DRC Lubanga Case
DRC Katanga Case
More than 60 victims are granted status in the DRC Situation
On 24 December, Single Judge, Sylvia Steiner, granted status to 61 applicants, including a school. She recalled the criteria for an application be considered complete, as well as principles for being granted victim status for both individuals and organisations. She confirmed that victims and their legal representatives would not, in principle, have access to non-public documents. Clarifications were made on the following points:
Applications on behalf of deceased or missing persons
The Judge indicated that it is not possible to apply on behalf of a deceased person. Family members of a deceased or missing person could apply and be granted victim status if a personal harm, directly linked with the death or disappearance, is shown.
Applications pending in Lubanga Case
Judge Steiner did not determine the status of 25 applications arguing that they were pending before the Trial Chamber in the Lubanga case. Applicants, whose status is granted by the Trial Chamber, will be automatically considered as victims in the situation.
Appeal to the 24 December 2007 decision
On 4 and 7 January, OPCV, OPCD and OTP sought to appeal Judge Steiner’s decision. OPCV argued against the Judge’s decision not to determine the status of applicants whose cases are pending before the Lubanga case. OTP questioned the content and the modalities of the procedural status given to the victims and OPCD stated that no assessment had been made as to whether the personal interests of the applicants were affected by proceedings in the situation.
On 6 February, the Single Judge denied OPCV’s request arguing that “applicants do not have standing to request leave to appeal against any decision issued during the application process”. Nonetheless, she granted the leave to appeal to:
- the Prosecution in relation to whether a "procedural status of victim" can be granted independent of any finding that the requirements of article 68(3) and rule 89 are satisfied, and without addressing and providing for a definition of the personal interests;
- the OPCD in relation to i) whether the right to participate is a general right, or whether victim participation is conditional upon a determination that specific proceedings impact on the personal interests of the applicants, ii) an assessment as to the propriety of their participation; iii) whether, in order to establish moral harm based on harm suffered by a second person, it is necessary to prove the identity of this person and the relationship between both.
OPCD appeals Judge Steiner’s Decision denying it additional information on victims’ applications: it seeks determination on the status of the victims’ application procedure
[Background] On 7 December, the Single Judge rejected OPCD’s requests for additional information on victims’ application submitted on 28 and 31 August.
On 23 January, the Single Judge authorised the appeal requested by OPCD on 13 December. OPCD filed its appeal brief on 4 February. The debate focuses on the nature of the procedural status of the application procedure, as to whether it is a separate procedure which has no prejudice to the defence, or whether it is related to proceedings to determine the modality of participation and the criminal process, in which case disclosure of supplementary information concerning the applications as well as exculpatory materials should be enforced (argues the defence). Applications for participation in the appeal are to be filed before 21 February 2008.
Judge Steiner denies the Victims Office’s (OPCV) request to appeal a Decision denying access to confidential documents filed in the DRC situation
On 10 December, Judge Steiner denied OPCV access to observations on the applications for recognition of the procedural status of victims in situation or case. On 18 January, the Single Judge further rejected OPCV’s request to appeal that decision.
Trust Fund for Victims’ Notification of projects identified in DRC: Parties invited to submit observations
The Board of Directors of the Trust Fund notified Pre-Trial Chamber I, in accordance with regulation 50 of the Trust Fund’s Regulations, of specified projects assisting victims to be undertaken in DRC. The notification explained the process of assessment and sought to clarify the Fund’s dual mandate, which includes implementation of reparations awards as well as assistance to victims. The Board indicated that:
- As the DRC Situation concerns the entire territory of DRC the Board can identify and implement activities to benefit victims who have suffered harm as a result of any crime contained in Article 5 of the Statute committed after 1 July 2002;
- Since it is considering the needs of victims in the overall Situation and not crimes allegedly committed by identified persons, its intention “to undertake specified activities to address the identified needs does not pre-determine any issue to be determined by the Court” (Para. 31);
- The activities will benefit groups of victims and not individuals and such victims would not be restricted to those participating in the proceedings;
- “[T]he fact that a victim would benefit from the specified activities of the Trust Fund does not lead to the automatic conclusion that she/he is recognized as a victim who participates in the situation” (Para. 52);
- The specified activities will be implemented by intermediaries in order to assure the safety of the beneficiaries who could be exposed if they are seen as having contact with the Court;
- The Board defined three categories of projects: physical rehabilitation, psychological rehabilitation and material support. Each project has to include a protection approach.
OPCV asked for access to confidential and additional documents. The information required is i) the specific places the activities will be pursued, ii) the type of victims the activities are intended to benefit, iii) the particular crimes allegedly falling within the Court’s jurisdiction that the activities are intended to address.
DRC Lubanga Case
Trial Chamber I renders a landmark decision on victims’ participation: both OTP and Lubanga seek to appeal it
On 18 January 2008, Trial Chamber I set important precedents regarding victims’ participation. The decision was signed by Judge Fulford and Judge Odio Benito. Judge Blattman issued a dissenting opinion. On 28 January, both the Defence and the Prosecution sought to appeal it.
The 18 January Decision covered:
- The criteria to establish victim status in the Lubanga Case;
- The modalities of participation;
- The common legal representation for victims;
- The protective and special measures for victims;
- The dual status of victims-witnesses and protection for victim applicants.
Criteria for participation in the case
A significant point, contested by Judge Blattman in his dissenting opinion, is that victims do not need to bring evidence of harm suffered as a result of the charges confirmed against Thomas Lubanga. Instead, they have to establish a link to the evidence being brought against Lubanga. Victims must establish either i) an evidential link between the victim and the evidence which the Court will be considering during Mr Thomas Lubanga Dyilo's trial, leading to the conclusion that the victim's personal interests are affected” or ii) whether the victim is affected by an issue arising during Mr Thomas Lubanga Dyilo's trial because his or her personal interests are in a real sense engaged by it” (Para 95).
Protection of victims and applicants to the status
Regarding the protection of victims, the Chamber decided that in some cases they could remain anonymous: “Trial Chamber rejects the submissions of the parties that anonymous victims should never be permitted to participate in the proceedings. Although the Trial Chamber recognizes that it is preferable that the identities of victims are disclosed in full to the parties, the Chamber is also conscious of the particularly vulnerable position of many of these victims, who live in an area of ongoing conflict where it is difficult to ensure their safety” (Para 130). However, the Chamber added: “The greater the extent and the significance of the proposed participation, the more likely it will be that the Chamber will require the victim to identify himself or herself.”
Another precedent concerns protection of the applicants. Article 43, which has been said to restrict protection to “victims appearing before the Court” has now been clarified, suggesting that victim applicants should not be excluded: “[…] once a completed application to participate is received by the Court, in the view of the Chamber, "an appearance" for the purposes of this provision has occurred.” (Para 137). The Chamber also recognises the burdens on the Victims and Witnesses Unit, and states that the extent of such protection will have to be realistic.
Access to filed documents
The Court ordered that all victims participating should be provided the full case index. Applicants should be provided with a public version of the prosecution's "summary of presentation of evidence". Victim participants are to receive, “upon a specific request, subject to a demonstration of relevance to their personal interests, material in its possession and public evidence listed in Annexes … to the prosecution's "summary of presentation of evidence" (Para 138).
The Prosecutor seeks to appeal the landmark victims’ Decision on three grounds:
- Whether the Statute allows for the participation for victims unconnected to the charges against the accused at trial: OTP also stressed that the extension of the protection of the Court’s duty to victim-applicants would impact on expeditiousness;
- Whether participating victims may lead evidence on matters pertaining to the guilt or innocence of the accused: OTP stated that this capacity would impact on the fairness of the proceedings. It found that this created a third party, that would affect the way the OTP executes its mandate and might compromise the appearance of impartiality of the Chamber.
- If participating-victims have a right to access material in OTP’s possession or control: OTP argued that such an “unprecedented rule” would make it loose control over its own material.
Lubanga’s Defence also seeks to appeal the victims’ Decision on two basis:
- It contested the criteria set out to grant victim’s status at trial: The Defence stated that official documents or two-witness declarations must be required to prove applicants’ identity. It added that the Chamber must verify the reliability of the applications’ contents: applicants must show personal and direct harm linked to a crime included in the charges confirmed against the accused. It argued that fair trial requires the accused to be informed of victims’ identities;
- The modalities of victims’ participation: The Defence claimed that the possibility, granted by the Chamber, for the victims to lead and contest evidence creates a new party against the accused and added that victims’ rights are limited to present their views and concerns. It stated that victims don’t have any right to be communicated evidence. Finally, the Defence claimed that presenting evidence linked to reparations during trial is contrary to the presumption of innocence.
Parties present submissions regarding the role of the OPCV
[Background] On 13 December, the Trial Chamber invited parties and participants to submit their observations about certain issues to be considered prior to the trial, including dual roles of the OPCV, in acting as the legal representative of victim applicants on the one hand, and in assisting victims and/or their legal representatives on the other. The hearings were held on 9 January.
- Legal representatives of victims expressed their concern that the current delay to decide on victims’ status and the important resources OPCV has to dedicate to represent victims-applicants could affect its capacity to assist the legal representatives. They also raised the risk of « conflicts of interest » if OPCV is appointed as legal representative of victims and the risk of contradiction between the general interest of the victims and the specific interest of the victims OPCV could represent.
- OPCV required access to the index of the case record as well as to the documents which may impact on the personal interests of its clients. The Office affirmed its capacity to represent a limited group of victims and recommended consulting it prior to its appointment as legal representative of a victim in order to verify the available resources and the absence of potential “conflicts of interest”.
- According to OTP, the OPCV has not any autonomous right to appear before a Chamber in respect of any issue and OPCV’s role is limited to assist victims and legal representatives for victims and to provide assistance to the unrepresented victim-applicants.
DRC Katanga Case
Katanga’s Defence sought to appeal a decision in relation to the filing of observations on applications for participation
On 13 February, Katanga Defence sought to appeal the 7 February decision calling parties to file their observations on victim-applications because the Defense had been provided with redacted copies of the applications due to the ongoing insecurity in the DRC. The Defense argued that the Pre-Trial Chamber had exceeded its discretionary powers, that the measure was contrary to the exceptional circumstances required for protective measures and that the Single Judge failed to sufficiently state the reasons for redaction
The Prosecutor and OPCD attempt to appeal the 6 December Decision granting legal status to victim-applicants
[Background] On 6 December, Single Judge Kuenyahia granted victim status to 11 applicants in the Darfur situation. On 12 December, both OTP and OPCD sought to appeal the decision. On 17 December, the legal representatives of victims submitted their observations.
On 6 February, Single judge granted the Prosecution’s application in relation to the same issue as in the DRC situation (see above DRC situation - “Appeal to the 24 December 2007 decision”). Regarding the OPCD request, she granted the appeal in relation to whether the right to participate is a general right (see above – DRC situation).
OPCD appeal brief on a Decision denying it additional information on victims’ applications (see above the similar proceeding in the DRC situation)
[Background] On 3 December, the Single Judge rejected OPCD’s request for additional information on victims’ applications. On 10 December, OPCD sought to appeal this decision.
Single Judge rejected OTP’s request to appeal 10 August Decision granting legal status to victims
[Background] On 20 August, OTP attempted to appeal, under Art 82(1)(d), the decision granting status to victims a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06, asking the Appeals Chamber to end any uncertainty regarding the scope of victims’ participation at the situation stage.
On 20 December, Single Judge of the Pre-Trial Chamber II, Mauro Politi, rejected OTP’s application for leave, concluding that OTP did not prove that the issues in its application had an impact on the fairness and expeditiousness of the proceedings or on the outcome of the trial, as required by Art 82(d).
Trust Fund for Victims’ Notification of projects identified in Northern Uganda: Parties invited to submit observations
On 28 January, as it did regarding the DRC situation, the Trust Fund notified Pre-Trial Chamber II that it assessed needs in Northern Uganda and identified projects in accordance with Regulation 50. On 6 February, OPCD asked the Chamber to submit observations regarding the potential impact on the rights of the accused and on the fairness and impartiality of the proceedings. On 12 February, OPCV also requested to leave to file observations considering that both victim-applicants and victims in general have an interest in providing their views on the Notification.
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