Review of International Tribunal Decisions for the week of November 5, 2012

This 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).

International Criminal Law

ICTY

Prosecutor v. Hadžić[1]

Decision on Prosecution Motion to Substitute Expert Report of Expert Witness (Reynaud Theunens)

Background

The Prosecution filed a motion requesting permission to substitute an expert’s report with a new updated version with streamlined evidence.[2] The Accused objected.[3] The Chamber denied the motion.

Reasoning

The Chamber found that a previous decision by the Pre-Trial Judge had denied a request for an extension of time to tender the new expert report and that it would be inappropriate to modify that decision.[4] The Chamber further ordered that the Prosecution tender all documents to be introduced to the Chamber and the Accused.[5]

Prosecutor v. Karadžić[6]

Decision on Interview of Defence Witnesses by the Prosecution

Background

The Accused was permitted to contact prosecution witnesses through the Victim and Witness Section during the Prosecution case.[7] The Prosecution then sought permission to directly contact defense witnesses without going through the VWS.[8] The Chamber granted this authorization.

Reasoning

The Accused was required to contact prosecution witnesses through the VWS for various reasons, including the hesitancy of the Prosecution to give the Accused the witnesses’ personal contact information and the logistical problems for the Accused.[9] The Chamber noted that the Prosecution does not have the same logistical problems as the defense.[10] Given the Appeals Chamber jurisprudence, any party is allowed to contact witnesses and interview those that agree.[11] The hypothetical discouraging effect of prosecution contact is not enough to prevent the Prosecution from contacting them.[12]

ICC

Prosecutor v. Muthaura & Kenyatta[13]

Decision on the defence request to change the place of the proceedings

Background

The Accused asked that the trial be conducted in Kenya for “reasons of judicial economy and to ensure that the judicial process takes place within the territory affected.”[14] The Chamber rejected the request.

Reasoning

The Chamber noted that the Rome Statute allows for trials to be conducted at other locations outside of The Hague.[15] However, the process for requesting a change of venue is to file a request with the Presidency, and not the Chamber, and so the request was rejected.[16]

International Human Rights Law

ECtHR

Redfearn v. the United Kingdom[17]

Chamber Judgment

Background

Applicant worked as a driver, essentially transporting children and adults with physical and/or mental disabilities within the Bradford area, for a private company, Serco Limited, from 5 December 2003 to his dismissal on 30 June 2004. The majority of his passengers were Asian in origin. There had been no complaints about his work or his conduct at work and his supervisor, who was of Asian origin, had nominated him for the award of “first-class employee”.

Applicant was also a member of the British National Party (BNP) a far-right political party which, at the time, restricted membership to white nationals. Following revelations in a local newspaper about Applicant’s political affiliation, a number of trade unions and employees complained to Serco about Applicant’s continued employment. When elected as local councillor for the BNP in June 2004, he was summarily dismissed. The European Court found that this dismissal was a violation of Applicant’s right to the freedom of association.

Reasoning

The Court considered that it was important to bear in mind the consequences of dismissing Applicant. Moreover, the Court was struck by the fact that he had been summarily dismissed following complaints about problems which had never actually occurred, without any apparent consideration being given to the possibility of transferring him to a non-customer facing role. In fact, prior to his political affiliation becoming public knowledge, neither service users nor colleagues had complained about Applicant, who was considered a “first-class employee”.

However, as Applicant was employed by a private company, it fell to the Court to consider whether or not the domestic legislation had offered adequate protection of his rights under Article 11 and not whether his dismissal had been reasonable or proportionate.

The Court found that it was the United Kingdom’s responsibility to take reasonable and appropriate measures to protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation, either through the creation of a further exception to the one-year qualifying period under the 1996 Act or through a free- standing claim for unlawful discrimination on grounds of political opinion or affiliation. A legal system which allowed dismissal from employment solely on account of an employee’s membership of a political party carried with it the potential for abuse and was therefore deficient. Accordingly, the Court concluded that there had been a violation of Article 11 in Applicant’s case.

Ekoglasnost v. Bulgaria[18]

Chamber Judgment

Background

The case concerned the inability for Ekoglasnost, a Bulgarian political party, to submit two documents required by an electoral law, enacted shortly before parliamentary elections in June 2005, in order to present its candidates. The Court found a violation of the right to free elections.

Reasoning

The Court found that the one-year period advocated by the Venice Commission for the adoption of substantial amendments to electoral law had not, in this case, been observed. The adoption of new conditions for participation in an election, just before the date of the poll, may have the effect of disqualifying parties that enjoy significant popular support and thus benefit political formations already in power.

Peta Deutschland v. Germany[19]

Chamber Judgment

Background

The case concerned a civil injunction which prevented the animal rights organisation PETA from publishing a poster campaign featuring photos of concentration camp inmates along with pictures of animals kept in mass stocks. The Court found that this was not a violation of the freedom of expressions.

Reasoning

The Court held in particular that a reference to the Holocaust had to be seen in the specific context of the German past. In that light, the Court accepted that the German courts had given relevant and sufficient reasons for granting the civil injunction.


[1] IT-04-75-T, 7 November 2012.

[2] Ibid. at ¶ 2.

[3] Ibid. at ¶ 3.

[4] Ibid. at ¶ 4.

[5] Ibid. at ¶ 5.

[6] IT-95-5/18-T, 8 November 2012.

[7] Ibid. at ¶¶ 1-4.

[8] Ibid. at ¶ 5.

[9] Ibid. at ¶ 11.

[10] Ibid. at ¶ 12.

[11] Ibid. at ¶ 13.

[12] Ibid. at ¶ 14.

[13] ICC-01/09-02/11, 7 November 2012.

[14] Ibid. at ¶ 2.

[15] Ibid. at ¶ 3.

[16] Ibid. at ¶¶ 4-5.

[17] Application No. 47335/06, 6 November 2012. All text taken from the press release which originally set the date as 6 December 2012.

[18] Application No. 30386/05, 6 November 2012. All text taken from the press release.

[19]

Application No. 43481/09, 8 November 2012. All text is taken from the press release.

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