"Decision on Motion for Release"

10 December 1999
Trial Chamber II (Pre-trial Judge, Judge Hunt)

The Issue

The accused applied by motion for a ruling on the unlawfulness of his detention and for an order that he be immediately released1. He claimed that he had not been informed promptly of the charge against him and that, additionally, the supporting material provided to the confirming Judge did not show that a prima facie case existed against him. The accused concluded that his detention was therefore illegal.

The Decision

The Pre-trial Judge declared that the detention of the accused was lawful and that he had no right to have the decisions of the confirming Judge reviewed. The Pre-trial Judge rejected the accused's assertions that he had not been informed promptly of the charge against him. He added that the Trial Chamber or a Pre-trial Judge could not review the adequacy of the supporting material produced before the confirming Judge to decide upon the legality of the detention of the accused.

The Reasoning

The accused claimed that, after more than three months of detention2, he still did not know exactly what he was charged with. He relied upon Article 21(4)(a) of the Tribunal's 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 him3.

The Pre-trial Judge rejected the claim, pointing out that Talic had pleaded to an indictment within six days of his arrest and thus knew of the charge against him. Although the Prosecution had stated an intention to seek leave to amend the indictment4, the charge to which the accused had pleaded remains the charge against him until leave to amend is granted5.

The accused had earlier moved to dismiss the indictment on the ground that the confirming Judge had erred in being satisfied that the material provided to him by the Prosecution demonstrated a prima facie case against him6. A decision on this motion had been deferred until the result of the application to amend was known. The accused claimed that, by recognising that the indictment "had" to be amended, the Prosecution had also implicitly recognised the validity of his argument upon the original motion and, by failing to file a motion for leave to amend, had reaffirmed the accuracy of that argument7.

The Pre-Trial Judge rejected these claims as well and pointed out that (a) the Prosecution had made it clear that the amendments sought were to add charges (b) as an application for leave to amend is made ex parte to the confirming Judge8, nothing is disclosed until leave to amend is granted9 and finally (c) the application had in fact already been made to the confirming Judge.

The accused also sought to enforce another right which, it was submitted, arose out of Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which permits a detainee to take proceedings to challenge the lawfulness of his detention10. The accused relied on a statement of the European Court of Human Rights in Brogan v United Kingdom11 according to which, in such proceedings and pursuant to Article 5(4), the court should examine not only the compliance with the procedural requirements but also "the reasonableness of the suspicion grounding the arrest"12. It was submitted that the Pre-trial Judge was therefore required to determine and to assess the supporting material provided by the Prosecution to the confirming Judge.

The Pre-Trial Judge rejected this argument, pointing out that the European Court of Human Rights had stated that the scope of the review is not uniform, that it depends on the context of the particular case and, where appropriate, also on the terms of the relevant statute under which the power of detention is exercised. The statute under consideration in the Brogan case 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 arrested13.

As stated by the Pre-trial judge, "[t]hose 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"14.

The arrest of the Talic was not effected merely upon a reasonable suspicion 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 Prosecutor15. There had thus 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 had been no suggestion that the circumstances in which the accused was arrested are relevant to the lawfulness of his detention.

In those circumstances, the Pre-trial Judge held that the Brogan decision did not call for any further examination by the Tribunal of the reasonableness of the decision to arrest and detain the accused. The Pre-trial Judge also drew attention to the Trial Chamber's earlier decision in Brdjanin16 in which it stated that it has no power to review the actual decision of the confirming Judge by way of appeal or in any other way.

It was held that the detention of the accused is lawful17, and that he had no right to have the decision of the confirming Judge reviewed. The Motion for Release was refused.

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1. Motion, 1 December 1999.
2. He was arrested on 25 August 1999.
3. On the right to be informed promptly of the charge, see particularly The Prosecutor v. Barayagwiza, Decision, 2 November 1999, summarised in Judicial Supplement No. 9 (November issue).
4. Decision, page 3, para. 2(6): In its response to the Accused's Motion to Dismiss, filed on 21 October 1999, the Prosecution stated: "[…] 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."
5. See The Prosecutor v. Brdjanin, summarised in this issue (writ of habeas corpus).
6. Motion to Dismiss, 14 October 1999.
7. Paras. 6-7.
8. Rule 50 was amended at the 21st Plenary Session (15-17 November 1999). The amendments entered into force on 7 December 1999 (IT/161, 30 November 1999) but were not taken into account for the purpose of the present Decision (see footnote 9 of the Decision).
9. The Prosecutor v. Krnojelac, Case IT-97-25-PT, 20 May 1999, para. 11.
10. Article 5(4): "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"
11. 1988, 11 EHRR 117; ECHR Judgement of 29 November 1998, Series A, no. 145-B.
12. Ibid. at para. 65.
13. Paras. 13-15 of the Decision.
14. Para. 16.
15. Article 19 of the Tribunal's Statute.
16. The Prosecutor v. Brdjanin, Case IT-99-36-PT, Decision on Motion to Dismiss Indictment, 5 October 1999. This Decision is summarised in Judicial Supplement No. 8.
17. On the issue of the legality of detention, see particularly The Prosecutor v. Brdjanin, Decision on Petition for a writ of habeas corpus, 8 December 1999, summarised in this issue of the Judicial Supplement and The Prosecutor v. Barayagwiza, Decision, 2 November 1999, summarised in Judicial Supplement No. 9.

"Decision on Motion to Translate Procedural Documents into French"

16 December 1999
Trial Chamber II (Pre-trial Judge, Judge Hunt)

On 29 October 1999, Pre-trial Judge Hunt varied the time limit set by the Order for Filing Motions in this case by ordering that the time limit for the Prosecutor's response to motions filed by the accused in French shall not begin to run until the Prosecutor has received a translation of that document into the English language1. Following this Order, a Motion to Translate Procedural Documents into French was filed by the Defence2 which sought orders that the accused need not respond to any document filed in the English language until a French translation has been received and that the time limit for filing documents by the accused should not begin to run until the receipt of a French translation of the Prosecution's documents.

In accordance with the principle of equal treatment enshrined in Article 21(1) of the Statute and in view of a spirit of internationality3 , the Pre-trial Judge modified the Order of 31 August 19994 so that "unless specifically ordered otherwise, the receiving party has fourteen calendar days from the receipt by that party of a translation of the motion into the working language in which that party has been filing its documents in these proceedings in which to file its response, if any"5. However, he made clear that the right to be treated equally does not entitle parties to receive something only one of them needs.

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1. The Prosecutor v. Talic, Motion toTranslate Procedural Documents into French, 29 October 1999. See also The Prosecutor v. Delalic et al., Decision on Defence Application for Forwarding the Documents in the language of the Accused, 25 September 1996, para. 11and The Prosecutor v. Talic, Further Order for Filing Motion, 26 October 1999, summarised in Judicial Supplement No. 8.
2. 29 October 1999.
3. Para. 3.
4. The Prosecutor v. Talic, Order for Filing of Motions, 31 August 1999.
5. Para. 5.