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LEGAL UPDATE June 2008

 

ICC Victims’ Rights Legal Update

11 June 2008

(pdf version)

 

DRC: Katanga and Ngudjolo Case

  • Pre-Trial chamber establishes a calendar and postpones the confirmation of charges hearing
  • The Pre-Trial Chamber adopts a landmark decision on victims’ procedural rights at pre-trial phase
  • Ngudjolo’s defence counsel’s attempt to appeal decision on victims’ procedural rights is denied
  • Pre-Trial Chamber grants victim status to a further 52 out of 97 new victims

 DRC: Lubanga Case 

  • Trial Chamber invites parties to make observations on 105 victim applications
  • Trial Chamber provides clarifications on the 18 Jan 2008 decision on victims’ participation
  • Appeals Chamber suspends effect of the 18 Jan decision on victims participation and the Trial Chamber debates the impact on the impending trial
  • Appeals Chamber allows 3 victims to participate in Appeal against the 18 January Decision on victim participation but not all

DRC Situation

  • Review of Registrar’s decision on the indigence of victims

Uganda Situation and Case (The Prosecutor v. Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen) 

  • Decision on the Defence Application for Leave to Appeal the 14 March 2008 Decision on Victims' Applications for Participation

 

__________________________________________________________________

 

DRC: KATANGA & NGUDJOLO CASE

Pre-Trial Chamber establishes a calendar and postpones the confirmation of charges hearing

On 29 April, the Pre-Trial Chamber (PTC1) established a calendar, postponing the commencement of the confirmation of charges hearing to 27June 2008. On 14April, victims’ representatives Maître Bapita and Maître Keta participated in the first status conference in which they were invited to raise issues. On 4 June, the Pre-Trial Chamber distributed the proposed schedule for the confirmation hearing.

On 13 May 2008 the Pre-Trial Chamber adopts a landmark decision on victims’ procedural rights at pre-trial phase[1]

[Background] On 2 April, Single Judge granted victim status to 5 applicants, namely: a/0327/07, a/0329/07, a/0330/07, a/0331/07 and a/0333/07. On 9 April, victims’ representatives filed submissions on the disclosure or non-disclosure of their clients’ identities and on their procedural rights.

The Parties observations on victims’ identity and procedural rights:

  • The Prosecutor (14 April)[2] did not oppose the anonymity of victim a/0333/07 who didn't wish to disclosure his identity to the Defence. The Prosecutor (OTP) proposed that he should be afforded the same procedural rights granted to anonymous victims at the pre-trial phase of the Lubanga case. Relating to the non-anonymous victims, OTP submitted that a “casuistic approach” should be adopted, according to which, any time victims wish to conduct a specific procedural activity they must show that it relates to issues specific to their interests. 
  • Katanga Defence: agreed with the Prosecution's observations and submitted that there was no need for the legal representatives to attend all hearings because some hearings are not directly relevant to the interests of the victims.[3]
  • Ngudjolo Defence: opposed anonymous participation highlighting that if the victims can have access to evidence submitted by the Prosecution or collaborate with the other victims, they cannot be called at a later stage in the proceedings as Prosecution witnesses.[4]
  • Victims’ representatives responded to the Prosecution and Defences observations.[5] The legal representative of victim a/0333/07 reiterated his request for the identity of his client not to be disclosed to the defence teams.

The 13 May 2008 decision on victims’ procedural rights at the pre-trial phase:

Adoption of a systematic approach

The Single Judge rejected the “casuistic approach” suggested by the prosecution and, following the Chamber in Lubanga case, adopted a systematic approach which establishes a clear determination of the procedural rights for this stage of the case.

Evidentiary and Disclosure issues

The Single Judge finds that the statutory framework and Rules of Procedure for the pre-trial stage leave no room for the presentation of additional evidence by victims. As a result, the right to have full access to the Prosecution's situation and case files cannot be part of the set of procedural rights attached to the procedural status of victims at pre-trial and victims cannot introduce evidence at the confirmation hearing. (See also the 25 April 2008 Decision on the Evidentiary Scope of the Confirmation Hearing[6], in which the Chamber has found that the "confirmation hearing has a limited scope and by no means can it be seen as an end in itself" and the Prosecution should carefully analyse the evidence on which it intends to rely so as to limit it to "the very core evidence of the case").  

Specific procedural rights of non-anonymous victims (a/0327/07, a/0329/07, a/0330/07 and a/0331/07)

The Single Judge considered that non-anonymous victims have the right to access the case record prior to and during the confirmation hearing. This includes the right to access all filings and decisions contained in the record of the case (public or confidential) but not to those filings and decisions classified as ex parte, only available to the Prosecution, the Defence, a different participant, the Registry or a combination thereof. They also have the right to attend all public and closed session hearings convened in the proceedings leading to and part of the confirmation hearing, but not hearings held on an ex parte basis.

Specific procedural rights to the anonymous victim a/0333/07

The Single Judge considered that the anonymous victim can effectively participate in the proceedings only if his anonymity is preserved. She agreed with the Prosecution and with Katanga’s defence that he should have the same procedural rights granted to anonymous victims at pre-trial in the Lubanga Case.

Ngudjolo’s defence’s attempt to appeal decision on victims’ procedural rights denied

  • On 19 May, Ngudjolo’s defence sought to appeal the 13 May decision on three issues: the general interpretation of Article 68(3), the respective roles of the victims and the prosecutor, and access by victims to the evidence. The Defence asked that rights to confidential filings and to assist closed hearings to be suspended until the decision of the appeal Chamber had resolved such issues[7].
  • On 20 May, the Prosecution observed that the Judge should limit the access that non-anonymous victims have to the confidential case record and confidential proceedings so as to protect the identities of Prosecution witnesses who have not consented to their identities being revealed to that class of participants[8]. The Registrar proposed limiting access to the confidential record and attendance at closed sessions to the victims’ legal representative only[9].
  • On 23 May, both the Prosecution and representatives of non-anonymous victims requested the Chamber to deny leave to appeal.[10] On 24 May, the legal representatives of the non-anonymous victims made observations on the Prosecution and Registrar documents, saying that both are based on potential risks which are not precisely identified[11]. On 26 May, the Prosecution supported the Registry’ proposal[12], and Ngudjolo’s defence reiterated its position, asking the suspension of the impugned rights[13].
  • On 29 May, the Single Judge of PTC1 rejected the Defence’s request to appeal the 13 May decision[14].
  • On 30 May, it also rejected the Prosecution and the Ngudjolo Defence requests on limitations of non-anonymous victims‘ procedural rights. Single Judge Steiner decided that only the legal representatives of non-anonymous victims, and not the victims themselves, shall have the rights to access the confidential part of the record of the present case and to attend closed session hearings. She also decided that the legal representatives of non-anonymous victims are not allowed to transmit copies of any document or evidence included in the confidential part of the case record to their clients. However, they can discuss the information and evidence with their clients as long as they do not identify specific witnesses in the confirmation hearing[15].

Pre-Trial Chamber grants victim status to a further 52 out of 97 new victims

On 26 May PTC1 authorised observations on a further 97 victim applications, which were forwarded to the parties by the Registry that same day. The Prosecution and defence of Mr Katanga filed (confidentially) their observations on 4 June.

On 6 June, legal representative of applicants filed requests concerning the disclosure of the identity of their clients[16].

On 10 June, PTC1 decided that[17]:

  • 8 applications were incomplete
  • 38 applications were denied both in the Katanga / Ngudjulo case and DRC Situation
  • 1 applicant was denied in the Katanga / Ngudjulo case but would be considered for the DRC Situation (a/0031/08)
  • 52 applicants were granted procedural status in the case
  • Those applicants who did not wish to have their identities disclosed would receive lesser procedural rights in line with its decision of 13 May, detailed above.
  • The prosecution and defence had until 16 June to file their observations on the requests for non-disclosure of identities.

 

DRC: LUBANGA CASE 

Trial Chamber invites parties to make observations on 105 victim applications

On 6 May, the Trial Chamber ordered the Registry to transmit 105 victim applications to the prosecution and the defence in confidential redacted form. The Chamber enounced the elements which must not be disclosed to ensure victims’ protection but that the "exact date of birth (year of birth) shall not be redacted"[18].

On 9 May, the Office of Public Counsel for Victims (OPCV) requested to be consulted on the redactions[19].

On 12 May, Lubanga’s defence submitted that OPCV’s Request was superfluous given that the Chamber, in its Decision of 6 May 2008, clearly enounced the parts that must be redacted and that redactions will be made by a competent section of the Registry.[20] From its side, the prosecution indicated that it does not wish to file a response to OPCV’s request.

On 16 May, the Trial Chamber denied OPCV's request arguing that it would be duplicative and unnecessary as it had already ordered the Registry (VPRS) to carry out this task. The Chamber added that, for participating victims, “their legal representatives will have a particular role to play by advancing suggestions on appropriate protective measures in due course”. Following the Prosecution's filing[21] and the defence response, the Chamber modified its Decision of 6 May 2008 to the extent that the month of birth of the victims, as set out in the application forms, should be disclosed to the parties, unless in the view of the Registry this may lead to the identification of a particular victim.[22]

On 20 May, the Registrar, following a time extension, allowed by the Chamber, notified the redacted application forms to the parties.

On 9 June, the Prosecutor presented its observations on 105 applications, recommending 77 of them to be admitted[23]. On 10 June, the defence presented its observations.[24] A decision from the Trial Chamber is pending.

The Trial Chamber provides clarifications of the 18 January 2008 decision on victims’ participation

On 2 June, at the request of victim representative Maitre Luc Walleyn, the Trial Chamber rendered a decision clarifying the 18 January 2008 decision on victims' participation[25].

The Chamber explained that, “pending the decision on the substantive appeal on victims’ participation, the personal interests of victims are limited to those who have suffered personal and direct harm as a result of the events covered by the charges brought against the accused”, and made the following precisions:

a) In order to exercise their right to receive relevant material, the legal representatives of victims are instructed to set out in a document to be provided to the prosecution how material in the latter's possession is relevant to an individual victim's personal interests (e.g. material relating to involvement in particular events at a given time or location);

b) The prosecution shall thereafter identify and provide any material in its possession which satisfies the above criteria;

c) The above procedure should be dealt with by the prosecution and legal representatives of victims inter se and a filing before the Chamber should only be made in case of disagreement;

d) In order to participate at the trial, and once victims have received the above documents, they are instructed to file discrete applications before the Chamber, in accordance with paragraphs 103-104 of the majority's decision, specifying how their personal interests are affected at a given phase of the trial.

Appeals Chamber allows 3 victims to participate in Appeal against the 18 January Decision on victim participation

[Background] On 26 February, Trial Chamber I granted leave to both prosecution and defence appeals against the 18 January decision on victim participation.[26]

On 16 May, following applications of both situation and case victims, the Appeals Chamber, with Judge Sang-Hyun Song partially dissenting, decided to allow victims to participate in the appeals on the following basis[27]:

  • Whether those seeking to participate are recognised as victims in the case.Victims who have already been afforded the status of victims in the case do not need to establish it again before the Appeals Chamber. Applicants who do not hold victim status in the case and who are currently awaiting the Trial Chamber's determination on their status cannot participate in the appeals.
  • In relation to the first category of victims recognised in the case:

a) Whether their personal interests are affected by the issues on appeal.  If victims have been granted significant substantive and procedural rights in the impugned decision that they risk losing on appeal, then their personal interests are affected. In this instance, the Appeals Chamber is “persuaded by the concern of the victims that the appeals seek to limit the rights acknowledged to them by the Trial Chamber, to lead evidence and challenge the admissibility or relevance of evidence”.

b) Whether their participation is appropriate. Participation by victims in the appeals will be deemed appropriate on the basis of the subject-matter and the desirability for the views of victims in appeals of this nature to be heard.

c) That their participation is prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial: observations to be received by the victims must be specifically relevant to the issues arising in the appeal and to the extent that their personal interests are affected by the proceedings.

Only victims a/001/06 to a/003/06 satisfied the criteria and were granted the right to participate in the appeal.

On 21 May 2008, legal representative of a/0001/06 to a/0003/06 submitted observations, calling for the Prosecutor and Defence’s appeals against the 18 January Decision to be rejected.[28] The Prosecution responded to the legal representatives observations on 30 May.[29]

The Appeals Chamber suspends effect of 18 January decision on victim participation and the Trial Chamber debates the impact of this decision on the impending trial

On 22 May, the Appeals Chamber granted the Prosecutor and Defence’s request to suspend the effect of the Trial Chamber’s Decision on Victim's Participation of 18 January 2008 pending the outcome of the appeals.[30]  The Chamber rejected OPCV’s request to be heard on the Prosecutor and the Defence’s application for suspensive effect.[31]

On 30 May, legal representatives of victims presented together their observations on the consequences of the suspensive effect of the 18 January decision, saying that[32]:

  • They are not opposed postponing the start of the trial until the decision of the Appeals Chamber, and
  • They are not opposed the trial starting on 23 June for limited proceedings, as long as victims’ rights are respected.

On 3 June, both the prosecution and defense submitted observations on legal representatives’ observations. The Prosecution‘s proposed that some evidence could be produced and witnesses examined, insofar as the victims would be allowed to contest their admissibility thereafter. The Defense suggested that no new victim applicants should be admitted to participate in the trial before the decision of the Appeals Chamber.

At the status conference of 11 June, the trial date of 23 June was ‘vacated’. A reasoned decision is due to be handed down in the next week.

 

DRC SITUATION

Review of Registrar’s decision on the indigence of victims

On 26 March, the Registry issued a decision on the requests for legal assistance of certain victims admitted in the Situation, indicating that the victims would be provisionally considered as indigent, until such time as a full inquiry into their means could be undertaken.[33]

On 28 March, the Registry issued a further decision on the requests for legal assistance of the same group of victims, indicating that the legal assistance to be afforded to such victims would be temporary, and that the legal representative was obligated to provide a declaration signed by the victims certifying the truth of the information contained in their request and authorising the Registry to make further inquiries, as well as obligating the victims to provide additional information.

On 14 April, the legal representative for victims Maitre Keta made a request to the Presidency to review the Registry’s decision on the victims’ requests for legal assistance. The submissions focused on the inappropriateness of the system for determining indigence, and put forward the argument that the Registry should use a presumption of indigence given the context of the victims in DRC.[34] 

On 6 May, the Registrar made observations on the request for review.[35] The Registry explained the rationale for the legal aid system and submitted that it was acting within its jurisdiction in taking the 28th March decision, and requested that the Presidency dismiss the request for review. The decision of the Presidency was pending at the time of writing.

 

UGANDA SITUATION AND CASE (THE PROSECUTOR V. JOSEPH KONY, VINCENT OTTI, OKOT ODHIAMBO AND DOMINIC ONGWEN)  

Decision on the Defence Application for Leave to Appeal the 14 March 2008 Decision on Victims' Applications for Participation

On 14 March, Pre-Trial Chamber II issued a detailed decision on victims’ applications to participate in proceedings,[36] in which 4 applicants were granted status in the situation, 5 in the case against the top LRA commanders and 3 in both the situation and the case.

On 25 March, the Defence sought to appeal the decision on two grounds[37] and the Prosecution didn’t oppose the Defence request.[38] The OPCV was granted leave to file a response.[39] In its response,[40] the OPCV submitted that the appeal should not be admissible, and in the alternative, if provided responses to the grounds set out in the Defence’s appeal.

On 2 June, the Single Judge from PTC II decided[41] to dismiss the Defence’s first ground of appeal (Can victims be granted a general right to participate or should it be considered that such participation is only possible if it is established that specific personal interests of the applicant are affected by the

proceedings and that this participation is appropriate at that stage of the proceedings?) and granted leave to appeal the second issue (In order to establish mental harm suffered as a result of physical harm suffered by another person, should the identity of the latter and the relationship the applicant has with the person be required?).

 



[3] Katanga defence observations: ICC 01/0401/07-400, 16 April 2008, http://www.icc-cpi.int/NR/exeres/55D61509-EBEF-412F-B202-6FE3694DB100.htm

[4] Ngudjolo defence observations: ICC 01/04-01/07-396, 15 April 2008, http://www.icc-cpi.int/NR/exeres/1EA8E16A-298F-4564-9FCC-D20ED279BF30.htm

[5] Maitre Bapita observations: ICC 01/04-01/07-385, 9 April 2008, http://www.icc-cpi.int/NR/exeres/51BD0297-3A32-4410-A834-A67419AA8E13.htm;  Maitre Keta observations: ICC 01/04-01/07-383, 9 April 2008, http://www.icc-cpi.int/NR/exeres/42F01813-BCB2-4FDA-B33F-87C4D5EC2E9E.htm

[6] Link to Decision: ICC 01/04-01/07-428, 21 April 2008, http://www.icc-cpi.int/NR/exeres/B92B3A11-DA28-4B0A-809F-92F8682F2188.htm

[9] Registry’s submission:  ICC 01/04-01/07-486, 20 May 2008, http://www.icc-cpi.int/NR/exeres/172A03FE-0EC0-4282-ADBE-32AC05FA9584.htm

[10] Prosecution response: ICC 01/04-01/07-499, 23 May 2008, http://www.icc-cpi.int/NR/exeres/9ACF82E9-415D-48FB-849E-9961A1F9CD2F.htm ; Legal Representative Bapita’s response: ICC 01/04-01/07-503, 23 MAy 2008, http://www.icc-cpi.int/NR/exeres/658CE189-90D1-473E-BCF1-927AE93C4E28.htm

[11] Legal Representative Bapita’s observations: ICC 01/04-01/07-505, 24 May 2008, http://www.icc-cpi.int/NR/exeres/CFB92D2B-5A4C-4A83-A69D-8C2E6E3BDE02.htm

[12] Prosecutor’s submission: ICC 01/04-01/07-506, 26 May 2008, http://www.icc-cpi.int/NR/exeres/1FAF9541-4D76-4A7E-A4C1-97B5B64939D8.htm

[13] Ngudjulo Defence response: ICC 01/04-01/07-508, http://www.icc-cpi.int/NR/exeres/4D2EBC2D-1AD9-4DB2-9C5A-40DB6CE8D141.htm

[14] Single judge decision: ICC 01/04-01/07-527, 29 May 2008, http://www.icc-cpi.int/NR/exeres/1D0F8EE3-AA36-469E-99E9-52EEAED1FCAB.htm

[16] Request of applicants’ legal representative Keta: ICC 01/04-01/07-557, 6 May 2008, http://www.icc-cpi.int/NR/exeres/41DF479F-7FD1-4039-A067-42D70438B123.htm

[17] Decision of PTC1 on 97 victim applications: 01/04-01/07-579, 10 May 2008, http://www.icc-cpi.int/NR/exeres/F4D6D632-E4FA-4641-A58E-9D0BB9FD1E8A.htm

[18] ICC 01/04-01/06-1308, 6 May 2008, http://www.icc-cpi.int/iccdocs/doc/doc482582.PDF

[19] OPCV submission: ICC 01/04-01/06-1315, 9 May 2008, http://www.icc-cpi.int/iccdocs/doc/doc484935.PDF

[20] Lubanga defence submissions: ICC 01/04-01/06-1318, 12 May 2008, http://www.icc-cpi.int/NR/exeres/656A5FBE-8F1D-4B59-89DE-5491CD4137A2.htm

[21] Prosecution filing: ICC 01/04-01/06-1322, 13 May 2008, http://www.icc-cpi.int/NR/exeres/E9FBD903-62C9-48D4-B4F8-CD8C59340B3C.htm

[22] ICC 01/04-01/06-1333, 16 May 2008, http://www.icc-cpi.int/iccdocs/doc/doc492294.PDF

[23] Prosecution observations: ICC 01/04-01/06-1386, 9 June 2008, http://www.icc-cpi.int/NR/exeres/6DC8D837-4681-46C3-A2CD-7547FF7999C5.htm

[24] Defence observations: ICC 01/04-01/06-1388, 10 June 2008, http://www.icc-cpi.int/NR/exeres/CD4EFBED-85E0-449E-AF31-2411E52592F9.htm

[26] ICC 01/04-01/07-1191, 26 February 2008,  http://www.icc-cpi.int/NR/exeres/399B480E-4E97-4779-B714-EDCB755FB3D6.htm

[27] ICC 01/04-01/06-1335 16 May 2008, http://www.icc-cpi.int/iccdocs/doc/doc493170.PDF

[28] Legal representatives’ observations: ICC 01/04-01/06-1345, 21 May 2008, http://www.icc-cpi.int/NR/exeres/EFA707F5-4A47-480A-BAAF-BC08869D56C9.htm

[29] Prosecutions’ response: ICC 01/04-01/06-1361 30 May 2008, http://www.icc-cpi.int/NR/exeres/8ED3C8E8-2CF9-4DF2-9BF5-C48854FA669B.htm

[33] Registry’s decision: ICC 01/04-490, 26 March 2008, http://www.icc-cpi.int/NR/exeres/15B1D367-B8CD-4DF8-B25D-F75206BE73BA.htm

[34] Request for review : ICC 01/04-494,14 April 2008, http://www.icc-cpi.int/NR/exeres/ACE9BAB2-613A-4560-BCBD-9C789CA0A370.htm

[35] Registry observations: ICC 01/04-497, 6 May 2008, http://www.icc-cpi.int/NR/exeres/10396D23-E33B-457A-964F-FBD713836379.htm

[36] ICC 02/04-125, 14 March 2008, http://www.icc-cpi.int/NR/exeres/8B17D8FF-05ED-4525-AFAB-8129BDED6A80.htm. For a detailed summary of this decision, see the April Legal Update : http://www.vrwg.org/Publications/01/2008%20March%20April%20Legal%20Update.pdf.