understand the evidence, instruct counsel, and testify.74 In
relation to the Experts’ opinion that Kabuga still retains three relevant capacities, namely to enter a
plea, understand the nature of the charges, and understand the consequences of the proceedings, the
Trial Chamber noted the Experts’ view that Kabuga’s level of cognition related to these capacities
remains, nevertheless, superficial.75 Finally, the Trial Chamber emphasized that its own
observations of Kabuga during the proceedings corresponded to the Experts’ collective findings.76
2. Alleged Error in Relation to the Legal Standard for Fitness to Stand Trial
20.
Under its first ground of appeal, the Prosecution submits that, in determining Kabuga’s
fitness to stand trial, the Trial Chamber erred in law by applying a heightened legal standard
whereby counsel’s role in representing Kabuga was not taken into account.77 In particular, the
Prosecution argues that, by accepting “wholesale” and without scrutiny the Experts’ conclusions,
Impugned Decision, paras. 9, 12-14, 16, 18-23, 30-35. See also Impugned Decision, paras. 3, 4.
Impugned Decision, para. 30.
71
Impugned Decision, paras. 3-5, 30.
72
Impugned Decision, para. 30.
73
Impugned Decision, para. 31.
74
Impugned Decision, para. 31.
75
Impugned Decision, para. 34
76
Impugned Decision, para. 38.
77
See Prosecution Appeal, paras. 2, 4-9, 30.
69
70
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the Trial Chamber applied a standard whereby Kabuga is erroneously required to have a very high
level of cognitive functioning.78 In support of its submission, the Prosecution asserts that the Trial
Chamber made no reference to counsel’s role in representing Kabuga and, instead, emphasized the
complexity of the legal and factual issues involved and the volume of the evidence.79 According to
the Prosecution, had the Trial Chamber applied the correct legal standard, it would have assessed
the medical evidence underlying the Experts’ conclusions in light of Kabuga’s status as an accused
“duly represented by counsel”.80 In the view of the Prosecution, the record contains ample evidence
showing that Kabuga remains able to exercise a range of capacities, particularly with the assistance
of accommodations from within his Defence team.81
21.
The Prosecution further submits that the Trial Chamber erred in failing to apply the factors
relevant to establishing Kabuga’s fitness to stand trial in a way that would give full effect to human
rights norms, including the Convention on the Rights of Persons with Disabilities, which require
every possible accommodation for an accused in cognitive decline to enable their participation in
legal proceedings.82 In this regard, the Prosecution asserts that the Trial Chamber made no mention
of any accommodations to facilitate Kabuga’s meaningful participation at trial, for example, by
having his counsel simplify matters and therefore limit the burden placed upon Kabuga.83
22.
The Defence responds that the Trial Chamber correctly applied the legal standard,
scrupulously compiled a list of the specific rights that Kabuga must be able to exercise in order to
be considered fit to stand trial, and properly considered whether he possessed the cognitive faculties
necessary to exercise each of these rights.84 According to the Defence, the Prosecution’s arguments
lack merit as Kabuga is not fit to participate in the proceedings by even the lowest standard of
fitness to stand trial.85 The Defence further argues that the Prosecution’s submission regarding
counsel’s role disregards the Experts’ conclusion that Kabuga suffers from severe cognitive decline
and that no accommodation would be sufficient to compensate for it.86
23.
The Appeals Chamber recalls that the applicable standard for determining whether an
accused is fit to stand trial is that of meaningful participation, which allows the accused to exercise
Prosecution Appeal, paras. 5, 6, 8, referring, inter alia, to Dissenting Opinion, paras. 5, 14; Prosecution Reply,
paras. 2, 3.
79
Prosecution Appeal, para. 6, referring to Impugned Decision, n. 144.
80
See Prosecution Appeal, paras. 7, 9.
81
Prosecution Appeal, para. 9, referring, inter alia, to Dissenting Opinion, para. 16.
82
See Prosecution Appeal, paras. 2, 10-13 and references cited therein.
83
Prosecution Appeal, para. 13.
84
Defence Response, paras. 26, 28.
85
Defence Response, para. 28.
86
Defence Response, para. 29.
78
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his fair trial rights to such a degree that he is able to participate effectively in his trial and has an
understanding of the essentials of the proceedings.87 The non-exhaustive list of capacities to be
evaluated when assessing an accused’s fitness to stand trial include the ability to: (i) plead; (ii)
understand the nature of the charges; (iii) understand the course of the proceedings; (iv) understand
the details of the evidence; (v) instruct counsel; (vi) understand the consequences of the
proceedings; and (vii) testify.88 What is therefore required for an accused to be deemed fit to stand
trial is an overall capacity allowing for a meaningful participation in the trial, provided that he is
duly represented by counsel.89 The Appeals Chamber notes that, in the Impugned Decision, the
Trial Chamber correctly articulated the applicable legal standard.90
24.
The Appeals Chamber further recalls that an accused represented by counsel cannot be
expected to have the same understanding of the material related to his case as a qualified and
experienced lawyer.91 Processing the wealth of complex information, inherent in international
criminal proceedings, is the role of defence counsel in order to advise their clients.92 Indeed, the
standard of fitness to stand trial indicates that “a defendant may sometimes require assistance to
participate in the proceedings”.93
25.
At the outset, the Appeals Chamber finds no merit in the Prosecution’s submission that the
Trial Chamber failed to scrutinize the expert evidence and, as a result, erroneously applied a
heightened legal standard in assessing Kabuga’s fitness to stand trial. In the Impugned Decision, the
Trial Chamber thoroughly set out the history of Kabuga’s health conditions, including by reference
to the twice monthly medical reports submitted by the UNDU Medical Officer, meticulously
outlined the Experts’ findings contained in the First and Second Joint Monitoring Reports, and
recounted in detail the Experts’ testimonies.94 The Trial Chamber also explicitly considered the
Decision of 12 August 2022, para. 11; Prosecutor v. Goran Hadžić, Case No. IT-04-75-AR73.1, Decision on
Prosecution’s Urgent Interlocutory Appeal from Consolidated Decision on the Continuation of Proceedings,
4 March 2016 (“Hadžić Decision of 4 March 2016”), para. 7; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A,
Judgement, 17 July 2008 (“Strugar Appeal Judgement”), para. 55.
88
Decision of 12 August 2022, para. 12 and references cited therein.
89
Decision of 12 August 2022, para. 12, referring to Strugar Appeal Judgement, para. 60.
90
Impugned Decision, paras. 26, 28.
91
Strugar Appeal Judgement, para. 60.
92
Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Public Redacted Version of the “Decision on a Motion to
Vacate the Trial Judgement and to Stay Proceedings” Filed on 30 April 2018, 8 June 2018 (“Mladić Decision of
8 June 2018”), p. 3; Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 30
November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013
(“Popović et al. Decision of 16 January 2013”), para. 22; Strugar Appeal Judgement, para. 60 (wherein the Appeals
Chamber of the ICTY held that “[e]ven persons in good physical and mental health, but without advanced legal
education and relevant skills, require considerable legal assistance, especially in cases of such complex legal and factual
nature as those brought before the Tribunal”).
93
Popović et al. Decision of 16 January 2013, para. 22.
94
Impugned Decision, paras. 2-4, 9, 12, 14, 16, 18-23 and references cited therein. See also Impugned Decision,
paras. 30-38.
87
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Prosecution’s argument that the Experts applied a higher standard than required for fitness to stand
trial.95 In reaching its conclusion, the Trial Chamber discussed in detail the medical evidence in
relation to each capacity relevant to its assessment of Kabuga’s fitness to stand trial.96 While the
Trial Chamber cited excerpts of the Experts’ evidence on the degree to which Kabuga possessed the
relevant capacities,97 it expressly noted the Experts’ conclusion that the level of Kabuga’s cognitive
function was limited to expressing his “will and preference” in areas related to his health and wellbeing, and that this limited ability to communicate does not enable Kabuga to participate
meaningfully in his trial, as such participation would require a higher level of cognitive functioning
than he possesses.98 The Trial Chamber also considered that Kabuga lacked a functioning memory
and an ability to process and express views about information that he could retain.99
26.
Contrary to the Prosecution’s assertion, the Appeals Chamber does not consider that the
Trial Chamber expected Kabuga to have the capacity to understand complex information and legal
concepts, or to process voluminous evidence. Rather, the Trial Chamber’s observation on the
complexity of the proceedings was made in the context of addressing the Prosecution’s claim that
the “essentials of this trial are simple and straightforward”:
[…] the Trial Chamber does not agree with the Prosecution contention that the essentials of this
trial are simple and straightforward or that it involves a ‘known body of evidence and a limited
number of issues in genuine contention’. […] On the contrary, the factual and legal issues arising
from the number and nature of the counts in the Indictment, including allegations of genocide,
conspiracy to commit genocide, persecution and extermination as crimes against humanity, and
murder, as well as allegations that Mr. Kabuga aided and abetted crimes committed by the
Interahamwe and that he was a member of a joint criminal enterprise are not only substantial, but
also involve a geographic scope that spans across different areas and locations in Kigali-Ville,
Kigali-Rural, Kibuye, and Gisenyi prefectures and acts and conduct from as early as 1992. […]
The case further involves a significant volume of evidence, including the oral and written evidence
of 103 witnesses, hundreds of audio-tapes of Radio Television Libre des Mille Collines, and
thousands of pages of written transcriptions of those tapes and prior transcripts and statements of
the witnesses.100
27.
When read in context, the Trial Chamber’s observation directly relates to its conclusion that
“at a minimum, a functioning memory, including the ability to retain information over a period of
time, as well as the ability to process and express a view about that information” were required.101
Nothing in the Trial Chamber’s observations, which are also directly relevant to its assessment of
Impugned Decision, para. 25, referring to T. 30 March 2023 pp. 20, 21, 25, 38-40, 44, 45.
Impugned Decision, paras. 30-35.
97
Impugned Decision, paras. 30-35.
98
Impugned Decision, para. 35, referring to Witness Kennedy, T. 15 March 2023 p. 11, T. 16 March 2023 pp. 6, 7, T.
17 March 2023 pp. 12, 13, Witness Mezey, T. 23 March 2023 pp. 15, 16, 36, Witness Cras, T. 29 March 2023 pp. 13,
14.
99
Impugned Decision, para. 36.
100
Impugned Decision, n. 144.
101
Impugned Decision, para. 36.
95
96
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the extent to which Kabuga could communicate with and instruct counsel, suggests that it applied
an incorrect legal standard.
28.
Similarly unpersuasive is the Prosecution’s assertion that, in assessing Kabuga’s fitness to
stand trial, the Trial Chamber failed to consider counsel’s role in representing Kabuga. In the
Impugned Decision, the Trial Chamber specifically noted the Experts’ agreement that Kabuga
lacked the crucial capacity to instruct counsel.102 In this regard, the Trial Chamber considered
expert evidence that Kabuga was no longer able to follow a regular conversation at a normal pace
or be engaged in a rational conversation with any substance or coherence,103 could follow
proceedings or understand evidence only at the most superficial level,104 and was unable to
understand the reasoning behind questions asked in court.105 The Trial Chamber also noted
evidence that the Experts struggled to elicit even very simple pieces of information from him.106 On
this basis, the Trial Chamber concluded that Kabuga was incapable of instructing counsel.107 The
Appeals Chamber recalls that an accused’s ability to meaningfully participate in trial is contingent
on whether he or she possesses the mental capacity to communicate, and thus consult, with
counsel.108 Indeed, the Appeals Chamber of the International Criminal Tribunal for the former
Yugoslavia (“ICTY”) has expressly acknowledged that an accused’s capacity to instruct counsel is
among a non-exhaustive list of rights “essential for determination of an accused’s fitness to stand
trial”.109 In view of the Trial Chamber’s detailed considerations, the Prosecution fails to show that
the Trial Chamber applied an incorrect legal standard by failing to account for the role of counsel in
the context of a represented accused.
29.
The Appeals Chamber also dismisses, as unsubstantiated, the Prosecution’s submission that
the Trial Chamber erred in failing to consider human rights norms requiring accommodations for
accused in cognitive decline. The Appeals Chamber recalls that, according to binding
jurisprudence, an accused’s fitness should turn on whether his or her capacities, “viewed overall
102
Impugned Decision, para. 31, referring, inter alia, to First Joint Monitoring Report, p. 8, Second Joint Monitoring
Report, RP. 5029, Witness Kennedy, T. 15 March 2023 p. 6, Witness Mezey, T. 23 March 2023 p. 39, Witness Cras, T.
29 March 2023 pp. 34, 35.
103
Impugned Decision, para. 32, referring to Witness Kennedy, T. 15 March 2023 p. 16, T. 16 March 2023 p. 22,
Witness Mezey, T. 23 March 2023 pp. 3, 4, 13, 14, Witness Cras, T. 29 March 2023 p. 49.
104
Impugned Decision, para. 33, referring to Witness Kennedy, T. 16 March 2023 p. 42, T. 17 March 2023 pp. 10, 13,
36-38, Witness Mezey, T. 23 March 2023 pp. 4, 14, 33, 37, 38.
105
Impugned Decision, para. 33, referring to Witness Cras, T. 29 March 2023 pp. 14 (where Dr. Cras stated that “given
the state of [Kabuga’s] dementia, I would think it would be very difficult to almost impossible to set up a sort of a
reasoning and argumentation together with his counsel”), 35, 49.
106
Impugned Decision, para. 32, referring to Witness Mezey, T. 23 March 2023 pp. 43, 44.
107
Impugned Decision, para. 33.
108
Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-A, Public Redacted Version of 13 December 2010 Decision
on Motion by Counsel Assigned to Milan Gvero Relating to his Present Health Condition, 16 May 2011 (“Popović et
al. Decision of 16 May 2011”), para. 11. See also Popović et al. Decision of 16 May 2011, para. 14.
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and in a reasonable and common sense manner, are at such a level that it is possible for him or her
to participate in the proceedings (in some cases with assistance) and sufficiently exercise the
identified rights”.110 Having recalled the previously instituted trial modalities and accommodations
to facilitate Kabuga’s meaningful participation in the trial,111 the Trial Chamber expressly
considered in the Impugned Decision the Experts’ unanimous conclusion that Kabuga’s physical
health and mental capacities had deteriorated significantly since their previous assessments, and
that he could not meaningfully participate in his trial regardless of trial modalities or
accommodations.112 The Trial Chamber’s considerations reflect adherence to binding jurisprudence
and are not inconsistent with the human rights norms to which the Prosecution points on appeal.
The Prosecution also fails to demonstrate that, based on the unequivocal expert medical evidence
before it, the Trial Chamber was unreasonable in finding that no accommodations could facilitate
Kabuga’s meaningful participation.
30.
Finally, to the extent that the Prosecution argues that the Trial Chamber’s evaluation of the
medical evidence was unreasonable, the Appeals Chamber recalls that it is for the Trial Chamber to
accept or reject, in whole or in part, the contribution of an expert witness.113 Just as with any other
evidence presented, it is for the Trial Chamber to assess the reliability and probative value of expert
reports and testimony.114 The Prosecution’s cursory submission that evidence on the record
indicates that Kabuga could exercise “a range of capacities, particularly with the assistance of
accommodations from within his Defence team”115 is inapposite, and merely shows disagreement
with the Trial Chamber’s assessment of the evidence before it, without demonstrating a discernible
error.
3. Alleged Error in Evaluating Evidence Relating to Kabuga’s Fitness
31.
Under its second ground of appeal, the Prosecution submits that the Trial Chamber abused
its discretion in evaluating the probative value of medical evidence relevant to Kabuga’s fitness to
stand trial,116 and in failing to consider Kabuga’s lack of cooperation when finding that he had
Strugar Appeal Judgement, paras. 41, 55.
Mladić Decision of 8 June 2018, pp. 2, 3; Popović et al. Decision of 16 January 2013, para. 21; Strugar Appeal
Judgement, para. 55. See supra para. 23.
111
See, e.g., Impugned Decision, paras. 8, 15.
112
Impugned Decision, paras. 16, 21, 30, referring to First Joint Monitoring Report, pp. 4, 10, Second Joint Monitoring
Report, RP. 5029, Witness Kennedy, T. 15 March 2023 pp. 12, 13, 20, 21, T. 16 March 2023 pp. 31-34,
T. 17 March 2023 pp. 14, 15, 25, 26, Witness Mezey, T. 23 March 2023 pp. 3, 4, 7, 10-12, 43, Witness Cras,
T. 29 March 2023 pp. 6, 9-11, 13.
113
Decision of 12 August 2022, para. 16 and references cited therein.
114
Decision of 12 August 2022, para. 16 and references cited therein.
115
See Prosecution Appeal, para. 9.
116
See Prosecution Appeal, paras. 2, 14-24.
109
110
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discharged his burden of proof that he was unfit to stand trial.117 The Defence responds that there is
no merit to the Prosecution’s arguments and that its appeal should be dismissed in its entirety.118
(a) Alleged Error in Evaluating the Probative Value of Expert Medical Evidence
32.
The Prosecution submits that the Trial Chamber committed a discernible error in relying
decisively on the Experts’ examinations of Kabuga, conducted in February 2023, and on the
resulting Second Joint Monitoring Report, notwithstanding “fundamental flaws” that rendered them
unreliable.119 Specifically, the Prosecution argues that: (i) the Experts’ examinations, which formed
the basis of the Second Joint Monitoring Report, were conducted for an hour or “much less” at a
time when Kabuga was suffering from three serious intercurrent illnesses;120 and (ii) Dr. Mezey
conducted her examinations of Kabuga over video instead of in person.121 The Prosecution also
argues that the Second Joint Monitoring Report reflects that the Experts failed to consider “multiple
key medical reports regarding Kabuga’s health situation” and that the Experts formed their opinions
about Kabuga’s cognitive capabilities whilst uninformed about the extent and severity of his
illnesses as documented in the UNDU Medical Reports.122 The Prosecution contends that the
Impugned Decision does not demonstrate a “critical evaluation” of the Second Joint Monitoring
Report or “note the paucity of sources for the [E]xperts’ cursory and unsubstantiated
conclusions”.123 In the Prosecution’s view, no reasonable trial chamber could have considered the
Experts’ opinions, formed under such circumstances, to be determinative of Kabuga’s actual
cognitive capacities.124
33.
The Defence responds that the Prosecution fails to demonstrate an error in the Trial
Chamber’s assessment of the Experts’ evidence.125 The Defence contends that the Trial Chamber
explicitly considered factors that could have impacted the accuracy of the Experts’ diagnosis,126 and
that any suggestion that the Second Joint Monitoring Report stands in isolation is inaccurate, given
that the report was the culmination of a lengthy evaluation process that began in November 2020.127
The Defence further contends that the Experts’ observations show that it is the damage to Kabuga’s
See Prosecution Appeal, paras. 2, 14, 23, 25-29.
See Defence Response, p. 8. See also Defence Response, paras. 30-36.
119
Prosecution Appeal, paras. 14-24.
120
Prosecution Appeal, paras. 16-20.
121
Prosecution Appeal, paras. 21, 22. The Appeals Chamber addresses the Prosecution’s submission in relation to
Kabuga’s alleged lack of cooperation (see Prosecution Appeal, para. 23) in Section II.B.3.(b) below.
122
Prosecution Appeal, paras. 17-19, 24.
123
Prosecution Appeal, paras. 14, 24, 29.
124
Prosecution Appeal, para. 19.
125
Defence Response, para. 32.
126
Defence Response, paras. 30-33.
127
See Defence Response, paras. 1-20.
117
118
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brain that has led to his physical and mental incapacity and not any intercurrent illnesses.128 The
Defence asserts, in this regard, that Kabuga’s MRI scan results and the respective Experts’ opinions
suggest, inter alia, that there are specific areas of his brain that have been effectively destroyed,
which is clear evidence of changes normally associated with Alzheimer’s disease, and that there is a
damage to the brain consistent with dementia.129
34.
The Prosecution replies that the sources relied upon by the Defence concern the period
when Kabuga was found fit to stand trial and that the subsequent medical reports, up to his
intercurrent illnesses in the winter of 2022, do not reflect a consistent picture of decline.130 The
Prosecution adds that Kabuga exaggerates claims about his “acute difficulties in understanding”,
which are not consistent with the record, and that the Defence’s heavy reliance on the MRI scans is
misplaced as the Experts cautioned that brain scans are not determinative of functional
capabilities.131
35.
The Appeals Chamber recalls that a trial chamber’s decision with respect to the evaluation
of expert evidence is discretionary.132 In order to successfully challenge a discretionary decision, a
party must demonstrate that the trial chamber committed a discernible error resulting in prejudice to
that party.133 The Appeals Chamber will only overturn a trial chamber’s discretionary decision
where it is found to be based on an incorrect interpretation of governing law or on a patently
incorrect conclusion of fact, or because it was so unfair or unreasonable as to constitute an abuse of
the trial chamber’s discretion.134
36.
With respect to the Prosecution’s contention that the Trial Chamber erred in relying on the
Experts’ examinations of Kabuga, the Appeals Chamber notes that the Trial Chamber explicitly
considered that Kabuga was in recovery from intercurrent illnesses when examined by the Experts
and that this might have had some minor effect on their examinations.135 However, the Trial
Chamber accepted the Experts’ unanimous view, expressed in their testimony following the Second
Joint Monitoring Report, that the intercurrent illnesses did not materially affect their conclusions
128
Defence Response, para. 20.
See Defence Response, paras. 11-19. See also Defence Response, paras. 35, 36.
130
Prosecution Reply, para. 4.
131
Prosecution Reply, paras. 5, 6, referring to Defence Response, para. 6.
132
Decision of 12 August 2022, para. 11 and references cited therein.
133
Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. 15-96-A, Judgement, 31 May 2023 (public redacted)
(“Stanišić and Simatović Appeal Judgement”), paras. 288, 592; Decision of 12 August 2022, para. 11 and references
cited therein.
134
See Stanišić and Simatović Appeal Judgement, para. 581; Decision of 12 August 2022, para. 11 and references cited
therein.
135
Impugned Decision, para. 37.
129
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regarding Kabuga’s inability to participate meaningfully in the trial.136 In accepting the Experts’
opinion on this matter, the Trial Chamber referenced portions of Dr. Kennedy’s testimony that
Kabuga’s ability “to care for himself and to manage certain aspects of his person had deteriorated in
a way that is objective and […] continuous and is more than can be accounted for by the recent
intercurrent illnesses”,137 and that it was “very improbable” that lingering effects from the recent
illnesses could have affected his analysis of the situation.138 It further noted that Dr. Mezey did not
think that Kabuga’s functioning was affected or disadvantaged in any way by an underlying
physical condition.139
37.
While the Prosecution highlights that Dr. Kennedy and Dr. Cras considered that an
additional examination, conducted when Kabuga is not suffering or recovering from serious
intercurrent illness, might contribute to understanding Kabuga’s cognitive capabilities and secure
the determination of Kabuga’s baseline cognitive abilities,140 all three Experts considered it unlikely
that such an examination would change their conclusion.141 In addition, Dr. Mezey stated that,
given that Kabuga experiences regular physical health crises and is “in a chronically low level”, it
would be very difficult to find Kabuga “at a point when he hasn’t just recently recovered from a
physical illness or isn’t about to develop another physical health condition”.142 The Trial Chamber
also accepted conclusive evidence that Kabuga’s cognitive and physical functions have
progressively and severely deteriorated and that he suffers from severe dementia, which is
progressive and irreversible.143 Considering the Trial Chamber’s discretion in evaluating expert
evidence, including to accept or reject, in whole or in part, and to assess the reliability and probative
value of such evidence,144 the Appeals Chamber finds that the Prosecution has failed to demonstrate
that, in evaluating the evidence before it, the Trial Chamber committed a discernible error.
38.
To the extent that the Prosecution alleges that the length of the examinations further
compounded the unreliability of the Experts’ conclusions,145 the Appeals Chamber finds the
136
Impugned Decision, para. 37, n. 146, referring to Witness Kennedy, T. 15 March 2023 pp. 12, 16, T. 16 March 2023
pp. 14, 15, 35, 36, T. 17 March 2023 pp. 23, 28, 32, 33, Witness Mezey, T. 23 March 2023 pp. 27-29, 31, 32, Witness
Cras, T. 29 March 2023 pp. 39, 48.
137
Impugned Decision, n. 146, referring, inter alia, to Witness Kennedy, T. 15 March 2023 p. 12.
138
Impugned Decision, n. 146, referring, inter alia, to Witness Kennedy, T. 17 March 2023 p. 23.
139
Impugned Decision, n. 146, referring, inter alia, to Witness Mezey, T. 23 March 2023 p. 32.
140
Prosecution Appeal, para. 19, n. 75, referring to Witness Cras T. 29 March 2023 pp. 38, 39, Witness Kennedy,
T. 16 March 2023 pp. 25, 26.
141
Impugned Decision, n. 146, referring, inter alia, to Witness Cras, T. 29 March 2023 p. 48, Witness Kennedy,
T. 17 March 2023 p. 22, Witness Mezey, T. 23 March 2023 p. 32.
142
Impugned Decision, n. 146, referring to Witness Mezey, T. 23 March 2023 p. 32.
143
Impugned Decision, paras. 30, 31, 33, referring, inter alia, to Witness Kennedy, T. 16 March 2023 p. 34, Witness
Mezey, T. 23 March 2023 pp. 11, 12, Witness Cras, T. 29 March 2023 p. 13.
144
Decision of 12 August 2022, para. 15 and references cited therein.
145
Prosecution Appeal, para. 17.
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Prosecution’s submission to be speculative. Significantly, the Trial Chamber was appraised of
Dr. Kennedy’s statement, after his first interview with Kabuga, that Kabuga was “able to engage for
progressively less time” due to “complains of fatigue”, which “is in keeping with a clinical picture
whereby he cognitively fatigues quite quickly on effort, on cognitive effort, on mental effort”.146
The Prosecution fails to substantiate its submission that the length of the medical examinations had
an impact on their quality or undermines the reliability of the Experts’ conclusions.
39.
The Appeals Chamber also finds unpersuasive the Prosecution’s contention that the Trial
Chamber erred in relying on Dr. Mezey’s conclusion, given that she interviewed Kabuga by video
in both November 2022 and February 2023. The Appeals Chamber observes that the Trial Chamber
expressly noted Dr. Mezey’s impressive credentials and extensive experience as an expert forensic
psychiatrist, in particular her expertise in the assessment, treatment, and rehabilitation of mentally
disordered offenders.147 Cognizant of Dr. Mezey’s expertise and taking into account that she had
previously examined Kabuga extensively in person and was aware of the other experts’ examining
him in person, the Trial Chamber found that the remote nature of Dr. Mezey’s interview of Kabuga
did not undermine the value of her expert opinion.148 In reaching this conclusion, the Trial Chamber
also explicitly noted that the Second Joint Monitoring Report completed and affirmed the Experts’
assessments made three months earlier, and considered that it should be read in conjunction with
the First Joint Monitoring Report and previous reports by Dr. Kennedy and Dr. Mezey.149
40.
In addition, the Appeals Chamber considers insufficient the Prosecution’s reliance on
isolated portions of Dr. Kennedy’s and Dr. Cras’s testimonies, commenting on the advantages of an
“in-person” over a remote assessment,150 to demonstrate an error in the Trial Chamber’s evaluation
of the evidence before it. While Dr. Mezey did not conduct a “Mini Mental State Examination”
during the remote examination as pointed by the Prosecution,151 the record before the Trial
Chamber indicated that Dr. Mezey had conducted such a test to measure possible cognitive decline
during her first examination of Kabuga, and viewed the test as “not particularly useful […] to
measure progression” or necessary to be repeated “unless the clinical findings were very different
See Impugned Decision, n. 147, referring, inter alia, to Witness Kennedy T. 15 March 2023 pp. 14, 15.
See Impugned Decision, para. 30, n. 71.
148
Impugned Decision, para. 38.
149
Impugned Decision, para. 38. See also Impugned Decision, para. 30; Second Joint Monitoring Report, RP. 5030;
Witness Kennedy, T. 16 March 2023 p. 31 (affirming that the Experts’ diagnosis of dementia was based on the personal
examination of Kabuga by Dr. Kennedy and Dr. Cras, reports from the UNDU Medical Officer, interviews with people
who would care for Kabuga on a daily basis and “earlier knowledge and assessment to discern a pattern over time”);
Witness Cras, T. 29 March 2023 p. 6 (indicating that Kabuga’s deterioration is a progressive process).
150
Prosecution Appeal, para. 21, n. 79, referring, inter alia, to Witness Cras, T. 29 March 2023 pp. 44, 45, Witness
Kennedy, T. 16 March 2023 pp. 8, 9.
151
Prosecution Appeal, para. 21, n. 81, referring to Witness Mezey, T. 23 March 2023 pp. 12, 19, 20.
146
147
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from what was found on the first occasion”.152 In any event, irrespective of the different modalities
of the Experts’ examinations of Kabuga, their conclusions regarding Kabuga’s capacities
converged.153 In view of the Trial Chamber’s detailed discussion of the record before it, the
Appeals Chamber dismisses the Prosecution’s claim that the Trial Chamber erred in failing to find
that Dr. Mezey’s remote interview of Kabuga undermined the value of her conclusions.
41.
The Appeals Chamber further finds no merit in the Prosecution’s contention that the Second
Joint Monitoring Report reflects that the Experts failed to consider multiple key medical reports and
were unaware of the seriousness of Kabuga’s physical illnesses.154 While the Second Joint
Monitoring Report does not mention Kabuga’s intercurrent illnesses, it nevertheless reflects that the
Experts read and considered numerous reports by the UNDU Medical Officer, which documented
Kabuga’s contemporaneous medical situation.155 The Second Joint Monitoring Report also reflects
that, during their assessment, Dr. Kennedy and Dr. Cras interviewed prison nursing staff, reviewed
Kabuga’s electronic health records, and spoke to the treating UNDU Medical Officer.156
Importantly, in their testimonies before the Trial Chamber following the filing of the Second Joint
Monitoring Report, the Experts expressly commented on Kabuga’s intercurrent illnesses, stating
that such illnesses did not materially affect their conclusions regarding Kabuga’s inability to
participate meaningfully in the trial.157
42.
Finally, concerning the Prosecution’s general contention that the Trial Chamber failed to
critically evaluate the Second Joint Monitoring Report, the Appeals Chamber recalls that it is for a
trial chamber to assess the reliability and probative value of the expert evidence before it.158 In
reaching its conclusion on Kabuga’s fitness to stand trial, the majority of the Trial Chamber
extensively discussed various aspects of the Experts’ evaluation of Kabuga’s cognitive
capacities.159 The Trial Chamber, by majority, considered that the key evidence before it came from
the three Experts, “each of whom has impressive credentials and extensive relevant experience”.160
Having outlined the evidence and the points of agreement reached by the Experts, including in the
Witness Mezey, T. 23 March 2023 p. 21; Prosecutor v. Félicien Kabuga, Case No. MICT-13-38-PT, Registrar’s
Submission in Relation to the “Supplemental Order on Order for Further Independent Medical Expert Evaluation” of
14 January 2022, 31 January 2022 (confidential with confidential annex) (“Dr. Mezey’s Report of 28 January 2022”),
Annex, pp. 3, 9.
153
See Impugned Decision, paras. 30-35.
154
See Prosecution Appeal, paras. 16, 17, 24.
155
Second Joint Monitoring Report, RP. 5030, 5029. See UNDU Medical Report of 25 January 2023, paras. 2, 3;
UNDU Medical Report of 8 February 2023, paras. 2, 5; UNDU Medical Report of 21 February 2023, paras. 2, 3, 6.
156
Second Joint Monitoring Report, RP. 5029. See also Witness Kennedy, T. 15 March 2023 p. 14, T. 16 March 2023
pp. 11-15, 31.
157
See supra para. 36.
158
See supra paras. 30, 37.
159
See Impugned Decision, paras. 30-38 and references cited therein. See also Impugned Decision, paras. 9, 16, 18-23.
152
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Second Joint Monitoring Report, and having extensively discussed the Experts’ conclusions,161 the
Trial Chamber was satisfied that the vast majority of the evidence before it supported the
conclusion that Kabuga was unfit for trial.162 The Trial Chamber also noted that nothing in its own
observations of Kabuga during the proceedings was contrary to the collective findings of the
Experts.163 Notably, in reaching this conclusion, the Trial Chamber was mindful of the issues to
which the Prosecution points on appeal – such as those related to Kabuga’s intercurrent illnesses
and remote examinations by Dr. Mezey.164 Accordingly, the Appeals Chamber finds that the
Prosecution fails to demonstrate that the Trial Chamber committed a discernible error in evaluating
the evidence before it.
(b) Alleged Failure to Account for Kabuga’s Lack of Cooperation
43.
The Prosecution submits that the Trial Chamber erred in not giving any, or sufficient,
weight to Kabuga’s long-term lack of cooperation in the context of the medical assessments.165 In
particular, the Prosecution submits that the Trial Chamber failed to account for Kabuga’s
uncooperative behaviour in accepting that malingering was unlikely and in concluding that Kabuga
had discharged his burden of proving unfitness.166 In this regard, the Prosecution contends that the
accuracy of the clinical assessment was undermined by Kabuga’s persistent refusal to wear
prescribed hearing aids during medical examinations, repeated refusal to participate in or complete
formal screening tests for dementia, and failure to provide all medical information relevant to the
assessment of his fitness.167 The Prosecution submits that previous medical assessments of Kabuga
show that some of his answers were atypical for dementia, suggesting he was not being forthright,
that gaps in his memory may be explained by his desire to protect family members,168 and that the
lack of cooperation might indicate will or the intent of not being evaluated properly.169 According
to the Prosecution, since the medical diagnosis for dementia is based on the totality of clinical
observations, Kabuga’s lack of cooperation rendered the overall assessment less reliable.170
160
Impugned Decision, para. 30.
See Impugned Decision, paras. 18-23, 30-35, 38.
162
Impugned Decision, para. 30.
163
Impugned Decision, para. 38.
164
Impugned Decision, paras. 37, 38.
165
Prosecution Appeal, para. 25.
166
Prosecution Appeal, paras. 2, 3, 25, 28, 29.
167
Prosecution Appeal, para. 26. See also Prosecution Reply, n. 11.
168
Prosecution Appeal, paras. 27, 29.
169
Prosecution Appeal, para. 28.
170
Prosecution Appeal, para. 29.
161
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44.
In response, the Defence objects to the Prosecution’s contention that Kabuga’s alleged lack
of cooperation undermined the Trial Chambers’ assessment.171 The Defence asserts that Kabuga
met with and answered questions from seven different experts over a period of three years, and that
his interactions with the UNDU Medical Officers form the basis of numerous medical reports.172
According to the Defence, if Kabuga was unable to answer questions or complete tests, it was due
to his dementia caused by the physical damage to his brain.173
45.
At the outset, the Appeals Chamber considers that the Prosecution’s reliance on
jurisprudence from another case - to show that an accused’s lack of cooperation renders an
assessment of competency to stand trial impossible - is inapposite as it concerns distinguishable
factual circumstances.174 The Appeals Chamber notes that, in reaching its decision on Kabuga’s
lack of fitness to stand trial, the Trial Chamber thoroughly considered the record before it and
accepted the Experts’ view that Kabuga’s fatigue and partial lack of cooperation during the
examinations did not undermine the Experts’ conclusions.175 The Trial Chamber also specifically
noted the Experts’ opinion attributing any alleged “lack of cooperation” to the deterioration of
Kabuga’s brain function,176 and that the Experts’ conclusions on Kabuga’s fitness did “not rely
solely on the examinations, but also […] on information contained in the medical records and
obtained from staff who care for Kabuga”.177 The Trial Chamber considered that such records and
clinical information revealed a significant decline in Kabuga’s ability to care for himself, which
was another indication of decline in cognitive functions.178 The Trial Chamber further considered
evidence that Kabuga experiences episodic confusion, his capacities to engage in expressive and
receptive communication are limited,179 and that the Experts struggled to elicit even very simple
pieces of information from Kabuga.180 In view of the Trial Chamber’s detailed discussion of the
record before it, the Prosecution does not demonstrate that the Trial Chamber committed a discernible
error by failing to accord sufficient weight to Kabuga’s partial lack of cooperation.
171
Defence Response, para. 34.
Defence Response, para. 34.
173
Defence Response, para. 34.
174
Prosecution Appeal, n. 91, referring, inter alia, to Prosecutor v. Milorad Trbić, Case No. IT-05-88/1-PT, Order in
Regard to the Preparation for Trial, 21 March 2007 (confidential), pp. 2, 4.
175
Impugned Decision, para. 37, n. 147.
176
Impugned Decision, para. 37, n. 147, referring, inter alia, to Witness Kennedy, T. 15 March 2023 p. 14, Witness
Kennedy, T. 16 March 2023 p. 14 (private session), Witness Mezey, T. 23 March 2023 pp. 5-7 (private session),
Witness Cras, T. 29 March 2023 pp. 7, 8 (private session), 27, 28, 33.
177
Impugned Decision, para. 37, n. 147, referring, inter alia, to Witness Kennedy, T. 15 March 2023 pp. 13-16.
178
Impugned Decision, para. 37, n. 148, referring, inter alia, to Witness Kennedy, T. 17 March 2023 p. 17.
179
Impugned Decision, para. 31, n. 127, referring, inter alia, to First Joint Monitoring Report, p. 4; Second Joint
Monitoring Report, RP. 5029.
180
Impugned Decision, para. 32, n. 133, referring to Witness Mezey, T. 23 March 2023 pp. 43, 44.
172
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46.
The Appeals Chamber further considers unsubstantiated the Prosecution’s submission that
the Trial Chamber failed to account for Kabuga’s uncooperative behavior in accepting the Experts’
conclusion that malingering was unlikely. The Trial Chamber noted the Experts’ unanimous
opinion that Kabuga suffers from “severe dementia”.181 While a medical diagnosis alone does not
suffice to assess an accused’s competency to stand trial,182 the Appeals Chamber sees no error in
the Trial Chamber’s reliance on Kabuga’s diagnosis in accepting the testimony of Dr. Kennedy and
Dr. Cras that simulating or malingering is “quite rare to non-existent” in dementia.183
47.
Finally, while in the Impugned Decision the Trial Chamber did not explicitly discuss some
of the specific factors outlined by the Prosecution on appeal, such as Kabuga’s refusal to wear
hearing aids, to participate in screening tests, and to provide medical information, the Appeals
Chamber recalls that a trial chamber need not refer to every single piece of evidence on the record
or articulate every step of its reasoning.184 The Appeals Chamber observes that the Prosecution
refers to evidence, which in fact suggests that Kabuga’s medical assessment on several occasions
was “difficult” in light of his serious hearing loss,185 that, on one occasion in early 2022, Kabuga
did not want to do a memory test,186 and that Kabuga’s claim of fatigue during the examinations
conducted in 2021 were not supported by medical evidence.187 The Prosecution also points out that,
on one occasion in February 2022, Kabuga expressed reluctance for the release of a medical report,
and claims that Kabuga’s medical records, predating his arrest and transfer to the Mechanism in
October 2020, were never shared with the Experts.188 The Appeals Chamber considers that the
Prosecution’s selective reliance on the record merely demonstrates its disagreement with the Trial
Chamber’s assessment189 and is insufficient to demonstrate that the Trial Chamber committed a
discernible error, particularly in light of the extensive medical evidence considered by the Experts
181
Impugned Decision, para. 30.
Decision of 12 August 2022, para. 20 and references cited therein.
183
Impugned Decision, para. 37, n. 149, referring to Witness Kennedy, T. 15 March 2023 pp. 15, 16, T. 16 March 2023
pp. 31, 32, Witness Cras, T. 29 March 2023 pp. 28, 45, 46.
184
Stanišić and Simatović Appeal Judgement, paras. 246, 312 and references cited therein.
185
See, e.g., Prosecution Appeal, para. 26, n. 95, referring to Witness Cras, T. 29 March 2023 pp. 17, 18.
186
Prosecution Appeal, para. 26, n. 96, referring to Witness Kennedy, T. 31 May 2022 p. 11.
187
Prosecution Appeal, para. 26, n. 97.
188
Prosecution Appeal, para. 26, n. 99.
189
Compare, e.g., Prosecution Appeal, para. 26, n. 99 (referring to UNDU Medical Report of 16 February 2022
(confidential), p. 1) with UNDU Medical Report of 4 January 2023 (confidential), RP. 4711, para. 2. See also Dr.
Mezey’s Report of 28 January 2022, pp. 6, 14, 16, paras. 16, 17; First Joint Monitoring Report, p. 4; Witness Kennedy,
T. 15 March 2023 pp. 5 (stating that “[Kabuga] did not complete many of the tasks we asked him to take part in but
those that he did complete for us were completed inaccurately in various ways, indicative of lack of ability”), 16, 17,
T. 16 March 2023 p. 29, T. 17 March 2023 p. 16; Witness Mezey, 23 March 2023 pp. 12, 19, 21; Witness Cras,
T. 29 March 2023 pp. 4, 12, 29, 30, 46 (wherein he stated that: “Some of the tests that we used and that a
neuropsychologist has used do not depend on verbal interactions. So even if it’s a challenge, we are still convinced that
we could do most of the assessment thoroughly […].”); UNDU Medical Report of 16 November 2022; UNDU Medical
Report of 30 November 2022; UNDU Medical Report of 14 December 2022; UNDU Medical Report of
11 January 2023; UNDU Medical Report of 8 February 2023.
182
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in forming their opinions and the Trial Chamber’s broad discretion in weighing and assessing the
evidence before it.190
4. Conclusion
48.
As found above, the Prosecution has failed to demonstrate that the Trial Chamber erred in
law by applying an incorrect legal standard when determining that Kabuga is not fit to stand trial.
The Prosecution also has not demonstrated that the Trial Chamber abused its discretion in
evaluating the evidence relating to Kabuga’s fitness to stand trial. Accordingly, the Prosecution
Appeal is dismissed.
C. The Defence Appeal
1. Background
49.
In the Impugned Decision, the Trial Chamber considered that the Statute and the Rules of
the Mechanism and its predecessor tribunals were silent on the applicable procedure following a
finding that an accused is not fit to stand trial, and that there was similarly no Appeals Chamber
jurisprudence directing how to proceed in such circumstances.191 Relying on its discretion to
manage the proceedings before it, the Trial Chamber considered it to be its obligation “to identify a
procedure, in line with its duty to respect and ensure respect for all generally accepted human rights
norms, especially the rights of the accused as set forth in the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights, and the [Convention on the Rights
of Persons with Disabilities]”, and with due regard to the “purposes for which the Mechanism and
its predecessor tribunals were established, including contributing to the restoration and maintenance
of peace and security”.192 In this regard, the Trial Chamber considered three options following its
finding that Kabuga was not fit to stand trial: (i) terminating the proceedings; (ii) staying the
proceedings; or (iii) conducting an “alternative finding procedure”.193
50.
In relation to the first option, the Trial Chamber considered that terminating the proceedings
would not be appropriate in light of the importance of “addressing the crimes against humanity and
genocide charges against [Kabuga] to the victims and survivors of those crimes, and to the
international community as a whole”.194 In relation to the possibility of staying the proceedings, the
See Stanišić and Simatović Appeal Judgement, paras. 121, 122, 142, 173, 387 and references cited therein.
Impugned Decision, paras. 40, 45.
192
Impugned Decision, para. 45 and references cited therein.
193
Impugned Decision, para. 46.
194
Impugned Decision, para. 47.
190
191
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Trial Chamber noted that, in cases before international courts involving unfit accused, courts have
generally stayed the proceedings, maintaining jurisdiction in the event the accused regained
fitness.195 In deciding, however, that a stay of proceedings was not appropriate in the present case,
the Trial Chamber considered that, with the exception of one case before the Extraordinary
Chambers in the Courts of Cambodia, cases in which international courts have stayed proceedings
“have virtually all involved accused persons who had a realistic prospect of regaining fitness”.196
The Trial Chamber further considered that staying proceedings indefinitely, while an accused is
very unlikely to regain fitness, “deprives that accused of an opportunity to establish his or her
innocence of the charged offences” and to be unconditionally released.197 The Trial Chamber also
took into consideration the goals of the Mechanism, including combating impunity and contributing
to the restoration and maintenance of peace in Rwanda, the strong public interest, including the
interest of victims and survivors, and the fact that, until the date of his arrest, Kabuga had evaded
justice for over two decades.198
51.
Having found that neither terminating nor imposing a stay of proceedings were appropriate
ways to proceed in the circumstances,199 the Trial Chamber, by majority, determined that “the best
way to ensure respect for [Kabuga’s] rights and to effectuate the goals of the Mechanism is to adopt
an alternative finding procedure that resembles a trial as closely as possible, but without the
possibility of a conviction”.200 In delineating the parameters of this procedure, the Trial Chamber
held that the Prosecution would still bear the burden of proving beyond reasonable doubt “both the
actus reus and mens rea of each charge”201 and that the Trial Chamber “will seek to facilitate
[Kabuga’s] participation in the alternative finding proceedings to the extend he is able and is
reasonably practicable”.202 The Trial Chamber noted, however, that, Kabuga’s lack of fitness to
participate effectively in the trial and the fact that the proceedings will not result in a conviction
make his attendance “unnecessary” and that Kabuga “will, therefore, not be required to attend”.203
52.
In adopting an “alternative finding procedure”, the majority of the Trial Chamber relied on
similar procedures being held in England and Wales, Scotland, New Zealand, South Africa,
Australia, Guatemala, and the state of New Mexico in the United States of America.204 The Trial
195
Impugned Decision, para. 48, n. 187.
Impugned Decision, para. 49.
197
Impugned Decision, para. 50.
198
Impugned Decision, para. 51.
199
Impugned Decision, paras. 47, 51.
200
Impugned Decision, para. 57.
201
Impugned Decision, para. 57.
202
Impugned Decision, para. 58.
203
Impugned Decision, para. 58.
204
Impugned Decision, para. 52, nn. 198, 199.
196
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Chamber noted that a common feature of these procedures that distinguished them from full trials
was that they could not result in a conviction, as such an outcome would violate the rights of an
accused found unfit,205 and that these jurisdictions considered the “continued detention of an unfit
accused […] sometimes necessary to protect the accused and the public”.206 The Trial Chamber
observed that such procedures generally differed in relation to the burden of proof and whether
proof of both actus reus and mens rea was required,207 and in relation to the presence of the
accused.208 Notwithstanding, the Trial Chamber noted that the Law Commission of England and
Wales had recommended a new procedure, which it called an “alternative finding procedure”, that
would require proof of both actus reus and mens rea, and that the Commission had also
recommended supporting the participation of an unfit accused to the greatest extent feasible.209
53.
As noted above, the Defence advances three grounds of appeal, arguing that the Trial
Chamber erred in law in failing to order a stay of proceedings, in deciding to hold an “alternative
finding procedure”, and in failing to order Kabuga’s release.210 Given that the second ground of the
Defence Appeal relates to an issue that is central to the Impugned Decision, the Appeals Chamber
considers it appropriate to address it first.
2. Alleged Error in Adopting an “Alternative Finding Procedure”
54.
The Defence contends that the Trial Chamber erred in law in determining that it had the
discretion to conduct an “alternative finding procedure”,211 which constitutes a novel procedure
with no legal basis.212 In relation to the Trial Chamber’s discretionary power, the Defence argues
that neither the Statute nor the Rules provide for the procedure adopted by the Trial Chamber,
which, in itself, is a breach of Articles 18 and 19 of the Statute, given that Kabuga is unable to
exercise his fundamental rights due to his lack of fitness to stand trial.213 According to the Defence,
the purposes cited by the Trial Chamber for the establishment of the Mechanism and its predecessor
tribunals similarly do not justify the adoption of a new procedure, which fails to meet the
requirements for a fair trial.214 The Defence further argues that, in view of the limited number of
national jurisdictions that provide for a procedure similar to the one adopted by the Trial Chamber,
205
Impugned Decision, para. 53.
Impugned Decision, para. 53.
207
Impugned Decision, paras. 54, 56.
208
Impugned Decision, para. 55.
209
Impugned Decision, paras. 54, 55.
210
See supra para. 11.
211
Defence Appeal, paras. 68, 88-95, referring, inter alia, to Impugned Decision, paras. 40, 45.
212
Defence Appeal, paras. 62, 68, 69, 97-104.
213
Defence Appeal, paras. 63, 93-95, citing Dissenting Opinion, para. 32. See also Defence Appeal, para. 100.
214
Defence Appeal, paras. 65, 70, 96, referring to Impugned Decision, para. 45.
206
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such procedure is neither supported by a general principle of law nor has a basis in international
custom.215 The Defence claims that the procedure also infringes the principles of legality and
equality before the law,216 and is counter to the rationale underpinning the “[United Nations]
guidelines on persons with disabilities”.217
55.
The Prosecution responds that, in view of the absence of an established procedure
prescribing the consequences of an unfitness finding, the Trial Chamber reasonably identified a
procedure in light of its broad discretion to manage the proceedings.218 Referring to the inherent
authority of the ICTY and the ICTR to prosecute allegations of contempt and to exercise
jurisdiction over joint criminal enterprise liability, none of which were explicitly mentioned in their
statutes and/or their rules of procedure and evidence, the Prosecution argues that the Mechanism
has inherent power to issue such rulings as necessary to exercise its express jurisdiction.219
According to the Prosecution, unlike staying the proceedings, which would keep Kabuga in limbo
and unable to exercise his right to defend himself against the charges, the “alternative finding
procedure” would give effect to the Mechanism’s jurisdiction to prosecute Kabuga in a manner that
prioritizes his rights.220 In this regard, the Prosecution claims that the Trial Chamber correctly took
into account the rights and fairness principles enshrined in Articles 18 and 19 of the Statute, and
appropriately resolved the ambiguity in the Statute in accordance with its object and purpose.221
56.
The Prosecution further asserts that the Trial Chamber was not required to base its approach
on customary international law or on a general principle of international law, and that it correctly
acknowledged that it had the duty to give effect to all relevant human rights norms, including those
set out in the Convention on the Rights of Persons with Disabilities.222 The Prosecution argues that
the “alternative finding procedure” is fully consistent with the protections afforded to accused
persons by the International Covenant on Civil and Political Rights and the European Convention
on Human Rights, and constitutes a reasonable accommodation mandated by the Mechanism’s
obligation to respect internationally recognized human rights norms.223 The Prosecution further
points out that, under the Convention on the Rights of Persons with Disabilities, persons with
disabilities must enjoy legal capacity and access to justice on an equal basis as those without
Defence Appeal, paras. 62, 97-99, citing Dissenting Opinion, para. 35.
Defence Appeal, paras. 62, 102, 103, citing Dissenting Opinion, para. 33.
217
Defence Appeal, para. 101.
218
Prosecution Response, paras. 10-13.
219
Prosecution Response, paras. 12, 13.
220
Prosecution Response, para. 14.
221
Prosecution Response, paras. 15, 16.
222
Prosecution Response, para. 17.
223
Prosecution Response, para. 17.
215
216
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disability and that, while national approaches may vary, the Trial Chamber correctly referred to a
non-exhaustive list of national examples.224
57.
The Appeals Chamber will first address the Defence argument that the Trial Chamber erred
in law in finding that it had the discretion to conduct an “alternative finding procedure”. To succeed
on appeal, the Defence needs to demonstrate that the Trial Chamber committed a specific error of
law that invalidates the Impugned Decision.225
58.
At the outset, the Appeals Chamber recalls that, in principle, trial chambers enjoy
considerable discretion in relation to the management of proceedings before them.226 Such
discretion is exercised in a plethora of circumstances, for instance, in relation to the joinder of
cases, the scheduling of trials, the admission and evaluation of evidence, in deciding points of
practice and procedure, including in assignment of counsel, in determining whether an accused
should be granted provisional release, and in imposing a sentence.227 The unprecedented nature of a
procedure, which is neither expressly allowed for nor specifically prohibited in the Statute or the
Rules, does not per se indicate that such procedure falls outside a trial chamber’s discretionary
power.228
59.
In the present case, relying on its discretion to manage the proceedings before it, the Trial
Chamber decided to adopt “an alternative finding procedure that resembles a trial as closely as
See Prosecution Response, paras. 17-22.
See Prosecutor v. Maximilien Turinabo et al., Case Nos. MICT-18-116-PT & MICT-18-116-AR79.1, Decision on
Prosecution Appeal Against Decision on Challenges to Jurisdiction, 28 June 2019, para. 5; Prosecutor v. FrançoisXavier Nzuwonemeye, Case No. MICT-13-43, Decision on the Appeal of the Single Judge’s Decision of 22 October
2018, 17 April 2019, para. 12; Prosecutor v. Radovan Karadžić, Case Nos. IT-95-5/18-AR72.1, IT-95-5/18-AR72.2,
IT-95-5/18-AR72.3, Decision on Radovan Karadžić’s Motions Challenging Jurisdiction (Omission Liability, JCE-IIISpecial Intent Crimes, Superior Responsibility), 25 June 2009, para. 10; Prosecutor v. Ante Gotovina et al., Case No.
IT-06-90-AR72.1, Decision on Ante Gotovina’s Interlocutory Appeal Against Decision on Several Motions
Challenging Jurisdiction, 6 June 2007, para. 7.
226
See, e.g., Stanišić and Simatović Appeal Judgement, para. 295; Prosecutor v. Ratko Mladić, Case No. MICT-13-56A, Judgement, 8 June 2021 (public redacted) (“Mladić Appeal Judgement”), para. 107; Prosecutor v. Radovan
Karadžić, Case No. MICT-13-55-A, Judgement, 20 March 2019 (public redacted) (“Karadžić Appeal Judgement”),
para. 72.
227
See, e.g., Stanišić and Simatović Appeal Judgement, paras. 288, 320; Prosecutor v. Félicien Kabuga, Case No.
MICT-13-38-AR80.2, Decision on an Appeal of a Decision on Félicien Kabuga’s Representation, 4 November 2022,
para. 16; Mladić Appeal Judgement, paras. 84, 539; Karadžić Appeal Judgement, para. 198; Prosecutor v. Nikola
Šainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 29; Prosecutor v. Slobodan Milošević, Case
No. IT-99-37-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder,
18 April 2002, para. 3.
228
Cf. Stanišić and Simatović Appeal Judgement, paras. 583, 592; Prosecutor v. Radovan Karadžić, Case No. IT-955/18-AR73.11, Decision on Appeal Against the Decision on the Accused’s Motion to Subpoena Zdravko Tolimir,
13 November 2013, para. 47; The Prosecutor v. Arséne Shalom Ntahobali and Pauline Nyiramasuhuko, Case No.
ICTR-97-21-AR73, Decision on “Appeal of Accused Arséne Shalom Ntahobali Against the Decision on Kanyabashi’s
Oral Motion to Cross-Examine Ntahobali Using Ntahobali’s Statements to Prosecution Investigators in July 1997”,
27 October 2006, para. 12.
224
225
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possible”.229 The Trial Chamber explained that, in the course of this procedure: (i) Kabuga’s
attendance would be unnecessary due to his lack of fitness to participate effectively in the trial
coupled with the fact that the procedure will not result in a conviction;230 and (ii) the Prosecution
would retain the burden to prove beyond reasonable doubt both the actus reus and mens rea
elements of each charge against Kabuga.231 The Appeals Chamber considers that, although
seemingly procedural in nature, the essential elements of the “alternative finding procedure”, as
defined by the Trial Chamber, impact Kabuga’s substantive rights “in the sense of there being a
legitimate expectation to be tried in a certain way in order to achieve the fundamental objective of a
fair trial”.232 The Appeals Chamber therefore considers that whether the Trial Chamber is vested
with discretion to conduct such an “alternative finding procedure” in lieu of a trial is ultimately a
question of statutory interpretation.233
60.
The Appeals Chamber recalls that the Statute is to be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms in their context and in light of its object and
purpose.234 Turning first to the terms of the Statute, the Appeals Chamber notes that, pursuant to
Article 1(2) of the Statute, the Mechanism has the power to prosecute the persons indicted by the
ICTR who are among the most senior leaders suspected of being most responsible for the crimes
covered by Article 1(1) of the Statute. In articulating the stages of the proceedings, Article 18(1) of
the Statute requires a trial chamber to ensure that the “trial” is fair and expeditious and that
proceedings are conducted in accordance with the Rules, with full respect for the rights of the
accused. Article 19 of the Statute, which in setting out the rights of the accused tracks Article 14 of
the International Covenant on Civil and Political Rights,235 provides that the accused shall be
229
Impugned Decision, paras. 45, 57.
Impugned Decision, para. 58.
231
Impugned Decision, para. 57.
232
See 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, para. 12.
233
See Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2000 (“Aleksovski Appeal
Judgement”), para. 98 (wherein, in discussing a question not expressly provided in its statute, the Appeals Chamber of
the ICTY held that “[r]eferences to the law and practice in various countries and in international institutions are not
necessarily determinative of the question as to the applicable law” and that “[u]ltimately, that question must be
answered by an examination of the [ICTY] Statute and Rules, and a construction of them which gives due weight to the
principles of interpretation (good faith, textuality, contextuality, and theology) set out in the 1969 Vienna Convention
on the Law of Treaties”).
234
The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015
(“Nyiramasuhuko et al. Appeal Judgement”), para. 2137, referring to Vienna Convention on the Law of Treaties,
23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 331. See also Prosecutor v. Zejnil Delalić et al., Case No.
IT-96-21-A, Judgement, 20 February 2001, paras. 67, 68; Aleksovski Appeal Judgement, para. 98; Prosecutor v. Duško
Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999 (“Tadić Appeal Judgement”), para. 282.
235
See Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement, 28 November 2007
(original filed in French, English translation filed on 16 May 2008) (“Nahimana et al. Appeal Judgement”), para. 96
(concerning equivalent Article 20 of the ICTR Statute); Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7,
Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel,
230
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presumed innocent until proven guilty, and shall be entitled to minimum guarantees, including to be
“tried” in his or her presence and to defend himself or herself in person or through legal assistance
of his or her own choosing. Pursuant to Article 21 of the Statute, at the conclusion of the trial, the
Trial Chamber shall pronounce a judgement and impose a sentence on an accused who has been
convicted. Under Articles 23 and 24 of the Statute, the right to appeal and to seek review of
judgement is afforded only to a convicted person and, in certain circumstances, to the Prosecution.
Finally, the Statute provides for the principle of non bis in idem, whereby no person shall be tried
before a national court for acts constituting serious violations of international humanitarian law
under the Statute, for which he or she has already been “tried” by the Mechanism.236
61.
The Appeals Chamber considers that a proper construction of the Statute, in accordance
with the ordinary meaning to be given to the terms in their context, provides for the conduct of
trials, without the possibility of conducting procedures that merely resemble trials in lieu of such
trials.237 This interpretation is also consistent with the object and purpose of the Statute as
envisaged in United Nations Security Council Resolution 1966, in which the United Nations
Security Council reaffirmed the need for the establishment of the Mechanism to carry out a number
of essential functions of the ICTR, including “the trial of fugitives who are among the most senior
leaders suspected of being most responsible for crimes”.238
62.
The Appeals Chamber further recalls that the Statute and the Rules of the Mechanism reflect
normative continuity with the statutes and rules of procedure and evidence of the ICTR and the
ICTY.239 In establishing the ICTR and adopting its statute, the United Nations Security Council
appears to have intended to give the ICTR jurisdiction to prosecute persons responsible for serious
violation of international humanitarian law through the conduct of trials.240 Hence, the
representative of the French delegation noted that individuals “must be brought to trial and
judged”.241 The Appeals Chamber observes that the Secretary-General’s Report of 13 February
1 November 2004 (“Milošević Decision of 1 November 2004”), para. 11 (concerning equivalent Article 21 of the
Statute of the ICTY).
236
See Article 7(1) of the Statute.
237
See Impugned Decision, para. 57 (wherein the Trial Chamber decided to adopt “an alternative finding procedure that
resembles a trial as closely as possible”).
238
United Nations Security Council, Resolution 1966 (2010), U.N. Doc. S/RES/1966(2010), 22 December 2010
(“UNSC Resolution 1966 (2010)”), p. 1 (emphasis added).
239
Augustin Ngirabatware v. The Prosecutor, Case No. MICT-12-29-A, Judgement, 18 December 2014
(“Ngirabatware Appeal Judgement”), para. 6, referring to Phénéas Munyarugarama v. Prosecutor, Case No. MICT-1209-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution
Motion to Strike, 5 October 2012 (“Munyarugarama Decision of 5 October 2012”), para. 5.
240
See United Nations Security Council Resolution 955 (1994), U.N. Doc. S/RES/955(1994), 8 November 1994
(“UNSC Resolution 955 (1994)”), pp. 1-3.
241
United Nations Security Council 49th Year 3453rd Meeting, UN Doc. S/PV.3453, 8 November 1994, p. 3 (address of
Mr. Mérimée) (emphasis added).
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1995 similarly refers to the ICTR mandate to hold “trial proceedings”.242 In his report, the
Secretary-General further emphasized that the establishment of the ICTR at a time when the ICTY
was already in existence, dictated a “unity of legal approach”.243 Notably, the Secretary-General’s
Report of 3 May 1993 concerning the establishment of the ICTY and the adoption of its statute sets
out detailed views on the stages of the proceedings and the related guarantees for the accused’s fair
trial rights by reference to “pre-trial proceedings, trial and post-trial proceedings”.244
63.
The Appeals Chamber echoes the Trial Chamber’s emphasis on the purpose for which the
ICTR was established, which includes contributing to the process of national reconciliation in
Rwanda and to the restoration and maintenance of peace.245 Indeed, the United Nations Security
Council unequivocally expressed its conviction in this regard when adopting the Statute of the
ICTR (“ICTR Statute”), which is also reflected in the statements of various delegates at the
meeting, who supported the establishment of the ad hoc tribunal as an instrument of national
reconciliation.246 Notwithstanding, a holistic reading of the relevant United Nations Security
Council resolutions concerning the establishment of the ICTR and the Mechanism reflects that the
framers intended to effect these goals through combating impunity by way of creating tribunals that
would investigate, prosecute, and conduct proceedings, for the “sole purpose” of holding
individuals criminally accountable for serious violations of international humanitarian law.247 It is
pertinent to recall in this regard that the fundamental mandate of the Mechanism to prosecute
persons responsible for serious violations of international humanitarian law cannot be achieved if
the accused and the Prosecution do not have the assurance of certainty and predictability in the
application of the applicable law.248
64.
The Appeals Chamber further recalls that it is bound to interpret the Statute and the Rules of
the Mechanism in a manner consistent with the jurisprudence of the ICTR and the ICTY.249
Mindful of its obligation in this regard, the Appeals Chamber observes that the elements of the
“alternative finding procedure”, as defined by the Trial Chamber, appear to circumvent certain
statutory guarantees afforded to all accused appearing before the Mechanism. In particular, the Trial
242
Report of the Secretary-General Pursuant to Paragraph 5 of Security Council Resolution 955 (1944), U.N. Doc
S/1995/134, 13 February 1995 (“UN Secretary-General’s Report of 13 February 1995”), paras. 36, 42.
243
UN Secretary-General’s Report of 13 February 1995, para. 9.
244
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc
S/25704, 3 May 1993 (“Secretary-General’s Report of 3 May 1993”), paras. 16, 99-107 (emphasis added).
245
See Impugned Decision, paras. 45, 51. See also UNSC Resolution 955 (1994), p. 1; UNSC Resolution 1966 (2010),
p. 1.
246
See UNSC Resolution 1966 (2010), p. 1. See also, e.g., UN Doc. S/PV.3453 (8 November 1994), pp. 6, 8, 10, 12.
247
UNSC Resolution 1966 (2010), p. 1; UNSC Resolution 955 (1994), pp. 1, 2. See also United Nations Security
Council Resolution 827 (1993), U.N. Doc. S/RES/827(1993), pp. 1, 2.
248
See Aleksovski Appeal Judgement, para. 113 (ii).
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Chamber’s conclusion that Kabuga’s attendance would be unnecessary in the course of the
“alternative finding procedure” appears incompatible with the plain reading of Article 19(4)(d) of
the Statute, which provides accused appearing before the Mechanism with the right to be tried in
their presence. Binding jurisprudence has interpreted this statutory guarantee to mean that an
accused has the right to be physically present at trial.250 The Appeals Chamber has emphasized that
the accused’s right to be tried in his or her presence is an “indispensable cornerstone of justice” and
that the physical presence of an accused before the court, as a general rule, is one of the most basic
and common precepts of a fair criminal trial.251
65.
The Appeals Chamber is cognizant that the right of an accused to be present at trial is not
absolute as it may be waived or forfeited by the accused or otherwise restricted based on substantial
trial disruptions on the part of an accused that are unintentional in nature.252 However, in assessing
a particular limitation on the right of an accused to be physically present, trial chambers are
required to take into account the proportionality principle, pursuant to which any restriction of a
fundamental right must be in service of a sufficiently important objective and must impair the right
no more than is necessary to accomplish the objective.253 The Appeals Chamber considers that,
under the Mechanism’s legal framework, this assessment can be made only in relation to an accused
who is fit to stand trial.254 For to continue a trial against an unfit accused is to deny him or her the
statutory guarantee to be tried in his or her presence.255 Indeed, the Appeals Chamber of the ICTY
and the ICTR has cautioned against holding proceedings in the absence of an accused falling under
Ngirabatware Appeal Judgement, para. 6; Munyarugarama Decision of 5 October 2012, para. 6.
See Hadžić Decision of 4 March 2016, para. 8; Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-0369-AR73.2, Decision on Defence Appeal of the Decision on Future Course of Proceedings, 16 May 2008 (“Stanišić and
Simatović Decision of 16 May 2008”), para. 6; Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73AR73, Decision on Interlocutory Appeal, 30 October 2006 (“Zigiranyirazo Decision of 30 October 2006”), paras. 1113.
251
Zigiranyirazo Decision of 30 October 2006, paras. 8, 11, referring to Milošević Decision of 1 November 2004,
paras. 11, 13.
252
Hadžić Decision of 4 March 2016, para. 8; Stanišić and Simatović Decision of 16 May 2008, paras. 6, 15;
Zigiranyirazo Decision of 30 October 2006, para. 14. The Appeals Chamber notes that the right of an accused who is fit
to stand trial to be present can be restricted on the basis of substantial trial disruptions, which need not be intentional.
See Milošević Decision of 1 November 2004, para. 14, n. 42 (wherein the Appeals Chamber of the ICTY considered the
assignment of counsel to an accused who was considered fit to stand trial but “whose health, while good enough to
engage in the ordinary and non-strenuous activities of everyday life, is not sufficiently robust to withstand all the rigors
of trial work”).
253
See Prosecutor v. Ratko Mladić, Case No. MICT-13-56-A, Decision on the Scheduling of the Appeal Hearing and a
Status Conference, 17 July 2020, para. 15; Hadžić Decision of 4 March 2016, para. 8; Stanišić and Simatović Decision
of 16 May 2008, para. 6; Zigiranyirazo Decision of 30 October 2006, para. 14.
254
See Hadžić Decision of 4 March 2016, para. 31 (wherein the Appeals Chamber of the ICTY invited the trial chamber
to “reassess, based on the available and updated medical records, whether Hadžić is fit for trial, and if it finds this to be
the case”, it ordered the trial chamber to “assess all reasonably available modalities for continuing the trial under the
proportionality principle” (emphasis added)).
255
See Zigiranyirazo Decision of 30 October 2006, para. 11 (wherein the Appeal Chamber of the ICTR held that the
physical presence of an accused before the ICTR “as a general rule, is one of the most basic and common precepts of a
fair criminal trial”).
249
250
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the primary jurisdiction of the ad hoc tribunals, unless the accused has waived his or her right to be
present.256 Combined with the inability of an unfit accused to instruct counsel,257 the jurisprudence
is clear that the prejudice to an accused resulting from continuing the trial, while he or she is unfit
to stand, would amount to a miscarriage of justice.258
66.
The Appeals Chamber further notes that, under the “alternative finding procedure”, the
Prosecution would be required to prove beyond reasonable doubt both the actus reus and mens rea
of the charged crimes without, however, the possibility of Kabuga being convicted.259 The Appeals
Chamber recalls that, under Rule 104 of the Rules, upon completion of the presentation of the
parties’ cases, a trial chamber must deliberate and decide separately on each charge contained in the
indictment on whether it is satisfied that guilt has been proven beyond reasonable doubt, and shall
impose a sentence in respect of each finding of guilt if it finds the accused guilty on one or more of
the charges. As the Appeals Chamber has previously held, the textual and contextual interpretation
of the Rules supports the principle that once a charge is proven beyond a reasonable doubt, a
finding of guilt follows.260 The jurisprudence is clear that “a trial chamber is bound to enter
convictions for all distinct crimes which have been proven in order to fully reflect the criminality of
the convicted person”.261 The “alternative finding procedure”, as delineated by the Trial Chamber,
appears incompatible with this requirement. In addition, while the difference between a trial
resulting in a conviction and proceedings in which all elements of the offence are proven but no
conviction entered may appear marginal on its face, the second scenario essentially runs counter to
See Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on the Outcome of the Proceedings, 29 June 2010,
n. 19; Nahimana et al. Appeal Judgement, paras. 96-109 and references cited therein; Prosecutor v. Tihomir Blaškić,
Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of
Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić Decision of 29 October 1997”), para. 59.
257
See Popović et al. Decision of 16 May 2011, para. 11; Zigiranyirazo Decision of 30 October 2006, para. 21 (wherein
the Appeals Chamber of the ICTR held that the attempts of the trial chamber in that case “to give full respect to both the
right to counsel and the principle of equality of arms do not compensate for the failure to accord the accused what is a
separate and distinct minimum guarantee: the right to be present at his own trial”). Moreover, it is in circumstances
where an accused’s refusal to communicate or instruct counsel frustrates the fair and expeditious trial that “[w]hat is
required of counsel is that they act in what they perceive to be the best interests of the Accused” and that this “is […] all
that can be reasonably expected of counsel in such circumstances”. See Prosecutor v. Vojislav Šešelj, Case No. IT-0367-AR73.3, Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006,
para. 45.
258
Strugar Appeal Judgement, para. 34 (wherein the Appeals Chamber of the ICTY considered that the issue of an
accused’s fitness to stand trial is of such importance that the immediate resolution by the Appeals Chamber of any
question of fitness would appear to be essential as “the prejudice to the accused resulting from continuing the trial while
he or she is unfit to stand trial would amount to a miscarriage of justice”).
259
Impugned Decision, para. 57.
260
See Prosecutor v. Marie Rose Fatuma et al., Case No. MICT-18-116-A, Judgement, 29 June 2022, para. 93.
261
See Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Judgement, 29 November 2017, para. 399; Prosecutor
v. Vujadin Popović et al., Case No. IT-05-88-A, Judgement, 30 January 2015, para. 538; Jean Baptiste Gatete v. The
Prosecutor, Case No. ICTR-00-61-A, Judgement, 9 October 2012, para. 261. See also Édouard Karemera and Matthieu
Ngirumpatse v. The Prosecutor, Case No. ICTR-98-44-A, Judgement, 29 September 2014, para. 711, referring, inter
alia, to Strugar Appeal Judgement, para. 324, citing Stakić Appeal Judgement, para. 358.
256
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the prohibition of holding trials in absentia.262 The Appeals Chamber recalls that trials in absentia
were intentionally excluded from the statutory framework of the Mechanism and its predecessor
tribunals.263
67.
The incompatibility of the “alternative finding procedure” with the existing Mechanism’s
legal framework is also highlighted by the potential consequence that, if Kabuga were to be found
responsible for the charged crimes but not convicted, he would be precluded from challenging such
finding on appeal or from seeking a review. Significantly, under Articles 23 and 24 of the Statute,
such remedies are afforded only to convicted persons and the Prosecution. It is uncertain in these
circumstances how, under the “alternative finding procedure”, the accused’s right to an effective
remedy would be ensured.264 Kabuga could also be denied the full protection afforded by the non
bis in idem principle enshrined in Article 7 of the Statute, which has been interpreted by the ICTR
Appeals Chamber “to protect a person who has been finally convicted or acquitted from being tried
for the same offence again”.265
68.
In view of the above considerations, the Appeals Chamber finds that neither the Statute nor
the jurisprudence of the Mechanism and its predecessor tribunals allow for the conduct of an
“alternative finding procedure”, as defined by the Trial Chamber, in lieu of a trial. The Appeals
Chamber notes the Trial Chamber’s considerations that the Committee on the Rights of Persons
with Disabilities has urged States, which are parties to the Convention, to provide disabled accused
with procedures that are as close as possible to those generally afforded to an accused,266 and that
the legislation of some domestic jurisdictions provides for procedures akin to trial in the event an
accused is found unfit.267 Notably, it is apparent from the Trial Chamber’s reliance on a selected
number of States that procedures akin to trials have been expressly and specifically legislated for in
each respective jurisdiction.268 The Appeals Chamber observes that treaty provisions and state
See supra paras. 64, 65.
See Secretary-General’s Report of 3 May 1993, para. 101 (stating that “[t]here is a widespread perception that trials
in absentia should not be provided for in the statute as this would not be consistent with article 14 of the International
Covenant on Civil and Political Rights, which provides that the accused shall be entitled to be tried in his presence”
(internal reference omitted)).
264
See Article 14(5) of the International Covenant on Civil and Political Rights. See also Articles 13 and 14 of the
Convention on the Rights of Persons with Disabilities.
265
See The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-00-55A-AR73, Decision on the Prosecutor’s Appeal
Concerning the Scope of Evidence to be Adduced in the Retrial, 24 March 2009, para. 16, referring to Article 14(7) of
the International Covenant on Civil and Political Rights.
266
Impugned Decision, para. 50, referring, inter alia, to Articles 12(2), 12(3), and 13 of the Convention on the Rights
of Persons with Disabilities, Report of the Committee on the Rights of Persons with Disabilities, A/76/55, 2021,
paras. 23, 26 (wherein the Committee recommended that States parties take all legal, administrative and judicial
measures necessary to eliminate all restrictions on the effective participation of persons with disabilities in all stages of
the judicial process).
267
Impugned Decision, paras. 52-56 and references cited therein.
268
See Impugned Decision, paras. 52, 54, nn. 198, 203, 206 and references cited therein.
262
263
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legislative practice, while of significance, are not necessarily determinative of the scope of the
Mechanism’s jurisdiction. It is the Statute, as the constitutive instrument of the Mechanism, that
defines the scope and limits of its mandate and can only be amended or derogated by means of a
United Nations Security Council resolution.269
69.
The Appeals Chamber is further not persuaded by the Prosecution’s argument that the
“alternative finding procedure” falls within the Mechanism’s inherent powers to issue such rulings
as necessary to exercise its express jurisdiction.270 As recalled above, the Statute, as the constitutive
instrument of the Mechanism, defines the scope and limits of the Mechanism’s substantive
jurisdiction as set out in Articles 1 to 7 of the ICTR Statute.271 As with the statutes of its
predecessor tribunals, the Appeals Chamber recognizes that the Statute of the Mechanism “is not
and does not purport to be […] a meticulously detailed code providing explicitly for every possible
scenario and every solution, thereto” and that it sets out in general terms the jurisdictional
framework within which the Mechanism has been mandated to operate.272 Included in this
framework is the inherent jurisdiction to ensure that its exercise of judicial functions is
safeguarded.273 In this regard, it has been indeed recognized that judges are not limited strictly and
narrowly to the text of the Rules in carrying out their mandate and have the inherent authority to
render orders that are reasonably related to the task before them and that derives automatically from
the exercise of the judicial function.274
70.
The Appeals Chamber notes that, in support of its submission, the Prosecution points to the
authority of the Mechanism’s predecessor tribunals in adjudicating joint criminal enterprise liability
and allegations of contempt, despite the fact that the two notions were not expressly prescribed in
their respective statutes and/or rules of procedure and evidence.275 The Appeals Chamber recalls,
Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s
Decision on Alleged Holbrooke Agreement, 12 October 2009 (“Karadžić Decision 12 October 2009”), paras. 34-36
(concerning the statute of the ICTY).
270
See Prosecution Response, para. 12.
271
Article 1(1) of the Statute. See also Karadžić Decision 12 October 2009, para. 34.
272
Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion
Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003 (“Milutinović et al. Decision of 21 May 2003”),
para. 18.
273
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgement on Appeal by Anto Nobilo Against Finding
of Contempt, 30 May 2001 (“Nobilo Contempt Appeal Judgement”), para. 30.
274
See Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral,
1 September 2005 (“Stanković Decision of 1 September 2005”), para. 51, nn. 97, 98 (stating that the ICTY’s inherent
authority includes, for instance, the power to examine its own jurisdiction, to admit evidence on appeal even if it was
available at trial in cases where its exclusion would lead to a miscarriage of justice, and to hold persons in contempt to
ensure the fairness of the proceedings and to provide for the proper administration of justice), referring to
Nobilo Contempt Appeal Judgement, para. 30, Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Decision on Request
to Admit Additional Evidence, 15 November 2000, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on
the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 14.
275
See Prosecution Response, para. 12.
269
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however, that the authority to exercise jurisdiction over joint criminal enterprise liability falls
within the ICTR’s substantive jurisdiction, prescribed under Article 6(1) of the ICTR Statute, to
hold individuals criminally responsible for “committing” crimes referred to in Articles 2 to 4 of the
ICTR Statute.276 As for the authority to exercise jurisdiction over allegations of contempt, the
Appeals Chamber recalls that the inherent jurisdiction of the ad hoc tribunals in this respect is
derived from their judicial function to ensure that the exercise of jurisdiction, which was expressly
given to them by their respective statutes, was not frustrated and that their basic judicial functions
were safeguarded.277
71.
As explained above, the Statute does not expressly give the Mechanism jurisdiction to
conduct proceedings other than trial, appellate, and review proceedings.278 In accordance with the
principle ubi lex voluit dixit, had the drafters of the Statute intended to vest the Mechanism with the
power to conduct proceedings similar to trials, they would have expressly provided for it. The
Appeals Chamber considers that, in the case of an international criminal tribunal, this is not a power
that can be regarded as inherent to its function.279
72.
In view of the above considerations, the Appeals Chamber finds that, in adopting the
“alternative finding procedure”, the Trial Chamber exercised discretion that was not conferred upon
it by the Mechanism’s statutory framework, which constitutes an error of law, invalidating the
Impugned Decision. In view of this conclusion, the Appeals Chamber does not find it necessary to
address the remaining arguments under the Defence Appeal. The Appeals Chamber will now turn to
consider how best to remedy the identified error, in the context of the circumstances of the present
case.
3. Remedy
73.
The Appeals Chamber notes that, in the Impugned Decision, the Trial Chamber considered
that respect for Kabuga’s rights supported adopting an “alternative finding procedure” rather than
See Milutinović et al. Decision of 21 May 2003, paras. 18-20 (concerning equivalent Article 7(1) of the Statute of
the ICTY). See also The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos. ICTR-96-10-A
& ICTR-96-17-A, Judgement, 13 December 2004, paras. 461, 462, 468 (wherein the Appeals Chamber of the ICTR
noted that: “while joint criminal enterprise liability is firmly established in the jurisprudence of the ICTY this is only
the second ICTR case in which the Appeals Chamber has been called upon to address this issue. Given the fact that
both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur
criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the
interpretation of Article 6(1) of the ICTR Statute.”); Tadić Appeal Judgement, paras. 186-194, 226.
277
See Prosecutor v. Duško Tadić, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior
Counsel, Milan Vujin, 31 January 2000, paras. 13, 18.
278
See Articles 18, 23, and 24 of the Statute.
279
Cf. Blaškić Decision of 29 October 1997, para. 25 (concerning the power of the ICTY to issue subpoenas to States,
which is not expressly provided in its statute).
276
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staying the proceedings.280 As the Appeals Chamber has found above, adopting an “alternative
finding procedure” was not within the remit of the Trial Chamber and, therefore, such procedure
does not constitute a viable alternative to staying the proceedings in the present case. The Appeals
Chamber further observes that the Impugned Decision did not explicitly address cases before the
Mechanism’s predecessor tribunal in which, following an explicit or de facto finding that the
accused was not fit to stand trial and had no realistic prospect of recovery, trial proceedings were
stayed for an indefinite period of time and the accused was allowed to remain on provisional release
under certain conditions.281 While the Appeals Chamber is cognizant that trial chambers’
determinations are not binding on other trial chambers or on the Appeals Chamber,282 such practice
may inform a decision on how to proceed in the present case.
74.
Having upheld the Trial Chamber’s finding that Kabuga is not fit to stand trial and that it is
very unlikely he would regain fitness in the future,283 the Appeals Chamber considers that the most
appropriate way to proceed in the circumstances of the present case is to remand the matter to the
Trial Chamber with an instruction to impose an indefinite stay of proceedings. Imposing an
indefinite stay of proceedings is consistent with prior practice and strikes the appropriate balance
between upholding the statutory guarantees afforded to all accused before the Mechanism and
ensuring that an accused, who is allegedly responsible for some of the most egregious crimes and
who has evaded justice for over two decades, remains under the Mechanism’s jurisdiction.
75.
In deciding to remand the matter to the Trial Chamber, the Appeals Chamber is cognizant of
the Trial Chambers’ organic familiarity with the case and of the medical monitoring regime that the
Trial Chamber has put in place in view of Kabuga’s health condition. The Trial Chamber is,
therefore, best placed to determine the modalities of a stay of proceedings and to expeditiously
address the issue of Kabuga’s release in view of such stay. The Appeals Chamber notes in this
regard that the evidentiary hearings in the present case have been temporarily stayed since
280
Impugned Decision, para. 50.
See Impugned Decision, para. 49 (wherein the Trial Chamber held that “[t]he only other international case with an
accused in a similar situation is that of Ieng Thirith at the [Extraordinary Chambers in the Courts of Cambodia)]”). Cf.
Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Public Redacted Version of 24 March 2016 Decision on Remand on
the Continuation of Proceedings, 5 April 2016, paras. 4, 28-31; Prosecutor v. Goran Hadžić, Case No. IT-04-75AR65.1, Decision on Urgent Interlocutory Appeal from Decision Denying Provisional Release, 13 April 2015 (public
with confidential annex), para. 23; Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Decision on Prosecution Motion
for Formal Termination of the Proceedings, 17 June 2016; Prosecutor v. Goran Hadžić, Case No. IT-04-75-T, Order
Terminating the Proceedings, 22 July 2016, p. 1; Prosecutor v. Radoslav Brđanin and Momir Talić, Case No. IT-99-36T, Decision on the Motion for Provisional Release of the Accused Momir Talić, 20 September 2002, paras. 32, 42,
p. 13; Prosecutor v. Momir Talić, Case No. IT-99-36/1-T, Decision on Motions, 26 November 2002, pp. 3, 4;
Prosecutor v. Momir Talić, Case No. IT-99-36/1-T, Decision Regarding Fitness of the Accused to Stand Trial,
29 April 2003 (confidential), pp. 2, 3; Prosecutor v. Momir Talić, Case No. IT-99-36/1-T, Order Terminating
Proceedings Against Momir Talić, 12 June 2003, p. 1.
282
See Mladić Appeal Judgement, para. 243 and references cited therein.
281
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MICT-13-38-AR80.3
6 March 2023284 and that Kabuga remains in detention after having been confirmed unfit to stand
trial. It is therefore imperative that, in imposing an indefinite stay of proceedings, the Trial
Chamber give priority consideration to the issue of Kabuga’s release under conditions that are most
appropriate in the circumstances.
76.
While the Appeals Chamber acknowledges that, as pointed out by the Prosecution,
identifying a State that will accept Kabuga on its territory may present obstacles,285 such a
consideration may not be the basis for Kabuga’s continuous detention on remand, pursuant to an
order of the Mechanism. The Trial Chamber is, therefore, invited to expeditiously consider the
appropriate modalities and conditions for his release.
D. Concluding Remarks
77.
The Appeals Chamber recalls that the ICTR was established as a measure contributing to
the process of national reconciliation in Rwanda and to the restoration and maintenance of peace.286
Appeals Chamber jurisprudence also reflects that there is indeed strong public interest to conduct
proceedings against persons accused of serious international crimes, including genocide and crimes
against humanity.287 Notwithstanding, the Appeals Chamber is mindful that the essential interests of
the international community to prosecute individuals charged with serious violations of
international humanitarian law must be balanced with the fundamental rights of the accused.288 This
balance must be achieved within the scope of the Mechanism’s mandate.
78.
The Appeals Chamber is cognizant that victims and survivors of the crimes that Kabuga is
charged with have waited long to see justice delivered, and that the inability to complete the trial
proceedings in this case, due to Kabuga’s lack of fitness to stand trial, must be disappointing.
However, justice can be delivered only by holding trials that are fair and conducted with full respect
for the rights of the accused set out in the Statute. This is a fundamental feature of the legal
framework of the Mechanism and its predecessor tribunals, which is vital to the credibility and
endurance of their legacy. In arriving at its decision, the Appeals Chamber has been guided by its
See supra para. 48.
See Impugned Decision, paras. 17, 59.
285
See Prosecution Response, para. 35.
286
See UNSC Resolution 1966 (2010), Preamble; UNSC Resolution 955 (1994), p. 1.
287
See Karadžić Decision of 12 October 2009, paras. 49, 52; Prosecutor v. Dragan Nikolić, Case No. IT-94-2-AR73,
Decision on Interlocutory Appeal Concerning Legality of Arrest, 5 June 2003 (“Nikolić Decision of 5 June 2003”),
para. 25.
288
See Nyiramasuhuko et al. Appeal Judgement, n. 943; Karadžić Decision of 12 October 2009, para. 46; Juvénal
Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement, 23 May 2005, para. 206; Nikolić Decision of
5 June 2003, paras. 26, 30.
283
284
37
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duty to ensure that decisions are based solely on justice and law.289 It is axiomatic that justice must
be done and must be seen to be done.290
III. DISPOSITION
79.
For the foregoing reasons, the Appeals Chamber,
GRANTS the Prosecution Request and recognizes the Prosecution Response as validly filed;
GRANTS the Request for Access and ALLOWS the parties to share the MRI Results with their
consulting experts on a strictly confidential basis;
DENIES the Prosecution Appeal in its entirety;
GRANTS the Defence Appeal, in part;
QUASHES the Impugned Decision;
REMANDS the matter to the Trial Chamber with an instruction to impose an indefinite stay of
proceedings and expeditiously address the issue of Kabuga’s detention on remand, consistent with
the present Decision; and
DISMISSES the remainder of the Defence Appeal.
Done in English and French, the English version being authoritative.
Done this 7th day of August 2023
At Arusha,
Tanzania
Judge Carmel Agius
Presiding Judge
[Seal of the Mechanism]
See Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Decision on Ramush Haradinaj’s Modified
Provisional Release, 10 March 2006, para. 51; Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000 (original filed in French,
English translation filed on 7 April 2000), para. 34.
290
Prosecutor v. Théoneste Bagosora and 28 Others, Case No. ICTR-98-37-A, Decision on the Admissibility of the
Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment Against Théoneste Bagosora
and 28 Others, 8 June 1998, para. 32.
289
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153
UNITED NATIONS
NATIONS UNIES
International Residual Mechanism
Mécanisme international appelé à exercer
for Criminal Tribunals
les fonctions résiduelles des Tribunaux pénaux
IRMCT . MIFRTP
TRANSMISSION SHEET FOR FILING OF DOCUMENTS / FICHE DE TRANSMISSION POUR LE DEPOT DE DOCUMENTS
I - FILING INFORMATION / INFORMATIONS GÉNÉRALES
To/ À :
IRMCT Registry/ Greffe du MIFRTP
From/
De :
President /
Président
Registrar /
Greffier
Case Name/
Affaire :
Chambers /
Chambre
7 August 2023
Original Language /
Langue de l’original :
Title of
Document/ Titre
du document :
Classification
Level/
Catégories de
classification :
English/
Anglais
Prosecution/
Bureau du Procureur
The Hague/ La Haye
Defence /
Défense
Other/ Autre
PROSECUTOR V. FÉLICIEN
KABUGA
Date Created/
Daté du :
Arusha/ Arusha
Case Number/
Affaire no :
MICT-13-38-AR80.3
Date transmitted/
Transmis le :
7 August 2023
No. of Pages/
Nombre de pages :
39
French/
Français
Kinyarwanda
B/C/S
Other/Autre (specify/préciser) :
DECISION ON APPEALS OF FURTHER DECISION ON FÉLICIEN KABUGA’S
FITNESS TO STAND TRIAL
Unclassified/
Non classifié
Confidential/
Confidentiel
Strictly Confidential/
Strictement confidentiel
Ex Parte Defence excluded/ Défense exclue
Ex Parte Prosecution excluded/ Bureau du Procureur exclu
Ex Parte R86(H) applicant excluded/ Art. 86 H) requérant exclu
Ex Parte Amicus Curiae excluded/ Amicus curiae exclu
Ex Parte other exclusion/ autre(s) partie(s) exclue(s)
(specify/préciser) :
Document type/ Type de document :
Motion/ Requête
Decision/
Décision
Order/
Ordonnance
Judgement/ Jugement/Arrêt
Submission from parties/
Écritures déposées par des parties
Submission from non-parties/
Écritures déposées par des tiers
Book of Authorities/
Recueil de sources
Affidavit/
Déclaration sous serment
Indictment/ Acte d’accusation
Warrant/
Mandat
Notice of Appeal/
Acte d’appel
II - TRANSLATION STATUS ON THE FILING DATE/ ÉTAT DE LA TRADUCTION AU JOUR DU DÉPÔT
Translation not required/ La traduction n’est pas requise
Filing Party hereby submits only the original, and requests the Registry to translate/
La partie déposante ne soumet que l’original et sollicite que le Greffe prenne en charge la traduction :
(Word version of the document is attached/ La version Word est jointe)
English/ Anglais
French/ Français
Kinyarwanda
B/C/S
Other/Autre(specify/préciser) :
Filing Party hereby submits both the original and the translated version for filing, as follows/
La partie déposante soumet l’original et la version traduite aux fins de dépôt, comme suit :
Original/
Original en
English/
Anglais
French/
Français
Kinyarwanda
B/C/S
Translation/
Traduction en
English/
Anglais
French/
Français
Kinyarwanda
B/C/S
Other/Autre (specify/préciser) :
Other/Autre
(specify/préciser) :
Filing Party will be submitting the translated version(s) in due course in the following language(s)/
La partie déposante soumettra la (les) version(s) traduite(s) sous peu, dans la (les) langue(s) suivante(s) :
English/ Anglais
French/ Français
Kinyarwanda
B/C/S
Other/Autre (specify/préciser) :
Send completed transmission sheet to/ Veuillez soumettre cette fiche dûment remplie à :
JudicialFilingsArusha@un.org OR/ OU JudicialFilingsHague@un.org
Rev: August 2019/ Rév. : Août 2019
