Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Cour
Penale
.- .._..
Internationale
. ...
"-
'\
jv.m~1
~Q'Q~-.
--------------------~
International
Criminal
Court
~--------------------
~~
Original: English
No.: ICC-01/09-02/11
Date: 9 March 2015
Before:
Public
Decision on the Prosecution's
No. ICC-01/09-02l11
1114
9 March 2015
Decision to be notified,
Court, to:
31 of the Regulations
of the
Legal Representatives
Mr Fergal Gaynor
Legal Representatives
Unrepresented
of Victims
of Applicants
Unrepresented Applicants
Participation/Reparation
Victims
for
States Representatives
Government of the Republic of Kenya
Amicus Curiae
REGISTRY
Registrar
Mr Herman von Hebel
Detention Section
Others
No. ICC-01/09-02/11
2/14
9 March 2015
of the International
U/11Irt1
Articles 54(1) and 82(1)(d) of the Rome Statute ('Statute'), Rule 155 of the Rules of
Procedure and Evidence ('Rules') and Regulation 65 of the Regulations of the Court
renders the following 'Decision on the Prosecution's request for leave to appeal'.
I.
Procedural
1. On 29 November
'Prosecution
History
2013, the Office of the Prosecutor
application
On
31 March
the Government
pursuant
of Kenya'
an adjournment
('Prosecution')
pursuant
filed the
to Article
('Article
on
87(7)
Prosecution's
Chamber, inter alia, deferred its decision on the Article 87(7) Application
allow further time for the resolution of certain cooperation
the Government
to
matters between
and the
2. On 3 December
rendered
No. ICC-01/09-02/11
3114
9 March 2015
to the Request
Response
to
Request')."
6. On 22 December
Government
('Observations').9
7. On 5 January 2015, the LRV filed a response to the Observations
('Victims'
to the Observations
('Prosecution Response')."
II.
Submissions
Request
9. The Prosecution
Prosecution's application for leave to appeal the "Decision on Prosecution's application for a finding of noncompliance under Article 87(7) of the Statute", ICC-O 1/09-02111-985.
7 Order requesting observations
from the Government of Kenya on the Prosecution's Icave to appeal request.
ICC-0I/09-02/11-986.
8 Victims' response to the Prosecution's
application for leave to appeal the decision on non-compliance, ICC01/09-021 I 1-989.
9 Observations of the Government
of the Republic of Kenya pursuant to .Order requesting observations from the
Government of Kenya on the Prosecution's leave to appeal request'. ICC-0I/09-02/11-992.
On 5 January 2014.
a corrigendum was filed as ICC-O 1/09-02111-992-Corr.
10 Victims' response to the observations
of the Government of the Republic of Kenya on the Prosecution's leave
to appeal request. ICC-O 1/09-0211 1-993.
II Prosecution's
response to the "Observations of the Government of Kenya pursuant to the 'Order requesting
observations from the Government of Kenya on the Prosecution's leave to appeal request:", ICC-0I/09-02111994. A corrigendum was filed later that day as 01/09-02/11-994-Corr.
6
No. ICC-01/09-02/11
4114
9 March 2015
(i) Whether
the Chamber
had already
cooperation
findings
under
failed to comply
if the Chamber's
findings
'formal'
or
it had any
discretion not to enter the required finding under that provision and thus
refer the matter to the ASP ('First Issue'); and
(ii) Even if the Trial Chamber had discretion
findings
under Article 87(7) of the Statute and thereby refer the matter to the ASP,
whether it erred in the exercise of its discretion by taking into account or
giving weight to extraneous or irrelevant considerations,
and/or by failing
('Second
Issue')."
submits
within
the meaning
incorrect
two-stage
analysis'
in the Impugned
of Article 82(1)(d)
the Chamber
Decision
findings of non-compliance
and 'formal'
or 'judicial'
of the
'adopted
an
by drawing
findings."
The Prosecution
avers that, while the Chamber 'has some discretion as to whether or not to
enter findings of non-compliance
its functions
'considered
and powers',
Request.
Request,
14 Request,
15 Request,
13
rCC-0I/09-02111-98S,
ICC-0I/09-02111-985,
ICC-0I/09-02111-98S,
ICC-O 1/09-02111-98S.
No. ICC-01/09-02/11
are made,
they must
be
12
para. 3.
para. 4.
para. 7.
para. 10.
SII4
9 March 2015
non-compliance,
the Chamber
erroneously
avoided
a referral
in its view,
would
findings
did not constitute 'the requisite findings under Article 87(7) [of the Statute]',
the question arises as to whether the Chamber must necessarily have made a
finding
under
determination
Article
87(7) as a natural
thus 'imped[ing]
consequence
of its factual
12. The Prosecution submits that the Second Issue also arises from the Impugned
Decision and is appealable
within
the meaning
Statute." It avers that, assuming the Chamber did have the discretion to make
an 'informal'
finding of non-compliance,
argue
No. ICC-01/09-02/11
6/14
9 March 2015
argues that both Issues meet the criteria for leave to appeal
87(7) of the Statute will impact upon the current, and any future, cooperation
resolution
of
the issues is required by the Appeals Chamber to 'verify the correctness of the
legal basis' relied upon by the Chamber."
and
expeditious
conduct
of
the
proceedings'."
Prosecution
Application
affect the
Specifically,
the
concerning the latter's 'failure to comply with its statutory obligations', which
are separate to the proceedings
now
been
Impugned
cooperation
withdrawn."
Accordingly,
Decision
a significant
has
proceedings,
disincentivising
Prosecution
and
any
the Prosecution
impact
future
upon
both
cooperation
stalemate'
Prosecution on cooperation
ICC-01/09-02/11-985,
ICC-O1/09-02111-985,
ICC-O1/09-02111-985.
ICC-0I/09-02/11-985,
ICC-O1/09-02/11-985,
ICC-O1/09-02/11-985,
No. ICC-01/09-02/11
The
to
and the
of proceedings."
resolution
Request,
Request,
2' Request,
2S Request,
26 Request,
27 Request,
remedy
by
23
proceedings,
the
present
that
the
22
argues
proceedings'27
para. 22.
paras 23-28.
para. 24.
para. 26.
para. 28.
para. 29.
7/14
9 March 2015
degree of non-compliance
but also
The Prosecution
avers
or further
proceedings
against
the accused
will be
part."
test under Article 82(1)(d) of the Statute." The LRV submits that the Request
affects the personal interests of victims on the basis that, inter alia, the victims
in the case have a fundamental
17. The LRV concurs that the Impugned Decision raises issues which significantly
affect the fairness and expeditiousness
of proceedings."
submission
of its discretion=
on the Chamber's
based
findings
in relation
approach to cooperation,
to the
and that it
therefore ought to have made a finding under Article 87(7) of the Statute."
The LRV argues that, notwithstanding
the withdrawal
Mr Kenyatta, the duty remains (i) on the part of the Kenyan Government
comply with all outstanding
for assistance
'to
from the
No. ICC-01/09-02/U
8114
9 March 2015
Court':" and (ii) on the part of the Prosecution to comply with Article 54(1) of
the Statute." The LRV avers further that the Kenyan Government's
to comply with the cooperation request is independent
the accused, and that the Chamber erroneously
obligation
tethered
18. The LRV submits that the proceedings will also be materially advanced by an
Appeals
reversed,
Chamber
determination
a referral
procedure'
Decision is
in it'.38
Observations
19. The Kenyan
erroneous
Government
interpretation
argues
of the jurisdiction
is premised
on 'an
Statute and [the Rules]'." It avers that the discretion of the Chamber to make a
referral to the ASP in relation to non-compliance
independently-exercised
of a State Party is to be
by the Statute
and the
Rules', and that the Chamber is not required to 'confer with any other organ
of the Court' in ruling upon an application for a finding under Article 87(7) of
the Statute." The Kenyan Government argues further that the Prosecution has
failed to establish any particular
Chamber
Decision."
by the
was, inter
35
36
No. ICC-0l/09-02/U
9114
paras 28-36.
paras 37-40.
9 March 2015
alia, a 'finger-pointing
Government
exercise'
to try to apportion
investigations."
'irrelevant
in adjudicating
evidentiary
resources
threshold,
that the
Decision, arguing
assertion
have constituted
Decision
to
has stated
will not assist it's [sic] case in any way'." Finally, the Kenyan Government
submits that 'every litigation should come to an end' and that the Request
ought to be rejected as 'an abuse of the process of the Court'."
Observations
the Impugned
providing
appellate
'an additional
Prosecution
counter
reason warranting
intervention"."
147
Decision, thus
The
Decision runs
Observations,
Observations,
Observations.
Observations,
No. ICC-OI/09-02/11
10/14
9 March 2015
context of making a finding under Article 87(7) of the Statute, that such a
finding
'only
additional
requires
an objective
factors considered
failure
to comply'
by the Chamber
rather
than
the
or
22. The LRV also argues that the Request should be upheld, on the basis that the
Kenyan Government's
Observations:
(ii) contain
arguments
relating
to the Chamber's
on the merits of
relating
cooperation
judicial
to the
request,
ongoing obligation
cooperation request."
III.
Applicable
Law
11.
conduct of proceedings; or
48
49
50
51
52
Prosecution Response,
Victims' Response to
Victims' Response to
Victims' Response to
Victims' Response to
01/09-021l1-994-Corr,
para. 10. See also para. 3.
the Observations. ICC-OI/09-02/11-993, paras 4-5.
the Observations. ICC-O 1/09-021 11-993, paras 6-S.
the Observations, ICC-O 1/09-02/11-993, paras 9-10.
the Observations. ICC-O 1/09-02/11-993, paras II-IS.
No. ICC-01/09-02/11
11114
9 March 2015
24.
The Chamber
Appeals
recalls
Chamber
requiring
or conflicting
opinion'."
The
of appeal
arise
within
from
the meaning
Decision,
the Chamber
a finding
of non-compliance
comply
attention
from exercising
of the Appeals
the Impugned
of Article
under
its functions
or not a chamber
no
A right
decision
Chamber'."
Decision
and
The Chamber
constitute
the Statute'."
discretion
over whether
or not to make
and to refer the
The Issues
and,
may be properly
will therefore
appealable
In the Impugned
has such
discretion.
by the Prosecution
under
the Court
raise questions
considered
turn to consideration
of
of that
in exercise
of the
of the remaining
As a preliminary
for the purposes
as comprising
that
the impugned
for cooperation
discretion,
Kenyan
opinion,
with a request
criteria under
notes
whether
or topic
further
in the Request
matter
Chamber
subject
Analysis
The Chamber
issues
is conferred
as 'an identifiable
right of appeal
IV.
26.
an 'issue'
automatic
'must
25.
has defined
a decision
disagreement
matter,
the Chamber
Government
the current
regarding
litigation
the
latter's
between
the Prosecution
non-compliance
with
construed
and
the
statutory
No. ICC-01/09-02/11
12/14
9 March 2015
obligations.
In interpreting
extends
to
analysing
Chamber
noted
proceedings
crime'."
the
but extend
charges
conduct
extends
investigations
to pre-trial
Mr
in the present
proceedings
considers
Further,
have
been
withdrawn.P
to any judicial
proceedings
the Chamber
in
the Appeals
that, notwithstanding
prong
finding
thereto'."
to trial
of the proceedings'
of
'fair
and
of
is persuaded
subsequent
in hand
Kenyatta
in the Republic
On this basis,
and
principles
the Chamber
against
the Request,
prior
Chamber
to the proceedings
that '[t]he
Therefore,
expeditious
27.
proceedings
is not 'confined
the Appeals
conduct
of the proceedings.
would
significantly
Particularly
in light
that the
circumstances.s?
the Chamber
ongoing investigations.
of its statutory
obligation
of
Nor
to comply
investigations
would
56
57
58 Notice of withdrawal
of the charges against Uhuru Muigai Kcnyaua, 5 December 2014. ICC-O 1/09-02111983.
59 See Decision Pursuant to Article 15 of' the Rome Statute on the Authorization
of an Investigation into the
Situation in the Republic of Kenya, 31 March 20 I0, ICC-O 1/09-19. See also Situation in the Democratic
Republic of' Congo, Judgment on victim participation in the investigation stage of proceedings in the appeal of
the OPCD against the decision of Pre-Trial Chamber I of 7 December 2007 and in the appeals of the OPCD and
the Prosecutor against the decision of Pre-Trial Chamber I of 24 December 2007, ICC-O 1/04-556, para. 45
(interpreting' proceedings' as judicial proceedings, albeit in the context of Article 68(3) of the Statute).
60 Decision on Prosecution's
application for a further adjournment. 3 December 2014, ICC-O 1/09-02/11-981,
para. 56.
No. ICC-01/09-02/11
13/14
9 March 2015
referral of the matter to the ASP. The Chamber notes that Article 87(7) of the
Statute
provides
cooperation,
a specific
mechanism
for referral
of instances
of nonefforts to
promote cooperation with the Court." The Chamber recalls its finding that the
Kenyan Government's
cooperation
under
particular,
required
the capacity
of the Prosecution
.62
to secure
of good faith
In this context, in
future
or ongoing
indicated
is also satisfied
that an
61
62
No. ICC-01/09-02/11
14/14
9 March 2015