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Showing 2496 results (20 per page)
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| Decision on Fair Trial and Presumption of Innocence - 27.02.2017 |
MLADIĆ Ratko (IT-09-92-AR73.6) |
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8. The Trial Chamber’s determination of whether the engagement of certain staff would lead to actual bias or the appearance of bias is a discretionary decision to which the Appeals Chamber must accord deference.[1] […] […] 23. […] The Appeals Chamber considers that the Impugned Decision concerns the engagement of staff to assist the Trial Chamber and recalls that a trial chamber’s determination in this respect is a discretionary decision to which the Appeals Chamber must accord deference.[2] However, the Appeals Chamber emphasizes that trial chambers must exercise their discretion consistently with Articles 20 and 21 of the Statute, which require trial chambers to ensure that a trial is fair and expeditious.[3] [1] The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009 (“Bizimungu et al. Appeal Decision”), para. 4. [2] Bizimungu et al. Appeal Decision, para. 4. See also supra, para. 8. [3] See Nyiramasuhuko et al. Appeal Judgement, para. 138; Ildéphonse Nizeyimana v. The Prosecutor, Case No. ICTR‑00-55C-A, Judgement, 29 September 2014, para. 286; Augustin Ngirabatware v. The Prosecutor, Case No. ICTR-99-54-A, Decision on Augustin Ngirabatware’s Appeal of Decisions Denying Motions to Vary Trial Date, 12 May 2009, para. 22. |
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| Decision on Fair Trial and Presumption of Innocence - 27.02.2017 |
MLADIĆ Ratko (IT-09-92-AR73.6) |
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9. The Appeals Chamber recalls that legal officers assisting Judges at the Tribunal are not subject to the same standards of impartiality as the Judges of the Tribunal, and that judicial decision-making is the sole purview of the Judges.[1] Legal officers merely provide assistance to the Judges in legal research and preparing draft decisions, judgements, opinions, and orders in conformity with the instructions given to them by the Judges.[2] 10. Notwithstanding the above, in some cases, a prospective staff member’s statements or activities may be so problematic as to either impugn the perceived impartiality of the Judges or the appearance thereof, or, even if this were not the case, the Tribunal’s fundamental guarantees of fair trial.[3] In this respect, the Appeals Chamber recalls in particular, that an unacceptable appearance of bias exists, inter alia, where the circumstances would lead a reasonable observer, properly informed, to reasonably apprehend bias.[4] The Appeals Chamber further recalls that there is a presumption of impartiality which attaches to the Judges of the Tribunal and which cannot be easily rebutted.[5] […] 37. When addressing whether the impartiality of the Judges in this case could be affected by the Impugned Staff’s involvement in the Karadžić case, the Trial Chamber found that, even though “there is a considerable degree of overlap between the Karadžić case and the present case”, “a properly informed and reasonable observer would not consider […] that the judges in the present case ha[ve] failed to maintain the high degree of integrity and impartiality to which they are sworn, even if they or the Impugned Staff had worked on both cases.”[6] It added that a properly informed and reasonable observer would not expect that the Judges in this case would do anything other than rule fairly on the issues before them, relying exclusively on the evidence adduced in the present case, even if they or their staff had been exposed to evidence in both cases.[7] The Trial Chamber concluded that the presumption of impartiality attached to the Judges in this case had not been rebutted on the basis that the Impugned Staff had worked on an overlapping case in which factual findings were made in relation to Mladić.[8] 38. With respect to Mladić’s argument that the Trial Chamber failed to sufficiently reason its conclusions relating to the application of the reasonable observer test,[9] the Appeals Chamber considers that Mladić’s arguments effectively amount to a challenge to how the reasonable observer test has been interpreted in the case law. The Appeals Chamber is of the view that Mladić’s argument reflects his disagreement with the jurisprudence relied upon by the Trial Chamber and set out in detail in the applicable law section of the Impugned Decision,[10] as well as with the Trial Chamber’s reliance on this jurisprudence when assessing whether the Impugned Staff’s involvement in the Karadžić case could lead to an appearance of bias of the Judges in this case[11] without explaining how the Trial Chamber erred in following this case law. The Appeals Chamber finds that Mladić fails to demonstrate an error in the Trial Chamber’s reasoning. 39. Moreover, the Appeals Chamber recalls that “‘mere assertions to the effect that a staff member may influence a Judge during deliberations or the adjudication process are not a sufficient basis, in and of themselves’, to create in the mind of a reasonable observer, properly informed, an appearance of bias or to rebut the presumption of impartiality of judges.”[12] Accordingly, the Appeals Chamber does not consider that a staff’s previous work on an overlapping case is, in and of itself, sufficient to impugn the Judges’ impartiality or the appearance thereof. The Appeals Chamber therefore finds no merit to Mladić’s argument that a reasonable observer would consider that the fact that the Impugned Staff previously worked on the closely-related Karadžić case, is sufficient to rebut the impartiality of the Judges in this case. See also paragraphs 30, 33. [1] The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015 (“Nyiramasuhuko et al. Appeal Judgement”), para. 273, referring to, inter alia, Bizimungu et al. Appeal Decision, para. 9, Ildephonse Hategekimana v. The Prosecutor, Case No. ICTR‑00-55B-A, Judgement, 8 May 2012 (“Hategekimana Appeal Judgement”), para. 20. [2] Nyiramasuhuko et al. Appeal Judgement, para. 273; Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], para. 9. [3] Bizimungu et al. Appeal Decision, para. 11. [4] See, e.g., Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Judgement, 30 June 2016 (“Stanišić and Župljanin Appeal Judgement”), para. 43 and references cited therein. [5] See, e.g., Stanišić and Župljanin Appeal Judgement, para. 44 and references cited therein; Nyiramasuhuko et al. Appeal Judgement, para. 273; Hategekimana Appeal Judgement, para. 16. [6] Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 22. [7] Impugned Decision, para. 23. [8] Impugned Decision, para. 26. [9] See supra, para. 17. [10] Impugned Decision, paras 9-10. [11] Impugned Decision, paras 22-23. [12] Hategekimana Appeal Judgement, para. 20, quoting Bizimungu et al. Appeal Decision, para. 10. |
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| Notion(s) | Filing | Case |
| Decision on Fair Trial and Presumption of Innocence - 27.02.2017 |
MLADIĆ Ratko (IT-09-92-AR73.6) |
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25. […] The Appeals Chamber recalls further that, while a trial chamber must provide reasoning in support of its findings on the substantive considerations relevant for a decision, it is not required to articulate every step of its reasoning and to discuss each submission.[1] […] [1] Nyiramasuhuko et al. Appeal Judgement, para. 105 and references cited therein. See also Prosecutor v. Radovan Karadžić, Cases Nos. IT-95-5/18-AR72.1, IT-95-5/18-AR72.2, IT-95-5/18-AR72.3, Decision on Radovan Karadžić’s Motions Challenging Jurisdiction (Omission Liability, JCE-III – Special Intent Crimes, Superior Responsibility), 25 June 2009, para. 30. |
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| Notion(s) | Filing | Case |
| Decision on Fair Trial and Presumption of Innocence - 27.02.2017 |
MLADIĆ Ratko (IT-09-92-AR73.6) |
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30. The Appeals Chamber is of the view that the Trial Chamber correctly recalled that the Impugned Staff provides assistance to the Judges while the decision-making remains entirely in the Judges’ purview and that neither the Rules of Procedure and Evidence of the Tribunal nor the related jurisprudence provide for the disqualification of the Impugned Staff.[1] […] [1] Impugned Decision [Prosecutor v. Ratko Mladić, Case No. IT-09-92-T, Decision on Defence Motion for a Fair Trial and the Presumption of Innocence or, in the Alternative, a Mistrial, 4 July 2016], para. 18. See also Impugned Decision, para. 14, referring to Bizimungu et al. Appeal Decision [The Prosecutor v. Casimir Bizimungu et al., Case No. ICTR-99-50-AR‑73.8, Decision on Appeals Concerning the Engagement of a Chambers Consultant or Legal Officer, 17 December 2009], paras 5, 9; Nyiramasuhuko et al. Appeal Judgement, para. 273; In the Case against Florence Hartmann, Case No. IT‑02‑54‑R77.5, Report of Decision on Defence Motion for Disqualification of Two Members of the Trial Chamber and of Senior Legal Officer, 27 March 2009 (public redacted version), para. 54. |
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| Order to Government for Release of Judge - 31.01.2017 |
NGIRABATWARE Augustin (MICT-12-29-R) |
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11. It is self-evident that justice and the rule of law begin with an independent judiciary.[1] The right to be tried before an independent and impartial tribunal is an integral component of the right to a fair trial enshrined in Article 19 of the Statute[2] and embodied in numerous human rights instruments.[3] The United Nations Human Rights Committee has stated that the right to an independent and impartial tribunal “is an absolute right that may suffer no exception”.[4] To uphold this right, in the exercise of their judicial functions, the judges of the Mechanism shall be independent of all external authority and influence, including from their own States of nationality or residence.[5] A corollary guarantee for the independence of the Mechanism’s judges is contained in Article 29 of the Statute, which provides for full diplomatic immunity for judges during the course of their assignments – even while exercising their functions in their home country.[6] Accordingly, diplomatic immunity is a cornerstone of an independent international judiciary, as envisaged by the United Nations. The ability of the judges to exercise their judicial functions first and foremost from their home countries reflects the unique characteristics of the Mechanism, which was intended to ensure justice coupled with cost‑savings and efficiency.[7] Turkey was a member of the United Nations Security Council at the time of the consideration of our Statute and voted in favour of its adoption,[8] a Statute which guarantees an independent judiciary and full diplomatic immunity for our judges while performing their work.[9] […] [1] See United Nations Basic Principles on the Independence of the Judiciary, adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 26 August - 6 September 1985, endorsed by United Nations General Assembly Resolutions A/RES/40/32 and A/RES/40/146 of 29 November 1985 and 13 December 1985, respectively (“U.N. Basic Principles on the Independence of the Judiciary”). [2] See Prosecutor v. Mićo Stanišić and Stojan Župljanin, Case No. IT-08-91-A, Judgement, 30 June 2016 (public with confidential Annex C), para. 42; Prosecutor v. Nikola [ainović et al., Case No. IT-05-87-A, Judgement, 23 January 2014, para. 179; Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement, 8 October 2008, para. 39; Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-A, Judgement, 21 July 2000, para. 177, n. 239. See also Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-PT, Decision on Motion for Disqualification, 10 June 2003, pp. 2-3 (“Judges […] serve only the international community” and “disavow any influence by the policies of any government, including the government of their home country”); Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision of the Bureau on Motion on Judicial Independence, 4 September 1998, pp. 7-9. [3] See Universal Declaration of Human Rights, 10 December 1948, United Nations General Assembly Resolution 217 A (III), Article 10 (“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”); International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article 14(1) (“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”); European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Article 6(1) (“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”); American Convention on Human Rights, Costa Rica, 22 November 1969, Article 8(1) (“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”). See also African Charter on Human and Peoples’ Rights, 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Article 26 (“States parties to the present Charter shall have the duty to guarantee the independence of the Courts and shall allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the present Charter.”). [4] Case of Miguel Gonzáles del Río v. Peru, Communication No. 263/1987, para. 5.2. [5] See U.N. Basic Principles on the Independence of the Judiciary, Principle 2 (“The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”); The Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial Integrity as revised at the Round Table Meeting of Chief Justices, 25-26 November 2002, Value 1.1 (“A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”); The Burgh House Principles on the Independence of the International Judiciary, drafted by the Study Group of the International Law Association on the Practice and Procedure of International Courts and Tribunals, in association with the Project on International Courts and Tribunals, Preamble (“Considering the following principles of international law to be of general application: to ensure the independence of the judiciary, judges must enjoy independence from the parties to cases before them, their own states of nationality or residence, the host countries in which they serve, and the international organisations under the auspices of which the court or tribunal is established”). See also Code of Professional Conduct for the Judges of the Mechanism, MICT/14, 11 May 2015, Article 2.1 (“In the exercise of their judicial functions, judges shall be independent of all external authority or influence.”). [6] See, e.g., Article 29 of the [MICT] Statute. Cf. also ICJ Advisory Opinion on Differences Relating to Immunity from Legal Process, paras. 60, 61, 67 (upholding the immunity of a United Nations Special Rapporteur against legal process in his national country); Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, p. 177, paras. 51, 61 (holding that United Nations Special Rapporteurs enjoy privileges and immunities in their relation with the States of which they are nationals or on the territory of which they reside). [7] See United Nations Security Council Resolution 1966, U.N. Doc. S/RES/1966, 22 December 2010 […] (emphasizing that the Mechanism should be a “small, temporary and efficient structure”); See also Article 8(3) of the [MICT] Statute. [8] See United Nations Security Council Report, Special Research Report, No. 3, 17 September 2010, p. 1; U.N. Doc. S/PV.6463, 22 December 2010, p. 3. [9] See Articles 19 and 29 of the [MICT] Statute. |
IRMCT Statute
Article 8(3); Article 19; Article 29(2) |
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| Order to Government for Release of Judge - 31.01.2017 |
NGIRABATWARE Augustin (MICT-12-29-R) |
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12. With the arrest of Judge Akay, proceedings on the merits of Ngirabatware’s Request for Review have necessarily come to a standstill. To move the case forward, as suggested by the Prosecution,[1] by the substitution of a judge as a first reaction in response to the current situation is nothing short of violating a core principle that is fundamental to the administration of justice: an independent judiciary. 13. I have long maintained that upholding the integrity of our judicial system entails not exercising the powers conferred upon me as President arbitrarily and eschewing improper influences when determining the composition of judicial benches.[2] It is […] evident […] that reassignment of Judge Akay onto another case is simply an unfair and myopic solution since it would similarly halt proceedings in that case. While pragmatic, this solution will undoubtedly impinge on the fundamental principle of judicial independence as it would allow interference by a national authority in the conduct of a case and the exercise of judicial functions. As such, it will have a chilling effect on the administration of justice. Moreover, the inherent authority of the Mechanism cannot be interpreted, as the Prosecution suggests, [3] to include taking substantive decisions on the merits of a case in the absence of the consideration by all of the members of the bench. Judge Akay’s views on this case matter to our solemn deliberations, and, in the present circumstances, decisions on the merits of this case cannot be taken even should they hold the support of a majority of the remaining judges. Moreover, it cannot be said that the integrity of the judicial system would be upheld if a replacement of a judge is viewed as a measure of first rather than last resort, especially where the avenues for the Government of the Republic of Turkey to implement the United Nations Secretary-General’s assertion of immunity have neither been fully explored nor exhausted, including the execution of this request made by Ngirabatware. In this regard, I note that Judge Akay’s release is also being sought pursuant to domestic legal proceedings in Turkey. An application before the European Court of Human Rights has also been filed.[4] […] 15. This is not to say that judges can never be reassigned or replaced. But a judge has been arrested, immunity has been asserted, it has not been waived, and Judge Akay’s continued presence on the bench has the full support of the person who is seeking relief. Judge Akay is an essential member of this bench. In the absence of extraordinary circumstances, his continued presence on the bench is essential to the preservation of judicial independence. To say Judge Akay can be replaced easily to facilitate the judicial process – at this initial stage and before other avenues have been exhausted – is to say we do not value judicial independence, value justice, value what is right. [1] See supra [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R, Order to the Government of the Republic of Turkey for the Release of Judge Aydin Sefa Akay, 31 January 2017], para. 9. [2] See Theodor Meron, Judicial Independence and Impartiality in International Criminal Tribunals, 99 Am. J. Int’l L. 363-65 (2005). [3] See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 19, 27. [4] See ECHR Ref. No. 59/17. |
IRMCT Statute Article 19 | |
| Notion(s) | Filing | Case |
| Order to Government for Release of Judge - 31.01.2017 |
NGIRABATWARE Augustin (MICT-12-29-R) |
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16. I recall that, while the Mechanism will not lightly intervene in a domestic jurisdiction,[1] there is clear authority to order a state to terminate proceedings against individuals on the basis of the immunity they enjoyed as a result of their connection with the Mechanism.[2] Such orders have been implemented.[3] In the present circumstances, an order to Turkey to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions in this case is entirely appropriate and necessary to ensure that the review proceedings can conclude. Such an order is binding on Turkey pursuant to Resolution 1966 adopted by the United Nations Security Council under Chapter VII of the United Nations Charter on 22 December 2010. Article 9 of Security Council Resolution 1966 requires that all States comply with orders issued by the Mechanism. [1] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010 (“Bagosora et al. Decision of 6 October 2010”), para. 18. [2] See Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Directed to the Republic of Croatia, 18 February 2011, p. 2; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, paras. 36, 45, 67, 71; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Stay of Proceedings, 27 January 2011 (“Bagosora et al. Decision of 27 January 2011”), para. 10; Bagosora et al Decision of 6 October 2010, paras. 20-31. [3] See, e.g., Prosecutor v. Ante Gotovina et al.,Case No. IT-06-90-A, Communication dated 12 October 2011 from the Ministry of Justice of the Republic of Croatia (Proceedings Pursuant to the Order of the ICTY Trial Chamber Dated 18 February 2011), 14 October 2011 (confidential), Registry Pagination. 3043; Bagosora et al Decision of 27 January 2011, para. 10. |
IRMCT Statute Article 28 | |
| Notion(s) | Filing | Case |
| Order to Government for Release of Judge - 31.01.2017 |
NGIRABATWARE Augustin (MICT-12-29-R) |
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17. In relation to Ngirabatware’s request for temporary provisional release,[1] I consider that as Pre-Review Judge, I lack competence to entertain this request.[2] […] Any request for modifications of the conditions of detention in accordance with Rule 67 of the Rules should be made before the President. [1] See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 21, 22, 25, 26; Ngirabatware Further Submission [Further Submission on Motion for Order to Government of Turkey or for Temporary Provisional Release, 18 December 2016 ], paras. 1, 14, 15; Motion [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R,Motion for Order to Government of Turkey or for Temporary Provisional Release, 10 November 2016], paras. 2, 22. [2] See Rule 135 of the [MICT] Rules. I find Ngirabatware’s reliance on the competence of a Duty Judge at the International Criminal Tribunal for the former Yugoslavia (“ICTY”) inapposite given the circumscribed nature of the corresponding competence of a Duty Judge at the Mechanism. See [Prosecutor v. Augustin Ngirabatware, Case No. MICT-12-29-R] Oral Hearing, T. 17 January 2017 pp. 25, 26. Compare Rule 28 of the [MICT] Rules (indicating that a Duty Judge will serve as a Single Judge on matters “not assigned to a Single Judge or Trial Chamber”) with Rule 28(D) of the ICTY Rules of Procedure and Evidence (authorizing a Duty Judge to deal with applications in a case already assigned to a Trial Chamber if, inter alia, “satisfied as to its urgency or that it is otherwise appropriate to do so in the absence of the Trial Chamber”). In addition, while Rule 68(I) of the [MICT] Rules applies, mutatis mutandis, to convicted persons who are in the custody of the Mechanism pending transfer to an enforcement state, the decision to authorize such provisional release principally rests with the Appeals Chamber, to the extent that it is already seised of the case. See Prosecutor v. Zdravko Tolimir, Case No. MICT-15-95-ES, Public Redacted Version of the “Decision on Motion for Provisional Release” Filed on 28 January 2016, 23 February 2016, paras. 7, 8. |
IRMCT Rule
Rule 67; Rule 135 |
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| Decision on Redacted Versions of Rule 86(F) Filings - 24.01.2017 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Page 3: CONSIDERING that Karadžić’s reply expands on his submissions made in the Motion to which the Prosecution had sufficient opportunity to respond; FINDING, therefore, that Karadžić’s reply contains no new issue that would justify granting leave to file a sur-reply; [1] Prosecutor v. Vujadin Popović et al, Case No. IT-05-88-A, Public Redacted Version of 2 May 2014 Decision on Vujadin Popović’s Third and Fifth Motions for Admission of Additional Evidence on Appeal Pursuant to Rule 115, 23 May 2014, para. 14 (“leave to file a sur-reply may be granted where the reply raises a new issue to which the respondent has not already had the opportunity to respond”). |
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| Decision on Redacted Versions of Rule 86(F) Filings - 24.01.2017 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Page 3: RECALLING that all proceedings before the Mechanism shall be public unless exceptional reasons require keeping them confidential; [1] Prosecutor v. Naser Orić, Case No. MICT-14-79, Decision on an Application for Leave to Appeal the Single Judge’s Decision of 10 December 2015, 17 February 2016, para. 8 referring to Article 18 of the Statute of the Mechanism and Rules 92 and 131 of the Rules. |
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| Decision on Redacted Versions of Rule 86(F) Filings - 24.01.2017 |
KARADŽIĆ Radovan (MICT-13-55-A) |
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Pages 3-4: RECALLING that a request for access to confidential ex parte material can only be granted when the requesting party demonstrates a heightened showing of a legitimate forensic purpose in order to protect the interests of the party who designated its filing as ex parte and who enjoys a protected degree of trust that the ex parte material will not be disclosed;[1] Pages 4-5: FINDING that issuing public redacted versions of the decisions and orders issued in this case pursuant to Rule 86(F) of the Rules as well as four filings made by the Registry of the Mechanism and the Prosecution will ensure the public nature of these proceedings to the extent possible and that the interests of the parties who designated their filings as ex parte can be adequately protected by appropriate redactions; CONSIDERING that, in light of the varied circumstances of applications made under Rule 86(F) of the Rules, access to any future confidential ex parte materials in such cases should be determined upon any application made on a case-by-case basis; [1] See The Prosecutor v. Miroslav Bralo, Case No. IT-95-17-A, Decision on Motions for Access to Ex Parte Portions of the Record on Appeal and for Disclosure of Mitigating Material, 30 August 2006, para. 17. See also Decision of 10 May 2016 [Decision on Motion for Access to Ex Parte Filings in Completed Cases, 10 May 2016], p. 3 and references cited therein. [2] Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.2, Registrar’s Submission in Relation to the Order of 20 September 2016, 27 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.3, 27 September 2016, Registrar’s Submission in Relation to the Order of 20 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.2, Prosecution Request for Leave to File Further Submission in Response to Registrar’s Submission in Relation to the Order for Submissions of 20 September 2016, 29 September 2016 (confidential and ex parte); Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-R86F.3, Prosecution Request for Leave to File Further Submission in Response to Registrar’s Submission in Relation to the Order for Submissions of 20 September 2016, 29 September 2016 (confidential and ex parte). The Appeals Chamber notes that its finding does not extend to the confidential ex parte annexes attached to the Registry’s submissions of 29 September 2016. [3] The Appeals Chamber notes that, with regard to two of the five proceedings at issue, Case No. MICT-13-55-R86.F.2, Case No. MICT-13-55-R86.F.3, the ex parte status of the requests made under Rule 86(F) of the Rules was lifted in these instances with respect to the Prosecution as the requests concerned Prosecution witnesses. The request filed as Case No. MICT-13-55-R86.F.1 was dismissed for lack of jurisdiction. Two other proceedings, Case No. MICT-13-55-R86.F.4 and Case No. MICT-13-55-R86.F.5, are currently pending and only assignment orders have been issued to date. |
IRMCT Rule Rule 86(F) | |
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| Decision on Rescinding Protective Measures - 14.11.2016 |
KAMUHANDA Jean de Dieu (MICT-13-33) |
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6. As a preliminary matter, the Appeals Chamber notes that the Impugned Decision was rendered after the close of the trial and appeal proceedings in Kamuhanda’s case[1] and that, therefore, Rule 80(B) of the Rules, which requires certification to appeal a decision rendered at trial, by its plain language is not applicable in the present case.[2] The Appeals Chamber further observes that Rule 86 of the Rules, which regulates measures for the protection of victims and witnesses, does not expressly provide for an appeal as of right or address the issue of whether a decision rendered by a Single Judge after the close of trial and appeal proceedings is subject to appeal. In interpreting an equivalent provision in the ICTR Rules, the ICTR Appeals Chamber has held that an applicant is entitled to appeal a decision on witness protective measures which was rendered after the close of the trial and appeal proceedings.[3] Bearing this practice in mind and in light of the importance of the protection of victims and witnesses to the proper functioning of the Mechanism,[4] the Appeals Chamber considers that it has jurisdiction over this appeal. [1] See supra [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Appeal of Decision Declining to Rescind Protective Measures for a Deceased Witness, 14 November 2016], paras. 2, 3. [2] Rule 80(B) of the Rules reads: “Decisions rendered on such motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber an immediate resolution by the Appeals Chamber may materially advance the proceedings.” See also Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R75, Decision on Motion for Clarification, 20 June 2008 (“Niyitegeka Decision of 20 June 2008”), para. 13 (interpreting the parallel for certification in the ICTR Rules of Procedure and Evidence (“ICTR Rules”), Rule 73(B) of the ICTR Rules). [3] See Niyitegeka Decision of 20 June 2008, para. 14. See also Georges A.N. Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R, Order to the Registrar Concerning Georges Rutaganda’s Access to Documents, 22 January 2009, p. 2. [4] See [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33] Decision on a Motion for a Public Redacted Version of the 27 January 2010 Decision on Application of The Prosecutor of the Tribunal for Variation of Protective Measures, 11 May 2016, p. 2; Prosecutor v. Dragoljub Kunarac et al., Case Nos. MICT-15-88-R86H.1/MICT-15-88-R86H.2, Decision on Prosecution Requests for a Public Redacted Version of a Decision on Applications Pursuant to Rule 86(H), 9 February 2016, p. 1 and references cited therein. |
ICTR Rule
Rule 73(B)
IRMCT Rule
Rule 80(B); Rule 86 |
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| Notion(s) | Filing | Case |
| Decision on Rescinding Protective Measures - 14.11.2016 |
KAMUHANDA Jean de Dieu (MICT-13-33) |
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9. Pursuant to Rule 86(F)(i) of the Rules, protective measures ordered before the ICTY, the ICTR, or the Mechanism (“first proceedings”), continue to have effect in any other proceedings before the Mechanism (“second proceedings”) unless and until they are rescinded, varied or augmented. The Appeals Chamber observes that Kamuhanda requested rescission of protective measures granted to a witness in his own case and, therefore, the Single Judge became seised of the “first proceedings”. In contrast, Rules 86(F)(i), 86(H) and 86(I) of the Rules which form the basis of the Impugned Decision, govern the continuation of protective measures in a “second proceedings” and the conditions for their rescission upon a request from a party to the “second proceedings”, a domestic jurisdiction, or a protected victim or witness. 10. Since Kamuhanda is a party to the “first proceedings” seeking rescission of protective measures in his own case, neither Rule 86(F)(i) nor Rule 86(H), and consequently Rule 86(I) of the Rules, apply in relation to Kamuhanda’s request. Notwithstanding, the Appeals Chamber considers that it was within the Single Judge’s discretion to take into account the conditions for rescission of protective measures set out in Rule 86(I) of the Rules, as the consent of the witness concerned, the existence of exigent circumstances or the potential for a miscarriage of justice may be relevant factors in balancing the interests of the convicted person and the need for the continued protection of victims and witnesses.[1] However, the conditions set out in Rule 86(I) of the Rules are not required as a matter of law in the circumstances of this case where a party is seeking the modification of protective measures granted to one of its witnesses in its own case. 11. The Appeals Chamber further recalls that, pursuant to Rule 86(A) of the Rules, a Chamber may, at the request of either party, order appropriate measures for the privacy and protection of victims and witnesses.[2] Rule 86(A) of the Rules is applicable mutatis mutandis to matters of rescission or variation of protective measures sought by a party in its own case.[3] In assessing whether protective measures should be rescinded or varied under Rule 86(A) of the Rules, a Chamber should take into consideration any information relevant to the requested modification. In such cases, the consent of the witness is not necessarily required if the Chamber is otherwise satisfied that the modification or rescission is justified in the circumstances of the case. [1] See Impugned Decision [Prosecutor v. Jean de Dieu Kamuhanda, Case No. MICT-13-33, Decision on Motion to Rescind Protective Measures for Defence Witness ALM, 29 March 2016], p. 3. The Appeals Chamber notes that, although the Impugned Decision contains a reference to Rule 86(J) of the Rules (see Impugned Decision, p. 2), no finding was entered by the Single Judge pursuant to this Rule. [2] See also Rule 2(C) of the Rules. [3] See The Prosecutor v. François Karera, Case No. ICTR-01-74, Decision Rescinding the Protective Measures of Witness BMI, 27 September 2011, paras. 5, 6; Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-T, Order on Rescission of Protective Measures in relation to Witness Ljubinko Cvetić, 7 December 2006, paras. 1, 2. See also Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-99-54-T, Decision on Jean de Dieu Kamuhanda’s Motion for Protective Measures for Defence Witnesses, 22 March 2001(“Protective Measures Decision”), para. 24 (where the Trial Chamber noted that Kamuhanda could seek at any time variation or augmentation of the protective measures granted to the potential witnesses, including Witness ALM). |
IRMCT Rule Rule 86 | |
| Notion(s) | Filing | Case |
| Decision on Rescinding Protective Measures - 14.11.2016 |
KAMUHANDA Jean de Dieu (MICT-13-33) |
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12. In granting protective measures in the present case, the Trial Chamber considered that “the fears of the potential witnesses and their families, if they testify on behalf of [Kamuhanda] without protective measures” were well founded.[1] The Appeals Chamber notes that, following the death of a witness who had benefited from protective measures, security concerns may remain for the witness’s family. Therefore, the security concerns of members of a deceased witness’s family may constitute a relevant consideration in determining whether the protective measures granted to the witness should remain in place or be rescinded under Rule 86(A) of the Rules. [1] Protective Measures Decision, paras. 14, 16, p. 6. |
IRMCT Rule Rule 86(A) | |
| Notion(s) | Filing | Case |
| Decision on Revocation of Referral - 04.10.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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12. […] the Trial Chamber’s statement that “the Mechanism’s role is not to act as an independent level of appellate review for the national proceedings, but rather to determine primarily whether the conditions for a fair trial in the domestic jurisdiction no longer exist” is entirely consistent with Article 6(6) of the Statute and Rule 14(C) of the Rules, which govern the Mechanism’s authority to revoke cases referred to national jurisdictions. […] 64. The Appeals Chamber finds that Uwinkindi demonstrates no error in the Trial Chamber’s statement that it was not within its purview to scrutinize the Rwandan legal aid budget, inquire into its sufficiency, or verify its administration and disbursement, particularly in light of the conclusion that the circumstances in Rwanda ensured Uwinkindi’s right to free legal assistance.[1] [1] See The Prosecutor v. Jean Uwinkindi, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Motion for Review or Reconsideration of the Decision on Referral to Rwanda and the Related Prosecution Motion, 23 February 2013, para. 71 (recalling that a Referral Chamber must “satisif[y] itself that the State would supply defence counsel to accused who cannot afford their own representation” and is “not obligated […] to itemize the provisions of the [State’s] budget once it has learned there is financial support for that representation”). See also Prosecutor v. Mitar Rašević and Savo Todović, Case No. IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2, Decision on Savo Todović’s Appeals against Decisions on Referral under Rule 11bis, 4 September 2006, para. 59; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Appeal against Decision on Referral under Rule 11bis, 7 April 2006, para. 70; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005, para. 21. |
IRMCT Statute Article 6(6) IRMCT Rule Rule 14(C) | |
| Notion(s) | Filing | Case |
| Decision on Revocation of Referral - 04.10.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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29. The Appeals Chamber further finds that Uwinkindi fails to establish that the non-inclusion of the charge of complicity in genocide in his ICTR Indictment prohibited its inclusion in his indictment before the Rwandan High Court in view of the res judicata principle. Res judicata arises only when there is an identity of parties, identity of issues, and importantly a final determination of those issues in the previous decision by a court competent to decide them.[1] Notably, the litigation before the ICTR concerning the inclusion of complicity in genocide in Uwinkindi’s indictment did not result in a final determination and the Rwandan Prosecution was not a party to it.[2] [1] See Prosecutor v. Radovan Karadžić, Case No. MICT-13-55-A, Decision on a Motion for Redacted Versions of Decisions Issued under Rule 75(H) of the ICTY Rules, 18 July 2016, p. 4 and references cited therein; The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Decision on the Kingdom of Belgium’s Application to File an Amicus Curiae Brief and on the Defence Application to Strike Out the Observations of the Kingdom of Belgium Concerning the Preliminary Response by the Defence, 12 February 2001, para. 11. [2] Specifically, Trial Chamber III of the ICTR subsequently confirmed the initial indictment against Uwinkindi but ordered the Prosecution to amend it to clearly indicate what facts could support Uwinkindi’s involvement in the crime of complicity in genocide; the decision did not require the Prosecution to drop the charge. See The Prosecutor v. Jean-Bosco Uwinkindi, Case No. ICTR-2001-75-I, Confirmation of Indictment, 3 September 2001, paras. 7, 9. |
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| Notion(s) | Filing | Case |
| Decision on Revocation of Referral - 04.10.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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36. In considering Uwinkindi’s complaint of an alleged breach of his right to choose his counsel, the Trial Chamber recalled that the Appeals Chambers of the ad hoc Tribunals have consistently recognised that individuals lacking the means to remunerate counsel do not have an absolute right to a counsel of their own choosing.[1] […] Consistent with international human rights law and the case law of the ad hoc Tribunals, this right is necessarily subject to certain limitations where, as in the present case, free legal aid is relied upon and the interests of justice require the accused to be defended by counsel assigned to him despite his wishes.[2] 37. […] The Appeals Chamber considers that avoiding interruptions or adjournments corresponds to an interest of justice which may well justify the appointment of counsel against the accused’s wishes.[3] […] See also paragraph 38. [1] See Impugned Decision [Prosecutor v. Jean Uwinkindi, Case No. MICT-12-25-R14.1, Decision on Uwinkindi’s Request for Revocation, 22 October 2015], para. 24 and references cited therein. [2] See Léonidas Nshogoza v. The Prosecutor, Case No. ICTR-2007-91-A, Judgement, 15 March 2010, para. 35; Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement, 9 May 2007, paras. 14, 17. See The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 23 November 2001 (signed on 1 June 2001), para. 61; Jean Kambanda v. The Prosecutor, Case No. ICTR-97-23-A, Judgement, 19 October 2000, para. 33. See also Dvorski v. Croatia [2015] ECHR 927, paras. 78, 79. [3] Croissant v. Germany [1992] ECHR 60, para. 28. |
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| Notion(s) | Filing | Case |
| Decision on Revocation of Referral - 04.10.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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71. […] The Appeals Chamber reiterates that as “professional judges, members of the Rwandan judiciary benefit from a presumption of independence and impartiality”.[1] Thus, their personal impartiality must be presumed until there is proof to the contrary.[2] This presumption cannot be easily rebutted and it is for the party alleging bias to rebut it on the basis of adequate and reliable evidence.[3] In this respect, there is a high threshold to reach and the reasonable apprehension of bias must be firmly established.[4] […] [1] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 24. [2] See, e.g., The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-A, Judgement, 28 September 2011, para. 115; Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011, para. 43. See also Kyprianou v. Cyprus [2005] ECHR 873, para. 119. [3] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015, paras. 95, 405 and references cited therein; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004 (“Niyitegeka Appeal Judgement”), para. 45. [4] Niyitegeka Appeal Judgement, para. 45 and references cited therein. |
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| Notion(s) | Filing | Case |
| Decision on Revocation of Referral - 04.10.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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40. […] The Appeals Chamber recalls that the Trial Chamber is presumed to have evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence.[1] There may be an indication of disregard when evidence, which is clearly relevant to the findings, is not addressed in the Trial Chamber’s reasoning.[2] […] See also paragraph 54. [1] Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement, 28 February 2005, (“Kvočka et al. Appeal Judgement”) para. 23. See also, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 1308; Prosecutor v. Vlastimir Ðorđević, Case No. IT-05-87/1-A, Judgement, 27 January 2014 (“Ðorđević Appeal Judgement”), para. 864. [2] Kvočka et al. Appeal Judgement, para. 23. See also, e.g., Nyiramasuhuko et al. Appeal Judgement, para. 1308; Ðorđević Appeal Judgement, para. 864; Gaspard Kanyarukiga v. The Prosecutor, Case No. ICTR-02-78-A, Judgement, 8 May 2012, para. 127; Aloys Ntabakuze v. The Prosecutor, Case No. ICTR-98-41A-A, Judgement, 8 May 2012, para. 161. |
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| Notion(s) | Filing | Case |
| Decision on Additional Evidence - 22.09.2016 |
UWINKINDI Jean (MICT-12-25-AR14.1) |
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5. Rule 142 of the Rules provides for the admission of additional evidence on appeal, and the Appeals Chamber finds that, in accordance with the jurisprudence of the ICTR and the International Tribunal for the former Yugoslavia (“ICTY”), this provision is applicable to appeals of decisions issued pursuant Rule 14 of the Rules.[1] According to Rule 142(A) of the Rules, a motion for the admission of additional evidence shall clearly identify with precision the specific finding of fact made by the trial chamber to which the evidence is directed. For additional evidence to be admissible under Rule 142(C) of the Rules, the applicant must demonstrate that the additional evidence was not available at trial in any form, or discoverable through the exercise of due diligence.[2] The applicant must also show that the additional evidence is relevant to a material issue at trial and credible.[3] Once it has been determined that the additional evidence meets these conditions, the Appeals Chamber will determine in accordance with Rule 142(C) of the Rules whether it could have been a decisive factor in reaching the Impugned Decision.[4] 6. Where, however, the evidence was available during the revocation proceedings or could have been discovered through the exercise of due diligence, it may still be admissible on appeal pursuant to Rule 142(C) of the Rules if the applicant shows that the exclusion of the additional evidence would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have had an impact on the Impugned Decision.[5] 7. In both cases, the applicant bears the burden of identifying with precision the specific finding of fact made by the trial chamber to which the additional evidence pertains, and of specifying with sufficient clarity the impact the additional evidence could or would have had upon the trial chamber’s decision.[6] An applicant who fails to do so runs the risk that the tendered material will be rejected without detailed consideration.[7] See also para. 39. [1] See Bernard Munyagishari v. The Prosecutor, Case No. ICTR-05-89-AR11bis, Decision on Bernard Munyagishari’s First and Second Motions for Admission of Additional Evidence, 25 February 2013 (“Munyagishari Decision of 25 February 2013”), para. 5; Prosecutor v. Željko Mejakić et al., Case No. IT-02-65-AR11bis.1, Decision on Joint Defence Motion to Admit Additional Evidence before the Appeals Chamber pursuant to Rule 115, 16 November 2005 (“Mejakić et al. Decision of 16 November 2005”), para. 6. [2] Augustin Ngirabatware v. Prosecutor, Case No. MICT-12-29-A, Decision on Ngirabatware’s Motions for Relief for Rule 73 Violations and Admission of Additional Evidence on Appeal, 21 November 2014 (“Ngirabatware Decision of 21 November 2014”), para. 24; Munyagishari Decision of 25 February 2013, para. 5. [3] Ngirabatware Decision of 21 November 2014, para. 25; Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10. [4] Munyagishari Decision of 25 February 2013, para. 5; Mejakić et al. Decision of 16 November 2005, para. 10. Cf. Ngirabatware Decision of 21 November 2014, para. 26. [5] Cf. Ngirabatware Decision of 21 November 2014, para. 27; Munyagishari Decision of 25 February 2013, para. 6; Mejakić et al. Decision of 16 November 2005, para. 12. [6] Cf. Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein. [7] Ngirabatware Decision of 21 November 2014, para. 28 and references cited therein. |
ICTR Rule Rule 115 ICTY Rule Rule 115 IRMCT Rule Rule 142 | |