This is the fourth post in my series on the Kosovo Specialist Chambers (“KSC”), a hybrid internationalized set of chambers founded to try war crimes, crimes against humanity, and other crimes under Kosovo law committed during the aftermath of the conflict in Kosovo (1998-2000). In the first post, I provided the context and events leading up to the establishment of the KSC. In the second and third posts, I provided my observations on the Law on Specialist Chambers and Specialist Prosecutor’s Office (“KSC Statute”). In this post, and in the following posts, I focus on the Rules of Procedure and Evidence (“RPE”).
On 17 March 2017, the Judges of the KSC – except for those sitting on the Specialist Chamber of the Constitutional Court (“SCCC”) – adopted the RPE. The RPE were then forwarded to the SCCC to determine whether they complied with the Kosovo Constitution. On 26 April 2017, the SCCC found nine of the Rules to be inconsistent with the fundamental rights and freedoms guaranteed under Chapter II of the Kosovo Constitution, and was unable to make a determination in respect of one Rule. The remaining 198 Rules were found to be consistent with the Constitution. Shortly after, on 31 May 2017, a new set of revised Rules was referred to the SCCC for another constitutional determination. The revised Rules are not yet publicly available and the SCCC has yet to make a determination on their constitutionality. I will address the SCCC’s findings in turn while discussing the RPE.
In this post, I merely focus on some of the general and structural matters addressed in the RPE before getting into the specifics of the proceedings, from the investigations to the appeal, in the following posts.
The General Provisions
Interpretation of the RPE
Rule 4 sets out the general principles governing the interpretation of the RPE. Rule 4(1) provides that the RPE must be interpreted within the framework set out in Article 3 of the KSC Statute and, where appropriate, the Kosovo Criminal Procedure Code. Rule 4(2) specifies that when there is any conflict between the KSC Statute and the RPE, the Statute prevails. Rule 4(3) sets out the principle of in dubio pro reo: any ambiguity not settled by the guidelines in Rule 4(1) must be resolved in favor of the accused.
Rule 5 provides the procedure in the event there are lacunae in the law. Under Rule 5, when “a question arises which is not addressed by the Rules,” the Panel must rule in accordance with Articles 19(2) and 19(3) of the KSC Statute and Rule 4. Article 19(2) of the KSC Statute requires the RPE to “reflect the highest standards of international human rights law including the [European Convention on Human Rights] and [International Covenant on Civil and Political Rights],” while Article 19(3) requires the RPE to be consistent with the KSC Statute, in particular, the rights of the accused, victims, and witnesses.
Non-Compliance with the RPE
Rule 6 governs non-compliance with the RPE. It is a unique provision, not provided for in the RPE of other international(ized) tribunals and courts. Rule 6 requires any party alleging non-compliance with the RPE causing prejudice to be raised immediately, no later than 10 days after it becomes known. In other words, it requires due diligence; the parties cannot sit on errors of non-compliance.(( While the RPE of the other international(ized) tribunals and courts do not contain a “diligence” provision such as Rule 6 of the KSC RPE, jurisprudence from the International Criminal Tribunal for the former Yugoslavia (“ICTY”) provides that issues must be raised in court as soon as they come to light or face summary dismissal. For example, in Delalić et al., Judge Karibi-Whyte was sleeping during substantial portions of the trial proceedings. Counsel for Mr. Landžo (one of the accused) did not formally raise this issue before the Trial Chamber but argued it as a ground of appeal. She explained her failure to raise this issue during the trial proceedings by stating that she had approached “this sensitive issue in the most diplomatic way possible.” Prosecutor v. Delalić et al., IT-96-21-A, Judgment, 20 February 2001, paras. 620-23, 628, 642-47. The record had not been made when necessary, i.e. during the trial proceedings when the facts effectively occurred and the legal issue arose. The Appeals Chamber dismissed this ground of appeal, stating: “the matter must be raised with the court at the time the problem is perceived in order to enable the problem to be remedied.” Id., paras. 641, 649.)) Rule 6 also provides that the Judges can act proprio motu on any non-compliance with the RPE to take any action they deem appropriate “to ensure the integrity and fairness of the proceedings.”
Amendments to the RPE
Rule 7 provides the procedure for amending the RPE. Rule 7(1) provides for a Rules Committee composed of the KSC President and two other Judges designated by the President to examine proposals for amendments to the RPE. Under Rule 7(2), the Judges of the SCCC cannot propose amendments or participate in the amendment of the RPE. This is because the SCCC is responsible for ruling on the constitutionality of the RPE under Article 19(5) of the Statute and Rule 7(6).
Rules 7(3) and 7(4) make explicit references to the “Independent Representative Body of Specialist Counsel,” mentioned in Article 19(4) of the Statute, which, as I commented before, is a role that could and should be filled by the Association of Defence Counsel Practising before the International Courts and Tribunals (“ADC”). Under Rule 7(3), the Independent Body of Specialist Counsel need not go through the Registry in submitting proposed amendments to the RPE, thus preventing any potential filtering or mischaracterizations by the Registry in submitting proposed amendments to the Rules Committee. Rule 7(4) provides that the Rules Committee, “[u]pon consultations with the Specialist Prosecutor, the Independent Body of Specialist Counsel and the Registrar,” reports to the Judges on proposed amendments to the Rules, providing a summary of consultations and the positions of those who have consulted with the Rules Committee.
Rule 7(4) does not specifically provide how the Rules Committee must consult with the respective bodies, but it may adopt a similar practice to that of the International Criminal Tribunal for the former Yugoslavia (“ICTY”), where representatives of the Registry, the Office of the Prosecutor, and Defence Counsel (represented by the ADC) are included as non-voting members in the Rules Committee and are invited to discuss in person any proposed amendments to the RPE in addition to any written proposals.(( Practice Direction on Procedure for the Proposal, Consideration of and Publication of Amendments to the Rules of Procedure and Evidence of the Rules of the International Tribunal, IT/143/Rev.2, 24 January 2002, para. 2.))
Rules 7(6) and 7(7) are interesting in that they provide for a higher review of amendments to the RPE (ensuring that they comply with the Kosovo Constitution) and the possibility of having an authoritative commentary. These features are notably absent from the other international(ized) tribunals and courts. Rule 7(6) provides that after the adoption of any amendments, the President must refer the amended Rules to the SCCC, which will determine whether they are consistent with the Kosovo Constitution. In submitting the adopted amendments to the SCCC, the President may submit reasons for the adopted amendments. Rule 7(7) provides that the adopted amendments and reasons shall be made public by the KSC President.
Having a commentary that sets out in some fashion the legislative history and / or the spirit behind the amendment and its intended purpose is essential to interpreting the RPE. This is a positive step and one that has been missing at the other international(ized) tribunals and courts. As I have remarked in the past, I always found it baffling that the ICTY’s 2002 Practice Direction expressly prohibited the provision of any commentary or explanation to amendments.(( Id., para. 8.)) The lack of transparency was shockingly unwarranted. Position papers on proposed rule amendments and minutes of meetings should have been made available, much like the legislative process of liberal democracies is open to the public. But also, knowing the purpose and discussions behind an adopted amendment would yield valuable benefit to the parties and Judges.
The Chambers
Absence of a Judge
The SCCC found that that Rules 19(3), (5), and (6) – the procedure governing the absence of a Judge – required “particular scrutiny.”(( KSC-CC-PR-2017-01/F00004/, Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law no. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, 26 April 2017 (“Judgment on KSC RPE”), para. 35.)) It found Rule 19(3) unconstitutional(( Id., para. 40.)) while leaving in place Rules 19(5) and (6) with further recommendations as to how the KSC Panels should protect the accused’s fair trial rights when a Judge can no longer sit through the proceedings.(( Id., para. 46.))
The unrevised Rule 19(3) provided:
Where a Judge, for reasons of illness, exceptional personal circumstances or force majeure circumstances, is absent in a part-heard case for a period which is likely to be of short duration, and where the remaining Judges of the Panel are satisfied that it is in the interests of a fair and expeditious trial, having heard the Parties, they may order that the hearing continue in the absence of that Judge for a period of no more than five (5) working days.
While this Rule is similar to what is provided for in the RPE of the ICTY,(( ICTY RPE, Rule 15 bis.)) the International Criminal Tribunal for Rwanda (“ICTR”),(( ICTR RPE, Rule 15 bis.)) the Special Court for Sierra Leone (“SCSL”),(( SCSL RPE, Rule 16.)) and the Special Tribunal for Lebanon (“STL”),(( STL RPE, Rule 26.)) the SCCC held that the possibility of continuing the proceedings before two Judges had no basis in law and “would not constitute a hearing before a tribunal established by law.”(( Judgment on KSC RPE, para. 40.)) It considered that (a) Article 31(2) of the Kosovo Constitution guarantees a hearing by “a tribunal established by law;”(( Id., para. 37.)) (b) the KSC Statute requires that the Trial Panels, Court of Appeals Panels, and Supreme Court Panels be comprised of three Judges; and (c) no provision of the KSC Statute provides for hearings conducted before a Panel of two Judges.(( Id., para. 39.))
Unlike the RPE of the ICTY, the ICTR, the SCSL, and the STL, the RPE of the International Criminal Court (“ICC”)(( ICC RPE, Rule 38.)) and the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”)(( ECCC Internal Rules, Rule 79(4). )) do not allow proceedings to continue in the absence of a Judge and call for the assignment a Replacement Judge or Reserve Judge. The KSC Judges could have drawn from these Rules in crafting their revisions to Rule 19(3) of the KSC RPE, though we will not know until the revised Rules become public.
Rule 19(5) provides for the assignment of a Reserve Judge or, where appropriate, another Judge to continue hearing a case if a Judge is “unable to continue sitting for more than thirty (30) working days or permanently in a part-heard case.” The parties have an opportunity to make submissions, and the substituted Judge “shall not be reassigned to another Panel at a different phase of the same proceedings.” Rule 19(6) likewise provides that the President, after hearing from the Parties, may assign another Single Judge if a Single Judge is unable to continue sitting in the case or order a rehearing or continuation of the proceedings.
The SCCC left Rules 19(5) and (6) as is, noting that “in exceptional circumstances, a judge’s continued participation in a case may not be possible. In such an event, the interests of justice and, in particular, the accused person’s right to trial within a reasonable time, may require that the proceedings continue before a reconstituted Panel.”(( Judgment on KSC RPE, para. 45.)) The SCCC recommended that adequate safeguards be put in place, such as providing the new Judge with transcripts and audio-video recordings of the proceedings or ordering a “rehearing of relevant arguments before the newly composed Panel.”(( Id., para. 46.)) It also stated that the new Judge must have an appropriate understanding of the evidence and arguments.(( Id.))
The SCCC’s recommendations may have been inspired by the ICTY’s experience following the aftermath of Judge Harhoff’s disqualification in the Šešelj case (which I discussed in detail here). The ICTY Trial Chamber replaced Judge Harhoff with Judge Niang.(( Prosecutor v. Šešelj, IT-03-67-T, Decision on Continuation of Proceedings, 13 December 2013.)) Though Šešelj argued that a continuation of the proceedings would violate his fundamental rights,(( Id., para. 6.)) the ICTY Trial Chamber found that the assignment of Judge Niang at the deliberations stage did “not represent an obstacle to the continuation of the proceedings.”(( Id., para. 55.)) It considered that “video recordings will allow Judge Niang to study the conduct of witnesses in court and to evaluate their credibility.”(( Id., para. 53.)) Though it noted: “Judge Niang must determine whether, in view of these recordings, he is able to familiarise himself with the record in a satisfactory manner.”(( Id.)) This decision was not without criticism. One commentator, Kevin Jon Heller, remarked:
But don’t worry, Judge Niang is supposedly going to spend the next six months “assess[ing] witness testimony given in his absence through other means, including video recordings,” and will thus be able to “familiarise himself with the record of the proceedings to a satisfactory degree.” Of course he will: it’s not like the trial lasted 175 days, involved 81 witnesses, included 1,380 exhibits, and generated more than 18,000 pages of trial transcript (a mere 100 pages of transcript per day, assuming Judge Niang never takes a day off and fits his reading in around the hundreds of hours of witness testimony he will need to watch).
Perceptive observations.
Recusal or Disqualification
Rule 20 provides the procedure governing recusal or disqualification of KSC Judges. Similar to the disqualification rules applied at other international(ized) tribunals, Rule 20(1) provides that a Judge “shall not sit in any case in which he or she has a personal interest or has or has had any involvement which may affect or appear to affect his or her impartiality, judicial independence or integrity of the proceedings.” Rule 20(1) also sets out specific grounds for seeking the recusal or disqualification of a Judge:
a. personal interest in the case, including a spousal, parental or other immediate family interest, a personal, professional or subordinate relationship, with any of the Parties or Victims’ Counsel, or situations that may reasonably be perceived as giving rise to a conflict of interest;
b. involvement other than a Judge of the Specialist Chambers in any legal proceedings in which the suspect or Accused was or is a party;
c. performance of functions, prior to his or her assignment, during which the Judge could have formed an opinion on the case in question, that could adversely affect the Judge’s required impartiality; and
d. any other reason which could reasonably appear to affect the Judge’s impartiality.
As I have previously observed, the criteria applied in Furundžija has emerged as the standard for disqualification for lack of independence or impartiality in the international(ized) tribunals and courts. In Furundžija, the ICTY Appeals Chamber held that the standard for judicial disqualification under ICTY Rule 15 is “actual bias” or an “unacceptable appearance of bias.”(( Prosecutor v. Furundžija, IT-95-17/1-A, Judgement, 21 July 2000, para. 189.)) The Appeals Chamber explained that an “unacceptable appearance of bias” exists if: (a) the Judge is a party to a case and has financial or proprietary interest in the case; or (b) the circumstances would lead a reasonable observer, properly informed, to reasonable apprehend bias.(( Id.)) Under the second prong of the test, a “reasonable observer” is someone who is properly informed, “with knowledge of all the relevant circumstances, including the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties that Judges swear to uphold.”(( Id., para. 190.))
Rules 20(2) to 20(6) provide the procedure for recusal or disqualification.
Rule 20(2) makes it mandatory for a Judge to seek recusal if “the Judge has reason to believe that a ground for recusal exists against him [or her].” If the Judge has reasons to believe that such grounds exist, the Judge must “immediately file a strictly confidential application for recusal to the President and, if applicable, inform the Presiding Judge of the Panel accordingly.” If the KSC President determines that the Judge is unable to perform his or duties, the President will substitute that Judge.(( Rules on the Assignment of Specialist Chambers Judges from the Roster of International Judges, Rule 5.))
Rule 20(3) provides that any party may apply to the KSC President for the disqualification of a Judge. The party bringing the application for disqualification must do so immediately – no later than 10 days after the grounds for disqualification become known. The impugned Judge has an opportunity to recuse himself upon notification of the application. If the KSC President considers the application to be “vexatious, misconceived, frivolous or lacking in substance, he or she shall summarily dismiss it as soon as possible.” If the KSC President considers that he application may have merit, he or she will “assign a Panel of three judges to determine whether the Judge should be disqualified” (“Panel of Judges”). The impugned Judge has an opportunity to respond to the application and his or her response will be provided to the parties. The Panel of Judges may allow the parties to make observations on the impugned Judge’s response, and if so, the impugned Judge will be allowed to reply to those observations. Rule 20(3) also specifies that the Panel of Judges must make a reasoned decision as soon as possible. The decision must be “public, with redactions in exceptional circumstances” to allow for transparency.
Rule 20(4) provides that the Panel, after hearing from the Parties, decides whether the circumstances allow for the impugned Judge to continue participating in proceedings while his or her disqualification is pending. Following a decision on recusal or disqualification, the KSC assigns a replacement Judge.
Rule 20(5) provides that a decision on recusal or disqualification is not subject to higher review, while Rule 20(6) provides that if the application concerns the KSC President, the Vice-President shall assume the President’s responsibilities under Rule 20.
Counsel
Directive on Defence Counsel and Code of Professional Conduct
Similar to the RPE of the other international(ized) tribunals and courts, the KSC calls for the promulgation of a Directive on Defence Counsel and Code of Conduct. At the KSC, Rule 23(3) provides that “[u]pon approval of the President, the Registrar shall adopt a Directive on Defence Counsel and a Code of Professional Conduct and any amendments thereto.” In drafting the Directive and Code of Professional Conduct, the Registrar may, where appropriate, “consult with all Judges on the Roster, the Independent Representative Body of Specialist Counsel or other relevant outside bodies.” So far, neither has been produced, though presumably, they will be made available shortly after the SCCC approves the new RPE.
Rule 25(1) hints at what will be covered in the Directive on Counsel – “[t]he eligibility, required qualification and experience, as well as the modalities for withdrawal and removal of Counsel.” Rule 25(2), similar to Rule 21(2) of the ICC RPE,(( ICC RPE, Rule 21(2): “The Registrar shall create and maintain a list of counsel who meet the criteria set forth in rule 22 and the Regulations.”)) provides that the Registrar is responsible for maintaining a List of Specialist Counsel and List of Victims’ Counsel of those who meet the requirements set out in the Directive on Counsel from which the accused or victims may select to represent them. Rule 25(3) provides that those admitted to the List of Specialist Counsel and List of Victims’ Counsel are subject to the disciplinary procedures that will be provided for in the Code of Professional Conduct for Counsel.
Assignment and Appointment of Counsel
Under Rule 26(1), the Registrar appoints or assigns Counsel from the List of Specialist Counsel to represent suspects or accused. The suspect or accused has a right to “seek review by the competent Panel of the decision of the Registrar” concerning the appointment or assignment of Counsel. Article 26(3) is interesting, and provides that where a suspect or accused fails to select Counsel or chooses a Counsel who is not eligible to be on the List, a KSC Panel will assign Counsel.
The Ombudsperson
Role and Function of the Ombudsperson
As I’ve noted in my second post, the KSC provides for an Ombudsperson’s Office within the Registry responsible for monitoring, defending, and protecting the fundamental rights and freedoms guaranteed under the Kosovo Constitution of “persons interacting” with the KSC.(( Law on Specialist Chambers and Specialist Prosecutor’s Office, Law No.05/L-053, 3 August 2015 (“KSC Statute”), Art. 34(9). )) Rule 29 of the KSC RPE sets out the role and specific functions of the Ombudsperson. From Rule 29, it is clear that the person complaining to the Ombudsperson must first exhaust other remedies.
Rule 29(1) provides that the Ombudsperson may not intervene in the proceedings, “except in instances of unreasonable delays.” It also specifies that the Ombudsperson only has the right to appear before the SCCC, if “invited as amicus curiae.” Rule 29(2) provides that that the Ombudsperson may:
a. conduct inquiries into complaints received from any person asserting a violation of his or her rights by the Specialist Chambers or the Specialist Prosecutor’s Office. If the complaint made on behalf of someone whose rights have alleged to have been violated, their consent is needed before any inquiry is commenced[;]
b. enter and inspect at any time and without notice the Specialist Chambers’ detention facilities to assess the conditions of detention;
c. propose or facilitate mediation and reconciliation in order to resolve a complaint[; and]
d. make recommendations to the President or Specialist Prosecutor on matters falling within their functions.
Under Rule 29(3), the Ombudsperson may reject a request to him or her if:
a. it involves a case or other legal proceedings before the Specialist Chambers other than an allegation of unreasonable delay[;]
b. it does not demonstrate a violation of human rights by the Specialist Chambers[;]
c. it is incomplete or a request has not been completed following a reminder from the Ombudsperson[;] or
d. other remedies have not been exhausted, except in cases of inactivity or immediate urgency in order to avoid severe damage and irreparable prejudice.
If the Ombudsperson rejects a request, he or she must provide reasons for the rejection. After the Ombudsperson completes the inquiry, he or she will issue a final report under Rule 29(7) which is submitted to the complainant, the person or body affected, and the President.
Next Post
In the next post, I will discuss the Rules covering investigations and arrest and detention matters.
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