Review of International Tribunal Decisions for the Beginning of 2013

After the start of the New Year we are back with a review of decisions from the different international tribunals. This week 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 LawICTY

ICTY

Prosecutor v. Popović et. al.[1]

Public Redacted Version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero

Background

The accused Milan Gvero was convicted at trial of international crimes and sentenced to five years in prison, he was granted early release in 2010, after which he suffered a stroke.[2] Counsel filed a motion to discontinue the appellate proceedings arguing that because of his medical condition, Mr. Gvero could no longer meaningfully participate in the proceedings.[3] Medical reports were filed and examinations ordered and conducted.[4] The Appeals Chamber denied the motion.

Reasoning

The Chamber noted that an accused’s ability to participate on appeal was based on his “mental capacity to understand [the essential of the proceeding], and the mental and/or physical capacity to communicate, and thus consult, with his counsel.”[5] The Chamber weighed conflicting medical reports, but concluded that Mr. Gvero “has sufficiently recovered from his stroke to enable him to participate” and so the proceedings could proceed.[6]

ICCicc

Prosecutor v. Muthaura & Kenyatta[7]

Order Requesting Observations in Relation to the “Defence Application for Change of Place Where the Court Shall Sit for Trial”

The two defense teams filed applications requesting the Trial Chamber to conduct the trial either in the Republic of Kenya or in the Republic of Tanzania at the site of the ICTR.[8] These requests were rejected on procedural grounds that under Rule 100, the application needs to be sent to the Presidency.[9] The defense resubmitted its application to the Presidency, which in turn issued a decision requiring the Chamber to “establish” the views of the parties before making a recommendation on moving the trial.[10] In accordance with this order, and following Article 3 and Rule 100, the Chamber requested the Prosecutor, the defense and the legal representatives of the victims to make their views known on moving the trial to Kenya or Tanzania.[11]

Prosecutor v. Katanga

Decision on the Request for Suspensive Effect of the Appeal Against Trial Chamber II’s Decision on the Implementation of Regulation 55 of the Regulations of the Court

Background

The trial against Mr. Katanga was severed from that against Mr. Chui and also informed the parties that it would consider alternate forms of liability for the accused.[12] In December 2012, Mr. Katanga was granted leave to appeal the decision and rejected a request to extend the time limit to file his views on the consequences of the impugned decision until after judgment by the Appeals Chamber.[13] He renewed this request before the Appeals Chamber as part of the interlocutory appeal.[14] The Prosecution did not oppose the motion.[15] The Appeals Chamber ordered the stay.

Reasoning

The Appeals Chamber held, “that, in this appeal, which is directed against a decision that was rendered at the final stage of the trial proceedings, the need to preserve the integrity of the proceedings overrides any other consideration. In this regard, if the trial proceedings continued based on the Impugned Decision, and that decision were eventually reversed on appeal, any adverse effects on the overall faimess of the proceedings and the rights ofthe accused might be difficult to correct. Similarly, even if the Appeals Chamber were to confirm the Impugned Decision, the Appeals Chamber’s judgment may have a significant impact on the further conduct of the trial proceedings. Therefore, the Appeals Chamber finds that the Trial Chamber should not proceed with the trial on the basis of the Impugned Decision and decides that the appeal shall have suspensive effect.”[16]

Prosecutor v. Gaddafi & Al-Senussi[17]

Decision on the Defence for Abdullah Al-Senussi’s “Urgent Application pursuant to Regulation 35”

The Pre-Trial Chamber ordered Libya to file its observations on the Accused Al-Senussi’s request that they transfer him to the ICC on an expedited basis based on the defense indication that Libya intended to try him before a military court before the end of January 2013.[18]

International Human Rights LawECtHR

ECtHR

Agnelet v. France & Legillon v. France[19]

Chamber Judgment

Background

In both cases the applicants complained of a lack of reasoning in the assize court judgments by which they were convicted and sentenced to imprisonment.

Reasoning

The Court reiterated the conclusions it reached in the Taxquet v. Belgium case3, and in particular the fact that the absence of a reasoned verdict by a lay jury does not in itself constitute a breach of the accused’s right to a fair trial. Having examined both the bill of indictment and the questions put to the jury in each case, it found that Mr Legillon had had sufficient guarantees to enable him to understand the verdict by which he was convicted, but that Mr Agnelet had not.

Eweida and Others v. the United Kingdom[20]

Chamber Judgment

All four applicants are practising Christians. Ms Eweida, a British Airways employee, and Ms Chaplin, a geriatrics nurse, complained that their employers placed restrictions on their visibly wearing Christian crosses around their necks while at work. Ms Ladele, a Registrar of Births, Deaths and Marriages, and Mr McFarlane, a Relate counsellor complained about their dismissal for refusing to carry out certain of their duties which they considered would condone homosexuality.

The Court did not consider that the lack of explicit protection in UK law to regulate the wearing of religious clothing and symbols in the workplace in itself meant that the right to manifest religion was breached, since the issues could be and were considered by the domestic courts in the context of discrimination claims brought by the applicants.

In Ms Eweida’s case, the Court held that on one side of the scales was Ms Eweida’s desire to manifest her religious belief. On the other side of the scales was the employer’s wish to project a certain corporate image. While this aim was undoubtedly legitimate, the domestic courts accorded it too much weight.

As regards Ms Chaplin, the importance for her to be allowed to bear witness to her Christian faith by wearing her cross visibly at work weighed heavily in the balance. However, the reason for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently more important than that which applied in respect of Ms Eweida and the hospital managers were well placed to make decisions about clinical safety.

In the cases of Ms Ladele and Mr McFarlane, it could not be said that national courts had failed to strike a fair balance when they upheld the employers’ decisions to bring disciplinary proceedings. In each case the employer was pursuing a policy of non- discrimination against service-users, and the right not to be discriminated against on grounds of sexual orientation was also protected under the Convention.

Sükran Aydin and Others v. Turkey[21]

Chamber Judgment

The case concerned the applicants’ complaint about a law, amended in 2010, which prohibited the use of any language other than Turkish during election campaigns. The Court held in particular that, while States had discretion to determine their linguistic policies and were entitled to regulate the use of languages during election campaigns, a blanket ban on the use of unofficial languages coupled with criminal sanctions were not compatible with freedom of expression.


[1] IT-05-88-A, 16 January 2013.

[2] Ibid. at ¶¶ 2-3.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶¶ 5-7.

[5] Ibid. at ¶ 21.

[6] Ibid. at ¶ 29.

[7] ICC-01/09-02/11, 17 January 2013.

[8] Ibid. at ¶ 2.

[9] Ibid. at ¶ 3.

[10] Ibid. at ¶¶ 4-5.

[11] Ibid. at ¶ 6.

[12] Ibid. at ¶ 1.

[13] Ibid. at ¶ 2.

[14] Ibid. at ¶ 3.

[15] Ibid. at ¶ 4.

[16] Ibid. at ¶ 9.

[17] ICC-01/11-01/11, 23 January 2013.

[18] Ibid. at ¶¶ 10-12

[19] Application numbers 61198/08 & 53406/10, 10 January 2013. All text is taken from the press release.

[20] Application numbers 48420/10, 59842/10, 51671/10 and 36516/10, 15 January 2013. All text is taken from the press release.

[21] Application no. 49197/06, 22 January 2013. All text is taken from the press release.

Leave a comment

Filed under Weekly Review

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s