SITTING as Trial Chamber II composed of
Judge Arlette Ramaroson, Presiding, Judge William H. Sekule, and Judge Solomy
Balungi Bossa (the “Chamber”);
BEING SEISED of Renzaho’s “Requête de la Défense en demande de rabat de la Décision
du 17 août 2005 et de réouverture des débats”, filed on 26 August
2005 (the “Motion”);
NOTING the Prosecutor’s “Response to ‘Requête de la Défense en demande d’autorisation
de faire appel en vertu de l’Article 73 C du Règlement de Preuve et de
Procédure’’”, filed on 6 September 2005 (the “Prosecutor’s Response”);
CONSIDERING the Defence’s “Réplique de la Défense à la Réponse du Procureur à la
Requête de la Défense en demande d’autorisation de faire appel en vertu
de l’Aricle 73 C du Règlement de Preuve et de Procédure”, filed on 13 October 2005 (the “Defence’s
Reply”);
RECALLING the Prosecutor’s “Motion for
Protective Measures for Victims and Witnesses to Crimes alleged in the Indictment”,
filed on 6 June 2005 (the “Prosecutor’s Motion”);
NOTING the “Decision on the Prosecutor’s
Motion for Protective Measures for Victims and Witnesses to Crimes alleged
in the Indictment”, issued on 17 August 2005 (the “impugned Decision”);
NOTING FURTHER the Registry’s directions
to the Parties regarding filing of responses and replies to the Prosecutor’s
Motion, dated 4 July 2005 (the “Registry’s Directions;”);
CONSIDERING the Statute of the Tribunal
(the “Statute”) and the Rules of Procedure and Evidence (the “Rules”), particularly
Rule 73 (E);
NOW DECIDES the Motion pursuant to Rule
73 (A) on the basis of the written submissions of the Parties.
Introduction
1. On
6 June 2005, the Prosecutor moved the Chamber to award protective measures
for several witnesses. Of the 18 Annexes supporting the motion, 17 were
in English.
2. On
4 July 2005, the Registry informed the Parties of the time limits with respect
to the filing of responses and replies. The Defence for Renzaho was directed
to file its response within five days after the receipt of the French translation
and the Prosecution within five days of receipt of the Defence response.
3. On
14 July 2005, the Registry informed the Defence that it was awaiting its
response to the Prosecutor’s Motion and asked the Defence to indicate its
position so the Chamber could be informed of the current status.
4. On
17 August 2005, the Chamber issued a Decision granting in part, the Prosecutor’s
Motion for witness protective measures.
SUBMISSIONS OF THE PARTIES
The Motion
5. The
Defence submits that it received the Prosecutor’s Motion, in English, on
8 June 2005. Attached to this motion were several Annexes, comprising over
70 pages.
6. The
Defence submits that it understands Rule 73(E) to provide a Party with five
days within which to reply to a motion from the date on which it is received
in the working language of the Party, in this case, French.
7. In
the Annexes adjoining the Motion, the Defence attaches an email it sent to
the Registry on 8 July 2005, informing the Registry that it was still awaiting
the Prosecutor’s Motion and Annexes. The Defence noted that it had received
a communication from the Registry via electronic mail but had been unable
to open and print the attachments. The Defence requested that the Registry
transmit the translated Motion and adjoining Annexes by facsimile. The Defence
also sought confirmation from the Registry that the time limits imposed by
the Chamber for filing its response had not begun to run, considering the
translated documents had not been received.
8. The
Defence submits that on 11 July 2005, it received the French translation
of the Prosecutor’s Motion, but not of the Annexes. The Defence subsequently
wrote to the Registry, noting the sheer number of the Annexes, as well as
the Prosecutor’s reliance upon them in justifying its Motion. The Defence
informed the Registry that since it had not received a translation of these
Annexes, it was of the view that the period within which it had to reply
to the Motion would not begin to run until receipt of the translated Annexes.
9. The
Defence reiterated its request for translation of the Annexes on 20 July
2005, noting that it was unable to respond without a translation of the Annexes.
In view of the lack of response from the Registry on the issue of time limits,
the Defence submits it was justified in believing the Registry would not
object to the delay in the submission of its response.
10. On
17 August 2005, the Defence received the impugned Decision. The Defence maintains
that it was not given an opportunity to reply to the Prosecutor’s Motion,
the core of which concerned the fundamental rights of the Defence. As a result,
the Defence submits that it has been prevented from knowing the identity
of the Prosecution witnesses for whom protective measures are sought until
the last moment.
11. The
Defence informs the Chamber that it has filed a separate Motion seeking certification
to appeal the impugned Decision. However, it maintains that since the Chamber
was unaware that the lack of a Defence Response was due to the non-receipt
of the relevant documents in its working language, the only language the
Accused understands, the Chamber has the discretionary power to reconsider
the impugned Decision.
The Prosecutor’s Response
12. The
Prosecutor submits that the Chamber has no jurisdiction to withdraw its decision,
and neither is there a provision within the Rules for either party to request
a withdrawal of a Trial Chamber decision. Accordingly, the Prosecutor moves
the Chamber to deny the Motion in all respects. The Prosecutor maintains that the impugned decision
is consistent with this Tribunal’s and the International Criminal Tribunal
for the Former Yugoslavia’s jurisprudence, and does not prejudice the rights
of the Accused.
13. The
Prosecutor notes that the Defence has failed to raise any substantial objection
to the terms of the Chamber’s orders.
The Defence’s Reply
14. The
Defence’s Reply reiterates the arguments contained in the Motion and stresses
the importance of the equality of arms for a fair trial, which it submits
has been violated because the Defence’s arguments were not heard.
15. The
Defence further submits that the Prosecution’s prayer to be authorised to
disclose the witnesses’ identities 21 days before the start of their testimony
can only be ordered pursuant to Rule 69 (A). This Rule, however, is only
applicable in exceptional circumstances and therefore cannot be sought as
a blanket protection for all witnesses. Besides, this measure violates the
rights of the Accused to have the time and facilities to adequately prepare
his defence, pursuant to Art. 20 of the Statute.
16. The
Defence observes that the disclosure of documents to the Defence within reasonable
time would expedite the proceedings. It points out that if it was clear that
the Annexes would not be communicated in French, it would have been good
manners to inform it, rather than take a decision without informing the Defence
that its arguments would not be heard.
17. The
Defence accepts that the Accused does not have the right to receive each
and every document translated into a language s/he understands. It submits,
however, that the Annexes were of fundamental importance for the Prosecution’s
Motion and thus had to be translated in the interests of a fair trial.
DELIBERATIONS
18. The
Chamber has carefully considered all the submissions of the Parties.
19. The
Chamber recalls the facsimile sent to the Defence on 4 July 2005, directing
the Defence to file its response within five days of the receipt of the translation
and notes the correspondence between the Defence and the Registry as contained
in the Defence Annexes A and B.
20. The
Chamber further recalls its jurisprudence on reconsideration, namely that,
[t]he fact that the Rules
are silent as to reconsideration, however, is not, in itself, determinative
of the issue whether or not reconsideration is available in “particular circumstances” and
a judicial body has inherent jurisdiction to reconsider its decision in “particular
circumstances.” Therefore, although the Rules do not explicitly provide
for it, the Chamber has an inherent power to reconsider its own decisions.
However, it is clear that reconsideration is an exceptional measure that
is available only in particular circumstances.
21. The
Chamber notes that it has the inherent jurisdiction, to be exercised at its
discretion, to reconsider an impugned decision, including but not limited
to the following circumstances:
i) Where
the impugned decision was erroneous in law or an abuse of discretion when
decided and for this reason a procedural irregularity has caused a failure
of natural justice; or,
ii) Where
new material circumstances have arisen since the decision was issued.
22. Pursuant
to Article 16(1) of the Statute and Rule 33(A) of the Rules, the Chamber
notes that the Registry is responsible for the administration and servicing
of the Tribunal, whilst Rule 3(E) of the Rules and Article 13(6) of the Directive
for the Registry place the responsibility of overseeing the translation of
documents on the Registry.
23. The
Chamber recalls Tribunal jurisprudence which states that “parties can only
refer a matter to the Chamber if the Party or parties concerned and the Registrar
have been unable to settle by themselves a dispute concerning a problem of
translation or interpretation”, as is the case here.
24. The
Chamber notes that the Registry did not respond to the Defence’s concerns
communicated on 20 July 2005 in relation to the questions of the translation
of the Annexes and the interpretation of the Chamber’s stipulated time limits.
The Defence submits that this absence of a response led it to believe that
the specific time frames directed by the Chamber had not begun to run. Furthermore,
these concerns were not communicated to the Chamber by the Registry.
25. In
these particular circumstances, the Chamber notes that the impugned Decision
was made in the absence of any knowledge of the Defence’s concerns. Therefore,
the Chamber finds that the Defence has demonstrated a new material circumstance
that has arisen since the Decision was issued. The Chamber acknowledges and
recognises the right of the Accused to be heard, pursuant to Article 20 of
the Statute, and that any measures awarded should be consistent with the
rights of the Accused as provided by Rule 75 (A). The Chamber
hence finds that the Accused could have suffered prejudice arising from the
fact that he was not heard.
26. The
Chamber is mindful of the fact that witness protection measures for both
Prosecution and Defence witnesses relate to the security and safety of witnesses,
and are serious matters and of special concern to the Chamber.
27. Furthermore,
protective measures, once granted, are neither definitive nor permanent,
for they may be rescinded, varied or augmented, should good cause be demonstrated,
pursuant to Rule 75(I). In ordinary circumstances, the possibility of prejudice
in this particular case would have warranted a vacation of the impugned Decision
as a remedy to the Defence. However, after careful consideration of the above
issues and the provisions of Rule 75(I), the Chamber is of the view that
this is not necessary. The Parties, if they so wish, may file an appropriate
Motion under these provisions. The Chamber therefore invites the Defence,
if it so wishes, to address any prejudice suffered by utilising Rule 75(I),
with a view to having the measures awarded in the impugned Decision either
rescinded, varied, or augmented.
28. The
Chamber wishes to underscore that parties should exercise all diligence to
ensure an effective working practice in the management of their case. Should
parties wish to rely upon supporting material that exists in the public domain
and which can also be found in the other official language of the Tribunal,
it would be good practice for the moving party to serve the material in both
languages to prevent a recurrence of this very situation. In addition, the
Chamber would like to underscore that in the interests of judicial economy,
should the Defence wish to have Annexes translated in the future, it should
act diligently and seize the Chamber with a request for translation in a
timely fashion.
FOR THE ABOVE REASONS, THE Chamber
Grants the
Motion in part and DIRECTS that:
I. The
Defence for Renzaho, should it wish to do so, file a Motion under Rule 75(I)
to rescind, vary or augment the protective measures granted in the impugned
Decision of 17 August 2005;
II. The
protective measures granted in the Decision of 17 August 2005 remain in place
until the Chamber renders a Decision following any Motion under Rule 75(I)
that may be made by the Parties; and,
Denies the
Motion in all other respects.
Arusha, 9
November 2005 |
|
| |
|
|
Arlette
Ramaroson |
William
H. Sekule |
Solomy
Balungi Bossa |
Presiding
Judge |
Judge |
Judge |
| |
[Seal
of the Tribunal] |
|
