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Ruto must continuously attend trial – ICC

Judge Song Sang-Hyun is the president of the International Criminal Court. Photo/CAPITAL FM

Judge Song Sang-Hyun is the president of the International Criminal Court. Photo/CAPITAL FM

NAIROBI, Kenya, Oct 25 – The International Criminal Court’s Appeals Chamber has reversed a decision of the Trial Chamber which excused Deputy President William Ruto from continuous presence at his trial.

ICC Appeals Chamber Judge Song Sang-Hyun who read out the unanimous decision however said Ruto can apply for excusal from sessions of his trial under “exceptional circumstances” based on “case-by-case consideration.”

In reversing the decision, Song said the Trial Chamber exceeded its power when it excused Ruto from continuous attendance of his trial even before it started.

According to the judges, the Trial Chamber granted Ruto his request based on a general consideration instead of basing its decision on a case-by-case request.

The Appeals Chamber felt that Ruto was allowed to skip sessions of the proceedings even before his trial started at the risk of making it a rule rather than the exception.

“The absence of the accused can only take place in exceptional circumstances and must not become the rule. Any absence must be limited to that, that is strictly necessary. The Trial Chamber interpreted the scopes of its discretion too broadly and thereby exceeded the limits of its discretionary powers. In particular, the Trial Chamber provided Mr Ruto to what amounts to blanket excusal before the trial had even commenced making his absence the general rule and his presence an exception,” Song asserted.

The Appeals Chamber said the Trial Chamber should have explored other alternatives and made other considerations before granting Ruto his request from continuous presence.

“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,” Song said.

However, the Appeals Chamber said the Trial Chamber did not err when it granted him his request as alleged by the Prosecution that interpreted Article 63 of the Rome Statute that makes it a must for all accused persons to be present during their trial.

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Judge Erkki Kourula and Judge Anita Ušacka however gave separate opinions disagreeing with the majority decision and deemed that the Trial Chamber erred when it found that Article 63 does not impose a duty on the Chamber to ensure the presence of an accused person during his trial.

Song said the prosecution’s understanding of Article 63 was ‘unduly rigid’ as it failed to recognise the importance of flexibility in management of trials to ensure they are fairly and expeditiously conducted with utmost respect of rights of the accused, victims and witnesses.

The judge further said where an accused person asks to be waived from contentious presence was not conclusively addressed hence it was hard to pin article 63 down that the accused person must be always present during his trial.

“It is not worthy in this regard that during the Rome conference more pre-emptory language ‘the trial shall not be held except in the presence of the accused and his lawyer’ was considered but not adopted. The Appeals Chamber considers that article 63 that does not operate as an absolute bar in all circumstances to the continuation of trail proceedings in the absence of the accused,” Song explained.

Trial Chamber V (b) has also granted President Kenyatta’s request from continuous presence during his trial which is scheduled to start on November 12.


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