Rule25] Oneissi Defence Request for Leave to Reply to Rule 25(C) Views of Judges David Re, Janet Nosworthy and Micheline Braidy

Transcript

1 l'arncipatmg VIctims: Peter Mattar Mr Mohammad F. Mr Haynes, for Mr Hussein Hassan Oneissi: Counsel Ms Nada Abdelsater-Abusamra Mr Mr Vincent Courcelle-Labrousse, & Yasser Ms Natalie von Wistinghausen & Hassan Counsel for Mr Assad Hassan Sa Mr David Young, Mr Geoffrey Rob Ms Sarah Bafadhel

2 R309263 STL-ll-Ol/T/OTH/R25 F3643/20180501/R309262-R309268/EN/af I. Introduction The Defence Hussein Hassan Oneissi (the "Defence") hereby seeks leave to reply 1. for Views to the Re, Janet Nasworthy and Micheline Braidy, filed Judges to of David pursuant 1 (the "Views"). 25(C) Rule respectfully submitted that it is in the interests of justice to It is Defence the address a number of factual inaccuracies and omissions of significance allow to the in Views. contained in the interests of a 2. efficient and expeditious resolution of these Further, fair, the Defence hereby respectfully submits its Reply to proceedings, Views. the II. Submissions Application for to Reply A. Leave of that which concern the question proceedings, the impartiality of Given these 3. Re, Presiding Nasworthy, and Judge Braidy, go to the heart of Mr Oneissi's Judge Judge fair trial rights, the Defence respectfully fundamental that it should be granted leave submits to to the Views. reply The the contain several inaccuracies and omissions, which are addressed in 4. Views below. The Defence submits that it is Reply, paramount of that the Panel be fully importance apprised of the relevant facts, in their entirety and in their proper context. 5. While 25(C) does not expressly envisage a right of reply to the Views, it is Rule of that in the interests of justice, and in line with the principles is natural justice, submitted it the Defence to be granted leave to reply. for To this end, the Defence notes the following 6. made by a Panel designated comments pursuant a previous STL Rule 25(C) application: "In principle, after having been properly to seised the in order to rule, a judge examines of arguments contained therein, in a a request, response and in any reply, when such is authorised in accordance with Rule 8 of the Rules 2 [emphasis added]". examples support the Panel cited several this, of disqualification In of 1 Prosecutor STL, et al., STL-ll-Ol/T/OTH/R25, F3641, Views of Judges David Re, Janet Nasworthy v Ayyash 26 Disqualification, for to a Rule 25 Panel Concerning the Oneissi Defence Application Braidy and Micheline April20 18 ("Views"). 2 In the Case Against Akhbar Beirut S.A.L. Ibrahim Mouhamed Ali AI Amin, STL-14-06/PT/OTH/R25, STL, of Judge Lettieri, 5 September 2014, para. 16. F0062, Decision on the Motion for Disqualification Case No. STL-ll-Ol/T/OTH/R25 2 of7 1 May 2018

3 R309264 STL-ll-Ol/T/OTH/R25 F3643/20180501/R309262-R309268/EN/af proceedings ad hoc tribunals, where applicants' Replies were accepted and before the 3 considered. 8 of the Rules specifically concerns motions filed by a "Party", it is While Rule 7. moving spirit this Rule - which envisages the of party being granted right the submitted that or as it were, the of word on the matter- should be followed here. reply, last The further respectfully requests, in the interests of justice and the 8. Defence resolution expeditious proceedings, that the Panel accept these Defence Reply. In the of the case before the ICTY, the Acting Mladic stating that he "consider[ ed] that [he] President, would from submissions in reply on the issue to adjudicate" Mladic's Rule benefit (i.e. the 15 to 25 granted his Motion for leave application, reply, and accepted ICTY's counterpart) Rule 4 his attached reply, annex to the Motion, as validly filed. an as The Defence Reply B. At the outset, 9. Defence does not accept the suggestion that its Rule 25(C) the contains and inaccuracies and misrepresentations", Application is confident that the "factual 5 will that this allegation appreciate Panel simply not out by the facts. is borne 10. Conversely, the Views contain several significant factual inaccuracies and omissions in relation the Trial Chamber's conduct leading up to the Scheduling Order to 11 April of "Scheduling issued prior to the start 2018 Order"), (the Defence case, in which of the it 6 final trial briefs of 4 June 2018. filing ordered the by Firstly, in the Views, it is suggested that 11. Defence was "partly incorrect" to submit the that Scheduling Order was issued before allowing the Defence Teams and the Legal the Representative of (the "LRV") to respond to Victims Prosecution's submissions the 7 concerning the filing final trial briefs, the and that of Trial Chamber was "fully informed 8 by the views of all affected of it". at This suggestion is when scheduling order it issued the 3 Ibid., 31. footnote 4 Decision v. Ratko Mladic, ICTY, IT-09-92-AR73.7, Prosecutor on Ratko Mladic's Motion T-09-92-AR73.6, for Disqualification of Judge Theodor Meron, 26 October 2016, footnote 30. 5 Views, 7. para. 6 Order v Ayyash eta!., STL-11-01/T/TC, STL, Scheduling Prosecutor for Final Trial Briefs and Closing F3623, Arguments Under Rule 147, 11 April2018, para. 8. 7 paras 55-56. Views, 8 Ibid. Case No. STL-11-01/T/OTH/R25 3 of7 1 May 2018

4 R309265 STL-ll-Ol/T/OTH/R25 F3643/20180501/R309262-R309268/EN/af 9 the Defence's Rule 25(C) Application not and a joint Defence Team Request only odds with 10 for Reconsideration the but also with the LRV's of on the Order, Observations Scheduling 11 matter. Presiding Pre-Defence Conference of 22 March 2018, during Judge Furthermore, 12. the "[ ... ] in terms stated: Re reality of the timetable for of the timetable for final trial the setting which won't set today, briefs, we and but reflect upon that will receive the course, of we and any responses [ ... ] from the Defence about simultaneous versus Prosecution submissions 12 [emphasis consecutive added]." those the the Trial Chamber issued to Contrary comments, prior to receiving any such responses. Scheduling Order Further, in the Views, it is repeatedly suggested that the Trial Chamber had "agreed to 13. 13 rescheduling the Sporer's testimony week of 16 April". the Yet this Professor to of relevant facts. The Defence filed its Witness Schedule suggestion after consulting omits only repeated - of the Prosecution, and after Defence attempts by the the agreement and obtaining email and phone - to contact the Trial Chamber and confirm the scheduling via Professor of 14 the attempts went unanswered. It was only after These Witness testimony. Sporer's filed, scheduling Schedule Sporer's testimony for was Professor April, that the Defence 16 informed - was the Court Management Services Section, rather than the Trial Chamber - by 15 a hearing would take place on 17 April. that 14. It also suggested in the Views that the Trial Chamber was "await[ing] information is 16 not General Jamil El Sayed; of that the Defence has the availability Defence" the from on to back" Trial Chamber with a "reasonable approach" the the scheduling of his "come to 17 testimony; that the Defence has not "formally informed" the Trial and of the Chamber 9 Rule Prosecutor al., STL-11-01/T/PRES, F3628, Oneissi Defence et 25 Motion for the STL, v Ayyash and Withdrawal of Presiding Judge Disqualification Re, Judge Janet Nasworthy, and Judge Micheline David Braidy, April 2018 ("Rule 12 Application"), para. 23. 25(C) 10 STL, Prosecutor v Ayyash et a!., STL-ll-0 1/T/TC, F3627, Joint Defence Request for Reconsideration of the under Order Trial Briefs and Closing Arguments Final Rule 147, 12 April2018, paras 9-13. for Scheduling 11 STL, v Ayyash et al., STL-ll-01/T/TC, F3626, Observations of the Legal Representatives of Prosecutor Filed to Prosecution Victims for All Final Briefs to be the No Earlier Than 27 July 2018, ll April Submission 2018, para. 12. 12 20180322_STL-11-01_T_T425_0FF 59:11-16. _PUB_EN, 13 Relevant 50, 62, Views, of paras Matters", at lO April2018. "Chronology 14 Annex A, Email to Trial Chamber Legal Officer, 26 March 2018. 15 B, Email from CMSS, 11 April2018. Annex 16 Views, para. 62. 17 para. 72. Ibid, Case No. STL-ll-Ol/T/OTH/R25 4 of7 l May 2018

5 R309266 STL-ll-Ol/T/OTH/R25 F3643/20180501/R309262-R309268/EN/af 18 results with General El Sayed. of The Trial Chamber suggests that it is in this contacts its i.e. context supposed failure to inform the Trial Chamber in relation to the Defence's - 19 was the Scheduling Order that made. availability- Sayed's General El this is factually inaccurate. At the Pre-Defence Conference, Presiding 15. Re Again, Judge in to scheduling stated, relation "[would] Defence the Trial Chamber that be in the case, of the parties contact and if necessary in a case management meeting to firm this with informally or otherwise before we issue a formal up and we will hear back from [the Defence] as order, 20 possible about Mr. El Sayed." soon The Views unfortunately omit to make clear that as El thereafter, duly informed the Trial Chamber, via email, that General Defence shortly the 21 would be unable to testify in Sayed Again, the Defence Apri1. no response to this received nor further any email; case management meeting held. Instead, the Trial Chamber issued was before Scheduling setting a deadline the final briefs that fell three weeks Order, General El for Sayed's projected availability to testify for the Defence. 16. The Trial Chamber describes the above conduct as a "simply routine" exercise of 22 "diligent management". judicial This description is simply not borne out by the facts. case It is submitted in the Views that the Defence's submission -that the scheduling 17. also order of in setting a timeline for the filing is final trial briefs before the "most exceptional" 23 incorrect". "simply - Defence begun had Case was is submitted that the It further 24 was "routine" and "not inconsistent with current international practice". Scheduling Order two That Judges Views' cite no more than the cases- the ICC case of Ntaganda and 18. Ongwen - in support of this submission is notable to say the least. In any event, the relevant circumstances of two cases are significantly and obviously distinguishable from the these at hand. situation In those cases, the respective Trial 19. issued timetables for the submission of Chambers Defence final trial briefs for twelve weeks and six weeks, respectively, after the close of the 18 Ibid, 73. para. 19 Ibid, 70-74. paras 20 STL-ll-01_T_T425_0FF_PUB_EN, 20180322 59:3-6. 21 Annex A. 22 Views, para. 100. 23 para. 80. Ibid, 24 Ibid, para. 65. Case No. STL-11-01/T/OTH/R25 5 of7 1 May 2018

6 R309267 STL-ll-Ol/T/OTH/R25 F3643/20180501/R309262-R309268/EN/af 25 obvious difference here is that those timetables effectively set indeterminate evidence. The will deadlines crystalised at the close only that be issuance these The of of evidence. timetables that of the STL is Chamber's Scheduling Order, issued prior incomparable to Trial start the to Defence case, which set a strict of for the submission of final trial briefs - the date 2018 would fall weeks before a Defence witness's projected availability to 4 June - that The conduct testify. could Ntaganda Ongwen Trial of and indeed be considered the Chambers "reveal[ing] careful judicial as directed at ensuring a fair, expeditious and public management 26 trial". for Mr this is far more than can be said for the conduct of the Unfortunately Oneissi, Chamber. Trial S TL Trial Chamber also downplays the significance 20. The de facto email dismissal of the of Defence's Reclassification Request, describing it as a "routine the in relation communication" 27 redaction the to the lines document". "two-and-a-half Yet, as the Trial Chamber is from of 28 9 Sporer's lines fully the very essence of Professor those testimon/ aware, and a concern decision on this issue is linked to the question of whether the most significant part of 30 Professor will be held in public session, Sporer's in full respect of Mr Oneissi's testimony to a public right hearing. making of the the Defence is misquoted and Furthermore, in the Views, 21. accused assertion "that the Trial Chamber "incorrect" cognisant that the Oneissi Defence intends to is the underlying into evidence of seek material which Professor Sporer relied on in admission 1 155"? report Rule his under fact, the Defence stated that the Chamber was In cognisant "fully the Defence that seek may admission of [the] underlying material the [emphasis added]" - as evidenced in the cited transcript and Response to Rule 161 (B) 32 Notice. noteworthy that during the Pre-Defence Conference of 22 March is the 2018, It of "the intention of the Oneissi Defence [ ... ] stated, in the Presiding Judge expressly context 25 paras 65-66, footnote 43. Ibid, 26 Ibid, para. 32. 27 Ibid, para. 30. 28 Ibid, 93. para. 29 25(C) Application, A, para. 13. Annex 30 Of course, in full respect of existing and undisputed protective measures. 31 para. 63. Views, 32 25(C) Application, para. 26, footnote 22. Case No. STL-11-01/T/OTH/R25 of7 1 May 2018 6

7 33 _OFF _PUB _EN, 15:3-8. 20180322_STL-11-01_T_T425 Case No. STL-11-01/T/OTH/R25 of7 1 May 2018 7

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