This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Special Tribunal for Lebanon (STL), Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The decisions deal with issues ranging from disqualification of judges to victims participation.
Prosecutor v. Mladić
Order Denying Defence Motion Pursuant to Rule 15(B) Seeking Disqualification of Presiding Judge Alphonse Orie and for a Stay of Proceedings
The Accused filed an oversized motion seeking to remove the Presiding Judge of his trial alleging that he is biased. The President of the Tribunal denied the motion after reading the Presiding Judge’s response to the allegations on the grounds that the Accused had failed to meet his high burden of demonstrating bias on the part of the judge. The President of the Tribunal attached a copy of the Presiding Judge’s responses to the allegations to the order.
Proseuctor v. Ngirabatware
Decision on Defence Motion for Admission of Written Statements
The Accused filed a motion for the admission of written statements into evidence arguing that the statements were certified and that they did not go directly to the acts of the accused. The Chamber denied the motion.
The Chamber noted that in order to be admissible, they must be associated with a witness who testified before the Tribunal, something that these statements were not. The statements must also not go to the acts or behavior of the Accused. The statements must also have probative value. The Chamber found that the individual statements failed to meet one or both of these criteria.
Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra
Decision on the VPU’s Access to Materials and the Modalities of Victims’ Participation in Proceedings Before the Pre-Trial Judge
The Pre-Trial Judge issued a decision on how individuals granted the status of “victims participating in the proceedings” could do so and on the Registrar’s submission on confidential documents related to the victims.
The Pre-Trial Judge noted that there is nothing in the Rules that entitles the victims to receive “disclosure” material, but only confidential and public filings of the parties. However, Rule 87(A) gives the victims access to the case file which includes such disclosure evidence and materials relied on by the Prosecution in requesting the arrest warrant and indictment. The question was left as to when this should occur, and the Pre-Trial Judge decided that it should happen as soon as practicable after the appointment of victims’’ counsel so that counsel could adequately prepare for the trial. When it comes to materials not included in the case file, the Pre-Trial Judge held that the victims must have access to the information in the same format as it was disclosed to the receiving party, that is, that the victims are entitled to access to disclosure material even absent a Rule to such effect. When it comes to the Victims Participation Unit receiving such material, the Pre-Trial Judge held that the VPU occupies a similar position to that of the Defense Office and so the regime for the later would apply mutatis mutandis to the former. As such, the VPU was not given automatic access to the materials but only a list of materials to be able to make sure the material was received by the victims.
Decision on Rule 35 Applications for Summary Action
The Accused filed two applications pursuant to Rule 35 of the internal rules to ask Prime Minister Samdech HUN Sen to refrain from making statements that the accused are guilty of the crimes with which they are charged before the conclusion of the trial. The Accused claims that the statements by the Prime Minister violate his right to be presumed innocent. The Trial Chamber dismissed his first motion as inadmissible and denied the second on the merits.
The Chamber held that the first request was simply an elaboration on prior similar objections that the Chamber had already ruled on and therefore declared it to be inadmissible. However, the Chamber decided to clarify its prior rulings on the inadmissible motion. The Chamber noted that prejudicial statements by government officials about the Accused’s guilt would not influence the work of the Court “will not take into account any public comments on the guilt or innocence of the Accused in reaching its verdict.” Because this fact means that there is no “reason to believe” that there will be interference with the administration of justice, there is no need to continue with Rule 35 proceedings/investigations. The Chamber dismissed the second motion finding that the statements were about the defense team, and not the guilty of the Accused.
Prosecutor v. Katanga & Chui
Decision on the Defence Application for Leave to Appeal the ‘Décision relative à la requête de la Défense de Germain Katanga tendant à l’admission d’extraits du jugement prononcé dans l’affaire Lubanga”
The Accused filed a motion for certification to appeal whether or not the Trial Chamber erred in not allowing the reopening of the evidentiary phase of the trial to admit passages from the Trial Judgment in the Lubanga case. The Chamber denied the motion.
The Chamber considered the request for certification in light of three criteria: (1) whether the motion raised an “appealable issue”; (2) whether the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and; (3) whether the Chamber thought an immediate resolution by the Appeals Chamber would materially advance the proceedings. The Chamber noted that the Accused did not impugn the legal test used by the Chamber in denying its request to reopen the evidentiary phase of the proceedings but only the determination itself. The Chamber therefore found that there was no appealable issue.
Fernández Martínez v. Spain
The applicant was a former religion teacher in the State public schools who while a priest had been a part of the “Movement for Optional Celibacy” and applied for a dispensation form celibacy, which was granted in 1997 on the terms that no one with such a dispensation should teach religion unless the local bishop approves. That same year, the bishop decided not to renew the applicant’s contract. The local employment tribunal found that this termination was a violation of his right not to be discriminated against and ordered his reinstatement. However, on appeal this decision was reversed. The ECtHR found no violation of the Convention.
The Court considered that the grounds on which Mr Fernández Martínez had not had his contract renewed were of a strictly religious nature. The requirements of the principles of religious freedom and neutrality precluded it from carrying out any further examination of the necessity and proportionality of the decision not to renew his teaching contract. The Court considered that in not renewing Mr Fernández Martínez’s contract, the ecclesiastical authorities had been discharging obligations associated with their religious autonomy. Lastly, since candidates were free to apply for posts as teachers of religious education, it would be unreasonable not to take their religious beliefs into account in the selection process, in order to preserve the right to religious freedom in its collective dimension.
 IT-09-92-PT, 15 May 2012.
 Ibid. at p. 2.
 Ibid. at p. 3.
 ICTR-99-54-T, 14 May 2012.
 Ibid. at p. 1, ¶ 4.
 Ibid. at ¶ 13.
 Ibid. at ¶ 15.
 Ibid. at ¶ 18.
 Ibid. at ¶¶ 24-25, 27, 30-31.
 STL-11-01/PT/PTJ, 18 May 2012.
 Ibid. at ¶¶ 1-2.
 Ibid. at ¶ 70.
 Ibid. at ¶¶ 71-72.
 Ibid. at ¶¶ 76-78.
 Ibid. at ¶ 79.
 Ibid. at ¶¶ 89-92.
 Ibid. at ¶ 93.
 Case File No. 002/19-09-2007/ECCC/TC, 11 May 2012.
 Ibid. at ¶¶ 1-4, 23.
 Ibid. at ¶ 10.
 Ibid. at ¶ 23.
 Ibid. at ¶ 27.
 Ibid. at ¶¶ 28-32.
 Ibid. at ¶ 32.
 ICC-01/04-01/07, 14 May 2012.
 Ibid. at ¶ 11.
 Ibid. at ¶ 13.
 Ibid. at ¶¶ 15, 20.
 Ibid. at ¶ 21.
 Application No. 56030/07, 15 May 2012. All this information was taken from the press release.