"Decision"

2 November 1999
Judges McDonald [Presiding], Shahabuddeen, Vohrah, Wang and Nieto-Navia

The Issue

The issue at hand is assessing the extent of the repeated violations of the basic rights of the accused and addressing the consequences and remedies of such violations.

The Decision

In light of the numerous violations of the Appellant’s rights, the Appeals Chamber decided to dismiss the charges and to release him.

The Reasoning

In order to establish the extent to which the rights of the accused were violated and the Tribunal’s dereliction in that regard, it is important to define the periods of time during which Cameroon was clearly holding the Appellant at the behest of the Tribunal2. According to the Appeals Chamber, there are two such relevant time periods:

- 29 days running from 17 April 1996 until 16 May 19963; 17 April 1996: Prosecutor’s request for provisional detention under Rule 40; 6 May 1996, Prosecutor’s request for extension of detention (for three additional weeks); 16 May 1996, Prosecutor informed Cameroon that she would not pursue a case against the Appellant (‘at that stage’). This is nine days longer than allowed under Rule 40.

- 260 days running from 4 March 1997 (Rule 40bis Order filed) until 19 November 1997 (transfer to ICTY)4.

The Appeals Chamber considered the rights of the Appellant as they appear successively following an arrest. Chronologically, the first guarantee following an arrest is the right to be charged promptly. With regard to this issue, Rule 40 and Rule 41bis5, should be read together restrictively6. Concerning the period between 17 April 1996 and 16 May 19967, the Appeals Chamber found that the Appellant was detained at the request of the Prosecutor. This 29-day detention violates the 20-day limitation in Rule 408.

The Appeals Chamber also found that Cameroon was holding the appellant in constructive custody for the Tribunal by virtue of the Tribunal’s lawful process or authority9. The Appeals Chamber declared that the length of time he spent in detention in Cameroon at the behest of the Tribunal without being indicted violated the 90-day rule as set forth by Rule 40bis and established human rights jurisprudence10.

Subsequently, an accused is entitled to a prompt initial appearance before a Judge in order to be formally charged and to ensure that he understands the indictment11. In the present case, the Appellant was transferred to the Tribunal on 19 November 1997; his initial appearance took place only on 23 February 1998, some 96 days after his transfer. Rule 62 provides that an accused shall be brought before the assigned Trial Chamber and formally charged without delay upon his transfer to the Tribunal. Based on the plain meaning of the phrase without delay, the Appeals Chamber found a 96-day delay between the transfer of the Appellant to the Tribunal’s detention unit and his initial appearance to be a violation of his fundamental rights as expressed by Articles 19 and 20, Rule 62 and internationally-recognised human rights standards12.

The Appeals Chamber reached the conclusion that ‘to proceed with the trial of the Appellant would amount to an act of injustice […] forcing him to undergo a lengthy and costly trial, only to have him raise, once again the very issues currently pending before this Chamber. Moreover, in the event the Appellant was to be acquitted after trial we can foresee no effective remedy for the violation of his rights. Therefore, on the basis of these findings, the Appeals Chamber will decline to exercise jurisdiction over the Appellant, on the basis of the abuse of process doctrine […]’13. It then proceeded with considerations on the abuse of process doctrine14, and considered whether it would offend the Tribunal’s sense of justice to proceed to the trial of the accused.

With regard to the Appellant’s right to be informed promptly of the charges during his first period of detention, the Appeals Chamber concluded that 11 months had elapsed before the Appellant was informed of the general nature of the charges against him15 and that it is irrelevant which entity or entities were responsible for the alleged violations of the appellant’s rights16. Rule 40bis requires the detaining State to inform promptly the suspect of the charges under which he is arrested and detained, but it does not provide any specific time frame for doing so. After considering the standards of various international instruments17, the Appeals Chamber came to the conclusion that the Appellant’s right to be promptly informed of the charges against him had been violated.

The next issue concerns the failure of the Trial Chamber to resolve the Appellant’s writ of habeas corpus filed on 29 September 1997. The Appeals Chamber confirmed that, although the Rules do not specifically address writs of habeas corpus as such18, the notion that a detained individual shall have recourse to an independent judicial officer for review of the detaining’s authority acts is well-established by the Statute and Rules19. This right allows the detainee to have the legality of the detention reviewed by the judiciary. The Appeals Chamber found that the writ was rendered moot by its Decision but that the failure to provide the Appellant with a hearing on this writ violated his right to challenge the legality of his continued detention in Cameroon during the two periods when he was held at the behest of the Tribunal. The Appeals Chamber added that the issuance of the indictment did not nullify that violation.

As a consequence, the Appeals Chamber considered that the Prosecutor had failed in her duty of due diligence. As a matter of principle, Article 19(1) of the Statute provides that the Trial Chambers shall ensure that accused persons appearing before the Tribunal are guaranteed a fair and expeditious trial. However, the Prosecutor is not exempt from obligations either. In fact, the Appeals Chamber held the view that ‘[b]ecause the Prosecutor has the authority to commence the entire legal process, through investigation and submission of an indictment for confirmation, the Prosecutor has been likened to the "engine" driving the work of the Tribunal.’20 Consequently, once the Prosecutor has set this process in motion, ‘she is under a duty to ensure that, within the scope of her authority, the case proceeds to trial in a way that respects the rights of the accused.’21 In the present instance, the Appeals Chamber found that by her passivity the Prosecutor failed in her duty to prosecute this case diligently22.

In summary, the Appeals Chamber came to the conclusion that from 4 March 1997 until his transfer to the Tribunal’s detention unit on 19 November 1997 the accused was in the constructive custody of the Tribunal and that the period of provisional detention was impermissibly lengthy. As a consequence, it found that his right to be charged promptly pursuant to Rule 40bis and his right to a prompt initial appearance before the Tribunal had both been violated.

In addition, the Appeals Chamber found that the facts of the case justified recourse to the abuse of process doctrine. This led the Appeals Chamber to conclude that the right of the Appellant to be informed promptly of the charges against him, his right to see his writ of habeas corpus resolved in a timely manner and the Prosecutor’s duty to prosecute the case diligently had all been breached.

The Appeals Chamber found the abuse so egregious and the violations so numerous that it concluded that releasing the Appellant and dismissing the charges against him was the only possible remedy23. The Appeals Chamber further found that the dismissal and release had to be with prejudice to the Prosecutor24. It concluded that ‘as troubling as this disposition may be to some, the Appeals Chamber believes that to proceed with the Appellant’s trial when such violations have been committed, would cause irreparable damage to the integrity of the judicial process. Moreover, we find that it is the only effective remedy for the cumulative breaches of the accused’s rights. Finally, this disposition may very well deter the commission of such serious violations in the future.’25 The Appeals Chamber ordered the Appellant’s immediate release and directed the Registrar to make the necessary arrangements to deliver the Appellant to the authorities of Cameroon immediately26.

Declaration of Judge Nieto-Navia

Judge Nieto-Navia clarified his position with regard to the application of Rule 40bis27. He stated that, according to this Rule, Cameroon is under no legal obligation to accept the Appellant unless it intends to proceed with prosecution. Rule 40bis states that the Appellant should be released or 'if appropriate, be delivered to the authorities of the State to which the request was initially made.' Judge Nieto-Navia thus concluded that, under these circumstances, 'the Registrar should obtain the views of the Cameroonian authorities, and deliver the Appellant to them only if appropriate.'

Separate Opinion of Judge Shahabuddeen

Judge Shahabuddeen argued that the release of the Appellant and the dismissal of the indictment could be based only on the delay between the Appellant's transfer to the detention unit of the Tribunal and the time of his initial appearance to the exclusion of the pre-transfer delay28. Judge Shahabuddeen also opposed item 4 of the disposition according to which 'the Registrar [should] make the necessary arrangements for the delivery of the Appellant to the authorities of Cameroon', and argued that the appellant should instead be set at liberty and provided with reasonable facilities to leave Tanzania29.

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1. Pursuant to the definitions of 'accused ' and 'suspect ' set forth in Rule 2, the Appeals Chamber finds that the Appellant was a 'suspect' from the date of his arrest on 15 April 1996 until the indictment was confirmed on 23 October 1997. After 23 October 1997, the Appellant' s status changed and he became an 'accused' (see also Sub-rule 47(H)(ii) ); as stated by the Appeals Chamber, the nuance is important 'because the individual's rights, including the permissible length of pre-trial detention, vary based on whether the individual is a suspect or an accused.'
2. Paragraph 42: 'Unlike national systems, which have police forces to effectuate the arrest of suspects, the Tribunal lacks any such enforcement agency. Consequently, in the absence of the suspect's voluntary surrender, the Tribunal must rely on the international community for the arrest and provisional detention of suspects. The Statute and Rules of the Tribunal establish a system whereby States may provisionally detain suspects at the behest of the Tribunal pending transfer to the Tribunal's detention unit.'
3. Paragraph 43.
4. Paragraphs 44-45.
5. Paragraphs 46-53. Rule 40 permits the Prosecutor to request any State, in the event of urgency, to arrest a suspect and place him in custody. The Purpose of Rule 40bis is to restrict the length of time a suspect may be detained without being indicted.
6. Paragraphs 46-49.
7. That is between the Prosecutor's request under Rule 40 to detain the Appellant and the Prosecutor's declaration that she did not intend to pursue prosecution against the Appellant.
8. Paragraph 52.
9. The Prosecutor specifically requested Cameroon to detain and transfer the appellant. The Statute of the Tribunal obligated Cameroon to detain the appellant for the Prosecution and the Prosecution itself admitted that it had personal -and subject-matter- jurisdiction over the appellant after the Rule 41bis Order was issued (see para. 54). Paragraph 61: 'This finding does not mean […] that the Tribunal was responsible for each and every aspect of the appellant's detention, but only for the decision to place and maintain the appellant in custody.'
10. Paragraph 67. He was transferred to the ICTR detention unit on 19 November 1997.
11. See Rule 62.
12. Paragraphs 70-71.
13. Paragraph 72. See also The Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1-AR72, 2 October 1995, para. 6.
14. The doctrine can be described as 'a process by which Judges may decline to exercise the court's jurisdiction in case where to exercise that jurisdiction in light of serious and egregious violations of the accused's rights would prove detrimental to the court's integrity'; paragraph 74. For more details see paragraphs 73-77.
15. Paragraph 78.
16. Paragraph 85: 'While we [the Judges] acknowledge that only 35 days out of the 11-month total are clearly attributable to the Tribunal (the periods from 17 April-16May 1996 and 4-10 March 1997), the fact remains that the appellant spent an inordinate amount of time in provisional detention without knowledge of the general nature of the charges against him. At this juncture, it is irrelevant that only a small portion of that total period of provisional detention is attributable to the Tribunal, since it is the Tribunal -and not any other entity- that is currently adjudicating the appellant's claims. Regardless of which other parties may be responsible, the inescapable conclusion is that the appellant's right to be promptly informed of charges against him was violated.'
17. Paragraphs 82-86.
18. The Inter-American Court of Human Rights, as quoted by the Appeals Chamber (para. 88) can be defined as follows : '[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.' Taken from in Habeas Corpus in Emergency Situations (Arts. 27(2) 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.
19. Paragraph 88.
20. Paragraph 92.
21. Ibid.
22. See paragraphs 98-99 for detailed description of her failures: '[98.] […] the Prosecutor failed in her duty to take the steps necessary to have the appellant transferred in a timely fashion. […] [99] While it is undoubtedly true, as the Prosecutor submits, that the Registry and Chambers have the primary responsibility for scheduling the initial appearance of the accused, this does not relieve the Prosecutor of some responsibility for ensuring that the accused is brought before a Trial Chamber 'without delay' upon his transfer to the Tribunal. In the present case, […] [t]here is no evidence that the Prosecutor took any steps to encourage the Registry or Chambers to place the Appellant's initial appearance on the docket.'
23. Paragraph 106: 'This finding is consistent with Rule 40bis(H), which requires release if the suspect is not charged within 90 days of the commencement of the provisional detention and Rule 40(D) which requires release if the Prosecutor fails to issue an indictment within 20 days after the transfer of the suspect.'
24. Paragraphs 107-111.
25. Paragraph 107. Paragraph 111: 'Nothing less than the integrity of the Tribunal is at stake in this case. […] As difficult as this conclusion may be for some to accept, it is the proper role of an independent judiciary to halt this prosecution, so that no further injustice results.'
26. See Judge Shahabuddeen's Separate Opinion on that point.
27. Fourth dispositive paragraph of the Decision.
28. See for example pages 29-30 of the Separate Opinion: 'To hold that the interlocutory appellate provisions of Rule 72(D) of the Rules cover a case relating to pre-transfer delay involves a stretching of that provision. […] It seems to me that the Appeals Chamber cannot, in an interlocutory appeal, give a remedy simply because it considers that there were breaches of the appellant's human rights. It can do so only if such breaches deprived the Trial chamber of jurisdiction. In this case, with the exception of post-transfer delay (which rested on specific Rule of fundamental importance), they did not.'
29. See particularly pages 4-7 of the Separate Opinion for reasons.