Review of International Tribunal Decisions for the week of April 9, 2012

This week saw decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY) on reconsideration and protective measures for documents. The European Court of Human Rights (ECtHR) issued decisions on ill treatment, extradition and child custody.

International Criminal Law

ICTY

Prosecutor v. Stanišić & Župljanin[1]

Decision Denying the Prosecution’s Motion for Reconsideration or Certification of “Decision Denying Prosecution’s Fifth Motion Seeking Leave to Present Evidence in Rebuttal” of 28 March 2012

The Prosecution filed a confidential motion for reconsideration of the Chamber’s decision denying their motion to file evidence in rebuttal.[2] The Chamber denied it because the Prosecution failed to demonstrate a clear error in logic or new facts that would require a different decision.[3] The Chamber also denied leave to appeal, as the Prosecution did not demonstrate that an appeal would advance the proceedings.[4]

Prosecutor v. Stanišić & Simatović[5]

Decision on the Republic of Serbia’s Request for Protective Measures for Four Documents

Background

Serbia filed a request with the chamber for protective measures, namely the redaction of the names of State officials, the source of the information contained in documents and to whom the documents were originally addressed claiming that disclosure would negatively effect national security and put those involved in jeopardy.[6] The Prosecution objected to any redaction of the original recipients.[7] The Chamber granted the request in part.

Reasoning

The Chamber held that there was no basis to redact the names of the authors of the documents as Serbia had failed to demonstrate how their disclosure would affect its national security.[8] The Chamber equally found that Serbia failed to demonstrate how revealing the names of recipients would affect national security.[9] By contrast, the Chamber recognized that the disclosure of information sources would affect national security interests and so ordered that the sources be redacted.[10]

International Human Rights Law

ECtHR

Ali Güneş v. Turkey[11]

Chamber Judgment

Background

The case concerned a complaint by a high-school teacher who took part in a demonstration against the 2004 NATO summit in Istanbul that the police had ill-treated him, including by spraying tear gas on him. The Court found a violation of Article 3 of the European Convention prohibiting inhuman or degrading treatment.

Reasoning

The Court found in particular that: 1) the authorities had been unable to justify the use of tear gas against Mr Güneş after he had already been apprehended by the police; and, 2) no effective investigation had been carried out into his related complaints.

Babar Ahmad and Others v. the United Kingdom[12]

Chamber Judgment

Background

The applicants are wanted in the United States (in various different jurisdictions) for various terrorism related offences including murder. The US Government requested each applicant’s extradition from the United Kingdom. As a result, all six applicants were arrested in the UK and placed in detention pending extradition. They then contested their extradition in separate proceedings in the English courts, without success, their requests for leave to appeal to the House of Lords and the Supreme Court ultimately being rejected between 2007 and 2009. The court found that there was no violation of Article 3 of the European Convention because of the long sentences that the applicants face in the United States and that the conditions in the “supermax” facility were not such as to constitute inhuman and degrading treatment.

Reasoning

Having fully considered all the evidence from both parties, including specifically prepared statements by officials at the “supermax” facility as well as letters provided by the US Department of Justice, the Court held that conditions at facility would not amount to ill-treatment. This conclusion was in part reached because the inmates, while confined to their cells for the majority of the time, have access services and activities such as television, radio, newspapers, books etc which are not available in many European prisons.

When it came to the length of the sentences, having regard to the seriousness of the offences in question, the Court did not consider that these sentences were grossly disproportionate or amounted to inhuman or degrading treatment. There would therefore be no violation of Article 3 in the case of any of these five applicants if they were extradited, convicted and given life sentences.

K.A.B. v. Spain[13]

Chamber Judgment

Background

The case concerned the adoption – despite the father’s opposition – of a child who was declared abandoned after his mother’s deportation. The Court found a violation of Article 8 guaranteeing respect for the applicant’s private and family life.

Reasoning

The Court found, in particular, that the authorities’ inaction, the deportation of the mother without prior verification, the failure to assist the applicant with his formalities, in spite of his precarious situation, and the excusive attribution of responsibility to the applicant for the child’s abandonment, had decisively contributed to preventing any possibility of reunion between father and son, in breach of the applicant’s right to respect for his private life.


[1] IT-08-91-T, 11 April 2012.

[2] Ibid. at p. 1.

[3] Ibid.

[4] Ibid.

[5] IT-03-69-T, 12 April 2012.

[6] Ibid. at ¶ 2.

[7] Ibid. at ¶ 3.

[8] Ibid. at ¶ 12.

[9] Ibid. at ¶ 14.

[10] Ibid. at ¶ 13.

[11] Application no. 9829/07, 10 April 2012. All facts are taken from the press release.

[12] Application nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012. All facts are taken from the press release.

[13] Application no. 59819/08, 10 April 2012. All facts are taken from the press release.

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