- Debate on victims’ access to documents
- The role of victims in the proceedings leading up to and during the trial is debated
- Chamber rejects request for applicants to participate in status hearing
Single Judge rejects Office of Public Counsel for Victims (OPCV)’s request to access parties’ observations
After having been appointed to represent unrepresented applicants in the Democratic Republic of the Congo (DRC) situation, on 18 October OPCV requested access to the situation file index and the Parties’ observations on victim applications a/0004/06 to a/0009/06; a/0016/06 to a/0063/06, a/0071/06 à a/0080/06 and a/0105/06. The Prosecutor supported disclosure of the observations, however he opposed disclosure of the index. He underlined that he was able to assist OPCV in identifying documents filed by his office that were relevant to OPCV’s mandate.
On 7 December, Single Judge Steiner rejected OPCV’s request. She took the opportunity to clarify the notification process. She noted that OPCV was requesting information not provided even to those granted victim status. She observed that notifying victim representatives of Prosecution and Defence observations had not always been the Chamber’s practice and ruled that such observations shall not be notified to the applicants or their legal representatives. OPCV requested leave to appeal on 17 December 2007.
Chamber rejects Defence Office request for clarification of its mandate
On 11 September 2007, the Court ruled that the mandate of the Office of Public Counsel for the Defence (OPCD) was not a continuation of the prior mandate of the ad hoc Counsel for Defence. The Chamber stated that therefore only the Court could order the disclosure of confidential information relating to victims.
On 12 September, OPCD requested that the Judge clarify the meaning of this decision.
On 3 October the Pre Trial Chamber ruled that the request for clarification was not admissible.
OPCD’s request for additional information on victim applications is rejected
[Background]On 31 August OPCD requested that the legal representatives of victims or the Victims’ Participation and Reparation Section (VPRS) disclose additional information on victim applications such as potential pre-existing medical conditions; whether they had been subject to investigations; whether they had a link with other persons applying for participation, and to disclose further information on translators and on the individuals who witnessed the applications.
The request was rejected on 7 December on the ground that applications for participation proceedings were not related to the determination of the guilt or innocence of the accused. Moreover, none of the provisions require legal representatives to provide such information unless requested by the Court itself under Regulation 86(7).
DRC – LUBANGA CASE
Hearing on matters requiring early determination: debate on victims’ access to documents
[Background] A hearing took place in early September on matters such as the date of the trial, the languages to be used, disclosure and the e-court protocol. Parties and victim representatives were invited to submit observations on these issues.
The Office of the Prosecutor (OTP) submitted its observations on these issues on 11 September 2007, highlighting that the trial should start as early as possible. OTP indicated that victims should, through their legal representatives, have access to materials which were filed by the Parties as evidence and which are publicly available. Access to other documents should only be granted on a case by case basis.
Counsel for Victims a/0001/06, a/0002/06, and a/0003/06 submitted their observations on 24 September 2007. They asked that, pursuant to rule 131(2), all documents presented by the parties before the Pre-Trial Chamber and the transcripts of the hearings of that Chamber – or the redacted versions thereof - be made available to them. They also asked for access to all documents which will be presented by the parties before the Court during the proceedings and to the transcripts of the proceedings. They also requested that the Chamber grant them access to the complete index of the record of the case (a request also made by the legal representative of victim a/0105/06).
The defense indicated on 24 September 2007 its support for OTP’s submission that victims should only have access to public documents.
The role of victims in the proceedings leading up to and during the trial is debated
[Background] A second hearing took place in October, addressing the role of victims in the proceedings leading to and during trial. Parties and participants were invited to submit observations.
Victims’ legal representatives support a safe and extended participation
The victim representatives highlighted that some of their clients were still minors, and were often considered as traitors by their former commanders. This meant that their families could be in danger as a consequence of them participating. They stressed that victims were often still in the field.
The legal representatives highlighted that security for victims and their families was a primary concern. They called for a debate on forms of reparation. They asked to participate in all proceedings, highlighting that according to Rule 91-2, participation was the norm and any restriction had to be justified. They requested to make preliminary and concluding remarks during trial and to allow some victims to be heard individually by the Court.
The legal representatives also urged the Court to give a decision as soon as possible on the other applications for participation in the Lubanga case and added that grouping victims for legal representation purposes should only take place in consultation with the different groups of victims involved.
OPCD stresses the difference between trial and reparation proceedings
OPCD submitted its views, asserting a distinction between participation in the proceedings and reparations claims. It stated that in the latter, victims could call witnesses and experts to address their concerns, but that such debates could only arise after determination of guilt.
OPCD requested that victims’ status already granted at the Pre trial stage be re-examined by the Trial Chamber as this determination had been made on the basis of the arrest warrant rather than the confirmation of charges decision. It also asked that victim participation be conditional on disclosure of victims’ identity. OPCD stressed the requirement of a “personal interest” needed for participation in each proceeding, and that victims were not parties in the trial.
Victims are not parties to the trial but can contribute positively says OTP
OTP submitted its observations, stating that victims can contribute positively to hearings. However, he recalled that only the Defence and Prosecution could enjoy the rights granted to parties (such as pre trial disclosure and witness interrogation). He added that victim representatives should not be granted a general right to present observations on all questions related to the trial and should not be allowed to respond or make submissions on issues that were solely inter-parties (such as determination of guilt).
OTP did not wish anonymous victims to be permitted to participate in the trial proceedings in any manner.
Chamber rejects request for applicants to participate in status hearing
On 25 October, the Chamber rejected a request made by the legal representative of a number of victim-applicants. The applicants wished to make submissions on the role of victims at the status hearing, seeking to address, inter alia, local circumstances limiting communication and affecting the rights of victims to be informed of decisions, the role of VPRS, security concerns of victims and intermediaries, legal aid and the treatment of pending applications.
The Chamber recalled that only victims who were granted victim status before the Trial Chamber could participate in the hearing; and that Rule 103 on “Amicus and Other Interveners” was not designed to encompass the views of victims waiting for determination on their applications to participate.
Victims’ Counsel requests access to the index of filings and other documents in case
On 18 October, OPCV requested access to documents relating to applicants that it represents. In particular, it highlighted that without access to the case file index, it could not identify relevant documents that had been filed confidentially or under seal. OPCV also requested the parties’ observations on the said applications and the unredacted version of the confirmation of charges decision and its annex.
OPCD opposed the request. OTP, while rejecting the main part of the request, supported the transmission of the confidential observations from the parties made on the victims’ applications.
Single Judge Steiner in the DRC situation decided on 7 December that observations on the applications made in accordance with rule 89(1) shall not be notified to applicants or their legal representatives. (See above DRC-Situation) OPCV requested leave to appeal.
Trial date is set for 31st March 2008
On 9 November, Trial Chamber 1 set the trial start date for the 31 March 2008. This takes into account time for parties to prepare once the Prosecutor has disclosed all evidence, which the Court ordered for 14 December 2007.
Victims’ Counsel submits information on criteria for admitting victims in case
It recalled that while not mentioned in the Statute or Rules, PTC 1 had made a distinction without explaining the implications between direct and indirect victims.
OPCV suggested the following elements as criteria for victim status in the Lubanga case:
OPCV argued that this list was not exhaustive: other evidence during trial might bring further details / other elements.
OPCV opposed OTP’s restricted view of the modalities of victims’ participation: victims should have full access to case file documents unless the Chamber ruled otherwise. OPCV also supported the hearing of evidence on reparation at the trial stage, in accordance with Rule 56 of the Court’s Regulations.
Finally, OPCV opposed OPCD’s request that victim participation be made conditional on revealing their identities and indicated that anonymity was not contrary to fair trial. As for common representation, consultation with current representatives, intermediaries and victims should take place before imposing a common legal representative.
Trial Chamber rules on the Registrar’s report on victims’ applications
On 9 November, Trial Chamber I elaborated on the Registry’s report on victims’ applications. It should contain:
Victims’ Counsel granted leave to be heard on the dual status of victim-witnesses
On 27 November, OPCV was granted leave to be heard on the dual status of victims-witnesses. OPCV had asserted that knowledge of the dual status by victims’ lawyers, as well as the manner of contacting victims with dual status needed to be addressed.
Participating victims to be notified of ex-parte proceedings
On 6 December, the Trial Chamber analysed the scope of ex-parte proceedings and stressed that when an ex-parte procedure was taking place, the other party should be notified of the procedure and its legal basis, except in cases where it would be inappropriate.
Protection: Victims’ Counsel and Victims & Witnesses Unit (VWU) make submissions on the notion of victims appearing before the Court for protection purposes
At the Chamber’s request, OPCV submitted its analysis on distinctions between victims and victims who appear before the Court on 7 December 2007. It highlighted that both notions could be found throughout the founding texts of the ICC on the issue of protection. It argued that a distinction should be made regarding the Victims and Witnesses Unit mandate under article 43(6) of the Statute and the Court’s mandate under article 68(1).
OPCV suggested an interpretation in line with the scope of victims’ participation and the general obligation of protection binding the Court. The Court’s obligation to protect victims under Article 68(1) could not be interpreted as limited to certain categories of individuals. With respect to VWU’s mandate to protect and support victims, OPCV highlighted that reference to “victims who appear before the Court” under Art 43(6) should benefit from the inclusion of victim- applicants.
The Victims and Witnesses Unit responded on 12 December that its services, outlined in Art 43(6), were limited to victims participating in the case. It suggested that it had been a deliberate decision by the drafters to include the phrase "who appear before the Court", to restrict the responsibilities of the Unit.
On the Court’s broader mandate to protect victims, VWU stated it bore responsibility for the protection of all victims including victim applicants, but that this responsibility was shared with the other organs of the Court. It argued that OTP, the Defense and victim representatives should be bound by the same wider obligation.
The Registrar highlighted that protection under Article 68(1) was based on 3 principles:
DRC – KATANGA CASE
Germain Katanga is transferred to the ICC
On 18 October 2007, the Court made public the arrest warrant against German Katanga which was issued on 2 July 2007. On 17 October 2007, the Congolese authorities had surrendered and transferred Mr. Germain Katanga, a Congolese national and alleged commander of the Patriotic Resistance Force in Ituri (“FRPI”), to the ICC. The Chamber found that there were reasonable grounds to believe that Mr. Katanga, as the highest ranking FRPI commander, had played an essential role in the planning and implementation of an indiscriminate attack against the village of Bogoro, in the territory of Ituri, on or around 24 February 2003.
The warrant of arrest for Mr. Katanga lists 9 counts including:
DARFUR – SITUATION
OPCD’s requests are rejected: clarification on the level of information to provide with applications for participation
On 21 August, the Defence Office requested more information on some victims’ applications: the existence of previous cases filed by the applicants; the conditions on which the applicants were granted asylum; statements they made in their asylum proceedings and the identification and the status of “witnesses” on the applications.
On 24 August, OCPD asked the Prosecutor to provide information on the intensity of hostilities in the villages mentioned by the victims’ in their applications; the presence of persons affiliated with armed groups in those villages; victims’ potential links with armed groups or commission of criminal acts.
On 3 December, the two requests were rejected. Single Judge Kuenyehia stated that:
11 victims granted status in the Darfur Situation
On 6 December, Single Judge Akua Kuenyahia, granted victim status in the Darfur Situation to applicants a/0011/07, 0012/07, 0013/07, 0015/07, 0023/07, 0024/07, 0026/07, 0029/07, 0036/07, 0037/07 and 0038/07.
She rejected a/0014/06, a/0021/07, a/0028/07, a/0030/07, a/0031/07, a/0032/07, a/0033/07 and a/0035/07.
In the decision Judge Kuenyehia covered the following issues:
On 10 and 12 December, both OPCD and OTP requested leave to appeal the decision on the grounds inter alia that the Court had not given sufficient reasoning to the decision and that it created uncertainty. They also questioned whether the Court could grant a general right to participate and whether it was only obliged to provide copies of the applications to the parties rather than order the provision of further information.
 Prosecution's response to the "Request of the OPCV to access documents in the situation record "ICC-01/04-413, 8 November 2007, http://www.icc-cpi.int/iccdocs/doc/doc363141.PDF
 Argumentation de la Défense sur des questions devant être tranchées à un stade précoce de la procédure ICC-01/04-01/06-991, 18 November 2007, http://www.icc-cpi.int/NR/exeres/465C63DC-0163-42F8-A4EF-721A3513F74D.htm
 ICC 01/04-01/06-994,19 November 2007, http://www.icc-cpi.int/NR/exeres/B1D62B9E-C262-41F2-8F46-1735C981606B.htm
 ICC 01/04-01/06-987, 18 November 2007, http://www.icc-cpi.int/NR/exeres/2D9035B7-F2E8-4D82-8336-AB5904E07401.htm
 ICC 01/04-01/06-1020, 9 November 2007, http://www.icc-cpi.int/NR/exeres/7ED9A74F-1476-4AF7-AFB1-C542DABE0AB6.htm
 ICC 01/04-01/06-1022, 9 November 2007, http://www.icc-cpi.int/NR/exeres/74CF7BC9-F020-4C8E-A58E-BBDCB614B120.htm
 ICC 01/04-01/06-1063,7 December 2007, http://www.icc-cpi.int/NR/exeres/BF79B817-5ED0-4795-90F0-0474D86EF5F2.htm
 ICC 01/04-01/07-1, 3 December 2007, http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/Related+Cases/ICC+0104+0107/Court+Records/Chambers/Pre+Trial+Chamber+I/Warrant+of+arrest+for+Germain+Katanga.htm
 ICC 02/05-110, 3 December 2007, http://www.icc-cpi.int/NR/exeres/5677599C-BFB2-4A2E-B15C-3C9CF6D69D35.htm
 Request for the Single Judge to order the Prosecutor to disclose exculpatory materials ICC-02/05-97, 24 August 2007, http://www.icc-cpi.int/NR/exeres/7F54CC72-D4EC-4E0F-A1A1-36ECB8381896.htm
 ICC 02/05-111, 6 December 2007, http://www.icc-cpi.int/NR/exeres/0DA4B3AE-3BB2-429D-B10C-76C10F537833.htm