Domestic jurisdiction

Notion(s) Filing Case
Order to Government for Release of Judge - 31.01.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

16.     I recall that, while the Mechanism will not lightly intervene in a domestic jurisdiction,[1] there is clear authority to order a state to terminate proceedings against individuals on the basis of the immunity they enjoyed as a result of their connection with the Mechanism.[2] Such orders have been implemented.[3] In the present circumstances, an order to Turkey to immediately cease prosecution and to release Judge Akay so that he can continue to exercise his judicial functions in this case is entirely appropriate and necessary to ensure that the review proceedings can conclude. Such an order is binding on Turkey pursuant to Resolution 1966 adopted by the United Nations Security Council under Chapter VII of the United Nations Charter on 22 December 2010. Article 9 of Security Council Resolution 1966 requires that all States comply with orders issued by the Mechanism.

[1] Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Injunctions Against the Government of Rwanda Regarding the Arrest and Investigation of Lead Counsel Peter Erlinder, 6 October 2010 (“Bagosora et al. Decision of 6 October 2010”), para. 18.

[2] See Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Order Directed to the Republic of Croatia, 18 February 2011, p. 2; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR73.5, Decision on Gotovina Defence Appeal Against 12 March 2010 Decision on Requests for Permanent Restraining Orders Directed to the Republic of Croatia, 14 February 2011, paras. 36, 45, 67, 71; Théoneste Bagosora et al. v. The Prosecutor, Case No. ICTR-98-41-A, Decision on Aloys Ntabakuze’s Motion for Stay of Proceedings, 27 January 2011 (“Bagosora et al. Decision of 27 January 2011”), para. 10; Bagosora et al Decision of 6 October 2010, paras. 20-31.

[3] See, e.g., Prosecutor v. Ante Gotovina et al.,Case No. IT-06-90-A, Communication dated 12 October 2011 from the Ministry of Justice of the Republic of Croatia (Proceedings Pursuant to the Order of the ICTY Trial Chamber Dated 18 February 2011), 14 October 2011 (confidential), Registry Pagination. 3043; Bagosora et al Decision of 27 January 2011, para. 10.

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MICT Statute Article 28
Notion(s) Filing Case
Decision on Revocation of Referral - 04.10.2016 UWINKINDI Jean
(MICT-12-25-AR14.1)

71.     […] The Appeals Chamber reiterates that as “professional judges, members of the Rwandan judiciary benefit from a presumption of independence and impartiality”.[1] Thus, their personal impartiality must be presumed until there is proof to the contrary.[2] This presumption cannot be easily rebutted and it is for the party alleging bias to rebut it on the basis of adequate and reliable evidence.[3] In this respect, there is a high threshold to reach and the reasonable apprehension of bias must be firmly established.[4] […]

[1] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, para. 24.

[2] See, e.g., The Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36A-A, Judgement, 28 September 2011, para. 115; Tharcisse Renzaho v. The Prosecutor, Case No. ICTR-97-31-A, Judgement, 1 April 2011, para. 43. See also Kyprianou v. Cyprus [2005] ECHR 873, para. 119.

[3] See The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Judgement, 14 December 2015, paras. 95, 405 and references cited therein; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement, 9 July 2004 (“Niyitegeka Appeal Judgement”), para. 45.

[4] Niyitegeka Appeal Judgement, para. 45 and references cited therein.

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