Trial Chambers

The Prosecutor v. Radoslav Brdjanin and Momir Talic - Case No. IT-99-36-PT

"Decision on Motions by Momir Talic (1) To Dismiss the Indictment, (2) For Release, and (3) For Leave to Reply to Response of Prosecution to Motion for Release"

1 February 2000
Trial Chamber, Pre-Trial Judge Hunt

Article 19(2) of the Statute and Rules 65(A), 72, 73(A) of the Rules of Procedure and Evidence - whether an order for detention is required after the transfer of the accused to the seat of the Tribunal; basis upon which leave will be granted to the moving party to reply to the response to the motion.

1) No order for detention of an accused is required following his lawful arrest and transfer to the seat of the Tribunal for that detention to be lawful. The detention remains lawful, with or without a formal order for detention, by virtue of the Rules until an order for the release of the accused is made by a Trial Chamber.
2) A reply is permitted only to allow the applicant to answer issues raised by the respondent to the motion which go beyond those raised by the motion itself, not merely to repeat or elaborate on the submissions in the original motion. The motion for leave should set out the matters sought to be raised.

The Issue

On 25 August 1999, the accused Momir Talic was arrested and transferred to the seat of the Tribunal. After his initial appearance, an order was made for his detention by the Trial Chamber. Following leave to amend granted by the confirming Judge, an amended indictment was filed and the accused pleaded to it. No further order for detention was made.

The accused sought his release on the basis that he is at present unlawfully detained, arguing that:

(1) prior to the amendment of the indictment, he was being detained pursuant to the Trial Chamber’s order made following his initial appearance;
(2) that order, however, was "grounded" on the original indictment; and
(3) following the filing of the amended indictment, and in the absence of any fresh order for detention, the earlier order for detention had been "deprived of any judicial value along with [the original] indictment".

The accused relied upon Article 9(1) of the International Covenant on Civil and Political Rights, which provides: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except upon such grounds and in accordance with such procedures as are established by law".

According to the Defence, the amended Indictment remained the only legal basis for the proceedings against the accused, and did not provide any basis for his continued detention.

The Decision

The Motion was dismissed by the Pre-trial Judge, Judge Hunt, who described it as "misconceived".

The Reasoning

The Pre-trial Judge pointed out that the Tribunal’s "procedures [...] established by law" are that the Judge who confirms an indictment may issue a warrant for the arrest of the accused1. Service of the indictment is to be effected personally on the accused at the time he is taken into custody2, which occurs when he is arrested pursuant to the warrant. The accused is then transferred to the Tribunal3. Upon transfer of the accused to the seat of the Tribunal, he "shall be detained"4, and once detained, may not be released except upon an order of a Trial Chamber5.

According to these procedures, the only action by the Tribunal which is necessary to justify the detention of the accused are the review and confirmation of the indictment and the issue of an arrest warrant. Thereafter, the train of events which has been identified from the Rules is put in motion and, once the accused is arrested, he remains in custody and then detention until released by an order of a Trial Chamber, pursuant to Rule 65(A)6. Accordingly, the order for detention made by the Trial Chamber following the initial appearance was "otiose" and was made "purely for administrative purposes, so that there is a formal document which accompanies the accused back to the United Nations Detention Unit"7.

The accused nevertheless argued that Rule 65(A) applied only to persons detained lawfully "on the basis of a lawful court Decision". It was not suggested that the order for detention made following the initial appearance was not lawful. The Pre-trial Judge held that that order remained effective, notwithstanding the subsequent filing of an amended Indictment. The Rules nevertheless make it clear that no order for detention of an accused is required following his lawful arrest and transfer to the seat of the Tribunal for that detention to be lawful. The detention remains lawful, with or without a formal order for detention, by virtue of the Rules until an order for the release of the accused is made by a Trial Chamber.

The Motion by the accused made no reference to Rule 65(A), which was raised by the Prosecution in its response to the Motion. The accused sought leave to reply to that Response. The Pre-Trial Judge held that a reply is permitted only to allow the moving party to answer issues raised by the respondent to the motion which go beyond the issues raised by the motion itself8. As required, the motion for leave to reply set out the matters sought to be raised. Of the two matters identified, the Judge said that only one was even arguably a matter in reply, and that concerned the effect of Rule 65(A)9. The accused should have referred to that rule in his Motion. As co-counsel for the accused appeared to be unfamiliar with the procedures of the Tribunal, the Pre-trial Judge decided that some leniency should be accorded to him on that point by granting leave to reply in relation to Rule 65(A).

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1. 1 Article 19(2) of the Statute; see also Sub-rule 47(H)(i) of the Rules of Procedure and Evidence.
2. Sub-rule 53bis (A).
3. Sub-rules 55(A), 57 and 59bis (A).
4. Rule 64.
5. Rule 65(A).
6. Para. 21.
7. Para. 21.
8. The Prosecutor v Brdjanin, Further Decision on Petition for a Writ of Habeas Corpus on Behalf of Radoslav Brdjanin, 9 December 1999, p 2.
9. The other matter identified in the motion for leave sought only to elaborate the submissions in the original motion.