Review of International Tribunal Decisions for the week of March 5, 2012

This week’s review contains decisions form the ICTY on access to confidential information, the ICTR on early release, the ICC on supplemental filings and the ECtHR on the length of proceedings.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Prosecution Motion to Modify the Decision Granting the Accused Access to Confidential Materials in the Vasiljević Case

Background

In 2009 the Pre-Trial Chamber issued a decision granting the Accused access to confidential inter partes materials in the Vasiljević Case because the two cases covered the same incidents.[2] The Prosecution filed a motion asking the Court to modify that order to exclude certain confidential information relating to the Višegrad municipality because it had been removed from the indictment.[3] The Prosecution filed the motion pursuant to Rule 75(G) to vary protective measures and not a motion for reconsideration as the original decision was issued by the Pre-Trial Chamber.[4] The Accused did not object.[5] The Chamber granted the motion.

Reasoning

The Chamber started by noting that there is not “Pre-Trial Chamber” at the ICTY with all the pre-trial decisions being taken by the Trial Chamber.[6] Consequently, the Chamber made the decision that the Prosecution wished the Chamber to vary and so the proper way to request such variance would have been through a request for reconsideration.[7] The Chamber considered that the previous decision was one to vary protective measures in the Vasiljević Case.[8] The Chamber found that the reasons for order the variation of protective measures had ceased to exist and therefore granted the motion.[9]

ICTR

Prosecutor v. Muvunyi[10]

Decision on Tharcisse Muvunyi’s Application for Early Release

Background

The Accused was convicted of direct and public incitement to commit genocide on 11 February 2010 and sentenced to 15 years in prison with credit for time served.[11] On 18 April 2011, the Accused requested early release since.[12] The President of the Tribunal granted his request.

Reasoning

The President noted that the Sentencing Chamber and the majority of the Bureau were of the opinion that early release would be warranted under the circumstances.[13]  The President noted that “the Tribunal has no means to supervise convicted persons on parole or to react if conditions for early release are violated, and thus, early release by the Tribunal is in fact an unconditional reduction or commutation of the sentence.”[14] The President considered that the Accused had served more than three-fourths of his sentence and that under the circumstances early release would be appropriate.[15]

Prosecutor v. Ngirabatware[16]

Decision on Defence Motion to Postpone the Hearing of Rebuttal Evidence

Background

The Prosecution filed a motion requesting leave to call several witnesses in rebuttal, which the Chamber granted.[17] The Accused filed a motion requesting the Prosecution disclose certain documents related to the witnesses’ testimony and a postponement of that testimony until 60 days after the disclosure pursuant to Rule 66(A)(ii).[18] The Chamber denied the motion.

Reasoning

The Chamber noted that Rule 66(A)(ii) does include a 60-day time frame for the disclosure of witness statements.[19] However, the chamber considered that this limit does not apply to rebuttal witnesses, but only to disclosure before the start of trial.[20] Accordingly, considering that the Accused’s request were linked to this interpretation of the Rule, the Chamber did not consider that the motion was for a “blanket” 60-day “interlude between disclosure and the testimony.”[21] The Chamber finally considered that in light of the fact that the Prosecution has already handed over material on the rebuttal witnesses, the Chamber denied the motion.[22]

ICC

Prosecutor v. Nourain & Jamus[23]

Decision on the “Requête aux fin d’être autorises à soumettre un Addendum”

Background

The Accused filed motions requesting a stay of the proceedings and an oral hearing on the issue to which the Prosecution and legal representatives for the victims filed responses and the Registry filed a report.[24] The Registry report notified the Chamber of ongoing elections at the African Union Commission.[25] The legal representative for the victims filed a request to file an “addendum” to their response to address the significance of the AU’s response to the Accused’s motions and the Prosecution’s response.[26] The Chamber denied the motion.

Reasoning

The Chamber started by noting that there is no legal provision in the Rules of the Regulations that provides for the filing of an “addendum” to a motion.[27] The Chamber continued by noting that the proper mechanism for responding to a “response” is to request leave to file a “reply” pursuant to Regulation 24(5), something the victims did not do. Furthermore, in the Chamber’s opinion, there was more than enough information before the Chamber on the significance of the AU’s response making any “additional submission on the Registry’s Report and the Prosecution Response unnecessary.”[28]

Prosecutor v. Gbagbo[29]

Decision on the Protocols concerning the disclosure of the identity of witnesses of the other party and the handling of confidential information in the course of investigations

Background

The disclosure protocols in this case relate to the disclosure of confidential information to the public and the use of confidential material during investigations.[30] The parties disagree over, inter alia, the scope of the both protocols and the definition of “public” used therein should include victims admitted to participate.[31] The parties also disagree as to whether the Code of Professional Conduct for counsel applies to the Prosecution.[32] The Chamber issued a decision clarifying these issues.

Reasoning

The Single Judge considered that the identity of a witness who is subject to protective measures should not be divulged during investigations, however, if the “witness is not benefiting from any other protective measure […] it is to be assumed that he or she is not to be considered endangered, and the protocol does not apply.”[33] Exceptions to the rule of protection may apply in a given circumstance in which cases the Single Judge will follow the method approved by Trial Chambers II and III.[34]

The Single Judge noted that the Code of Conduct does not apply on its fact to the Prosecution.[35] Nonetheless, the Prosecution is also bound by a duty to respect witnesses during investigations; the duty is just based on different provisions in the Rome Statute.[36]

The Single Judge declined to decide whether the “public” includes admitted victims as to date there are none in this case.[37]

Prosecutor v. Gbagbo[38]

Decision on the “Application by Redress Trust for Leave to Submit Observations to Pre-Trial Chamber III of the International Criminal Court Pursuant to Rule 103 of the Rules of Procedure and Evidence”

Background

The Single Judge ordered the Registry to prepare a process to encourage “collective” approach for victim applications.[39] On 2 March 2012, the Redress Trust filed an application for authorization to make amicus filings on the subject of victim participation.[40] The Single Judge granted the application.

Reasoning

The Single Judge granted the application because she was satisfied that Redress Trust fulfilled the requirement of Rule 103(1) and that having additional input on how best to implement the “collective” victim representation regime would be “desirable for the proper determination of the case”[41]

Prosecutor v. Muthaura & Kenyatta[42]

Decision on the Defence Applications for Leave to Appeal the Decision on the Confirmation of Charges

Background

The Pre-Trial Chamber confirmed the Charges against the accused on 23 January 2012 after a hearing.[43] Thereafter the Accused filed a motion requesting leave to appeal that decision[44] The Chamber denied the request.

Reasoning

The Chamber noted that the Statute intentionally excludes the decision on the confirmation of charges from those that are appealable as of right directly to the Appeals Chamber as it is essentially a decision on the value and sufficiency of the evidence presented.[45] “Accordingly, arguing that any alleged error in the Chamber’s approach by definition constitutes an appealable issue simply because in the absence of such error the charges would not have been confirmed, is not tenable.”[46] The Chamber then went on the categorize the Accused’s grounds of appeal as being based on the evaluation of the evidence and so denied certification.[47]

Declaration of Judge Kaul

Judge Kaul did not participate in the decision on leave to appeal as he felt it would not be appropriate considering his three previous dissenting opinions on the propriety of the charges against the Accused.

International Human Rights Law

ECtHR

Gagliano Giorgi v. Italy[48]

Chamber Judgment

Background

The Applicant was accused of several crimes in 1988 and was convicted at the first instance court in 1990. This conviction was affirmed on appeal in 1993, however, on an appeal to the Court of Cassation in 1994, the conviction was over turned for a legal defect in the summons to the appellate court. On rehearing on appeal in 1996 the Applicant was again convicted of some of the crimes. A subsequent appeal on the law to the Court of Cassation in 1997 resulted in the conviction again being quashed. The Applicant was again convicted in 1998 of some of the charges and his appeal in Cassation was dismissed in 1999.

In 2001, the Applicant began a series of civil cases against the Italian government for the length of the proceedings in his criminal case. These proceedings also went up to the Court of Cassation and resulted in a denial of his monetary claims in 2006. The ECtHR found a violation of Article 6 § 1 of the European Convention requiring trial within a reasonable time regarding the civil case only.

Reasoning

The Court found that there was no violation regarding the length of the domestic criminal proceedings because the domestic courts had already addressed that issue. Regarding the civil case, the Court noted that in principle those cases should not exceed two years and six months. In this case, the proceedings lasted four years and two months and so were a violation of the right to a speedy trial.


[1] IT-95-5/18-T, IT-98-32-A, 8 March 2012.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶ 2.

[4] Ibid. at ¶ 3.

[5] Ibid. at ¶ 4.

[6] Ibid. at ¶ 7.

[7] Ibid.

[8] Ibid. at ¶ 9.

[9] Ibid. at ¶ 10.

[10] ICTR-00-955°-T, 6 March 2012.

[11] Ibid. at ¶ 2.

[12] Ibid. at ¶ 3.

[13] Ibid. at ¶¶ 4-5.

[14] Ibid. at ¶ 11.

[15] Ibid. at ¶¶ 13-14.

[16] ICTR-99-54-T, 5 March 2012.

[17] Ibid. at ¶¶ 1-2.

[18] Ibid. at ¶¶ 5-6.

[19] Ibid. at ¶ 18.

[20] Ibid. at ¶¶ 22-23, 28.

[21] Ibid. at ¶ 28.

[22] Ibid. at ¶¶ 29-30.

[23] ICC-02/05-03/09, 6 March 2012.

[24] Ibid. at ¶¶ 1-3.

[25] Ibid. at ¶ 3.

[26] Ibid. at ¶ 4.

[27] Ibid. at ¶ 5.

[28] Ibid. at ¶ 6.

[29] ICC-02/11-01/11, 6 March 2012.

[30] Ibid. at ¶ 2, 9.

[31] Ibid.

[32] Ibid. at ¶ 8.

[33] Ibid. at ¶¶ 17-18.

[34] Ibid. at ¶ 19.

[35] Ibid. at ¶ 26.

[36] Ibid. at ¶ 27.

[37] Ibid. at ¶ 28.

[38] ICC-02/11-01/11, 8 March 2012.

[39] Ibid. at ¶ 1.

[40] Ibid. at ¶¶ 4-5.

[41] Ibid. at ¶ 7.

[42] ICC-01/09-02/11, 9 March 2012.

[43] Ibid. at ¶¶ 3-4.

[44] Ibid. at ¶¶ 5-6.

[45] Ibid. at ¶ 25.

[46] Ibid.

[47] Ibid. at ¶¶ 27-76.

[48] Application No. 23563/07, 6 March 2012. All informaiton is taken from the Press Release.

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