Request from a party to proceedings before another jurisdiction
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Access - 17.05.2012 |
NYIRAMASUHUKO et al. (Butare) (ICTR-98-42-A) |
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The Appeals Chamber reiterated that that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction and that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction. Nonetheless, the Appeals Chamber specifies for the first time that, while any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation. 12. Rule 75(F)(i) of the Rules provides that “[o]nce protective measures have been ordered in respect of a victim or witness in any proceedings before the Tribunal (the ‘first proceedings’), such protective measures […] shall continue to have effect mutatis mutandis in any other proceedings before the Tribunal (the ‘second proceedings’) unless and until they are rescinded, varied or augmented in accordance with the procedure set out in this Rule”. Pursuant to Rule 75(G) of the Rules, “[a] party to the second proceedings seeking to rescind, vary or augment protective measures ordered in the first proceedings must apply: (i) to any Chamber, however constituted, remaining seised of the first proceedings; or (ii) if no Chamber remains seised of the first proceedings, to the Chamber seised of the second proceedings.” 13. In this case, variation is not sought for a case before the Tribunal, and Mr. Mungwarere is not “a party to the second proceedings” within the meaning of Rule 75 of the Rules. However, while Rule 75 of the Rules does not provide for such variation, the Appeals Chamber has held that the interests of justice require that Rule 75(F)(i) of the Rules be interpreted to provide for the variation of protective measures even when the second proceedings are not before the Tribunal, but before another jurisdiction, as in the present case.[1] The Appeals Chamber has also considered that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested by a judge, a court, or a party for proceedings before another jurisdiction.[2] 14. However, the Appeals Chamber considers that a distinction must be drawn between requests from a judge or a court from another jurisdiction, and requests emanating from a party to proceedings before another jurisdiction. While any judge or bench, as a judicial authority, may directly apply for the variation of protective measures ordered pursuant to Rule 75 of the Rules, the Appeals Chamber considers that a party to proceedings before another jurisdiction should be authorized by an appropriate judicial authority to apply for such variation. 16. The Appeals Chamber notes that Mr. Mungwarere expressly refers to the legal standard applicable to requests for access to confidential material by an accused in another case before the Tribunal.[3] However, the Appeals Chamber emphasizes that, in the present instance, access to confidential material is not sought by an accused in another case before the Tribunal, but by an accused before another jurisdiction. 17. In such a case, the Appeals Chamber considers that the material sought should be specifically identified.[4] In addition, as is the case with requests by an accused in proceedings before the Tribunal, the applicant seeking access to confidential material for proceedings before another jurisdiction must demonstrate a legitimate forensic purpose. The Appeals Chamber recalls in this regard that consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the applicant’s case and the case from which such material is sought.[5] The applicant must further establish that this material is likely to assist his case materially, or that there is at least a good chance that it would.[6] 18. Moreover, the Appeals Chamber has repeatedly underscored the importance of the protected witness’s consent to the disclosure of confidential material for proceedings before another jurisdiction.[7] In the absence of such consent, variation of protective measures may only be granted where the applicant demonstrates that the protective measures are no longer justified or that exceptional circumstances warrant the variation sought.[8] [1] See, e.g., Dominique Ntawukulilyayo v. The Prosecutor, Case No. ICTR-05-82-A, Decision on Prosecutor’s Motion to Rescind Protective Measures for Witnesses, ex parte and confidential, 17 May 2011, para. 3; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Order in Relation to Prosecutor’s Motion to Vary Protective Measures for Witnesses [redacted], ex parte and confidential, 23 July 2010, para. 3; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Order in Relation to Prosecutor’s Motion to Rescind Protective Measures for Witness [redacted], ex parte and confidential, 26 February 2010 (“Bagosora et al. Order of 26 February 2010”), para. 3. [2] See, e.g., The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Order in Relation to Prosecution Motion to Vary Protective Measures for Witnesses [redacted], ex parte and confidential, 8 February 2012 (“Nyiramasuhuko et al. Order”), para. 2; Jean-Baptiste Gatete v. The Prosecutor, Case No. ICTR‑00-61-A, Decision on Prosecution’s Motion for Variation of Protective Measures Relating to German Proceedings, confidential, 15 July 2011 (“Gatete Decision of 15 July 2011”), para. 6; Jean-Baptiste Gatete v. The Prosecutor, Case No. ICTR-00-61-A, Order in Relation to [redacted] Application for Variation of Protective Measures and Disclosure of Documents, confidential, 1 June 2011 (“Gatete Order of 1 June 2011”), p. 2; Bagosora et al. Order of 26 February 2010, para. 4. The Appeals Chamber emphasizes that, while it has stated on several occasions that the procedure set out in Rule 75(G)(i) of the Rules may apply mutatis mutandis to variations requested, inter alia, by a party, it has never granted a request for variation of protective measures which was not from State authorities. [3] See Motion [Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case, 22 March 2012], paras. 10, 11; Reply to Kanyabashi [Reply to Joseph Kanyabashi’s Response to ‘Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case’, 27 March 2012], para. 3; Reply to the Prosecution [Reply to Prosecutor’s Response to Jacques Mungwarere’s Urgent Motion for Access to Material in the Nyiramasuhuko et al. Case, 10 April 2012], para. 12. The legal standard applicable to requests for access to confidential material from an accused in another case before the Tribunal as defined by the Appeals Chamber is as follows: A party [before the Tribunal] is entitled to seek material from any source, including another case before the Tribunal, to assist in the preparation of its case. Where a party requests access to confidential material from another case, such material must be identified or described by its general nature and a legitimate forensic purpose must be demonstrated. Consideration must be given to the relevance of the material sought, which may be demonstrated by showing the existence of a nexus between the requesting party’s case and the case from which such material is sought. Further, the requesting party must establish that this material is likely to assist its case materially, or that there is at least a good chance that it would. Once it is determined that confidential material filed in another case may materially assist an applicant, the Chamber shall determine which protective measures shall apply to the material, as it is within the Chamber’s discretionary power to strike the balance between the rights of a party to have access to material to prepare its case and guaranteeing the protection and integrity of confidential information. See, e.g., Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-00-55A-A, Decision on Ildephonse Nizeyimana’s Request for Access to Closed Session Transcripts, 31 March 2011, para. 3 (internal references omitted), referring to Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-01-73-A, Decision on Michel Bagaragaza’s Motion for Access to Confidential Material, 14 May 2009, para. 7. See also, e.g., Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Augustin Ngirabatware’s Motion for Disclosure of Confidential Material Relating to Witness DAK, 23 July 2010, paras. 10, 11. [4] The date of the witness’s testimony, the pseudonym used to identify the witness, and/or the exhibit number should, for example, be provided. [5] See supra, fn. 36 [equivalent to fn. 3 here]. [6] See supra, fn. 36 [equivalent to fn. 3 here]. [7] See, e.g., Nyiramasuhuko et al. Order, para. 5; Gatete Order of 1 June 2011, p. 2; Bagosora et al. Order of 26 February 2010, para. 7. See also Gatete Decision of 15 July 2011, paras. 7, 10, 11. [8] Cf. Nizeyimana Trial Decision [The Prosecutor v. Ildéphonse Nizeyimana, Case No. ICTR-00-55C-T, Decision on Defence Motion for Variance of Witness Protective Measures and International Cooperation of the Government of Canada, 23 June 2011], paras. 14, 18; The Prosecutor v. Callixte Nzabonimana, Case No. ICTR-98-44D-T, Decision on Prosecutor’s Urgent Ex Parte Motion to Vary Protective Measures for Prosecution Witness CNAT, 16 September 2010, para. 11; Simba Trial Decision [The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-R75, Decision on Charles Munyaneza’s Motion for Disclosure of Documents Related to Protected Witnesses Before the Tribunal, 9 April 2008], para. 8. Cf. also Rule 81(B) of the Rules (“The Trial Chamber may order the disclosure of all or part of the record of closed proceedings when the reasons for ordering the non disclosure no longer exist.”). |
ICTR Rule Rule 75 ICTY Rule Rule 75 | |