Review of International Tribunal Decisions for the week of June 18, 2012

This week’s review has cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia (ECCC), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The issues range from stand-by counsel, contempt to free elections.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Continuation of Standby Counsel Assignment

In April 2010 the Trial Chamber assigned stand-by counsel to the Accused so that should issues arise with the Accused’s self-representation, counsel could step in immediately to continue the trial.[2] With the closure of the Prosecution’s case, the Chamber asked the parties and counsel to weigh in on whether stand-by counsel should continue.[3] The Prosecution and counsel said yes, the Accused said no.[4] The Chamber found that the end of the Prosecution’s case did not eliminate any of the reasons for appointing stand-by counsel and so ordered that counsel’s appointment continue.[5]

SCSL

In re Eric Koi[6]

Judgment

Former RUF member Eric Koi Senessie was convicted late Thursday on eight of nine contempt of court charges alleging that he had attempted to induce five prosecution witnesses who testified in the Taylor trial to recant their testimony. Four of the counts alleged he had offered a bribe to a witness, and five of the counts alleged that he had attempted to influence a witness.

ECCC

Case 002[7]

Trial Chamber response to Co-Prosecutor’s Request for Leave to Provide Assurances with respect to Non-Prosecution for Witnesses (E200)

The Trial Chamber approved a request by the Co-Prosecutors to provide a form, through the Witness and Expert Support Unit, to assure witnesses that will testify that they will be not be prosecuted before the ECCC based on their testimony for crimes that would otherwise fall within the jurisdiction of the ECCC. However, the Chamber declined to authorize a similar assurance regarding prosecution before other courts in Cambodia as to do so would be inappropriate “inappropriate given the ECCC’s role and legal framework”.

ICC

Prosecutor v. Muthaura & Kenyatta[8]

Decision on the defence’s request for interim measures in relation to the prosecution’s contacts with potential defence witnesses

Background

On 12 June 2012, the defense for Mr. Muthaura submitted that the Proseuction was using an intermediary to contact a defense witness and requested that the Chamber issue protective measures to prevent such contact.[9] The motion was joined by the Kenyatta defense.[10] The defense also asked for interim measures pending an adption of a protocol to govern contacts with witnesses. The Chamber rejected the defense motion.

Reasoning

To decide on interim measures, the Chamber noted that it had to decide whether or not allowing the Prosecution from contacting witnesses “will create an irreversible situation that could not be corrected, or otherwise cause irreparable prejudice to the defence and/or to the person who may be contacted by the prosecution.”[11] The Muthaura defense alleged that the contacts had placed defense witnesses in danger, however the Chamber did not find the submissions credible in that respect.[12] The motion was therefore denied.

International Human Rights Law

ECtHR

Kurier Zeitungsverlag und Druckerei GmbH (no. 2) v. Austria

and Krone Verlag GmbH v. Austria[13]

Chamber Judgment

Background

In January and February 2004, both newspapers published a number of articles about the dispute between a couple over custody of one of their sons. The courts had dismissed the request of the father, who was living with the child at the time, for custody to be transferred to him, and he had refused to comply with that decision. On 26 January 2004, after various attempts at enforcement had been unsuccessful because the father had gone into hiding with the child, court officers went to his house and tried to seize the child, who cried and resisted. Those scenes were the subject of wide media coverage, notably by Kronen Zeitung and Kurier. The articles published by the two newspapers revealed the child’s identity, gave details of his family life and were accompanied by photographs showing him in a state of pain and despair. The child and mother brought a case against the applicants claiming damages from the revelation of private details. The national courts agreed and awarded damages. The ECtHR found no violation of the European Convention in the granting of damages.

Reasoning

It was common ground between the parties in both cases that the judgments ordering the two publishing companies to pay compensation had interfered with their right to freedom of expression. The Court considered, and that was acknowledged by the parties, that the interference was prescribed by law. Furthermore, it was not disputed that it had served a legitimate aim, namely “the protection of the reputation or rights of others” for the purpose of Article 10. As regards the question whether the interference had been “necessary in a democratic society”, the Court first noted that the child who had been the subject of the articles in question was not a public figure, nor had he entered the public scene by becoming the victim of a custody dispute between his parents which had attracted considerable public attention. The articles had dealt with a matter of public concern, giving rise to a public debate, namely the appropriate enforcement of custody decisions and whether and to what extent force might or should be used in this context. However, given that neither the child nor his parents were public figures or had previously entered the public sphere, the Court did not find that it had been essential for understanding the case to disclose his identity, reveal most intimate details of his life or to publish a picture from which he could be recognized. In sum, the Court found that the Austrian courts had acted within their margin of appreciation in assessing the need to protect the child’s privacy and awarding compensation. There had accordingly been no violation of Article 10.

Communist Party of Russia and Others v. Russia[14]

Chamber Judgment

Background

The case concerned the complaints by Russian political opposition parties and politicians that the 2003 parliamentary elections had not been free as a result of unequal media coverage of the electoral campaign by the five major TV companies.

Reasoning

The Court found that laws and procedures existing at the relevant time guaranteed the opposition minimum access to TV as well as well as provided for the neutrality of the State-controlled media. While equality in TV coverage had not in reality been achieved during the 2003 elections, that had not been sufficient to find that the elections were not “free” within the meaning of the Convention.

E.S. v. Sweden[15]

Chamber Judgment

Background

The case concerned a complaint that the Swedish legal system, which does not prohibit filming without someone’s consent, had not provided the applicant any protection against her stepfather’s violation of her personal integrity by attempting to secretly film her naked when she was 14 years old. The court found no violation.

Reasoning

The Court found that, at least in theory, the applicant’s stepfather could have been convicted under the Penal Code either for child molestation or for attempted child pornography. In addition, Sweden had adopted a proposal criminalising certain aspects of illicit filming. Therefore, the Swedish system was not deficient to an extent of being incompatible with the Convention requirements.


[1] IT-95-5/18-T, 21 June 2012.

[2] Ibid. at p. 2.

[3] Ibid.

[4] Ibid.

[5] Ibid. at p. 2.

[6] All information is taken from the press release.

[7] Trial Chamber Memorandum, 19 June 2012.

[8] ICC-01/09-02/11, 20 June 2012.

[9] Ibid. at ¶ 2.

[10] Ibid. at ¶ 4.

[11] Ibid. at ¶ 7.

[12] Ibid. at ¶¶ 8, 10.

[13] Application nos. 1593/06 and . 27306/07 respectively. All information is taken from the press release.

[14] Application no. 29400/05. All information is taken from the press release.

[15] Application no. 5786/08. All information is taken from the press release.

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