IN TRIAL CHAMBER II
Judge Antonio Cassese, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge David Hunt
Dorothee de Sampayo Garrido-Nijgh
8 December 1999
DECISION ON PETITION FOR A WRIT OF HABEAS CORPUS
ON BEHALF OF RADOSLAV BRDANIN
The Office of the Prosecutor:
Ms Joanna Korner
Mr Michael Keegan
Ms Ann Sutherland
Counsel for the Accused:
Mr John Ackerman
1 The form and nature of the application
1. The accused Radoslav Brdanin (Accused) has filed a document entitled Petition for a Writ of Habeas Corpus on Behalf of Radoslav Brdanin (Petition), requesting that
[ ] a Writ of Habeas Corpus issue without delay ordering the following:
a. That the Petitioner be brought speedily before the Trial Chamber for a hearing on the Writ of Habeas Corpus.
b. That the Prosecutor be ordered to present to the Trial Chamber, in such hearing, the evidence in its possession, if any, which supports a prima facie case against the Petitioner.
2. It is submitted by the Accused that the Appeals Chamber of the International Criminal Tribunal for Rwanda ("ICTR") has held that habeas corpus is a proper remedy by which a person may challenge the lawfulness of his detention1. The Accused asserts that this was held by that Appeals Chambers in the recent decision of Jean-Bosco Barayagwiza v The Prosecutor.2 What the Appeals Chamber said, however, was this:
88. Although neither the Statute nor the Rules specifically address writs of habeas corpus as such, the notion that a detained individual shall have recourse to an independent judicial officer for review of the detaining authoritys acts is well-established by the Statute and Rules. (Footnote: See, for example, Articles 19 and 20 of the Statute and Rule 40bis(J).)3
The reference there is to the recognition by the Statute and Rules of the notion that a detainee must have recourse to a court to challenge the lawfulness of his detention. That is the fundamental issue raised by a writ of habeas corpus, as that passage makes clear.4 But the Rwanda Decision gives no support to such a challenge being made in either that or this Tribunal by way of a writ of habeas corpus.
3. The Appeals Chamber went on to show that such recourse was a fundamental right enshrined in international human rights norms5. Such provisions also make it clear, as the Appeals Chamber says, that a detainee has the right to have the lawfulness of his detention reviewed by the judiciary.6
4. Those statements are fully accepted. They do not, however, establish that such recourse may be by way of an application for a writ of habeas corpus. A writ of habeas corpus is one of the old forms of prerogative writ available in certain common law countries documents issued in the name of the Sovereign by which the named defendant was ordered to carry out a particular action and which, if the action was not carried out, led to proceedings in a court of generally civil (not criminal) jurisdiction, unless otherwise provided by statute. Prerogative writs no longer exist, as such, in most of those countries, having been replaced by orders "in the nature of" mandamus, prohibition, habeas corpus, certiorari and others. In the United States, however, the continued existence of the writ of habeas corpus is enshrined in the Constitution (Article 1, Section 9).
5. This Tribunal has no power to issue writs in the name of any Sovereign or other head of state, and it is not a court of civil jurisdiction which can hear the proceedings commenced by such a writ. But the Tribunal certainly does have both the power and the procedure to resolve a challenge to the lawfulness of a detainees detention. With respect, it did not need the decision of the Appeals Chamber of the ICTR to establish the existence of such a power.
6. A detained person whose case has been assigned to a Trial Chamber has recourse to the Tribunal in order to challenge the lawfulness of his detention by way of motion pursuant to Rule 72 of the Rules of Procedure and Evidence ("Rules") if the application amounts to a challenge to jurisdiction, or pursuant to Rule 73 if it does not.7 Once such a motion has been filed before a Trial Chamber, the prosecution has a right to file a response, and the Trial Chamber then gives its decision. Such a procedure fully complies with the international human rights norms referred to earlier.
7. Rather than merely refuse the present request by the Accused for the issue of a writ of habeas corpus upon the basis that no such procedure is available within the Tribunal, the more appropriate course, in the circumstances, would be to treat the Petition as a wrongly entitled motion by the Accused seeking to challenge the lawfulness of his detention.8 The prosecution has, wisely, assumed that the Accused would wish to have his Petition treated as a motion pursuant to Rule 73.9 The Petition has been so treated.
2 The history of the proceedings
8. On 14 March 1999, Judge Rodrigues
(a) pursuant to Article 19 of the Tribunals Statute and Rule 47 of the Rules, 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;10
(b) pursuant to Rules 47 and 55, signed
(i) warrants directed to the national authorities of Bosnia and Herzegovina and to the entity known as "Republika Srpska", directing them to search for and arrest the Accused and to surrender him to the Tribunal, and
(ii) a warrant to the Prosecutor, authorising her to do the same; and
(c) pursuant to Rule 53, made orders
(i) that the arrest warrants directed to the national authorities of Bosnia and Herzegovina and to the entity known as "Republika Srpska" were not to be transmitted to them until the Accused himself had been served with an arrest warrant,
(ii) authorising copies of the arrest warrant to be transmitted to the Prosecutor and to the International Stabilisation Force ("SFOR"), and
(iii) prohibiting the public disclosure (except to SFOR) of the indictment, supporting material and arrest warrant until the Accused had been served with an arrest warrant.
9. The arrest warrant was executed on 6 July, and the Accused was transferred to the seat of the Tribunal in accordance with Rule 57 on the same day. His initial appearance took place on 12 July. 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.
10. On 31 August, the Accused moved for the dismissal of the indictment, challenging the jurisdiction of the Tribunal pursuant to Rule 72 and arguing that:
(1) the confirmation procedure is jurisdictional, and there can be no jurisdiction if that procedure is not properly followed, and
(2) the Tribunal has jurisdiction to try him upon any one count in an indictment only when the supporting material supports the existence of that count.11
This motion was dismissed on 5 October. The Trial Chamber held that the jurisdiction of the Tribunal did not depend upon whether the supporting material provided by the Prosecutor to the confirming judge supported the charge,12 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.13 An interlocutory appeal against that decision was rejected on 16 November. The Appeals Chamber 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.14
11. The present application was filed on 30 November. In the meantime, on 2 September, the prosecution filed a joint indictment against this Accused and Momir Talic, charging them jointly with the crime against humanity already referred to. An amended indictment was lodged with the confirming judge on 19 November, and the prosecution awaits his decision as to whether the leave required should be granted.
3 The basis of the application
12. The Petition asserts that the Accused has been "illegally restrained" since, variously, 6 July15 and "at least since 21 October 1999" [...] and [...] presumably prior to 21 October 1999".16 The first date is the date upon which the Accused was arrested, and the second is the date when the prosecution stated that it intended to apply to the confirming judge for leave to amend the indictment.17
13. The Accused alleges that the stated intention of the prosecution to apply for leave to amend the indictment was both "an attempt to render Petitioners Motion to Dismiss the Indictment moot",18 and "in effect" a concession by the prosecution that it was "responsible for the illegal detention of the Petitioner since 21 October 1999".19 There is absolutely no foundation for either allegation.
14. The Accused goes on to allege that, on 21 October, he was "informed by the Prosecution that the charges contained in the current pending Indictment are not the charges against him and that he has not been informed since that date that there are any additional charges against him".20 This allegation is then used as the basis for the assertion that he has been denied his right to be informed promptly of the charge against him.21 The Accused is undoubtedly entitled to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.22 The failure to comply with that right might in some circumstances lead to the dismissal of an indictment.23
15. However, the assertion that the Accused has been denied such a right in the present case is wholly fanciful. There is absolutely no basis for his assertion that he was informed that the charges in the current indictment against him "are not the charges against him". The document by which the Accused was informed that the prosecution intended to apply to the confirming judge for leave to amend the indictment was in the following terms:
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 Momir Talic, 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.
In those circumstances, 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 12 July, six days after his arrest. There could be no basis for any allegation that the Accused has been denied his right to be informed promptly of the charge against him.24
16. The Accused is presently being held in custody pursuant to the order of this Trial Chamber, made pursuant to Rule 64 on 12 July, that he be detained in the United Nations Detention Unit in The Hague. That order was lawfully based upon the arrest of the Accused pursuant to the arrest warrant issued by Judge Rodrigues, which in turn was lawfully based upon the confirmation by that judge of the indictment against the Accused.25 There has been no suggestion that the circumstances in which the Accused was arrested are relevant to the lawfulness of his detention. The true purpose of the Petition appears to be, as the prosecution asserts, "yet another attempt to force the Trial Chamber to reconsider the evidence which was placed before the confirming judge".26 That this is so is demonstrated by the second order sought in the Petition:
That the Prosecutor be ordered to present to the Trial Chamber, in such hearing, the evidence in its possession, if any, which supports a prima facie case against the Petitioner.
Such material is manifestly irrelevant to any issue shown to have arisen in the present case concerning the lawfulness of the Accuseds detention.
17. For the reasons given, the Petition is dismissed.
Done in English and French, the English text being authoritative.
Dated this 8th day of December 1999,
At The Hague,
Judge David Hunt
(on behalf of the Trial Chamber, at the request of the Presiding Judge)
[Seal of the Tribunal]
Article 9(4) of the International Covenant on Civil and Political Rights provides:
"Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
Article 5(4) the European Convention for the Protection of Human Rights and Fundamental Freedoms 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."
Article 7(6) of the American Convention on Human Rights provides, inter alia:
"Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful."
See also Article 7(1)(a) of the African Charter on Human and Peoples Rights:
6. Rwanda Decision, par 88.
"Every individual shall have the right to have his cause heard. This comprises:
(a) the right to an appeal to competent national organs against acts violating his fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in force;[ ]."