Category Archives: Weekly Review

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

Review of International Tribunal Decisions for the week of December 10, 2012

Last week saw very important decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). In particular, the Appeals Chamber of the ICC issued a decision where it clarified the meaning of an acceptance of the Court’s jurisdiction by a non-State party.

International Criminal LawICTY

ICTY

Prosecutor v. Karadžić[1]

Decision on Appeal From Denial of Judgement of Acquittal for Hostage-Taking

Background

The indictment against the Accused included charges of kidnapping UN personnel who were not taking part in the hostilities during the war in Bosnia in 1995.[2] At the conclusion of the Prosecution’s case, the Accused filed a motion for acquittal inter alia on this count, which the Trial Chamber denied on the grounds that even if they had participated in the fighting the minute they were placed hors de combat they benefited from the prohibition on hostage taking.[3] The Accused appealed arguing that the Trial Chamber erred in affording the UN personnel protection under the Geneva Conventions vis-à-vis this crime.[4] The Appeals Chamber rejected that appeal.

Reasoning

The Appeals Chamber first considered if the UN personnel were covered by the Geneva protections even if they were combatants.[5] The Chamber considered that they were, regardless of whether or not they were combatants as anyone hors de combat is protected against hostage taking.[6] Therefore it was not erroneous for the Trial Chamber to deny his motion for acquittal.

Prosecutor v. Tolimir

Judgment

The Trial Chamber by majority, found the Accused guilty of Genocide, Conspiracy to Commit Genocide, Extermination as a Crime Against Humanity, Murder as a violation of the laws and customs of war, Persecutions as a Crime Against Humanity and Inhumane Acts through forcible transfer as a Crime Against Humanity. The Accused was sentenced to life imprisonment.

ICCICC

Prosecutor v. Gaddafi & Al-Senussi[7]

Decision requesting further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi

The Chamber recalled that admissibility challenges are based on two factors: if at the time of the proceeding on admissibility there is a State investigation or proceeding and if so, if the State in question is unwilling or unable to genuinely carry out that investigation or proceeding.[8] The party raising the admissibility challenge bears the burden of proof.[9] To this end the Chamber observed that it would be useful if everyone involved were aware of what kinds of evidence would be necessary to prove the existence of such proceedings.[10] The Chamber also formulated questions for Libya regarding specific investigative acts that have been taken since the filing of the admissibility challenge.[11] The Chamber also questioned the value and sufficiency of evidence offered by Libya to substantiate its claim that it is investigating Mr. Gaddafi.[12]

Prosecutor v. Gaddafi & Al-Senussi[13]

Order in relation to the request for arrest and surrender of Abdullah Al-Senussi

The Pre-Trial Chamber issued an order to Libya to hand over the accused Al-Senussi after his transfer to Libya.

Prosecutor v. Gbagbo[14]

Judgment on the appeal of Mr Laurent Gbagbo against the decision of Pre-Trial Chamber I on jurisdiction and stay of the proceedings

The Accused filed a challenge to the jurisdiction of the ICC on the grounds that the acceptance of a non-State party of the jurisidiction of the court could only be retroactive and was limited to specific crimes. The Appeals Chamber disagreed and held, importantly giving shape to an otherwise vague term in the Rome Statute that,

The use of the words “crimes referred to in article 5” [in the rules of procedure and evidence] indicates that the term. “crime in question” in article 12 (3) of the Statute refers to the categories of crimes in article 5 of the Statute, i.e. genocide, crimes against humanity, war crimes and the crime of aggression, and not to specific events in the past, in the course of which such crimes were committed.[15]

This holding of the Appeals Chamber also puts to rest the argument made by some that non-States parties (such as a potential Palestine) can refer only the crimes of their opponents to the Court.


[1] IT-95-5/18-AR73.9, 11 December 2012.

[2] Ibid. at ¶¶ 2-3.

[3] Ibid. at ¶ 4.

[4] Ibid. at ¶ 9.

[5] Ibid. at ¶ 15.

[6] Ibid. at ¶ 16-18, 21.

[7] ICC-01/11-01/11, 7 December 2012.

[8] Ibid. at ¶ 6.

[9] Ibid. at ¶ 8.

[10] Ibid at ¶ 10.

[11] Ibid. at ¶¶ 14-15.

[12] Ibid. at ¶¶ 16-18, 20, 22, 25, 28, 31, 32, 41, 48.

[13] ICC-01/11-01/11, 10 December 2012.

[14] ICC-02/11-01/11 OA 2, 12 Decmeber 2012.

[15] Ibid. at ¶ 80.

Leave a comment

Filed under Weekly Review

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.

Leave a comment

Filed under Weekly Review

Review of International Tribunal Decisions for the week of November 26, 2012 (and some from the week before)

This week’s review has cases from the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC). It has been an interesting and important week in International Criminal Law. The ICTY issued decisions on the exclusion of evidence, an appeal in a contempt case not to mention the acquittal of all accused in the Haradinaj case. The ICC issued decisions deal with the recategorization of facts, common legal representation of victims and several issues in the Gaddafi case.

International Criminal LawICTY

ICTY

Prosecutor v. Karadžić[1]

Decision On Prosecution’s Motion to Exclude the Evidence of Witness Angelina Pikulić

Background

The Prosecution asked that the majority of the evidence of witness Pikulić be excluded as it did not address the charges and/or was mostly related to crimes committed against Bosnian Serbs (so-call tu quoque evidence).[2] The Chamber denied the motion.

Reasoning

The Chamber agreed with the Prosecution that much of the information contained in the witness’ statement was of a tu quoque nature or otherwise not relevant and would not be tendered into evidence.[3] However, the Chamber ordered the Accused to lead the witness during questioning on the other subjects contained in her statement if he should still wish to call her to testify.[4]

Prosecutor v. Šešelj[5]

Judgement (Appeal)

The Appeals Chamber of the ICTY confirmed the contempt conviction (his third such charge) for publishing material in a book that identified confidential witness identities.

ICCICC

Prosecutor v. Bemba[6]

Decision requesting the defence to provide further information on the procedural impact of the Chamber’s notification pursuant to Regulation 55(2) of the Regulations of the Court

Background

The Chamber had previously notified the participants in the case of the possibility that it would consider an alternate form of knowledge contained in the article of the Statute under which the accused was charged.[7] In other words, the Chamber announced that it was going to consider the facts as establishing a different mens rea than that included in the document containing the charges. Both the Prosecution and the participating victims filed their observations.[8] The Accused filed his observations noting asserting that any such change would require allowing him to inter alia recall prosecution witnesses, additional discovery and a “meaningful time to prepare.”[9] The Chamber could not reach a conclusion on these requests.

Reasoning

“In the present circumstances, in order to give the defence the necessary time and facilities for its preparations and to provide it with the opportunity to question previous witnesses or present new evidence, if required, pursuant to Regulation 55(2) and (3) of the Regulations, the Chamber needs to be provided with more concrete information and relevant justifications, in particular in relation to (i) which prosecution witnesses the defence would intend to recall; and (ii) the envisaged time needed for further defence investigations and preparations.”[10] The Chamber therefore ordered the Accused to file his reasons so that the Chamber could read a substantive conclusion on his requests.[11]

Prosecutor v. Ruto & Sang[12]

Decision appointing a common legal representative

The Chamber considered the applications of two individuals recommended by the Registry to take on the role of Common Legal Representative for Victims, one of which was willing to relocate to Kenya during the trial and the other that was not.[13] The Chamber appointed the candidate who was willing to relocate to Kenya as, according to the Chamber, presence in Kenya would be fundamental to the role of the common legal representative.[14] The Chamber also set out that when the OPCV appears on behalf of the common legal representative during court hearings, the OPCV member need not fulfill the full requirements to be “counsel” before the Court but need only fulfill the requirement to be an assistant to counsel.[15]

Prosecutor v. Gaddafi & Al-Senussi[16]

Decision on the “Submissions of the Libyan Government with respect to the matters raised in a private session during the hearing on 9-10 October 2012”

The vast majority of this decision is redacted making any substantive summary or comment difficult. A major issue that remains clear is that Libya challenged the continued representation of the Accused by the OPCD during the admissibility proceedings. In this regard the Chamber noted,

the Chamber considers that the representation of a suspect by OPCD in admissibility proceedings is intrinsically problematic as it appears to be extremely difficult to dispel confusions in the public perception in relation to the role of OPCD as opposed to the role of the Court. Indeed, under regulation 11 of the Regulations of the Court, the OPCD has a dual status by virtue of which it functions as a “wholly independent office” in its “substantive work”, while falling at the same time within the remit of the Registry of the Court for administrative purposes. In these circumstances, the positions expressed by the OPCD can be easily mistaken for positions of the entire Court and thus have the potential of compromising the perception of the institution’s impartiality.[17]

However, for reasons redacted, the Chamber did not discharge the OPCD from representing the Accused.


[1] IT-05-5/18-T, 27 November 2012.

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶ 5.

[4] Ibid. at ¶ 7.

[5] IT-03-67-R77.3-A, 28 November 2012.

[6] ICC-01/05-01/08, 19 November 2012.

[7] Ibid. at ¶ 1.

[8] Ibid. at ¶¶ 2/3.

[9] Ibid. at ¶ 5.

[10] Ibid. at ¶ 8.

[11] Ibid. at ¶ 9.

[12] ICC-01/09-01/11, 23 November 2012.

[13] Ibid. at ¶¶ 1, 4.

[14] Ibid. at ¶¶ 5-7.

[15] Ibid. at ¶ 8.

[16] ICC-01/11-01/11, 21 November 2012.

[17] Ibid. at ¶35.

Leave a comment

Filed under Weekly Review

Review of International Tribunal Decisions for the week of November 19, 2012

This week saw decisions from the International Court of Justice (ICJ), the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR). They cover issues of sovereignty over islands, admission of evidence, amicus curiae submissions and the right to a fair trial.

Public International Law

ICJ

Territorial and Maritime Dispute (Nicaragua v. Colombia)[1]

Judgment

The ICJ decided by unanimous vote to reject Nicaragua’s claim to sovereignty over several disputed islands in the Caribbean Sea and instead favoured Colombia’s claim. The issue was decided not by what territories the countries possessed at the time of independence, but based on Colombia’s continual action and presentation that it was the sovereign over the disputed islands, especially considering the lack of any such action on the part of Nicaragua.

International Criminal Law

ICTY

Prosecutor v. Stanišić & Simatović[2]

Decision on Prosecution Motion for Reconsideration of the Decision Denying Admission of D456

Background

The Chamber had denied the admission of a defence exhibit on the grounds that there were problems with the original and the translation.[3] The Prosecution asked for this decision to be reconsidered as those faults had been corrected.[4] The Chamber granted the request.

Reasoning

The Chamber considered that the correction of the previous deficiencies constituted a new fact that could permit reconsideration.[5] The document in question had been examined by several defense witnesses and discussed at length during the proceedings.[6]The Chamber noted that there was no duty to explicitly indicate how an exhibit tendered through a witness is to be used in the party’s case as the witness testimony would give it context.[7] The document in question was also not “new evidence” as it had been discussed at trial.[8] For these reasons, the Chamber found that the accused would not be prejudiced by its admission and reconsidered its prior decision denying admission of the exhibit in question.[9]

ICC

Prosecutor v. Katanga & Chui[10]

Décision relative à la mise en œuvre de la norme 55 du Règlement de la Cour et prononçant la disjonction des charges portées contre les accuses

The Trial Chamber decided to sever the charges against the two accused and will issue a decision on the guilty or innocence of Mr. Chui pursuant to article 74 of the Rome Statute on 18 December 2012.

The Chamber that the mode of criminal responsibility charged against Mr. Katanga may be subject to modification also issued a notification. All participants were asked to submit their observations on this possibility by 15 January 2013.

Prosecutor v. Ruto & Sang[11]

Decision granting the application of Kituo Cha Sheria for leave to submit observations

Background

Kituo Cha Sheria (Center for legal empowerment) submitted an application to provide observations on the methods of victim participation in this case.[12] The Chamber granted the request.

Reasoning

“The Chamber notes that Kituo is a non-governmental human rights organization operating in Kenya. “Shortly after the 2007/2008 post election violence (“PEV”), Kituo designed a project aimed at facilitating effective community participation in the Truth Justice and Reconciliation Process in Kenya, as well as victims’ participation in the ICC process. As part of the aforementioned project, Kituo is currently undertaking outreach to 2007/2008 PEV victims with the aim of promoting victim participation in the ICC process.” ^° Kituo is in contact with victims who appear to be within the scope of the Muthaura and Kenyatta case and it is “conducting awareness sessions on victims’ participation in ICC proceedings”. Given its specialised knowledge and experience, the Chamber considers that Kituo is an appropriate organization to submit observations as amicus curiae in relation to the implementation of the system of victims’ representation and participation.”[13]

International Human Rights Law

ECtHR

Harabin v. Slovakia[14]

Chamber Judgment

Background

The case concerned the imposition of a disciplinary sanction on the President of the Slovak Supreme Court for having prevented an audit at that court, and in particular his complaint that several of the judges who decided his case were biased. The Court found a violation of the right to a fair trial.

Reasoning

Under Slovak law, disciplinary proceedings against the president of the Supreme Court could only be decided by a majority of the plenary of the Constitutional Court. Faced with a situation where the parties challenged seven of its thirteen judges for bias, the Constitutional Court had had to balance between two interests, namely the need to respond to the requests for exclusion of those judges and the need to maintain its capacity to determine the case.

The Court [the European Court of Human Rights] considered that in that balancing exercise the Slovak Constitutional Court had failed to take an appropriate stance under Article 6. Firstly, two of the judges challenged by Mr Harabin and two of the judges challenged by the Minister had been excluded in earlier set of proceedings involving Mr Harabin. Given that doubts were therefore likely to arise as to their impartiality, the Constitutional Court should have – but had not – given convincing arguments as to why the challenges could not be accepted in the disciplinary proceedings. Secondly, the Constitutional Court had not taken a stand as to whether any of the other reasons evoked by the parties would have justified the respective judges’ exclusion.

Only after answering the parties’ arguments and establishing whether or not the challenges to the judges were justified could the question have arisen as to whether there was any proclaimed need and justification for not excluding any of the judges. The need to maintain the Constitutional Court’s capacity to determine the case could therefore not justify the participation of the judges in respect of whose alleged lack of impartiality the Constitutional Court had failed to convincingly dissipate doubts.


[1] Judgment of 19 November 2012. All in formation was taken from the court’s press release.

[2] IT-03-69-T, 21 November 2012.

[3] Ibid. at ¶ 1.

[4] Ibid. at ¶ 2.

[5] Ibid. at ¶ 6.

[6] Ibid. at ¶ 7.

[7] Ibid at ¶ 9.

[8] Ibid. at ¶ 10.

[9] Ibid. at ¶ 11.

[10] ICC-01/04-01/07, 21 November 2012. All information in this summary was taken from the English press release.

[11] ICC-01/09-01/11, 15 November 2012.

[12] Ibid. at ¶ 3.

[13] Ibid. at ¶ 8.

[14] Application no. 58688/11, 20 November 2012. All informaiton was taken from the press release.

Leave a comment

Filed under Weekly Review

Review of International Tribunal Decisions for the week of November 12, 2012

This week’s review has decisions from the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL) and the European Court of Human Rights (ECtHR). It has been a big week for the ICTY with appeals judgments in the Gotovina case and a contempt case. The STL has addressed the nature of interlocutory appeals and the ECtHR addressed the effect of amnesties on subsequent prosecutions for international crimes.

International Criminal Law

ICTY

Prosecutor v. Karadžić[1]

Decision on Motion for Subpoena to Interview Edin Garaplija

Background

The Accused requested an order for a defense interview of Edin Garaplija, a former operative of the ministry of the interior in Bosnia, after he refused the interview on the grounds that he could not remember the events from the war due to trauma.[2] The Accused believes the witness has information that is necessary for his defense.[3] The Chamber denied the motion.

Reasoning

The Chamber reiterated that a subpoena and interview or not necessary where the Accused is already aware of what the witness’ testimony will be.[4] In this case, the Accused is in possession of a video recording of a prior interview given by the witness and so there is no need to order a new interview.[5] In addition, the Chamber noted that a defense interview is not a proper mechanism to try and refresh a witness’ memory.[6]

Prosecutor v. Gotovina & Markač[7]

Judgement (Appeal)

The Appeals Chamber overturned the conviction of Generals Gotovina and Markač for crimes committed during the 1995 Operation Storm in the Krajina region of Croatia. The Chamber found that since the shelling incidents were not in and of themselves criminal, there was no Joint Criminal Enterprise and so the accused were not guilty. A more detailed discussion of this will decision will be posted at a later date.

STL

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

Decision on Appeal Against Pre-Trial Judge’s Decision on Motion by Counsel for Mr Badreddine Alleging the Absence of Authority of the Prosecutor

Background

Counsel for Mr. Badreddine filed an appeal against the Pre-Trial Judge’s dismissed a challenge to the validity of the indictment.[9] The substance of the appeal dealt with the length of the previous Prosecutor’s term.[10] The Appeals Chamber dismissed the appeal as unfounded and without merit.[11] The chamber also addressed the standard of certification.

Reasoning

The Appeals Chamber held that the case-law of the ad hoc tribunals on certification are not relevant before the STL as the Rule governing interlocutory appeals is different.[12] Certification for appeal at the STL is not discretionary once the two cumulative requirements (the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial and an immediate resolution may materially advance the proceedings).[13] The Chamber also instructed the lower chambers to “ascertain the existence of the precise issue” that needs to be resolved on appeal.[14]

International Human Rights Law

ECtHR

Marguš v. Croatia[15]

Chamber Judgment

Background

The case concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991. He complained in particular that the criminal offences of which he was convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act.

Reasoning

The Court held in particular: that granting amnesty in respect of crimes against humanity, war crimes and genocide was increasingly considered to be prohibited by international law; and, that the application of the General Amnesty Act to the crimes committed by Mr Marguš constituted “a fundamental defect in the proceedings” for the purpose of Article 4 of Protocol No. 7, which justified a reopening of the proceedings.


[1] IT-95-5/18-T, 15 November 2012

[2] Ibid. at ¶ 1.

[3] Ibid. at ¶¶ 2-3.

[4] Ibid. at ¶ 11.

[5] Ibid. at ¶¶ 11-12.

[6] Ibid. at ¶ 11.

[7] IT-06-90-A, 16 November 2012.

[8] STL-11-01/PT/AC/AR126.2, 13 November 2012.

[9] Ibid. at ¶ 1.

[10] Ibid. at ¶ 2.

[11] Ibid. at ¶ 3.

[12] Ibid. at ¶ 12.

[13] Ibid. at ¶¶ 12-13.

[14] Ibid. at ¶ 13.

[15] Application no.4455/10, 13 November 2012. All text comes from the press release.

Leave a comment

Filed under Weekly Review

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.

Leave a comment

Filed under Weekly Review