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Kenya Law / Blog / Case Summary: Trial Chamber V(A) Conditionally Excuses William Samoei Ruto From Continuous Presence at the Trial Starting on 10 September 2013

Trial Chamber V(A) Conditionally Excuses William Samoei Ruto From Continuous Presence at the Trial Starting on 10 September 2013

ICC-CPI-20130618-PR920
The Prosecutor v. William Samoei Ruto and Joshua Arap Sang
June 18, 2013
Reported by Monica Achode

The charges in the case The Prosecutor v. William Samoei Ruto and Joshua Arap Sang were confirmed on 23 January 2012. Mr Ruto and Mr Sang were prosecuted for charges of crimes against humanity consisting in murder, deportation or forcible transfer of populations and persecution, allegedly committed during the post-election violence in Kenya, in 2007 and 2008.

Trial Chamber V(A) of the International Criminal Court (ICC) conditionally granted, by majority, the request of William Samoei Ruto to be excused from being physically present continuously throughout the trial, scheduled to start on 10 September 2013.

The Chamber, however, required him to be present for the entirely of the following sessions:
i. the entirety of the opening statements of all parties and participants,
ii. the entirety of the closing statements of all parties and participants,
iii. when victims present their views and concerns in person,
iv. the entirety of the delivery of judgment in the case,
v. the entirety of the sentencing hearings (if applicable),
vi. the entirety of the sentencing (if applicable),
vii. the entirety of the victim impact hearings (if applicable),
viii. the entirety of the reparation hearings (if applicable), and
ix. any other attendance directed by the Chamber;

The Trial Chamber retained judicial control over the accused during the entirety of the proceedings and violations of any of these conditions may result in the revocation of the excusal and/or the issuance of an arrest warrant as appropriate.

The Chamber recalled that the Rome Statute did not afford any immunity based on official capacity. The Chamber stressed that permission granted Mr. Ruto to not be continuously present was strictly for purposes of accommodating the demanding functions of his office as Deputy Head of State of Kenya and not merely to gratify the dignity of his own occupation of that office.

The Chamber stressed that Mr. Ruto in his personal capacity as the Deputy President of Kenya had to take effective actions in good faith to ensure that witnesses and victims were not intimidated including by calling on his supporters to refrain from creating any intimidating or harassing atmosphere for these persons involved with the ICC.

In granting such an exception to the duty to be continuously physically present at the trial, the Trial Chamber did not alter the obligation set on the accused by the previous summons to appear issued on 8 March 2011 not to contact directly or indirectly any person who was or was believed to be a victim or a witness of the alleged crimes and to refrain from corruptly influencing or interfering with a witness’s testimony.

Mr Ruto was excused from continued presence at other times during the trial.
The excusal was strictly for purposes of accommodating his discharge of duties as the Deputy President of Kenya. The resulting absence from the trial must therefore always be seen to be directed towards performance of those duties of state.

In view of the waiver of the right to presence that Defence Counsel have stipulated on the record on behalf of Mr Ruto, the Chamber further requires the Ruto Defence to file with the Registry no later than one day after expiry of Request for leave to appeal a waiver signed by Mr Ruto in his own hands, in the form attached as annex to this Decision.

Violation of any of these conditions of excusal may result in the revocation of the excusal and/or the issuance of an arrest warrant as appropriate. This decision and its conditions may, from time to time, be reviewed by the Chamber, of its own motion or at the request of any party or participant.
The chamber further, DISMISSED the requests concerning attendance via video-link, and all other prayers.

Dissenting Opinion per Judge Herrera Carbuccia
1. The Principle: the accused shall be present during the trial regardless of his official capacity
Pursuant to Article 63(1) of the Rome Statute (“Statute”), the presence of the accused during the trial was required, subject to the exceptional circumstance explicitly contained in paragraph 2 of that same provision.

2. The presence of the accused was a fundamental right enshrined in Article 67(1)(d) of the Statute, a guarantee of due process provided for in internationally recognized human rights law, but also an obligation of the accused and a procedural requirement, which was reflected by the word “shall” used in Article 63(1) of the Statute, denoting a requirement and not an option.

3. The unequivocal wording of Article 63(1) of the Statute contrasted with Article 61(2) (a) of the Statute, which clearly stipulated that the suspect may waive his or her right to be present at the confirmation of charges hearing. Moreover, Rules 123,124, 125 and 126 of the Rules of Procedure and Evidence were detailed provisions, which set the strict legal framework in which the confirmation of charges could be held in the absence of the suspect. No such provisions existed for trial because this was clearly ruled out in Article 63(1) of the Rome Statute, subject to the one exception of the disruptive accused person. This reflected the distinct nature of these two stages in the proceedings. The confirmation of charges hearing was limited in scope, and had a lower evidentiary threshold. In fact, the decision of the Pre-Trial Chamber was not per se an appealable decision. On the contrary, trial proceedings were broader in scope, had the highest evidentiary threshold, and were in essence, of an oral and adversarial nature. Moreover, all decisions taken under Articles 74, 75 and 76 of the Statute were automatically appealable, which reflects their significance and potential impact on the rights of the accused person.

4. Pursuant to Article 64 of the Statute, the Chamber was to exercise its functions in accordance with the Statute, in a fair and impartial manner, and thus required the presence of the accused during the entirety of the trial proceedings. The interests of the victims and those of the Prosecution were aligned in this regard, as the absence of the accused could significantly affect the fairness of the proceedings.
The Chamber had the duty to ensure that all accused were treated fairly and impartially. Pursuant to Article 21(3) of the

5. Statute, all accused must be treated equally, without making any adverse distinction founded on
grounds such as gender, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth birth or other status. Moreover, the first sentence of Article 27 of the Statute clearly stated that the “Statute shall apply equally to all persons without any [favourable or unfavourable] distinction based on official capacity”. Article 63(1) of the Statute mandates that the “accused shall be present at trial”. Read jointly, these two provisions dictated that all accused persons had to be present at trial, regardless of their official capacity. Pursuant to the above Statutory provisions, as well as internationally recognized human rights, all persons shall be equal before courts and tribunals and no accused was to be accorded privileged treatment, as equality under the law was a fundamental value of the administration of justice. Mr Ruto was not be given a different legal status on the basis of his personal position as Deputy President of the Republic of Kenya.

6. It was in the best interests of the accused to be physically present in court. International criminal trials were complex in nature and proceedings could evolve unexpectedly, beyond any projection the accused or his counsel could have at that moment in time, when the trial had not yet commenced. The presence of the accused was thus essential, as only he could instruct his counsel at all stages of the trial proceedings.

The Exception: the accused may be absent during specific moments during trials if certain conditions were met

7. Notwithstanding the general principle above, taking into consideration Mr Ruto’s personal circumstances, as well as the fact that he had voluntarily appeared before this Court on several occasions, Mr Ruto’s absence might be permissible in some specific and limited if the accused personally requested authorization for his absence to the Chamber.

8. Pursuant to Article 64(2) of the Statute, the Chamber could grant such an exceptional procedural measure, insofar as the absence of the accused did not affect the fairness and expeditiousness of the proceedings. Moreover, in accordance with Article 67 of the Statute, the Chamber had to determine in each instance that the accused’s decision to be absentfrom trial had been made voluntarily, knowingly and unequivocally. This determination could not be made in abstracto, for the entirety of the trial proceedings, but had to be evaluated on a case-by-case basis, taking into consideration the specific circumstances of particular stages of the trial proceedings and the impact that these might have on the fundamental rights of the accused enshrined in Article 67 of the Statute. In essence, to grant a “once and for all” request of the accused to waive his right to be present in trial would be contrary to the Chamber’s duty to safeguard the rights of the accused at all stages of the trial proceedings and to ensure that the trial was fair.

9. When deciding on specific requests, the Chamber could take into consideration factors such as:
a) the witnesses’ schedule {i.e. whether hearings will be held on a daily basis or in an intermittent manner during a period of time; or

b) whether the presence of the accused was indispensable {i.e. a witness needs to identify the accused during the testimony). Moreover, submissions of the Prosecution, as well as the views and concerns of victims, should be sought in each instance.

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