Review of International Tribunal Decisions for the week of April 16, 2012

This week was the week of Karadžić at the International Criminal Tribunal for the Former Yugoslavia (ICTY) as all of our decisions from that court come from that case. They range from issues of confidentiality to the right of the Registry to respond to requests for administrative review. The International Criminal Tribunal for Rwanda (ICTR) is back this week with a decision on deferral. The Extraordinary Chambers in the Courts of Cambodia (ECCC) dealt with the disqualification of judges and the International Criminal Court (ICC) the appointment of counsel and the employment of interpreters. The European Court of Human Rights (ECtHR) issued numerous decisions ranging from the right to life in conflict situations to the right to life in events that happened before the European Convention came into effect.

International Criminal Law

 

ICTY

Prosecutor v. Karadžić[1]

Decision on Motion for Access to Confidential Filing and Decisions in Enforcement Proceedings

Background

The Accused requested access to confidential an inter partes filings in several cases that have already completed.[2] The Prosecution objected to the request arguing that the Accused failed to sufficiently identify the sought material and its purpose.[3] The President denied the motion.

Reasoning

The President noted that enforcement proceedings, unlike the substantive trial, only “address matters related to the enforcement of that convicted person’s sentence” there is no indicated, on its face without more, as to how that information would assist the Accused in his substantive case.[4] Without such a connection, it is inappropriate to grant the motion.[5]

Prosecutor v. Karadžić[6]

Decision on Accused’s Motion for Reconsideration of Chamber’s Decision on Motion to Exclude Intercepted Communications

Background

The Trial Chamber issued a decision on 30 September 2010 denying the Accused’s motion to exclude wiretap evidence that was allegedly obtain in violation of his right to privacy in the 1990’s.[7] The Accused now moves for a reconsideration of this decision on the grounds that the evidence was obtained in violation of the Constitution of Bosnia and Herzegovina and would amount to rewarding the bad behavior of the authorities if the wiretaps could be used in the present proceedings.[8] The Chamber denied the motion.

Reasoning

The Chamber noted that motion “only reiterates the challenge [the Accused] has already raised regarding the alleged illegality of intercepts pursuant to Bosnian law” and that just because evidence was obtained in violation of State law does not mean that it should be excluded from an international criminal trial.[9]

Prosecutor v. Karadžić[10]

Order on Request for Review of Registrar Decision and for Summary Reversal

The Accused filed a request for review of a Registrar decision denying his request to employ two individuals as defense investigators wherein he requested that the Registrar not be allowed to make submission to the President on the matter.[11] The President denied the request to the extent that it was to prevent the Registrar from responding to the request for review and set deadlines for the Registrar to file any submissions and for the Accused to reply thereto.[12]

Prosecutor v. Uwinkindi[13]

“Appeal Chamber Dismisses Uwikindi’s Motion for Stay of Transfer to Rwanda”

The ICTR decided to refer Mr. Uwikindi’s case to Rwanda on 5 April 2012 making him the first person to have a case transferred from the Tribunal to Rwanda. He filed a motion to delay his transfer until his request for reconsideration of the transfer decision is decided.

The Appeals Chamber denied his request finding that it had “already concluded that the Referral Chamber acted within its discretion in distinguishing Mr. Uwinkindi’s case from other cases in Rwanda.” The Chamber also considered “the Defence had failed to show that either the allegations related to the trial of Ms. Ingabire contained in the motion or additional, more detailed submissions with regard thereto would demonstrate a clear error of reasoning in the Appeals Chamber’s decision of 16 December 2011 or require its reconsideration in the interests of justice.”

ECCC

 

Case 002

Decsion on IENG Sary’s Appeal Against the Trial Chamber’s Decision on Motions for Disqualification of Judge Silvia Cartwright

Background

The Accused filed a motion relating to meetings between Judge Cartwright and the Prosecution with the Trial Chamber in which the judge is serving.[14] The Trial Chamber decided to treat the motion as one for disqualification of a judge and denied the motion.[15] The Accused appealed and the Supreme Court Chamber rejected the appeal on the merits.

Reasoning

Even though the Trial Chamber treated the original motion as one under Rule 34 on disqualification, instead of one under Rule 35 dealing with interference with the administration of justice, the Supreme Court Chamber decided to treat the appeal as one from a decision on Rule 35 thereby rendering the appeal admissible.[16] The Supreme Court Chamber further held that Rule 35 setting out offenses against the administration of justice applies to the judges of the ECCC.[17] For actions to fall within the ambit of Rule 35 they must be intended to interfere with the administration of justice.[18] The Accused did not alleged that the actions were intended to interfere with the administration of justice, only that they could give an impression of bias.[19] The Chamber held that the meetings themselves do not ipso facto mean there was an attempt to interfere with the administration of justice.[20] Having said this, the Supreme Court Chamber noted that such meetings were not a very good idea and could give rise to the impression of bias.[21]

ICC

 

Prosecutor v. Gaddafi & Al-Senussi[22]

Decision Appointing Counsel from the OPCD as Counsel for Saif Al-Islam Gaddafi

Background

On 3 March 2012, the Office of Public Counsel for the Defense (OPCD) met with Mr. Gaddafi in Libya, at which time he asked the OPCD to either select counsel or help him select counsel and signed a declaration to allow the OPCD to represent his interests until the appointment of counsel.[23]

Reasoning

The Chamber appointed the OPCD to represent the interests of Mr. Gaddafi based on the declaration he signed and the fact that current conditions make it difficult for the OPCD to communicate with Mr. Gaddafi in order to obtain his approval of any counsel that may be selected.[24] The Chamber therefore appointed the OPCD to represent Mr. Gaddafi pursuant to regulation 76(2) in the interests of justice.[25] The Chamber dismissed it for failure to satisfy the requirements of the Rules for disqualification.[26] The Accused argued that the appeal of this dismissal is admissible under rule 104 as an appeal from a rule 35 decision dealing with interference with the administration of justice.[27] The Accused also argued that the meetings between Judge Cartwright and the Prosecution have no legal basis and therefore were impermissible.[28] The Supreme Court Chamber held the appeal was inadmissible.

Prosecutor v. Nourain & Jamus[29]

Order on the Recruitment of Zaghawa Language Assistants by the Prosecution

The Accused objected to the Prosecution hiring of particular Zaghawa speakers as assistants because those same individuals had acted as interpreters during privileged telephone calls between the Accused and their counsel and so were privy to confidential information.[30] The Registry responded that the dearth of Zaghawa language assistants would threaten the Registry’s ability to provide interpretation at trial.[31] The Prosecution submitted that it would not hire the individuals in question.[32] Since the Prosecution decided not to hire the interpreters, the Chamber dismissed the motion as moot.[33]

International Human Rights Law

 

ECtHR

Estamirova v. Russia[34]

Chamber Judgment

Background

The applicant, Sovman Estamirova, is a Russian national who was born in 1959. At the time of the events she lived in Argun; she currently lives in Noybera. Both towns are in the Chechen Republic. Her case concerned the killing of her husband, Asradiy Estamirov, born in 1957, on 5 January 2001 during an intense exchange of fire between a military convoy and unidentified people, while he happened to be standing at a street corner in Argun. The investigation into his death, still in progress, has so far failed to identify those responsible. The Court held that there was no violation of Article 2 right to life, however there were violations regarding the applications right to an adequate investigation and just satisfaction.

Reasoning

Ms Estemirova’s husband had been shot as a result of an exchange of fire between a military convoy and unidentified people. There had been no direct witnesses to the incident. Nor was there material evidence to prove whether the bullet which had caused her husband’s death had been fired from a weapon belonging to the military or to the unidentified group. The Court could not therefore conclude “beyond reasonable doubt” that Asradiy Estamirov had been shot by the Russian military. There had therefore been no violation of Article 2 as concerned the killing of Asradiy Estamirov.

The Court found, however, that there had been a violation of Article 2 concerning the authorities’ failure to conduct an effective investigation into the circumstances in which Asradiy Estamirov had died. Notably, numerous essential steps had not been taken such as questioning the head of the military convoy, the senior drivers and other servicemen. There had also been a delay of more than eight years in carrying out a ballistic expert examination to identify the firearms used during the incident. Moreover, the investigation had been suspended and resumed on a number of occasions with lengthy periods of inactivity and, although Ms Estemirova had been told of those procedural steps, she had not been informed of any significant developments.

Based on the ineffective criminal investigation, the Court found a violation of the right to an effective remedy.

Grudić v. Serbia[35]

Chamber Judgment

Background

The case concerned complaints by two Serbians of Bosniak origin about prolonged non-payment of their disability pensions.

Reasoning

The retirement fund based its decisions to suspend the proceedings in which the applicants claimed the resumption of their pension payment on the basis of the Opinions of the Ministry for Social Affairs and the Ministry for Labour, Employment and Social Policy of March 2003 and June 2004 respectively, which apparently had never been published in the official gazette. At the same time, the Constitutional Court had held that such opinions did not amount to legislation but were merely meant to facilitate its implementation. Furthermore, the Supreme Court had specifically noted in its Opinion of 15 November 2005 that the recognised right to a pension could only be restricted on the basis of Article 110 of the Pensions and Disability Insurance Act. Consequently, the Court concluded that the authorities’ interference with Mr and Mrs Grudić’s possessions had not been in accordance with the relevant domestic law.

Janowiec and Others v. Russia[36]

Chamber Judgment

Background

The applicants are 15 Polish nationals who are relatives of 12 victims of the Katyń massacre. The 12 victims were police and army officers, an army doctor and a primary school headmaster. Following the Red Army’s invasion of the Republic of Poland in September 1939, they were taken to Soviet camps or prisons and were then killed by the Soviet secret police without trial, along with more than 21,000 others, in April and May 1940. They were buried in mass graves in the Katyń forest near Smolensk, and also in the Pyatikhatki and Mednoye villages. The Court determined that it could not reach the merits of the case regarding the obligation to investigate the loss of life, but reached the merits and found violations of the prohibition against inhumane treatment.

Reasoning

Russia ratified the Convention 58 years after the killing of the applicants’ relatives. That period was not only many times longer than the periods which had triggered the State’s obligation to investigate in all earlier cases decided by the Court, but it was excessively long also in absolute terms. Therefore, it was not possible to establish a genuine connection between the deaths and the entry into force of the Convention in Russia.

The Court then examined whether the circumstances of the case could justify a connection between the deaths and the ratification on the basis of the need to ensure the effective protection of the Convention guarantees and values. It found that the mass murder of the Polish prisoners by the Soviet secret police had been a war crime, as the obligation to treat prisoners of war humanely and the prohibition to kill them had clearly been part of international customary law, which the Soviet authorities had had a duty to respect. However, even taking into account that war crimes were not subject to a statute of limitations, no evidence raising new or wider issues had been discovered after the ratification, hence Russia’s obligation to investigate could not be revived. There was therefore no connection on which to base responsibility under the Convention.

This was not true when it came to the treatment of the victims’ relatives. As regards the first group of 10 applicants, the Court found that they had suffered a double trauma: losing their relatives in the war and not being allowed to learn the truth about their death for more than 50 years because of the distortion of historical facts by the Soviet and Polish communist authorities. In the post-ratification period, they had not been given access to the investigation’s materials, nor had they otherwise been involved in the proceedings or officially informed of the outcome of the investigation. What was more, they had been explicitly prohibited from seeing the 2004 decision to discontinue the investigation on account of their foreign nationality. The Court was struck by the apparent reluctance of the Russian authorities to recognise the reality of the Katyń massacre. The approach chosen by the Russian military courts to maintain, to the applicants’ face and contrary to the established historic facts, that their relatives had somehow vanished in the Soviet camps, demonstrated a callous disregard for the applicants’ concerns and deliberate obfuscation of the circumstances of the Katyń massacre. The Russian prosecutors also rejected any attempts to “rehabilitate” those who were executed by clearing their records. The State also had a duty to locate the victims, which it did not do. There was therefore a violation of the duty to humanly treat the family of the victims.


[1] IT-95-5/18-T, 17 April 2012.

[2] Ibid. at p. 1.

[3] Ibid.

[4] Ibid. at p. 2.

[5] Ibid. at p. 3.

[6] IT-95-5/18-T, 18 April 2012.

[7] Ibid. at ¶ 1.

[8] Ibid. at ¶ 2.

[9] Ibid. at ¶¶ 5-6.

[10] IT-95-5/18-T, 20 April 2012.

[11] Ibid. at p. 2.

[12] Ibid.

[13] Unfortunately the decision is not available on the website of the ICTR. All information in this summary is taken from the press release.

[14] Ibid. at ¶ 1.

[15] Ibid. at ¶ 3.

[16] Ibid. at ¶¶ 11-17.

[17] Ibid. at ¶¶ 18-19.

[18] Ibid. at ¶¶ 20-21.

[19] Ibid. at ¶ 22.

[20] Ibid. at ¶ 23.

[21] Ibid. at ¶ 24.

[22] ICC-01/11-01/11, 17 April 2012.

[23] Ibid. at ¶ 3.

[24] Ibid. at ¶ 5.

[25] Ibid. at ¶ 6.

[26] Ibid.

[27] Ibid. at ¶ 4.

[28] Ibid. at ¶ 6.

[29] ICC-02/05-03/09, 18 April 2012.

[30] Ibid. at ¶ 1.

[31] Ibid. at ¶ 3.

[32] Ibid. at ¶ 4.

[33] Ibid. at ¶ 5.

[34] Application No. 27365/07, 17 April 2012. All facts and information are taken from the press release.

[35] Application No. 31925/08, 17 April 2012. All facts and information are taken from the press release.

[36] Application Nos. 55508/07 and 29520/09, 16 April 2012. All facts and information are taken from the press release.

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