"Decisions on the Defence Motions for Provisional Release"

21 December 2001
Judge Alphons Orie, Duty Judge

Procedural Background

On 14 and 18 December 2001, Defence counsel for Miodrag Jokic and Rahim Ademi filed Motions for Provisional Release.

Because the court recess started on 18 December 2001, the two Motions were presented to duty Judge Orie, pursuant to Rule 28 of the Rules of Procedure and Evidence1.

The Decisions

Judge Orie ordered that the Motions and all related filings or relevant documents be remitted to the Trial Chambers seized of the cases so that they might decide in due course on the merits of the Motions.

The Reasoning

Judge Orie considered that although in the "reference to Rule 40 bis2, Rule 28(E) only refers to decisions on provisional detention to be taken during the investigative stage of the proceedings in respect of a suspect", this should not "be interpreted as an exclusion of power of the duty Judge in relation to decisions on detention to be taken in the later stage of the proceedings in respect of an accused".

Judge Orie held that Rule 28(B), (D) and (E) makes clear that "the duty Judge should refrain from interfering in a case already assigned to a Trial Chamber unless that matter is urgent". He added that the decision as to the urgency of the application requires him "to decide on the application concerned is an issue left to the discretion of the Judge, who will take into consideration all relevant circumstances".

Judge Orie considered that it was "not unreasonable to find that there was "urgency in any motion for provisional release" and that it was "incumbent on the duty Judge to establish whether the degree of urgency [wa]s such that it would require him to render a decision on the merits of the application".

In this case, Judge Orie stated that the Motions had been "filed right before the judicial recess", that no specific reason had been set forth as to why 1) the applications had not been "filed at an earlier stage and 2) there would be specific reasons militating in favour of an urgent situation".

The duty Judge found that, as a rule, a Trial Chamber should examine a motion for provisional release carefully. Judge Orie considered however that special circumstances may create a degree of urgency justifying "the decision to be taken by a duty Judge, inter alia circumstances beyond the control of the accused, such as necessary medical treatment outside the control of the Detention Unit, or unforeseen events or changes within the family of the accused, which would call for the prompt release of the accused".

Judge Orie found no circumstance in the applications "nor any other circumstance that show a degree or urgency which would require" that he exercised his "powers as a duty Judge to decide on the merits" of the Motions.

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1. "(A) On receipt of an indictment for review from the Prosecutor, the Registrar shall consult with the President who shall designate one of the permanent Trial Chamber Judges for the review.
(B) The President, in consultation with the Judges, shall maintain a roster designating one permanent Judge as duty Judge for the assigned period of seven days. The duty Judge shall be available at all times, including out of normal Registry hours, for dealing with applications pursuant to paragraphs (C) and (D) but may refuse to deal with any application out of normal Registry hours if not satisfied as to its urgency. The roster of duty Judges shall be published by the Registrar.
(C) All applications in a case not otherwise assigned to a Chamber, other than the review of indictments, shall be transmitted to the duty Judge. Where accused are jointly indicted, a submission relating only to an accused who is not in the custody of the Tribunal shall be transmitted to the duty Judge, notwithstanding that the case has already been assigned to a Chamber in respect of some or all of the co-accused of that accused. The duty Judge shall act pursuant to Rule 54 in dealing with applications under this Rule.
(D) The duty Judge may, in his or her discretion, if satisfied as to the urgency of the matter, deal with an application in a case already assigned to a Chamber out of normal Registry hours as an emergency application. In such case, the Registry shall also serve copies of the application and of any order or decision issued by the duty Judge in connection therewith on the Chamber to which the matter is assigned.
(E) During periods of court recess, regardless of the Chamber to which he or she is assigned, the duty Judge may:

(i) take decisions on provisional detention pursuant to Rule 40 bis;
(ii) conduct the initial appearance of an accused pursuant to Rule 62. The Registry shall serve a copy of all orders or decisions issued by the duty Judge in connection therewith on the Chamber to which the matter is assigned."

2. "(A) In the conduct of an investigation, the Prosecutor may transmit to the Registrar, for an order by a Judge assigned pursuant to Rule 28, a request for the transfer to and provisional detention of a suspect in the premises of the detention unit of the Tribunal. This request shall indicate the grounds upon which the request is made and, unless the Prosecutor wishes only to question the suspect, shall include a provisional charge and a summary of the material upon which the Prosecutor relies.
(B) The Judge shall order the transfer and provisional detention of the suspect if the following conditions are met:

(i) the Prosecutor has requested a State to arrest the suspect provisionally, in accordance with Rule 40, or the suspect is otherwise detained by State authorities;
(ii) after hearing the Prosecutor, the Judge considers that there is a reliable and consistent body of material which tends to show that the suspect may have committed a crime over which the Tribunal has jurisdiction; and
(iii) the Judge considers provisional detention to be a necessary measure to prevent the escape of the suspect, injury to or intimidation of a victim or witness or the destruction of evidence, or to be otherwise necessary for the conduct of the investigation.

(C) The order for the transfer and provisional detention of the suspect shall be signed by the Judge and bear the seal of the Tribunal. The order shall set forth the basis of the application made by the Prosecutor under paragraph (A), including the provisional charge, and shall state the Judge's grounds for making the order, having regard to paragraph (B). The order shall also specify the initial time-limit for the provisional detention of the suspect, and be accompanied by a statement of the rights of a suspect, as specified in this Rule and in Rules 42 and 43.
(D) The provisional detention of a suspect shall be ordered for a period not exceeding thirty days from the date of the transfer of the suspect to the seat of the Tribunal. At the end of that period, at the Prosecutor's request, the Judge who made the order, or another permanent Judge of the same Trial Chamber, may decide, subsequent to an inter partes hearing of the Prosecutor and the suspect assisted by counsel, to extend the detention for a period not exceeding thirty days, if warranted by the needs of the investigation. At the end of that extension, at the Prosecutor's request, the Judge who made the order, or another permanent Judge of the same Trial Chamber, may decide, subsequent to an inter partes hearing of the Prosecutor and the suspect assisted by counsel, to extend the detention for a further period not exceeding thirty days, if warranted by special circumstances. The total period of detention shall in no case exceed ninety days, at the end of which, in the event the indictment has not been confirmed and an arrest warrant signed, the suspect shall be released or, if appropriate, be delivered to the authorities of the requested State.
(E) The provisions in Rules 55(B) to 59 bis shall apply mutatis mutandis to the execution of the transfer order and the provisional detention order relative to a suspect.
(F) After being transferred to the seat of the Tribunal, the suspect, assisted by counsel, shall be brought, without delay, before the Judge who made the order, or another permanent Judge of the same Trial Chamber, who shall ensure that the rights of the suspect are respected.
(G) During detention, the Prosecutor and the suspect or the suspect's counsel may submit to the Trial Chamber of which the Judge who made the order is a member, all applications relative to the propriety of provisional detention or to the suspect's release.
(H) Without prejudice to paragraph (D), the Rules relating to the detention on remand of accused persons shall apply mutatis mutandis to the provisional detention of persons under this Rule."