This week has seen international criminal law decisions tackling issues dealing with restitution of documents admitted into evidence, reopening of defence cases, reclassification of documents, participation of the Office of Public Counsel for Victims, the duty to transfer an accused to the court, document disclosure and victim participation. The European Court of Human Rights issued several interesting decisions dealing with disclosure of research, testimonial privilege, freedom of religion and the freedom of speech.
International Criminal Law
ICTY
Prosecutor v. Tolimir[1]
Order on Return of Documents to Dragomir Pećanac
Certain documents were placed in the custody of the Registry during the testimony of witness Pećanac. These documents, belonging to the witness, were marked for identification. The Chamber informed the parties of its intention to return the documents to the witness. The Prosecution did not object, but only requested that high quality scans be made before the documents are returned to the witness. The Chamber found this request to be reasonable and so ordered the return of the documents after the high quality copies were made. The Chamber ordered the registry to make the copies and then file a memorandum detailing the steps taken to make the copies and return the originals.
Prosecutor v. Stanišić & Župlijanin[2]
Decision Granting Župlijanin Motion to Reopen Defence Case
Background
The Accused requested permission to reopen his case in order to have admitted into evidence the testimony of one witness pursuant to Rule 92 quarter (unavailable witnesses).[3] The prosecution subsequent to the closure of the defense case disclosed the witness statement being tendered.[4] The Prosecution did not object to the request.[5] The Chamber granted the motion.
Reasoning
The Chamber was satisfied that the timing of the disclosure of the statement meant that it was fresh evidence for the purpose of the rules on reopening.[6] The Chamber also found that the limit purpose of the reopening would not delay the trial and so was no impediment to granting the reopening.[7]
ICC
Prosecutor v. Gaddafi & Al-Senussi[8]
Decision on Reclassification of Documents
This is a highly technical decision based on the principle that, in general, the proceedings before the Court should be public. The Office of Public Counsel for the Defense, invoking this principle, requested that the Court issue an order for the parties to review their filings and see if it would be appropriate for public redacted versions to be issued.[9] The Court agreed, and the rest of the decision is dedicated to a rather abstract discussion of what can be issued publically and what cannot (reasonably so in order to protect confidential information). The important part of this decision is the Court’s continued support for making as much information public as possible given the concerns and circumstances of the cases.
Prosecutor v. Lubanga[10]
Decision on the OPCV’s Request to Participate in the Reparations Proceedings
Background
Following the conviction of Mr. Lubanga, the Trial Chamber issued an order inviting those who wished to file motions to participate in the reparations proceedings to do so by 28 March 2012.[11] The Office for Public Counsel for Victims filed such a request in order to i) assist unrepresented victims and ii) to represent the general interests of victims.[12] The Registry also filed a report that it might be advisable to assign counsel to unrepresented victims recommending that counsel be the OPCV.[13] The Chamber granted the request.
Reasoning
The Chamber noted that the Court can award reparations on an individual or collective basis and that those victims who do not participate may also benefit from the reparations award through the trust fund for victims.[14] To this end, the Chamber considered that the observations of the OPCV would be useful and allowed the OPCV to act as the legal representative for unrepresented victims and to represent the interests of victims who have not submitted applications to participate.[15]
Prosecutor v. Gaddafi & Al-Senussi[16]
Decision Regarding the Second Request by the Government of Libya for Postponement of the Surrender of Saif Al-Islam Gaddafi
Background
The Chamber issued an arrest warrant for the Accused on 27 June 2011 and officially requested the cooperation of the Libyan authorities in bringing him to the Court for trial.[17] On 19 November 2011, the Accused was arrested in Libya.[18] The Libyan authorities subsequently filed a notice with the court of their intention to challenge the admissibility of any case before the ICC and a request to delay the transfer of the Accused to the Court pursuant to Article 95 of the Rome Statute.[19] The Chamber denied the request.
Reasoning
The Chamber noted that Article 95 of the Rome Statute only applies to cases where there is a pending admissibility challenge before the Court.[20] Libya, while it has announced an intention to file an admissibility challenge, has not yet done so.[21] Therefore the Chamber held that Article 95 couldn’t serve as the legal basis for the postponement request.[22] Since the request to postpone transfer lacked any legal basis, the Chamber ordered Libya to cooperate and transfer the Accused to the Court.[23] The Chamber then stated, “that any failure on the part of the Government of Libya to comply with its obligations to enforce the warrant of arrest against Mr Gaddafi may warrant that the Court make a finding to this effect.”[24]
STL
Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[25]
Ordonnance Relative à la Requête du Procureur du 9 Mars 2012 Portant sur la Communication de Deux Enregistrements Audio et d’un Enregistrement Vidéo
Background
The Prosecution requested permission from the Pre-Trial Judge to delay disclosure of two audio recordings and a video recording to the defense.[26] The purpose of the request is to not disclose information while there is a pending request for protective measures.[27] The Prosecution had previously been ordered to disclose relevant information by 17 February 2012, but instead filed a notice that he would disclose the information on a later date.[28] The Accused responded by filing a motion to ensure compliance with the previous disclosure order.[29] The Pre-Trial Judge previously addressed part of the motion for compliance and now does so in relation to the above mentioned recordings.[30] The Pre-Trial Judge granted the Prosecution request to delay disclosure.
Reasoning
The Pre-Trial Judge noted that the Prosecution did not specifically request to delay the disclosure of the recordings in their previous filing.[31] The Judge pointed out that the Prosecution needs to request protective measures in a more timely fashion, not just right at the deadline for disclosure.[32] Nonetheless, the Judge found that the measures requested by the Prosecution, namely the redactions to the recordings, and the delay necessary to carry them out justify a delay in disclosure at this stage of the proceedings.[33]
Prosecutor v. Ayyash, Badreddine, Oneissi & Sabra[34]
Decision on Defence Motion of 17 February 2012 for an Order to the Victims’ Participation Unit to Refile its Submissions Inter Partes and Inviting Submissions on Legal Issues Related to Applications for the Status of Victim Participating in the Proceedings
Background
The Victims Participation Unit (VPU) filed several ex parte applications for victim participation and supporting material with the Pre-Trial Judge.[35] The Accused objected to the ex parte nature of the filings and requested that they be allowed access to the filings.[36] The Pre-Trial Judge denied the motion.
Reasoning
The Pre-Trial Judge observed that in civil law systems the accused do not have a right to access applications for civil party participation.[37] He acknowledged that victim participation is not the same as civil party status; however, they both involve a decision by the judge in a non-adversarial setting.[38] The Judge then found that the right to a fair trial is not infringed by non-disclosure of victim applications at this stage of the proceedings.[39] He also noted, that while the Rules were amended since the filing of the motion to only allow submissions on legal aspects, the fact that this is a procedural rule means that it applies retroactively to prior filings in all current proceedings.[40]
International Human Rights Law
ECtHR
Gillberg v. Sweden[41]
Grand Chamber Judgment
Background
A Swedish university professor who conducted research on hyperactivity and attention deficit disorders denied access to his research to other researchers in the field. An administrative court in Sweden then ordered him to disclose the research, which he did not do. He was subsequently convicted of a criminal offense based on his failure to comply with the court orders. He filed a case with the ECtHR claiming that his right to privacy and his right to freedom of (non)expression were violated. The Grand Chamber disagreed.
Reasoning
The Court stressed that the applicant did no represent the subjects of his research and so was not protecting their privacy. The Court therefore found that the application could not relay on an invasion of privacy claim as any result of the publication of his research would be the product of his own actions (namely the research). All of the other consequences of the conviction stem from this original premise and so could not be the basis of a claim to an invasion of privacy.
The Court did not rule out the existence of a right of (non)expression, but in this case noted that the information did not belong to the applicant, but to the university where he worked. Therefore the principle did not apply.
Van der Heijden v. the Netherlands[42]
Grand Chamber
Background
The Applicant was constrained to testify against her long-term partner in a criminal case. She claimed that this was an invasion of her right to respect for private life and family life. The Grand Chamber disagreed.
Reasoning
“The Court found in particular that Ms van der Heijden’s relationship with her partner, albeit longstanding, had no legally binding agreement, and was therefore fundamentally different from that of a married couple or a couple in a registered partnership. She was not to be criticised in any way for not formalising her union. However, having made that choice, she had to accept that she remained outside the category of persons defined by the Netherlands legislature as having the right to be exempt from testifying.”[43]
Sessa Francesco v. Italy[44]
Chamber Judgment
Background
The Applicant complained that the failure of the Italian courts to move his court date from a Jewish holiday violated his right to freedom of religion. The Chamber disagreed.
Reasoning
“The Court considered in particular that, even supposing that there had been an interference with the applicant’s right under Article 9, such interference, prescribed by law, was justified on grounds of the protection of the rights and freedoms of others – and in particular the public’s right to the proper administration of justice – and the principle that cases be heard within a reasonable time.”
Kaperzynski v. Poland[45]
Chamber Judgment
Background
“The case concerned a journalist’s criminal conviction for not having published a reply by the mayor of the Iława municipality to an article which criticised the authorities’ dealing with deficiencies of the local sewage system.”
Reasoning
“While agreeing with the Polish courts that the journalist had failed in his professional duties by not stating any reasons for his refusal to publish the mayor’s reply, the Court held in particular that the sanction of denying him the right to work as a journalist had a deterrent effect on the public debate on a matter of public concern.”
[1] IT.05-88/2-T, 2 April 2012.
[2] IT-08-91-T, 3 April 2012.
[8] ICC-01/11-01/11, 4 April 2012.
[10] ICC-01/04-01/06, 5 April 2012.
[16] ICC-01/11-01/11, 4 April 2012.
[25] STL-11-01/PT/PTJ, 3 April 2012.
[34] STL-11-01/PT/PTJ, 5 April 2012.
[41] Application no. 41723/06, 3 April 2012. All facts are taken from the press release.
[42] Application no. 42857/05, 3 April 2012. All facts are taken from the press release.
[44] Application no. 28790/08, 3 April 2012. All facts are taken from the press release.
[45] Application no. 43206/07, 3 April 2012.
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