MICT: Stanišić’s Defence Requests Stay of Proceedings

jovica-stanisic

Jovica Stanišić

This week, the Defence for Jovica Stanišić filed a request in front of the Trial Chamber of the Mechanism for International Criminal Tribunals (MICT) to stay the proceedings until the Prosecution respects the principle of finality and the Appeal Chamber’s order for retrial.

On 31 May 2013, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) acquitted Jovica Stanišić, formerly Deputy Chief and Chief of the State Security Service (SDB) of the Ministry of Interior of the Republic of Serbia, and his co-accused, Franko Simatović, formerly Deputy Chief of the Second Administration of the Serbian SDB and special advisor in the SDB.

In December 2015, the ICTY Appeals Chamber ordered that they be retried on all counts of the indictment.

In September 2016, the Prosecution filed its Pre-Trial Brief and other pre-trial materials.

In its request, the Defence submits that the Prosecution’s approach to the retrial amounts to ‘’such an egregious violation of the Accused’s rights that it is detrimental to the Court’s integrity, contravenes any sense of justice, and makes a fair trial impossible’’. The Defence submits that the Trial Chamber should stay the proceedings until the Prosecution fully respects the res judicata and non bis in idem principles and the order of the Appeals Chamber for a retrial on the previous Indictment without addition or expansion of the counts or charges. Continue reading

ICC: Jean-Pierre Bemba’s Defence Appeals his Conviction

160621-bemba-sentence-10-1The Defence for Mr. Jean-Pierre Bemba filed an appeal against his conviction for war crimes and crimes against humanity in front of the Appeals Chamber of the International Criminal Court (ICC).

The Defence criticized many of the findings of the Trial Chamber and claimed that the Bemba trial was in fact a mistrial.

The Defence highlighted a vast number of gaps in Mr. Bemba’s right to a fair trial, claiming for instance that the Prosecution was permitted to intercept and listen to telephone conversations between the accused and his lawyers, between the lawyers themselves, and between the lawyers and Defence witnesses.

The Defence also mentioned the vast amount of ex parte access to the Trial Chamber enjoyed by the Prosecution to discuss matters directly relevant to the Judgment itself.

The majority of the appeal, however, is dedicated to the flaws of the Trial Chamber’s findings on effective control, which, according to the Defence, ‘’fall far outside established military doctrine and practice’’ […] and ‘’deprive the Judgement of precedential value in shaping the future actions of commanders.’’

For the Defence, the Trial Chamber, having disregarded the evidence of both the Prosecution and Defence military experts, ‘’invented a theory of command responsibility which is a military impossibility’’ […] and ‘’conflated basic military principles, misunderstood and misapplied established legal doctrine and, most alarmingly, made key factual findings on the basis of no evidence.’’

The Defence adds that other fatal flaws undermine the conviction. The Defence referred to the fact that nearly two thirds of the underlying acts for which Mr. Bemba was convicted were not included or improperly included in the Amended Document Containing the Charges and fall outside the scope of the charges.

The Defence also pointed out that, to convict a person of a crime against humanity, a Trial Chamber must find that he knew that his conduct was part of a widespread attack on a civilian population. However, no such finding was made in this case against Mr. Bemba.

The Prosecution has two months within which to file a response.

In order to read a summary of the Defence Appeal, click here.

Event: Trials in Absentia in International Criminal Justice

IBADate: 8 June 2016 from 14:00-17:30

Venue: The Hague Institute for Global Justice, Sophialaan 10, The Hague, Netherlands

This event is organized by the International Bar Association.

The Keynote presentation will be delivered by the President of the Special Tribunal for Lebanon (STL), Judge Ivana Hrdlicková. 

Following the Keynote presentation, two panels of experts will discuss issues related to the theory and practice of trials in absentia: ‘Trials in absentia: human rights law & the judicial process’ (moderated by Dr Mark Ellis, IBA Executive Director) and ‘Effective representation & ethics in trials in absentia‘ (moderated by Ms Anne-Marie Verwiel, expert in international criminal practice).

 Topics to be addressed include

  • Issues related to the fairness of proceedings, including notice to the accused, the right to re-trial, and effective assistance of Counsel
  • The tensions between the promotion of the rule of law, fair trial rights and efficiency of proceedings
  • The future of trials in absentia in international criminal law

The panelists include Mr Geoffrey Robertson QC, the former President of the UN’s Special Court for Sierra Leone, Mr François Falletti, the former Chief Prosecutor of the Paris Court of Appeals, Dr Guido Acquaviva, the Deputy Registrar of the Kosovo Specialist Chambers, Ms Héleyn Uñac, Deputy Head of the Defence Office of the STL, as well as other international experts and practitioners with experience in in absentia trials, including at the Special Tribunal for Lebanon and the Bangladesh War Crimes Tribunal.

Participation is free of charge. However, prior registration is required to attend the event.

You can register by sending the name and email of all attendees to Hague.Events@int-bar.org before 25 May 2016.

For the full programme of the event, click here.

What’s Taking so Long?

By Nora Jaber*

Court HammerRutkowski and Others v. Poland and Gazso v. Hungary are two pilot cases decided in July 2015 that highlight a major point of contention faced by the European Court of Human Rights (“ECtHR”): the right to be tried within a reasonable time as enshrined within Article 6(1) of the Convention. At the time of the Rutkowski judgement there were over another 650 similar cases pending before the ECtHR, and over 300 Polish cases pending before the Committee of Ministers at the execution stage.

This demonstrates the scale of the relevance of Article 6(1) to the Court’s jurisprudence today. In fact, it is the most contentious issue before the Court, and has been at the forefront of the Court’s caseload for a very long time. The Court has issued hundreds of judgments on Article 6(1) and has stressed the importance of minimising delays in order for justice to be delivered. Despite this, the problem of undue delays in proceedings persists and warrants attention.

It is said that ‘justice delayed is justice denied.’ Delays can and do compromise the effective administration of justice. An excessively long procedure can result in a weakening of the position of the accused by, for example, a deterioration of the quality of evidence or a loss of it. Such situations become more plausible the longer the duration of the trial procedure and should be avoided in order to ensure a proper administration of justice.

Continue reading

Letpadaung Convictions Taint the Legal System in Myanmar

by Vani Sathisan, International Commission of Jurists (ICJ) International Legal Adviser, and Hayman Oo, ICJ Legal researcher, in Yangon

Letpadaung Copper Mine

Letpadaung Copper Mine, Myanmar

“They can imprison my body, but never my mind,” U Nay Myo Zin told us when we asked him whether he expected to be released, right before police led him into the Dagon Township courtroom for the verdict last week. The Court was teeming with police guards and supporters of the accused chanted slogans at the police, “not to kowtow to the military government” and that “the legal system lacks principle.” U Nay Myo Zin then added, “I will never surrender.”

He was one of the six human rights activists, besides Daw Naw Ohn Hla, Daw Sein Htwe, Ko Tin Htut Paing, Daw San San Win and U Than Swe, who were sentenced to four years and four months in prison with hard labour.

Their conviction, after a trial that didn’t meet basic standards of fairness and due process, highlights the tremendous pressure on the country’s judiciary at a time when Myanmar desperately needs to show improvements in the rule of law. Continue reading

ICC: The Challenges of the Defence

Court HammerIn a recent article in the French legal review “La Gazette du Palais”, the French Lawyer François Roux discusses the challenges faced by the Defence in front of the international jurisdictions, and more specifically at the International Criminal Court (ICC). After explaining that the creation of the Office of Public Counsel for Defence (OPCD) at the ICC constitutes an important step in order to reinforce the equality of arms and to enable a fair trial, Roux criticizes the fact that the OPCD falls within the remit and the authority of the Registry for administrative purposes and does not constitute per se an organ of the ICC, which is the case of the Office of the Prosecutor for instance.

On the contrary, he says, the Registry wants to replace the OPCD by an Association of Defence Counsel which would be external to the Court. For Roux, current Head of the Defence Office at the Special Tribunal for Lebanon, it is essential that the Defence be permanently represented by an independent organ, equal to the Office of the Prosecutor, with the competence to conclude international agreements with States or to intervene at the Assembly of State Parties.

If you wish to read the article in French, click here.

Fair Trials International New Training Programme

flagFair Trials International is organising a Practitioner Training Course for lawyers from Germany, Austria, Czech Republic, Slovakia and Poland on fair trial rights in criminal proceedings in partnership with the Helsinki Foundation for Human Rights. The course on “the EU directives on fair trial rights in criminal proceedings” will be held in Warsaw,

Poland, from 21st to 23rd November 2014.

Venue: Westin Hotel, Warsaw, Poland

Dates: 21-23 November 2014

Language: English

For Lawyers from: Germany, Austria, Czech Republic, Slovakia, Poland

Application deadline: 12 September 2014

Cost: There is no charge for the training.

The application form is available here. To apply or for more information, send an email or visit Fair Trials’ Website.

US Army Sacrifices Military Career of 9/11 Mastermind’s Lawyer

Major Jason Wright

Major Jason Wright

Major Jason Wright, a military lawyer representing the interests of accused 9/11 mastermind Khalid Sheikh Mohammed, is retiring from the U.S. Army, which was trying to force him off the defense team on the grounds that he needed to attend a graduate course this year.

Khalid Sheikh Mohammed is one of five accused Sept. 11 co-conspirators now in pretrial proceedings before a military commission at the Guantanamo Bay naval base, where they are also being held. The case is one of the most important in U.S. history, and the defendants could face the death penalty.

Every year, all Army majors designated as attorney must attend a graduate course in Virginia. Though he deferred the course last year, the Judge Advocate General of the Army denied Major Wright’s request this year, meaning that he must either leave the case to attend the course or resign from the army.

“I had to make a legal and ethical decision as to what I was going to do in the best interest of my client, and I chose the option which 100 percent of all defense lawyers would choose. It’s one of these law school scenarios; it’s just being played out in real life.” Continue reading