Trial in All but Name: Continuing Proceedings in Contravention of the Right to Be Present at Trial

What is it about?

The right to be present at trial is under threat following the decision of the International Residual Mechanism for Criminal Tribunals’ Trial Chamber to continue proceedings against Félicien Kabuga after finding him mentally unfit to stand trial. The Trial Chamber opted instead to hold an ‘alternative finding procedure’, which resembles a trial as closely as possible, albeit without the possibility of concluding with a verdict. This alternative procedure is little more than a de facto trial, as the evidence still needs to be proven to the standard of proof necessary to support a conviction. Therefore, continuing proceedings under these circumstances is a violation of the right to be present at trial as the accused. Should such a procedure be permitted it has the potential to render the right to be present meaningless. Should the practice followed here be legitimised, future courts and tribunals could choose to hold an alternative findings procedure against an accused who is absent for any reason and find that the appropriate evidentiary standard has been met to support a conviction. That, in turn, would allow courts to declare an accused 'guilty' regardless of whether they ever appeared in court.

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