Functional immunity of defence members

Notion(s) Filing Case
Decision on Permanent Restraining Orders - 14.02.2011 GOTOVINA et al.

26. The Appeals Chamber is satisfied that the Trial Chamber correctly found that defence investigators benefit from the same protections as defence counsel under Article 30(4) of the Statute of the Tribunal.[1] Article 30(4) of the Statute provides that:

[o]ther persons, including the accused, required at the seat of the […] Tribunal shall be accorded such treatment as is necessary for the proper functioning of the […] Tribunal.

27. The Appeals Chamber considers that defence counsel fall within the category of “other persons” required at the seat of the Tribunal to defend the accused. Accordingly, pursuant to Article 30(4) of the Statute, they are to be provided such treatment as is necessary for the proper functioning of the Tribunal.[2] Defence investigators, who facilitate the performance of the duties of defence counsel, have a derivative right to such necessary protections via the defence counsel. If such treatment is not extended to defence investigators, defence counsel’s ability to represent the accused may be frustrated.[3]

28. The Appeals Chamber finds, however, that the Trial Chamber erred in finding that defence members do not enjoy functional immunity from legal process under Article 30(4) of the Statute, that is immunity from legal process “with respect to words spoken or written and acts done by them in the course of the performance of their duties as [defence members] before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article [30] of the Statute.”[4] In particular, it erred in concluding that the absence of an explicit reference to the Vienna Convention on Diplomatic Relations and the UN Convention on Privileges and Immunities from the text of Article 30(4) of the Statute indicated that defence members were denied functional immunity.[5] […] Instead, the Trial Chamber should have focused on what protection was “necessary for the proper functioning of the […] Tribunal” pursuant to Article 30(4) of the Statute. [T]he Appeals Chamber finds that the relevant question is whether functional immunity for defence members is “necessary for the proper functioning of the […] Tribunal”, not whether another treaty or Security Council Resolution provides for such immunity.

The Appeals Chamber further found that in this context, the Trial Chamber failed to properly consider the fundamental differences between a domestic court and an international criminal tribunal:

31. […] The Appeals Chamber considers that members of the defence working in an international criminal court operate in a different legal environment than those working in domestic criminal courts. Finding and interviewing witnesses, conducting on-site investigations, and gathering evidence in a State’s territorial jurisdiction may be more difficult without the grant of functional immunity, as there is always a risk that a State could interfere by exercising its jurisdiction in such a way as to impede or hinder the activities of the defence.[6] Permitting freedom of action in these situations by virtue of a grant of functional immunity protects individuals before the Tribunal in a manner unnecessary in domestic courts, where individuals can rely upon the State’s judicial apparatus and other entities to protect their ability to perform their functions in a criminal trial.

33. The Appeals Chamber accordingly finds that members of the defence, including defence investigators, enjoy functional immunity under Article 30(4) of the Statute with regard to acts that fall within the fulfilment of their official functions before the Tribunal due to their functions being “necessary for the proper functioning of the […] Tribunal”. Failure to accord functional immunity to defence investigators could impact upon the independence of defence investigations, as investigators may fear legal process for actions related to their official Tribunal functions.[7]

[1] See Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 12 March 2010], para. 50, where the Trial Chamber considered that “the tasks performed by defence investigators are necessary for the performance by defence counsel of their functions, and that if such treatment is not extended to defence investigators, defence counsel’s ability to carry out their functions would be frustrated” and found that “defence investigators should enjoy such treatment under Article 30(4) of the Statute also.”

[2] 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 (“Erlinder Decision”), paras 19, 26.

[3] Johnson Legal Opinion [Legal Opinion of the United Nations Assistant Secretary-General for Legal Affairs, Larry D. Johnson, addressed to ICTR Registrar Re. “Pending Rukundo Motion Seeking Acknowledgment of an Immunity from Legal Process Benefiting a Former ICTR Defence Investigator”, 26 November 2007], para. 7. See also Impugned Decision, para. 50.

[4] Erlinder Decision, para. 26.

[5] Impugned Decision, paras 51-53.

[6] Cf. Blaškić Decision [Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR 108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997], para. 53, where the Appeals Chamber held that, in the case of the States of the former Yugoslavia, “to go through the official channels for identifying, summoning and interviewing witnesses, or to conduct on-site investigations, might jeopardise investigations by the Prosecutor or defence counsel. In particular, the presence of State officials at the interview of a witness might discourage the witness from speaking the truth, and might also imperil not just his own life or personal integrity but possibly those of his relatives. It follows that it would be contrary to the very purpose and function of the […] Tribunal to have State officials present on such occasions. The States […] of the former Yugoslavia are obliged to cooperate with the […] Tribunal in such a manner as to enable the […] Tribunal to discharge its functions. This obligation […] also requires them to allow the Prosecutor and the defence to fulfil their tasks free from any possible impediment or hindrance.”

[7] Cf. Erlinder Decision, para. 19, where the Appeals Chamber stated: “The proper functioning of the Tribunal requires that Defence Counsel be able to investigate and present arguments in support of their client’s case without fear of repercussions against them for these actions. Without such assurance, Defence Counsel cannot be reasonably expected to adequately represent their clients.”

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ICTY Statute Article 30(4)