Yet another separate opinion by judge Antonetti

(amended on 20 April)
A few days ago, the English version of the Trial Chamber's decision on the Seselj's  motion for contempt against Carla Del Ponte and some other members of the Prosecution was posted on the ICTY website.

The Chamber, on the basis of Amicus Curiae report, concluded that there was not sufficient grounds to instigate proceedings for contempt.

In his separate opinion, judge Antonetti expressed his "great regret" that, because of the Tribunal's practice of secret decisions, he had to cut certain parts of his opinion, thus not allowing the public to know his entire argument.
In this regard, the judge took the opportunity to join the critics of the ICTY practice of “secret” decisions in general and the ICTY proceeding against Florence Hartmann on the contempt case in particular.

In his separate opinion, the judge, in particular, states: "I am unhappy that our decisions are of a confidential ex parte or confidential nature, because I come from a legal system where there are no confidential decisions and even fewer secret ones, as the overarching principle is adversarial. Since it was set up, the ICTY has operated on this system, which has surprised many."

The judge further quotes a letter published in Le Monde, where a group of authors urged the French Government to deny ICTY request for the Hartmann’s arrest. According to the letter, quoted by the judge, “the proceedings developed by the ICTY call more to mind the trials conducted by totalitarian regimes ...” After the quotation, the judge adds - “I personally cannot espouse a scheme described as a trial of a “totalitarian regime”.

The presiding judge also strongly criticises the methods and quality of the Amicus investigation. In this regard, he recalls that his “first instinct” was to recommend as the Amicus “someone like Judge Garzón”.

Šešelj, Decision on Vojislav Šešelj’s Motion for Contempt against Carla Del Ponte, Hildegard Uertz-Retzlaff and Daniel Saxon and on the Subsequent Requests of the Prosecution, Case No. IT-03-67-T, T. Ch., 22 December 2011

France refused to execute the ICTY order for arrest of French journalist

In 2009, the Tribunal convicted Florence Hartmann, a French journalist who had served as the spokesperson for the former ICTY Prosecutor Carla del Ponte in 2000-2006.
Hartmann was convicted for the disclosure in her publications some information in violation of two confidential Appeals Chamber’s decisions in the Milosevic case.
She was sentenced to 7000 euro fine.
As Hatmann failed to pay the fine, the Tribunal replaced it with the penalty of 7 days imprisonment and forwarded the arrest warrant to France.

Today, the French Ministry of Foreign Affairs has informed that France will not arrest Hartmann.
According to the Ministry, France has the obligation to cooperate with the Tribunal on serious crimes under the Tribunal’s jurisdiction.
As the contempt is not that kind of crime, France has no obligation for cooperation in the Hartmann case.

Indeed, the ICTY has no police force to arrest a person and it has to rely on the States’ cooperation.
Following the France’s approach, there is no chance to have arrested a person charged by the Tribunal with the contempt.

One may recall, that, in 2005, a Croatian reporter Josip Jovic, who also was charged by the ICTY with the contempt, was arrested by the Croatian authorities on the Tribunal’s arrest warrant. Croatia based its decision on the Constitutional Law on Cooperation with the ICTY.

See also Confidential judicial decisions and the right to freedom of expression.

Trial Chamber denied Prosecution’s motion to split indictment against Mladic

Today, the Trial Chamber has denied the Prosecution’s motion for the severance of the indictment against Mladic.

The Prosecutor requested severance of the indictment against 70-year-old Mladic referring, inter alia, to “the need to plan for the contingency that Mladic’s health could deteriorate.”
In the Prosecutor’s view, the severance would “best allow the proceedings to be adapted in case of unforeseen contingencies.”

In its decision, the Chamber stressed that, if the argument was that justice would be better served by concluding with a judgment of at least one smaller trial, the Prosecution should have argued this clearly and directly in its submission.

In particular, according to the Chamber, if the basis underlying the Prosecution’s motion was the health of the accused, it should have made a detailed submission in this respect, supported by medical documentation.
The Chamber stressed that it cannot base its findings on media reports or other such sources.

Accordingly, the Chamber has considered that there is no reason to sever the indictment.

It also considered that severance could prejudice the accused, could render the trials less manageable and less efficient, and risk unduly burdening witnesses.

See also:
- ECCC Co-Prosecutors seek reconsideration of the Severance Order
- Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

(Updated 29 September)

On 16 August 2011, the ICTY Prosecutor filed a motion to sever indictment against 70-year-old Mladic and to conduct separate trials, starting with Srebrenica charges.
Among the factors taken into account, the Prosecution referred to “the need to plan for the contingency that Mladic’s health could deteriorate.”
In the Prosecution’s view, such an approach will “best allow the proceedings to be adapted in case of unforeseen contingencies.”

Apparently, the Prosecution learn from the mistakes made in the Milosevic case.

In the Milosevic case, in December 2001, the Trial Chamber denied Prosecution motion to join three indictments (Bosnia, Croatia, and Kosovo) and ordered the Kosovo indictment tried separately before the other two.
The Prosecution insisted on the single “mega-trial”, and the Appeals Chamber granted its appeal.
At the same time, the Appeals Chamber cautioned that “if ... it becomes apparent to the Trial Chamber that the trial has developed in such a way as to become unmanageable ... it will still be open to the Trial Chamber at that stage to order a severance of the charges arising out of one or more of the three areas of the former Yugoslavia.”

Indeed, after two years of trial, in July 2004, the Trial Chamber, considering the poor health of the 60-year-old accused, again raised the issue of severance and separating the Kosovo part.
Once again, the Prosecution strongly opposed to the severance.

After another two years, in 2006, the accused died. The four-year trial was terminated with no judgment.

        Mladić, Consolidated Prosecution Motion to Sever Indictment, to Conduct Separate Trials and to Amend Resulting Srebrenica Indictment, Case No. IT-09-92-PT, Prosecutor, 16 August 2011. 

Update: Unlike ICTY Rules, which do not contain a specific Rule which would govern such situation, the ECCC Rule 89 ter, adopted in February 2011, does allow the Trial Chamber to severe the proceedings.
In accordance with this Rule, on 22 September 2011, the Trial Chamber in the Nuon et al. case ordered the separation of proceedings concerning some charges and relevant factual allegations described in the indictment.

See also Mladic case, will it be joined with the Karadzic's?

Freedom of expression and contempt of court

(See previous post on this blog: “Confidential judicial decisions and the right to freedom of expression”)

The position of the ICTY Appeals Chamber in the Hartmann case has found support in the just issued commentary of the UN Human Rights Committee.
The Committee has issued an authoritative new commentary on the extent to which the freedom of opinion and expression can be restricted by a state.

Interpreting the Article 19.3 of the ICCPR requirement that the restriction to an individual’s freedom of expression must be provided by law, the Committee has explained that the “[l]aw may include ... laws of contempt of court.”

See Human Rights Committee, General comment No. 34, Article 19: Freedoms of opinion and expression, CCPR/C/GC/34, 21 July 2011, para. 24.

Confidential judicial decisions and the right to freedom of expression

 (See also Freedom of expression and contempt of court on this blog)

Several days ago the ICTY Appeals Chamber rejected all the grounds of appeal advanced by Florence Hartmann, convicted for contempt of the court.

Hartman, a journalist, served as the spokesperson for the former ICTY Prosecutor Carla del Ponte in 2000-2006.
In 2009, she disclosed in her publications some information in violation of two confidential Appeals Chamber’s decisions in the Milosevic case.

Rejecting one of the grounds of the appeal, the Appeals Chamber held that there is no strong presumption of unrestricted publicity for matters a Chamber has ruled are not to be disclosed to the public.

In this regard the Appeals Chamber recalled that Article 19(3) of the ICCPR recognises that the exercise of the right to freedom of expression may be subject to certain restrictions.
The restrictions shall only be such as are provided by law and are necessary, in particular, for the protection of public order.

The Chamber further referred to the travaux préparatoires of the ICCPR which indicate that the protection of public order in Article 19(3) of the ICCPR was intended to include the prohibition of the procurement and dissemination of confidential information.

The Chamber also noted that, in respect of whether the restriction to an individual’s freedom of expression is “necessary” to achieve its aim, the Human Rights Committee considered whether the action taken was proportionate to the sought-after aim.

The Chamber found that the two appeal decisions in the Milosevic case contained restrictions on the freedom of expression that were “provided by law” because they were filed confidentially under protective measures granted pursuant to Rule 54bis of the ICTY Rules.

Furthermore, according to the Chamber, restricting Hartmann’s freedom of expression in this manner was both proportionate and necessary because it protected the “public order” by guarding against the dissemination of confidential information. These restrictions were therefore within the ambit of Article 19(3) of the ICCPR.
In this regard, the Appeals Chamber observed that the Trial Chamber found that the effect of Hartmann’s disclosure of confidential information decreased the likelihood that states would cooperate with the Tribunal in the future, thereby undermining its ability to exercise its jurisdiction to prosecute and punish serious violations of humanitarian law.

See Hartmann, Judgement, Case No. IT-02-54-R77.5-A, App. Ch., 19 July 2011

Mladic case, will it be joined with the Karadzic's?

 Yesterday the pre-trial judge in the Mladic case granted the Prosecution’s motion for the amendment of the indictment.
According to the Prosecution’s submission, the proposed indictment conforms to the scope and structure of the indictment in the Karadzic case. The amended indictment, in the Prosecution’s view, would allow for a possible joinder of the two cases.

Karadzic was arrested almost 3 years ago. Indeed, the joinder may further delay the proceedings against him.
First, the pre-trial stage for Mladic may take quite a long time. For Karadzic it took more than a year. In the Mladic case, it may take even longer if the reports of his poor health are true.
Moreover, if Mladic does have serious health problems, then the joint trial will proceed even slower than the current case against Karadzic.
Secondly, some evidence, presented so far by the Prosecution in the Karadzic trial, may be relevant to the Mladic case. Such evidence would have to be re-introduced in the joint trial.

Indeed, the judges will weigh all the relevant factors to decide whether it is in the interest of justice to join the accused.

If Mladic was indicted only with the Srebrenica Genocide, it would have been a streamlined process.
So far, out of all cases adjudicated by the Tribunal, it has been only the Srebrenica massacre that was qualified by the judges as Genocide.

See also Prosecution moves for splitting Mladic trial. Milosevic lesson learned?

Guilty without trial?

In the recent Gotovina et al. judgement, the Trial Chamber, inter alia, found that the former Croatia President Tudjman “was a key member of the joint criminal enterprise.”
The Chamber also found that “high-ranking Croatian military officials, including Tudjman, ... used the Croatian military forces and the Special Police to commit the crimes within the objective of the joint criminal enterprise.

Indeed, Tudjman, who died in 1999, was never charged with any crimes and never had an opportunity to defend himself against any criminal charges.

This is not the first international Tribunals’ judgement which named alleged perpetrators who were not on trial and did not have the opportunity to challenge the evidence against them.

For instance, the Vasiljevic judgement (ICTY) also contains numerous references to crimes committed by two co-accused who, by that time, had not yet been arrested and tried. In this regard, the Trial Chamber made the following disclaimer in the judgement:

The findings by the Trial Chamber in relation to other individuals named in the evidence have been based on the evidence given in this trial, and they were made for the purposes of this trial. They have not been made for the purpose of entering criminal convictions against those other individuals. 
In particular, the two co-accused who have not yet been arrested, ... have not been found guilty beyond reasonable doubt in this trial of any of the crimes charged against them in the Indictment. They are not in any way bound by the findings made in this trial, and they will be able to challenge fully any evidence given in this trial which implicates them if it is given against them in their own trial before this Tribunal.

In the Bisengimana case (ICTR), the Defence submitted that his client had been mentioned in the Semanza trial judgement in numerous paragraphs as a co-perpetrator. The Defence contended that this violated Bisengimana‘s right to be presumed innocent until proven guilty.
The Trial Chamber ruled that it has no jurisdiction over the Semanza judgement issued by a different Camber and in which the accused was not represented.
At the same time, the Chamber affirmed that the accused is presumed innocent, whatever the findings in the Semanza Judgement, and will be given full opportunity to defend himself and challenge the Prosecution case during his own trial.

In both Semanza and Vasiljevic cases the alleged perpetrators mentioned in the judgements were then tried and had opportunity to challenge the charges against them.
This makes those cases different from the Tudjman one where the person was not even charged with the alleged crimes.

See

Gotovina et al., Judgement, Case No. IT-06-90-T, T. Ch., 15 April 2011, paras 2316, 2320.
Bisengimana, Decision on Defence Urgent Motion to Acknowledge Violation of the Accused’s Rights, Case No. ICTR-2001-60-I, T. Ch., 20 August 2004, paras 13, 16.
Vasiljević, Judgement, Case No. IT-98-32-T, T. Ch., 29 November 2002, para. 23.

Seselj case: presiding judge warns of possible "tragedy"

The presiding judge in the Seselj case (French judge Antonetti) has made public his “observations” on the Registrar’s decision on the selection of experts for examination of the state of health of the accused.

In the document, the judge notes that the accused refused to communicate with one of the experts, cardiologist, whose nationality, in the judge’s view, creates a “problem”.

The judge recalls that he was “almost certain that the accused would challenge the British cardiologist given what he had previously held against members of NATO who bombed the Serbia”.
He further opined that it would have been wiser if the Registry had appointed a cardiologist of Russian nationality since the objective for the Chamber was to have a complete view of the health of the accused, especially his heart problems.

Antonetti has stressed that the judges of the Tribunal shall avoid any risk in this matter especially in light of the Slobodan Milosevic’s case.

The judge states that there is risk that the accused might die suddenly. A post mortem might then reveal that the heart and arteries of the accused were in ‘critical condition’, and this could have been prevented,

He noted that he “felt obliged” to make opinion in this case public since, if the case “ends in tragedy”, all those involved may be individually responsible for the outcome.

The judge concluded that the Registrar shall appoint a cardiologist of a nationality other than American or British. The most productive way, in his view, would be to ask the accused to choose an expert from the Registrar’s list.

Šešelj, Observations du Président de la Chambre, le Juge Jean Claude Antonetti, Relatives aux Écritures du Greffe Prises en Application de l’Article 33 B) du Règlement Concernant la Désignation d’Experts, Case No. IT-03-67-T, T. Ch., 28 March 2011.

It is noteworthy that earlier, in other case where judge Antonetti is also presiding (Prlić et al.), one of the Defence counsel applied to the President of the Tribunal to intervene  because, in his opinion, the Trial Chamber is incapable to manage the case.
In particular, the counsel referred to the “unusually large number of dissenting opinions that Presiding Judge Antonetti has rendered in this case (i.e. at least 50)” and opined that this “is indicative of an intractable division on the Bench bordering on antipathy and suggestive of the possibility that the Trial Chamber is incapable of acting in the collegial manner that proper deliberation requires.”

Prlić et al., Jadranko Prlić’s Request for the President to Convene an Independent Panel of Judges or to Consult with the Bureau to Determine Whether this Trial Chamber Can Properly Function in Deliberating and Rendering a Fair Judgement, Case No. IT-04-74-T, Counsel for Jadranko Prlić, 14 December 2010.

Chamber denied Karadzic’s request to order the Prosecution to collect material for him

In the Karadžić case, the accused requested the Trial Chamber to direct the Prosecution to obtain and disclose any prior statements given by all Prosecution witnesses in domestic proceedings from the authorities in Bosnia and Herzegovina, Croatia, and Serbia.

In this regard, the Chamber recalled that the Prosecution’s obligation to disclose to the Defence copies of the statements of its witnesses extends only to material in the possession of the Prosecution. 
The Chamber noted that the accused was essentially asking the Prosecution to conduct his own investigations, rather than seeking its assistance on a case by case basis to obtain specific material should he encounter difficulties in doing so himself.

The Chamber refused to consider such a broad request.
At the same time, the Chamber expressed its trusts that should the Prosecution become aware of prior statements or testimony given by any of its witnesses to domestic bodies, it will alert the accused thereto.
Furthermore, should the accused encounter difficulties in obtaining such material from national courts or authorities, and the Prosecution be in a position to assist, this is also a matter for the parties to work out between themselves.

The Chamber also found erroneous the accused’s suggestion that he would direct to the authorities of the states in question broadly framed requests for any material relating to all Prosecution witnesses and that, absent the provision of such material, motions for binding orders would be filed.
The Chamber recalled that binding orders must satisfy a strict test of necessity and not be formulated in a manner which places too onerous a burden upon the state in question. Only if the accused is unable to obtain specific material relating to specific witnesses from the authorities of a particular state, he may seek the intervention of the Chamber.

Karadžić, Decision on the Accused’s Motion for Order to Obtain Witness Statements and Testimony from National Courts, Case No. IT-95-5/18-T, T. Ch., 12 January 2011.

Residual Mechanism for the ad hoc Tribunals

Two days ago, the Security Council decided to establish the International Residual Mechanism for Criminal Tribunals (Mechanism) and adopted its Statute.

The purpose of the Mechanism is to carry out a number of essential functions of the two existing ad hoc Tribunals, including the trial of remaining fugitives indicted by the ICTY or ICTR as the Tribunals are supposed to complete their work no later than December 2014.

The Mechanism can hardly be seen as a “new” Tribunal.

Under the Statute, it shall continue the functions of the ICTY and of the ICTR.
The two branches of the Mechanism, one for the ICTY and another for ICTY, will have their seats in The Hague and in Arusha respectively. They will commence functioning on 1 July 2012 (branch for the ICTR) and 1 July 2013 (branch for the ICTY).

The Mechanism will continue the material, territorial, temporal and personal jurisdiction of the ICTY and the ICTR.
It will have the power to prosecute only the persons indicted by the ICTY or the ICTR and cases of contempt.

There will be two Trial Chambers (one for each branch of the Mechanism) and an Appeals Chamber common to both branches.
Like in early stage of the ad hoc Tribunals, there will be one chief Prosecutor for both branches of the Mechanism.
The President and the Registrar will also be common to both branches.

The Draft Rules of Procedure and Evidence of the Mechanism, which shall be based on the ad hoc Tribunals’ Rules, are to be submitted by the Secretary-General no later than 30 June 2011 for consideration and adoption by the judges of the Mechanism.

Imposition of increased sentence by the Appeals Chamber: judge Pocar’s dissent

Last week, in the Sljivancanin case, the ICTY Appeals Chamber, upon the review, imposed a new sentence of 10 years of imprisonment, reducing 17 years sentence imposed on appeal.
The new sentence, however, is still higher than the five-year sentence imposed by the Trial Chamber.

In his partially dissenting opinion, judge Pocar reiterated his disagreement with the Tribunal’s practice of increasing sentence by the Appeals Chamber.

For the reasons already expressed in his dissenting opinions in the previous cases (Galic,Semanza, Rutaganda, and Mrksic), the judge reaffirmed the he does not believe that the Appeals Chamber has the power to impose a new sentence on the accused that is higher than that which was imposed by the Trial Chamber.

In the judge’s view, the Appeals Chamber is bound to apply Article 25(2) of the ICTY Statute in compliance with fundamental principles of international human rights law as enshrined in, inter alia, the International Covenant on Civil and Political Rights.
Article 14(5) of the ICCPR provides that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”. 

The judge opined that the right to appeal a sentence should be granted to an accused before the Tribunal in all situations, which is not the case for the new sentence imposed by the Appeals Chamber.

According to the judge, the Appeals Chamber should have remitted the determination of sentence to the Trial Chamber in order to ensure that the right to appeal against sentence is upheld.

Šljivančanin, Review Judgement, Case No. IT-95-13/1-R.1, App. Ch., 8 December 2010, Partially Dissenting Opinion of Judge Pocar

Karadzic case: Trial Chamber suspended proceedings due to the disclosure violations by the Prosecution

Yesterday, the Trial Chamber in the Karadžić case ordered the suspension of proceedings for a period of one month due to the violations by the Prosecution of its disclosure obligations.

The Trial Chamber, during the course of the hearing, ordered the suspension to allow the accused and his team to review around 14,000 pages of material containing potentially exculpatory information, disclosed to him by the Prosecution at the end of October 2010.

According to the presiding judge, “the sheer volume of this material is such that it is in the interest of justice to suspend the proceedings temporarily.”

In determining the period of suspension, the Chamber also took into consideration the significant number of violations by the Prosecution of its obligations to disclose documents to the accused, which have been recorded by the Chamber in several previous decisions.

The presiding judge stated that the Chamber was increasingly troubled by the potential cumulative effect of late disclosure on the overall fairness of the trial.
He urged the Office of the Prosecutor to take seriously its disclosure obligations and ensure that all necessary resources are dedicated to ensuring timely disclosure of material to the accused. 

The day before, on 2 October, the Chamber, having considered disclosure violations by the Prosecution, ordered that none of the witnesses affected by the recent untimely disclosure of their statements may be called to testify before 31 January 2011.

Previously, in September 2010, the Chamber had suspended the trial for a period of one week to allow the accused and his team to review a large volume of potentially exculpatory material.

See also previous post: "Karadzic case: Prosecution disclosure errors".

Karadzic case: Registrar’s decision restricted accused's right to freedom of expression

Yesterday, the President of the ICTY found Deputy Registrar’s decision, denying a Karadžić’s request for media contact, an unjustified restriction of Karadžić’s right to freedom of expression.

In his request to the Registrar, Karadžić had sought permission to contact a journalist and editor of the Austrian magazine "Profil" by way of written responses to questions.

The Registrar denied publication of one of the Karadžić’s responses on the basis that it “unfairly and incorrectly misrepresents the work of the Office of the Prosecutor of the ICTY.”

Indeed, pursuant to Rule 64bis(B)(ii) of the ICTY Rules of Detention, the Registrar may deny a detainee contact the media if such contact could interfere with the administration of justice or otherwise undermine the Tribunal's mandate.

In this particular case, however, the ICTY President found that the Deputy Registrar’s decision was unreasonable and thus amounted to an unjustified restriction of Karadžić’s right to freedom of expression.

The President noted that the Deputy Registrar failed to specify how the response, which contained the accused’s personal opinion alleging bias on the part of the OTP, could either interfere with the administration of justice or otherwise undermine the mandate of the Tribunal.

The President emphasised that the mere fact that the Deputy Registrar disagrees with the accused’s opinion, without more, does not provide an adequate basis for curtailing Karadžić’s right to freedom of expression.

According to the President, no reasonable person who has properly applied his mind to the issue, could arrive at the conclusion that the publication of Karadžić’s subjective view alleging bias on the part of the OTP and a general lack of impartiality in its conduct of investigations, could interfere with the administration of justice or otherwise undermine the Tribunal’s mandate.

Karadžić, Decision on Request for Reversal of Limitations of Contact with Journalist: Profil Magazine, Case No. IT-95-5/18-T, President of the ICTY, 11 October 2010.

Intercepts, obtained in violation of domestic law, can be admitted into evidence

Today, in the Karadžić case, the Trial Chamber reiterated that intercepted evidence, obtained in violation of domestic law, should not automatically be excluded from admission into evidence.

The accused objected to the admission of the intercepts of telephone conversations involving various individuals, including the accused.
He argued that that they were intercepted in violation of Bosnian law and universal principles of the right to privacy.

According to the Chamber, the Tribunal jurisprudence is clear that evidence obtained illegally is not, a priori, inadmissible, but rather that the manner and surrounding circumstances in which the evidence was obtained, as well as its reliability and effect on the integrity of the proceedings, will determine its admissibility.

The Chamber noted that admitting intercepts of conversations that may have been obtained in contravention of domestic law would not violate the accused’s right to privacy to such an extent that the integrity of the proceedings would be damaged.

It was recalled that the fundamental right to privacy is not absolute and may be derogated from in times of emergency.

The Chamber also stated that the admission of evidence that may have been obtained illegally would not conflict with the need to ensure a fair trial.

Considering the jurisdiction that the Tribunal has to prosecute and adjudicate serious violations of international law as well as the charges brought against the accused, the Chamber considered that intercepted evidence, even if it may have been obtained in violation of applicable domestic law, should not automatically be excluded from admission into evidence.

Karadžić, Decision on the Accused’s Motion to Exclude Intercepted Conversations, Case No. IT-95-5/18-T, T. Ch., 30 September 2010

Provisional Release: Chamber’s discretion

Pursuant to Rule 65(B) of the ICTY Rules, provisional release may be ordered by a Trial Chamber only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.
Indeed, a Chamber retains discretion not to grant provisional release even if it is satisfied that the two conditions given in Rule 65(B) have been met.
Last week, in the Haradinaj case, the Trial Chamber denied the accused’s motion for provisional release even though the two conditions of Rule 65(B) were met.
The Chamber took into account that that witness intimidation remains prevalent in Kosovo (where the accused formerly was a prime-minister) and that there had been an unprecedented atmosphere of widespread and serious witness intimidation surrounding the trial.
The Chamber further accepted the submission of the Prosecution that a decision to grant the accused provisional release will draw additional media attention to the proceedings, which will add to the already threatening atmosphere for witnesses and that the publicity following such a decision may encourage the accused's supporters to engage in acts of intimidation.
The Chamber found that although the conditions set forth in Rule 65(B) were met, the Chamber should exercise its discretion to deny provisional release.
The Chamber noted that in exercising its discretion in this way the Chamber attached special importance to the risk to the integrity of the trial posed by the accused's release and it took into account the likelihood that the pre-trial phase would not be lengthy.

Haradinaj, Decision on Ramush Haradinaj's Motion for Provisional Release, Case No. IT-04-84bis-PT, T. Ch., 10 September 2010.

See also previous post on this blog: "The ICTY President: the Appeals Chamber overstepped its boundaries".

ICTY Trial Chamber ordered investigation into allegations against some Prosecution staff

In the Šešelj case, the accused had filed a motion for contempt alleging pressure or intimidation on the part of the Office of the Prosecutor towards some witnesses. The Prosecution stated that all the allegations were false.

Recently, the Trial Chamber issued a redacted version of its decision on the motion.
The Chamber pointed out that certain witnesses, when testifying before the Chamber, referred to pressure or to attempts to intimidate to which they were subjected by investigators for the Prosecution as well as to irregularities during their preliminary interviews by the Prosecution.

The Chamber held that an amicus curiae ought to investigate the motion for contempt and inform the Chamber whether there exist prima facie sufficient grounds to initiate a proceeding for contempt against certain members of the Prosecution.

Accordingly, the Chamber ordered the Registrar to appoint an amicus curiae to investigate “possible intimidation or pressure, albeit indirect, exerted by certain investigators for the Prosecution” and to investigate “techniques used by these investigators to obtain preliminary written statements from witnesses”.

It is the first time that such an investigation has been ordered in regard to the OTP staff.

Šešelj, Redacted Version of the “Decision in Reconsideration of the Decision of 15 May 2007 on Vojislav Šešelj’s Motion for Contempt against Carla Del Ponte, Hildegard Uertzretzlaff and Daniel Saxon”, Case No. IT-03-67-T, T. Ch., 29 June 2010

Prosecution has no obligation to take a written statement from a witness for the purpose of disclosure

In the Stanišić and Simatović case, the Defence requested the Prosecution to obtain written statement from a witness who was scheduled to testify and disclose it to the Defence. The Defence argued that it was disadvantaged by the fact that there was no prior statement of the witness.
According to the Defence, it was entitled to the witness’s previous evidence and “to the protection which flows from the disclosure rules, which is a reasonable time to consider that evidence, investigate it, and prepare for cross-examination.”

The Prosecution informed the Defence of the witness’s refusal to cooperate with the Prosecution and for that reason there was no prior ICTY statement.
The Prosecution also argued that there is no requirement that, before a witness can be called as a court witness, that person is compelled to write a statement.

The Trial Chamber accepted the Prosecution arguments and noted that an "uncooperative" witness may give testimony without providing the Prosecution with a prior statement.
The Chamber recalled that the obligation to disclose witness statements extends to all prior statements in the custody or under the control of the Prosecution. However, Rule 66 does not require the Prosecution to produce a statement.

The Chamber emphasized that the Prosecution is neither able nor obliged to disclose documents that are not in its possession, or to which it does not have access.

The Chamber also found that the fact that a witness does not have a prior statement does not render a trial unfair or automatically put a party at an unjust disadvantage.
A witness may provide evidence which was unforeseen to both parties during his viva voce examination, independent of any previous statements, and that it is for the Chamber to determine, on a case by case basis, whether this new information could affect the fairness of the trial proceedings.

Stanišić and Simatović, Reasons for Decision on Postponement of Cross-Examination of the Testimony of Witness Milovanović, Case No. IT-03-69-T, T. Ch., 22 July 2010.

The ICTY President: the Appeals Chamber overstepped its boundaries

A few days ago, the ICTY Appeals Chamber, by majority, partially nullified the acquittal of the former commander of the Kosovo Liberation Army Haradinaj and ordered a partial re-trial of the case.

The Appeals Chamber found that the Trial Chamber seriously erred in failing to take adequate measures to secure the testimony of certain Prosecution witnesses.

The majority opined that the Trial Chamber placed undue emphasis on ensuring that the Prosecution took no more than its pre-allotted time to present its case, and that the Trial Chamber’s deadlines for presenting evidence were respected, irrespective of the possibility of securing the testimony of two key witnesses.

The majority concluded that the Trial Chamber failed to take sufficient steps to counter the witness intimidation. Given the potential importance of these witnesses to the Prosecution’s case, the error, in the majority view, undermined the fairness of the proceedings and resulted in a miscarriage of justice.


In its Partially Dissenting Opinion, the presiding judge Robinson (the President of the Tribunal) opined that these findings of the majority bring into question the limits of the trial and appellate functions.

The judge disagreed with the majority for several reasons.

First, the judge noted that, in effect, the majority approached the appeal by asking whether the Trial Chamber could have done more to assist the Prosecution in securing the attendance of its witnesses, when the relevant area of inquiry was whether, in light of all the circumstances, what it did was reasonable.
The judge recalled that in this case, the Trial Chamber thrice extended the time for the Prosecution to present its case. It did so because it wanted to provide the Prosecution as much time as possible to secure the attendance of these important witnesses.

Second, in the judge’s view, what the majority opinion amounts to a substitution of its own discretion for the discretion exercised by the Trial Chamber, and that can only be done where a discernible error on the part of the Trial Chamber can be demonstrated.
The judge opined that the majority opinion constitutes an overstepping by the Appeals Chamber of its boundaries. According to the judge, this is a dangerous precedent, which militates against the proper discharge by the Tribunal of its mandate.

Haradinaj et al., Judgement, Case No. IT-04-84-A, App. Ch., 19 July 2010.

Delic case: son of the deceased person not allowed challenging his conviction before the ICTY

In the Delić case, the convicted person passed away during the proceedings on his appeal against the Trial Chamber’s judgement.
The Defence requested that the appellate proceedings continue, on request of the deceased’s son, and the appeal judgement be issued despite the appellant’s death.

According to the Defence, if relatives of the deceased person are not permitted to pursue his appeal, then "he and his family are deprived of any opportunity of clearing his name, a gross injustice."

The Defence noted that the principle that the family of a deceased person may pursue their appeal against conviction is well recognised, for instance, in England. It concluded that the Tribunal shall also afford the family of the deceased person the same opportunity to clear his name.

Delić, Formal Notification of Death and Motion for Continuation of the Appeal Proceedings, Case No. IT-04-83-A, 21 April 2010.

The Appeals Chamber denied the motion merely pointing out that the son is not a party to the proceedings before the Tribunal and, therefore, has no standing to submit a motion.

The Chamber concluded that the motion was not validly filed before the Appeals Chamber and that it has no jurisdiction to consider its merits.

Delić, Decision on Motion for Continuation of the Appellate Proceedings, Case No. IT-04-83-A, App. Ch., 29 June 2010.