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VIII) MISCELLANEOUS

a) “Equality of arms” between the parties is not the same as equality of means and resources

Kayishema and Ruzindana, (Appeals Chamber), June 1, 2001, para. 63-71: During proceedings before the Trial Chamber, Kayishema filed a motion calling for full equality of arms between the prosecution and the defence in terms of the means and facilities placed at their disposal.  The Appeals Chamber held that the Trial Chamber did not commit an error in law in dismissing the motion.  “The right of an accused to a fair trial implies the principle of equality of arms between the Prosecution and Defence” and “the Trial Chamber rightly held that [t]he notion of equality of arms is laid down in Article 20 of the Statute,” specifically Article 20(2) and Article 20(4).  However, “equality of arms . . . does not necessarily amount to the material equality of possessing the same financial and/or personal resources.”  The Appeals Chamber quoted the ICTY Appeals Chamber in Tadic which held that “equality of arms obligates a judicial body to ensure that neither party is put at a disadvantage when presenting its case.”⁹  The Appeals Chamber also endorsed the ruling by the Trial Chamber in the Kayishema case which held that the rights of the accused and equality between the parties should not be confused with the equality of means and resources, and that the rights of the accused should not be interpreted to mean that the defence is entitled to the same means and resources as the prosecution.  See also Kayishema and Ruzindana, (Trial Chamber), May 21, 1999, para. 20, 55-60.

b) Presumption of impartiality attaches to judge and tribunal

Akayesu, (Appeals Chamber), June 1, 2001, para. 91: “[T]here is a presumption of impartiality that attaches to a Judge or a Tribunal and, consequently, partiality must be established on the basis of  adequate and reliable evidence.  ‘[I]n the absence of evidence to the contrary, it must be assumed that the judges of the International Tribunal can disabuse their minds of any irrelevant personal beliefs or predispositions.  It is for the Appellant to adduce sufficient evidence to satisfy the Appeals Chamber that [the Judge in question] was not impartial in his case.  There is a high threshold to reach in order to rebut the presumption of impartiality.’”

c) Selective prosecution

Akayesu, (Appeals Chamber), June 1, 2001, para. 94-96: “‘[I]nvestigation and prosecution’ of persons responsible for serious violations within the jurisdiction of the Tribunal fall to the Prosecutor and . . . it is her responsibility to ‘assess the information received or obtained and decide whether there is sufficient basis to proceed.’”  “‘[I]n many criminal justice systems, the entity responsible for prosecutions has finite financial and human resources and cannot realistically be expected to prosecute every offender which may fall within the strict terms of its jurisdiction.  It must of necessity make decisions as to the nature of the crimes and the offenders to be prosecuted.  [T]he Prosecutor has a broad discretion in relation to the initiation of investigations and in the preparation in indictments.’”  To show the Prosecutor is proceeding on a selective basis, “‘the evidence of discriminatory intent must be coupled with the evidence that the Prosecutor’s policy has a discriminatory effect, so that other similarly situated individuals of other ethnic or religious backgrounds were not prosecuted.’”

Ntakirutimana and Ntakirutimana, (Trial Chamber), February 21, 2003, para. 870-871: “Article 15(2) of the Statute requires the Prosecutor to act independently and prevents her from seeking or receiving instructions from a government or any other source.  According to the standard articulated by the ICTY Appeals Chamber in Delalic, where an appellant alleged selective prosecution, he or she must demonstrate that the Prosecutor improperly exercised her prosecutorial discretion in relation to the appellant himself or herself.  It follows that the Accused . . . must show that the Prosecutor’s decision to prosecute them or to continue their prosecution was based on impermissible motives, such as ethnicity or political affiliation, and that she failed to prosecute similarly situated suspects of different ethnicity or political affiliation.  In view of the failure of the Defence to adduce any evidence to establish that the Prosecutor had a discriminatory or otherwise unlawful or improper motive in indicting or continuing to prosecute the Accused, the Chamber does not find it necessary to consider the additional question of whether there were other similarly situated persons who were not prosecuted or against whom prosecutions were discontinued.”

d) Guilty plea: conditions for accepting a plea agreement

i) guilty plea must be voluntary

Kambanda, (Appeals Chamber), October 19, 2000, para. 61: “[A] voluntary plea requires two elements, namely that ‘an accused person must have been mentally competent to understand the consequences of his actions when pleading guilty’ and ‘the plea must not have been the result of any threat or inducement other than the expectation of receiving credit for a guilty plea by way of some reduction of sentences.’”

ii) guilty plea must be informed

Kambanda, (Appeals Chamber), October 19, 2000, para. 75: “[T]he standard for determining whether a guilty plea is informed is . . . that the accused must understand the nature of a guilty plea and the consequences of pleading guilty in general, the nature of the charges against him, and the distinction between any alternative charges and the consequences of pleading guilty to one rather than the other.”

iii) guilty plea must be unequivocal

Kambanda, (Appeals Chamber), October 19, 2000, para. 84-86: “‘[W]hether a plea of guilty is equivocal must depend on a consideration, in limine, of the question whether the plea was accompanied or qualified by words describing facts which establish a defence in law.’”  A guilty plea is unequivocal when the accused is aware that the plea could not be refuted by any line of defence.