Victims' Rights Working GroupPromoting the rights and interests of victims
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LEGAL UPDATE September 2007

ICC Victims’ Rights Legal Update
24 September 2007

(pdf version)



Darfur Situation
•    Access to Registrar’s report on victims’ applications is rejected
•    Office of Public Council for the Defence (“OPCD”) requests further information on victims’ applications
•    Request for exculpatory evidence related to applications for participation

Uganda Situation & Cases
•    Applicants granted victim status in the case and situation
•    The Prosecutor attempts to appeal decision granting victims standing in the situation and case
•    New temporary Single Judge for victims’ issues appointed

DRC-Situation
•    OPCD requests for transmission of the Registry’s report on victim applications are rejected
•    Pre-Trial Chamber affirms that supplementary information is part of applications
•    Women‘s initiative is denied the right to participate as amicus curiae.
•    OPCD seeks disclosure of potentially exculpatory evidence in relation to victims’ applications
•    OPCD requests access to confidential OTP documents relating to victim applications filed in 2006
•    OPCD requests further information on applications
•    Request from victims “VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6” is rejected

DRC-Lubanga Case
•    A new timetable for hearings is set up in the Lubanga case

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SITUATION IN DARFUR

Parties’ request to access the Registrar’s report is rejected

[Background] On 1 August, OPCD requested access to the Registrar’s report on victims’ applications for participation in the proceedings.

On 2 August , the Court halted the proceedings on submission of observations on victims ‘applications a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07 until a decision on OPCD’s request is reached.
 
On 9 August , the legal representative of applicants a/0021/07, a/0023/07 to a/0033/07 and a/0035/07 to a/0038/07 opposed OPCD’s request to have the Registrar’s report because it would raise protection and security issues for the applicants as well as third persons named in the applications. The legal representative also asked to receive a copy of the report.

On 21 August,  the Single Judge rejected both OPCD’s and the victims’ representative’s request to access the Registrar’s report. The Judge referred to the 20 August 2007 decision in the DRC situation, which states that Rule 89, (on the transmission of victims’ applications to the parties for their observations) makes no mention of any obligation to also transmit any reports produced by the Registry for the benefit of the Judges. On 22 August the Court resumed the time delay on the submission of observations (30 days from notification of the decision therefore by 22 September).

Request for further information on the applications

On 21 August , OPCD requested that the Court order further information on some victims’ applications.

It argued that Regulation 86(2) placed the onus on the applicants to provide information deemed relevant by the Court or the Parties, or to explain why they could not obtain it. OPCD indicated that the applications failed to provide relevant information, which was worrying as neither the applicants, witnesses of the applications or translators were personnel of the Court. It also indicated that if the applicants had the information or could obtain it, and still refused to provide it, then the Court should “draw adverse inferences regarding the bona fides of the applicants and the credibility of the allegations”.

OPCD requested information on:
-    the existence of previous cases filed by the applicants domestically or internationally (exhaustion of domestic remedies issues as well as non bis in idem and duplication of procedures);
-    the interpretation provided (qualification of interpreters and reliability of the translator);
-    The conditions on which the applicants were granted asylum and the statements they made in their asylum proceedings (cross reference of allegations, credibility issues, etc.);
-    The identification and status of the persons standing as “witness” on the applications (credibility).

Request for disclosure of exculpatory evidence related to applications for participation

[Background] On 29 May, OPCD requested that OTP disclose exculpatory materials, in particular relating to:
-    the intensity of hostilities in the villages quoted in the applications (threshold of an armed conflict)
-    the presence of persons affiliated with armed groups in those villages (military character of the villages could make them legitimate targets)
-    the applicants’ link with an armed group (civilian v. combatants issues)
-    the applicants’ commission of criminal acts (to affect their credibility)
-    all information impairing the credibility of the applicants.
OTP refused to grant the request as it considered it irrelevant. 

On 24 August , OCPD asked the Court to order OTP to proceed with the request. It argued that one of the objectives of victims’ participation was to “clarify the facts” and that failure to provide the requested information would seriously impair the rights of the Defence. It finally recalled OTP’s duty under art 67(2) to disclose exculpatory evidence. The next day, OTP informed the Court of its intention to file a consolidated response to both requests of OPCD.


UGANDA SITUATION & CASES

Applicants granted victim status in the case and situation

On 10 August 2007 , the Single Judge granted 6 victims the right to participate in the case proceedings and 2 victims the right to participate in the situation proceedings. Both groups were granted a common legal representative under Rule 90(2). A decision on other applications was deferred until appropriate proof of identification is provided or until reports corroborating the events are transmitted for one application in the situation.

In that decision the Single Judge indicated that some of the criteria needed to establish victims’ right to participate in a case are dependant upon the determination of guilt of an accused which occurs later in the process. He went through victims’ role, highlighting that victims who “have communicated with the Court” but who have not necessarily been granted victim status in the proceedings could still participate in some proceedings (for example those on conditional release of an accused in the case stage).

The Single Judge also described the conditions needed to establish the identity of an applicant and stated that he would first and foremost assess the statements of the applicants on the merits of their intrinsic coherence. While indirect proof of identification will be accepted, some criteria must still be met and the document should:
-    be issued by a recognized public authority
-    state the name and date of birth of the holder
-    show a photograph of the holder.
The Single Judge also requested the Victims’ Participation and Reparation Section (VPRS ) of the Registry to provide him with a report indicating from “what age the Ugandan legal and administrative system allows documents meeting the three conditions mentioned to be issued to individuals as well as providing information about the existence and obtainability, in the Ugandan legal or administrative system, of documents establishing the link between a child and a member of his or her family, such as birth certificates or other types of documents.”

Moreover, the Judge stated that to determine victims’ status in the situation stage, the Court would need to have sufficient external evidence (NGO, UN reports…) corroborating the events described in the applications if they were different from the one for which arrest warrants had been issued.

OTP attempts to appeal the decision granting legal status to victims

On 20 August , the Prosecutor sought to appeal the 10th August decision under Art 82(1)(d) asking the Appeals Chamber to enter an authoritative decision to end any uncertainty as to the scope of victims’ participation at the investigation stage. The Prosecutor stated that the Decision involved the extent to which victims may participate under Article 68(3)at the investigation stage  as well as what the definition was of the “personal interests” required to allow a victim to participate in a proceeding.

On 31 August, Paolina Massidda, legal representative of victims a/0101 and a/0119/06 (and the head of the OPCV) opposed OTP’s request.

New temporary Single Judge for victims’ issues

On 3 September, Judge Ekaterina Trendafilova was appointed as single Judge responsible for all victims’ issues in the proceedings in the situation in Uganda and the case for the period of 6 September to 15 October 2007. Judge Mauro Politi will resume his function after that date.


DRC SITUATION

Requests for transmission of the Registry’s report are rejected and precision as to ID proof are given

[Background] On 20 July, the anonymous legal representative of victims requested that the Court recall the full versions of the applications and not allow the identity of victims to be transmitted to the Prosecutor and the OPCD in the future. Furthermore, the legal representative requested that the confidential reports on the victim applications produced by the Registry (VPRS) should not be disclosed to the parties, unless the legal representative was also provided with a copy.

On 27 July, OTP responded that there was no security threat in providing OPCD and OTP with the applicant’s identities. The Prosecutor further stated that redactions would prevent them from assessing the applications properly, especially regarding the requirement of a causal link between the harm suffered and the facts alleged. OTP also asked for the Registry’s report and for it to be transmitted to OPCD and the legal representative.

On 17 August,  the Chamber, after stating which conditions needed to be filled to consider an application complete, decided not to transmit the Registry’s report to any of the parties. It highlighted that hereinafter only complete applications should be transmitted to the Chamber. The Chamber also requested that the legal representative of victims reveal his identity, as anonymity is not compatible with fair trial. It specified that until a mandate is received OPCV would provide assistance to applicants without a legal representative.

The Chamber also reiterated that unredacted versions of the applications would be transmitted to OTP and OCPD at the situation phase and rejected a call for redaction related to intermediaries’ identities.

Elements necessary to consider an application complete:
-    The identity of the applicant
-    ID card
-    Date and place of crime(s)
-    Description of the harm suffered resulting from the commission of crime(s) under the jurisdiction of the Court
-    Proof of ID
-    Express consent of the victim if an application is made on her/his behalf
-    When a victim is a minor, evidence of a family link or legal guardianship must be provided.
-    There should be a signature or thumb print on the document and at least on the last page of the application.

However, the Chamber recognized the difficulties for applicants to submit the usual identity documents and stated that at that stage it would take a flexible approach and accept some documents as proof of identity.

On 31 August, the victims’ legal representative revealed his identity.

On 14 September, OPCV requested access to further information on applications a/0026/06, a/0145/06, a/0203/06 and a/0220/0. This was granted by the Court on 17 September after stating that as the applicants did not already have a legal representative all documents related to their applications should be transmitted to OPCV.

Supplementary information requested by the Court forms part of applications

On 22 August, the Court indicated that supplementary information provided after the applications were received should be considered as part of the applications, and would be transmitted to both OTP and OPCD. On 24 August the Pre-Trial Chamber ordered that supplementary information relating to applications a/0009/06, a/0018/06, a/0026/06, a/0027/06, a/0038/06, a/0144/06, a/0145/06, a/0148/06, a/0203/06, a/0214/06, a/0220/06, a/0221/06, a/0224/06, a/0227/06, a/0228/06, a/0229/06, a/0230/06, a/0231/06, a/0232/06, a/0233/06, a/0234/06; a/0235/06; a/0237/06, a/0238/06, a/0242/06, a/0243/06, a/0244/06, a/0245/06, a/0246/06, a/0247/06, a/0248/06, a/0249/06 and a/0250/06 be transmitted to OPCD and OTP for them to submit their observations.

Women‘s initiative I s denied the right to participate as amicus curiae.

[Background]: On 10 November 2006, the Women’s Initiative filed a request for participation as amicus curiae in the Situation in the DRC namely on: (i) the role of the Pre-Trial Chamber in supervising prosecutorial discretion; and (ii) the criteria for determining victims' status.

On 17 August 2007 , Pre Trial Chamber 1 rejected the request. It stated that in determining whether to grant the request it had to evaluate whether this was “desirable for the proper determination of the case” and deemed the two issues on which Women’s Initiative wanted to intervene inappropriate at that stage of the proceedings.

OPCD’s request for OTP to search for and disclose potentially exculpatory evidence in relation to victims’ applications.

On 28 August, OPCD  requested that the Court order OTP to search for and disclose any information that it considered was exculpatory material  and  could suggest that 1) the intensity of hostilities in the villages cited in the application did not meet the requisite threshold for an armed conflict during the period of time cited in the applications; 2) that the villages mentioned in the applications or their environs may have been inhabited by persons affiliated with armed groups; 3) that the persons mentioned in the applications may have had links to armed groups; 4) that the persons mentioned in the applications may have committed criminal acts or any other information which would impact on their credibility. It argued that unless such information was provided it would be impossible to assess applications for participation in the proceedings to ensure they related to crimes falling within the jurisdiction of the Court.

OPCD requests access to previous filings

On 29 August, OPCD requested access to all documents filed regarding applications referred to in the 24 August decision (which included applications for which observations had already been submitted by the previous ad hoc counsel for Defence). It argued that its mandate was in furtherance of the one of the previous ad hoc counsel for defence and consequently OPCD should have access to the documents.

    On 11 September   the Court stated that OPCD’s mandate did not continue the mandate from previous ad hoc counsel for Defence and that OPCD should not contact the previous counsel directly. The Chamber supported OTP’s argument that only the Court could order the disclosure of confidential information relating to victims. The Chamber granted OPCD access to filings on applicants a/0009/06, a /0018, a/0026, and a/0038/06 as well as to a redacted version of OTP’s confidential annexes to its previous observations. Finally, OPCD was granted access to a redacted version of previous ad hoc counsel for defence’s observations on applications. 

On 12 September OPCD requested that the Judge clarify the meaning of his decision.

OPCD’s request for further information on applications

    On 29 August, OPCD requested that the Single Judge order the legal representative or VPRS to disclose any information relating to potential pre-existing medical conditions; whether they had been subject to investigations; whether they had a link with other persons applying for participation; as well as to disclose further information on translators and witnesses to the applications.

OPCD argued that failure to provide this information should lead to the dismissal of the applications in application of Rule 86(2) of the Court’s regulations. It also stated that this information was crucial to establish the credibility of the applications especially as the Court was assessing them on a strictly written basis. 

Request from VPRS 1 to 6 is rejected
[Background] On 28 June 2006, OTP informed the Chamber that it had temporarily suspended the investigation in relation to other potential charges against Thomas Lubanga. On 30 August 2006, the legal representative of victims “VPRS 1 to 6” requested that the Chamber review, pursuant to article 53(3)(b), the implicit decision of the Prosecutor not to prosecute. It sought to have the Prosecutor ordered to provide the Chamber with information and documentation for the Chamber to consider his tacit decision not to prosecute.

On 26 September the Court rejected the request from VPRS 1 to 6, stating that as OTP had not taken a decision not to prosecute or not to investigate, the request was unfounded.


DRC – LUBANGA CASE

A new timetable for hearings is set up in the Lubanga case

The timetable for hearings in the Lubanga case was amended on 5 September following a request from the Defence to postpone hearings in order to familiarize itself with the case. Also the Defence requested that the designation of co-counsel be added to the list of issues to be discussed.

New timetable:
-    1 October 2007: to discuss the date of trial, language,, timing and manner of disclosure of evidence, e-court protocol;
-    30 - 31 October and 1 - 2 November 2007 : to discuss the role of victims in the proceedings leading up to and during the trial, instruction of expert witnesses, witness familiarization and witness proofing;
-    20 November 2007 : status of evidence heard by Pre-Trial Chamber 1 (PTC1) before the Trial Chamber, status of the decisions of PTC1 in which evidence should be transmitted (Article 64(8)(b) and Rule 140)

OTP, the Defence and the legal representative of victims have since submitted their observations as to the agenda of the first audience. The legal representatives of victims have also submitted their observations on the modalities of victims’ participation.