<<previous  |  index  |  next>>

 III. Trial Management

Efficiency and effective trial management while fully adhering to protection of the rights of the accused are key elements to the Special Court’s success. They are significant for assuring the accused’s right to a trial without unreasonable delay, providing proper treatment of witnesses in the courtroom, and maximizing the limited resources available to support international justice.

A. Substantial Progress on Trials

The current progress on trials reflects a substantial accomplishment. The Special Court is currently holding three trials of nine accused simultaneously. The three trials include all indictees now in custody, in groups delineated by their association with the three main warring factions: 1) Civil Defense Forces (CDF trial); 2) Revolutionary United Front (RUF trial); and 3) the Armed Forces Revolutionary United Council (AFRC trial).⁴ On July 14, the prosecution completed its case in the CDF trial.⁵ As of August 5, seventy-five prosecution witnesses had been called in the CDF trial, forty-three witnesses had been called in the RUF trial, and forty-eight witnesses had been called in the AFRC trial.⁶

The appointment of judges to Trial Chamber II in January 2005 significantly enhanced efficient progress by enabling the AFRC trial to commence in March 2005. The CDF and RUF trials, which began in June and July 2004 respectively and alternate approximately every six weeks, continue before Trial Chamber I. Another significant development is the increase in support made available to chambers, with two legal advisors now appointed to assist with each trial.⁷ 

B. Treatment of Witnesses in the Courtroom

Proper treatment of witnesses, many of whom are victims, is a critical component of effective trial management. Witnesses must be treated with dignity and respect to minimize the trauma that may be caused by testifying, to allow victims who testify to be as empowered and fulfilled by the process as possible, and to promote continued participation of witnesses in trials.⁸

1. Interaction between judges, counsel, and witnesses

Witnesses are generally treated with appropriate respect and sensitivity in the courtroom. Judges largely adjourn as necessary when a witness breaks down, or ask a counselor from the Witness and Victim Support Unit who is present in the courtroom to approach the witness.⁹ While some defense counsel treat witnesses with less sensitivity than others,¹⁰ judges have intervened to avoid harassing questioning, particularly in Trial Chamber II.¹¹ Chambers also move into closed session to protect witness identity.¹²

Human Rights Watch was told by court staff that witnesses have characterized testifying as an overall positive experience, although some witnesses expressed difficulty with cross-examination, as they felt as if they had not been believed. Witnesses also occasionally have been inconvenienced by having to come to Freetown multiple times due to rescheduling of their court appearance.¹³

Witnesses have indicated to court staff that having come with the purpose of telling their story they have no regrets, and that in some cases, they have felt a sense of release by providing testimony. They have also expressed a sense of empowerment, which stands in stark contrast to the disempowering experiences they suffered during the war. Some have indicated that they were pleased to testify, would even do so again if needed, and believe that it could contribute to peace.¹⁴ 

At the same time, there are instances where judges have made insensitive remarks to witnesses in the courtroom such as “be a man; don't cry.” There are also instances where some judges have made condescending or disrespectful remarks in reference to witnesses, such as comments that a witness cannot understand something because he is from “the bush,” or is illiterate. Judges have also reportedly failed to thank witnesses for participating in what is often a difficult process of testifying, although this has improved over time.¹⁵ 

Special Court judges should treat witnesses with respect and dignity at all times, and ensure that all parties in the courtroom do so as well. Around the time that Trial Chamber II began functioning, it received a briefing from staff within the Witness and Victim Support Unit regarding witnesses. This type of briefing allows judges at the Special Court to take advantage of available experience and expertise concerning witness treatment. As of April 2005, Trial Chamber I had not availed itself of the Witness and Victim Support Unit’s offer to provide a similar briefing.¹⁶ Trial Chamber I should move forward swiftly with participating in such a briefing if it has not yet done so in order to maximize effective witness treatment in the courtroom.

2. Disclosure of identifying information concerning witnesses

In a number of instances, identifying information about a witness whose identity is protected has been improperly disclosed in the courtroom. Some disclosures are attributable to defense counsel, the accused, or the prosecution, while others are attributable to the judges.¹⁷ Such disclosures appear to be largely unintentional, and some defense counsel have demonstrated concern about revealing identifying information by amending questions to avoid such disclosure.¹⁸ Where such information has been disclosed, it is the practice for it to be expunged from the record.¹⁹ 

One Special Court official indicated that these disclosures have not created serious risks for the witnesses, in part due to the low turnout in the public gallery, the current absence of live broadcasts of proceedings and the removal of the information from the record.²⁰ Human Rights Watch researchers recognize that attendance in the public gallery is currently limited, and that perfect compliance with the obligation not to disclose identifying information concerning protected witnesses presents an enormous challenge.²¹ However, given the substantial risks that witnesses may face due to their testimony, rigorous adherence to this objective is crucial. Accordingly, Human Rights Watch urges judges, the prosecution, and defense counsel to ensure that as little information as possible identifying protected witnesses is disclosed during court proceedings.

C. Motion Practice

During the trial phase, numerous written motions have been decided in an efficient manner. However, the pace of rendering decisions has reportedly slowed in recent months, and significant delays have been found to exist in certain instances.²² Some delays by the trial and appeals chambers in issuing decisions are unavoidable. However, extended lags can raise concern, especially where they implicate fair trial issues.

In this regard, delays in several decisions in the past year raise particular concern. For example, decisions denying bail to defendants continue to be marked by protracted delays. A decision on an application for bail by one of the accused in the CDF trial designated for disposition by one judge in Trial Chamber I was not issued until more than four months after all submissions had been filed.²³ The Appeals Chamber then took another three months to render a decision on a motion appealing the denial of bail.²⁴ The Appeals Chamber similarly took approximately three months to issue a decision on an appeal against denial of bail to an accused in the RUF trial.²⁵ 

Notable delays have also existed in decisions on motions relating to the charges against defendants. The Appeals Chamber took approximately four months to render a decision on amendments to the consolidated indictment in the CDF trial, which implicated the accused’s opportunity to plead to new charges and to be personally served with such charges.²⁶ Additionally, Trial Chamber I has taken extended periods to issue decisions on motions regarding disclosure to defense: five months to issue a decision on a defense motion in the RUF trial to disclose links between the OTP and government agencies;²⁷ and four months for one judge in Trial Chamber I to render a decision on a defense motion in the AFRC trial requesting exclusion of witness statements on the basis that they had not been disclosed within the required timeframe.²⁸

Both trial and appeals chambers should identify and address any impediments that may exist to the more consistently efficient rendering of decisions, particularly motions that have implications for the court’s full adherence to protection of the rights of the accused. The trial chambers should consider prioritizing issuing decisions on motions that are key to upholding fair trial rights, and allocating one extra time on a regular basis to dispose of such motions.

D. Courtroom Management

Trials for serious international crimes tend to be by their nature extremely complex and slow-moving. Such prosecutions often involve offenses committed over long periods of time in wide geographic areas with numerous perpetrators and victims. Balancing full protection of the rights of the accused and ensuring that the needs of witnesses are met with the efficient administration of justice poses real challenges. In making substantial progress on trials for serious crimes committed during the Sierra Leone conflict, both trial chambers have demonstrated a strong degree of effective courtroom management. At the same time, there are significant differences in the pace of trials between the first and second trial chambers. There is also a major difference in the pace between the two trials before Trial Chamber I, with the RUF trial proceeding substantially slower than the CDF trial.

There are a variety of factors that contribute to differences in progress in trials, including the conduct of defense counsel and prosecution staff, and differences in the complexity and scope of the different cases. In particular, court staff and defense counsel view the RUF trial as more complex than the CDF and AFRC trials because of factors including that the indictments have more counts and involve charges covering a longer period and crime scenes from a wider geographic area.²⁹ However, interviews with court staff based throughout the court, defense counsel, and courtroom monitors, along with limited observation by Human Rights Watch researchers of proceedings in both trial chambers, suggest that the conduct of the judges is also a substantial factor.

Trial Chamber II has been broadly characterized as a more active, focused, interventionist bench than Trial Chamber I.³⁰ Special Court staff and monitors of court proceedings told Human Rights Watch that Trial Chamber I grants extensive latitude to counsel during cross-examination, which has undermined momentum in proceedings by allowing counsel to pursue questioning on irrelevant issues or conduct repetitive cross-examination in certain instances.³¹ While in Freetown, Human Rights Watch researchers observed that Trial Chamber I judges intervened and engaged counsel and witnesses significantly less frequently than those of Trial Chamber II, and generally were less aggressive in keeping proceedings moving forward.³² Judges in Trial Chamber I have reportedly acknowledged that direct and cross-examination has been repetitious and unduly lengthy in some instances, and have expressed concerns about the pace of trials.³³

Human Rights Watch believes that a more interventionist style helps to ensure the effective administration of justice by creating a sense that proceedings are pushing forward. It can also make counsel more accountable, thereby setting a tone conducive to efficiency. In this regard, we note that the Rules of Procedure and Evidence for the Special Court for Sierra Leone provides that “The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) Make the interrogation and presentation effective for the ascertainment of the truth; and (ii) Avoid the wasting of time.”³⁴ Court staff and observers cited other differences that affected the overall momentum of proceedings in Trial Chamber I, including a pattern of poor time keeping, something that Human Rights Watch researchers themselves observed while attending proceedings in Freetown in April 2005.³⁵

Effective trial management also involves properly addressing practical and technical issues. The Registry has urged for various changes to enhance courtroom usage over time at the Special Court; some changes which have had positive impact include providing lunch to judges in their offices, and increasing sitting times.³⁶ Increased sitting times are largely welcome, although they appear to have contributed to challenges in prompt rendering of decisions on motions, as discussed above.

One significant initiative by the Registry is the creation of a judicial services coordination committee.³⁷ The committee includes representatives from the various organs of the court and looks at practical issues such as courtroom usage, advance preparation needed for particular witnesses, statistics on how cases are moving forward, and technical matters related to equipment used in the courtroom.³⁸ Some staff have touted this committee as an important effort to improve efficiency by creating a sense of accountability.³⁹ However, Human Rights Watch was also told that Trial Chamber I judges have largely ignored the committee, deeming it an inappropriate effort to control judicial matters, which has limited the committee’s impact.⁴⁰

Human Rights Watch believes that this committee can serve as an important management tool – without compromising judicial independence – by focusing on enhancing coordination and communication between court organs to better understand and maximize courtroom usage. Statistics and monitoring of the timing of proceedings are useful ways to enable the judges to evaluate the efficacy of courtroom practice, including with regard to time keeping. All judges at the Special Court should support the work of this committee. By being actively involved, the judges will also be in a better position to ensure that it strictly respects the boundaries of judicial independence.

Judicial exchanges between Special Court judges and judges working at other international justice institutions can also be a valuable tool to allow sharing of best practices and lessons learned. A judicial exchange between Special Court judges and judges from the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court took place in June 2004 devoted to procedure and substance, including courtroom and case management, elements of crimes, theories of liability, and witness issues. Another such exchange is planned for late October 2005.⁴¹ The Special Court should continue to support these exchanges on a regular basis.