Review of International Tribunal Decisions for the week of March 26, 2012

This weeks decisions come from the ICTY, ICC, STL and ECtHR. The ICTY decisions deals with requests for reconsideration, while the ICC tackled the procedures for submitting material into evidence. The STL address the propriety of giving appeals suspensive effect to the decision being appealed and the ECtHR addressed issues related to deportation.

International Criminal Law

ICTY

Prosecutor v. Haradinaj et. al.[1]

Decision on Prosecutor’s Motion for Reconsideration of Relief Ordered Pursuant to Rule 68Bis with Partially Dissenting Opinion of Judge Hall

Background

The Chamber issued an order reprimanding pursuant to Rule 68 bis to the Senior Trial Attorney for the Prosecution for failure to disclose material and ordered the disclosure of all relevant material.[2] The Prosecution requested a reconsideration of the personal reprimand of the Senior Trial Attorney as the Rules only allow reprimands to a party.[3] The Prosecution also argued that reconsideration was required to prevent an injustice to the Senior Trial Attorney.[4] The Chamber granted the motion.

Reasoning

The Chamber decided, by majority, that the general rule for disclosure violations does not provide for personal sanction of an individual attorney and while there is a more general rule that does, it would be inappropriate to fold that power to personally sanction from the general rule into the specific rule.[5] On this ground the Chamber recognized a clear error of reasoning and quashed the personal reprimand.[6]

ICC

Prosecutor v. Bemba[7]

Order on the Procedure for the Submission as Evidence of Material Used During Questioning of Witnesses

The Trial Chamber had previously ordered the parties to create and submit lists of the material they intended to use during the questioning of witnesses and those items they intended to introduce into evidence.[8] Only the evidence that was actually tendered was admitted into evidence.[9] However, due to confusion over what materials were actually admitted into evidence, the Chamber ordered the parties to prepare filings identifying the materials which they wish to submit as evidence that was used from the testimony of witness 110 to witness 36 and that all issues with the admission into evidence of that material should be raised in writing.[10]

STL

In the matter of El Sayed[11]

Order on Prosecution’s Request for Suspensive Effect of the Pre-Trial Judge’s Order of 20 February 2012

Background

The Pre-Trial Judge ordered the Prosecutor to hand over certain documents to the applicant and the Prosecution appealed that decision requesting that the decision be suspended pending the outcome of the appeal.[12] The Appeals Chamber granted the request.

Reasoning

The Chamber noted the Rule 126(F) allows for the Appeals Chamber to order that an impugned decision be suspended pending the outcome of an appeal.[13] The Chamber found that there was sufficient reason to suspend the order pending the appeal.[14]

International Human Rights Law

ECtHR

Mannai v. Italy[15]

Chamber Judgment

Background

Applicant was a Tunisian national living in Austria who was extradited to Italy to faces criminal charges. After his conviction and sentence was served, he was ordered to be deported to Tunisia. Applicant filed a challenge to the deportation and the ECtHR ordered that he should not be deported until the proceedings come to a close and that failure to follow this order would result in a violation of the ECHR. Italy deported the Applicant anyway. The ECtHR found violations of Article 3 prohibiting torture and Article 34 of the right to individual petition.

Reasoning

The Court found that the Applicant’s deportation violated Article 34 because it prevented the protection of the underlying rights that the application was filed to protect. It also created a serious impediment to the State’s protection of the substantive rights guaranteed by the ECHR. The Court also found a violation of the prohibition on torture because of the condition at the time and likely treatment of the Applicant in Tunisia.


[1] IT-04-84bis-T, 27 March 2012.

[2] Ibid. at ¶ 2.

[3] Ibid. at ¶¶ 4, 6.

[4] Ibid. at ¶¶ 10-11.

[5] Ibid. at ¶¶ 36-37, 40.

[6] Ibid. at ¶ 42.

[7] ICC-01/05-01/08, 26 March 2012.

[8] Ibid. at ¶ 1.

[9] Ibid. at ¶ 2.

[10] Ibid. at ¶¶ 3-6.

[11] STL, CH/AC/2012/02, 27 March 2012.

[12] Ibid. at ¶¶ 1-2.

[13] Ibid. at ¶ 4.

[14] Ibid. at ¶ 5.

[15] Application No. 9961/10. All facts are taken from the press release.

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