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The Right to Be Tried Without Undue Delay

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Book cover International Criminal Tribunals and Human Rights Law

Part of the book series: International Criminal Justice Series ((ICJS,volume 5))

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Abstract

International criminal justice is notoriously slow. An average trial has lasted six years and two months before the ICTY, and nine years and two months before the ICTR. The ICC has recently completed its first trial up to the Appeal, but the pace of its proceedings thus far does not seem promising. This chapter’s focus is on the interpretation and application of the right to be tried without undue delay by the ICTs. As will be seen, despite the lengths of many of their cases, the ICTs have only once found a violation of this right, which can largely be explained by the specific way in which they have interpreted and applied it. The first part of this chapter addresses the framework applicable to the right to be tried without undue delay in international human rights law. It addresses the scope of this right, and the parameters that are generally used to assess whether this right has been violated. The second and third parts of this chapter discuss the practice of the ad hoc Tribunals and the ICC respectively. In their assessments of the right to be tried without undue delay, the ICTs employ parameters similar to those used in international human rights law. However, the way in which they interpret and apply these parameters, and the relative weight given to each of them differs significantly. This may serve to explain the contradiction presented above that the ICTs’ trials take exceedingly long, yet are rarely found to have violated accused’s right to be tried without undue delay.

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Notes

  1. 1.

    ICTR, Decision on the Defence Motion for Severance and Separate Trial Filed by the Accused, Prosecutor v. Kamuhanda (ICTR-99-54-T), 7 November 2000, 5.

  2. 2.

    ICC, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, Prosecutor v. Katanga and Ngudjolo (ICC- 01/04-01/07-2259), 12 July 2010, 45.

  3. 3.

    Similarly Schabas 2011, 627, who observes that the ‘extraordinary lengths’ of international criminal proceedings has been ‘one of the most unsatisfactory aspects of procedure’ at the ICTs. See also Tolbert and Gaynor 2009, who mention the ‘poor, and in some instances shocking, record in respect of the requirement that trials be expeditious’. See also McDermott 2013b, 115.

  4. 4.

    For the purposes of this chapter, the average lengths of proceedings before the ad hoc Tribunals have been calculated. The data that has been processed was collected from the websites and decisions of the ICTs. The table containing this data is reproduced in Annex 1 to this book and the full database containing a complete overview is on file with the author. The numbers presented here relate to the total length of the proceedings, from the moment of the arrest of the suspect until the final judgment in her/his case.

  5. 5.

    See, among many others: Lahiouel 2001; Bourgon 2004; Rabkin 2005, 768, who criticizes the ‘glacial pace’ at which he claims the ICTs move; Husketh 2005; Nowrojee 2005; Meernik and Aloisi 2008; Galbraith 2009; Heinsch 2009, which provides an analysis of the causes of the slow pace of the ICC thus far, and offers some possible solutions; Whiting 2009.

  6. 6.

    Article 14(3)(c) ICCPR.

  7. 7.

    Article 6(1) ECHR; Article 8(1) ACHR; Article 7(1)(d) ACHPR.

  8. 8.

    Trechsel 2005, 135.

  9. 9.

    ECtHR, Judgment, Grigoryan v. Armenia (App No 3627/06), 10 July 2012, 129.

  10. 10.

    IACtHR, Judgment, Suárez Rosero v. Ecuador (Case No 11.273), 12 November 1997, 70.

  11. 11.

    HRC, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial (2007) UN Doc CCPR/C/GC/32, 35.

  12. 12.

    Article 9(3) ICCPR, Article 5(3) ECHR and Article 7(5) ACHR.

  13. 13.

    Trechsel 2005, 137.

  14. 14.

    ECtHR, Judgment, Suslov v. Russia (App No 2366/07), 29 May 2012, 84; ECtHR, Judgment, Idalov v. Russia (App No 5826/03), 22 May 2012, 112; ECtHR, Judgment, Borisenko v. Ukraine (App No 25725/02), 12 January 2012, 37.

  15. 15.

    See supra Chap. 5.

  16. 16.

    See supra Chap. 5; significantly, however, the ICC also works with summons to appear in a number of its cases, as opposed to arrest warrants, in which case defendants await their trial in freedom; see Article 58(7) ICC Statute.

  17. 17.

    Nowak 2005, 334.

  18. 18.

    See e.g. ECtHR, Judgment, Grigoryan v. Armenia (App No 3627/06), 10 July 2012, 126; ECtHR, Judgment, Bak v. Poland (App No 7870/04), 16 April 2007, 73; ECtHR, Judgment, Hozee v. Netherlands (App No 21961/93), 22 May 1998, 43; ECtHR, Judgment, Foti and others v. Italy (App. Nos 7604/76; 7719/76; 7781/77; 7913/77), 10 December 1982, 52; ECtHR, Judgment, Eckle v. Germany (App No 8130/78), 15 July 1982, 73.

  19. 19.

    ECtHR, Judgment, Bak v. Poland (App No 7870/04), 16 April 2007, 73.

  20. 20.

    ECtHR, Judgment, Bak v. Poland (App No 7870/04), 16 April 2007, 73; ECtHR, Judgment, Pedersen and Baadsgaard v. Denmark (App No 49017/99), 17 December 2004, 44; ECtHR, Judgment, Kangasluoma v. Finland (App No 48339/99), 20 January 2004, 26; ECtHR, Judgment, Hozee v. Netherlands (App No 21961/93), 22 May 1998, 43; ECtHR, Judgment, Foti and others v. Italy (App Nos 7604/76; 7719/76; 7781/77; 7913/77), 10 December 1982, 52; ECtHR, Judgment, Eckle v. Germany (App No 8130/78), 15 July 1982, 73; see also Trechsel 2005, 138.

  21. 21.

    See e.g. ECtHR, Judgment, Grigoryan v. Armenia (App No 3627/06), 10 July 2012, 127; IACtHR, Judgment, Suárez Rosero v. Ecuador (Case No 11.273), 12 November 1997, 71; HRC, General Comment No 32, Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial (2007) UN Doc CCPR/C/GC/32, 35.

  22. 22.

    Weissbrodt 2001, 125.

  23. 23.

    See e.g. ECtHR, Judgment, I.A. v. France (App No 28213/95), 23 September 1998, 115; Trechsel 2005, 141; Nowak 2005, 337.

  24. 24.

    ECtHR, Judgment, Sizov v. Russia (App No 58104/08), 25 July 2012, 59; ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012, 170; ECtHR, Judgment, Grigoryan v. Armenia (App No 3627/06), 10 July 2012, 127; ECtHR, Judgment, Idalov v. Russia (App No 5826/03), 22 May 2012, 186; ECtHR, Judgment, Bak v. Poland (App No 7870/04), 16 April 2007, 75; ECtHR, Judgment, Kangasluoma v. Finland (App No 48339/99), 20 January 2004, 29; ECtHR, Judgment, Jablonski v. Poland (App No 33492/96), 21 December 2000, 102; ECtHR, Judgment, Trzaska v. Poland (App No 25792/94), 11 July 2000, 83; ECtHR, Judgment, Ledonne v. Italy (App No 35742/97), 12 May 1999, 21; ECtHR, Judgment, Pélissier and Sassi v. France (App No 25444/94), 25 March 1999, 67; ECtHR, Judgment, Portington v. Greece (App No 28523/95), 23 September 1998, 21; ECtHR, Judgment, Hozee v. Netherlands (App No 21961/93), 22 May 1998, 50; ECtHR, Judgment, Philis v. Greece (No. 2) (App No 19773/92), 27 June 1997, 35; ECtHR, Judgment, Süssmann v. Germany (App No 20024/92), 16 September 1996, 48; ECtHR, Judgment, Süssmann v. Germany (App No 20024/92), 16 September 1996, 59; ECtHR, Judgment, Hentrich v. France (App No 13616/88), 22 September 1994, 59; ECtHR, Judgment, Abdoella v. Netherlands (App No 12728/87), 25 November 1992, 20; ECtHR, Judgment, Kemmache v. France (App No 12325/86, 14992/89), 27 November 1991, 60; ECtHR, Judgment, B. v. Austria (App No 11968/86), 28 March 1990, 49; ECtHR, Judgment, Milasi v. Italy (App No 10527/83), 19 July 1987, 15; ECtHR, Judgment, Eckle v. Germany, (App No 8130/78), 15 July 1982, 80; IACtHR, Judgment, Valle Jaramillo et al v. Colombia (Case No 12.415), 27 November 2008, 155; IACtHR, Judgment, Nineteen Tradesmen v. Colombia (Case No 11.603), 5 July 2004, 190; IACtHR, Judgment, Suárez Rosero v. Ecuador (Case No 11.273), 12 November 1997, 72; IACtHR, Judgment, Genie Lacayo v. Nicaragua (Case No 10.792), 29 January 1997, 77; HRC, Sayada and Vinck v. Belgium (Comm No 1472/2006), UN Doc CCPR/C/94/D/1472/2006. 22 October 2008, 10.10; HRC, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial (2007) UN Doc UN Doc CCPR/C/GC/32, 35; see also Joseph and others 2004, 432; Schomburg 2009, 14; Trechsel 2011, 168.

  25. 25.

    ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012, 175; ECtHR, Judgment, Idalov v. Russia (App No 5826/03), 22 May 2012, 189; ECtHR, Judgment, Sałapa v. Poland (App No 35489/97), 19 December 2002, 90; ECtHR, Judgment, Trzaska v. Poland (App No 25792/94), 11 July 2000, 89; HRC, Brown v. Jamaica (Comm No 775/1997), UN Doc CCPR/C/65/D/775/1997, 23 March 1999, 6.11; see generally: Trechsel 2005, 142–144; Nowak 2005, 335.

  26. 26.

    ECtHR, Judgment, Sałapa v. Poland (App No 35489/97), 19 December 2002, 88–89: where the ECtHR considered that the numerous motions and appeals filed by the applicant cast doubt on his intention to have the proceedings conducted expeditiously; ECtHR, Judgment, I.A. v. France (App No 28213/95), 23 September 1998, 121, where the ECtHR considered deliberate delaying tactics by the applicant; ECtHR, Judgment, Ringeisen v. Austria (App No 2614/65), 16 July 1971, 110, where the ECtHR considered the numerous motions submitted by the defendant to replace judges; see also ECtHR, Judgment, Jablonski v. Poland (App No 33492/96), 21 December 2000, 104, where the ECtHR considered that while the applicant contributed significantly to the length of the proceedings, by going on a hunger strike and inflicting injuries on himself, there was still a violation since this could not explain the total length of the proceedings.

  27. 27.

    ECtHR, Judgment, Girolami v. Italy (App No 13324/87), 24 January 1991, 15.

  28. 28.

    ECtHR, Judgment, Süssmann v. Germany (App No 20024/92), 16 September 1996, 66; ECtHR, Judgment, Ledonne v. Italy (App No 35742/97), 12 May 1999, 25.

  29. 29.

    However, see also Stavros 1993, 98.

  30. 30.

    ECtHR, Judgment, Ledonne v. Italy (App No 35742/97), 12 May 1999, 25; see also ECtHR, Judgment, Calleja v. Malta (App No 75274/01), 7 April 2005, 22; ECtHR, Judgment, Pedersen and Baadsgaard v. Denmark (App No 49017/99), 17 December 2004, 49; ECtHR, Judgment, Eckle v. Germany, (App No 8130/78), 15 July 1982, 82.

  31. 31.

    ECtHR, Judgment, Ledonne v. Italy (App No 35742/97), 12 May 1999, 25; similarly ECtHR, Judgment, Calleja v. Malta (App No 75274/01), 7 April 2005, 132; ECtHR, Judgment, Portington v. Greece (App No 28523/95), 23 September 1998, 29.

  32. 32.

    ECtHR, Judgment, Girolami v. Italy (App No 13324/87), 24 January 1991, 15, where it considered that a trial of more than eight years was still ‘inordinately long’.

  33. 33.

    Similarly Trechsel 2005, 136.

  34. 34.

    ECtHR, Judgment, Sizov v. Russia (App No 58104/08), 25 July 2012, 62; ECtHR, Judgment, Trzaska v. Poland (App No 25792/94), 11 July 2000, 90.

  35. 35.

    ECtHR, Judgment, Szeloch v. Poland (App No 33079/96), 22 February 2001, 110.

  36. 36.

    ECtHR, Judgment, Neumeister v. Austria (App No 1936/63), 27 June 1968, 21.

  37. 37.

    ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012; ECtHR, Judgment, Ledonne v. Italy (App No 35742/97), 12 May 1999, 26–27; ECtHR, Judgment, Portington v. Greece (App No 28523/95), 23 September 1998, 33; ECtHR, Judgment, Philis v. Greece (No. 2) (App No 19773/92), 27 June 1997, 40; ECtHR, Judgment, Abdoella v. Netherlands (App No 12728/87), 25 November 1992, 24; ECtHR, Judgment, Süssmann v. Germany (App No 20024/92), 16 September 1996, 69–70; HRC, Sextus v. Trinidad and Tobago (Comm No 818/1998), UN Doc CCPR/C/72/D/818/1998, 23 July 2001, 7.3; HRC, Brown v. Jamaica (Comm No 775/1997), UN Doc CCPR/C/65/D/775/1997, 23 March 1999, 6.11, where the HRC found that, in the absence of a satisfactory explanation, 23 months of pre-trial investigation was excessive; HRC, Finn v. Jamaica (Comm No 617/1995), UN Doc CCPR/C/63/D/617/1995, 31 July 1998, 9.4: two years and five months of proceedings; HRC, Hill v. Spain (Comm No 526/1993), CCPR/C/59/D/526/1993, 2 April 1997, 12.4: pre-trial investigation of one year and four months and total period of trial of another year and eight months in a case that was not at all complex; HRC, Cid Gómez v. Panama (Comm No 473/1991), UN Doc CCPR/C/54/D/473/1991, 19 July 1995, 8.5; see also Weissbrodt and Wolfrum 1997, 129.

  38. 38.

    ECtHR, Judgment, Muradkhanyan v. Armenia (App No 12895/06), 5 June 2012, 85; ECtHR, Judgment, Toth v. Austria (App No 11894/85), 12 December 1991, 76–77.

  39. 39.

    ECtHR, Judgment, Kangasluoma v. Finland (App No 48339/99), 20 January 2004, 35; ECtHR, Judgment, Pélissier and Sassi v. France (App No 25444/94), 25 March 1999, 73.

  40. 40.

    ECtHR, Judgment, Bak v. Poland (App No 7870/04), 16 April 2007, 79.

  41. 41.

    ECtHR, Judgment, Cocchiarella v. Italy (App No 64886/01), 29 March 2006, 74; ECtHR, Judgment, Portington v. Greece (App No 28523/95), 23 September 1998, 33; ECtHR, Judgment, Philis v. Greece (No. 2) (App No 19773/92), 27 June 1997, 40; ECtHR, Judgment, Süssmann v. Germany (App No 20024/92), 16 September 1996, 55; ECtHR, Judgment, B. v. Austria (App No 11968/86), 28 March 1990, 54; ECtHR, Judgment, Milasi v. Italy (App No 10527/83), 19 July 1987, 18.

  42. 42.

    ECtHR, Judgment, Hentrich v. France (App No 13616/88), 22 September 1994, 61.

  43. 43.

    HRC, Lubuto v. Zambia (Comm No 390/1990), CCPR/C/55/D/390/1990, 31 October 1995, 7.3; HRC, Fillastra, Bizouarn v. Bolivia (Comm No 336/1988) CCPR/C/43/D/336/1988, 5 November 1991, 6.5; ACnHPR, Article 19 v. Eritrea (Comm 275/2003), 16–30 May 2007, 99; see also Conte and Burchill 2009, 129.

  44. 44.

    Herris and others 2009, 280; ECtHR, Judgment, Hentrich v. France (App No 13616/88), 22 September 1994, 61.

  45. 45.

    For examples of cases where the ECtHR did not find a violation despite allegations that severance would have sped up the proceedings, see e.g. ECtHR, Judgment, Coëme et al v. Belgium (App No 32492/96; 32547/96; 32548/96; 33209/96; and 33210/96), 20 June 2000, 139; ECtHR, Judgment, Boddaert v. Belgium (App No 12919/87), 12 October 1992, 38–39; ECtHR, Judgment, Neumeister v. Austria (App No 1936/63), 27 June 1968, 21; for examples of cases where the ECtHR considered that there was no reason why the cases could not have been severed, see e.g. ECtHR, Judgment, Kemmache v. France (App No 12325/86, 14992/89), 27 November 1991, 70; ECtHR, Judgment, Hentrich v. France (App No 13616/88), 22 September 1994, 61.

  46. 46.

    ECtHR, Judgment, Pedersen and Baadsgaard v. Denmark (App No 49017/99), 17 December 2004, 50; ECtHR, Judgment, Hozee v. Netherlands (App No 21961/93), 22 May 1998, 51–54; similarly HRC, Sayada and Vinck v. Belgium (Comm No 1472/2006), UN Doc CCPR/C/94/D/1472/2006, 22 October 2008, 10.10; HRC, Wolf v. Panama (Comm No 289/1988), UN Doc CCPR/C/44/D/289/1988, 26 March 1992, 6.4.

  47. 47.

    ECtHR, Judgment, Sizov v. Russia (App No 58104/08), 25 July 2012, 60; ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012, 171; ECtHR, Judgment, Idalov v. Russia (App No 5826/03), 22 May 2012, 188.

  48. 48.

    ECtHR, Judgment, Sizov v. Russia (App No 58104/08), 25 July 2012, 60; ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012, 171; ECtHR, Judgment, Idalov v. Russia (App No 5826/03), 22 May 2012, 188; ECtHR, Judgment, Bak v. Poland (App No 7870/04), 16 April 2007, 76; ECtHR, Judgment, Hozee v. Netherlands (App No 21961/93), 22 May 1998, 53.

  49. 49.

    ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012, 171; ECtHR, Judgment, Bak v. Poland (App No 7870/04), 16 April 2007, 76; ECtHR, Judgment, Hozee v. Netherlands (App No 21961/93), 22 May 1998, 53.

  50. 50.

    ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012, 171.

  51. 51.

    Ibid.

  52. 52.

    ECtHR, Judgment, Bak v. Poland (App No 7870/04), 16 April 2007, 76; ECtHR, Judgment, Trzaska v. Poland (App No 25792/94), 11 July 2000, 88; ECtHR, Judgment, Hozee v. Netherlands (App No 21961/93), 22 May 1998, 53; similarly IACtHR, Judgment, Genie Lacayo v. Nicaragua (Case No 10.792), 29 January 1997, 78.

  53. 53.

    ECtHR, Judgment, Hozee v. Netherlands (App No 21961/93), 22 May 1998, 52.

  54. 54.

    ECtHR, Judgment, Sizov v. Russia (App No 58104/08), 25 July 2012, 60; ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012; similarly IACtHR, Judgment, Valle Jaramillo et al v. Colombia (Case No 12.415), 27 November 2008, 156; similarly HRC, Francis et al v. Trinidad and Tobago (Comm No 899/1999), UN Doc CCPR/C/75/D/899/1999, 25 July 2002, 5.4.

  55. 55.

    ECnHR, Opinion, Jentzsch v. Federal Republic of Germany (App No 2604/65), 30 November 1970, 163; ECnHR, Decision, W.R. v. Federal Republic of Germany (App No 3376/67), 4 February 1969, 14–15; ECnHR, Decision, X. v. Federal Republic of Germany (App No 920/60), 19 December 1961, 2–3.

  56. 56.

    ECnHR, Opinion, Jentzsch v. Federal Republic of Germany (App No 2604/65), 30 November 1970, 172; ECnHR, Decision, W.R. v. Federal Republic of Germany (App No 3376/67), 4 February 1969, 15; ECnHR, Decision, X. v. Federal Republic of Germany (App No 920/60), 19 December 1961, 2–3.

  57. 57.

    However, see: McDermott 2013b, 119, who is very critical of reliance on such reasoning to justify derogations from fair trial standards by the ICTs.

  58. 58.

    Harris and others 2009, 281; Trechsel 2005, 144.

  59. 59.

    This particular obligation applies in the context of the right to be tried within a reasonable time as a part of the right to a fair trial. It arguably operates in conjunction with provisionally detained persons’ right to be tried within a reasonable time, as a part of the right to liberty. See e.g ECtHR, Judgment, Sizov v. Russia (App No 58104/08), 25 July 2012, 64; ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012, 182; ECtHR, Judgment, Jablonski v. Poland (App No 33492/96), 21 December 2000, 102; ECtHR, Judgment, Abdoella v. Netherlands (App No 12728/87), 25 November 1992, 24; ECtHR, Judgment, Jablonski v. Poland (App No 33492/96), 21 December 2000, 102; similarly HRC: HRC, Francis et al v. Trinidad and Tobago (Comm No 899/1999), UN Doc CCPR/C/75/D/899/1999, 25 July 2002, 5.4; HRC, Sextus v. Trinidad and Tobago (Comm No 818/1998), UN Doc CCPR/C/72/D/818/1998, 23 July 2001, 7.2; HRC, Cid Gómez v. Panama (Comm No 473/1991), UN Doc CCPR/C/54/D/473/1991, 19 July 1995; see also HRC, General Comment No 32, Article 14: Right to equality before courts and tribunals and to a fair trial (2007) UN Doc CCPR/C/GC/32, 35.

  60. 60.

    Article 9(3) ICCPR; Article 5(3) ECHR; Article 7(5) ACHR.

  61. 61.

    ECtHR, Judgment, Suslov v. Russia (App No 2366/07), 29 May 2012, 93; ECtHR, Judgment, Stögmüller v. Austria (App No 1602/62), 10 November 1969, 5 (p. 35); similarly IACnHR, Bronstein et al v. Argentina (Case No 11.205 and others), 11 March 1997, 40; IACnHR, Giménez v. Argentina (Case No 11.245), 1 March 1996, 83.

  62. 62.

    ECtHR, Judgment, Wemhoff v. Germany (App No 2122/64), 27 June 1968, 17.

  63. 63.

    ECtHR, Judgment, Muradkhanyan v. Armenia (App No 12895/06), 5 June 2012, 80; ECtHR, Judgment, Idalov v. Russia (App No 5826/03), 22 May 2012, 139; ECtHR, Judgment, Ricardi v. Romania (App No 3048/04), 3 April 2012, 72; ECtHR, Judgment, Borisenko v. Ukraine (App No 25725/02), 12 January 2012, 49; ECtHR, Judgment, Chraidi v. Germany (App No 65655/01), 26 October 2006, 35; ECtHR, Judgment, McKay v. United Kingdom (App No 543/03), 3 October 2006, 45; ECtHR, Judgment, G.K. v. Poland (App No 38816/97), 20 January 2004, 82; ECtHR, Judgment, Smirnova v. Russia (App Nos 46133/99 and 48183/99), 24 July 2003, 61; ECtHR, Judgment, Jablonski v. Poland (App No 33492/96), 21 December 2000, 79; ECtHR, Judgment, Barfuss v. Czech Republic (App No 35848/97), 31 July 2000, 65; ECtHR, Judgment, Jėčius v. Lithuania (App No 34578/97), 31 July 2000, 93; ECtHR, Judgment, Punzelt v. Czech Republic (App No 31315/96), 25 April 2000, 73; similarly IACnHR, Bronstein et al v. Argentina (Case No 11.205 and others), 11 March 1997, 18; IACnHR, Giménez v. Argentina (Case No 11.245), 1 March 1996, 67–70; ACnHPR, Article 19 v. Eritrea (Comm 275/2003), 16–30 May 2007, 97.

  64. 64.

    Harris and others 2009, 181.

  65. 65.

    See e.g. ECtHR, Judgment, Suslov v. Russia (App No 2366/07), 29 May 2012, 96; similarly ECtHR, Judgment, Barfuss v. Czech Republic (App No 35848/97), 31 July 2000, 71–73; ECtHR, Judgment, Punzelt v. Czech Republic (App No 31315/96), 25 April 2000, 78–81; HRC, Shaw v. Jamaica (Comm No 704/1996), CCPR/C/62/D/704/1996. 2 April 1998, 7.4; HRC, Shalto v. Trinidad and Tobago (Comm No 447/1991), CCPR/C/53/D/447/1991, 4 April 1995, 8.7; similarly IACnHR, Giménez v. Argentina (Case No 11.245), 1 March 1996, 101: ‘[i]n cases of prima facie unacceptable duration it rests upon the respondent government to adduce specific reasons for the delay. Such reasons will be subject to the Commission’s closest scrutiny.’

  66. 66.

    ECtHR, Judgment, Muradkhanyan v. Armenia (App No 12895/06), 5 June 2012, 82.

  67. 67.

    See supra Chap. 5.

  68. 68.

    ECtHR, Judgment, Suslov v. Russia (App No 2366/07), 29 May 2012, 94; ECtHR, Judgment, Contrada v. Italy (App No 27143/95), 24 August 1998, 67; ECtHR, Judgment, Van der Tang v. Spain (App No 19382/92), 13 July 1995, 75.

  69. 69.

    ECtHR, Judgment, Chraidi v. Germany (App No 65655/01), 26 October 2006, 43.

  70. 70.

    ECtHR, Judgment, Suslov v. Russia (App No 2366/07), 29 May 2012, 96; ECtHR, Judgment, Contrada v. Italy (App No 27143/95), 24 August 1998, 67; ECtHR, Judgment, W. v. Switzerland (App No 14379/88), 26 January 1993, 42; ECtHR, Judgment, Tomasi v. France (App No 12850/87), 27 August 1992, 102; ECtHR, Judgment, Toth v. Austria (App No 11894/85), 12 December 1991, 77.

  71. 71.

    Article 21(4)(c) ICTY Statute; Article 20(4)(c) ICTR Statute.

  72. 72.

    Article 20(2) ICTY Statute; Article 19(2) ICTR Statute.

  73. 73.

    Møse and Aptel 2003, 540.

  74. 74.

    Farrell 2003, 105.

  75. 75.

    ICTY, Decision on Interlocutory Appeal by the Accused Zoran Žigić against the Decision of Trial Chamber I dated 5 December 2000, Prosecutor v. Kvočka et al (IT-98-30/1-AR73.5), 25 May 2001, 21; ICTY, Decision on Motion of Accused Naletilić for a Trial Schedule which Incorporates Reasonable Breaks, Prosecutor v. Naletilić and Martinović (IT-98-34-T), 3 April 2002, 3; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 54. See also McDermott 2013a, 805; Trechsel 2011, 167.

  76. 76.

    See e.g. ICTY, Decision on Adoption of New Measures to Bring the Trial to an End within a Reasonable Time, Prosecutor v. Prlić et al (IT-04-74-T), 13 November 2006, 14.

  77. 77.

    ICTY, Decision on Appeal against Decision on Continuation of Proceedings, Dissenting Opinion of Judge Afande, Prosecutor v. Šešelj (IT-03-67–AR15bis), 6 June 2014, 29.

  78. 78.

    Robinson 2000, 583.

  79. 79.

    See Farrell 2003, 106, who calls this ‘procedural streamlining’.

  80. 80.

    The ICTY’s case law in particular, is quite limited in number. Its first decision on this issue was rendered in 2007: ICTY, Decision on Motion for Sanctions for Failure to Bring the Accused to Trial without Undue Delay, Prosecutor v. Perišić (IT-04-81-PT), 23 November 2007, 12.

  81. 81.

    See, e.g.: ICTY, Decision on Motion for Sanctions for Failure to Bring the Accused to Trial without Undue Delay, Prosecutor v. Perišić (IT-04-81-PT), 23 November 2007, 21; Similarly ICTR, Reasons for the Decision on the Prosecutor’s Request for Leave to Amend the Indictment, Prosecutor v. Kanyabashi (ICTR-96-15-T), 12 August 1999, 6; ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 24.

  82. 82.

    ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 19.

  83. 83.

    ICTY, Sentencing Judgement, Prosecutor v. Mrđa (IT-02-59-s), 31 March 2004, 102.

  84. 84.

    Articles 19 and 20 ICTY Statute; Articles 18 and 19 ICTR Statute; Boas and others 2011, 179.

  85. 85.

    Similarly Lahiouel 2001, 200. Of course, it is not unimaginable that persons have been substantially affected by investigations into their conduct prior to being indicted by the ad hoc Tribunals. However, no examples of this have been found in the practice of the Tribunals.

  86. 86.

    ICTR, Decision on the Prosecutor’s Motion to Amend the Indictment, Prosecutor v. Kabiligi and Ntabakuze (ICTR-97-34-I), 8 October 1999, 8; ICTR, Decision, Barayagwiza v. Prosecutor (ICTR-97-19-AR72), 3 November 1999, 61; ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Ntagerura (ICTR-97-36-I), 11 October 1999, 14; ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Bagosora (ICTR-96-7), 29 June 2000, 152.

  87. 87.

    ICTY, Order Appointing a Pre-Appeal Judge, Prosecutor v. Delalić et al (IT-96-21-A), 12 October 1999, 2; ICTY, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, Prosecutor v. Halilović (IT-01-48-A), 27 October 2006, 17.

  88. 88.

    ICTY, Order Appointing a Pre-Appeal Judge, Prosecutor v. Delalić et al (IT-96-21-A), 12 October 1999, 3; ICTY, Order Appointing a Pre-Appeal Judge and Scheduling Order, Prosecutor v. Blaskić (IT-95-14-A), 8 June 2000, 2; see also Farrell 2003, 106.

  89. 89.

    ICTY, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, Prosecutor v. Kovačević (IT-97-24-AR73), 2 July 1998, 30; ICTY, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, Prosecutor v. Halilović (IT-01-48-A), 27 October 2006, 17; ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 75;

    ICTR, Decision on the Defence Extremely Urgent Motion on Habeas Corpus and for Stoppage of the Proceedings, Prosecutor v. Kanyabashi (ICTR-96-15-I), 23 May 2000, 59; ICTR, Decision on the Defence Motion for Separate Trial, Prosecutor v. Ndayambaje (ICTR-96-8-T), 25 April 2001, 18; ICTR, Decision on the Motion for Separate Trials, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-97-21-T), 8 June 2001, 23; ICTR, Decision on Justin Mugenzi’s Motion for Stay of Proceedings or in the Alternative Provisional Release (Rule 65) and in Addition Severance (Rule 82(B)), Prosecutor v. Mugenzi et al (ICTR-99-50-I), 8 November 2002, 33; ICTR, Decision on Prosper Mugiraneza’s Motion to Dismiss the Indictment for Violation of Article 20(4)(c) of the Statute, Demand for Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-I), 2 October 2003, 13; ICTR, Decision on Prosper Mugiraneza’s Third Motion to Dismiss Indictment for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 10 February 2009, 15; ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 34.

  90. 90.

    ICTY, Decision on Motion by Accused to Discontinue Proceedings, Prosecutor v. Šešelj (IT-03-73-T), 29 September 2011, 27; ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 26; ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 27; ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 15; ICTR, Decision on Prosper Mugiraneza’s Third Motion to Dismiss Indictment for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 10 February 2009, 15; ICTR, Decision on Jérôme-Clement Bicamumpaka’s Motion Seeking Permanent Stay of Proceedings, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 27 February 2009, 14; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 31; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 11.

  91. 91.

    ICTR, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, Prosecutor v. Bagosora et al (ICTR-96-7-T), 12 August 1999, 5; ICTR, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, Prosecutor v. Ndayambaje (ICTR-96-8-T), 2 September 1999, 5; ICTR, Decision on Nyiramasuhuko’s Motion for Separate Proceedings, a New Trial, and Stay of Proceedings, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-98-42-T), 7 April 2006, 75.

  92. 92.

    ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Ntagerura (ICTR-97-36-I), 11 October 1999, 13; ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Bagosora (ICTR-96-7), 29 June 2000, 147; ICTR, Decision on the Defence Motion in Opposition to Joinder and Motion for Severance and Separate Trial Filed by the Accused Joseph Nzizorera, Prosecutor v. Bizimana et al (ICTR-98-44-T), 12 July 2000, 24; ICTR, Decision on the Defence Motion Seeking a Separate Trial for the Accused Sylvain Nsabimina, Proscutor v. Nsabimina et al (ICTR-97-29A-T), 8 September 2000, 38.

  93. 93.

    ICTR, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-AR73), 27 February 2004, 3.

  94. 94.

    ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 14; ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 11; ICTR, Appeals Judgement, Prosecutor v. Nahimana et al (ICTR-99-52-A), 28 November 2007, 1074; ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 75; ICTR, Decision on Jérôme-Clement Bicamumpaka’s Motion Seeking Permanent Stay of Proceedings, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 27 February 2009, 9; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 30; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 3; ICTR, Judgement, Prosecutor v. Gatete (ICTR-2000-61-T), 31 March 2011, 57; ICTR, Judgement and Sentence, Prosecutor v. Nyiramasuhuko et al (ICTR-98-42-T), 24 June 2011, 137; ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 73; ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 34; ICTR, Decision on Protais Zigiranyirazo’s Motion for Damages, Zigiranyirazo v. Prosecutor (ICTR-2001-01-073), 18 June 2012, 33; ICTR, Appeals Judgement, Prosecutor v. Gatete (ICTR-00-61-A), 9 October 2012, 18; ICTR, Appeals Judgement, Prosecutor v. Mugenzi and Mugiraneza (ICTR-99-50-A), 4 February 2013, 30; ICTR, Appeals Judgement, Prosecutor v. Ndindiliyimana et al (ICTR-00-56-A), 11 February 2014, 43; ICTR, Appeals Judgement, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-A), 29 September 2014, 69.

  95. 95.

    ICTY, Decision on Motion for Sanctions for Failure to Bring the Accused to Trial without Undue Delay, Prosecutor v. Perišić (IT-04-81-PT), 23 November 2007, 12; ICTY, Decision on Appeal against Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67–AR15bis), 6 June 2014, 63.

  96. 96.

    ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 19.

  97. 97.

    ICTR, Decision on Continuation of the Proceedings, Prosecutor v. Karemera et al (ICTR-98-44-T), 6 March 2007, 78.

  98. 98.

    ICTR, Decision on Ntahobali’s Motion for a Stay of Proceedings for Undue Delay, Prosecutor v. Ntahobali (ICTR-97-21-T), 26 November 2008, 58.

  99. 99.

    ICTY, Decision on Oral Request of the Accused for Abuse of Process, Prosecutor v. Šešelj (IT-03-73-T), 10 February 2010, 30; reiterated in: ICTY, Decision on Accused’s Claim for Damages on Account of Alleged Violations of his Elementary Rights during Provisional Detention, Prosecutor v. Šešelj (IT-03-73-T), 12 March 2012, 89, 91.

  100. 100.

    See also Farrell 2003, 113, who identified this lack of consistency early on in the case law of the Tribunal. Although the authorititative determination by the Appeals Chamber in Mugiraneza et al, cited above, took away a part of this inconsistency, it has not disappeared completely.

  101. 101.

    ICTY, Decision on Oral Request of the Accused for Abuse of Process, Prosecutor v. Šešelj (IT-03-73-T), 10 February 2010, 30.

  102. 102.

    ICTY, Decision on Appeal against Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67–AR15bis), 6 June 2014, 63.

  103. 103.

    ICTY, Decision on Oral Request of the Accused for Abuse of Process, Prosecutor v. Šešelj (IT-03-73-T), 10 February 2010, 29–30, where the Chamber relied on several arguments related mainly to the complexity of the case to dismiss the allegations that the accused’s right to be tried without undue delay had been violated; ICTY, Decision on Motion by Accused to Discontinue Proceedings, Prosecutor v. Šešelj (IT-03-73-T), 29 September 2011, 29, where the Chamber referred back to its previous arguments; ICTY, Decision on Accused’s Claim for Damages on Account of Alleged Violations of his Elementary Rights during Provisional Detention, Prosecutor v. Šešelj (IT-03-73-T), 12 March 2012, 29, where the Chamber again referred back to its previous findings without adding any reasoning. The Chamber’s subsequent decision did add some, albeit limited, reasoning to justify additional delays: ICTY, Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67-T), 13 December 2013, 18–22, where the Chamber reiterated its previous findings, and 23, where the Chamber held that the additional time taken since the previous decisions was ‘reasonable’, in light of the complexity of the case; see also ICTY, Decision on Appeal against Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67–AR15bis), 6 June 2014, in this decision, however, the Appeals Chamber did not consider delays up to that point, but possible future undue delay resulting from the disqualification of Judge Harhoff from the bench of the Trial Chamber.

  104. 104.

    See e.g. ICTY, Order Denying a Motion for Provisional Release, Prosecutor v. Blaskić (IT-95-14-T), 20 December 1996, 7; ICTY, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, Prosecutor v. Kovačević (IT-97-24-AR73), 2 July 1998, 31; ICTY, Decision on Filing of Replies, Prosecutor v. Brđanin and Talić (IT-99-36-PT), 7 June 2001, para 3; ICTY, Decision on Motion for Sanctions for Failure to Bring the Accused to Trial without Undue Delay, Prosecutor v. Perišić (IT-04-81-PT), 23 November 2007, 22; ICTY, Decision on Motion by Accused to Discontinue Proceedings, Prosecutor v. Šešelj (IT-03-73-T), 29 September 2011, 30.

  105. 105.

    ICTY, Order Denying a Motion for Provisional Release, Prosecutor v. Blaskić (IT-95-14-T), 20 December 1996, 7; ICTR, Decision on Defence Motion for Trial to Proceed before Trial Chamber II, Composed of Judges Sekule, Maqutu and Ramaroson and for Termination of the Proceedings, Prosecutor v. Kanyabashi (ICTR-96-15-T), 20 February 2004, 3; ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 34.

  106. 106.

    ICTR, Reasons for the Decision on the Prosecutor’s Request for Leave to Amend the Indictment, Prosecutor v. Kanyabashi (ICTR-96-15-T), 12 August 1999, 6; ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 79, 81; ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 77; ICTR, Appeals Judgement, Prosecutor v. Bagosora and Nsengiyumva (ICTR-98-41-A), 14 December 2011, 37.

  107. 107.

    Whiting 2009, 336.

  108. 108.

    Møse and Aptel 2003, 550–553; see also Whiting 2009, 335–336.

  109. 109.

    ICTY, Decision on Oral Request of the Accused for Abuse of Process, Prosecutor v. Šešelj (IT-03-73-T), 10 February 2010, 29; ICTR, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-AR73), 27 February 2004, 3; confirmed in: ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 16; ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 30; ICTR, Appeals Judgement, Prosecutor v. Nahimana et al (ICTR-99-52-A), 28 November 2007, 1076; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 30; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 13; ICTR, Judgement, Prosecutor v. Gatete (ICTR-2000-61-T), 31 March 2011, 60; ICTR, Judgement and Sentence, Prosecutor v. Nyiramasuhuko et al (ICTR-98-42-T), 24 June 2011, 139; CTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 77; ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 38; ICTY, Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67-T), 13 December 2013, 23.

  110. 110.

    ICTR, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-AR73), 27 February 2004, 3; ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 29; ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 30; ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 16; ICTR, Appeals Judgement, Prosecutor v. Nahimana et al (ICTR-99-52-A), 28 November 2007, 1076; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 30; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 13; ICTR, Judgement and Sentence, Prosecutor v. Nyiramasuhuko et al (ICTR-98-42-T), 24 June 2011, 139; ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 76; ICTR, Appeals Judgement, Prosecutor v. Bagosora and Nsengiyumva (ICTR-98-41-A), 14 December 2011, 37; ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 35.

  111. 111.

    ICTR, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-AR73), 27 February 2004, 3; confirmed in: ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 16; ICTR, Appeals Judgement, Prosecutor v. Nahimana et al (ICTR-99-52-A), 28 November 2007, 1076; ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 78; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 30; ICTR, Judgement, Prosecutor v. Gatete (ICTR-2000-61-T), 31 March 2011, 60; ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 75; ICTR, Appeals Judgement, Prosecutor v. Bagosora and Nsengiyumva (ICTR-98-41-A), 14 December 2011, 37; ICTY, Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67-T), 13 December 2013, 23.

  112. 112.

    ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 29; ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 30; ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 78; ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 81; ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 76; ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 38.

  113. 113.

    ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 38; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 13; ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 76; ICTR, Judgement and Sentence, Prosecutor v. Nyiramasuhuko et al (ICTR-98-42-T), 24 June 2011, 139.

  114. 114.

    ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 81; ICTR, Appeals Judgement, Prosecutor v. Bagosora and Nsengiyumva (ICTR-98-41-A), 14 December 2011, 37.

  115. 115.

    ICTY, Decision on Oral Request of the Accused for Abuse of Process, Prosecutor v. Šešelj (IT-03-73-T), 10 February 2010, 29; ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Bagosora (ICTR-96-7), 29 June 2000, 152; ICTR, Decision on the Defence Motion in Opposition to Joinder and Motion for Severance and Separate Trial Filed by the Accused Joseph Nzizorera, Prosecutor v. Bizimana et al (ICTR-98-44-T), 12 July 2000, 26; ICTR, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-AR73), 27 February 2004, 3; confirmed in: ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 16; ICTR, Appeals Judgement, Prosecutor v. Nahimana et al (ICTR-99-52-A), 28 November 2007, 1076; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 30; ICTR, Judgement, Prosecutor v. Gatete (ICTR-2000-61-T), 31 March 2011, 60; ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 75; ICTR, Appeals Judgement, Prosecutor v. Bagosora and Nsengiyumva (ICTR-98-41-A), 14 December 2011, 37; ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 35; ICTY, Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67-T), 13 December 2013, 23; see also Whiting 2009, 338.

  116. 116.

    Møse and Aptel 2003, 550.

  117. 117.

    See also Heinsch 2009, 482.

  118. 118.

    ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 75-79; ICTR, Appeals Judgement, Prosecutor v. Mugenzi and Mugiraneza (ICTR-99-50-A), 4 February 2013, 32; ICTR, Appeals Judgement, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-A), 29 September 2014, 71.

  119. 119.

    ICTR, Judgement, Prosecutor v. Gatete (ICTR-2000-61-T), 31 March 2011, 64.

  120. 120.

    ICTR, Appeals Judgement, Prosecutor v. Gatete (ICTR-00-61-A), 9 October 2012, 29.

  121. 121.

    ICTR, Appeals Judgement, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-A), 29 September 2014, 71.

  122. 122.

    As also confirmed by the practice of human rights courts and superivsory bodies: ECtHR, Judgment, Sizov v. Russia (App No 58104/08), 25 July 2012, 60; ECtHR, Judgment, Grishin v. Russia (App No 14807/08), 24 July 2012; IACtHR, Judgment, Valle Jaramillo et al v. Colombia (Case No 12.415), 27 November 2008, 156; HRC, Francis et al v. Trinidad and Tobago (Comm No 899/1999), UN Doc CCPR/C/75/D/899/1999, 25 July 2002, 5.4.

  123. 123.

    See also Sluiter 2010, 251.

  124. 124.

    ICTR, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-AR73), 27 February 2004, 3.

  125. 125.

    ICTR, Decision on the Defence Extremely Urgent Motion on Habeas Corpus and for Stoppage of the Proceedings, Prosecutor v. Kanyabashi (ICTR-96-15-I), 23 May 2000, 69.

  126. 126.

    ICTY, Order Denying a Motion for Provisional Release, Prosecutor v. Blaskić (IT-95-14-T), 20 December 1996, 7.

  127. 127.

    ICTY, Decision on Oral Request of the Accused for Abuse of Process, Prosecutor v. Šešelj (IT-03-73-T), 10 February 2010, 29.

  128. 128.

    ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 29.

  129. 129.

    ICTY, Decision on Motion by Accused to Discontinue Proceedings, Prosecutor v. Šešelj (IT-03-73-T), 29 September 2011, 26; similarly ICTY, Decision on Appeal against Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67–AR15bis), 6 June 2014, 65.

  130. 130.

    ICTR, Appeals Judgement, Prosecutor v. Ndindiliyimana et al (ICTR-00-56-A), 11 February 2014, 45.

  131. 131.

    ICTR, Decision on Protais Zigiranyirazo’s Motion for Damages, Zigiranyirazo v. Prosecutor (ICTR-2001-01-073), 18 June 2012, 38, 40; similarly ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 32; similarly ICTR, Appeals Judgement, Prosecutor v. Ndindiliyimana et al (ICTR-00-56-A), 11 February 2014, 44, where the Appeals Chamber held that the accused could no longer complain about the delays in his case related to its joinder with those against other accused persons, because he had failed to do so earlier.

  132. 132.

    ICTR, Decision on the Defence Motion for the Translation of Prosecution and Procedural Documents into Kinyarwanda, the Language of the Accused, and into French, the Language of his Counsel, Prosecutor v. Muhimana (ICTR-95-18-I), 6 November 2001, 12; ICTR, Decision in the Matter of Proceedings under Rule 15Bis(D), Prosecutor v. Nyiramasuhuko et al (ICTR-98-42-T), 15 July 2003, para 33(f); confirmed on appeal: ICTR, Decision in the Matter of Proceedings under Rule 15bis(D), Prosecutor v. Nyiramasuhuko et al (ICTR-98-41-A15bis), 24 September 2003, 24; ICTY, Reasons for Decision on Assignment of Defence Counsel, Prosecutor v. Milošević (IT-02-54-T), 22 September 2004, 54; ICTY, Decision on Defendants Appeal against “Décision portant Attribution du Temps à la Défense pour la Présentation des Moyens à Décharge”, Prosecutor v. Prlić et al (IT-04-74-AR73.7), 1 July 2008; ICTR, Order on Mathieu Ngirumpatse’s Brief Following the 17 April 2008 Decision on the Presentation of Defence Evidence, Prosecutor v. Karemera et al (ICTR-98-44-T), 25 June 2008, 11; ICTR, Decision on Ndindilyimana’s Motion to Recall Identified Prosecution Witnesses and to Call Additional Defence Witnesses, Prosecutor v. Ndindilyimana et al (ICTR-00-56-T), 4 December 2008, 6.

  133. 133.

    ICTR, Decision on Édouard Karemera’s Motion for Postponement of the Commencement of his Case as well as on the Prosecutor’s Crossmotion for Enforcement of Rule 73ter and Remedial and Punitive Measures and the Prosecutor’s Request for Temporary Transfer of Witness AXA pursuant to Rule 90bis, Prosecutor v. Karemera et al (ICTR-98-44-T), 27 February 2008, 14.

  134. 134.

    ICTY, Decision on Appeal from Decision on Duration of Defence Case, Prosecutor v. Karadžić (IT-95-5/18-AR73.10), 29 January 2013, 16; ICTY, Decision on Accused’s Motion to Vary List of Witnesses, Prosecutor v. Karadžić (IT-95-5118-T), 21 February 2013, 8; ICTY, Decision on Accused’s Motion to Substitute Witness, Prosecutor v. Karadžić (IT-95-5118-T), 25 February 2013, 5; ICTY, Decision on Accused’s Motion to Vary List of Witnesses: Srebrenica Component, Prosecutor v. Karadžić (IT -95-5/18-T), 13 September 2013, 8; ICTY, Decision on Accused’s Motion to Vary List of Witnesses: (Sarajevo Component), Prosecutor v. Karadžić (IT -95-5/18-T), 10 October 2013, 7; ICTY, Decision on Accused’s Motion to Vary List of Witnesses: Srebrenica & Municipalities Components, Prosecutor v. Karadžić (IT -95-5/18-T), 4 November 2013, 9; ICTY, Decision on Accused’s Motions for Severance of Count 1 and Suspension of Defence Case, Prosecutor v. Karadžić (IT-95-5118-T), 2 August 2013, 16; ICTY, Decision on Tolimir’s Motion for Extension of Time for Filing Amendments to the Brief in Reply, Prosecutor v. Tolimir (IT-05-88/2-A), 29 February 2014, 2.

  135. 135.

    ICTY, Appeals Judgment, Prosecutor v. Sainović et al (IT-05-87-A), 23 January 2014, 100.

  136. 136.

    See, e.g.: ICTR, Decision in the Matter of Proceedings under Rule 15bis(D), Dissenting Opinion of Judge David Hunt, Prosecutor v. Nyiramasuhuko et al (ICTR-98-41-A15bis), 24 September 2003, 30; McDermott 2013a, 805; see also McDermott 2013c; this question, however, exceeds the scope of the present inquiry which focuses on the right to be tried without undue delay itself.

  137. 137.

    ICTR, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-AR73), 27 February 2004, 3; ICTR, Decision on Prosper Mugiraneza’s Application for a Hearing or other Relief on his Motion for Dismissal for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 3 November 2004, 32.

  138. 138.

    ICTR, Appeals Judgement, Prosecutor v. Mugenzi and Mugiraneza (ICTR-99-50-A), 4 February 2013, 33.

  139. 139.

    ICTY, Decision on Motion for Sanctions for Failure to Bring the Accused to Trial without Undue Delay, Prosecutor v. Perišić (IT-04-81-PT), 23 November 2007, 24.

  140. 140.

    ICTR, Decision, Barayagwiza v. Prosecutor (ICTR-97-19-AR72), 3 November 1999, 99.

  141. 141.

    Ibid.

  142. 142.

    ICTR, Decision on Prosecution Motion for Reconsideration or, in the alternative, Certification to Appeal Chamber’s Decision Denying Request for Adjournment, Prosecutor v. Rwamakuba (ICTR-98-44C-T), 25 September 2005, 23.

  143. 143.

    ICTY, Decision on the Prosecutor’s Motion to Hold Pre-Trial Motions in Abeyance, Prosecutor v. Kordić and Čerkez (IT-95-14/2-PT, 28 January 1998, 12(c); ICTY, Decision on Fourth Amended Indictment, Prosecutor v. Brđanin and Talić (IT-99-36-PT), 23 November 2001, 17; ICTY, Decision on Prosecutor’s Motion for Leave to Amend the Indictment, Prosecutor v. Halilović (IT-01-48-PT), 17 December 2004, 39, 41; ICTY, Decision on the Prosecution’s Submission of Proposed Amended Indictment and Defence Motion Alleging Defects in Amended Indictment, Prosecutor v. Delić (IT-04-83-PT), 30 June 2006, 74; ICTY, Decision on Motion and Supplementary Motion for Leave to Amend the Indictment, Prosecutor v. Stanišić and Župljanin (IT-08-91-PT), 28 April 2009, 41; ICTR, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, Prosecutor v. Bagosora et al (ICTR-96-7-T), 12 August 1999, 5.

  144. 144.

    ICTY, Decision on the Prosecution’s Submission of Proposed Amended Indictment and Defence Motion Alleging Defects in Amended Indictment, Prosecutor v. Delić (IT-04-83-PT), 30 June 2006, 68; see also ICTR, Decision on Defence Motion to Set a Date for Trial, Prosecutor v. Nchamihigo (ICTR-2001-63-I), 21 April 2006, 9; ICTR, Decision on the Prosecutor’s Application for Severance and Leave to Amend the Indictment against Ildephonse Hategekimana, Prosecutor v. Nizeyimana and Hategekimana (ICTR-00-55-I), 25 September 2007, 8; ICTR, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, Prosecutor v. Ndahimana (ICTR-2001-68-PT), 3 February 2010, 4; ICTY, Decision on the Prosecution’s Motion to Amend the Revised Second Indictment, Prosecutor v. Stanišić and Simatović (IT-03-69-PT), 4 July 2008, 25; ICTY, Decision on Motion and Supplementary Motion for Leave to Amend the Indictment, Prosecutor v. Stanišić and Župljanin (IT-08-91-PT), 28 April 2009, 13; ICTR, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, Prosecutor v. Karemera et al (ICTR-98-44-AR73), 19 December 2003, 20.

  145. 145.

    ICTR, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, Prosecutor v. Karemera et al (ICTR-98-44-AR73), 19 December 2003, 20.

  146. 146.

    ICTR, Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003 Denying Leave to File an Amended Indictment, Prosecutor v. Karemera et al (ICTR-98-44-AR73), 19 December 2003, 22; ICTR, Decision on Defence Motion to Set a Date for Trial, Prosecutor v. Nchamihigo (ICTR-2001-63-I), 21 April 2006, 29; ICTR, Decision on the Prosecutor’s Application for Severance and Leave to Amend the Indictment against Ildephonse Hategekimana, Prosecutor v. Nizeyimana and Hategekimana (ICTR-00-55-I), 25 September 2007, 21.

  147. 147.

    ICTY, Order Denying a Motion for Provisional Release, Prosecutor v. Blaskić (IT-95-14-T), 20 December 1996, 7.

  148. 148.

    ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 33; ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 18; ICTR, Decision on Prosper Mugiraneza’s Third Motion to Dismiss Indictment for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 10 February 2009, 17.

  149. 149.

    ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 32-33; ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 41.

  150. 150.

    ICTY, Decision on Motion for Sanctions for Failure to Bring the Accused to Trial without Undue Delay, Prosecutor v. Perišić (IT-04-81-PT), 23 November 2007, 25.

  151. 151.

    ICTY, Decision Adopting Guidelines on Conduct of Trial Proceedings, Prosecutor v. Prlić et al (IT-04-74-PT), 26 April 2004.

  152. 152.

    ICTY, Decision on the Prosecutor’s Motion to Hold Pre-Trial Motions in Abeyance, Prosecutor v. Kordić and Čerkez (IT-95-14/2-PT, 28 January 1998, 2; ICTY, First Decision on Prosecution’s Motion for Admission of Witness Statements and Prior Testimony Pursuant to Rule 92 bis, Prosecutor v. Blagojević and Jokić (IT-02-60-T), 12 June 2003, 20; ICTY, Decision on Adoption of New Measures to Bring the Trial to an End within a Reasonable Time, Prosecutor v. Prlić et al (IT-04-74-T), 13 November 2006, 21.

  153. 153.

    ICTY, Decision on Prosecution Motion for Additional Time for Completion of its Case-In-Chief, Prosecutor v. Hadžić (IT-04-75-T), 23 April 2013, 4; ICTY, Order Issuing a Public Redacted Version of the Trial Chamber Decision on Motion for Leave to Amend the Prosecution’s Witness and Exhibit List of 9 July 2007, Prosecutor v. Delić (IT-04-83-A), 12 July 2013, 5; ICTR, Decision on Joseph Kanyabashi’s Motion to Amend his Notice of Appeal, Prosecutor v. Nyiramasuhuko et al (ICTR-98-42-A), 5 April 2013, 10, 20, 28.

  154. 154.

    ICTR, Appeals Judgement, Prosecutor v. Ndindiliyimana et al (ICTR-00-56-A), 11 February 2014, 46.

  155. 155.

    ICTY, Decision on Prosecutor’s Motion for Joinder, Prosecutor v. Kvočka et al (IT-98-30-PT), 19 October 1999, 5; ICTY, Decision on Joinder of Trials, Prosecutor v. Kunarac and Kovać (IT-96-23-PT), 9 February 2000, 10-11; ICTY, Decision on Stojan Župljanin’s Motion for Joinder, Prosecutor v. Stanišić and Župljanin (IT-08-91-PT), 6 January 2009, 32; ICTR, Decision on the Motion of the Prosecutor to Sever, to Join in a Superseding Indictment and to Amend the Superseding Indictment, Prosecutor v. Kayishema et al (ICTR-95-1-T), 27 March 1997, 5.

  156. 156.

    ICTR, Decision on the Defence Motion in Opposition to Joinder and Motion for Severance and Separate Trial Filed by the Accused Juvenal Kajelijeli, Prosecutor v. Bizimana et al (ICTR-98-44-T), 6 July 2000, 35; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009; ICTR, Decision on Appeal Concerning the Severance of Matthieu Ngirumpatse, Prosecutor v. Karemera et al (ICTR-98-44-AR.73), 19 June 2009; ICTR, Decision on Remand on Resumption of Trial, Prosecutor v. Karemera et al (ICTR-98-44), 10 September 2009.

  157. 157.

    ICTY, Decision on Motion for Joinder, Prosecutor v. Tolimir (IT-05-88/2-PT), 20 July 2007, 47.

  158. 158.

    ICTY, Decision of Trial Chamber I in respect of the Motion of 19 June 1997 Requesting Separation of Trials, Prosecutor v. Aleksovski (IT-95-14/1-PT), 25 September 1997, 2; ICTY, Decision of Trial Chamber II Concerning Separation of Trials, Prosecutor v. Dokmanović (IT-95-13a-PT), 28 November 1997, 2; ICTY, Decision on Prosecution’s Oral Request for the Separation of Trials, Prosecutor v. Brđanin and Talić (IT-99-36-PT), 20 September 2002, 26.

  159. 159.

    ICTR, Decision on André Rwamakuba’s Motion for Severance, Prosecutor v. Rwamakuba (ICTR-98-44-T), 12 December 2000, 38; ICTR, Decision on the Defence Motion for Separate Trial, Prosecutor v. Ndayambaje (ICTR-96-8-T), 25 April 2001, 19; ICTR, Decision on the Motion for Separate Trials, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-97-21-T), 8 June 2001, 24; ICTR, Decision on Nyiramasuhuko’s Motion for Separate Proceedings, a New Trial, and Stay of Proceedings, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-98-42-T), 7 April 2006, 75.

  160. 160.

    ICTY, Decision on Defence’s Motions for Separate Trials and Severance of Counts, Prosecutor v. Prlić et al (IT-04-74-PT), 1 July 2005, 24; ICTY, Decision on Radivoje Miletić’s Interlocutory Appeal against the Trial Chamber’s Decision on Joinder of Accused, Prosecutor v. Miletić et al (IT-04-80-AR73.1), 27 January 2006, 25; ICTY, Decision on Interlocutory Appeals Against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, Prosecutor v. Gotovina et al (IT-01-45-AR73.1), 25 October 2006, 43.

  161. 161.

    ICTR, Decision on the Defence Motion Seeking a Separate Trial for the Accused Sylvain Nsabimina, Proscutor v. Nsabimina et al (ICTR-97-29A-T), 8 September 2000, 39; ICTR, Decision on the Defence Motion for Separate Trial, Prosecutor v. Ndayambaje (ICTR-96-8-T), 25 April 2001, 20; ICTR, Decision on the Motion for Separate Trials, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-97-21-T), 8 June 2001, 25; ICTR, Decision on Nyiramasuhuko’s Motion for Separate Proceedings, a New Trial, and Stay of Proceedings, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-98-42-T), 7 April 2006, 77; ICTR, Decision on Continuation of the Proceedings, Prosecutor v. Karemera et al (ICTR-98-44-T), 6 March 2007, 82.

  162. 162.

    ICTY, Decision on Joinder of Trials, Prosecutor v. Kunarac and Kovać (IT-96-23-PT), 9 February 2000, 11; ICTR, Decision on the Defence Motion in Opposition to Joinder and Motion for Severance and Separate Trial Filed by the Accused Joseph Nzizorera, Prosecutor v. Bizimana et al (ICTR-98-44-T), 12 July 2000, 27; ICTR, Decision on the Defence Motion Seeking a Separate Trial for the Accused Sylvain Nsabimina, Proscutor v. Nsabimina et al (ICTR-97-29A-T), 8 September 2000, 37, 40; ICTR, Decision on André Rwamakuba’s Motion for Severance, Prosecutor v. Rwamakuba (ICTR-98-44-T), 12 December 2000, 37; ICTR, Decision in the Matter of Proceedings under Rule 15Bis(D), Prosecutor v. Nyiramasuhuko et al (ICTR-98-42-T), 15 July 2003, 33(g).

  163. 163.

    ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Bagosora (ICTR-96-7), 29 June 2000, 155; similarly ICTY, Decision on Joinder of Trials, Prosecutor v. Kunarac and Kovać (IT-96-23-PT), 9 February 2000, 11.

  164. 164.

    ICTR, Decision on Continuation of the Proceedings, Prosecutor v. Karemera et al (ICTR-98-44-T), 6 March 2007, 82.

  165. 165.

    ICTR, Appeals Judgement, Prosecutor v. Ndindiliyimana et al (ICTR-00-56-A), 11 February 2014, 44.

  166. 166.

    ICTR, Decision on the Defence Motion in Opposition to Joinder and Motion for Severance and Separate Trial Filed by the Accused Juvenal Kajelijeli, Prosecutor v. Bizimana et al (ICTR-98-44-T), 6 July 2000, 30; ICTR, Decision on the Defence Motion in Opposition to Joinder and Motion for Severance and Separate Trial Filed by the Accused Joseph Nzizorera, Prosecutor v. Bizimana et al (ICTR-98-44-T), 12 July 2000, 22; ICTR, Decision on Ndindilyimana’s Motion to Recall Identified Prosecution Witnesses and to Call Additional Defence Witnesses, Prosecutor v. Ndindilyimana et al (ICTR-00-56-T), 4 December 2008, 7.

  167. 167.

    Rule 82(A) ICTY RPE; Rule 82(A) ICTR RPE.

  168. 168.

    ICTR, Appeals Judgement, Prosecutor v. Mugenzi and Mugiraneza (ICTR-99-50-A), 4 February 2013, 33.

  169. 169.

    Ibid., 33, 32.

  170. 170.

    For example, Bizimungu et al, before the ICTR, took almost eight years from the commencement of trial until the first instance judgement; and Popović et al, before the ICTY, took a little under four years from the commencement of trial until the first instance judgment.

  171. 171.

    Sluiter 2010, 251; Lahiouel 2001, 203.

  172. 172.

    Robinson 2006, 169.

  173. 173.

    Boas 2007, 276.

  174. 174.

    Schomburg 2009, 15.

  175. 175.

    Galbraith 2009, 90.

  176. 176.

    Higgins 2007, 398.

  177. 177.

    Boas 2007, 137.

  178. 178.

    Ibid., 128.

  179. 179.

    ICTR, Decision on Ntahobali’s Motion for a Stay of Proceedings for Undue Delay, Prosecutor v. Ntahobali (ICTR-97-21-T), 26 November 2008, 59.

  180. 180.

    ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 36; ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 20; ICTR, Decision on Prosper Mugiraneza’s Third Motion to Dismiss Indictment for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 10 February 2009, 20; ICTR, Decision on Jérôme-Clement Bicamumpaka’s Motion Seeking Permanent Stay of Proceedings, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 27 February 2009, 17; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 16.

  181. 181.

    ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Partially Dissenting Opinion of judge Short, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 5; reiterated in: ICTR, Judgement and Sentence, Partially Dissenting Opinion of Judge Emile Francis Short, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 5, by which time the delay had added up to three years.

  182. 182.

    ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Partially Dissenting Opinion of judge Short, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 3; reiterated in: ICTR, Judgement and Sentence, Partially Dissenting Opinion of Judge Emile Francis Short, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 5.

  183. 183.

    Similarly McDermott 2013b, 132.

  184. 184.

    ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 74; see also Tolbert and Gaynor 2009, 58-59, who are similarly critical of the lengthy periods of judgment-drafting in a number of cases before the ad hoc Tribunals.

  185. 185.

    ICTR, Judgement and Sentence, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 79.

  186. 186.

    ICTR, Judgement and Sentence, Partially Dissenting Opinion of Judge Emile Francis Short, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 30 September 2011, 7.

  187. 187.

    ICTR, Appeals Judgement, Prosecutor v. Mugenzi and Mugiraneza (ICTR-99-50-A), 4 February 2013, 35.

  188. 188.

    Ibid.

  189. 189.

    ICTR, Appeals Judgement, Partially Dissenting Opinion of Judge Patrick Robinson, Prosecutor v. Mugenzi and Mugiraneza (ICTR-99-50-A), 4 February 2013, 2.

  190. 190.

    Ibid., 4.

  191. 191.

    Ibid., 12.

  192. 192.

    ICTY, Decision on Continuation of Proceedings, Concurring Opinion of Judge Antonetti, Prosecutor v. Šešelj (IT-03-67-T), 13 December 2013, 37-38.

  193. 193.

    ICTY, Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67-T), 13 December 2013, 56; ICTY, Decision on Appeal against Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67 -AR15bis), 6 June 2014, 67.

  194. 194.

    ICTY, Decision on Continuation of Proceedings, Prosecutor v. Šešelj (IT-03-67-T), 13 December 2013, 23.

  195. 195.

    Morley 2008, 295–296; see also Tolbert and Gaynor 2009, 39–60, where they offer several constructive suggestions aimed at expediting international criminal proceedings.

  196. 196.

    See the Annex for a table containing an overview of the data collected.

  197. 197.

    Lahiouel 2001, 207; Carroll 2000, 181.

  198. 198.

    See supra Sect. 6.2.1.

  199. 199.

    ICTR, Decision on Prosper Mugiraneza’s Application for a Hearing or other Relief on his Motion for Dismissal for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 3 November 2004, 33; ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 38; ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 21; ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 82; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 18; ICTR, Judgement and Sentence, Prosecutor v. Nyiramasuhuko et al (ICTR-98-42-T), 24 June 2011, 140; ICTR, Appeals Judgement, Prosecutor v. Bagosora and Nsengiyumva (ICTR-98-41-A), 14 December 2011, 36; ICTR, Appeals Judgement, Prosecutor v. Gatete (ICTR-00-61-A), 9 October 2012, 41; ICTR, Appeals Judgement, Prosecutor v. Mugenzi and Mugiraneza (ICTR-99-50-A), 4 February 2013, 36.

  200. 200.

    ICTR, Judgement, Prosecutor v. Bagosora et al (ICTR-98-41-T), 18 December 2008, 83.

  201. 201.

    ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 18.

  202. 202.

    ICTR, Decision on Prosper Mugiraneza’s Third Motion to Dismiss Indictment for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 10 February 2009, 23.

  203. 203.

    ICTR, Judgement, Prosecutor v. Gatete (ICTR-2000-61-T), 31 March 2011, 63; partly confirmed: ICTR, Appeals Judgement, Prosecutor v. Gatete (ICTR-00-61-A), 9 October 2012, 42–43.

  204. 204.

    ICTR, Judgement, Prosecutor v. Gatete (ICTR-2000-61-T), 31 March 2011, 63.

  205. 205.

    ICTR, Appeals Judgement, Prosecutor v. Gatete (ICTR-00-61-A), 9 October 2012, 44.

  206. 206.

    Ibid., 284.

  207. 207.

    ICTR, Decision on Protais Zigiranyirazo’s Motion for Damages, Zigiranyirazo v. Prosecutor (ICTR-2001-01-073), 18 June 2012, 36, see also 42, where the Chamber denies the motion because of the accused’s failure to assert his right to be tried without undue delay earlier.

  208. 208.

    See e.g. Fedorova and Sluiter 2009, 53, who call it a ‘puzzling adjustment’.

  209. 209.

    Two later decision of the ICTR seems to have a more appropriate understanding of this factor, holding that lengthy detention is by its nature prejudicial to the accused: ICTR, Decision on Protais Zigiranyirazo’s Motion for Damages, Zigiranyirazo v. Prosecutor (ICTR-2001-01-073), 18 June 2012, para 36; ICTR, Appeals Judgement, Prosecutor v. Gatete (ICTR-00-61-A), 9 October 2012, 44. However, both cases emphasize that the delays in these cases were prejudicial because of the limited complexity of the case.

  210. 210.

    ICTY, Decision on Oral Request of the Accused for Abuse of Process, Prosecutor v. Šešelj (IT-03-73-T), 10 February 2010, 30; ICTY, Decision on Accused’s Claim for Damages on Account of Alleged Violations of his Elementary Rights during Provisional Detention, Prosecutor v. Šešelj (IT-03-73-T), 12 March 2012, 89; ICTR, Decision on Prosecutor’s Request for Leave to File an Amended Indictment, Prosecutor v. Nsabimana and Nteziryayo (ICTR-97-29-1), 12 August 1999, 5; ICTR, Decision on the Prosecutor’s Request for Leave to File an Amended Indictment, Prosecutor v. Ndayambaje (ICTR-96-8-T), 2 September 1999, 9; ICTR, Decision on the Defence Motion in Opposition to Joinder and Motion for Severance and Separate Trial Filed by the Accused Joseph Nzizorera, Prosecutor v. Bizimana et al (ICTR-98-44-T), 12 July 2000, 24; ICTR, Decision on the Defence Motion Seeking a Separate Trial for the Accused Sylvain Nsabimina, Prosecutor v. Nsabimina et al (ICTR-97-29A-T), 8 September 2000, 38; ICTR, Decision on the Defence Motion for the Provisional Release of the Accused, Prosecutor v. Kanyabashi (ICTR-96-15-T), 21 February 2001, 12; ICTR, Decision on Defence Motion for Stay of Proceedings, Prosecutor v. Rwamakuba (ICTR-98-44C-PT), 3 June 2005, 19; ICTR, Decision on Nyiramasuhuko’s Motion for Separate Proceedings, a New Trial, and Stay of Proceedings, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-98-42-T), 7 April 2006, 75.

  211. 211.

    ICTR, Decision on the Prosecutor’s Request for Leave to Amend the Indictment, Prosecutor v. Bagosora et al (ICTR-96-7-T), 12 August 1999, 5; see also ICTR, Reasons for the Decision on the Prosecutor’s Request for Leave to Amend the Indictment, Prosecutor v. Kanyabashi (ICTR-96-15-T), 12 August 1999, 6.

  212. 212.

    ICTR, Decision on Defence Motion for Trial to Proceed before Trial Chamber II, Composed of Judges Sekule, Maqutu and Ramaroson and for Termination of the Proceedings, Prosecutor v. Kanyabashi (ICTR-96-15-T), 20 February 2004, 3; idem: ICTR, Decision on Defence Motion for a Stay of Proceedings and Abuse of Process, Prosecutor v. Nyiramasuhuko (ICTR-97-21-T), 20 February 2004, 4; ICTR, Decision on Continuation of the Proceedings, Prosecutor v. Karemera et al (ICTR-98-44-T), 6 March 2007, 78; ICTR, Decision on Ntahobali’s Motion for a Stay of Proceedings for Undue Delay, Prosecutor v. Ntahobali (ICTR-97-21-T), 26 November 2008, 60.

  213. 213.

    ICTY, Decision on Oral Request of the Accused for Abuse of Process, Prosecutor v. Šešelj (IT-03-73-T), 10 February 2010, 29; ICTR, Appeals Judgement, Prosecutor v. Bagosora and Nsengiyumva (ICTR-98-41-A), 14 December 2011, 37.

  214. 214.

    ICTR, Decision on Prosper Mugiraneza’s Motion to Dismiss the Indictment for Violation of Article 20(4)(c) of the Statute, Demand for Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-I), 2 October 2003, 12; ICTR, Decision on Prosper Mugiraneza’s Application for a Hearing or other Relief on his Motion for Dismissal for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 3 November 2004, 30; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 29.

  215. 215.

    ICTR, Decision on Justin Mugenzi’s Motion for Stay of Proceedings or in the Alternative Provisional Release (Rule 65) and in Addition Severance (Rule 82(B)), Prosecutor v. Mugenzi et al (ICTR-99-50-I), 8 November 2002, para 30; ICTR, Decision on Prosper Mugiraneza’s Motion to Dismiss the Indictment for Violation of Article 20(4)(c) of the Statute, Demand for Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-I), 2 October 2003, 11.

  216. 216.

    ICTR, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-AR73), 27 February 2004, 3; reiterated in: ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 29.

  217. 217.

    ICTR, Decision on the Defence Motion for Release, Prosecutor v. Bagosora et al (ICTR-98-41-T), 12 July 2002, 25–26.

  218. 218.

    ICTR, Appeals Judgement, Prosecutor v. Nahimana et al (ICTR-99-52-A), 28 November 2007, 1076; ICTR, Judgement and Sentence, Prosecutor v. Karemera and Ngirumpatse (ICTR-98-44-T), 2 February 2012, 39.

  219. 219.

    See supra Sect. 6.2.2.5.

  220. 220.

    McDermott 2013b, 119: ‘[g]iven that the Commission applied Article 6 as normal to a later war crimes suspect in Menten, and more recent European Court of Human Rights jurisprudence has considered the fair trial rights of those accused of war crimes, it is submitted that we can treat X v. FRG as a curiosity rather than established precedent. This means that the complexity of the case should be seen as a consideration to be taken into account when assessing whether a delay was undue rather than a factor excluding the defendant from the full scope of protection afforded by international human rights standards.’

  221. 221.

    See also ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 18; ICTR, Appeals Judgement, Prosecutor v. Nahimana et al (ICTR-99-52-A), 28 November 2007, 1077; ICTR, Decision on Jérôme-Clement Bicamumpaka’s Motion Seeking Permanent Stay of Proceedings, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 27 February 2009, 14-18; ICTR, Decision on Protais Zigiranyirazo’s Motion for Damages, Zigiranyirazo v. Prosecutor (ICTR-2001-01-073), 18 June 2012 42.

  222. 222.

    See supra Sect. 6.2.

  223. 223.

    ICTY, Decision on the Prosecutor’s Motion to Hold Pre-Trial Motions in Abeyance, Prosecutor v. Kordić and Čerkez (IT-95-14/2-PT, 28 January 1998, 8.

  224. 224.

    ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Ntagerura (ICTR-97-36-I), 11 October 1999, 13; ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Bagosora (ICTR-96-7), 29 June 2000, 147.

  225. 225.

    ICTR, Decision on the Prosecutor’s Motion for Joinder, Prosecutor v. Ntagerura (ICTR-97-36-I), 11 October 1999, 54.

  226. 226.

    Ibid., 56.

  227. 227.

    IACnHR, Judgement, Firmenich v. Argentina (Resolution No l7/89), 13 April 1989; quoted in: ICTR, Decision on the Defence Extremely Urgent Motion on Habeas Corpus and for Stoppage of the Proceedings, Prosecutor v. Kanyabashi (ICTR-96-15-I), 23 May 2000, 68.

  228. 228.

    ICTR, Decision on the Defence Extremely Urgent Motion on Habeas Corpus and for Stoppage of the Proceedings, Prosecutor v. Kanyabashi (ICTR-96-15-I), 23 May 2000, 68; see also ICTY, Order Denying a Motion for Provisional Release, Prosecutor v. Blaskić (IT-95-14-T), 20 December 1996, 6-7, where the ICTY relied on a number of ECtHR cases to emphasize that the Court has found five years of, in that case, pre-trial detention, not to exceed a reasonable time.

  229. 229.

    ICTR, Decision on Justin Mugenzi’s Motion for Stay of Proceedings or in the Alternative Provisional Release (Rule 65) and in Addition Severance (Rule 82(B)), Prosecutor v. Mugenzi et al (ICTR-99-50-I), 8 November 2002, 33; and partly reiterated in: ICTR, Decision on Prosper Mugiraneza’s Motion to Dismiss the Indictment for Violation of Article 20(4)(c) of the Statute, Demand for Speedy Trial and for Appropriate Relief, Prosecutor v. Mugiraneza (ICTR-99-50-I), 2 Ocober 2003, 12; ICTR, Decision on Defence Motion for Trial to Proceed before Trial Chamber II, Composed of Judges Sekule, Maqutu and Ramaroson and for Termination of the Proceedings, Prosecutor v. Kanyabashi (ICTR-96-15-T), 10 February 2004, 15; ICTR, Decision on Prosper Mugiraneza’s Application for a Hearing or other Relief on his Motion for Dismissal for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 3 November 2004, 31; ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 26; ICTR, Decision on Prosper Mugiraneza’s Third Motion to Dismiss Indictment for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 10 February 2009, 12; ICTR, Decision on Jérôme-Clement Bicamumpaka’s Motion Seeking Permanent Stay of Proceedings, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 27 February 2009, 10.

  230. 230.

    ICTY, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, Prosecutor v. Kovačević (IT-97-24-AR73), 2 July 1998, 28.

  231. 231.

    ICTY, Order Denying a Motion for Provisional Release, Prosecutor v. Blaskić (IT-95-14-T), 20 December 1996, 6; ICTR, Decision on the Defence Motion for Separate Trial, Prosecutor v. Ndayambaje (ICTR-96-8-T), 25 April 2001, 18; idem: ICTR, Decision on the Motion for Separate Trials, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-97-21-T), 8 June 2001, 23; ICTR, Decision on Protais Zigiranyirazo’s Motion for Damages, Zigiranyirazo v. Prosecutor (ICTR-2001-01-073), 18 June 2012, 34: [the ECtHR] has established that the issue of whether a period of detention is reasonable cannot be assessed in the abstract’.

  232. 232.

    ICTY, Decision on Defence Motion for Prompt Scheduling of Appeal Hearing, Prosecutor v. Halilović (IT-01-48-A), 27 October 2006, 17; ICTR, Decision on Continuation of Trial, Prosecutor v. Karemera et al (ICTR-98-44-T), 3 March 2009, 30; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 4.

  233. 233.

    ICTR, Decision on the Defence Motion for Separate Trial, Prosecutor v. Ndayambaje (ICTR-96-8-T), 25 April 2001, 18: ‘[i]t however stems from the case law of the European Court of Human Rights that “the reasonableness of the length of the proceedings needs to be assessed in each instance according to the particular circumstances” and with regard to, “among other things, the complexity of the case”;’ idem: ICTR, Decision on the Motion for Separate Trials, Prosecutor v. Nyiramasuhuko and Ntahobali (ICTR-97-21-T), 8 June 2001, 23.

  234. 234.

    ICTY, Decision on Motion for Sanctions for Failure to Bring the Accused to Trial without Undue Delay, Prosecutor v. Perišić (IT-04-81-PT), 23 November 2007, 24–25.

  235. 235.

    Ibid., 21.

  236. 236.

    ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 20 ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 10; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 6.

  237. 237.

    ICTY, Decision Stating Reasons for Appeals Chamber’s Order of 29 May 1998, Prosecutor v. Kovačević (IT-97-24-AR73), 2 July 1998, 26.

  238. 238.

    ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 20; ICTR, Decision on Justin Mugenzi’s Motion Alleging Undue Delay and Seeking Severance, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 14 June 2007, 10; ICTR, Decision on Prosper Mugiraneza’s Third Motion to Dismiss Indictment for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 10 February 2009, 10; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 6.

  239. 239.

    ICTR, Decision on Prosper Mugiraneza’s Second Motion to Dismiss for Deprivation of his Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 29 May 2007, 20.

  240. 240.

    ICTR, Decision on Prosper Mugiraneza’s Third Motion to Dismiss Indictment for Violation of his Right to a Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 10 February 2009, 10; ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 7.

  241. 241.

    ICTR, Decision on Proseper Mugiraneza’s Fourth Motion to Dismiss Indictment for Violation of Right to Trial without Undue Delay, Prosecutor v. Bizimungu et al (ICTR-99-50-T), 23 June 2010, 6.

  242. 242.

    ICTR, Decision on Protais Zigiranyirazo’s Motion for Damages, Zigiranyirazo v. Prosecutor (ICTR-2001-01-073), 18 June 2012, 34.

  243. 243.

    Ibid.

  244. 244.

    Ibid.

  245. 245.

    Ibid.

  246. 246.

    See supra Sect. 6.3.2.5 and Fedorova and Sluiter 2009, 53.

  247. 247.

    Safferling and others 2012, 387.

  248. 248.

    See the Annex for a table containing an overview of the data collected.

  249. 249.

    ICTR, Appeals Judgement, Prosecutor v. Gatete (ICTR-00-61-A), 9 October 2012, 44.

  250. 250.

    In Bizimungu et al, Trial Judge Short and Appeal Judge Robinson both considered the defendants’ rights to be tried without undue delay to have been violated. See supra Sect. 6.3.2.4.

  251. 251.

    To be able to compare these multi-accused cases, the pre-trial periods have been omitted because they differ between accused persons.

  252. 252.

    The only exception is a dissenting opinion by Judge Christine van den Wyngaert, discussed below.

  253. 253.

    Article 64(1) ICC Statute.

  254. 254.

    ICC, Decision on the Admission into Evidence of Materials Contained in the Prosecution’s list of Evidence, Prosecutor v. Bemba (ICC-01/05-01/08-1022), 19 November 2010, 23; see also ICC, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, Prosecutor v. Katanga and Ngudjolo (ICC- 01/04-01/07-2259), 12 July 2010, 47.

  255. 255.

    ICC, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, Prosecutor v. Katanga and Ngudjolo (ICC- 01/04-01/07-2259), 12 July 2010, 46.

  256. 256.

    Ibid.

  257. 257.

    Ibid., 43.

  258. 258.

    ICC, Reasons for “Decision of the Appeals Chamber on the Defence application ‘Demande de suspension de toute action ou procédure afin de permettre la désignation d’un nouveau Conseil de la Défense’ filed on 20 February 2007” issued on 23 February 2007, Prosecutor v. Lubanga (ICC-01/04-01/06-844), 9 March 2007, 15.

  259. 259.

    ICC, Decision on the Defence’s Request Related to Language Issues in the Proceedings, Prosecutor v. Bemba (ICC-01/05-01/08-307), 4 December 2008, 15.

  260. 260.

    ICC, Order to the Defence to Reduce the Number of Witnesses to Be Called to Testify at the Confirmation of Charges Hearing and to Submit an Amended List of Viva Voce Witnesses, Prosecutor v. Samoei Ruto, Kiprono Kosgey and Arap Sang (ICC-01/09-01/11-221), 25 July 2011, 11; ICC, Urgent Order to the Defence to Reduce the Number of Witnesses to Be Called to Testify at the Confirmation of Charges Hearing and to Submit an Amended List of Viva Voce Witnesses, Prosecutor v. Kirimi Muthaura, Muigai Kenyatta and Hussein Ali (ICC-01/09-02/11-226), 10 August 2011, 16.

  261. 261.

    ICC, Decision on the “Submissions on Defence Evidence”, Prosecutor v. Bemba (ICC-01/05-01/08-2225), 7 June 2012, 11.

  262. 262.

    ICC, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, Prosecutor v. Katanga and Ngudjolo (ICC- 01/04-01/07-2259), 12 July 2010, 77.

  263. 263.

    ICC, Directions for the Conduct of the Proceedings and Testimony in accordance with Rule 140, Prosecutor v. Katanga and Ngudjolo (ICC- 01/04-01/07-1665-Corr), 1 December 2009, 22.

  264. 264.

    ICC, Decision on the “Prosecution’s Urgent Application to Be Permitted to Present as Incriminating Evidence Transcripts and translations of Videos and Video DRCOTP-1042-0006 pursuant to Regulation 35 and Request for Redactions (ICC-01/04-01/07-1260)”, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-1336), 27 July 2009, 16; ICC, Decision regarding the Timing and Manner of Disclosure and the Date of Trial, Prosecutor v. Lubanga (ICC-01/04-01/06-1019), 9 November 2007, 19; ICC, Public Redacted Version of the Chamber’s 11 November 2011 Decision regarding the prosecution’s witness schedule, Prosecutor v. Bemba (ICC-01/05-01/08-1904-Red), 26 October 2011, 34.

  265. 265.

    ICC, Decision on the “Demande de la Défense aux fins de traduction en kinyarwanda de certains des principaux éléments de preuve”, Prosecutor v. Ntaganda (ICC-01/04-02/06-115), 24 September 2013, 12.

  266. 266.

    ICC, Decision Setting the Date of the Confirmation Hearing, Prosecutor v. Bemba (ICC-01/05-01/08-335), 28 December 2008, 14; ICC, Redacted version of “Decision on legal assistance for the accused”, Prosecutor v. Bemba (ICC-01/05-01/08-567-Red), 26 November 2009, 105; ICC, Decision on the Prosecution’s Request for the Postponement of the Confirmation Hearing, Prosecutor v. Mbarushimana (ICC-01/04-01/10-207), 31 May 2011, 9; ICC, Decision Requesting Observations on the Schedule for the Confirmation of Charges Hearing, Prosecutor v. Samoei Ruto, Kiprono Kosgey and Arap Sang (ICC-01/09-01/11-272), 17 August 2011, 8.

  267. 267.

    ICC, Judgement on the Appeals of Mr Jean-Pierre Bemba Gombo and the Prosecutor against the Decision of Trial Chamber III entitled “Decision on the Admission into Evidence of Materials Contained in the Prosecution’s List of Evidence”, Prosecutor v. Bemba (ICC-01/05-01/08-1386), 3 May 2011, 70.

  268. 268.

    ICC, Decision on the Admission into Evidence of Materials Contained in the Prosecution’s list of Evidence, Prosecutor v. Bemba (ICC-01/05-01/08-1022), 19 November 2010, 27.

  269. 269.

    ICC, Decision on the Prosecutor’s Bar Table Motions, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-2635), 17 December 2010, 41.

  270. 270.

    ICC, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, Prosecutor v. Katanga and Ngudjolo (ICC- 01/04-01/07-2259), 12 July 2010, 82-84.

  271. 271.

    ICC, Order to the Defence to Reduce the Number of Witnesses to Be Called to Testify at the Confirmation of Charges Hearing and to Submit an Amended List of Viva Voce Witnesses, Prosecutor v. Samoei Ruto, Kiprono Kosgey and Arap Sang (ICC-01/09-01/11-221), 25 July 2011, 13; ICC, Urgent Order to the Defence to Reduce the Number of Witnesses to Be Called to Testify at the Confirmation of Charges Hearing and to Submit an Amended List of Viva Voce Witnesses, Prosecutor v. Kirimi Muthaura, Muigai Kenyatta and Hussein Ali (ICC-01/09-02/11-226), 10 August 2011, 17.

  272. 272.

    ICC, Decision on the “Prosecution’s Request to Amend the Updated Document Containing the Charges Pursuant to Article 61(9) of the Statute”, Prosecutor v. Ruto and Sang (ICC-01/09-01/11-859), 16 August 2013, 42.

  273. 273.

    ICC, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-3319-tENG/FRA), 21 November 2012, 43; see also ICC, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, Prosecutor v. Lubanga (ICC-01/04-01/06-2205), 8 December 2009, 86.

  274. 274.

    ICC, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-3319-tENG/FRA), 21 November 2012, 43.

  275. 275.

    ICC, Judgment on the appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 entitled “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court”, Prosecutor v. Lubanga (ICC-01/04-01/06-2205), 8 December 2009, 84.

  276. 276.

    ICC, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-3319-tENG/FRA), 21 November 2012, 45.

  277. 277.

    ICC, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, Dissenting Opinion of Judge Christine van den Wyngaert, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-3319-tENG/FRA), 21 November 2012, 49.

  278. 278.

    Ibid., 51.

  279. 279.

    ICC, Judgment on the appeal of Mr Germain Katanga against the decision of Trial Chamber II of 21 November 2012 entitled “Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons”, Prosecutor v. Katanga (ICC-01/04-01/07-3363), 27 March 2013, 98.

  280. 280.

    ICC, Judgment on the appeal of Mr Germain Katanga against the decision of Trial Chamber II of 21 November 2012 entitled “Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons”, Dissenting Opinion of Judge Cuno Tarfusser, Prosecutor v. Katanga (ICC-01/04-01/07-3363), 27 March 2013, 98.

  281. 281.

    ICC, Jugement rendu en application de l’Article 74 du Statut, Prosecutor v. Katanga (ICC-01/04-01/07-3436), 7 March 2014, 1590, 1591: ‘pour la Chambre, les exigences de l’Article 67-1-c ont donc été pleinement respectées.’ As a result, its subsequent sentencing judgement thus did not lower the sentence, which the Chamber had suggested earlier as a possible compensation for delays: ICC, Décision relative à la peine (Article 76 du Statut), Prosecutor v. Katanga (ICC-01/04-01/07-3484), 23 May 2014.

  282. 282.

    ICC, Jugement rendu en application de l’Article 74 du Statut, Minority Opinion of Judge Christine van den Wyngaert, Prosecutor v. Katanga (ICC-01/04-01/07-3436 -AnxI), 7 March 2014, 120.

  283. 283.

    Ibid., 122.

  284. 284.

    Ibid., 126.

  285. 285.

    Ibid., 128; similarly ICC, Decision on the implementation of regulation 55 of the Regulations of the Court and severing the charges against the accused persons, Dissenting Opinion of Judge Christine van den Wyngaert, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-3319-tENG/FRA), 21 November 2012, 51.

  286. 286.

    ICC, Jugement rendu en application de l’Article 74 du Statut, Minority Opinion of Judge Christine van den Wyngaert, Prosecutor v. Katanga (ICC-01/04-01/07-3436 -AnxI), 7 March 2014, 131.

  287. 287.

    Ibid., 125.

  288. 288.

    ICC, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute, Prosecutor v. Gbagbo (ICC-02/11-01/11-432), 3 June 2013, 39.

  289. 289.

    Ibid.

  290. 290.

    Ibid., 41 and 39, n 55, where the Chamber said to ‘pay heed to the criteria established by the ECtHR including the complexity of the case and the conduct of the applicant and the relevant authorities.’

  291. 291.

    ICC, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute, Dissenting opinion of Judge Silvia Fernández de Gurmendi, Prosecutor v. Gbagbo (ICC-02/11-01/11-432-Anx), 3 June 2013, 28.

  292. 292.

    ICC, Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, Prosecutor v. Kenyatta (ICC-01/09-02/11-908), 31 March 2014, 80.

  293. 293.

    Ibid., 97.

  294. 294.

    ICC, Decision on the Application for Interim Release of Thomas Lubanga Dyilo, Prosecutor v. Lubanga (ICC-01/04-01/06-586), 3 October 2006, 7.

  295. 295.

    ICC, Decision on Application for Interim Release, Prosecutor v. Bemba (ICC-01/05-01/08-321), 16 December 2008, 47.

  296. 296.

    ICC, Review of Detention and Decision on the “Third Defence Request for Interim Release”, Prosecutor v. Mbarushimana (ICC-01/04-01/10-428), 16 September 2011, 55.

  297. 297.

    ICC, Order to the Defence to Reduce the Number of Witnesses to Be Called to Testify at the Confirmation of Charges Hearing and to Submit an Amended List of Viva Voce Witnesses, Prosecutor v. Samoei Ruto, Kiprono Kosgey and Arap Sang (ICC-01/09-01/11-221), 25 July 2011, 12; ICC, Urgent Order to the Defence to Reduce the Number of Witnesses to Be Called to Testify at the Confirmation of Charges Hearing and to Submit an Amended List of Viva Voce Witnesses, Prosecutor v. Kirimi Muthaura, Muigai Kenyatta and Hussein Ali (ICC-01/09-02/11-226), 10 August 2011, 16.

  298. 298.

    ICC, Decision regarding the Timing and Manner of Disclosure and the Date of Trial, Prosecutor v. Lubanga (ICC-01/04-01/06-1019), 9 November 2007, 21; ICC, Decision on the Prosecutor’s application for leave to appeal Pre-Trial Chamber III’s decision on disclosure, Prosecutor v. Bemba (ICC-01/05-01/08-75), 25 August 2008, 17; ICC, Decision on the “Prosecution’s Urgent Application to Be Permitted to Present as Incriminating Evidence Transcripts and translations of Videos and Video DRCOTP-1042-0006 pursuant to Regulation 35 and Request for Redactions (ICC-01/04-01/07-1260)”, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-1336), 27 July 2009, 6.

  299. 299.

    ICC, Decision on the Prosecutor’s application for leave to appeal Pre-Trial Chamber III’s decision on disclosure, Prosecutor v. Bemba (ICC-01/05-01/08-75), 25 August 2008, 17.

  300. 300.

    ICC, Decision regarding the Timing and Manner of Disclosure and the Date of Trial, Prosecutor v. Lubanga (ICC-01/04-01/06-1019), 9 November 2007, 21; ICC, Decision on the Prosecutor’s application for leave to appeal Pre-Trial Chamber III’s decision on disclosure, Prosecutor v. Bemba (ICC-01/05-01/08-75), 25 August 2008, 17.

  301. 301.

    ICC, Decision on the “Prosecution’s Urgent Application to Be Permitted to Present as Incriminating Evidence Transcripts and translations of Videos and Video DRCOTP-1042-0006 pursuant to Regulation 35 and Request for Redactions (ICC-01/04-01/07-1260)”, Prosecutor v. Katanga and Ngudjolo (ICC-01/04-01/07-1336), 27 July 2009, 6.

  302. 302.

    ICC, Decision regarding the Timing and Manner of Disclosure and the Date of Trial, Prosecutor v. Lubanga (ICC-01/04-01/06-1019), 9 November 2007, 21.

  303. 303.

    ICC, Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 20 November 2009 Entitled “Decision on the Motion of the Defence for Germain Katanga for a Declaration on Unlawful Detention and Stay of Proceedings”, Prosecutor v. Katanga and Ngudjolo (ICC- 01/04-01/07-2259), 12 July 2010, 45.

  304. 304.

    ICC, Decision on the Confirmation of Charges against Laurent Gbagbo, Prosecutor v. Gbagbo (ICC-02/11-01/11-656-Red), 12 June 2014.

  305. 305.

    ICC Website, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta (5 December 2014) http://www.icc-cpi.int/en_menus/icc/press and media/press releases/Pages/otp-statement-05-12-2014-2.aspx Accessed 10 December 2014.

  306. 306.

    ICC Website http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/related%20cases/icc%200104%200206/Pages/icc%200104%200206.aspx accessed 28 October 2014.

  307. 307.

    For example, the trial against Kenyatta has been complicated and delayed because Kenya has been withholding cooperation. See e.g. T. McConnell, ‘How Kenya Took on the International Criminal Court, the Global Post (Nairobi, 25 March 2014) http://www.globalpost.com/dispatch/news/regions/africa/kenya/140325/how-kenya-beat-the-international-criminal-court accessed 7 May 2014; similarly, the trial against Bemba has been seriously delayed as a result of allegations of offences against the administration of justice against Bemba and his attorneys. See e.g. ICC, ‘Press Release - Bemba case: Four suspects arrested for corruptly influencing witnesses; same charges served on Jean-Pierre Bemba Gombo’, http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/Pages/pr962.aspx accessed 18 August 2014.

  308. 308.

    ICC, Prosecutor v. Lubanga Dyilo, Case Information Sheet, https://www.icc-cpi.int/iccdocs/PIDS/publications/LubangaENG.pdf accessed 12 May 2014, 3; ICC, Decision on the Consequences of non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain other Issues Raised at the Status Conference on 10 June 2008, Prosecutor v. Lubanga (ICC-01/04-01/06-1401), 13 June 2008; ICC, Decision on Prosecution’s Urgent request for variation of the time-limit to disclose the identity of intermediary 132 or alternatively to stay proceedings pending further consultations with the VWU, Prosecutor v. Lubanga (ICC-01/04-01/06-2517-Red), 8 July 2010, 31.

  309. 309.

    ICC, Judgment on the appeal of the Prosecutor against the Decision of Trial Chamber I entitled “Decision on the Consequences of non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain other Issues Raised at the Status Conference on 10 June 2008”, Prosecutor v. Lubanga (ICC-01/04-01/06-1486) 28 October 2008, 81.

  310. 310.

    See supra Sect. 6.4.1.

  311. 311.

    ICC, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute, Prosecutor v. Gbagbo (ICC-02/11-01/11-432), 3 June 2013; ICC, Decision on Prosecution’s applications for a finding of non-compliance pursuant to Article 87(7) and for an adjournment of the provisional trial date, Prosecutor v. Kenyatta (ICC-01/09-02/11-908), 31 March 2014.

  312. 312.

    ICC, Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute, Prosecutor v. Gbagbo (ICC-02/11-01/11-432), 3 June 2013, 41.

  313. 313.

    See supra Sect. 6.4.1.

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    Krit Zeegers

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Zeegers, K. (2016). The Right to Be Tried Without Undue Delay. In: International Criminal Tribunals and Human Rights Law. International Criminal Justice Series, vol 5. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-102-9_6

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