Review of International Tribunal Decisions for the week of July 30, 2012

This week’s review has cases from the Special Tribunal for Lebanon (STL), International Criminal Court (ICC), Extraordinary Chambers in the Court of Cambodia (ECCC) and The European Court of Human Rights (ECtHR). The subjects range from the legality of the Lebanese tribunal, the competency of an accused to stand trial and the use of evidence during the questioning of witnesses.

International Criminal Law

STL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[1]

Decision on the Defence Challenges to the Jurisdiction of the Tribunal

Background

Defense counsel filed a motion claiming that the STL was set up illegally, violated Lebanese sovereignty, has selective jurisdiction and does not guarantee the accused a right to a fair trial. The Trial Chamber dismissed all these arguments.

Reasoning

The Trial Chamber found that the defence motions are not challenges to jurisdiction but rather challenges to legality, or the validity, of the Tribunal. The challenges therefore do not fall within the definition of a preliminary motion. The Trial Chamber found that the United Nations Security Council established the STL when it passed Resolution 1757 in May 2007. Lebanon, as a member state of the United Nations has complied with its obligations under the Resolution. Because of this, the Trial Chamber found that it was not necessary to examine any issues in the Defence motions alleging violation of Lebanese domestic law.

The Trial Chamber found that had it no power to review the actions of the Security Council in establishing the Tribunal and that “No other judicial body possesses such a power of potential judicial review of the Security Council”. Further, the Trial Chamber found that, because the United Nations may establish a court, a Tribunal established by the United Nations or Security council, such as the Special Tribunal for Lebanon, has been validly “established by law”.

The Trial Chamber found that the limited jurisdiction of the Tribunal did not infringe any of the Accused’s fundamental rights to a fair trial. “Criminal investigation and prosecution is unavoidably selective in any system” the Trial Chamber held. And such “selectivity” is a normal part of international criminal jurisdictions such as the STL’s “and an inevitable consequence of establishing an international criminal court or tribunal,” the Trial Chamber found.

The Trial Chamber found that the Tribunal’s procedures under its Statute and Rules and it obligation to strictly apply the principles of international human rights law guarantee the Accused, “all relevant and necessary rights to a fair trial”. The establishment of the Tribunal does not violate the rights of the Accused to a fair trial.

ICC

Prosecutor v. Gbagbo[2]

Decision on issues related to the proceedings under rule 135 of the Rules of Procedure and Evidence and postponing the date of the confirmation of charges hearing

Background

The Chamber ordered that the accused undergo medical testing to determine if he was in sufficient health to stand trial.[3] The parties then filed motions on the level of confidentiality for the medical reports.[4] The Single Judge ordered that the medical reports be given a certain level of confidentiality appropriate for each document and postponed the start of the confirmation of charges hearing.

Reasoning

The Single Judge decided that the parties should file observations with the Court before a final decision is made on the accused’s fitness to stand trail.[5] In order to make such observations, the Prosecution must have access to the medical reports but the redactions requested by the defense were excessive.[6] The Single Judge therefore ordered the defense to provide redacted versions of the reports following instructions given in the annex to the present decision.[7] The postponement of the confirmation hearing was ordered due to the fact that a determination on the accused’s fitness to stand trial is still pending.[8]

ECCC

Case 002[9]

Memo on Response to outstanding request in E216

The Prosecution requested that the Chamber put the entirety of an unpublished thesis written by a witness in the case file and that the thesis be available for use in questioning the witness. The Chamber denied this request as documents need to be available in all three of the working languages of the court and the thesis is only available in French. One reason for this denial was the tardiness of the request given the timeframe for translation and the closeness of the witness’ testimony.

International Human Rights Law

ECtHR

Drakšas v. Lithuania[10]

Chamber Judgment

Background

The case concerned a Lithuanian politician (one of the founding members of the Liberal Democrats political party, led by former President Rolandas Paksas) and the tapping of his telephone authorized by the authorities. He complained that the recorded conversations had been leaked to the media and later revealed on national television during the constitutional proceedings on President Paksas’ impeachment case.

Reasoning

As regards the disclosure of the applicant’s conversation of 16 March 2003, the Court found that, while the public had had a right to information about civil servants, the State Security Department should have kept the recording confidential. However, the disclosure of the applicant’s conversations (with his business partners and President Paksas) in the framework of Constitutional Court proceedings had been in accordance with the law and part of the judicial process.


[1] STL-11-01/PT/TC, 27 July 2012. The decision was published on 30 July 2012. All the text in summary was taken from the press release of the tribunal. A more in-depth discussion of this decision will be forthcoming.

[2] ICC-02/11-01/11, 2 August 2012.

[3] Ibid. at ¶ 2.

[4] Ibid. at ¶¶ 6-7.

[5] Ibid. at ¶ 16.

[6] Ibid. at ¶ 17.

[7] Ibid. at ¶¶ 21.

[8] Ibid. at ¶ 22.

[9] This is a memo from the president of the Trial Chamber issued on 31 July 2012.

[10] Application No. 36662/04. All text is taken from the press release.

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