Review of International Tribunal Decisions for the week of September 3, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC). The decisions deal with motions for a new trial, confidential communications, disclosure and filing requirement. Of particular interest is the SCSL decision on the role of a public defence office at an international criminal tribunal.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Accused’s Motion for New Trial for Disclosure Violations

Background

The Accused filed a motion for a new trial on the basis of the cumulative prejudice he allegedly suffered from repeated disclosure violations by the Prosecution.[2] A new trial is requested both as a penalty to the Prosecution and as a remedy for the repeated violations.[3] The Chamber denied the motion.

Reasoning

The Chamber found that the cumulative disclosure violations by the Prosecution have not prejudiced the Accused in part because appropriate remedies (such as temporary stays) have been granted along the way.[4] Other remedies have included witness specific measures and placing obligations on the Prosecution to keep the Chamber informed about the progress of its disclosure.[5] The Chamber found that the Accused was essentially asking to start over and call all the witnesses again even though he has never been able to succeed in a motion to have a specific witness recalled because of disclosure violations.[6] There motion was therefore denied.

SCSL

Independent Counsel v. Bangura, Kargbo, Kanu & Kamara[7]

Decision on Prosecutor’s Additional Statement of Anticipated Trial Issues and Request for Subpoena in Relation to the Principal Defender

Background

The Prosecution filed a motion requesting to subpoena the Principal Defender to give testimony about conversations she had with the defendants.[8] The Defense objected on the grounds that the conversations were privileged.[9] The Single Judge denied the motion.

Reasoning

The Single Judge reasoned that the Principal Defender’s role is comparable to the “traditional lawyer-client relationship”.[10] Therefore the rules on privilege apply.[11] While not in the rules, there are many circumstances where the privilege attaches.[12] This includes situations where the nature of the relationship requires the ability to communicate openly and honestly.[13] A person in custody, as the defendants, has the reasonable expectation of privacy when talking with the Principal Defender.[14] On this basis the Single Judge ruled that the communications were privileged and a subpoena would not issue.[15]

ICC

Prosecutor v. Gbagbo[16]

Order on the re-filing of the “Oberservations de la Défense sur les rapports médicaux prepares par les experts nommés par la Chambre et sur la procédure à suivre”

Background

The defence was ordered to and filed observations on the medical reports as to the accused’s health.[17] The Prosecutor objected because those observations exceeded the allowed page limit.[18] The defence responded that the complexity of the issue dictated that they go more in-depth into the subject and requested a retroactive extension of the word limit.[19] The Single Judge ordered the defence to re-file.

Reasoning

The Single Judge noted that the Appeals Chamber has already held that it is not appropriate to issue retroactive extensions of the word/page limits.[20] Therefore she ordered the defence to re-file in compliance with the word limits set in an earlier decision.[21]

Prosecutor v. Bemba[22]

Decision on “Defence Motion Regarding Prosecution Disclosure”

Background

The Defence filed a motion requesting that the Prosecution conduct a review of all the information in its possession to make sure that it timely discloses necessary evidence; that the Prosecution certify that it has conducted the review and; that the Prosecution be prevented from using any non-disclosed material during the questioning of defence witnesses.[23] The Chamber denied the motion.

Reasoning

The Chamber decided that “additional and late disclosure may be necessary for the prosecution to fulfil its ongoing disclosure obligations pursuant to Article 67(2) and Rule 77. In exceptional cases, a document which was not previously subject to disclosure under those provisions may become disclosable on the basis of the testimony of a witness. In such a situation, the need for disclosure of the document may not have been foreseen before the commencement of the relevant testimony.”[24] While this is true, the Chamber reiterated that it disfavors delayed disclosure, but that it may be necessary at times.[25] The review requested by the defence was therefore found to be unnecessary.[26]


[1] IT-95-5/18-T, 3 September 2012

[2] Ibid. at ¶¶ 1-2.

[3] Ibid. at ¶¶ 3-4.

[4] Ibid. at ¶¶ 14, 17.

[5] Ibid. at ¶¶ 15-16.

[6] Ibid at ¶ 18.

[7] SCSL-11-02-T, 3 September 2012.

[8] Ibid. at p. 1.

[9] Ibid.

[10] Ibid. at ¶ 10.

[11] Ibid. at ¶ 11.

[12] Ibid. at ¶¶ 15-20.

[13] Ibid at ¶ 21.

[14] Ibid. at ¶ 22.

[15] Ibid. at ¶ 23.

[16] ICC-01/11-01/11, 3 September 2012.

[17] Ibid. at ¶¶ 2-4.

[18] Ibid. at ¶ 5.

[19] Ibid. at ¶ 6.

[20] Ibid. at ¶ 10.

[21] Ibid. at ¶ 11.

[22] ICC-01/05-01/08, 3 September 2012.

[23] Ibid. at ¶ 3.

[24] Ibid. at ¶ 11.

[25] Ibid. at ¶ 12.

[26] Ibid. at ¶ 13.

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