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a supposition. (1995)
a supposition. (1995)
Laatste Update: 2018-02-13
su trabajó se enfocó en el artículo de r.a. fisher de 1918 "the correlation between relatives on the supposition of mendelian inheritance".
his work focused on r.a. fisher's 1918 article "the correlation between relatives on the supposition of mendelian inheritance".
Laatste Update: 2016-03-03
Waarschuwing: Bevat onzichtbare HTML-opmaak
trial chamber i (“trial chamber” or “chamber”) of the international criminal court (“court” or “icc”), in the case of the prosecutor v. thomas lubanga dyilo (“lubanga case”), issues the following judgment pursuant to article 74 of the statute: i. the charges 1. on 29 january 2007, pre-trial chamber i issued its decision on the confirmation of charges. 1 it confirmed that there was sufficient evidence to establish substantial grounds to believe that: thomas lubanga dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the fplc and using them to participate actively in hostilities within the meaning of articles 8(2)(b)(xxvi) and 25(iii)(a) of the statue from early september 2002 to 2 june 2003.2 additionally, the pre-trial chamber confirmed that there was sufficient evidence to establish substantial grounds to believe that: thomas lubanga dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the fplc and using them to participate actively in hostilities within the meaning of articles 8(2)(e)(vii) of the statute from 2 june to 13 august 2003.3 2. under the rome statute (“statute”)4 and the rules of procedure and evidence (“rules”), the charges include a description of the relevant facts and circumstances, and the facts are legally characterised. therefore the charges are made up of factual and legal elements. 3. pursuant to article 74(2) of the statute, the judgment “shall not exceed the facts and circumstances, described in the charges and any amendments to the charges”. the charges and any amendments thereto establish the factual scope of the decision pursuant to article 74(2). 4. by regulation 55(1) of the regulations of the court (“regulations”), “the chamber may change the legal characterisation of facts to accord with the crimes under articles 6, 7 or 8, or to accord with the form of participation of the accused under articles 25 and 28”. however, it shall not exceed the facts and circumstances described in the charges and any amendments to the charges. 5. regulation 52(b) of the regulations establishes what needs to be included in the document containing the charges: “[a] statement of the facts, including the time and place of the alleged crimes, which provides a sufficient legal and factual basis to bring the person or persons to trial, including relevant facts for the exercise of jurisdiction by the court”. 6. the appeals chamber has defined what are “the facts” in this context: in the view of the appeals chamber, the term 'facts' refers to the factual allegations which support each of the legal elements of the crime charged. these factual allegations must be distinguished from the evidence put forward by the prosecutor at the confirmation hearing to support a charge (article 61 (5) of the statute), as well as from background or other information that, although contained in the document containing the charges or the confirmation decision, does not support the legal elements of the crime charged. the appeals chamber emphasises that in the confirmation process, the facts, as defined above, must be identified with sufficient clarity and detail, meeting the standard in article 67 (1) (a) of the statute.5 7. it follows that the accused cannot be convicted on a basis that exceeds the factual circumstances that were identified in the confirmation decision as supporting each of the legal elements of the crimes charged. 8. the two paragraphs of the decision on the confirmation of charges cited above contain the legal characterisation of the facts, including the mode of liability, the temporal framework of the crimes and the fact that the alleged conscription and enlistment was “into” the force patriotique pour la liberation du congo (“fplc”). the pre-trial chamber, in this section, did not expressly identify the facts that supported each of the legal elements of the crimes charged. however, they were referred to in other sections of the decision and the trial chamber has ensured that the present judgment does not exceed the facts and circumstances established by the pre-trial chamber. ii.brief case history, jurisdiction and participation by victims jurisdiction 9. pursuant to article 19 of the statute, the “court shall satisfy itself that it has jurisdiction in any case brought before it.”6 the democratic republic of the congo (“drc”) became a state party on 11 april 2002 and, pursuant to article 14, president kabila referred the situation in the drc to the prosecutor in march 2004. 7 pre-trial chamber i concluded that the case falls within the court’s jurisdiction,8 and the appeals chamber confirmed the pre-trial chamber’s decision on the accused’s challenge to the jurisdiction of the court.9 the personal, temporal, territorial and subject-matter elements that are relevant to the court’s jurisdiction have not altered since the decision on the confirmation of the charges, and the issue has not been raised by the parties or any state before the trial chamber. case history 10. the first status conference before the trial chamber was held on 4 september 2007, and thereafter there were 54 status conferences prior to the commencement of the trial.10 a list of the main decisions of the chamber is set out in annex a. however, it is appropriate to mention in this section four major procedural events which had a significant impact on the course of the proceedings: i) on 13 june 2008, the chamber stayed the proceedings inter alia as a consequence of the failure by the office of the prosecutor (“prosecution” or “otp”) to disclose a significant body of potentially exculpatory evidence covered by certain confidentiality agreements that had been entered into on the basis of article 54(3)(e) of the statute.11 after a considerable delay, the materials that had been withheld were disclosed, and following a review of them by the chamber, the stay of proceedings was lifted on 18 november 2008.12 the prosecution called its first witness on 28 january 2009 after the parties and legal representatives of the victims had completed their opening statements on 26 and 27 january 2009.13 ii) the presentation of oral evidence by the prosecution concluded on 14 july 2009, 14 and thereafter the majority of the chamber (judge fulford dissenting) issued a decision notifying the parties and participants that the legal characterisation of the facts may be subject to change, pursuant to regulation 55 of the regulations of the court.15 the chamber granted leave to appeal the decision on 3 september 200916 and adjourned the presentation of evidence and any further consideration of regulation 55 pending the outcome of the interlocutory appeal.17 the appeals chamber issued its judgment reversing the 14 july 2009 decision on 8 december 2009. 18 the presentation of evidence resumed on 7 january 2010 with the testimony of the third expert called by the chamber.19 28 witnesses testified before the chamber between 7 january and 8 july 2010, including 3 victims called by their legal representative and 3 prosecution witnesses (see below). the presentation of the defence evidence commenced on 27 january 2010. iii) on 8 july 2010, the trial chamber imposed a second stay of proceedings because of the prosecution’s non-compliance with an order for the disclosure of the name of intermediary 143. 20 the appeals chamber concluded that the orders of a chamber are binding and the prosecutor is obliged to comply with them (the prosecutor’s “wilful non-compliance constituted a clear refusal to implement the orders of the chamber”), 21 but it reversed the stay of proceedings on 8 october 2010 (indicating that a different sanction, namely a financial penalty, should have been considered).22 the presentation of evidence resumed on 25 october 2010. seven witnesses testified between 25 october and 1 december 2010. iv) on 10 december 2010, the defence filed an application seeking a permanent stay of proceedings, arguing, inter alia, that four of the intermediaries used by the prosecution had prepared false evidence and the prosecutor was aware that some of the evidence connected to these individuals was untruthful, and moreover he failed in his obligation to investigate its reliability.23 prior to receiving the application, the chamber had heard 30 witnesses relevant to this issue, including 3 intermediaries. the chamber issued a decision dismissing the defence application on 23 february 2011. 24 the presentation of the defence evidence resumed on 28 march 2011 and five final defence witnesses testified before the evidence formally closed on 20 may 2011. 11. as set out above, the presentation of evidence in the case started on 28 january 2009 and was formally closed on 20 may 2011.25 the trial chamber heard 67 witnesses, and there were 204 days of hearings.26 the prosecution called 36 witnesses, including 3 experts,27 and the defence called 24 witnesses.28 three victims were called as witnesses following a request from their legal representatives. additionally the chamber called four experts.29 the prosecution submitted 368 items of evidence, the defence 992, and the legal representatives 13 (1373 in total). in addition to the written submissions, 30 the oral closing arguments of the parties and participants were heard on 25 and 26 august 2011. since 6 june 2007, when the record of the case was transmitted to the trial chamber,31 the chamber has delivered 275 written decisions and orders and 347 oral decisions.32 12. article 76(2) provides that “the trial chamber may on its own motion and shall, at the request of the prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence”. the defence requested that the chamber holds an additional hearing in the event of a conviction.33 in an oral decision delivered on 25 november 2008, the chamber decided there would be a separate sentencing hearing if the accused is convicted.34 participation by victims 13. the rome statute permits victims to participate in proceedings before the icc. in accordance with article 68(3) of the statute, victims have participated in the present case, and in particular they have applied to introduce evidence, they have questioned witnesses and they have advanced written and oral submissions (with the leave of the chamber), assisted by their legal representatives. 14. in the “decision on victims’ participation” (judge blattmann separately and partially dissenting), the chamber issued general guidelines concerning the participation by victims during the trial.35 this decision was appealed. 36 the appeals chamber partially confirmed and partially reversed the decision.37 the following overall criteria have been established in the decisions of the trial and the appeals chambers: i) bearing in mind the current situation in the drc and the potential difficulties in obtaining or producing copies of official identity documents, applicants may establish proof of their identity by way of a range of official and non-official documents.38 ii) using principle 8 of the basic principles 39 as guidance, a victim is someone who experienced personal harm, individually or collectively with others, directly or indirectly, in a variety of different ways such as physical or mental injury, emotional suffering or economic loss. 40 iii) participation by victims at trial will first and foremost take place by way of the procedure established in rule 89(1) of the rules. iv) only those who suffered harm as a result of the crimes charged may be considered victims in the case. applicants need to demonstrate a link between the harm they suffered and the crimes faced by the accused,41 and they should demonstrate in written applications that they are victims of these offences. v) “[p]ursuant to article 68(3) of the statute, victims will first have to demonstrate that their personal interests are affected by the trial in order to be permitted to present their views and concerns at stages of the proceedings determined to be appropriate by the court and in a manner which is not prejudicial or inconsistent with the rights of the accused and a fair and impartial trial.” 42 participation is to be decided on the basis of the evidence or issues under consideration at any particular stage in the proceedings and victims wishing to participate should set out in a discrete written application the nature and the detail of the proposed intervention. 43 vi) in accordance with rule 131(2) of the rules, victims have the right to consult the record of the proceedings, including the index, subject to any restrictions concerning confidentiality and the protection of national security information. in principle, victims have the right to access and receive notification of all public filings and those confidential filings which concern them (as identified by the parties), insofar as this does not breach any protective measures that are in place. 44 vii)victims may request the chamber to use its broad powers to call all the material it considers relevant for the determination of the truth, in order that the evidence identified by victims concerning the guilt or innocence of the accused is introduced (to the extent appropriate). victims may tender evidence, examine witnesses and challenge the admissibility or relevance of evidence during the trial so long as: (i) they submit a discrete application; (ii) notice is given to the parties; (iii) the personal interests of one or more victims are affected by the evidence; (iv) there is compliance with their “disclosure obligations and [any] protection orders”;45 (v) the chamber determines this course is appropriate and (vi) there is consistency with the rights of the accused and a fair trial. 46 viii) victims have the right to participate in public hearings and to file written submissions, and they may be permitted to participate in closed or ex parte hearings or to file confidential or ex parte submissions, depending on the circumstances. 47 ix) victims’ views and concerns may be presented by a common legal representative in order to provide for the fairness and expeditiousness of the trial.48 x) victims may apply to the chamber for leave to call evidence relating to reparations during the trial under regulation 56 of the regulations of the court.49 xi) anonymous victims may participate in the trial. however, the greater the extent and significance of the proposed participation, the more likely it will be that the chamber will require the victim to identify himself or herself. 50 15. the total number of individual victims authorised to participate in the proceedings is 129 (34 female and 95 male victims).51 once the chamber received the parties’ observations on their applications and reviewed the reports prepared by the victims participation and reparations section under regulation 86(5) of the regulations of the court, 52 it concluded, on a prima facie basis, that each of these individuals were victims of the crimes charged against the accused.53 in accordance with the statute the trial chamber examined, on a caseby- case basis, the link between the harm allegedly suffered, the victims’ personal interests and the charges against the accused. 16. while all 129 victims claimed they had suffered harm as a result of the enlistment or conscription of children under the age of 15, or their use to participate actively in the hostilities, many also alleged they had suffered harm as a result of other crimes, such as sexual violence and torture or other forms of ill treatment, which are not the subject of charges against the accused.54 17. the victims who have been granted permission to participate in this trial are, in the main, alleged former child soldiers, although some are the parents or relatives of former child soldiers and one is a school. since some of the victims were still children when they submitted their applications, their parents, relatives or others have acted on their behalf. the chamber accepted that the individual who acted for a child did not need to be their parent or legal guardian – indeed it permitted children to participate directly without an adult representing them.55 18. many of the victims in the case were granted protective measures and, in particular, anonymity because of their vulnerable position living in areas of ongoing conflict. consequently, of 129 victims, the identities of only 23 have been disclosed to the parties and participants in the proceedings. however, the chamber found that: [w]hile the safety and security of victims is a central responsibility of the court, their participation in the proceedings cannot be allowed to undermine the fundamental guarantee of a fair trial. the greater the extent and the significance of the proposed participation, the more likely it will be that the chamber will require the victim to identify himself or herself. accordingly, when resolving a request for anonymity by a victim who has applied to participate, the chamber will scrutinise carefully the precise circumstances and the potential prejudice to the parties and other participants. […]56 19. the chamber formulated certain key principles for those individuals with dual status as victims and witnesses.57 whilst the chamber indicated that their security should not be compromised, it also established that individuals with dual status do not accrue rights above and beyond those of someone who is solely a victim or a witness.58 20. common legal representatives have appeared in court for the participating victims, who have been divided into two groups represented by two teams of external counsel. 59 additionally, the office of public counsel for victims (“opcv”) was authorised to continue representing four dual status victims.60 through their legal representatives the victims made opening statements, 61 examined witnesses62 and requested leave to introduce evidence.63 they were permitted to make written and oral submissions. 21. the chamber authorised three victims to give evidence as witnesses during the trial and evidence was presented on behalf of a school.64 these three witnesses, who testified in january 2010, were granted incourt protective measures that included voice and face distortion and pseudonyms.65 the position of these three witnesses is discussed in greater detail below. iii. overview of the parties and participants submissions a. prosecution submissions 22. the principal factual allegations against the accused commence on 15 september 2000 when it is suggested he became president of the union des patriotes congolais (“upc”). it is said that he held this position at all material times thereafter. his ambition is described as gaining power in ituri, but since he was leading a rebel movement this was unachievable without a military force. in unequivocal terms, it is the prosecution’s assertion that the accused agreed with others to gain power in ituri through the recruitment of “young persons”. it is alleged that the co-perpetrators were establishing an army, notwithstanding their public promise to end years of ethnic fighting.66 23. the prosecution asserts that in reality the recruitment began when military training in uganda became a possibility in 2000. the accused and his co-perpetrators launched the first wave of young hema fighters who would later become the armed wing of the upc. this led the accused and his co-perpetrators to become closely associated with the upc and the hema militia (which are said to have been indistinguishable) and it is alleged they used children to gain power in ituri.67 24. his hema connections enabled thomas lubanga to cultivate an external profile as a key political player in iturian politics, and this included the declar
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Laatste Update: 2012-11-08