The Prosecutor v. Janko Bobetko - Case No. IT-02-62-AR54 bis & IT-02-62-AR108 bis

"Decision on Challenge by Croatia to Decision and Orders of Confirming Judge"

29 November 2002
Judges Jorda [Presiding], Shahabuddeen, Hunt, Gunëy and Pocar)

Procedural Background

· On 17 September 2002, an indictment against Janko Bobetko was confirmed by Judge Liu. On 17 and 20 September 2002, the Judge issued warrants of arrest and ordered Croatia inter alia to find, arrest and surrender Bobetko to the International Tribunal.

· On 30 September 2002, the Republic of Croatia (hereinafter “Croatia”) filed an “Application of the Republic of Croatia to Submit an Interlocutory Appeal Against the Warrant of Arrest and Order for Surrender of 20 September 2002” (hereinafter “First Application”).

· On 4 October 2002, Croatia filed a “Request from the Republic of Croatia for a Review of the Judge’s Decision of 17 September Confirming the Indictment Against Janko Bobetko and the Order for his Arrest and Surrender of 20 September 2002” ( hereinafter “Second Application”).

· On 11 October 2002, the President issued an order assigning Judges to the Appeals Chamber and joining both applications.¹

The Decision

The Appeals Chamber rejected Croatia’s two applications.

The Reasoning

The following issues were raised by Croatia’s applications:

i. Do the Statute or the Rules provide for a right to appeal or to seek a review of a decision of a confirming Judge?

ii. If so, does Croatia have locus standi to make such an application?

iii. Prior to its issuing an arrest warrant, was the Prosecution under an obligation to interview the proposed accused person?

iv. Should the confirming Judge have requested the Prosecution to submit evidence which would demonstrate the necessity to arrest the accused?

v. Should the confirming Judge have adopted a procedure less constraining than the issuance of an arrest warrant if that other procedure could have served the same objective? In particular, if the accused satisfies the conditions for provisional release, must he still be arrested?

Do the Statute or the Rules provide for a right to appeal or to seek a review of a decision of a confirming Judge?
Does Croatia have locus standi to make such an application?

Croatia’s First Application was brought under Rules 54, 54 bis, 73(D) and 73(E) of the Rules of Procedure and Evidence. Rule 54 gives general procedural competence to a Judge or a Chamber to issue orders and warrants, but does not provide for any right of appeal. Rule 54 bis does not in any way apply to the present matter as it deals with “Orders directed to States for the Production of Documents ” (emphasis added by the Appeals Chamber) and cannot therefore give Croatia any right to appeal against the decision and orders of a confirming Judge pursuant to that rule. At the time of the application, Rules 73(D) and (E) were no longer in force.

The Second Application was brought under Rule 108 bis of the Rules.² This provision gives a State directly affected by an interlocutory decision of a Trial Chamber the right to file a request for review by the Appeals Chamber if that decision concerns issues of general importance relating to the powers of the Tribunal . The Appeals Chamber held that such an application in the present case failed for the following reasons:

- “First, the decision and orders challenged by Croatia’s application have been made by a confirming Judge, not by a Trial Chamber to which Rule 108 bis refers.

- Secondly, the confirmation of an indictment is not an interlocutory order for the purpose of that rule since, at the time when the confirmation takes place, the proceedings in which the indictment is to be filed have not yet commenced.³ It is only after the indictment has been confirmed that the proceedings against the accused have commenced, and only then can an interlocutory order be made by a Chamber or a Judge. The Tribunal will not entertain submissions made by an accused person or by counsel who seek to speak on behalf of the accused prior to his appearance before the Tribunal.⁴ Even if the Appeals Chamber were of the view that Rule 108 bis provided a State with a right to appeal against an order to arrest or to surrender a citizen of that State, it would not entertain an appeal against the warrant of arrest issued in any case before the accused has appeared before the Tribunal.

- Thirdly, and in any event, even if the Appeals Chamber had been satisfied that the warrant of arrest constituted an interlocutory order for the purposes of Rule 108 bis, the Appeals Chamber does not accept that Croatia has standing to make the present application. Rule 108 bis was adopted to permit States directly affected by an interlocutory decision to seek a review where it is claimed that an interlocutory decision of a Trial Chamber has impacted upon its legal rights, such as when a State is ordered to produce documents or records from its archives. This provision is not available where the State claims that its legitimate political interests have been affected, or where it has a genuine concern that the facts alleged in the indictment are not historically accurate.⁵ The time for the investigation into the truth of the facts alleged in an indictment does not arise until the trial.”

The Appeals Chamber referred to Article 29 of the Tribunal’s Statute⁶ which provides that all States shall cooperate with the Tribunal and comply without undue delay with any request for assistance or order issued by this Tribunal. It particularly noted the importance of Article 29(2)(d) which provides that this general obligation includes a duty to comply with any such request or order relating to “the arrest or detention of persons”. Accordingly, it declared that “Croatia’s role in complying with such a request or order is the purely ministerial one of executing the warrants and carrying out such arrest and detention as ordered by the Tribunal ” and more generally that “[a] State which is ordered to arrest or detain an individual pursuant to Article 29(2)(d) has no standing to challenge the merits of that order .”⁷

Prior to issuing an arrest warrant, was the Prosecution under an obligation to interview the proposed accused person?

The Appeals Chamber held that “Croatia’s submission that the Prosecution must interview or offer to interview every proposed accused person before seeking a confirmation of an indictment has no merit.”⁸ In its view “[t]he Prosecution may interview a proposed accused person before seeking confirmation of an indictment against him if he is willing to be interviewed and if it wishes to do so, as it has done at times in the past, but it has no obligation to do so in every case.”⁹

Should the confirming Judge have requested the Prosecution to submit evidence which would demonstrate the necessity to arrest the accused?

The Appeals Chamber ruled that “[t]here is no requirement obliging the Prosecution to submit evidence demonstrating a necessity to arrest a proposed accused before the Judge may confirm the indictment, or which obliges the Judge to adopt a procedure less constraining than an arrest warrant if another procedure could serve the same objective.”¹⁰ The Appeals Chamber pointed out that “[t]here is nothing to prevent the Prosecution and the accused from reaching an agreement whereby he is able to make his initial appearance before the Tribunal whilst still at liberty”¹¹ and made clear that “unless such an agreement is reached, and the Trial Chamber approves, the usual procedure remains one of arrest and detention until any issue of provisional release is resolved”.¹²

Should the confirming Judge have adopted a procedure less constraining than the issuance of an arrest warrant if that other procedure could have served the same objective? In particular, if the accused satisfies the conditions for provisional release, does he nevertheless still need to be arrested?

Croatia submitted that because Bobetko satisfies all the requirements for provisional release, he need not be arrested since he would at once be granted provisional release . The Appeals Chamber declared that it “cannot pronounce on matters concerning provisional release in the case in concreto before an appeal is brought by the Accused to the Appeals Chamber from a Trial Chamber decision on an application for provisional release” and that “[t]herefore, arguments based on considerations which are relevant to an appeal for provisional release are premature so far as the Appeals Chamber is concerned”.¹³

The Appeals Chamber pointed out that an accused person who has appeared before the Tribunal is not without remedy in relation to the issuance of the indictment against him if he is able to demonstrate that its issuance constitutes an abuse of the Tribunalprocess .¹⁴ In the present case it noted that nothing alleged in Croatia’s applications demonstrates that such an abuse of the process had occurred.

Declaration of President Jorda and Judge Shahabuddeen

Judge Jorda and Judge Shahabuddeen declared that “the fact that the Appeals Chamber disposes of an appeal on one ground makes it unnecessary, but not impermissible under the law of the Tribunal, to deal with an additional ground raised by the appellant ” and that “[i]f the Appeals Chamber decides to deal with an additional ground, that does not oblige it to deal with all other additional grounds”.

In the present case, they declared that “[t]he circumstances that the Appeals Chamber has dealt with the additional argument about the necessity for an interview did not oblige it to deal with the additional argument about provisional release”, which discretion it has “correctly exercised”.

Separate Opinion of Judge David Hunt and Judge Fausto Pocar on Challenge by Croatia to Decision and Orders of Confirming Judge¹⁵

Judge Hunt and Judge Pocar declared that the Appeals Chamber should have dealt with “what is clearly regarded by Croatia as one of the most important bases for [its ] applications”, namely “that a warrant of arrest is inappropriate in this case because, as the accused Janko Bobetko satisfies all the requirements for provisional release, he need not be arrested because he would at once be granted provisional release”. In their view that claim was “without foundation”.

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1. Order of the President Assigning Judges to the Appeals Chamber, 11 October 2002. The Prosecution filed its responses to these two applications, respectively, on 10 October and 21 October 2002, while Croatia’s replies were filed respectively on 21 October and 29 October 2002.
2. Rule 108 bis (State Request for Review)
(A) A State directly affected by an interlocutory decision of a Trial Chamber may, within fifteen days from the date of the decision, file a request for review of the decision by the Appeals Chamber if that decision concerns issues of general importance relating to the powers of the Tribunal.
(B) The party upon whose motion the Trial Chamber issued the impugned decision shall be heard by the Appeals Chamber. The other party may be heard if the Appeals Chamber considers that the interests of justice so require.
(C) The Appeals Chamber may at any stage suspend the execution of the impugned decision.
(D) Rule 116 bis shall apply mutatis mutandis.
3. The ICTR Appeals Chamber has held that there is no appeal from a decision to confirm an indictment (Bagosora et al, ICTR-98-41, Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge Dismissing an Indictment Against Théoneste Bagosora and 28 Others, 8 June 1998). See also Kovacevic, IT-97-24, Decision on Defence Motion to Strike Confirmed Amended Indictment, 3 July 1998.
4. See, inter alia, Karadzic & Mladic, IT-95-5/18, Decision Rejecting the Request Submitted by Mr Medvene and Mr Hanley III Defence Counsels for Radovan Karadzic, 5 July 1996.
5. Second Application, para. 8.
6. Article 29 (Co-operation and judicial assistance)
1. States shall co-operate with the International Tribunal in the investigation and Prosecution of persons accused of committing serious violations of international humanitarian law.
2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to:
(a) the identification and location of persons;
(b) the taking of testimony and the production of evidence;
(c) the service of documents;
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal.
7. Para. 12.
8. Para. 13.
9. Ibid.
10. Ibid.
11. One accused, Biljana Plavsic, was recently permitted by a Trial Chamber to enter a plea by video-link rather than to return to detention in order to do so.
12. Para. 13.
13. Para. 14.
14. Para. 15. On the issue of abuse of process see Tadic, IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, par 13, Judicial Supplement No. 11.
15. Bobetko, IT-02-62-AR54bis & IT-02-62-AR108 bis, Separate Opinion of Judge David Hunt and Judge Fausto Pocar on Challenge by Croatia to Decision and Orders of Confirming Judge, 29 November 2002.