This week has decision from the International Criminal Tribunal for the Former Yugoslavia (ICTY), Special Tribunal for Lebanon (STL), International Criminal Court (ICC), The European Court of Human Rights (ECtHR). They range from decisions on extension of time, issuance of arrest warrants, adjudicated facts and aliens (yes, that says aliens).
International Criminal Law
ICTY
Prosecutor v. Hadžić[1]
Decision on Prosecution Motion for Extension of Time for Disclosure of Expert Report of Reynaud Theunens
Background
The Prosecution was due to disclose an expert report by 19 July 2012 in accordance with Rule 94 bis.[2] The Prosecution filed a motion requesting an extension because the expert has been unable to finish the report due to professional conflicts.[3] The motion was denied.
Reasoning
The Pre-Trial Judge denied the motion noting that the Prosecution has been aware of its disclosure obligation since 16 December 2011 and so has had more than enough time to make sure that the report is prepared and timely disclosed.[4]
Prosecutor v. Stanišić & Simatović[5]
Decision on Second Stanišić Defence Motion for Judicial Notice of Adjudicated Facts
Background
The Accused requested that the Chamber take notice of four previously adjudicated facts and the Prosecution objected generally due to the advanced stages of the present proceedings.[6] The Chamber granted the motion in part and denied it in part.
Reasoning
The Chamber recalled that a fact must be distinct, concrete and identifiable in order for the Chamber to take judicial notice of it.[7] Several parts of the various proposed facts failed to meet this criteria.[8] The Prosecution did not object to any of the facts on the grounds that they were not relevant, that they were legal findings, that they were based on an agreement of the parties, that they were contested on appeal, that they relate to the mental state of the accused or their conduct.[9] The Prosecution did however object that some of the facts were misleading, and the Chamber partially agreed declining to admit all the remaining facts.[10] In the end, the Chamber took notice of two facts over the Prosecutions general objections.[11]
Prosecutor v. Karadžić[12]
Interim Decision on Prosecution’s Motion for Partial Reconsideration or Clarification of the Chamber’s Decision on the Accused’s Motion to Unseal ICMP Exhibits
Background
The Chamber had previously issued a decision reclassifying certain exhibits dealing with mass graves as public.[13] The Prosecution subsequently filed a motion requesting a temporary stay of the decision because those documents were received pursuant to Rule 70 and the Prosecution needed time to consult with ICMP to determine if they wanted to request the Chamber reconsider its decision.[14] The Prosecution eventually filed a reconsideration motion vis-à-vis some of the reclassified exhibits claiming that its failure to inform the Chamber of the exhibits Rule 70 status which is argued to bind the Chamber.[15] The Accused opposed the motion arguing that the claim of privilege had been waived and disputing the existence of a Rule 70 agreement in the first place.[16] The Chamber did not decide the issue an instead requested that the Prosecution supply more information.[17]
Reasoning
The Chamber considered that the failure of the Prosecution to raise the Rule 70 issue during the previous extensive litigation to cast doubt on the applicability of that Rule.[18] This is so especially considering that the claims of Rule 70 status were based on emails sent after the decision in question was issued.[19] “Accordingly, before deciding on the Motion, and in particular the issue of whether Rule 70 conditions were in place when the Chamber issued its Decision, the Chamber requires more detailed submissions from the Prosecution addressing all of the above questions, as well as further communication it had with the ICMP during the time when the exhibits at issue here were first handed over to the Prosecution, together with any subsequent communication where Rule 70 may have been mentioned. However, instead of holding an evidentiary hearing, as requested by the Accused, the Chamber considers it preferable to receive these submissions and any accompanying communication in writing. The Chamber does not consider it necessary to involve the ICMP at this stage.”[20]
Prosecutor v. Karadžić[21]
Decision on Prosecution Request for Certification to Appeal Judgement of Acquittal Under Rule 98 Bis
Background
On 28 June 2012, the Trial Chamber partially granted the Accused’s request for a Rule 98 bis judgment of acquittal finding that there was insufficient evidence to sustain a conviction on count one of the indictment, genocide.[22] The Prosecution maintains that this is a “judgment” within the meaning of Rule 108 and so will file an appeal without requesting leave to do so.[23] The Prosecution filed its leave to appeal only to preserve its right to appeal the issue later on should that be necessary.[24] The Chamber denied the motion.
Reasoning
The Trial Chamber agreed that the Rule 98 bis decision granting an acquittal can be appealed without leave from the Chamber as it is a judgment of acquittal, not a decision.[25] The Chamber, however, found that the criteria for certification had been met in case the Appeals Chamber should deem it necessary for such a finding to be made before reviewing the decision on appeal.[26]
STL
Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[27]
Decision on Reconsideration of the Trial In Absentia Decision
Background
The Trial Chamber issued a decision to hold a trial in absentia and defense counsel, assigned to the accused, have file a motion for the Chamber to reconsider that decision.[28] The Chamber denied the motion.
Reasoning
The Chamber held as a preliminary point that defense counsel can request a reconsideration even though they have not spoken with their clients because “[c]ounsel and client speak with one voice”.[29] Rule 140 allows the reconsideration of any decision to avoid injustice, therefore the issue can be raised.[30] The Chamber dismissed the motion because the defense failed to raise any new issue, other than general disagreement with the decision, as to why it needed to be reconsidered to avoid an injustice.[31]
Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[32]
Order in Respect of 10 July 2012 Motion by the Defence of Mr. Badreddine
The Defense filed a motion requesting the Pre-Trial Judge to find that the mandate of the previous prosecution ended before he filed submissions on the confirmation of the indictment and so to declare those filing null and void.[33] The Prosecution filed a response and the Defense filed a request for authorization to file a reply.[34] The Pre-Trial Judge granted to request and set a short deadline for the reply.[35]
ICC
Prosecutor v. Gbagbo[36]
Decision on the “Prosecution’s request to redact the name of an investigator from the metadata of documents to be added to its amended List of Evidence”, the “Prosecution’s request pursuant to Regulation 35 for extension of time for disclosure and for variation of time limit to submit a request for redactions” and related issues
Background
The Prosecution seeks permission to redact the name of the investigator who discovered documents relating to the former regime of the Accused in Ivory Coast in the presidential palace and an extension of time to disclose said and other documents.[37] The Single Judge granted the motion.
Reasoning
The Single Judge granted the extension of time for disclosure in part because the confirmation of the charges hearing had been postponed thereby giving the Accused adequate time to process the information even if received after the previously set disclosure deadline.[38] The Single Judge also felt that the redactions to the metadata containing the name of the investigation are justified and so granted that part of the motion.[39]
Prosecutor v. Gbagbo[40]
Decision on the “Requête de la Défense du Président Gbagbo relative à la prorogation du délai accordé par la Chambre pour demander des mesures de protection”
The Accused submitted a request for a prolongation of the time to file for protective measures for certain witnesses (other than redactions).[41] The Single Judge considered that considering the ongoing investigations there was good reason for such a time extension, but considering the upcoming confirmation of charges hearing, only granted part of the requested extension.[42]
Prosecutor v. Mudacumura[43]
Decision on the Prosecutor’s Application under Article 58
Pre-Trial Chamber II issued an arrest warrant for Sylvestre Mudacumura for war crimes.[44] The Chamber declined to issue the arrest warrant for crimes against humanity as it was not sufficiently convinced that the alleged attacks were according to a plan directed at a civilian population as such.[45] This was the second time that the Prosecutor asked for an arrest warrant against Mr. Mudacumura.[46]
International Human Rights Law
ECtHR
Heather Moor & Edgecomb Ltd v. the United Kingdom (No. 2)[47]
Chamber Judgment
Background
The case concerned the system in the United Kingdom for dealing with complaints against companies providing financial advice and, in particular, the applicant company’s complaint about the Financial Ombudsman’s failure to publish its decision upholding a complaint made by a former client about inappropriate pension advice. The case was declared inadmissible.
Reasoning
The applicant company’s complaint that the Financial Ombudsman’s decision had not been made public was dismissed under Article 35 § 3 (b) of the European Convention on Human Rights, the Court finding that there had been no significant disadvantage. This new admissibility criterion, introduced by Protocol No. 14 in June 2010 in view of the Court’s constantly increasing workload, is intended to enable the Court to focus on cases that justify an examination on the merits.
Mouvement raëlien suisse v. Switzerland[48]
Grand Chamber Judgment
Background
The applicant association, established in 1977, is a non-profit association registered in Rennaz (Canton of Vaud, Switzerland) whose aim is to make contact with extraterrestrials. In 2001, the association requested permission from the Neuchâtel police to put up posters featuring the faces of extraterrestrials and a flying saucer, together with its website address and telephone number. The authorities (police, municipal council and the Neuchâtel Land Management Directorate) denied permission to put up the posters on the ground that the organisation engaged in activities that were immoral and contrary to public order. The Movement promoted “geniocracy”, a political model based on intellect and human cloning. In addition, a court of the Canton of Fribourg had found that it “theoretically” advocated paedophilia and incest. It had also been the subject of criminal complaints about sexual practices involving children.
Reasoning
It was not disputed that the refusal issued to the applicant association had a legal basis (Article 19 of the Neuchâtel Administrative Regulations) and that it pursued the legitimate aims of the prevention of crime and the protection of health, morals and the rights of others. Unlike the situation in other cases3 that the Court had examined, the applicant association had not faced a general ban on the disclosure of certain ideas but a ban on the use of regulated and supervised public space. As the Chamber had noted, individuals did not have an unconditional or unlimited right to the extended use of public facilities, especially in the case of advertising or information campaigns.
The Court then observed that, unlike other cases, there was no issue here concerning the efficiency of the judicial review by the Swiss courts. Five different authorities had examined the case, looking not only at the poster but also at the content of the website, and had given detailed reasons for the refusal to allow the poster, namely, the applicant association’s promotion of human cloning and “geniocracy”, together with the possibility that its ideas had led to sexual abuse of minors by some of its members. Whilst some of those reasons taken separately might not be capable of justifying the ban on the poster campaign, the Court took the view that in view of the situation as a whole, the refusal had been indispensible for the protection of health, morals and the rights of others, and for the prevention of crime.
The applicant association had claimed that the ban excessively complicated the dissemination of its ideas. The Court took the view that the limiting of the ban to posters in public space minimised any interference with its rights. As the Raelian Movement had been able to continue to disseminate its ideas, in particular through its website or leaflets, the ban on the poster campaign had not been disproportionate.
The Court therefore found, by nine votes to eight, that there had been no violation of Article 10, finding that the Swiss authorities had not overstepped the broad margin of appreciation given to them in this case, and that the grounds for their decisions had been “relevant and sufficient” and had corresponded to a “pressing social need”.
[1] IT-04-75-PT, 10 July 2012.
[2] Ibid. at ¶ 1.
[3] Ibid. at ¶ 2.
[4] Ibid. at ¶ 5.
[5] IT-03-69-T, 10 July 20120.
[6] Ibid. at ¶¶ 1-2.
[7] Ibid. at ¶ 6.
[8] Ibid.
[9] Ibid. at ¶¶ 8-12.
[10] Ibid. at ¶¶ 13-14.
[11] Ibid. at ¶ 15.
[12] IT-95-5/18-T, 11 July 2012.
[13] Ibid. at ¶¶ 1-2.
[14] Ibid. at ¶ 4.
[15] Ibid. at ¶ 5.
[16] Ibid. at ¶ 10.
[17] Ibid. at ¶ 23.
[18] Ibid. at ¶ 16.
[19] Ibid. at ¶ 18.
[20] Ibid. at 21.
[21] IT-95-5/18-T, 13 July 2012.
[22] Ibid. at ¶ 1.
[23] Ibid. at ¶ 2.
[24] Ibid. at ¶ 3.
[25] Ibid. at ¶ 10.
[26] Ibid. at ¶¶ 11-12.
[27] STL-11-01/PT/TC, 11 July 2012.
[28] Ibid. at ¶ 1.
[29] Ibid. at ¶ 5.
[30] Ibid. at ¶¶ 6-7.
[31] Ibid. at ¶¶ 22, 27, 43, 44, 45.
[32] STL-11-01/PT/TC, 12 July 2012.
[33] Ibid. at ¶ 1.
[34] Ibid. at ¶ 2.
[35] Ibid at ¶¶ 3-4.
[36] ICC-02/11-01/11, 10 July 2012.
[37] Ibid. at ¶¶ 5-6.
[38] Ibid. at ¶¶ 8-9.
[39] Ibid. at ¶ 11.
[40] ICC-02/11-01/11, 12 July 2012.
[41] Ibid. at ¶ 3.
[42] Ibid. at ¶¶ 3-5.
[43] ICC-01/04-01/12, 13 July 2012.
[44] Ibid. at ¶¶ 57-58, 64-69.
[45] Ibid. at ¶ 29.
[47] Application no. 30802/11. 11 July 2012. All text is taken from the press release.
[48] Application no. 16354/06, 13 July 2012. All text is taken from the press release.
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