Ruto And Sang Case: ICC Appeals Chamber Sets Criteria For The Absence Of An Accused From Trial

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The Appeals Chamber of the International Criminal Court (ICC or Court), seized for the first time of a question on the interpretation of article 63(1) of the Court’s Statute, ruled that the absence of an accused person from trial is permissible under exceptional circumstances if the accused has explicitly waived his right to be present at trial. The Appeals Chamber concluded that a Trial Chamber enjoys discretion under article 63(1), which states that “[t]he accused shall be present during the trial”, but that such discretion is limited and must be exercised with caution.

Holding that the excusal of an accused from physical presence at trial should not become the rule, the Appeals Chamber unanimously reversed the Trial Chamber V(a) decision of 18 June 2013, which granted a conditional excusal for William Samoei Ruto from continuous presence at his trial. The Appeals Chamber concluded that the Trial Chamber had interpreted the scope of its discretion too broadly. Trial Chamber V(a) may make a new decision on the matter in light of the criteria set in the Appeals Chamber decision.

The Appeals Chamber held that before granting an accused excusal from physical presence at trial, the possibility of alternative measures must be considered, including but not limited to changes to the trial schedule or temporary adjournment. Furthermore, any absence should be considered on a case-by-case basis and be limited to that which is strictly necessary. Finally, the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel.

A summary of the judgment was read out in open court today by the Presiding Judge in this appeal, Judge Sang-Hyun Song. In its judgment, the Appeals Chamber considered arguments made by the Prosecutor and Mr Ruto’s Defence, as well as the joint observations by the United Republic of Tanzania, the Republic of Rwanda, the Republic of Burundi, the State of Eritrea and the Republic of Uganda. Judge Kourula and Judge Ušacka appended a separate opinion to the judgment.

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