Enforcement

Notion(s) Filing Case
Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

58. The Appeals Chamber holds the view that, normally, the International Tribunal should turn to the relevant national authorities to seek remedies or sanctions for non-compliance by an individual with a subpoena or order issued by a Judge or a Trial Chamber. Legal remedies or sanctions put in place by the national authorities themselves are more likely to work effectively and expeditiously. However, allowance should be made for cases where resort to national remedies or sanctions would not prove workable. This holds true for those cases where, from the outset, the International Tribunal decides to enter into direct contact with individuals, at the request of either the Prosecutor or the defence, on the assumption that the authorities of the State or Entity would either prevent the International Tribunal from fulfilling its mission (see above, paragraph 55) or be unable to compel a State official to comply with an order issued under Article 29 (see above, the case mentioned in paragraph 51). […]

59. The remedies available to the International Tribunal range from a general power to hold individuals in contempt of the International Tribunal (utilising the inherent contempt power […]) to the specific contempt power provided for in Rule 77. […] [I]n absentia proceedings may be exceptionally warranted in cases involving contempt of the International Tribunal, where the person charged fails to appear in court, thus obstructing the administration of justice. These cases fall within the ancillary or incidental jurisdiction of the International Tribunal.

If such in absentia proceedings were to be instituted, all the fundamental rights pertaining to a fair trial would need to be safeguarded. Among other things, although the individual’s absence would have to be regarded, under certain conditions, as a waiver of his “right to be tried in his presence”, he should be offered the choice of counsel. The Appeals Chamber holds the view that, in addition, other guarantees provided for in the context of the European Convention on Human Rights should also be respected[1].

[1]           In the Colozza case (judgement of 12 Feb. 1985), the European Court on Human Rights held that trials by default, which are not prohibited by Art. 6, para. 1, of the European Convention of Human Rights (whereby every person charged with a criminal offence is entitled to take part in the hearing) must however fulfil some basic conditions required by the notion of “right to a fair trial”. It follows, among other things, that any waiver of the right to be present “must be established in an unequivocal manner” (Publications of the European Court of Human Rights, Ser. A, vol. 89, p. 14, para. 28); serious attempts must be made to trace the indictee and notify him of the opening of criminal proceedings (ibid); in addition, once the indictee becomes aware of the criminal proceedings against him, he “should ... be able to obtain, from a court which has heard him, a fresh determination of the merits of the charge”(ibid, p. 15, para. 29).

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ICTY Rule Rule 54
Rule 77
Notion(s) Filing Case
Judgement on Request of Croatia for Review - 29.10.1997 BLAŠKIĆ Tihomir
(IT-95-14-AR108 bis)

33. […] As stated above, the International Tribunal is not vested with any enforcement or sanctionary power vis-à-vis States. It is primarily for its parent body, the Security Council, to impose sanctions, if any, against a recalcitrant State, under the conditions provided for in Chapter VII of the United Nations Charter. However, the International Tribunal is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules. It also has the power to report this judicial finding to the Security Council. […]

See also paras 34-37.

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ICTY Statute Article 29 ICTY Rule Rule 7 bis
Notion(s) Filing Case
Decision on Contempt Proceedings - 26.04.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 2-3:

CONSIDERING that, pursuant to Rule 90 of the Rules, the Mechanism in the exercise of its inherent power may hold in contempt those who knowingly and wilfully interfere with the administration of justice;

CONSIDERING, however, that in matters pertaining to State obligations, it is well-established that State officials “are mere instruments of a State and their official action can only be attributed to the State”,[1] that, subject to certain limited exceptions,[2] “[t]hey cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State”, and “cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act”;[3]

CONSIDERING that “[i]t is the State which is bound by [the obligation to cooperate with the Mechanism under Article 28 of the Statute] and it is the State for which the official or agent fulfils his function that constitutes the legitimate interlocutor of the [Mechanism] and “shall therefore incur international responsibility for any serious breach of that provision by their officials”;[4]

CONSIDERING that the Mechanism “is endowed with the inherent power to make a judicial finding concerning a State’s failure to observe the provisions of the Statute or the Rules” and “also has a power to report this judicial finding to the [United Nations] Security Council”;[5]

CONSIDERING, however, that the Mechanism “is not vested with any enforcement or sanctionary power vis-à-vis States” and that “[i]t is primarily for its parent body, the [United Nations] Security Council, to impose sanctions, if any, against a recalcitrant State”; [6]

[…]

CONSIDERING that the Mechanism has, therefore, taken appropriate measures provided for in the Statute and the Rules to address Republic of Turkey’s non-compliance with the Order of 31 January 2017 and that the procedure envisaged under Rule 90 of the Rules is not applicable in this case;

[1] Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, 29 October 1997 (“Blaškić Appeal Decision”), para. 38. See also Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (“Krstić Appeal Decision”), paras. 20.

[2] For instance, those responsible for war crimes, crimes against humanity, and genocide cannot invoke immunity from national or international jurisdiction even if they perpetrated the crimes while acting in their official capacity (see Blaškić Appeal Decision, paras. 41, 42). See also Blaškić Appeal Decision, para. 51; Krstić Appeal Decision, paras. 24-27.

[3] Blaškić Appeal Decision, para. 38. See also Blaškić Appeal Decision, paras. 42-44.

[4] Blaškić Appeal Decision, para. 44.

[5] Blaškić Appeal Decision, para. 33. See also Blaškić Appeal Decision, para. 37.

[6] Blaškić Appeal Decision, para. 33.

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MICT Statute Article 28 MICT Rule Rule 8;
Rule 90
Notion(s) Filing Case
Decision on Non-Compliance with Obligation to Cooperate - 06.03.2017 NGIRABATWARE Augustin
(MICT-12-29-R)

Pages 1-2:

CONSIDERING that, pursuant to Article 28 of the Statute, States shall comply without undue delay with orders issued by the Mechanism;

[…]

CONSIDERING that, in accordance with Rules 8(A) and 131 of the Rules of Procedure and Evidence of the Mechanism (“Rules”), non-compliance with any order relating to a proceeding before the Appeals Chamber may be reported to the United Nations Security Council;[1]

[…]

FIND that the Government of the Republic of Turkey has failed to comply with its obligations under Article 28 of the Statute to cooperate with the Mechanism in relation to the proceedings in this case and to comply without undue delay with a judicial order issued by the Mechanism; and

DETERMINE that, pursuant to Rules 8(A) and 131 of the Rules, this matter shall be reported to the United Nations Security Council.

[1] See Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-AR108 bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, paras. 33-35.

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MICT Statute Article 28 MICT Rule Rule 8