This weeks review has decisions and judgments from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC), The European Court of Human Rights (ECtHR) and the African Court of Human and People’s Rights (ACtHPR). This week saw a lot of activity at the ICTY in the Mladć case and Case 002 at the ECCC.
Prosecutor v. Mladć
Decision on Submissions Relative to the Proposed “EDS” Method of Disclosure
The Prosecution proposed to use the Tribunal’s Electronic Disclosure System (EDS) to provide the Accused with the documents that contained exculpatory materials by placing those materials in searchable electronic indices in the electronic system. The Accused objected to this disclosure system and also requested the Prosecution disclose any “meta-data”. The Accused further requested that the trial be postponed until such time as all the meta-data is disclosed.
The Chamber noted that the Prosecution is has “a positive and continuous obligation to disclose potentially exculpatory materials under Rule 68 and that simply placing a document in the EDS system does not make the Accused aware of its existence. The Chamber also noted that neither Rule 68 or case law requires that the Prosecution disclose meta-data and so the Prosecution cannot be said to out of compliance with its disclosure obligations. Notwithstanding this lack of affirmative duty, the Chamber decided to consider whether the Prosecution needed to disclose such data “in the interests of justice.” Since the Prosecution was already in the process of disclosing the requested material, the Chamber declined to issue an order to do so. The Chamber in the end emphasized that its decision was not meant to encourage the Prosecution to terminate its efforts to comply with the Accused’s requests.
Prosecutor v. Mladć
Decision on the Defence Motions for Certification to Appeal the Decisions on the Prosecution Motion for Judicial Notice and Adjudicated Facts
The Accused filed several motions, in response to a series of decisions, seeking certification to appeal the Chamber’s judicial notice of 1,974 facts proposed by the Prosecution (although some were slightly reformulated from the manner in which they were proposed). The Accused also argued that even though his motion challenging the first judicial notice decision was filed late, that this was excusable because that decision was only a part of the whole decision of the Chamber on the issue and so the motion should be considered to be timely filed. The Chamber granted the motions.
The Chamber considered the first motion to be validly filed because all the motions were intertwined and the certification of some of them might lead to putting the subject matter of the first one before the Appeals Chamber regardless of whether it was certified or not. The Chamber recalled that judicially noticed facts could have a major effect on the way the parties prepare and present their cases and that the sheer number of them in this case means that any resolution of the issue by the Appeals Chamber will significantly affect the fair and expeditious conduct of the proceedings as is required under the rules for certification to appeal. Given the early stages of the proceedings, certification would advance the proceedings by clarifying the issues from the beginning and so the test for certification was met.
In the Matter of Vojislav Šešelj
Public Redacted Version of Judgement Issued on 28 June 2012
Mr. Šešelj was charged with contempt of the tribunal for not removing certain materials form his website that contained confidential information about protected witnesses. He pled not guilty. During the proceedings the Registry did not certify Mr. Šešelj’s case manager from the main proceedings against him to participate. Subsequently, Mr. Šešelj decided not to testify in this case and argued that the whole proceedings had been unfair due to the lack of resources provided to him by the Registry. The Chamber found Mr. Šešelj guilty of failing to follow the orders of the tribunal, and considering his history of contempt and prior convictions for such, sentenced him to two years. Judge Trechsel partially dissented as to length of the sentence saying it should have been considerably less.
Scheduling of Reassessment and Hearing on IENG Thirith Fitness to Stand Trial
The Trial Chamber issued an order to reassess Mrs. Ieng’s fitness to stand trial after a prior determination that she was not competent due to cognitive degeneration (most likely Alzheimer’s). This is following a prior decision by the Chamber ordering her release, that was subsequently overruled on appeal with instructions to try and rehabilitate her ability to participate. This order follows the implementation of that attempt to rehabilitate Mrs. Ieng. The other accused are not to attend the hearing except for her husband, who may attend if he so chooses.
Decision on NUON Chea Defence Counsel Misconduct
The Chamber noted a continued pattern of misconduct by the international members of the defense team, included violation of court orders and unauthorized disclosure to the press, and therefore decided to set out the legal basis and consequences for a prior oral warning. The Chamber therefore decided to refer the misconduct to the respective bar association of defense counsel.
Prosecutor v. Gbagbo
Decision on OPCV requests for access to confidential documents in the record of the case
The Office of Public Counsel for Victims filed a request for the Common Legal Representative to be allowed access to confidential material and to information related to the Accused’s challenge of jurisdiction.
The Single Judge ordered the disclosure of the confidential document containing the charges as the Prosecution did not object and there did not appear to be any threat to victims or witnesses from this disclosure. In regards to the confidential material in the challenge to jurisdiction, the Single Judge noted that the information currently available to the victims is sufficient for them to participate in that part of the proceeding.
Ressiot and Others v. France
The case concerned investigations carried out at the premises of L’Equipe and Le Point newspapers and at the homes of journalists accused of breaching the confidentiality of a judicial investigation. The authorities wanted to identify the source of the leaks in an investigation into possible doping in cycle racing. Searches were carried out at the newspaper offices and the journalists’ homes: equipment was seized and lists of telephone calls were placed under seal. The five journalists were released for lack of evidence.
The Court found that the Government had not shown that a fair balance had been struck between the various interests involved. It reiterated that “the considerations to be taken into account by the Convention institutions for their review under paragraph 2 of Article 10 tip the balance of competing interests in favor of the interest of democratic society in securing a free press”. The measures taken were not reasonably proportionate to the legitimate aim pursued, having regard to the interest of a democratic society in ensuring and maintaining the freedom of the press.
Femi Falana v. The African Union
The case involves a complaint by a Nigerian attorney who has been trying to get Nigeria to file a declaration accepting the jurisdiction of the ACtHPR. He filed the present application against the African Union claiming that the requirement that Nigeria file the additional application is inconsistent with the African Charter and violates his right to have access to the court.
The Court, before reaching the merits, had to decide whether or not it had jurisdiction. The governing law states that individuals may have access to the court when the State in question submits a declaration to that effect. The fact that the AU is not a State does not automatically mean that no declaration is necessary to found jurisdiction. The Court also decided that it was not the AU that adopted the Charter, but the heads of States of the various parties. Just because the documents were adopted under the auspices of the AU does not mean that the AU is a party or that it adopted the documents and therefore it is not a party and cannot be sued under its provisions. Additionally, as an international organization, the AU is not a corporate representation of the many member States but its own separate legal entity.
In coming to this decision, the Court reiterated its position that it is the product of the Protocol and therefore bound by its terms.
 IT-09-92-T, 26 June 2012.
 Ibid. at ¶ 1.
 Ibid. at ¶¶ 2-3.
 Ibid. at ¶ 5.
 Ibid. at ¶ 7.
 Ibid. at ¶ 10.
 Ibid. at ¶ 12.
 Ibid. at ¶ 13.
 IT-09-92-T, 27 June 2012.
 Ibid. at ¶¶ 2-3.
 Ibid. at ¶ 4.
 Ibid. at ¶ 14.
 Ibid. at ¶ 16.
 Ibid. at ¶ 17.
 IT-03-67-R77.4, 28 June 2012.
 The following informaiton is taken from the judgment summary.
 Case No. 002/19-09-2007/ECCC/TC, 29 June 2012.
 Ibid. at ¶ 1.
 ICC-02/11-01/11, 27 June 2012.
 Ibid. at ¶¶ 5, 8.
 Ibid. at ¶ 15.
 Ibid. at ¶ 22.
 Application no.15054/07, 28 June 2012. All text is taken from the press release.
 Application No. 01/2011.
 Ibid. at ¶ 2.
 Ibid. at ¶ 3.
 Ibid. at ¶ 56.
 Ibid. at ¶¶ 59-61.
 Ibid. at ¶ 63.
 Ibid. at ¶ 66.
 Ibid. at ¶ 67.
 Ibid. at ¶¶ 68, 70-72.
 Ibid. at ¶ 73.