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

This week’s review has cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). Subjects include orders of safe conduct, certification to appeal, redactions and a lawyer’s duty to report a client’s illegal conduct.

International Criminal LawICTY

ICTY

Prosecutor v. Karadžić[1]

Order for Safe Conduct

The Trial Chamber issued orders of safe conduct for two defense witnesses who are believed to have outstanding arrest warrants in Bosnia.[2] The Chamber noted, “orders for safe conduct are a common device in the practice of the Tribunal for granting witnesses limited immunity under specific circumstances.”[3] In this case the Chamber was convinced that such orders would be in the interests of justice.[4]

Prosecutor v. Stanišić & Simatović[5]

Decision on Stanišić Defence Request for Certification to Appeal Three Trial Chamber Decisions on Prosecution Motions for Admission of Rebuttal Evidence

The Trial Chamber denied a defense request for certification to appeal in part because “the Defence incorrectly premises one argument for certification to appeal on the alleged judicial error concerning the standard for admitting rebuttal evidence. The appropriate forum for arguments on judicial errors is the appeal itself, not the request for certification to appeal.”[6]

SCSLscsl

Prosecutor v. Taylor[7]

Decision on Urgent Motion for Reconsideration or Review of “Scheduling Order”

The Appeals Chamber, by majority, decided to postpone the oral hearing on the Taylor appeal until 22 January 2012 in part because of a pending Rule 115 motion on additional evidence. Justice Fisher dissenting claiming that the hear would only be as to limited issues unrelated to the Rule 115 motion and that there were no legitimate reasons to postpone the hearing.

STLSTL

Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[8]

Decision on Sabra’s Second Preliminary Motion Challenging the Form of the Indictment

The Sabra defense filed a motion challenging to form of the indictment, however, the Pre-Trial Judge reserved his decision on the motion until the Prosecution motion to amend that indictment has been decided.

ICCicc

Prosecutor v. Ruto & Sang[9]

Decision on second prosecution application for authorisation of non-standard redactions

Background

The Prosecution requested authorization to disclose documents with redactions not approved in the Chamber’s previous orders on the matter.[10] The Prosecution defended its request stating that the redacted material was not of use to the Defense and that they were need to protect witnesses.[11] The Chamber denied the motion.

Reasoning

The Chamber stated, “it is not for the prosecution to determine, on the expiry of the deadline, that disclosure to the defence of redacted versions of documents, prior to the final deadline of 9 January 2013, would be “inefficient”. The purpose of the Redaction Protocol is to facilitate disclosure of relevant materials to the defence at the earliest opportunity, even if those documents are disclosed with redactions in place that will be lifted at a later date. The Redaction Protocol should not be interpreted as requiring disclosure of entire documents to the defence only at the expiry of the latest deadline set out for disclosure for certain information contained in those documents.”[12] The Chamber therefore did not address the merits of the motion and directed the defense not to respond.[13]

International Human Rights LawECtHR

ECtHR

Michaud v. France[14]

Chamber Judgment

Background

The applicant, Patrick Michaud, is a member of the Paris Bar and of the Bar Council (Conseil de l’Ordre). Since 1991 the European Union has adopted a series of directives seeking to prevent the financial system being used for the purpose of money laundering; these have been transposed into French law. This has resulted, among other things, in an obligation on lawyers to report possible suspicions in this area in respect of their clients where, in the context of their professional activities, they assist them in preparing or carrying out transactions concerning certain defined operations, take part in financial or property transactions or act as trustees. They are not subject to this obligation where the activity in question is related to court proceedings and, in principle, where they provide legal advice. They must submit their reports, as applicable, to the president of the Bar of the Conseil d’Etat and the Court of Cassation or to the president of the Bar of which they are members, it being for the latter to transmit them to the “national financial intelligence unit” (Tracfin).

On 12 July 2007 the National Bar Council (CNB) took a decision adopting a professional regulation which, in particular, reiterated this obligation and imposed on lawyers a duty to put in place internal procedures in respect of the steps to be taken where a particular operation seemed to call for a “declaration of suspicion”. Failure to comply with this regulation renders lawyers liable to disciplinary sanctions.

By a judgment of 23 July 2010, the Conseil d’État dismissed Mr Michaud’s application [to set aside the regulation] and refused to refer the question to the CJEU for a preliminary ruling. The Court found there to be no violation of the European Convention.

Reasoning

The Court noted that the Court of Justice of the European Union had not had an opportunity to rule on the question concerning fundamental rights currently before the Court: on the one hand, the Conseil d’Etat had refused to submit a request for a preliminary ruling on the issue of whether the obligation to “report suspicions” was compatible with Article 8 of the Convention; equally, that question had never previously been examined by the CJEU, either in a preliminary ruling delivered in the context of another case, or on the occasion of one of the various actions open to the European Union’s member States and institutions.

The Court was therefore obliged to note that, in deciding not to request a preliminary ruling, in spite of the fact that the Court of Justice had not yet examined the question concerning Convention rights that was before it, the Conseil d’Etat had ruled before the relevant international machinery for supervision of fundamental rights – in principle equivalent to that of the Convention – had been able to demonstrate its full potential. In the light of this choice and the importance of what was at stake, it concluded that the presumption of equivalent protection was not applicable. The Court was therefore required to determine whether the interference had been necessary.

The Court concluded that the obligation to report suspicions did not represent a disproportionate interference with lawyers’ professional privilege and that there had been no violation of Article 8 by France.


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

[2] Ibid. at ¶¶ 2, 7.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶ 5.

[5] IT-03-69-T, 6 December 2012.

[6] Ibid. at ¶ 5.

[7] SCSL-03-01-A, 5 December 2012.

[8] STL-11-01/PT/TC, 5 December 2012.

[9] ICC-01/09-01/11, 3 December 2012.

[10] Ibid. at ¶ 3.

[11] Ibid. at ¶ 4.

[12] Ibid. at ¶ 6.

[13] Ibid. at ¶ 8.

[14] Application no.12323/11, 6 December 2012. Text taken from the press release.

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