Detained ICC Staff Members Released

The four International Criminal Court (ICC) staff members who were detained in Libya have been released and have departed from Tripoli.  The four released staff members traveled back to The Hague in the company of ICC President Judge Sang-Hyun Song.  The Italian government provided an airplane to transport the group.

The four staff members, Melinda Taylor, Helene Assaf, Esteban Peralta Losilla, and Alexander Khodakov, were detained in Zintan from June 7 until July 2, 2012.  The ICC says that the detained staff members were treated well during their detention and are in good condition.  The ICC President thanked the Zintan authorities for their cooperation and expressed gratitude to the Libyan government for their agreement to release the Court’s staff members. 

The staff members had traveled to Zintan to meet with Saif Al-Islam Gaddafi and help preserve his rights in the ICC case against him.  However, the four were detained after staff members on the mission were accused of jeopardizing Libya’s national security.  The Libyan authorities investigated the matter and presented the results of that investigation to the ICC on June 22, 2012.  The ICC has expressed an intention to investigate the matter in accordance with ICC procedures. 

The Gaddafi case was referred to the ICC by the UN Security Council, but Mr. Gaddafi has been held in Libya since his arrest late last year.  The ICC had previously requested that the Libyan Government surrender Gaddafi, but the Libyan Government has instituted domestic proceedings against Gaddafi.  Whether Gaddafi will be tried in Libya is yet to be determined.  However, the Libyan authorities have allowed Gaddafi to meet with ICC lawyers. 

Former Republika Srpska Leader Acquitted on Genocide Charge; Trial Will Continue as to Remaining Charges

A trial chamber of the International Criminal Tribunal for the Former Yugoslavia dismissed Radovan Karadzic's oral motion for acquittal as to ten counts of the indictment but granted his motion as to the first count, which charged Karadzic with genocide for crimes committed March-December 1992 in certain municipalities in Bosnia and Herzegovina.

The ruling was delivered pursuant to Rule 98 bis, which provides:

"At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgement of acquittal on any count if there is no evidence capable of supporting a conviction."

The Prosecution charged Karadzic, former President of Republika Srpska and Supreme Commander of its forces, with genocide, crimes against humanity, and violations of the laws or customs of war committed in Bosnia and Herzegovina between 1992 and 1995. 

Count one charged Karadzic with genocide for crimes committed between March 31 and December 31, 1992, against Bosnian Muslims and Bosnian Croats in certain municipalities in Bosnia and Herzegovina.

The Chamber reviewed the evidence regarding the killing of, serious bodily harm to, forcible displacement of, and conditions of life inflicted on Bosnian Muslims and/or Bosnian Croats in the relevant municipalities and found that, the evidence, even if taken in the most favorable light, does not reach the level from which a reasonable trier of fact could infer that genocide occurred.  The definition of the term genocide, found in Article 4 of the Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (2009), requires that specified acts be committed with the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group...."  Although the Chamber had heard evidence of acts systematically committed against Bosnian Muslims and/or Bosnian Croats, the nature, scale, and context of the acts did not rise to the level from which a reasonable trier of fact could infer that they were committed with genocidal intent. 

The Chamber dismissed Karadzic's request for acquittal as to the remaining ten counts of the indictment.
 
Karadzic was first indicted on July 25, 1995.  Despite the issuance of an arrest warrant in 1995 , Karadzic was not arrested until 2008.  The trial began on October 26, 2009. 

The Defense case is scheduled to commence on October 16, 2012.

ECHR Decision Says Slovenia Did Not Do Enough to Address Situation of "Erased" People

Kurić and Others v. Slovenia (26828/06)

The applicants are members of a group called the "erased."  The names of the "erased" were removed from the Register of Permanent residents after Slovenia's declaration of independence in 1991; they were no longer legally resident in Slovenia.  The Court found that, despite efforts made since 1999, the Slovenian Government failed to provide an adequate remedy with the requisite promptness.*  The Court unanimously held that violations of Articles 8, 13, and 14 of the European Convention on Human Rights had occurred.
The eight applicants are Mustafa Kurić and Velimir Dabetić, both stateless persons; Ana Mezga, a Croatian national; Tripun Ristanović, a citizen of Bosnia and Herzegovina; Ljubenka Ristanović, Ali Berisha, and Zoran Minić, all Serbian nationals; and Ilfan Sadik Ademi, now a citizen of the "former Yugoslav Republic of Macedonia."

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Background

The Socialist Federal Republic of Yugoslavia (SFRY) was a federal state consisting of six republics: Bosnia and Herzegovina, Croatia, Serbia, Slovenia, Montenegro, and Macedonia.  Nationals were citizens of both the SFRY and one of the constituent republics.  Prior to 1947, a separate Register of Citizenship was kept at the republic level and not at the federal level.  Beginning in 1974, citizenship data for newborns was entered in the Register of Births.  Beginning in 1984, entry in the Register of Citizenship ended, and all citizenship data was entered in the Register of Births.  With respect to citizenship in the republics, a child generally acquired the citizenship of his or her parents.

SFRY citizens were allowed free movement within Yugoslavia.  They were permitted to register as permanent residents anywhere in Yugoslavia.  With permanent residence came civil, political, economic, and social rights.

During the dissolution of the SFRY, Slovenia took measures toward independence.

Prior to June 25, 1991, when Slovenia gained independence, the applicants were nationals of the SFRY and one of its republics other than Slovenia.  They were permanent residents in Slovenia.  However, on February 26, 1992, their names were erased from the Slovenia Register of Permanent Residents because they had not applied for citizenship by the legal deadline (December 25, 1991).  Of 200,000 residents in Slovenia who were citizens of other former SFRY republics, 171,132 applied for and were granted Slovenian citizenship.  Those who failed to apply for or were denied Slovenian citizenship became aliens or stateless persons illegally residing in Slovenia.

The Slovenian Government asserts that those people were informed of the change in their status.  Applicants denied receiving notice, but say they learned by chance that their status changed.  The applicants pointed out that no special procedure was provided to give notice and no official documents were issued.

The applicants contend that their "erasure" had serious and enduring consequences. In many cases, their identity papers were taken.  Some were evicted, could not work or travel, lost personal possessions, and lived in poor conditions for years.  Some were expelled from Slovenia.

Timeline

December 6, 1990   Assembly of Republic of Slovenia adopts "Statement of Good Intentions", which        guarantees opportunity to acquire Slovenian citizenship for all permanent residents who desire it.
June 25, 1991         Slovenia declares independence and passes "the independence legislation," a series of laws which include the Citizenship of the Republic of Slovenia Act ("the Citizenship Act"), the Aliens Act, the National Border Control Act, and the Passports of the Citizens of Slovenia Act.
February 26, 1992   Municipal Authorities removed those who had not applied for or obtained citizenship from the Register of Permanent Residents and, according to the Government, transferred them to the Register of Aliens Without a Residence Permit.
1999                         Constitutional Court finds provisions of the Aliens Act unconstitutional because it did not regulate the situation of the "erased."  The Act did not set conditions for those who were subject to section 81(2) to get permanent residence, and there was no legal basis for the authorities to strike those individuals from the Register of Permanent Residents and add them to the Register of Aliens.  The Constitutional Court noted that nationals of former SFRY republics were in a less favorable legal position than other aliens living in Slovenia.
July 8, 1999            Legal Status Act is passed to regulate situation of the "erased."
2003                        The Constitutional Court finds the Legal Status Act partially unconstitutional because it fails to grant the "erased" retroactive permanent residence permits, to define the meaning of "actually residing in Slovenia," and to regulate the acquisition of permanent residence by deported persons. 
July 24, 2010          The Amended Legal Status Act, adopted in response to the 2003 Constitutional Court decision, becomes effective.

Summary of Applicable Laws

Section 13 of the 1991 Constitutional Law--Citizens of other former SFRY republics who, on December 23, 1990, were registered as permanent residents and actually lived in Slovenia, held equal rights and duties to citizens, with the exception of acquisition of property, until they acquired citizenship under section 40 of the Citizenship Act or until expiry of the time limit in section 81 of the Aliens Act.

Section 40 of the Citizenship Act--former SFRY citizens who were not Slovenian Citizens could acquire citizenship if they met three requirements: 1) acquired permanent residence in Slovenia by December 23, 1990, 2) were actually residing in Slovenia, and 3) had applied for citizenship within the six months after the Citizenship Act was in force (in other words, by December 25, 1991).

Section 81(2) of the Aliens Act--Citizens of former SFRY republics who failed to apply for citizenship within the prescribed time or whose requests were denied became aliens.

ICC Promises to Investigate Detained Staff Members

The International Criminal Court has promised to investigate alleged misconduct by members of its staff following the return of the four ICC staff members now detained in Libya.  The staff members had travelled to Zintan to meet Saif Al-Islam Gaddafi with the aim of preserving his rights as a defendant before the ICC. 

Libyan authorities allege that ICC staff endangered national security.  More specifically, they state that attorney Melinda Taylor conveyed a coded message to Gaddafi from a former aide.  The staff members have been detained since June 7.  The ICC stated that it would investigate in accordance with ICC procedures and sanction anyone found responsible for misconduct.  The Court intends to seek further background information from the Libyan authorities. 

The Court expressed its regret for "any events that may have given rise to concerns on the part of the Libyan authorities" and stated that it had "no intention of doing anything that would undermine the national security of Libya."

ECJ: Workers Who Become Ill During Annual Leave May Take Leave Later

In Case C-78/11, the Court of Justice of the European Union (ECJ) has ruled that a worker who becomes unfit for work during his annual paid leave is entitled at a later point in time to a period of leave of the same duration as that of his sick leave, irrespective of the point at which the incapacity arose. 

The Working Time Directive (2003/88/EC) states, in part:

Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

Trade unions brought suits before the Spanish courts seeking recognition of the right of certain workers to paid annual leave even where the leave coincides with periods of sick leave owing to temporary incapacity for work.  Spanish law explicitly provides that workers are entitled to take annual leave at a later time if scheduled annual leave coincides with a period of temporary incapacity resulting from pregnancy, labor, or breastfeeding.

The Spanish Supreme Court stayed the proceedings before it to refer this question to the ECJ for a preliminary ruling:

Does Article 7(1) of Directive 2003/88 … preclude an interpretation of national legislation which does not permit interruption of a period of leave so that the full period – or the remaining period – can be taken at a later time if a worker is temporarily incapacitated when he is on leave?

The Court held in a previous case that a worker who was unfit for work before his or her period of annual leave begins is entitled to take that leave at another time, separate from the period of sick leave. In holding that the right applies irrespective of when the incapacity arises, the Court noted that it would be arbitrary and contrary to the purpose of the annual leave entitlement to grant the worker that right only if he is unfit for work when the annual leave period commences.

ECHR Decision: Christian Teodorescu v. Romania (No. 22883/05)

A chamber of the Third Section of the ECHR found that Article 5 § 1 (right to liberty and security) of the Convention had been violated by the involuntary psychiatric hospitalization of a secondary school teacher in Braila, Romania.

The applicant, Mr. Teodorescu, was a physics teacher and the president of the local branch of the World Union of Free Romanians.  He claimed that his father had been under surveillance by the former communist regime.  Mr. Teodorescu filed several criminal complaints, claiming that he was under surveillance and that acts of sabotage had been committed against him.  On December 8, 2004, police questioned Mr. Teodorescu about one of the criminal complaints he had filed and about his private life.  Although Mr. Teodorescu was not violent and had no history of psychiatric episodes, the police transported him to a psychiatric facility in Braila, where he was involuntarily hospitalized.  After a psychiatric examination, Mr. Teodorescu was released on December 9, 2004.  The Court found that Mr. Teodorescu was deprived of his liberty and that the deprivation could not be justified under Article 5 § 1(e).  The applicant was awarded EUR 4500 in non-pecuniary damages.

ICTR Sentences Former Military Officer

Ildéphonse Nizeyimana was sentenced to life imprisonment by the International Criminal Tribunal for Rwanda.  The tribunal found Nizeyimana guilty of war crimes.  The summary of judgment is available here.