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LEGAL UPDATE December 2008

ICC Victims’ Rights Legal Update

September- December 2008

(pdf version)

 

Democratic Republic of Congo (DRC)

Situation :

  • 04 Sept. 2008: Pre-trial Chamber I (PTC I) denied the Office of Public Counsel for the Defence (OPCD) request for leave to appeal the 3 July 2008 PTC’s decision granting 32 victims procedural status (rights of participation).
  • 04 Nov. 2008: PTC I decided on the procedural status of victims at the investigation stage of the situation in the DRC.
  • 28 Nov. 2008: PTC I rejected the OPCD request for leave to appeal its 4 November  decision.

Lubanga Case :

  • 6 Aug. 2008: The Appeals Chamber (AC) granted victims the right to participate in the appeals of the Prosecutor against the decision ordering the release of Lubanga and on the decision ordering the stay of proceedings.
  • 03 Sept. 2008: Trial Chamber I (TCI) maintained its decision to stay the proceedings against Mr. Thomas Lubanga.
  • 21 Oct. 2008: The AC confirmed the stay of proceedings against Mr. Thomas Lubanga but reversed the decision on the release of the accused.
  • 18 Nov. 2008:  TCI lifted the stay of proceedings and ruled that Mr. Thomas Lubanga should remain in custody until the trial begins in the end of January 09.
  • 28 Nov. 2008 : Victim applicants filed observations  through their legal representatives.

Ngudjolo Chui and Katanga Case:

  • 30 Sept. 2008: PTCI rendered its decision on the confirmation of charges against suspects Katanga and Ngudjolo Chui.
  • 26 Nov 2008: AC ruled on the Prosecutor’s unilateral relocation of witnesses.

 

Uganda

Joseph Kony, Vincent Otti, Okot Odhinambo and Dominic Owen Case:

  • 21 Oct 2008: Pre-trial Chamber II (PTC II) decided to start the proceedings to address the admissibility of the case.
  • 18 Nov. 2008: Various observations regarding the PTC II admissibility proceedings
  • 21 Nov. 2008: PTCII decided on the applications for participation of 56 victims
  • 28 Nov. 2008: PTCII feasibility of arrangements for victims representation

Situation in Uganda:

  • 17 Sept. 2008: PTC II single Judge on victims issues appointed Office of Public Counsel for Victims (OPCV) as legal representative of victims in the situation in Uganda.

 

Sudan/Darfur

Situation :

  • 08 Sept. 2008: The Registrar declared 5 additional victims provisionally indigent

 

Central African Republic

Bemba case:

  • 12 Sept. 2008: Pre-trial Chamber III (PTCIII) single judge addressed victims’ participation and protection before the hearing of the confirmation of charges.
  • 02 Dec. 2008: PTCIII decided on the time limit for the submission of new victim applications
  • 02 Dec. 2008: PTCIII postponed the confirmation of charges

 

________________________________________________________________

 

DRC: Situation

04 Sept 2008: PTC I denied the OPCD request for leave to appeal the 3 July 2008 PTC’s decision granting 32 victims procedural status[1].

[Background] In the investigation phase in the situation in DRC, the single judge in PTCI issued a decision on 3 July 2008 granting 32 out of 50 applicants procedural status in the proceedings.[2]

On 9 July, the OPCD filed a request for leave to appeal[3] the decision, challenging the ruling on two grounds:

- By deciding in favor of the applicants, the PTCI was essentially requiring the OPCD, in future procedings, to demonstrate that the elements of the crimes have not been met, which requires factual evidence. This reverses the burden of proof and violated the principle of in dubio pro reo (any doubt should benefit the accused).

- By referring specifically to some individuals and militia groups in its decision, the PTCI contravened the presumption of innocence. Such a factual pre-determination, contended the OPCD, deprives the persons or militias of their right to be heard.

Two legal representatives of victims,[4] the OPCV[5]and the Prosecutor[6] responded to the OPCD request for leave.

On 4 September 2008 PTC1 denied the request for leave to appeal[7] on the basis that in the investigative phase of the procedure, examination of victims’ applications, as provided for in rule 85 of the Rules, is an assessment of a procedural status; the burden of proof on those applicants is that they demonstrate that under rule 85, they can be prima facie (at first sight) considered as victims[8]. The PTCI, recalling previous decisions, stated that if victims’ applications lacked explicit or express references to the moral, material or contextual elements of the crimes listed in article 5 of the Statute, such elements could directly be inferred, in favour of the applicants, from the information provided in the applications[9]. The single judge distinguished the process of victims applying to participate in proceedings which is solely interested in determining their procedural status from other stages of the Court’s proceedings which concern the suspect or accused, or the reparations phase which is governed by other rules. It noted:

“[T]he application process is not related to questions pertaining to the guilt or innocence of the suspect or accused person or to the credibility of Prosecution witnesses as it only aims at determining whether the procedural status of victim should be granted to applicants. Hence, it can be distinguished from criminal proceedings before the Court, which include the investigation of a situation, the initiation of a case and the pre-trial, trial and appeal stages of a case, which are governed by specific articles, rules and regulations. Moreover, the single judge considers that the application process is not related to questions pertaining to the award of reparations, which are the subject of the proceedings provided for in article 75 of the Statute and rule 94 of the Rules.[10]

The PTCI ended by differentiating between a determination prima facie and a factual finding, declaring that: “[…] the first is an assertion which is still subject to proof, and the second is an assertion which has been determined by a Judge to have been proven[11].

For the aforementioned reasons the OPCD request was denied.

04 Nov. 2008: PTC I decided the procedural status of victims at the investigation stage of the situation in the DRC

PTC I denied procedural status to six applicants and granted it to thirty applicants at the investigation stage. Moreover, it ruled that the Registrar should inform and assist those who were granted procedural status and do not yet have legal representation. In the meanwhile, PTC1 ordered that the OPCV represent them. Finally, the PTCI called on the Prosecution, the OPCD and OPCV to maintain the confidentiality of the applications and to avoid direct contact with the applicants.[12]

28 Nov. 2008: PTC1 rejected the OPCD request for leave to appeal its 4 November  decision.  

OPCD’S request for leave to appeal was based on the argument that the decision did not directly address its proposals presented on 12 June and 18 July regarding falsification and unreliability of some victim’s applications. The Pre Trial Chamber considered that the “OPCD's Request for Leave fails to identify an "issue" within the meaning of article 82(1)(d) of the Statute, and the matter is therefore not subject to interlocutory appeal”[13].

 

DRC: Lubanga case

6 Aug. 2008: The Appeals Chamber grants victims the right to participate in the appeals of the Prosecutor against the decision ordering the release of Lubanga[14] and on the decision ordering the stay of proceedings.[15]

[Background] In its 13th June decision,[16] the TC1 had indefinitely stayed the proceedings against Mr. Thomas Lubanga Dyilo as consequences of the prosecution's failure to disclose to the Defence - or make available to the Chamber- certain potentially exculpatory materials which had been obtained pursuant to confidentiality agreements made under Article 54(3) (e) of the Rome Statute. The decision had the effect of halting the proceedings unless and until such time that the stay is lifted by a decision of either the Appeals Chamber or the TCI itself. The TC1 subsequently also ordered the release of the accused, on 2 July 2008.[17]

The Prosecution was accorded the right to appeal the first decision[18] and also appealed the decision to release Lubanga.[19] The accused remained in custody as the Appeals Chamber granted suspensive effect to this appeal.[20]

On 8-9 July and 16 July 2008 respectively, the legal representatives of victims filed requests to participate in the appeals.[21] The legal representatives argued, in respect of the stay of proceedings that:[22]

- The personal interests of the victims are affected by the appeal because the decision to stay the proceedings in respect of Mr. Lubanga Dyilo could lead to the permanent termination of the case;

- There would be no prospect for claims for reparation to be made against Lubanga to be adjudicated by the Trial Chamber;

- The Trial Chamber at paragraph 95 of the decision staying the procedure had found inter alia that "by staying these proceedings the victims have, in this sense, been excluded from justice”.

Regarding the release of the accused, the legal representatives emphasised security concerns[23].

On 15 and 29 July respectively, the Defence requested those victims applications for participation in the appeals to be rejected, contending that victims’ allegations are only based on generalised security concerns and do not demonstrate how their personal interests are affected in this appeal.[24] The Defence further argued[25] that:

- Victims have not established that their participation would be appropriate and that it would not be inconsistent with, or prejudicial to, the rights of the accused;

- The appeal does not relate to the exercise of the rights of victims; it concerns only the right of the accused to a fair trial and therefore does not affect the personal interests of the victims;

On 18 July, the Prosecutor, in his observations, did not oppose the participation of victims in the appeal regarding the release of the accused. It recalled that the Appeals Chamber has previously found in its 13 February 2007 decision[26] that “the personal interests of victims may be affected by the issues arising out of an appeal regarding the release of the accused and that the participation of victims in such an appeal may be appropriate”.[27] On 29 July, the Prosecutor also supported the victims’ applications to participate in the appeal against the stay of proceedings, submitting that the latter directly impacted "on the ability of those victims who have been permitted to participate to realise their recognised interests in the case".[28]   

[The decisions] On 6 August, the Appeals Chamber granted victims the right to participate in both appeals against the 13 June 2008 decision ordering the release of Lubanga and the decision to stay the proceedings.[29] The Chamber considered that all the criteria for participation were fulfilled by the victims, finding that “while the arguments on appeal are likely to relate to the obligations of the Prosecutor and the right of Mr. Lubanga Dyilo to a fair trial, the repercussions of the appeal on the personal interests of the three victims are considerable.”[30]

In deciding on this matter, the Appeals Chamber firstly recalled the criteria for victims’ participation in appeals, as set forth in a previous decision of 16 May 2008:

  • The individuals seeking participation must be victims in the case;
  • Their personal interests must be affected by the issues on appeal;
  • Their participation must be appropriate; and lastly
  • The manner of participation must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.[31]

The Appeals Chamber concluded that the criteria were fully fulfilled by the victims to be granted the right to participate in the appeal as:

- These victims had already acquired a status of victim and had participated in the Trial Chamber proceedings;

- Personal interests of the victims are affected in the issue pending before the Appeals Chamber since the repercussions of the appeal on the personal interests of the three victims are considerable;

- In the light of the outcome of the appeal, the participation of victims thereto is appropriate;

- Finally, the Appeals Chamber considered that the fact that participation of the three victims is limited to the presentation of their views and concerns solely relating to the issues rose by the parties in the appeal is consistent with the rights of the accused to a fair and impartial trial.

Following these decisions of the Appeals Chamber, the victims filed their views on 12 August 2008.[32]

Regarding the release of the accused, the victims argued in substance that only a provisional release could allow the Chamber to exert its control on the way the accused might behave, especially concerning the security of witnesses and victims; and that if a provisional release would be ordered, it should come with very strict conditions,[33] such as the prohibition to enter DRC, to contact victims or witnesses and to have contacts with certain members of his party (the UPC) or some armed forces.[34] Victims also argued that such a release would send the wrong message to both perpetrators and victims.

Regarding the stay of proceedings, the victims argued in substance a) that the interpretation of Article 54 (3) (e) of the Statute by the Trial Chamber is incorrect as it adds requirements that are not in the Statute,[35] b) that the Prosecutor’s behaviour is not in bad faith, c) that the right to disclosure is not absolute and without exceptions, and d) that the issues at stake could have been solved through less drastic remedies than a stay of proceedings.

The decisions of the Appeals Chamber on these two appeals were rendered on 21 October (see below).

03 Sept. 2008: Trial Chamber I (TCI) maintained its decision to stay the proceedings against Mr. Thomas Lubanga.

[Background] On 10 July 2008, the Prosecution filed an application, requesting the TCI to lift the stay of proceedings.[36]

[The decision] In its 3 September 2008 decision, TC1 started by recalling its guidance in the confirmation of charges hearing of 24 June 2008, under which it may consider lifting the decision staying the procedure:

- First, "the matter should be addressed comprehensively as part of a single application once the Prosecution's overall submissions regarding the relevant material have been formulated”.

- Second, "the Chamber is unlikely to approve a system that depends on its ability to memorise large quantities of information which it is unable to retain and study and which, furthermore, it is unable to compare with the other evidence in the case so as to assess its relevance for Article 67(2) and Rule 77”.

- Third, as this issue is potentially appealable, any proposal that the Trial Chamber should view the 54(3)(e) material will need to include conditions which enable the Chamber to refer to the detail of the evidence it has seen in a written decision, and which enables the Chamber to draft its analysis, setting out why it has reached each of its conclusions.

- Finally, “any material shown to the Trial Chamber must be available, if necessary, for review by the Appeals Chamber."

Reviewing the Prosecutor’s proposals regarding the extent to which the materials in its possession may be subject to disclosure, the TCI declared that it will lift the stay of proceedings if it is satisfied by the following two criteria:

- That it can adequately review - on a continuing basis – the documents in question, in a way which is susceptible to a meaningful appeal,

- That there is some real prospect that the accused will be given sufficient access to any documents which the Chamber considers to be exculpatory[37].

In this regard, it finally came to the conclusion that “there is a real prospect that the Prosecution will not be in a position to effect adequate disclosure to the accused of a significant number of documents (if the Chamber so orders) because, (…), there is currently no indication that some of the NGOs will be able to assist with the disclosure orders, whether by way of full disclosure, summaries or otherwise and for the United Nations, it is unclear whether sufficient disclosure, in an adequate form, will be possible”.

TC1 said it had to take this decision despite its awareness of the interests of victims and the people of DRC.

Nevertheless, TCI left open the possibility of issuing a decision lifting the stay at a later stage, after review of all the documents to assess which need to be disclosed and whether the proposed methods of disclosure accord with the  right of the accused to a fair trial[38].

Despite its keen awareness of the importance of the decision to the people of the DRC and the victims[39], the Chamber decided to maintain the stay of the proceedings. This matter is currently also under appeal.[40] 

21 Oct. 2008: The Appeals Chamber confirmed the stay of proceedings against Mr. Thomas Lubanga, but reversed Trial Chamber I (TCI) decision on his release

The Appeals Chamber dismissed the Prosecutor’s appeal of the TCI decision to stay the proceedings against Mr. Thomas Lubanga.[41] However, the Appeals Chamber reversed the decision of the PTC to release the accused.[42]

The decision on the stay] On 21 October 2008, the Appeals Chamber, unanimously confirmed the decision on the stay of proceedings based on the main following reasons:

- The Appeals Chamber found that TC1 did not err in ordering the stay of proceedings; The Appeals Chamber was indeed not persuaded by any of the arguments of the Prosecution.

- The provisions of article 54 (3) (e)[43], are strictly related to originating new evidence, and need to be applied in a manner that balances confidentiality agreements and fair trial.

- Confidentiality agreements shall be respected by all Chambers of the ICC thus; confidential material cannot be disclosed to the defence without the consent of the source.

- When a stay of the proceedings is ruled on a conditional basis due to possible changes in the situation that obstructed a fair trial to the accused, the measure is appropriate.

- The stay, which is not tantamount to the permanent termination of proceedings or acquittal, was not disproportionate or premature in the present instance. Indeed, the Prosecution had failed to disclose large amounts of potentially exculpatory material to the Defence and even the Chambers, as late as one week before the start of the trial. This issue had been consistently on the agenda of the Trial Chamber and there had been consistent warnings and orders to the Prosecution in this regard.

- If the Trial Chamber had gone ahead, there would have always been a lingering doubt as to the fairness of the trial. Yet, a fair trial is the only means to render justice, insisted the Appeals Chamber.

- The stay of the proceedings can be lifted if the reasons that originated it disappear, if doing so does not provoke unfairness to the accused person, mainly in terms of his/her right to be tried without undue delay. [44]

[The decision on the release] On the same day, the Appeals Chamber reversed the decision of TC1 regarding the release of Lubanga, based on the following reasons:

- The Appeals Chamber was persuaded by the arguments of the Prosecutor regarding its second ground of appeal: the Trial Chamber erred in finding that the order of the immediate and unconditional release of the accused was the only consequence of the stay of proceedings; indeed the Appeals Chamber found that according to Articles 58(1) and 60 (2) of the Statute, the Trial Chamber could have ordered the release with or without conditions. The stay of proceedings is indeed not tantamount to permanent termination of the proceedings or acquittal of the accused. The stay could indeed be lifted in the future.

- The Appeals Chamber found that the Trial Chamber also failed to take into account all relevant factors. For example, the Trial Chamber omitted the factors mentioned in its 29 May 2006 decision,[45] which set out that if the accused was to be released, he would likely go back to DRC and the ICC would no longer be able to secure his attendance at trial.

The Appeals Chamber thus remitted this question to the Trial Chamber for a new determination on whether Lubanga should remain in custody or be released. If the Trial Chamber decides again that the conditions for a continuous detention are not met, then the Trial Chamber must decide whether the liberation of the accused should be conditional or unconditional. The Judges in appeal underlined that such a decision must be taken on the basis of articles 60 and 58 (1) of the Rome Statute[46] and must take into account “all relevant circumstances” [47].

It meant that Lubanga remained in custody until the new decision of the Trial Chamber.

18 Nov. 2008:  TC1 lifted the stay of proceedings and ruled that Mr. Thomas Lubanga should remain in custody until the trial begins in the end of January.

After concluding that the reasons for the stay of proceedings ordered on 13 June 2008, were not in place anymore, inter alia, because the Prosecutor obtained the consent of the United Nations and some NGO’s to disclose the evidence they provided and a fair trial could be foreseen,  TCI decided to lift the stay. Moreover, in order to ensure that Mr. Lubanga attends his trial in January, Trial Chamber I decided that he should remain in detention[48]

28 Nov. 2008 and 10 Dec. 2008 : Victim applicants filed observations  through their legal representatives.

Following the 18 November hearing, TC1 set 28 November as the deadline for victims to submit their responses to the observations of 9 and 10 June of the Prosecutor and the Defense on their applications[49]. Victims and their representatives presented their comments on the 28th and are awaiting a decision on their applications.

 

DRC: NGUDJOLO cHUI AND KATANGA CASE  

30 Sept 2008: PTC1 renders its decision on the confirmation of charges against suspects Katanga and Ngudjolo Chui

On 30 September 2008, PTCI in the case of Germain Katanga and Matthieu Ngudjolo Chui rendered its decision on the confirmation charges.[50] The two suspects were charged with 3 crimes against humanity[51] and 7 war crimes[52].

According to the Rome Statute, the confirmation hearing aims at asserting the charges on which the Prosecution intends to seek trial. The requirements to be met in order to bring the suspects to trial shall be that the Prosecutor supports each charge with sufficient evidence to convince the PTC that there exist substantial grounds to believe that the person committed the crime charged[53].

Victims had requested[54] that the subsequent information they may provide in the proceedings be accepted as admissible evidence at the stage of confirmation of charges. Legal representatives for victims indeed submitted that there is no legal provision in the Rome Statute or in the Court regulations preventing it the admission as evidence, of information from people who have the procedural status of victim. The Chamber however decided not to consider the victims' request, on the basis that the victims’ applications do not contain evidence in the case and therefore, the Chamber considered that it was not necessary to decide on their admissibility[55].

Assessing whether there is sufficient evidence to establish substantial grounds to believe that the suspects can be sent to trial, PTCI decided that:

-       There is sufficient evidence to establish substantial grounds to believe that Germain Katanga and Mathieu Ngudjolo Chui agreed on a common plan to attack the village of Bogoro[56], to kill and murder its predominantly Hema civilian population, and to destroy their properties.

-       Germain Katanga and Mathieu Ngudjolo Chui jointly committed the war crime of using children under the age of fifteen years to participate actively in the hostilities.

Finally, PTCI confirmed:

(1)   the charge of murder constituting a crime against humanity;

(2)   the charge of willful killing as a war crime;

(3)   the charge of using children to participate actively in hostilities, as a war crime;

(4)   the charge of intentionally directing attacks against the civilian population of Bogoro village, constituting a war crime;

(5)   the charge of pillaging constituting a war crime;

(6)   the charge of destruction of property constituting a war crime;

(7)   the charge of sexual slavery as a crime against humanity;

(8)   the charge of sexual slavery as a war crime;

(9)   the charge of rape as a crime against humanity;

(10) the charge of rape as a war crime;

As they was insufficient evidence, PTCI declined to confirm:

(1)   the charge of other inhumane acts as a crime against humanity;

(2)   the charge of inhuman treatment as a war crime;

(3)   the charge of outrages upon personal dignity as a war crime.

The suspects, who are now given the status of accused before the International Criminal Court will be tried on 10 counts as confirmed and cited above. At the time of writing, the Defence had however requested leave to appeal this decision.[57]

26 Nov. 2008: Appeals Chamber ruled on the Prosecutor’s unilateral relocation of witnesses.

The Appeals Chamber dismissed the Prosecutor’s appeal against the decision of PTC1 issued on 18 April 2008. According to the Chamber since the Victims and Witness Unit is not a party to the proceedings, it is the neutral body that can asses the need or not to relocate witnesses. Thus, while the Prosecutor can, inter alia, present applications to the Registry for the relocation of a particular witness[58], according to the Chamber’s decision, his office “cannot unilaterally preventively relocate any witness either before the Registrar has decided whether a particular witness should be relocated or after the Registrar has decided that an individual witness should not be relocated”[59].

 

UGANDA: Joseph kony, vincent otti, okot odhinambo and dominic onwen case

21 Nov 2008: PTC II decided to start proceedings to consider the admissibility of the case.

PTCII decided to initiate proceedings to determine the admissibility of the case under article 19(1) of the Rome Statute[60]. This decision followed the 13 July 2006 Appeals Chamber ruling on the PTC’s entitlement to address admissibility on its own motion[61].

PTC II ordered the Registrar to inform the victims who have already communicated with the Court with respect to the case or their legal representatives, as well as the State about the start of the proceedings. Moreover PTCII invited the Prosecutor, the above mentioned victims or their representatives and the Republic of Uganda to submit their observations on the case’s admissibility by November 10 2008. Finally, the Chamber appointed Mr. Jens Dieckmann as counsel for the Defence.

For its decision, PTCII took into consideration the Annexure to the Agreement on Accountability and Reconciliation signed between the Government of the Republic of Uganda and the Lord'sResistance Army/Movement" on 19 February 2008. This document indicates the creation of a Special Division to address justice on a complementarity basis with the work of the ICC.

 18 Nov. 2008: Various observations regarding PTCII’s admissibility proceedings

OTP, OPCV and the Government of Uganda submitted that the ICC remains competent and that the case is admissible. On the other hand, the Defense requested to suspend the admissibility proceedings until the rights of the defendants to effectively participate in the proceedings could be guaranteed. Moreover, The Uganda Victims' Foundation (UVF) and the REDRESS Trust submitted observations as Amicus Curiae,[62] on the experience of victims of international crimes in domestic courts. On 24 November, PTCII announced that the Republic of Uganda had until 15 December to respond to the observations of UVF and REDRESS[63].

21 Nov. 2008:  PTCII decided on the applications for participation of 56 victims

Based on the principles established in its former decisions on victims’ applications for participation[64], PTC decided to deny the status of victims of the case to seven applicants, as well as to eighteen applicants in the context of the situation. PTC granted the status of victims of the case to twenty seven applicants and to four more in the context of the situation. Moreover, PTC requested the Registrar to seek the views of Applicant a/0108/07 regarding the selection of his legal representative. Finally, the decision on seven applications was deferred due to inadequate identification documents[65]. OPCV was given the responsibility of presenting a report on the arrangements for legal representation and to provide to all applicants the appropriate support, including information on their rights[66].

28 Nov. 2008: PTCII feasibility of arrangements for victims representation

OPCV[67] exposed its belief that having the members of the office appointed for group (s), created on a case by case basis, of victims would make its work more efficient. Some general criteria however, following the criteria in article 68 of the Rome Statute were also suggested:

- Interest of the victims

- Location

- Crimes

- Intermediaries

The Principal Counsel submitted that “victims with similar experiences and who provide similar statements should be represented by a common legal representative”[68]. In this regard, and in order to avoid a conflict of interests OPCV submitted that one counsel should represent former child soldiers and another one the victims of different attacks. Thus, people who were abducted by the LRA and that have been granted the status of victims both in the context of the situation and of the case, should be included as child soldiers. Finally, OPCV committed itself to provide support and assistance to applicants and victims as requested by the decision.

 

Situation in Uganda

17 Sept. 2008: PTC II single Judge appointed Office of Public Counsel for Victims (OPCV) as legal representative of victims in the situation in Uganda

The Judge decided on 17 September 2008[69] that, since none of the applicants can rely on a legal representative, it’s appropriate and sufficient for them to benefit from the support and assistance provided by the Office of Public Counsel for Victims (OPCV).

 

SUDAN/DARFUR: SITUATION

08 Sept. 2008: The Registrar declares 5 additional victims provisionally indigent

On 14 December 2007, PTCI granted to 11 applicants the procedural status of victim at the investigative stage of the situation of Sudan, Darfur[70]. On 14 May 2008, through their legal representatives, they requested legal aid from the Court. The Registrar decided to review the financial situation of victims on a case by case basis, as information provided varied from one another.

In this regard, on August 13, the Registry decided not to consider five Applicants as indigent in the absence of (i) information relating to the financial situation, moveable and/or immoveable assets and number of dependants (ii) the absence of receipt by the Registry of a statement on their honour authorising the Registrar or to make all necessary enquiries into their financial situation.[71] Since five others had met these two requirements set forth in the rules and regulations of the Court, the Registrar decided to “provisionally to consider them wholly indigent (…), pending the outcome of the investigation into their property and assets[72]”. However, in the same decision, the Registrar considered that it’s position not to grant legal aid to those who did not provided their financial information and make the statement allowing the representatives of the Registrar to investigate on it, could be reviewed upon receipt of this information. Subsequently, the concerned applicants, on 14 and 18 August, provided the Registrar with the statement regarding their financial situation as well as the statements on their honour.

Finally, the Registrar ruled on 8 of September[73] that on the basis of a preliminary assessment, the applicants do not have sufficient means to pay all or part of the cost of their legal representation before the Court. Thus, pending the investigation into their property and assets, these 5 applicants will also be considered totally or partially indigent. The Registrar set the modalities of the assistance of the Court as follows:[74]

- The extent of the legal assistance to be granted to the applicants shall be determined on a case by case basis in accordance with the modalities for their participation as specified by the competent Chamber;

- Applicants are invited to file an application for legal assistance whenever necessary in order to take any action required to preserve their interests in the proceedings.

 

 Central African republic: THE PROSECUTOR V. JEAN PIERRE Bemba gombo

12 Sept. 2008: PTCIII Single Judge addressed victims’ participation and protection before the hearing of the confirmation of charges.[75]

The single judge decided that applications for participation in the proceedings shall be submitted by the Registry no later than 30 days before the confirmation hearing takes place. Moreover, the single judge stated that the Victims Participation and Reparations Section shall suggest redactions it considers necessary for the protection of victims on submitting the applications, and that together with the Registry determine the necessary redactions for the protection of victims. Finally, the single judge ruled that the “Registry shall assist the victims for the purpose of ensuring their legal representation, and that where no legal representative has been appointed by the victims; the Office of Public Counsel for Victims shall (…) act as legal representative of the victims from the time they submit their applications for participation.”[76]

 02 Dec. 2008: PTCIII decided on the time limit for the submission of new victim applications.[77] 

Following the above decision postponing the confirmation of charges hearing, and after considering the 30 September 2008 decision on victims’ participation (see below), Judge Hans-Peter Kaul, Single Judge for PTIII, ruled that the time limit set in the latter is no longer in effect and thus no further victim applications will be considered before the confirmation hearing. The single Judge based his decision on the following reasons:

- The postponement had taken place only six days before the scheduled time for the hearing;

- The advanced stage of the proceedings;

- The need to ensure fair procedures;

- The beginning of the judicial recess, and

- The need of the parties to count with enough time to prepare for the hearing.

 02 Dec 2008 PTCIII postponed the confirmation of charges in the case of Prosecutor vs. Jean-Pierre Bemba Gombo:.[78] 

The confirmation of charges that was scheduled to take place between 8-12 December was postponed until 12 January 2009 at the earliest. A new precise date is to be announced through a PTC decision on 29 December 2008. PTCIII decided that according to article 57(2)(a) of the Rome Statute, its rulings need to be approved by a majority of its judges and thus, in absence of one of the three, due to family reasons, proceedings can only continue in January.     

 

 

The Victims' Rights Working Group (VRWG) is a network of over 200 civil society groups and individual experts created in 1997 under the auspices of the NGO Coalition for an International Criminal Court. Affiliated organisations include NGOs from Uganda, DRC and Sudan as well as international NGOs. The VRWG works to ensure that victims’ rights are effectively protected and respected, and that their needs and concerns are met throughout the judicial process of the ICC. Particular attention is paid to the need to ensure that the Court will render not only retributive, but also restorative justice, that will aim, inter alia, to prevent re-victimization, to break cycles of violence and war, and to provide reparations and rehabilitation for victims. The VRWG advocates for fair and effective structures and procedures at the Court to facilitate victims' full and active participation. For a list of affiliated organisations see our website See www.vrwg.org

 

 



[1] ICC 01/04-537, 4 September 2008, http://www.icc-cpi.int/iccdocs/doc/doc555612.pdf

[2] ICC 01/04-505, 3 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc523063.pdf

[3] ICC 01/04-511, 9 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc526468.PDF

[4] See: Legal Representatives for Victims a/0184/06, ICC 01/04-514, 14 July 2008 http://www.icc-cpi.int/iccdocs/doc/doc529621.PDF (French). Legal Representatives of Victims a/0231/06, a/0232/06, a/0233/06, a/0242/06, a/0247/06, a/0248/06, a/0249/06, and a/0250/06, ICC 01/04-513, 14 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc529463.PDF (French). Legal Representatives of Victims: a/0231/06, a/0232/06, a/0233/06, a/0242/06, a/0247/06, a/0248/06, a/0249/06, and a/0250/06, gave basically the following arguments requesting the Court to deny the OPCD request:

A) A decision on victim’s application aims at determining  his/her "procedural status" before the Court, and not at establishing that a person is a victim vis à vis a specific party;

B) Under the Statute and the Rules, the Chamber has discretion concerning how to determine whether or not an applicant meets the criteria of who is a victim, according to rule 85 ;

C) The assessment of the contextual elements at the application phase neither affect the guilt or innocence of a person, nor the proper progress of the investigation;

D) The threshold for testing the veracity of the applications is low at the situation stage therefore, the single judge's approach is consistent with the principle of in dubio pro reo. Legal Representatives agreed with the arguments put forward by the Prosecutor.

[5] The Office of Public Counsel for Victims (OPCV), responding on behalf of applicant a/0184/06 went along the same lines as the legal representatives for victims: a/0231/06, a/0232/06, a/0233/06, a/0242/06, a/0247/06, a/0248/06, a/0249/06, and a/0250/06. See ICC 01/04-514, 14 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc529621.PDF (French)

[6] On the view of the Prosecutor, the request for leave to appeal could be granted on the basis of OPCD’s first contention because it meets the requirements of article 82(1)(d) of the Rome Statute; According to that provision, “Either party may appeal […] a decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings”; As for the second OPCD argument, the Prosecutor supported the view that the request for leave be denied as the PTCI decision was not a factual finding but a prima facie (at first sight), determination. See ICC 01/04-512, 14 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc529368.PDF

[7] See: Supra  n1.

[8] Para. 20 of the decision. See also: ICC 01/04-417, 7 December 2007,  http://www.icc-cpi.int/iccdocs/doc/doc388041.PDF, para. 8; ICC 01/04-444, 6 February 2008, http://www.icc-cpi.int/iccdocs/doc/doc431858.PDF p. 10; and www.iclklamberg.com/Caselaw/Sudan/PTCI/ICC-02-05-121.pdf, p. 8.

[9] See: ICC 01/04 - 505, 3 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc523063.pdf para. 30.

[10] ICC 01/04-417, 7 December 2007, http://www.icc-cpi.int/iccdocs/doc/doc388041.PDF, para. 6.

[11] Supra,n.1, para. 27.

[12] See ICC 01/04-545, 4 November 2008, http://www.icc-cpi.int/iccdocs/doc/doc583202.pdf

[13] ICC 01/04-551, 28 November 2008, http://www.icc-cpi.int/iccdocs/doc/doc604082.pdf

[14] ICC 01/04-01/06-1452, 6 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc541561.PDF

[15] ICC 01/04-01/06-1453, 6 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc541562.PDF

[16] "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3) (e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”, ICC 01/04-01/06-1401, 13 June 2008, http://www.icc-cpi.int/iccdocs/doc/doc511249.PDF

[17] ICC 01/04-01/06-1418, 2 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc522804.PDF

[18] Decision on the Prosecution's Application for Leave to Appeal the "Decision on the consequences of nondisclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused", ICC 01/04-01/06-1417, 2 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc522803.PDF

[19] ICC 01/04-01/06-1429, 10 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc528534.PDF

[20] ICC 01/04-01/06-1423, 7 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc524653.PDF

[21] ICC 01/04-01/06-1419, 2 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc522970.PDF, ICC 01/04-01/06-1425, 9 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc574540.pdf, ICC 01/04-01/06-1439, 16 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc557248.PDF

[22] Legal representative’s request,  CC 01/04-01/06-1439, 16 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc557248.PDF

[23] ICC 01/04-01/06-1424, 8 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc560218.PDF; ICC 01/04-01/06-1425, 9 July 2008,http://www.icc-cpi.int/iccdocs/doc/doc574540.pdf

[24] Defence’s response ICC 01/04-01/06-1438, 15 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc605983.PDF

[25] ICC 01/04-01/06-1449, 29 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc548678.pdf

[26]  "Decision on the Defence appeal against the decision on the request of provisional release of Lubanga", ICC 01/04-01/06-824, 13 February 2007, http://www.icc-cpi.int/iccdocs/doc/doc248155.PDF

[27] OTP’s response, ICC 01/04-01/06-1442, 18 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc532813.PDF

[28] "Decision on the Defence appeal against the decision on the request of provisional release of Lubanga", ICC 01/04-01/06-824, 13 February 2007,  http://www.icc-cpi.int/iccdocs/doc/doc248155.PDF  ; OTP’s response: ICC 01/04-01/06-1442, 18 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc532813.PDF

[29] ICC 01/04-01/06-1452, 29 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc551120.pdf; ICC 01/04-01/06-1453, 6 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc541562.PDF

[30] "Decision on victims ’participation in appeal against 13 June decision", ICC 01/04-01/06-1453, 6 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc541562.PDF

[31] ICC 01/04-01/06-1335Anx, 20 May 2008, http://www.icc-cpi.int/iccdocs/doc/doc493170.PDF

[32] ICC 01/04-01/06-1456, 12 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc546667.pdf; ICC 01/04-01/06-1455, 12 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc544579.PDF and ICC 01/04-01/06-1457, 12 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc544844.PDF  (French)

[33] Victims’ observations: ICC 01/04-01/06-1455, 12 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc544579.PDF and ICC 01/04-01/06-1457, 12 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc544844.PDF  (French)

[34] ICC 01/04-01/06-1455, 12 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc544579.PDF and ICC 01/04-01/06-1457, 12 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc544844.PDF  (French)

[35] ICC 01/04-01/06-1456, 12 August 2008, http://www.icc-cpi.int/iccdocs/doc/doc546667.pdf

[36] The Prosecution submitted that, after a negotiation conducted to obtain the consent of the information providers to disclose the confidential materials to the Chamber and to the Defence a) The Trial Chamber would be immediately provided with copies of the documents from the United Nations, which cannot be disclosed; b) Non United Nations information providers have indicated a willingness to explore alternative measures of disclosure to the Defence; see also the supplementary information provided by the OTP from July to August 2008, and the Defence consolidated response of 1 September 2008. See ICC, 01/04-01/06, 1429, 10 July 2008, http://www.icc-cpi.int/iccdocs/doc/doc528534.PDF

[37] Para. 30, ICC 01/04-01/06-1467, 3 September 2008, http://www.icc-cpi.int/iccdocs/doc/doc559475.pdf (French)

[38] “ if all of the Documents from all the information providers are submitted to the Chamber in a non-redacted form for the entirety of the trial and if the Appeals Chamber is able to consider in a similar, non-redacted form all of the relevant materials and any decision of the Trial Chamber on the issue, the Bench would be prepared to review all the Documents (prior to lifting the stay) to assess which Documents need to be disclosed and whether the proposed methods of disclosure accord with the accused's right to a fair trial » ICC 01/04-01/06-1467, 3 September 2008, http://www.icc-cpi.int/iccdocs/doc/doc559475.pdf (French)

[39] Ibid. para. 28.

[40] Following the prosecution application to the same chamber on 9th September, the Trial Chamber decided on the 24th to grant leave to appeal its decision of 3rd September 2008.

[41] On the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008" see: ICC 01/04-01/06-1486, 21 October 2008 http://www.icc-cpi.int/iccdocs/doc/doc620534.pdf (French)

[42] See: Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the release of Thomas Lubanga Dyilo", ICC 01/04-01/06-1487, 21 October 2008 http://www.icc-cpi.int/iccdocs/doc/doc624259.pdf (French)

[43] “Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents […]”

[44] Article 67 (1)(c) : In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality: To be tried without undue delay

[45] ICC 01/04-01/06-1359, 29 May 2008, http://www.icc-cpi.int/iccdocs/doc/doc499503.PDF

[46] Article 60: Initial Proceedings before the Court, article 58 (1): Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear.

[47] See: ICC 01/04-01/06-1487, 21 October 2008 http://www.icc-cpi.int/iccdocs/doc/doc624259.pdf (French)

[49] See: ICC 01/04-01/06-T-98-FRA ET WT 18-11-2008 7/44 SZ T, http://www.icc-cpi.int/iccdocs/doc/doc586029.pdf, p. 7.

[51] See: Articles 7of the Rome Statute.

[52] See: Article 8 of Rome Statute.

[53] Rome Statute, article 61(5).

[55] ICC 01/04-01/07-717, 30 September 2008, http://www.icc-cpi.int/NR/exeres/0BCE59D4-4498-4846-BFD2-E165E0DB0A33.htm para.232.

[56]  ICC 01/04-01/07-717, 30 September 2008, http://www.icc-cpi.int/NR/exeres/0BCE59D4-4498-4846-BFD2-E165E0DB0A33.htm para. 548.

[58] Article 68 (1): “[…] The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. ».

[59] Judge Pikis and Judge Ntanda Nsereko presented dissenting opinions. See ICC 01/04-01/07-776, 26 November 2008, http://www.icc-cpi.int/menus/icc/situations and cases/situations/situation icc 0104/related cases/icc 0104 0107/court records/chambers/appeals chamber/776?lan=en-GB

[64] “(i) whether the identity of the Applicant as a natural person appears duly established; (ii) whether the events described by each Applicant constitute a crime within the jurisdiction of the Court; (iii) whether the Applicant claims to have suffered harm; and (iv) whether such harm appears to have arisen "as a result" of the event constituting a crime within the jurisdiction of the Court. As regards the method of examination and the required standard of proof, all relevant factors identified are to be proved to a level which might be considered satisfactory for the limited purposes of rule 85(a)”. See: ICC 02/04-01/05-356, 21 November 2008, http://www.icc-cpi.int/NR/exeres/5B714FBD-ABB3-4146-8D60-456DC4AD70A7.htm

[65] Ibid

[66] “Without prejudice to the foregoing, and consistently with the First and the Second Decision of Victims' Participation55, it remains the view of the Single Judge that, until the moment when a legal representative is appointed, the task of the OPCV is to provide Applicants, whether granted or not the status of victim under rule 85(a) either in the context of the Situation or in the Case, with any form of support and assistance which may be appropriate within the limits of its mandate, where necessary upon consultation with the VPRS and the Victims and Witnesses Unit, and in particular to inform them of their rights and prerogatives. »

[67] See : ICC 02/04-01/05-358, 28 November 2008, http://www.icc-cpi.int/NR/exeres/3E3BACDE-E6FB-41C7-BC22-82F597D67A09.htm

[68] Ibid

[70] ICC 02/05-111, 14 December 2007, http://www.icc-cpi.int/iccdocs/doc/doc850208.pdf (French)

[72] Ibid.

[74] Ibid.

[75] ICC 01/05-01/08-103, 12 September 2008, http://www.icc-cpi.int/iccdocs/doc/doc574533.PDF

[76] Ibid.

[77] ICC 01/05-01/08-305, 2 December 2008, http://www.icc-cpi.int/iccdocs/doc/doc605879.pdf

[78] ICC 01/05-01/08-304, 2 December 2008, http://www.icc-cpi.int/iccdocs/doc/doc605878.pdf