PROSECUTOR v SAM HINGA NORMAN & ORS - DECISION ON URGENT MOTION FOR RECONSIDERATION OF THE ORDERS FOR COMPLIANCE WITH THE ORDER CONCERNING THE PREPARATION AND PRESENTATION OF THE DEFENCE CASE (SCSL-04-14-T ) [2005] SCSL 180 (07 December 2005);
SPECIAL COURT FOR SIERRA LEONE
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TRIAL CHAMBER I
Before:
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Hon. Justice Pierre Boutet, Presiding Judge
Hon. Justice Bankole Thompson Hon. Justice Benjamin Mutanga Itoe |
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Interim Registrar:
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Mr. Lovemore Munlo SC
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Date:
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7th of December, 2005
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PROSECUTOR
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Against
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SAM HINGA NORMAN
MOININA FOFANA ALLIEU KONDEWA (Case No.SCSL-04-14-T) |
DECISION ON URGENT MOTION FOR RECONSIDERATION OF THE ORDERS FOR COMPLIANCE WITH THE ORDER CONCERNING THE PREPARATION AND PRESENTATION OF THE DEFENCE CASE
Office of the Prosecutor:
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Court Appointed Counsel for Sam Hinga
Norman:
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Luc Côté
James Johnson Kevin Tavener |
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Dr. Bu-Buakei Jabbi
John Wesley Hall, Jr. Clare da Silva (Legal Assistant) Court Appointed Counsel for Moinina
Fofana:
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Victor Koppe
Arrow Bockarie Michiel Pestman Andrew Ianuzzi (Legal Assistant) |
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Court Appointed Counsel for Allieu
Kondewa:
Charles Margai Yada Williams Ansu Lansana Martin Michael (Legal Assistant) |
TRIAL CHAMBER I (“The Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Hon. Justice Pierre Boutet, Presiding Judge, Hon. Justice Bankole Thompson and Hon. Justice Benjamin Mutanga Itoe;
BEING SEIZED OF the “Urgent Fofana Motion for Reconsideration of the 25 November 2005 Oral Ruling and the 28 November 2005 Consequential Order of Trial Chamber I”, filed by Counsel for the Second Accused, Moinina Fofana, on the 1st of December, 2005 (“Motion”);
NOTING the “Order on Urgent Motion for Reconsideration or, in the Alternative, for Leave to Appeal the Orders for Compliance with the Order Concerning the Preparation and Presentation of the Defence Case” of the 29th of November, 2005 and the “Order for Expedited Filing” of the 1st of December, 2005;
NOTING the Response to the Motion filed by the Office of the Prosecutor (“Prosecution”) on the 2nd of December, 2005 (“Response”);
MINDFUL of the “Order Concerning the Preparation and Presentation of the Defence Case” filed on the 21st of October 2005 (“Order of the 21st of October, 2005”);
NOTING that a Status Conference was held pursuant to this Order on the 27th of October, 2005 for the purpose of considering the preparation and presentation of the Defence case;
NOTING the “Joint Defence Materials Filed Pursuant to 21 October 2005 Order of Trial Chamber I and Request for Partial Modification Thereof” filed jointly by the Defence for all the Accused in this case on the 17th of November 2005 (“Joint Defence Materials”);
NOTING the “Scheduling Order for Status Conference” filed on the 18th of November 2005 and the Order Re-Scheduling a Status Conference and Order for Submissions by the Prosecution” filed on the 21st of November, 2005;
NOTING the Prosecution Response to the Joint Defence Materials, filed on the 23rd of November, 2005;
NOTING that a further Status Conference has been held on the 25th of November, 2005 for the purpose of considering the preparation and presentation of the Defence case and, in particular, for considering the Defence compliance with the Order of the 21st of November, 2005;
HAVING HEARD the Parties during the said Status Conference on the 25th of November, 2005;
MINDFUL of the “Consequential Order for Compliance with the Order Concerning the Preparation and Presentation of the Defence Case” of the 28th of November, 2005 (“Order for Compliance”);
MINDFUL of the various materials filed by the Defence pursuant to the Order for Compliance on the 5th of December, 2005;[1]
CONSIDERING that Article 17(4)(c) of the Statute of the Special Court provides that the Accused shall be entitled “to be tried without undue delay”;
PURSUANT TO Rule 7, 26bis, 54, 65bis, 69, 73, 73ter, of the Rules of Procedure and Evidence of the Special Court (“Rules”);
HEREBY ISSUES THE FOLLOWING DECISION:
I. BACKGROUND
- The
Trial Chamber ordered by its Order of the 21st of
October, 2005, that the Defence Teams for Norman, Fofana and Kondewa, to file
the following materials, no later than the 17th of
November, 2005:
a) A list of witnesses that each Defence Team intends to call, including:
i) the name of each witness;
ii) a summary of their respective testimony;
iii) the points of the Indictment to which each witness will testify;
iv) the estimated length of time for each witness to testify;
v) an indication of whether the witness will testify in person or pursuant to Rule 92bis.
b) A list of expert witnesses with an indication of when their report will be ready and made available to the Prosecution.
c) A list of exhibits the Defence intends to offer in its case, containing a brief description of their respective nature and contents, and stating where possible whether or not the Prosecution has any objection as to their authenticity.
d) A chart which indicates, for each paragraph in the Indictment, the testimonial evidence and documentary evidence upon which the Defence will rely to defend the Accused against the allegations contained therein.
- On
the 27th of October, 2005, a Status Conference was held
for the purposes of considering the preparation and presentation of the Defence
Case.
In particular, during the said Status Conference, the nature and purpose
of the materials indicated above were discussed by the Chamber
and the Parties
were invited to make
comments.[2]
- On
the 17th of November, 2005, the Trial Chamber received
the Joint Defence Materials. However, the Defence requested the Trial Chamber to
reconsider
its Order of the
21st of October, 2005 and to
adopt certain modifications thereof, as proposed by the Defence. The Defence
also assured the Chamber that
“it intends to fully comply with the Rules
of this Court and, barring any unforeseen eventualities, will be ready to
commence
its case promptly on the 17th January
2005”.[3]
- The
Prosecution filed its submissions on the Joint Defence Materials on the
23rd of November, 2005 following an Order of the
Chamber on the 21st of November, 2005 issued pursuant
to Rule 7(C) and 54 of the Rules. The Prosecution requested that the Defence
objections to the
Order of the 21st of October, 2005 be
dismissed and that the Chamber orders the Defence to comply fully with the said
Order so as to avoid further
delay to the proceedings.
- On
the 25th of November, 2005, another Status Conference
was held for the purposes of further considering the preparation and
presentation of
the Defence Case and, in particular, the Defence compliance with
the Order of the 21st of October, 2005. The Joint
Defence Materials and the Prosecution Response thereto were discussed by the
Chamber and the Parties
were invited to make comments. During the said Status
Conference, the Chamber dismissed with an oral Ruling, a request by the Defence
for the Second Accused that the Joint Defence Materials be deemed a motion and,
consequently, that the Defence be given the opportunity
to file a written reply
to the Prosecution submissions, on the basis that the Joint Defence Materials
are in contravention of the
Order of the 21st of
October, 2005 and that there is no legal or statutory basis for such a request
(“Oral
Ruling”).[4]
- Subsequently,
on the 28th of November, 2005, the Chamber issued its
Order for Compliance, noting that the Defence had failed to comply with its
Order of the
21st of October, 2005 and ordered,
inter alia, that each of the Defence Teams for Norman, Fofana and Kondewa
individually files the following materials, no later than the
5th of December, 2005, at 04:00pm:
a) A list of witnesses that each Defence Team intends to call, including:
i) The names or, subject to any protective measures that might have been ordered by the Chamber, the pseudonym of each witness;
ii) A summary of the respective testimony of all witnesses that should be sufficiently descriptive to allow the Chamber to appreciate and understand the nature of the proposed testimony;
iii) The points of the Indictment to which each witness will testify, including the exact paragraph and the specific counts;
iv) The estimated length of time for each witness to testify;
v) An indication of whether the witness will testify in person or pursuant to Rule 92bis of the Rules;
vi) The language in which each witness intends to testify;
Should the Defence seek to add any witnesses to this list after the 5th of December, 2005 it may be permitted to do so only upon good cause being shown;
b) A list of expert witnesses, whose names must appear on the list of witnesses referred to above, with a brief description of the nature of their evidence and a preliminary indication of when their reports will be ready and its availability to the Prosecution.
c) A list of exhibits the Defence intends to offer in its case, containing a brief description of their respective nature and contents, and stating where possible whether or not the Prosecution has any objection as to their authenticity. Should the Defence seek to add any exhibit to this list after the 5th of December, 2005 it may be permitted to do so only upon good cause being shown;
d) A chart which indicates, for each paragraph in the Indictment, the testimonial evidence and documentary evidence upon which the Defence will rely to defend the Accused against the allegations contained therein.
e) An indication of whether each of the Accused intends to testify in his own Defence and this, pursuant to Rule 85(C) of the Rules;
II. PARTIES SUBMISSIONS
- Reiterating
the submissions contained in the Joint Defence Materials, the Defence submit
that paragraphs (a)(i) and (d) of the Order
for Compliance respectively violate
the principle of equality of arms and offend the presumption of innocence
enjoyed by the Accused
and accordingly request the Trial Chamber to reconsider
its Orders.[5] In
particular, the Defence submits that it complied with the Order of the
21st of October, 2005, in that the filing within the
prescribed time limits of reasoned objections in the form of the submissions
contained
in the Joint Defence Materials is a form of compliance with such Order
and that the Trial Chamber possesses the inherent discretionary
power to
reconsider its own
decisions.[6] The
Defence also request the Chamber to stay the filings of the materials indicated
in paragraphs (a)(i) and (d) of the Consequential
Order it objected to.
- The
Prosecution submit that the Defence Motion should be dismissed. In particular,
the Prosecution submit that, according to the jurisprudence
of the ICTY and the
ICTR, a Chamber inherent power to reconsider its own previous decisions should
be appropriately exercised only
in exceptional
circumstances[7], that
the Defence did not contest the provisions of the Order of the
21st of October 2005 during the Status Conferences held
on the 27th of October and the
25th of November, 2005 and that, therefore, the Defence
has not submitted any convincing arguments as to why the Chamber should
reconsider
its validly issued Order of the 21st of
October, its Oral Ruling and its Order for
Compliance.[8]
III. APPLICABLE LAW
- This
Motion confronts us with the task of articulating the nature of the exceptional
jurisdiction of this Court to reconsider its
previous decisions and the extent
or scope of such a jurisdiction. In effect, the Chamber is called upon to
delineate the boundary
line between its statutory and inherent jurisdiction by
way of authority to review a previous decision.
Applicable Standards for Reconsideration
- In
the Chamber opinion, under the adversarial scheme for international criminal
adjudication set up by the Special Court system, there
is no express statutory
authority conferred upon a Trial Chamber of the Special Court to reconsider a
previous interlocutory decision
once it is functus
officio.[9] However,
the fact that the Rules are silent as to whether a Chamber can reconsider its
decisions is not necessarily inconsistent
with a judicial body’s inherent
jurisdiction to exercise this power in exceptional
circumstances.[10]
- In
the absence of an express statutory provision vesting the Trial Chamber with
powers to reconsider its previous decision, the instant
issue is whether the
Chamber can exercise such a power by virtue of its inherent jurisdiction.
Indeed, the Appeals Chamber has previously
held that a Chamber has an inherent
jurisdiction to reconsider its own decisions in the event of a clear error of
reasoning and to
avoid injustice or a miscarriage of
justice.[11]
- This
Chamber consequently holds that, as a matter of law, it can exercise its power
to reconsider a previous decision under its inherent
jurisdiction. Whether or
not a Chamber does reconsider its own previous decisions is in itself a
discretionary
decision.[12] However,
in the Chamber’s opinion, the critical question for preliminary
determination is in what circumstances is such a power
exercisable?
- Established
jurisprudence of the ICTY and the ICTR confirms that a Chamber has an inherent
power to reconsider its own decisions only
in exceptional
circumstances.[13] In
this regard, the Chamber finds persuasive and accordingly adopts, the view taken
by Trial Chamber III of the ICTR in its Decision On Prosecution Motion For
Variation, Or, In Alternative Reconsideration Of The Decision On Protective
Measures For Defence
Witnesses.[14] On
this issue, the Chamber stated:
“following the jurisprudence of the Tribunal, a Trial Chamber has an instant power to reconsider its own decision where (i) a clear error of reasoning in the previous decision has been demonstrated and (ii) the decision sought to be reconsidered has led to an injustice.” [15]
- We
also adopt, for persuasive reasons, the reasoning of Trial Chamber II of the
aforementioned ICTR in its Decision on Renzaho’s Motion To Reconsider
The Decision On Protective Measures For Victims And Witnesses To Crimes Alleged
In
The
Indictment[16]
where, alluding to the circumstances, the Chamber observed that such
circumstances include but are not limited to the following:
“(i) where the impugned decision was erroneous in law or an abuse of discretion when decided and for this reason a procedural irregularity has caused a failure of natural justice; or,
(ii) where the new material circumstances have arisen since the decision was issued.”[17]
IV. DELIBERATIONS
Introduction
- The
Defence submits that the timely filing of a reasoned objection as contained in
the relevant submissions within the Joint Defence
Materials amounts to
compliance with the Trial Chamber Order of the 21st of
October, 2005 and, reiterating such submissions, requests the Chamber to
reconsider, inter alia, its subsequent Order for Compliance. However, the
Chambers preliminarily notes that the Defence did not put forward any new and
specific grounds for which the Order for Compliance should now be reconsidered
pursuant to the Defence Motion.
- During
the Status Conference held on the 27th of October, 2005
following and pursuant to the issuing of the Order of the
21st of October, 2005, the Defence was invited on
various occasions to make comments concerning the preparation of its case and,
in particular,
the various materials to be filed pursuant to the said Order of
the 21st of October, 2005. In response to the Chamber,
the Defence specifically reassured that “work is well under way to fulfil
the
order”.[18]
On the 17th of November, 2005, the final day for the
filing by the Defence of the various materials requested by the Chamber in its
Order of
the 21st of October, 2005, the Defence,
advancing arguments that were not previously indicated, objected in its Joint
Defence Materials to,
inter alia, the filing of a witness list and of an
evidentiary chart as provided for in paragraphs (a)(i) and (d) or this Order.
Have the Defence Met the Applicable Standards for Reconsideration?
- As
already discussed and deliberated upon during the Status Conference held on the
25th of November, 2005 the Chamber finds and reiterates
that the filing of last minute and novel objections by the Defence is
inconsistent
with the position previously expressed by the Defence in open court
and, therefore, cannot constitute a form of compliance with a
Chamber’s
order.[19]
- In
addition, the Chamber wishes to stress that when an Order is issued and, in
particular, when specific time limits are provided
for, a party must comply with
such Order. Should any party wish to raise any unexpected issues concerning the
non-compliance with
an Order, it must do so within the overall purview of the
Rules. An objection cannot be considered to constitute a compliance with
a clear
and specific order of the Chamber.
- Indeed,
a cursory reading of Rule 5 of the Rules requires a party to raise any objection
on the ground of non-compliance at the earliest
opportunity.[20] The
Defence waited nearly one month before putting forward its objections to the
Order of the 21st of October, 2005. Considering the
current phase of preparation for the imminent commencement of the Defence case,
the Defence is
called to exercise diligence in the discharge of its obligations,
to act scrupulously and to respect and comply with Orders issued
by the Chamber
in relation thereto. The Defence position in this regards is manifestly
untenable from the perspective of two grounds
analogous to the context of the
exercise of an equitable jurisdiction, namely (i) that delay defeats equity and
(ii) that he who
seeks equity must do equity.
- These
considerations were the basis for the Chamber’s Oral Ruling and the Order
for Compliance, which now mandates the Defence
to file, within a newly
prescribed time limit, essentially the same materials that the Defence ought to
have previously filed pursuant
to the Order of the 21st
of October, 2005.
- The
Chamber opines further, that no new material circumstances or facts have been
put forward by the Defence in support of its Motion
for reconsideration and
furthermore, that the Defence has failed to demonstrate that the Chamber erred
in law in rendering the Oral
Ruling and the Order for Compliance and that these
Orders might consequently cause any prejudice to the Accused. The Chamber is of
the opinion that the Defence, in seeking reconsideration of these Orders, in now
simply attempting to re-litigate issues for which
it has been previously given
ample opportunity to present arguments and which have already been deliberated
upon by the Chamber.
V. CONCLUSIONS
- The
Chamber therefore finds that the Motion fails to indicate or to demonstrate that
the Oral Ruling and the Order for Compliance
constituted a clear error of
reasoning or that the said decisions have led to an injustice or might prejudice
the rights of the Accused
and, consequently, warrant their reconsideration.
- Accordingly,
and with specific reference to the Defence request for a stay of the filing of
materials indicated in the Order for Compliance,
the Chamber reiterates that the
filing of any motion will not operate as a stay of
proceedings.[21]
VI. DISPOSITION
Based on the foregoing considerations the Trial Chamber DISMISSES the Motion in its entirety and ORDERS as follows:
- that
the Defence for the Second Accused, Moinina Fofana, and each Defence Team duly
and fully complies with the Order for Compliance;
- that
this Order be carried out.
AUTHORIZES the Court Management Section of the Special Court to serve the present order after 5:00pm, today the 1st of December, 2005.
Done at Freetown, Sierra Leone, this 7th day of
December 2005,
|
Hon. Justice Benjamin Mutanga Itoe
|
Hon. Justice Pierre Boutet
Presiding Judge, Trial Chamber I |
Hon. Justice Bankole Thompson
|
[Seal of the Special Court for Sierra Leone]
[1] Prosecutor
against Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Defence Witness
and Exhibit List for the First Accused as per the Consequential Order for
Compliance of 28th November 2005Concerning the
Preparation and Presentation of the Defence Case, 5 December 2005; id.,
Fofana Materials Filed Pursuant to the Consequential Order for Compliance with
the Order Concerning the Preparation and Presentation
of the Defence Case, 5
December 2005; and id., Materials Filed by Third Accused Allieu Kondewa
Pursuant to Consequential Order for Compliance with the Order Concerning the
Preparation
and Presentation of the Defence Case, 5 December 2005.
[2] Transcripts,
Status Conference, 27 October
2005.
[3] Joint
Defence Materials Filed, para.
3.
[4] Transcript,
Status Conference, 25 November 2005, page 18.
[5] Motion, paras
24-28.
[6]
Id., paras
15-19.
[7] Response,
paras 16-18.
[8]
Id., paras 10-13 and
19.
[9] See
Prosecutor against Issa Sesay, Case No. SCSL-03-05-PT, Order on the
Defence Application for Reconsideration of and/or Leave to Appeal
“Decision on the Prosecutor’s
Motion for Protective Measures for
Witnesses and victims and for Non-Public Disclosure”, 16 July 2003;
Prosecutor against Brima, Kamara and Kanu, Case No. SCSL-04-16-T,
Decision on Renewed Motion for Defects in the Form of the Indictment and
Application for Extension of Time,
24 May 2005, para.
8.
[10] See also
Prosecutor against Renzaho, Case No. ICTR-97-31-I, Decision on
Renzaho’s Motion to Reconsider the Decision on Protective Measures for
Victims and Witnesses
to Crimes Alleged in the Indictment, 9 November 2005,
para. 20.
[11]
Prosecutor against Norman, Fofana and Kondewa, Decision on Prosecution
Appeal Against the Trial Chamber’s Decision of 2 August 2004 Refusing
Leave to File and Interlocutory
Appeal, 17 January 2005, paras 35 and
40.
[12]
Prosecutor against Bagosora et al, ICTR-98-41-A, Decision on
Interlocutory Appeal from Refusal to Reconsider Decisions Relating to Protective
Measures and Application
for a Declaration of “Lack of
Jurisdiction”, 2 May 2002,
par 10.
[13]
See, for instance, Prosecutor against Mucic, Delic and Landzo, Case No.
IT-96-21-Abis, Judgment on Sentence Appeal, 8 April 2003, para. 49;
Prosecutor against Semanza, Case No. ICTR-97-20-A, Decision on Appeal
against the Oral Decision Dismissing the Motion for Review, 16 April
2002.
[14]
Prosecutor against Rwamakuba, Case No. ICTR-98-44C-T; Decision on
Prosecutor Motion for Variation, or in the Alternative Reconsideration of the
Decision on Protective
Measures for Defence Witnesses, 2 November
2005.
[15]
Id. para
4.
[16]
Prosecutor against Renzaho, Case No. ICTR-97-31-I, Decision on
Renzaho’s Motion to Reconsider the Decision on Protective Measures for
Victims and Witnesses
to Crimes Alleged in the Indictment, 9 November 2005,
paras 20-21.
[17]
Id. para 21. See also Prosecutor against Bizimungo,
Ndindiliyimana, Nzuwonemeye and Sagahutu, Case No. ICTR-00-56-T, Decision on
Bizimungu’s Motion in Opposition to the Admissibility of the Testimonies
of Witnesses LMC,
BB, GS, CJ/ANL and GFO and for Reconsideration of the
Chamber’s Decision of 13 May 2005, 24 November 2005, paras 18-19. See
also
Prosecutor against Karemera, Ngirumpatse and Nzirorera, Case No.
ICTR-98-44-PT, Decision on the Defence Motions for Reconsideration of Protective
Measures for Prosecution Witnesses, 29
August 2005, para.
8.
[18]
Transcripts, Status Conference, 27 October 2005, page
20.
[19] See also
Prosecutor against Karera, Case No. ICTR-01-74-PT, Decision on Motion for
Protective Measures for Prosecution Witnesses, 1 December 2005, paras
1-3.
[20] See also,
more specifically referring to objections on the ground of non-compliance with
disclosure obligations, Prosecutor against Sesay, Kallon and Gbao, Case
No. SCSL-04-15-T, Ruling on Application for Exclusion of Certain Supplemental
Statements of Witness TF1-316 and Witness TF1-122,
1 June 2005, paras 31-32.
[21] See also Prosecutor against Norman, Fofana and Kondewa, Case No. SCSL-04-14-T, Order on Urgent Motion for Reconsideration or, in the Alternative, for Leave to Appeal the Orders for Compliance with the Order Concerning the Preparation and Presentation of the Defence Case, 29 November 2005.