"Decision on Petition for a Writ of Habeas Corpus on Behalf of Radoslav Brdjanin1"

8 December 1999
Trial Chamber II (Judges Cassese [Presiding], Mumba and Hunt)

The Issue

On 30 November 1999, the accused filed a document entitled "Petition for a writ of habeas corpus on Behalf of Radoslav Brdjanin", 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 Petitioner3.

The accused submitted that the recent decision of the Appeals Chamber of the Rwanda Tribunal, The Prosecutor v. Jean-Bosco Barayagwiza4, held that habeas corpus was a proper and available remedy by which a person may challenge the lawfulness of his detention5.

The Decision

Ruling that it does not have power to issue a writ of habeas corpus and that, in any case6, the accused's detention was perfectly lawful, the Trial Chamber dismissed the Petition.

The Reasoning

Pointing out that the Barayagwiza Appeals Chamber had said no more than that the Statute and Rules recognise the notion that a detainee must be given the opportunity to have recourse to a court to challenge the lawfulness of his detention, which is the fundamental issue raised by a writ of habeas corpus, the Trial Chamber rejected the accused's submission7.

The Trial Chamber further declared that the Tribunal has no power to issue a prerogative writ of habeas corpus but that it has both the power and the procedure to resolve a challenge to the lawfulness of a detainee's detention8. The application should be made by way of motion pursuant to Rule 72 of the Rules of Procedure and Evidence if it amounts to a challenge to jurisdiction or pursuant to Rule 73 if it does not9. The Trial Chamber proceeded to treat the accused's petition as a motion pursuant to Rule 7310.

The accused alleged that he had been informed by the Prosecution on 21 October that the charges contained in the current indictment were not the charges against him and that he had not been informed since that time of any additional charges against him. This allegation was then used as the basis for the assertion that he had been denied his right under Article 21(4)(a) of the Tribunal's Statute to be informed promptly of the charges against him11.

The Trial Chamber regarded the accused's allegation as wholly fanciful. According to the Trial Chamber, all that the Prosecution had said was that it was seeking leave from the confirming Judge to amend the indictment12. It had been made clear that leave was requested in order to add charges to the existing one. The Trial Chamber said that, until any amendment is made to it, the charge in the indictment remained the same as that to which the accused had pleaded at his initial appearance 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.

The accused was being held in custody on an order of the Trial Chamber pursuant to Rule 64. This followed his arrest which was based on the arrest warrant issued by the confirming Judge which, in turn, was based on his confirmation of the indictment. The Trial Chamber concluded that the accused's detention was therefore lawful13.

__________________________________
1. See also, The Prosecutor v. Brdjanin, Further Decision on Petition for a writ of habeas corpus on Behalf of Radoslav Brdjanin, 9 December 1999.
2. On leave to amend indictment, see The Prosecutor v. Talic, Decision Deferring Decision on Motion for Separate Trials, 4 November 1999, paras. 6-8, summarised in Judicial Supplement No. 9 (November 1999). More generally, on the issue of amendment to indictment (Rule 50 of the Rules of Procedure and Evidence), see The Prosecutor v. Kovacevic, Decision stating reasons for Appeals Chamber's Order of 29 May 1998, 2 July 1998.
3. Para. 1 of the Decision.
4. The Prosecutor v. Jean-Bosco Barayagwiza, Decision, 3 November 1999, ICTR-97-19-AR72. This Decision was summarised in Judicial Supplement No. 9 (November 1999).
5. In this Decision (para. 88), the Appeals Chamber referred to the definition of a writ of habeas corpus given by the Inter-American Court of Human Rights: "[A] judicial remedy designed to protect personal freedom or physical integrity against arbitrary decisions by means of a judicial decree ordering the appropriate authorities to bring the detained person before a Judge so that the lawfulness of the detention may be determined and, if appropriate, the release of the detainee be ordered." (Habeas Corpus in Emergency Situations (Arts. 27(2) 25(1) and 7(6) of the American Convention on Human Rights, Advisory Opinion OC-8/87, 30 January 1987, Inter-Am. CT.H.R. (Ser. A) No. 8 (1987) at para. 33.)
6. That is, should the Petition be regarded as a motion pursuant to Rule 73.
7. The Prosecutor v. Barayagwiza, para. 88.
8. Paras. 4-5.
9. Para. 6.
10. The Trial Chamber treated the Petition as a wrongly entitled motion by the accused seeking to challenge the lawfulness of his detention (Paragraph 7 of the Decision). The same course was followed by Trial Chamber III in The Prosecutor v. Simic et al., Case IT-95-9-PT, 23-24 November 1999 (Transcript, pp 487-488, 535-536).
11. Para. 14. On Article 21(4)(a), see The Prosecutor v. Delalic et al., Decision on Defence Application for Forwarding the Documents in the Language of the Accused (Delalic), 25 September 1996 and The Prosecutor v. Talic, Decision on Motion for Release, 10 December, summarised in this issue of the Judicial Supplement.
12. Paragraph 15: "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."
13. Para. 16.