15 November 2013 20:00
Chair’s Compilation of draft Rules 134 bis to 134 quater (15 November 2013, 8.00 PM)
The purpose of this paper is to compile the drafting work which has been done so far in the Working Group on Amendments with a view to putting all delegations, especially those who were not present at the deliberations of the WGA in New York, on the same level of information. This compilation relies mainly on the working paper of 11 November 2013, which in turn sought to bring together into one document various proposals submitted by delegations with regard to the question of presence of the accused at trial. It also tries to reflect discussions within the Working Group on Amendments in New York. Finally, it attempts to respond to some of the initial comments from the Court and the SGG. As a chair’s paper, it is not attributed to any delegation. The comments are not part of the draft text and are solely added for the better understanding of its rationale.
New draft Rule 134 bis
Trial in the presence of the accused
The accused shall be present during the trial in accordance with article 63, paragraph 1.
Commentary: The draft rules 134 bis to 134 quater are understood to constitute a special set of rules addressing the issue of presence at / absence from trial. In order to convey the idea of a set of interdependent rules, it was felt useful to initiate it by repeating article 63 of the Rome Statute.
New draft Rule 134 ter
1. An accused subject to a summons to appear may submit a written request to the Trial Chamber to be allowed to be present in the courtroom through the use of video technology during part or parts of his or her trial.
2. The Trial Chamber shall rule on the matter on a case-by-case basis.
Commentary: This is a new element to the RPE since the applicable rules do not address the use of video conference technology (VCT), which was not foreseen when the Rome Statute was drafted. The draft rule 134ter spells out the view strongly expressed that the participation of the accused in trial through VCT equals presence. The Trial Chamber should be given the necessary liberty to decide on its use on a case-by-case basis. In its initial comment, the Court expressed doubts whether the use of VCT can be qualified as presence.
New draft Rule 134 quater
Excusal from presence at trial
1. An accused subject to a summons to appear may submit a written request to the Trial Chamber to be excused and to be represented by counsel only during part or parts of his or her trial.
2. The Trial Chamber shall only grant the request if it is satisfied that:
a) exceptional circumstances exist to justify such an absence;
b) alternative measures, including changes to the trial schedule or a short adjournment of the trial, would be inadequate;
c) the accused has explicitly waived his or her right to be present at the trial; and
d) the rights of the accused will be fully ensured in his or her absence.
3. The Trial Chamber shall rule on the matter on a case-by-case basis, with due regard to the subject matter of the specific hearings in question. Any absence must be limited to what is strictly necessary.
4. Notwithstanding paragraphs 1 to 3 above, if the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court (discussed alternative: “who is subject to a summons to appear”), appearance by such person throughout the trial may, if he or she so wishes, be by counsel, provided a notice in writing has been filed with the Court stating that the accused has explicitly waived his or her right to be present at the trial and the trial chamber is satisfied that the rights of the accused will be fully ensured in his or her absence.
Commentary: Draft rule 134 ter is to a good part inspired by the decision of the Appeals Chamber of 25 October in the Case of the Prosecutor v. William Samoei Ruto and Joshua Arap Sang. The draft rules even quotes from the decision in certain parts. However, paragraph 4, which is also reproduced here in the interest of compilation, differs from the decision of the Appeals Chamber. In its initial reaction, the Court questioned the need to codify the decision of the Appeals chamber and expressed reservations regarding the consistency of the last paragraph with the Rome Statute.