There appears to be confusion as to the legal principles relevant to allegations that a trial judge was not always fully conscious of the trial proceedings. A number of such allegations have been made in the cases before International Criminal Tribunal for former Yugoslavia (ICTY). In this way, the Court offered some guidance how to address such situations. For example, ICTY addressed in Celebici Appeals Judgement the issue whether the sleeping judge can affect the fairness of proceedings. It noted that:
596. No precedent in the international context was cited in relation to the specific issue raised by this ground of appeal, and none has been discovered by the Appeals Chamber’s own research. Guidance as to the legal principles relevant to an allegation that a trial judge was not always fully conscious of the trial proceedings may therefore be sought from the jurisprudence and experience of national legal systems. The national jurisprudence considered by the Appeals Chamber discloses that proof that a judge slept through, or was otherwise not completely attentive to, part of proceedings is a matter which, if it causes actual prejudice to a party, may affect the fairness of the proceedings to a such degree as to give rise to a right to a new trial or other adequate remedy. (footnote omitted).The parties essentially agreed that these are the principles which apply to the issue before the Appeals Chamber. (footnote omitted).
It further noted that:
629. Such behaviour revealed by the Extracts Tapes warrants an examination as to whether, notwithstanding their failure to establish the factual basis of these grounds of appeal, the appellants nevertheless have a valid cause for complaint as to the fairness of the trial. It must be said, firmly, that Judge Karibi-Whyte’s conduct cannot be accepted as appropriate conduct for a judge. Even if, as may well be the position, he had no control over his loss of attention, litigants are in general entitled to the full attention of the judges who have to decide their case. The charges being tried in this case were extremely serious, and the consequences of conviction for the accused were equally serious. If a judge suffers from some condition which prevents him or her from giving full attention during the trial, then it is the duty of that judge to seek medical assistance and, if that does not help, to withdraw from the case.
In another judgment Prosecutor v Mucic, the ICTY Appeals Chamber held that:
626. The jurisprudence of national jurisdictions indicates that it must be proved by clear evidence that the judge was actually asleep or otherwise not fully conscious of the proceedings, rather than that he or she merely gave the appearance of being asleep. Landžo accepted that it was necessary to prove by evidence the allegation upon which this ground of appeal is based.
Taken together, it appears that if a judge sleeps through entire or part of proceeding, this may affect the fairness of proceedings and of trial. That said, it appears that a strong proof must be presented to show that a judge was in fact asleep in part of or the entire proceeding. It is debatable what should be the standard of proof of showing that judge was sleep. It can be accepted that burden of proof rest with parties raising this issue to prove that a particular judge was in fact asleep, and that such conduct may have the fairness of the proceedings to such degree as to give rise to a right to a new trial. What is clear, is that the parties are entitled to the full attention of the judges who sit on and have to decide their case.
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