Domestic jurisdiction

Notion(s)	Filing	Case
Absence of a Judge \| Cooperation of States \| Judges \| States \| Order of a Chamber \| Binding order \| Domestic jurisdiction \| Immunities	Order to Government for Release of Judge - 31.01.2017	NGIRABATWARE Augustin (MICT-12-29-R)
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. show footnotes [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. Download full document		IRMCT Statute Article 28
Notion(s)	Filing	Case
Judges \| Impartiality \| Domestic jurisdiction	Decision on Revocation of Referral - 04.10.2016	UWINKINDI Jean (MICT-12-25-AR14.1)
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] […] show footnotes [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. Download full document
Notion(s)	Filing	Case
Contempt \| Cooperation of States \| Domestic jurisdiction \| Geographical area of crimes \| Jurisdiction \| Referral	Decision on Amicus Curiae’s Appeal Against the Order Referring a Case to the Republic of Serbia - 12.12.2018	JOJIĆ Petar and RADETA Vjerica (MICT-17-111-R90)
11. The Mechanism has the power to prosecute persons who have knowingly and wilfully interfered with the administration of justice by the Mechanism, the ICTY and the ICTR, and to hold such persons in contempt.[44] States are required to cooperate with the Mechanism in the investigation and prosecution of contempt cases and shall comply without undue delay with any order issued by a Single Judge or Trial Chamber, including orders for the surrender or the transfer of the accused to the Mechanism.[45] Before proceeding to try such persons, however, the Mechanism “shall” consider referring a case to the authorities of a competent national jurisdiction, taking into account the interests of justice and expediency.[46] This requirement is mandatory, and the inclusion of this provision in the Statute indicates a strong preference for referral if all relevant conditions are met. Accordingly, the Mechanism may only exercise jurisdiction after it has considered whether the case can be transferred to a national jurisdiction for trial. 12. Articles 6(2) and 12(1) of the Statute provide that a Single Judge may be designated to make this determination.[47] The Single Judge is to consider whether the case should be referred to the authorities of a State: (i) in whose territory the crime was committed; or (ii) in which the accused was arrested; or (iii) having jurisdiction and being willing and adequately prepared to accept the case and try it.[48] […] 14. […] The Appeals Chamber recalls that the Statute explicitly contemplates referral to a State “in whose territory the crime was committed”, without requiring that all the alleged acts, omissions, or effects thereof be committed or sustained in the territory of that State.[53] […] [T]o read the Statute as so requiring would effectively render meaningless the provisions that allow for the referral of contempt cases as the impact of the alleged conduct will always be on proceedings that took place in The Hague or Arusha, while the alleged acts or omissions could be committed anywhere. If that impact is to be determinative, the Mechanism would be precluded from transferring any such case to another State for trial. […] 21. […] The Mechanism’s Statute explicitly provides for the referral of contempt cases and requires States to comply with any order for the surrender or the transfer to the Mechanism of any person accused of contempt,[77] whereas the ICTY Statute did not.[78] In light of the specific provisions allowing for referral of contempt cases, the Appeals Chamber considers that where a State expresses a willingness and commitment to try a case over which it has jurisdiction, […] it should be given the opportunity to do so, provided other relevant factors are satisfied. show footnotes [44] Article 1(4) of the Statute. [45] Articles 1(4), 28(1) of the Statute. [46] Article 1(4) of the Statute. See also Article 6 (1) of the Statute. [47] See also Rule 2(C) of the Rules of Procedure and Evidence (“Rules”). [48] Article 6 (2) of the Statute. [53] Article 6(2)(i) of the Statute. [77] Articles 1(4), 6(1), 28(1) of the Statute. [78] See e.g. ICTY Rules, Rule 11bis; ICTY Statute, Article 29(1) which reads: “[s]tates shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law”. See supra note 69 [Please note that the correct footnote is note 68]. Download full document		IRMCT Statute Article 6 of the IRMCT Statute Article 28 of the
Notion(s)	Filing	Case
Contempt \| Domestic jurisdiction \| Referral	Decision on Amicus Curiae’s Appeal Against the Order Referring a Case to the Republic of Serbia - 12.12.2018	JOJIĆ Petar and RADETA Vjerica (MICT-17-111-R90)
19. […] [T]he Appeals Chamber considers that it was reasonable for the Single Judge to find that the interests of justice were best served by referring the case to Serbia because there appeared to be a far greater likelihood that the case would be brought to trial in Serbia than at the Mechanism. 20. […] The Appeals Chamber observes that […] if the Accused are not brought to trial within a reasonable time, or if a competent Serbian court determines that it does not have jurisdiction to prosecute the Accused for contempt of the ICTY […], a deferral may be sought in the interests of justice.[74] […] [T]he Appeals Chamber considers that it was reasonable […] to have taken into account the availability of revocation procedures under Rule 14 of the Rules when deciding whether or not to refer the case to Serbia.[75] […] 23. […] [G]iven the importance to the trial process of ensuring that witnesses will appear to give evidence when called and of facilitating the attendance of witnesses through the provision of appropriate protective measures,[87] the Appeals Chamber considers these to be important factors […] in the determination of whether it is in the interests of justice to refer this case to Serbia for trial.[88] show footnotes [74] Cf. The Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-11bis, Decision on Prosecutor’s Extremely Urgent Motion for Revocation of the Referral to the Kingdom of the Netherlands pursuant to Rule 11bis (F) & (G), 17 August 2007, paras. 3, 11, 12, pp. 5-6; Prosecutor v. Michel Bagaragaza, Case No. ICTR-2005-86-11bis, Decision on Prosecutor’s Request for Referral of the Indictment to the Kingdom of the Netherlands, 13 April 2007, paras. 15, 30. [75] See The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis, Decision the Prosecution’s Appeal Against Decision on Referral under Rule 11bis, 8 October 2008, para. 30 (“Munyakazi Decision of 8 October 2008”); Prosecutor v. Gojko Jankovic, No. IT-96-23/2-AR11bis.2, Decision on Rule 11bis Referral, 15 November 2005, para. 55; Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005 (“Stanković Decision of 1 September 2005”), para. 52. [87] See Article 20 of the Statute, Rule 86 of the Rules. [88] See [Jean Uwinkindi v. The Prosecutor, Case No. ICTR-01-75-AR11bis, Decision on Uwinkindi’s Appeal Against the Referral of his Case to Rwanda and Related Motions, 16 December 2011], paras. 61-66, Munyakazi Decision of 8 October 2008, paras. 37, 38, 42; The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision the Prosecution’s Appeal Against Decision on Referral under Rule 11bis, 30 October 2008, paras. 26-35; Stanković Decision of 1 September 2005, para. 26. Download full document