Review of International Tribunal Decisions for the week of July 23, 2012

This week has decisions from the Extraordinary Chambers in the Courts of Cambodia (ECCC), International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). The subjects range from disclosure issues and protective measures for witnesses to issues of free speech.

International Criminal Law

ECCC

Case 002[1]

Memo: Response to NUON Chea’s request for disclosure of Forwarding Order in Case 003(E204)

In this Memo the President of the Trial Chamber informs that the defense that the Chamber is not seized of Case 003 and so is not in a position to issue an order regarding disclosure of matter from that case. In any event, the President noted that the Prosecution’s access to documents from Case 003 did not effect the fairness of the trial in general as this is a situation that is common in many jurisdictions. The President further characterized this as part of a defense strategy to “raise issues of no relevant to Case 002/01”. The President also noted that the defense would not be allowed to call the 500 witnesses it would like, but instead that the Chamber had already selected the witnesses it would like to hear from.

ICC

Prosecutor v. Gaddafi & Al-Senussi[2]

Decision on the “Libyan Government Application for leave to reply to any Response/s to article 19 admissibility challenge”

Background

On 1 May 2012, the Libyan government filed a challenge to the admissibility of the case against Mr. Gaddafi before the ICC and the Chamber subsequently requested the several participants in the proceedings to file responses.[3] Libya subsequently filed a request for authorization to reply to those responses.[4] The Chamber granted the request.

Reasoning

The Chamber, considering the content of the responses, held,

the triggering force and main actor in admissibility proceedings is the entity challenging the admissibility of the case, in the present case Libya, the Chamber deems it appropriate to authorize (sic) Libya to file a reply to the Responses. The Chamber emphasises (sic) that this reply is limited to the arguments raised in the Responses.[5]

Prosecutor v. Gbagbo[6]

Decision on the “Requête de la Défense aux fins d’expurgation de deux attestations” and the “Demande aux fins de mesures de protection”

Background

The defense filed two motions requesting that the identity and location of two individuals contacted by the defense not be disclosed to the Prosecution and that they be assigned pseudonyms.[7] The defense also asked for access to the threat assessment conducted for individuals associated with the accused.[8] The Chamber rejected the request for non-disclosure/redactions but granted the request for the pseudonyms.

Reasoning

The Single Judge noted that a request for redactions must be based on an “objective risk” to the safety of the witness if their identity were to be disclosed to the Prosecution and that even with a risk that redaction must be necessary to protect their safety.[9] The Judge concluded on the evidence that public disclosure would create such a risk, however, the alleged potential harm was not from the Prosecution, but based on a potential leak of their identities by the Prosecution in the filed.[10] The Single Judge therefore held that given the Prosecution’s obligation not to endanger witnesses and to not use their names during investigations thereby revealing their involvement with the Court, that there was no basis for redactions vis-à-vis the Prosecution.[11]

Regarding the threat assessment, the Judge held that since it does not relate to defense witnesses there is no need for the accused to have access to it.[12] However, the Registry should assist the defense in determining risks that may exist in respect to persons associated or perceived as being associated with the accused.[13]

International Human Rights Law

ECtHR

Fáber v. Hungary[14]

Chamber Judgment

Background

The case concerned Mr Fáber’s complaint that he was fined for displaying the striped Árpád flag, which has controversial historical connotations, less than 100 metres away from a demonstration against racism and hatred. The Court found a violation of the applicant’s right to freedom of expression.

Reasoning

Even demonstrations which might annoy or offend people were protected under Article 11 (freedom of assembly). However shocking of disturbing certain views or words used during demonstrations might appear to the authorities, democracy might be endangered if they restricted people’s freedom to assemble or to express their ideas, other than in cases of incitement to violence or rejection of democratic principles.

The flag which Mr Fáber had displayed had been perceived as provocative by the authorities. While it might have made the demonstrators feel ill-at-ease, the flag had not really disturbed the event. The Court accepted that the display of a symbol, which was ubiquitous during the reign of a totalitarian regime in Hungary, might create uneasiness amongst past victims and their relatives who could rightly find such displays disrespectful. It nevertheless found that such sentiments, however understandable, could not alone set the limits of freedom of expression.

Đorđević v. Croatia[15]

Chamber Judgment

Background

The case concerned the complaint by a mother and her mentally and physically disabled son that they had been harassed, both physically and verbally, for over four years by children living in their neighbourhood, and that the authorities had failed to protect them. The Court found multiple violations.

Reasoning

The Court observed that Dalibor had been continuously harassed and, as a result, had felt helpless and afraid for prolonged periods of time. He had also been physically hurt on one occasion. That ill-treatment had been sufficiently serious to attract the protection of Article 3 in his regard.

While the police had interviewed some children about the incidents, they had made no serious attempts to assess what had really been going on. The police had reported that the children had been pestering Dalibor but this had not been followed by any concrete action. No policy decisions had been adopted and no monitoring mechanisms had been put in place in order to recognise and prevent further harassment. The Court was struck by the lack of any true involvement of the social services and the absence of counselling given to Dalibor. It concluded that, apart from responses to specific incidents, no relevant action of a general nature had been undertaken by the relevant authorities, despite their knowledge that Dalibor had been systematically targeted and that future abuse had been quite likely.

The Court reiterated that, under Article 8, States were not only obliged not to harm individuals, but they also had a duty to act in order to protect people’s moral integrity from acts of others. Given that Dalibor and his mother had been subjected to repeated harassment, the mother’s private and family life had been negatively affected too. In the same way as the authorities had not put in place any relevant measures to prevent further harassment of her son, they had failed to protect her. There had therefore been a violation of Article 8 as well.


[1] File 20 July 2012 and posted 24 July 2012 on the internet.

[2] ICC-‘1/11-01/11, 26 July 2012.

[3] Ibid at ¶¶ 1-2.

[4] Ibid. at ¶ 3.

[5] Ibid. at ¶ 8. Internal citations ommitted.

[6] ICC-02/11-01/11, 26 July 2012.

[7] Ibid. at ¶¶ 5-7.

[8] Ibid. at ¶ 7.

[9] Ibid. at ¶ 10.

[10] Ibid. at ¶¶ 11-12.

[11] Ibid. at ¶¶ 13-17.

[12] Ibid. at ¶ 19.

[13] Ibid. at ¶ 20.

[14] Application no. 40721/08, 24 July 2012. All text is taken from the press release.

[15] Application no.41526/10, 24 July 2012. All text is taken from the press release.

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