Review of International Tribunal Decisions for the week of March 12, 2012

This week saw decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC), the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the European Court of Human Rights (ECtHR). The issues range from witness subpoenas to the right of citizens to vote in national elections from abroad. The decisions from the ECCC are a bit dated, but they just recently became available on the public website of the court.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Accused’s Motion for Subpoena to Interview Vladimir Zagorec

Background

The Accused filed a motion to order Croatia to allow his legal advisor to interview a potential witness who is currently serving a prison term in a maximum-security prison and has refused to voluntarily give the interview.[2] The Chamber granted the motion.

Reasoning

The Chamber noted that it had previously found by majority that the information the Accused is seeking is relevant to the case.[3] The Chamber then found, by majority, that there is a reasonable likelihood that the witness possesses this information.[4] The Chamber therefore, by majority, decided to exercise its discretion and issue the subpoena to Croatia to order that an interview be arranged.[5]

Prosecutor v. Šešelj[6]

Decision on Prosecution’s Request for Correction to Exhibit P01298 Admitted by Decision of 23 December 2010

The Trial Chamber decided a motion to amend the admission of a document entered into evidence because the version admitted only contained one of three news articles that were to be admitted. Because this was merely a technical decision, the Chamber decided to issue its decision before the time limit for the Accused to file a response had expired.

ICC

Prosecutor v. Gbagbo[7]

Decision on the OPCV’s “Second Request to appear before the Chamber pursuant to Regulation 81(4)(b) of the Regulations of the Court on issues related to the victims’ application process”

Background

The Single Judge previously denied a request by the OPCV to participate in the arguments related to the proper way to organize the victim participation scheme in this case on the grounds that there were no victims for the OPCV to represent at that time.[8] On 9 March 2012, the OPCV filed a second request to participate and file submissions on the subjects of the personal nature of victim participation and the practical issues involved in the current victim participation plan.[9] The Single Judge partially granted the request.

Reasoning

The Single Judge repeated her reasoning that the OPCV is not authorized to make “general comments” on the victim participation such as the general nature of that right to participate.[10] However, she noted that observations on specific issues that may come up in using the current collective representation scheme would be of use to the Chamber in making further decisions on victim participation.[11] For this reason the Single Judge granted permission to file submissions on this second issue only.[12]

Prosecutor v. Nourain & Jamus[13]

Decision on the “Defence Application to File Supplementary Material”

Background

The Accused filed a motion pursuant to Regulation 28 to submit supplementary material in connection with their motion for a temporary stay of proceedings containing an annex with letters from leading international law scholars and an annex with a confidential letter related to the rejection of a cooperation request.[14] The Prosecution objected to the contents of the first annex but not that of the second.[15] The Chamber rejected the filing of the first annex but accepted the second.

Reasoning

The Chamber started by noting that Regulation 28 was not meant to allow the parties to file additional material after the running of the time limits, but to allow the Chamber to request additional information.[16] The Chamber found that the contents of the first annex were redundant of views that the Chamber had already rejected in a request to file an amicus brief on the issue of the request for a stay of the proceedings and so declined to accept the filing.[17] However, the Chamber felt that the contents of the second annex were related to the original filing requesting a stay and so ordered that the letter therein contained by added to the record of the case.[18]

ECCC

Case 002[19]

Memorandum “Reclassification of statements for witnesses who may testify in Case 002”

The Prosecution filed 29 witness statements with the Chamber ex parte for review before the witnesses were to testify. The Chamber ordered that the statements be reclassified as “confidential” so that the other parties could have access to them.

Case 002[20]

Decision on Application for Disqualification of Judge Silvia Cartwright

Background

One of the Accused filed a motion to disqualify Judge Cartwright on the grounds of actual or apparent bias in that the Judge spoke to the press in New Zealand and in court in a manner disparaging of the Defense.[21] The Prosecution argued that statements made by judges to the press or in court do not rebut the presumption of impartiality.[22] The Chamber denied the motion.

Reasoning

The Chamber found that the statements to the press did not in fact show a bias toward the defense or formed any negative opinion about them or the case.[23] The Chamber further found that the allegedly negative statements during court were nothing more than a proper rebuke of the defense team for failures to follow in-court instructions.[24] Therefore, the motion was denied.

International Human Rights Law

ECtHR

Austin and Others v. The United Kingdom[25]

Grand Chamber Judgment

Background

On 1 May 2001, activists from all sorts of groups organized protests and a large group gathered in Oxford Circus in London without seeking authorization from local authorities. There were over 1,500 people gathered by 2 p.m. with more people steadily arriving. At this point, fearing disorder, the police cordoned off Oxford Circus and tried to disperse the crowd, which did not work. Some of the protesters, both within and without the cordon, became violent. The applicants were not protestors, but were caught up in the demonstrations. The Court found that there was no violation of the Convention.

Reasoning

The Court considered that the Convention had to be understood as a whole with each of its provisions being understood in relation to the others. In this regard, there are several parts of the Convention requiring States to take steps to protect the safety of the general public; this includes temporary limitations on the freedom of movement (such as during football matches). Therefore the Court considered that restrictions on the freedom of movement could not be considered as violations of the Convention as long as they are necessary to avert a real risk of serious injury or damage and were as limited as possible.

The Court considered the facts as established by the High Court. Within the cordon there was room for people to move about and there was no “crushing”, even if there were not toilet facilities or other services (food, water or shelter). It was the actions of some protesters that prevented an earlier dispersal of the crowd. The Court found that the cordon had been the least invasive way to deal with the volatile situation in Oxford Circus that posed a risk to the public both within and outside the area.

Sitatopoulos and Glakoumopoulos v. Greece[26]

Grand Chamber Judgment

Background

The Applications, Greek citizens, were denied permission to vote in Greek elections from Germany where they reside. The Court found no violation of the Convention.

Reasoning

The question before the Court was whether the Convention imposed a duty on States to introduce a mechanism to permit citizens to vote from abroad. The Court found that there is no international or regional consensus that State must provide ex-patriot citizens with the ability to vote from abroad. The Court also found that the inconvenience of requiring the applications to travel to Greece to vote would not have been such as to violate their rights. Accordingly, the Court found that there was no violation.


[1] IT-95-5/18-T, 12 March 2012.

[2] Ibid. at ¶¶ 1,3-4, 10.

[3] Ibid. at ¶ 11.

[4] Ibid.

[5] Ibid. at ¶ 13.

[6] IT-03-67-T, 6 March 2012.

[7] ICC-02/11-01/11, 13 March 2012.

[8] Ibid. at ¶¶ 2-3.

[9] Ibid. at ¶¶ 7-8.

[10] Ibid. at ¶ 11.

[11] Ibid. at ¶ 12.

[12] Ibid. at ¶ 13.

[13] ICC-02/05-03/09, 9 March 2010.

[14] Ibid. at ¶¶ 1-2.

[15] Ibid. at ¶ 4.

[16] Ibid. at ¶ 6.

[17] Ibid. at ¶ 7.

[18] Ibid. at ¶ 8.

[19] 29 February 2012.

[20] Case File no. 002/19-09-2007/ECCC/TC, 9 March 2009.

[21] Ibid. at ¶¶ 1-3.

[22] Ibid. at ¶ 9.

[23] Ibid. at ¶ 17.

[24] Ibid. at ¶ 18.

[25] Application Nos. 39692/09, 40713/09 and 41008/09. All references are taken from the official press release.

[26] Application No. 42202/07. All references are taken from the official press release.

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