Assistance to National Jurisdictions

(These documents typically include transcripts, audio-video recordings, exhibits, motions, orders, judgements, etc.)

The request shall be submitted to the Registry and are required to include the following information:

1. the name of the applicant and the competent authority conducting the investigation or judicial proceeding;
2. the jurisdiction of the Mechanism to implement the request;
3. the specific details in relation to the request (such details should include case name/number, date of testimony of the witness, witness name/pseudonym, exhibit number, tendering party, date of admission, description of exhibit);
4. the precise purpose for which the assistance is sought;
5. the specification of any time-limit to be complied with;
6. any other information necessary to the processing of the request; and
7. an indication to the effect that the letter is meant as a request.

Unless otherwise ordered by a Single Judge or a Chamber of the Mechanism, a request that fails to conform to the requirements identified above may be returned to the requesting party with a request for any additional information the Mechanism deems necessary.

Unless otherwise ordered by a Single Judge or a Chamber of the Mechanism, the Registry shall determine the form of certification or authentication required from the party seeking the request for assistance.

Unless otherwise agreed with the Registry or determined by a Single Judge or a Chamber of the Mechanism, the ordinary administrative costs of a request for assistance to be implemented by the Mechanism shall be borne by the Mechanism, and expenses of a substantial or extraordinary nature shall be borne by the requesting party

Unless otherwise agreed with the Registry or determined by a Single Judge or Chamber of the Mechanism, the Registry shall determine the time frame for responding to the request. A requesting party may petition for the urgent execution of the request, in which case the basis for the urgency should be specified.

Pursuant to Rule 86 (H), a Judge or Bench in another jurisdiction, parties in another jurisdiction authorised by an appropriate judicial authority, or a victim or witness for whom protective measures have been ordered by the ICTY, the ICTR or the Mechanism may seek to rescind, vary, or augment protective measures ordered in proceedings before the ICTY, the ICTR or the Mechanism, by applying to the President of the Mechanism.

Applications may include requests for access to confidential court documents, for example exhibits or filings, or requests for witness testimony or protected witness information.

Applications submitted pursuant to Rule 86 (H) of the Rules of Procedure and Evidence shall be submitted in accordance with the Practice Direction on Procedure for the Variation of Protective Measures Pursuant to Rule 86 (H) of the Mechanism’s Rules of Procedure and Evidence for Access to Confidential ICTY, ICTR and Mechanism Material.

Applications are required to include the following information:

1. the fact that the application is made pursuant to Rule 86(H) on the cover page of the application;
2. the name of the applicant and, if applicable, the competent authority conducting the investigation or court proceeding;
3. the name of the ICTY, ICTR or Mechanism proceeding from which the material is sought and the case number whenever possible;
4. the specific details related to the material that is being sought; for example, the date of the witness testimony, the witness name or the pseudonym used to identify the witness, and the exhibit number;
5. the relevance of the material sought to the investigation or court proceeding of the applicant, if applicable;
6. the precise purpose for which the material is sought;
7. the specification of any time-limit or urgency;
8. a clear indication of whether the application is public or confidential; and
9. any other information necessary to the processing of the application, including proof of authorization by an appropriate judicial authority, if applicable.

Applications may be submitted using the pro forma document for Application for Variation of Protective Measures Pursuant to Rule 86(H).

• Criminal cases relating to violations of international humanitarian law

Pursuant to Rule 87, a Judge or Bench in another jurisdiction or parties in another jurisdiction authorised by an appropriate judicial authority (“Requesting Authority”) may request the assistance of the Mechanism in obtaining the testimony of a person under the authority of the Mechanism in ongoing proceedings in the jurisdiction of the Requesting Authority involving violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 or the territory of Rwanda in 1994, or committed by Rwandan citizens in the territory of Rwanda’s neighbours in 1994. Pursuant to this rule, the Mechanism can assist the Requesting Authority in making the arrangements for the testimony of a detainee from the Mechanism’s premises by video-conference link. If legal provisions in the jurisdiction of the Requesting Authority do not allow for the testimony to be received by way of video-conference link, the Mechanism may consider to render the assistance by way of granting the Requesting Authority access to the person to be heard on the premises of the Mechanism or the transfer of the person under Rule 88.

Applications pursuant to Rule 87 shall be submitted to the President of the Mechanism and are required to include the following information:

1. the fact that the application is made pursuant to Rule 87 on the cover page of the application;
2. the name of the applicant and the competent authority conducting the investigation or court proceeding;
3. the name of the detainee from whom assistance is sought;
4. the relevance of the testimony sought to the investigation or court proceeding of the applicant;
5. the precise purpose for which the testimony is sought;
6. the legal provision under national law pursuant to which the testimony is sought;
7. the date or time frame within which the requested assistance is sought;
8. any other information necessary to the processing of the application.

• Criminal cases generally

In all other cases where a statement or testimony is required of a detainee, the requesting party may proceed with the submission of a request for legal assistance depending on the location of the person under the authority of the Mechanism:

- In The Hague, a bilateral request should be made to The Netherlands. These requests for legal assistance can be pursuant to the applicable treaty on mutual legal assistance, or, in the absence of an applicable treaty, on the basis of letters rogatory to the applicable courts in The Hague. All such requests should be sent to the Netherlands Central Authority for International legal Assistance.

Service of process upon a detainee of the Mechanism, in connection with the execution of a request for legal assistance to the Host State, would be effected under the domestic law of The Netherlands.

- In Arusha, requests for assistance should be made to the Registrar of the Mechanism, and should include the applicable information requested in applications pursuant to Rule 87, points (ii) to (viii), as set out above.

In both cases, unless otherwise agreed or determined by the President, the ordinary administrative costs incurred by the Mechanism, in facilitating a request for assistance by the Host State or the requesting state, shall be borne by the Mechanism, but expenses of a substantial or extraordinary nature incurred by the Mechanism shall be borne by the requesting party.

• Administrative and civil cases

A request for the taking of statements from a detainee in relation to an administrative or civil matter under investigation or pending before another jurisdiction may be carried out in one of several ways in accordance with the laws and regulations of the Host State.

(i) Statements may be taken, without compulsion, by a diplomatic or consular representative, accredited to the Host State, of the State to which a detainee belongs, or which takes charge of his or her interests, provided the statement pertains to a matter under investigation or pending in such State. The diplomatic or consular representative administers the oath and remains present to guarantee the integrity of the proceedings. The written interrogatories are posed by the diplomatic or consular officer or by a representative of the party seeking the statement. Requests may be submitted by the diplomatic or consular representative to the Registrar of the Mechanism. In Tanzania a judge from the requesting state may also visit the person under the authority of the Mechanism to take a statement.

(ii) Statements may be taken, without compulsion, by a notary registered in the Netherlands (notaris) or Tanzania who poses written interrogatories on behalf of the party seeking the statement. The taking of such statements may be carried out without the prior consent of, or notification to, the Host State authorities. The party seeking the statement must make arrangements for the presence of a court reporter and interpreter, if required. Requests may be submitted by the notary to the Registrar of the Mechanism.

(iii) For persons under the authority of the Mechanism in The Hague, statements may be taken by a Judge of the District Court of The Hague who poses written interrogatories on behalf of the party seeking the statement. The party seeking the statement in this fashion may submit the request to the District Court of The Hague in accordance with the applicable treaty on mutual legal assistance between the State where the requesting authority is located and the Host State, or in the absence of such treaty, by means of letters rogatory from the requesting court to the District Court of The Hague. All such requests should be sent to the Netherlands Central Authority for International Legal Assistance.

A request for assistance in an administrative, civil or criminal matter under investigation or pending before a court in another jurisdiction involving the participation of a person on provisional release, in accordance with an order of a Chamber of the Mechanism under Rule 68 of the Rules of Procedure and Evidence, should be addressed to the competent authority of the jurisdiction where the person is provisionally released to, in accordance with the laws and regulations of such jurisdiction. In determining whether to grant the request for assistance, such jurisdiction must consider the terms and conditions of the order granting provisional release and consult with the Mechanism where granting the request may violate the order granting provisional release.

The terms and conditions of imprisonment of persons subject to a conviction by the ICTY, the ICTR or the Mechanism, and serving a sentence in relation thereto is determined by the laws of the State in which the sentence is being enforced (the “Enforcement State”). Consequently, a request for assistance involving the participation of a convicted person serving a sentence in an Enforcement State is to be addressed to the Enforcement State. The Enforcement State will decide whether to grant the request for assistance in accordance with the laws and regulations of the Enforcement State and the provisions of the agreement on enforcement between the United Nations and the Enforcement State or sovereign jurisdiction within the Enforcement State.

Service of documents upon a detainee under the custody of the Mechanism in Arusha, and in relation to administrative or legal proceedings not pending before the Mechanism, can be effected by the Registrar.

Service of documents upon a detainee under the custody of the Mechanism in The Hague, and in relation to administrative or legal proceedings not pending before the Mechanism, are legal acts to be executed under the laws of The Netherlands. Dutch laws permit the service of documents by a variety of means:

1. by diplomatic or consular representative, without compulsion, in administrative, civil and criminal matters brought outside The Netherlands;
2. by registered mail addressed to the detainee in administrative, civil and criminal cases brought outside The Netherlands;
3. through formal request to the Netherlands Central Authority pursuant to a treaty on mutual legal assistance between The Netherlands and the State where the requesting party is located in; and
4. by court bailiff in administrative and civil cases brought outside The Netherlands and in administrative, civil and criminal cases brought in The Netherlands.

Registered mail addressed to a detainee shall be posted to the following address:

P.I. Haaglanden
United Nations Detention Unit
Pompstationsweg 32 2597 JW, The Hague
The Netherlands

c/o Office of the Registrar
International Residual Mechanism for Criminal Tribunals
Haki Road, Plot No. 486 Block A, Lakilaki Area
Arumeru District
P.O. Box 6016, Arusha, Tanzania

Where an official or former official of the ICTY, the ICTR, or the Mechanism, is requested or summoned to provide a statement or testimony as a witness or suspect in an administrative, civil or criminal matter under investigation or pending before a court in a United Nations Member State or other jurisdiction, a waiver of immunity by the Secretary-General may be required, in accordance with the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 (“General Convention”) and where relevant, the Headquarters Agreement, prior to the taking of the statement or testimony.

A party seeking such statement or testimony shall submit a request to the Registrar of the Mechanism who will submit the request to the Secretary-General should a waiver of immunity be required.