Review of International Tribunal Decisions for the week of June 11, 2012

The week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The decisions deal with issues ranging from discovery orders to restitution for improper conviction.

International Criminal Law

ICTY

Prosecutor v. Stanišić & Simatović[1]

Decision on Prosecution Motion to Compel Disclosure of Notes and Photographs from Examination of Mladić Notebooks

Background

A defense expert examined the Mladić notebooks at which time he took images and made notes about their contents for the purposes of drafting his expert report.[2] The Prosecution filed a motion to have those notes disclosed as they should have been part of the report, to make sure all relevant information is before the Chamber and so that the Prosecution will have a complete record vis-à-vis the notebooks.[3] The Chamber denied the motion.

Reasoning

The Chamber found that as a general matter, the notes were not subject to disclosure, as they did not form part of the expert report, but were merely materials created to allow the preparation of said report.[4] The Chamber found that the notes were not necessary for the evaluation of the expert report as there was adequate cross-examination on the subject at trial.[5] The argument that the notes would be useful to create a complete record or be useful in other trials was found to be irrelevant for this trial and so outside the scope of disclosure.[6]

ICC

Prosecutor v. Lubanga[7]

Order on the defence request to present evidence during the sentencing hearing

Background

The Accused requested permission to call two witnesses during the sentencing hearing and to introduce documents as to their identity as well as a letter from the Accused detailing his detention in the DRC before being transferred to the Court.[8] The Prosecution did not oppose the witnesses but contested the relevancy of the letter from the Accused.[9] The Victims contested the hearing of witnesses and requested the ability to cross-examine them if they testify.[10] The Chamber granted the Accused’s requests.

Reasoning

The Chamber found the proposed testimony of the witnesses to be prima facie relevant and their supporting documents to be so as well and so granted permission for their admission.[11] The Chamber held that the letter from the Accused was also potentially relevant to the amount of credit, if any, the Accused is entitled to for prior detention.[12] The Chamber did not directly address the Victims’ requests.

Prosecutor v. Gbagbo[13]

Decision on the “Requête de la Défense en report de l’audience de confirmation des charges prévue le 18 juin 2012”

Background

The Accused filed a motion to delay the confirmation of charges hearing based on his alleged medical condition and an inadequate amount of time to prepare.[14] The Single Judge partially granted the motion.

Reasoning

The Single Judge found, based on the evidence (redacted from the decision) that the Accused’s medical condition was not such as to prevent him from participating in the confirmation of charges hearing.[15] However, the Judge also found that for “a variety of reasons, including a need to receive supplementary information from the Defence, the Registry was not in a position to grant the additional means until more than a month after the filing of such request and only seven working days before the scheduled start of the confirmation hearing. This appears to have left barely any time for the Defence to apply effectively these additional means for its preparation for the confirmation hearing scheduled to start on 18 June 2012. Accordingly, the Single Judge considers that in order to safeguard the rights of the Defence, it is necessary to postpone the confirmation hearing to a date which will take into account the delay in allocating the funds to the Defence.”[16]

International Human Rights Law

ECtHR

Poghosyan and Baghdasaryan v. Armenia[17]

Chamber Judgment

Background

The case concerned the dismissal of the applicant’s compensation claim after his conviction for murder and rape had been quashed and he had spent 5 years and 6 months in prison.

Reasoning

This was the first judgment in which the Court examined a complaint under Article 3 of Protocol No. 7 on the merits and concluded that there had been a violation. The Court found in particular that compensation was due even where the domestic law or practice did not provide for such compensation, and that the purpose of Article 3 of Protocol No. 7 was not merely to recover any pecuniary loss caused by wrongful conviction but also to provide a person convicted as a result of a miscarriage of justice with compensation for any non-pecuniary damage such as distress, anxiety, inconvenience and loss of enjoyment of life.


[1] IT-03-69-T, 12 June 2012.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶ 2.

[4] Ibid. at ¶ 9.

[5] Ibid. at ¶ 11.

[6] Ibid. at ¶ 12.

[7] ICC-‘1/04-01/06, 11 June 2012.

[8] Ibid. at ¶¶ 6, 10-14.

[9] Ibid. at ¶¶ 15-16.

[10] Ibid. at ¶¶ 17-18.

[11] Ibid. at ¶¶ 19-22.

[12] Ibid. at ¶ 23.

[13] ICC-02/11-02/11, 12 June 2012.

[14] Ibid. at ¶¶ 4, 9-10, 15.

[15] Ibid. at ¶ 36.

[16] Ibid. at ¶ 40.

[17] Application no. 22999/06, 12 June 2012. All information is taken from the press release.

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