IN TRIAL CHAMBER II
Before: Judge David Hunt, Pre-Trial Judge
Registrar: Dorothee de Sampayo Garrido-Nijgh
Decision of: 10 December 1999
DECISION ON MOTION FOR RELEASE
The Office of the Prosecutor:
Ms Joanna Korner
Mr Michael Keegan
Ms Ann Sutherland
Counsel for the Accused:
M Xavier de Roux
M Michel Pitron
1. The accused Momir Talic (Accused) has filed a document entitled "Motion for Release" ("Motion"), in which he requests the Tribunal to
[ ] hold a session urgently to rule on the unlawfulness of his detention and to order his immediate release.1
As it is clear from the Motion on its face that the application is misconceived, there is no need to have an oral hearing.
2. The relevant facts are as follows:
(1) On 14 March 1999, and pursuant to Article 19 of the Tribunals Statute and Rule 47 of the Rules of Procedure and Evidence ("Rules"), Judge Rodrigues confirmed an indictment against the Accused and others, charging them (apparently jointly) with a crime against humanity, based upon persecutions on political, racial or religious grounds.2 On the same day, warrants were signed pursuant to Rules 47 and 55 for the arrest of the Accused.
(2) On 25 August, the Accused was arrested and, upon that arrest, he was provided with a copy of the indictment against him. On the same day, and in accordance with Rule 57, the Accused was transferred to The Hague.
(3) The Accused made his initial appearance on 31 August. On the same day, an order was made pursuant to Rule 64 that the Accused be detained in the United Nations Detention Unit in The Hague.
(4) On 14 October, the Accused filed a motion to dismiss the indictment ("Motion to Dismiss"), in which he argued that the confirming judge had erred in being satisfied that the material provided to him by the prosecution demonstrated a prima facie case against the Accused. He conceded that his argument was "substantially the same" as that put forward by his co-accused Radoslav Brdanin in an earlier application to dismiss the indictment which challenged the jurisdiction of the Tribunal.
(5) On 5 October, however, the Trial Chamber had already held on Brdanins motion that the jurisdiction of the Tribunal did not depend upon whether the supporting material provided by the Prosecutor to the confirming judge supported the charge3, and that there was no provision in the Rules which permitted a Trial Chamber to review the actual decision made by the confirming judge by way of appeal or in any other way.4
(6) In its response to the Accuseds Motion to Dismiss, and filed on 21 October, the prosecution stated:5
[ ] the Prosecution gives notice that it is the present intention to apply to the confirming Judge (within 28 days) under Rule 50(A)(ii) for leave to amend the Indictment.
In a document filed on 29 October, the Senior Trial Attorney for the prosecution confirmed the intention of the prosecution to seek an amendment to the original indictment against this Accused and Radoslav Brdanin, and said:
The amendment will add a number of new charges to the original indictment.
The reasons for the proposed amended indictment are:
1. The nature of the evidence has changed and developed since the original indictment was confirmed by his Honour Judge Almiro Simões Rodrigues on 14 March 1999; and
2. The indictment needs to be brought into accord with the current jurisprudence of the Tribunal.
(7) On the basis that, in the circumstances, it was premature to determine the Motion to Dismiss, an order was made on 4 November deferring a decision thereon until the result was known of the application to amend.
(8) On 16 November, an interlocutory appeal by Brdanin against the Brdanin Dismissal Decision was rejected by the Appeals Chamber, which considered that any substantive error by the confirming judge in the assessment of the supporting material did not go to the jurisdiction of the Tribunal within the ambit of Rule 72(B)(i), and that the interlocutory appeal did not involve any of the categories contemplated by Rule 72 as giving an appeal as of right.6
(9) An amended indictment against this Accused and Radoslav Brdanin was lodged with the confirming judge on 19 November, and the prosecution awaits his decision as to whether the necessary leave to amend should be granted.
3. Upon the basis of that material, the Accused has asserted that
(i) More than three months after his detention, he "still does not exactly know with what crimes he is charged which allegedly justify the most serious infringement of his rights, that is the deprivation of his liberty".
(ii) By recognising that the indictment "had" to be amended, the prosecution also recognised the validity of his argument that the initial indictment "did not contain sufficient elements on which to base a prima facie case of responsibility against him".
(iii) By not filing a motion for leave to amend the indictment within the twentyeight days promised, the prosecution "reaffirms this state of fact, namely that [it] does not possess the aforesaid elements".
4. The first assertion, that the Accuseds rights have been infringed, is based upon Article 21.4(a) of the Tribunals Statute, which provides that any accused is entitled to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him. The failure to comply with that right was in part responsible for the dismissal of an indictment in one case, Jean-Bosco Barayagwiza v The Prosecutor, in the International Criminal Tribunal for Rwanda.7
5. In the present case, however, there is no basis at all for the Accuseds assertion that he still does not know what the charge against him is. Until there is any amendment to it by leave, the charge in the indictment against the Accused remains the same as that to which he pleaded at his initial appearance on 31 August, six days after his arrest. He was in fact informed of that charge even earlier, when he was provided with the copy of the indictment upon his arrest.
6. Nor is there any basis for the Accuseds assertion that the prosecution, by seeking leave to amend, has recognised the validity of his argument that the indictment does not demonstrate a prima facie case. Because the facts pleaded in the indictment in this case clearly do demonstrate the existence of a prima facie case against the Accused, this assertion must therefore have been intended as a reference back to the argument in his Motion to Dismiss, that the confirming judge had erred in being satisfied that the material provided to him by the prosecution demonstrated a prima facie case against the Accused.
7. It was made clear, both in the prosecutions response to that motion and in the documents by which its intention to seek leave to amend was made known to the Accused, that the prosecution stands by its arguments (a) that a Trial Chamber has no power to review the decision of the confirming judge,8 and (b) that in any event the supporting material produced to the confirming judge was sufficient for the purposes of the Rules and justified the confirmation of the indictment.
8. Again, there is no basis for the assertion that, by the failure of the prosecution to file a motion for leave to amend the indictment within the twentyeight days promised, it had re-affirmed that it did not have the "elements" on which to base a prima facie case against him. Again, because the facts pleaded in the indictment in this case clearly do demonstrate the existence of a prima facie case against the Accused, this must also have been intended as a reference back to the argument in his Motion to Dismiss.
9. Leave to amend the indictment prior to the commencement of the presentation of evidence can only, in the circumstances of this case, be made to the confirming judge.9 Application for such leave is made ex parte, and nothing is disclosed until leave to amend is granted.10 In the present case, the application was made ex parte within the time promised.
10. All three assertions by the Accused are rejected.
11. The Accused also seeks separately to enforce another right which, it is submitted, arises out of Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention"), which provides:
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
This right of a detainee to have the lawfulness of his detention reviewed by a court is a norm enshrined also in other international human rights instruments.11 This particular provision appears to have been selected by the Accused because it has been applied by the European Court of Human Rights in a way which, it is submitted, requires a Trial Chamber of this Tribunal to determine whether the supporting material provided by the prosecution to the confirming judge supported the charge.
12. In Brogan v United Kingdom,12 the European Court of Human Rights said:
By virtue of paragraph (4) of Article 5, arrested or detained persons are entitled to a review hearing upon the procedural and substantive conditions which are essential for the lawfulness, in the sense of the Convention, of their deprivation of liberty. This means that, in the instant case, the applicants should have had available to them a remedy allowing the competent court to examine not only compliance with the procedural requirements set out in section 12 of the 1984 Act but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention.
The Accused has submitted that, in accordance with Article 5(4), "the Judge [scil Trial Chamber] is duty-bound to evaluate the detention of an accused within the context of the charges brought against him".
13. The passage upon which the Accused relies must, however, be considered in the context of the circumstances with which the European Court of Human Rights was concerned in that case. The applicants had been arrested and detained pursuant to s 12(1) of the Prevention of Terrorism Act 1984, of Northern Ireland. That section permits a constable to
[ ] arrest without warrant a person who he has reasonable grounds for suspecting to be [ ] a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism [ ].
The statute provides that such a person may be detained for up to fortyeight hours after his arrest, and that this period may be extended up to a maximum of five days. A person detained pursuant to such an arrest is deemed by the statute "to be in legal custody when he is so detained".
14. The jurisprudence of Northern Ireland has interpreted this provision as permitting an arrest even though there may not necessarily be any intention to charge the suspected person, and in circumstances where there may well never be any judicial investigation.13 The European Court of Human Rights held that the constable making the arrest was nevertheless required by the statute to have "a reasonable suspicion" that the person being arrested is or had been concerned in the commission, preparation or instigation of acts of terrorism and that, in deciding whether that suspicion was reasonable in the circumstances, the court examining those circumstances pursuant to a writ of habeas corpus "must be told something about the sources and grounds of the suspicion".14
15. The European Court of Human Rights, when discussing the remedy of habeas corpus, said this:15
Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful.
The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion on which the arrest is based.
This passage fully explains the reference in the passage upon which the Accused relies to an examination by the court of "the reasonableness of the suspicion grounding the arrest". Because the terms of the statute under which the applicants in that case were detained permitted an arrest to be effected (a) without warrant, (b) upon the basis of a reasonable suspicion only and (c) without any necessary intention to charge the person arrested, it is easy to understand why the scope of the review to be conducted in that particular case was held to extend to an inquiry into the reasonableness of that suspicion.16
16. Those circumstances with which the European Court of Human Rights was concerned in that case bear no relationship at all to the circumstances of the detention of the Accused in this case pursuant to the order of this Tribunal. Article 19 of the Tribunals Statute provides:
1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.
2. Upon confirmation of an indictment, the judge may, at the request of the Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer of persons, and any other orders as may be required for the conduct of the trial.
Article 19.2 makes it clear that the Statute requires the review and confirmation of the indictment in order to justify the issue of the arrest warrant.17
17. The arrest of the Accused was therefore not effected merely upon a reasonable suspicion by the person arresting him that he was in some way concerned with the commission of a crime. Rather, the Accused was arrested under the authority of warrants of arrest issued by a judge of this Tribunal after being satisfied that a prima facie case against him had been established by the Prosecutor. There has already been a judicial review of the very basis upon which the warrants of arrest were issued and which justified the arrest and detention of the Accused. There has been no suggestion that the circumstances in which the Accused was arrested are relevant to the lawfulness of his detention. In those circumstances, the European Court of Human Rights decision does not call for any further examination by the Tribunal of the reasonableness of the decision to arrest and detain the Accused. As earlier stated, the Trial Chamber has determined that it has no power to review the actual decision of the confirming judge by way of appeal or in any other way.
18. For these reasons, the detention of the Accused is lawful, and he has no right to have the decision of the confirming judge reviewed. The Motion for Release is refused.
Done in English and French, the English text being authoritative.
Dated this 10th day of December 1999,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]