Rights of suspects

Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

219. The Appeals Chamber notes that the Statute and Rules of the Tribunal are silent with regard to the manner and method in which an arrest of a suspect is to be effected by a cooperating State under Rule 40 of the Rules at the urgent request of the Prosecution. For example, no mention is made of ensuring the suspect’s right to be promptly informed of the reasons for his or her arrest or the right to be promptly brought before a Judge.[1] It is for the requested State to decide how to implement its obligations under international law.[2]

220. The Appeals Chamber finds that under Rule 40 of the Rules, the Prosecution and Benin had overlapping responsibilities during the first period of the Appellant’s arrest and detention in Benin. This flows from the rationale that the international division of labour in prosecuting crimes must not be to the detriment of the apprehended person. Under the prosecutorial duty of due diligence, the Prosecution is required to ensure that, once it initiates a case, “the case proceeds to trial in a way that respects the rights of the accused.”[3] With regard to the responsibility of the Benin authorities, the Appeals Chamber is mindful of the fact that a cooperating State, when effecting an urgent arrest and detention pursuant to the Prosecution’s request under Rule 40 of the Rules, must strike a balance between two different obligations under international law. First, the State is required under Security Council Resolution 955 and Article 28 of the Tribunal’s Statute to comply fully without undue delay with any requests for assistance from the Tribunal in fulfilling the weighty task of investigating and prosecuting persons accused of committing serious violations of international humanitarian law. On the other hand, the cooperating State still remains under its obligation to respect the human rights of the suspect as protected in customary international law, in the international treaties to which it has acceded,[4] as well as in its own national legislation.

221. Therefore, a shared burden exists with regard to safeguarding the suspect’s fundamental rights in international cooperation on criminal matters. A Judge of the requested State is called upon to communicate to the detainee the request for surrender (or extradition) and make him or her familiar with any charge, to verify the suspect’s identity, to examine any obvious challenges to the case, to inquire into the medical condition of the suspect, and to notify a person enjoying the confidence of the detainee[5] and consular officers.[6] It is, however, not the task of that Judge to inquire into the merits of the case. He or she would not know the reasons for the detention in the absence of a provisional or final arrest warrant issued by the requesting State or the Tribunal. This responsibility is vested with the judiciary of the requesting State, or in this case, a Judge of the Tribunal, as they bear principal responsibility for the deprivation of liberty of the person they requested to be surrendered.

222. Accordingly, the Prosecution is under a two-pronged duty. The request to the authorities of the cooperating State has to include a notification to the judiciary, or at least, by way of the Tribunal’s primacy, a clause reminding the national authorities to promptly bring the suspect before a domestic Judge in order to ensure that the apprehended person’s rights are safeguarded by a Judge of the requested State as outlined above. In addition, the Prosecution must notify the Tribunal in order to enable a Judge to furnish the cooperating State with a provisional arrest warrant and transfer order.

223. In this context, the Appeals Chamber recalls the words of Judge Vohrah, which, although made in relation to the status of an accused, apply to suspects as well:

if an accused is arrested or detained by a state at the request or under the authority of the Tribunal even though the accused is not yet within the actual custody of the Tribunal, the Tribunal has a responsibility to provide whatever relief is available to it to attempt to reduce any violations as much as possible.[7]

 

[1] Rule 40(A)(i) of the Rules merely states that “[i]n case of urgency, the Prosecutor may request any State: (i) To arrest a suspect and place him in custody….”

[2] U.N. Security Council Resolution 955, para. 2, provides, in pertinent part that:

 

all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance … under Article 28 of the Statute…. (emphasis added).

[3] Barayagwiza, Decision, 3 November 1999 [Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], paras. 91, 92.

[4] In this regard, the Appeals Chamber notes that the Republic of Benin acceded to the ICCPR on 12 March 1992 and to the ACHPR on 20 January 1986.

[5] Numerous international bodies have condemned incommunicado detention. See Standard Minimum Rules for the Treatment of Prisoners, art. 92; U.N. Human Rights Commission Resolutions 1998/38, para. 5, and 1997/38, para. 20; U.N. Commission on Human Rights, Report of the Special Rapporteur on Torture and Cruel, Inhuman or Degrading Treatment or Punishment, para. 926(d); Inter-American Commission on Human Rights, Annual Report of the Inter-American Commission, 1982-1983; Mukong v. Cameroon, para. 9.4; El-Megreisi v. Libyan Arab Jamahiriya, para. 5.4; Suárez Rosero Case, para. 91 (describing detainee’s being cut off from communication with his family as cruel, inhuman, and degrading treatment). See also Art. 104(4) of the German Constitution (the “Grundgesetz”): “A relative or a person enjoying the confidence of the person in custody shall be notified without delay of any judicial decision imposing or continuing a deprivation of freedom.” (Emphasis added). The rationale behind this constitutional norm is that it is an inalienable duty to inform relatives or good friends of a person as to any deprivation of liberty. This provision is based upon lessons learned in Germany from World War II whereby legal safeguards must exist such that never again should the judiciary be able to abuse its power by causing human beings to just disappear.

[6] See Vienna Convention on Consular Relations, art. 36(b).

[7] Semanza, Decision, 31 May 2000, Declaration of Judge Lal Chand Vohrad, [Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000], para. 6.

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ICTR Statute Article 28 ICTY Statute Article 29 ICTR Rule Rule 40 ICTY Rule Rule 40
Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

226. […] Although the Appellant was lawfully apprehended pursuant to Rule 40 of the Rules, the manner in which the arrest was carried out was not according to due process of law because the Appellant was not promptly informed of the reasons for his arrest. As held by the Appeals Chamber in Semanza, a suspect arrested at the behest of the Tribunal has a right to be promptly informed of the reasons for his or her arrest, and this right comes into effect from the moment of arrest and detention.[1] Before providing the reasons for this conclusion, the Appeals Chamber first notes that in making an urgent Rule 40 request, the Prosecution is not required to provide the suspect with a copy of a warrant for the arrest.[2] Furthermore, the Appeals Chamber finds that in this case, the Appellant’s right to freedom from an arrest contrary to due process of law was not violated due to the lack of an arrest warrant by the Prosecution or the Benin authorities, given the exigencies of the circumstances in which he was arrested. Nevertheless, the Appeals Chamber does not agree with the Trial Chamber that the Prosecution was not required to have evidence tending to show that the Appellant may have committed crimes within this Tribunal’s jurisdiction at the time it made its Rule 40 request to the Benin authorities. By making a Rule 40 request for the urgent arrest of a suspect, the Prosecution is, by definition under Rule 2 of the Rules, making the claim that it possesses “reliable information which tends to show that he may have committed a crime over which the Tribunal has jurisdiction.” Indeed, in this case, the Prosecution represented in its request letter of 6 June 1998 to the Benin authorities only that it had “compelling and consistent evidence of [the Appellant’s] participation in crimes committed in the Republic of Rwanda between 1st January and 31st December 1994.”[3]

251. On the basis of the foregoing, the Appeals Chamber concludes that […] the Appellant’s right to be informed of the reasons for his arrest at the time of his arrest as required under Article 9(2) of the ICCPR was not properly ensured.

[1] Semanza, Decision, 31 May 2000, para. 78.

[2] See Semanza, Decision, 31 May 2000, n. 106 citing Barayagwiza, Decision, 3 November 1999.

[3] Appeal Hearing, T. 7 March 2005 p. 51.

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ICTR Rule Rule 40 ICTY Rule Rule 40 Other instruments International Covenant on Civil and Political Rights: Article 9(2)
Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

231. […] [T]he Appeals Chamber finds that [the Trial Chamber] erred in failing to find that his detention in Benin for a total of 85 days without charge and without being brought promptly before a Judge was clearly unlawful and was in violation of his rights under the Tribunal’s Statute and Rules as well as international human rights law. The Appeals Chamber finds that the Prosecution is responsible for these violations because it failed to make a request within a reasonable time under Rules 40 and 40bis for the Appellant’s provisional arrest and transfer to the Tribunal. Moreover, its request would have included the provisional charges, which would then have been served on the Appellant.[1] Although Rules 40 and 40bis do not explicitly state how long a suspect may permissibly remain in the provisional custody of a cooperating State pursuant to a Rule 40 request, the Appellant’s prolonged detention in Benin was unreasonable. The evidence on the record indicates that the Appellant was never informed by a Judge of the charges against him, even provisionally, until sometime between 29 August 1998 and 7 September 1998, when he was formally served with an arrest warrant and a copy of the redacted indictment against him from the Tribunal.[2] The Appeals Chamber does not accept that 85-days’ delay after a suspect’s arrest may be considered “prompt” or “immediate” within the meaning of this Tribunal’s Statute or Rules.[3] Additionally, although 90 days may be permissible for the finalizing of a formal indictment, 85 days of provisional detention without even an informal indication of the charges to be brought against the suspect is not reasonable under international human rights law, given that nothing less than an individual’s fundamental right to liberty is at issue. While it is true that the Appellant was served with the arrest warrant and redacted indictment within days of their issuance by a Judge of this Tribunal on 29 August 1998, at a minimum, the Appellant should have been informed as soon as possible after his arrest on 5 June 1998 of any reliable information possessed by the Prosecution with regard to why he was considered a suspect and as to any provisional charges against him.[4] The Appeals Chamber considers that the Prosecution was able to directly request the Benin authorities to do so on its behalf, given that it stated that when it sent its request letter of 6 June 1998 to the Benin authorities, it had compelling and consistent evidence of the Appellant’s participation in the commission of crimes in Rwanda.[5]

232. Furthermore, the Appeals Chamber finds that as a result of the Prosecution’s failure to make a Rule 40bis transfer and provisional detention request within a reasonable period of time, the Appellant was not promptly brought before a Judge, either of this Tribunal or in Benin during the first period of his detention of 95 days. The Appeals Chamber notes that there are important purposes underlying the right to be promptly brought before a Judge in the requested State, inter alia: to allow for the suspect to be informed of the provisional charges against him or her; to ascertain the identity of the detained suspect;[6] to ensure that the suspect’s rights are being respected while in detention; and to give the suspect an opportunity to voice any complaints. The Appeals Chamber considers that this violation of the Appellant’s right is not solely attributable to the Prosecution. The Appeals Chamber notes in this context that the Benin Constitutional Court found, in response to a motion filed by the Appellant before it on 24 August 1998, that his detention from 5 June 1998 to 7 September 1998 by the Benin Director of Police and the Benin General Public Prosecutor Office, was in violation of the Constitution of Benin.[7] Nevertheless, although the violation is not solely attributable to the Tribunal, it has to be recalled that it was the Prosecution, thus an organ of the Tribunal, which was the requesting institution responsible for triggering the Appellant’s apprehension, arrest and detention in Benin.

233. The Appeals Chamber emphasizes that “it is important that Rule 40 and Rule 40bis be read together” and restrictively interpreted.[8] The purpose of Rule 40 and Rule 40bis is to place time limits on the provisional detention of a suspect prior to issuance of an indictment[9] and to ensure that certain rights of the suspect are respected during that time. The Appeals Chamber considers that it is not acceptable for the Prosecution, acting alone under Rule 40, to get around those time limits or the Tribunal’s responsibility to ensure the rights of the suspect in provisional detention upon transfer to the Tribunal’s custody under Rules 40 and 40bis, by using its power under Rule 40 to keep a suspect under detention in a cooperating State.[10] The Appeals Chamber notes the Prosecution’s submission, made at the Appeal Hearing, that the 95-days’ delay in the Appellant’s transfer to the custody of this Tribunal was due to the fact that the period in which the Appellant was arrested was an extremely busy one for the Prosecution with numerous ongoing investigations against dozens of suspects and numerous indictments being drafted simultaneously.[11] While the Appeals Chamber is sympathetic to the workload carried by the Prosecution at that time, in no way does this fact justify the Appellant’s arbitrary provisional detention in Benin without charge for 85 days, and detention in Benin without appearance before a Judge for a total of 95 days.

251. […] the Appeals Chamber concludes that […] the Appellant was arbitrarily detained in Benin for 85 days without an arrest warrant and a transfer order from the Tribunal being submitted to the Benin authorities by the Prosecution within a reasonable time and without being promptly informed of the charges against him in violation of Rule 40 of the Rules and Articles 9(2) and 14(3)(a) of the ICCPR. Finally, the Appellant was detained in Benin for a total of 95 days without being brought before a Judge or an official acting in a judicial capacity in clear violation of Article 9 of the ICCPR.

[1] Rule 40bis(A) and (E).

[2] The Appeals Chamber rejects the Prosecution’s argument that its duty to inform the suspect as soon as possible of the reasons why he or she is considered a suspect and of any provisional charges against him or her was fulfilled by its questioning of the Appellant on 12 June 1998. See Appeal Hearing, T. 7 March 2005 p. 51.

[3] Cf. Semanza, Decision, 31 May 2000, para. 87 (finding that 18 days’ delay between the time the Appellant was taken into custody and informed of the charges brought against him by the Prosecution constituted a violation of the Appellant’s right to be promptly informed of the nature of the charges against him).

[4] See Semanza, Decision, 31 May 2000, n. 104 (citing Barayagwiza, Decision, 3 November 1999).

[5] Appeal Hearing, T. 7 March 2005 p. 51.

[6] For example, Milan and Miroslav Vuckovic were transferred to the ICTY instead of Predrag and Nenad Banovic, see Sikirica et al. [Prosecutor v. Dusko Sikirica et al, Case No. IT-95-8-I], None [sic] Parties Milan and Miroslav Vuckovic’s Motion for an Order Compelling Discovery, 2 September 1999. See also Kolundzija [Prosecutor v. Dragan Kolundžija, Case No. IT-95-8-PT], Order on Non-Party Motion for Discovery, 29 September 1999. Similarly, Agim Murtezi was brought before the ICTY on the basis of an indictment in which the true identity of the perpetrator was uncertain, see [Prosecutor v.] Limaj et al., [Case No. IT-03-66-I], Order to Withdraw the Indictment against Agim Murtezi and Order for His Immediate Release, 28 February 2003.

[7] Decision DCC 00-064, The Constitutional Court, Republique du Benin, 24 October 2000. Article 18(4) of the Benin Constitution stipulates that “no one can be held for a period beyond 48 hours without a decision from a Magistrate to whom the person is presented, this timeframe can only be exceeded exceptionally as provided for by law and that cannot exceed a period of eight days.”

[8] Barayagwiza, Decision, 3 November 1999, paras. 46, 53.

[9] Barayagwiza, Decision, 3 November 1999, paras. 46, 53.

[10] Barayagwiza, Decision, 3 November 1999, paras. 46, 53.

[11] Appeal Hearing, T. 7 March 2005 p. 52.

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ICTR Rule Rule 40;
Rule 40 bis
ICTY Rule Rule 40;
Rule 40 bis
Other instruments International Covenant on Civil and Political Rights: Article 9(2); Article 14(3)(a)
Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

245. […] Rule 44bis of the Rules clearly obliges the Registrar to provide a detainee with duty counsel, with no prejudice to the accused’s right to waive the right to counsel. It constitutes a violation of Rule 44bis of the Rules and provision 10bis of the Directive on the Assignment of Defence Counsel not to assign duty counsel, in spite of ongoing efforts to assign counsel of choice in light of the outstanding initial appearance. Also, the wording of Rule 44bis(D) is sufficiently clear (“unrepresented at any time”) to find that such a duty exists from the very moment of transfer to the Tribunal and is not confined to purposes of the initial appearance only.

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ICTR Rule Rule 44 bis
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Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

248. The Appeals Chamber does not agree with the Trial Chamber in this regard. The difficulties in assigning the Appellant counsel in this case should not have been an obstacle for the Tribunal to ensure that the Appellant’s initial appearance was scheduled without delay. The Appeals Chamber agrees with the Prosecution that it is important and indeed ideal for an accused to have the assistance of counsel at the initial appearance to provide guidance, in particular, for entering a plea. Furthermore, the Appeals Chamber considers that Rule 62(A)(i) states that at the initial hearing, the Trial Chamber or Judge shall “[s]atisfy itself or himself that the right of the accused to counsel is respected.” In addition, the Trial Chamber or Judge could ordered assignment of duty counsel to the Appellant for purposes of representation at the initial appearance and would have had the opportunity to facilitate the Registry’s further attempts to assign the Appellant counsel.

249. Furthermore, the Appeals Chamber notes that apart from the assignment of counsel issue and the Appellant’s role in creating delay, the Registry conceded that in this case, the initial appearance was also delayed in part due to the fact that the Appellant had been jointly indicted with several other accused. It was difficult at the time for the Tribunal’s Court Management Section to find a date acceptable to all, with all being duly represented by counsel.[1]

250. The Appeals Chamber emphasizes that Rule 62 is unequivocal that an initial appearance is to be scheduled without delay. There are other purposes for an initial appearance apart from entering a plea including: reading out the official charges against the accused, ascertaining the identity of the detainee,[2] allowing the Trial Chamber or Judge to ensure that the rights of the accused while in detention are being respected, giving an opportunity for the accused to voice any complaints, and scheduling a trial date or date for a sentencing hearing, in the case of a guilty plea, without delay.[3] The Appeals Chamber therefore finds that, under the plain meaning of Rule 62, the 211-day delay between the Appellant’s transfer to the Tribunal and the initial appearance before a Judge of this Tribunal constitutes extreme undue delay.

[1] Decision of 8 May 2000 [The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-I, Decision on the Defence Motion Concerning the Arbitrary Arrest and Illegal Detention of the Accused and on the Defence Notice of Urgent Motion to Expand and Supplement the Record of 8 December 1999 Hearing, 8 May 2008], para. 28 referring to the written brief of 7 February 2000 filed by Mr. Antoine Mindua, a representative of the Registry.

[2] See supra n. 484 [Appeal Hearing, T. 7 March 2005 p. 51].

[3] See generally Rule 62.

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ICTR Rule Rule 62 ICTY Rule Rule 62
Notion(s) Filing Case
Appeal Judgement - 23.05.2005 KAJELIJELI Juvénal
(ICTR-98-44A-A)

255. […] the Appeals Chamber reiterates that any violation of the accused’s rights entails the provision of an effective remedy pursuant to Article 2(3)(a) of the ICCPR. The Appeals Chamber considers that under the jurisprudence of this Tribunal, where the Appeals Chamber has found on interlocutory appeal that an accused’s rights have been violated, but not egregiously so, it will order the Trial Chamber to reduce the accused’s sentence if the accused is found guilty at trial.[1] With this in mind, the Appeals Chamber will take into consideration its findings here on violations of the Appellant’s rights when it turns to the task of determining the Appellant’s sentence in this Judgement in order to provide for an appropriate remedy.

320. The Appeals Chamber recalls that it concluded that the Appellant’s fundamental rights were violated during his arrest and detention prior to his initial appearance and consequently, that he is entitled to a remedy.[2] The Appeals Chamber therefore finds it appropriate to reduce the Appellant’s sentences as imposed by the Trial Chamber for his convictions at trial, which have been affirmed in this appeal.[3]

322. The Appeals Chamber notes that the Trial Chamber granted credit[4] to the Appellant pursuant to Rule 101(D) for time served pending surrender and trial as foreseen mandatorily under all circumstances and in each case. Therefore this credit was not a remedy for the suspect or accused’s rights having been violated during the period of his prolonged detention pending transfer and trial. Where a suspect or an accused’s rights have been violated during the period of his unlawful detention pending transfer and trial, Article 2(3)(a) of the ICCPR stipulates that “[a]ny person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”

[1] See Semanza, Decision, 31 May 2000, para. 129; Barayagwiza, Decision (Prosecutor’s Request for Review or Reconsideration) [Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000], para. 75.

[2] See supra paras. 251-255.

[3] See Semanza, Decision, 31 May 2000, para. 129; Barayagwiza, Decision (Prosecutor’s Request for Review or Reconsideration), para. 75.

[4] Trial Judgement, paras. 966, 967, 970.

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Notion(s) Filing Case
Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

74. Article 9 of the Statute of the Tribunal sets forth the principle of non bis in idem. The Appeals Chamber accepts the interpretation of this Article and Article 10 of the Statute of ICTY[1] given by various Trial Chambers of the international criminal Tribunals whereby:

- Article 9 (2) of the Statute sets a limit on the extent to which the Tribunal can prosecute persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law;[2]

- The non bis in idem principle applies only where a person has effectively already been tried. The term "tried" implies that proceedings in the national Court constituted a trial[3] for the acts covered by the indictment brought against the Accused by the Tribunal[4] and at the end of which trial a final judgement is rendered.[5]

[1] These provisions of the ICTY and ICTR Statutes are identical for all practical purposes. Moreover, the non bis in idem principle is set out in paragraph 7 of Article 14 of the International Covenant on Civil and Political Rights in the following terms: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country".

[2] Case No. ICTR-96-7-D, The Prosecutor v. Thenoeste Bagosora, "Decision on the Application by the Prosecutor for a Formal Request for Deferral", Trial Chamber I, 17 May 1996, para. 13: "Article 9.2 of the Tribunal’s Statute, concerning the principle of non bis in idem, sets limits to the subsequent prosecution by the Tribunal of persons who have been tried by a national Court for acts constituting serious violations of international humanitarian law". See also Case No. ICTR-96-5-D, The Prosecutor v. Musema, "Decisions on the Formal Request for Deferral Presented by the Prosecutor", Trial Chamber I, 12 March 1996, para. 12.

[3] Case No. IT-94-1-T, The Prosecutor v. Duško Tadić, "Decision on the Defence Motion on the Principle of non bis in idem", Trial Chamber II, 14 November 1995, paras. 9-11.

[4] "[…] There can be no violation of non bis in idem, under any known formulation of that principle, unless the accused has already been tried. Since the accused has not yet been the subject of a judgement on the merits on any of the charges for which he has been indicted, he has not yet been tried for those charges. As a result, the principle of non bis in idem does not bar his trial before this Tribunal" (ibid., para. 24.)

[5] Ibid., para. 22.

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ICTR Statute Article 9 ICTY Statute Article 10
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Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

2. The right of the suspect[1] to be informed promptly of the nature of the charges against him

78. The Appeals Chamber holds that a suspect arrested by the Tribunal has the right to be informed promptly of the reasons for his or her arrest.[2] In accordance with the norms of international human rights law,[3] the Appeals Chamber has also accepted that this right comes into effect from the moment of arrest and detention.[4]

[1] In its consideration of subsections D 2 to D 5 of Part V of this Decision, the Appeals Chamber takes note of the distinction made in the Barayagwiza Decision of 3 November 1999 regarding the Appellant’s status. Under Rule 2, he remains a "suspect" until an indictment against him is confirmed; thereafter he becomes an "accused". The relevance of such a distinction stems from the fact that guaranteed individual rights, in particular as to the permissible length of pre-trial detention, vary depending on the status of the individual concerned (Case No. ICTR-97-19-AR72, Jean-Bosco Barayagwiza v. The Prosecutor, "Decision", Appeals Chamber, 3 November 1999, para. 41).

[2] The Chamber came to an identical conclusion in the Barayagwiza case (ibid., paras. 79-80). Specifically, the right of an arrested individual to be informed promptly of the nature of the charges against him is respected if the indictment against him is served upon him in rapid order. The right to be charged promptly by means of an indictment, as provided for under Article 20 (4) (a) of the Statute, must nevertheless be distinguished from the right to be informed promptly of the nature of the charges on account of which the arrested individual is deprived of his liberty. Confirmation and service of the indictment may follow some time after arrest. However, the individual must be informed in substance of the nature of the charges against him at the time of his arrest or shortly thereafter.

[3] See, in particular, Article 9 (2) of the International Covenant on Civil and Political Rights; Article 5 (2)of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Article 7 (4) of the American Convention on Human Rights.

[4] Op. cit. footnote 103, paras. 81-82. As the Appeals Chamber stresses in these paragraphs of the Barayagwiza Decision, there is no requirement for the Tribunal to provide the suspect with a copy of the arrest warrant or any other document setting forth the charges against him during this initial phase of detention. This right only guarantees the arrested suspect that he will be informed of the reasons why he has been deprived of his liberty.

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ICTR Rule Rule 40 bis
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Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

107. Under Rule 62, the Appellant’s right to be brought before a Trial Chamber without delay and be formally charged came into effect on the date of his transfer to the Tribunal.[1] […]

[…]

110. The Parties to a case are responsible for the strategies they use in conducting it. […] Counsel for the Appellant consented to having the Appellant’s initial appearance not take place within the shortest possible lapse of time and himself contributed to prolonging it.

111. The Appeals Chamber finds that Counsel’s request has the import of waiving the Appellant’s right to claim violation of his right to be brought before a Trial Chamber without delay and be formally charged.

[1] Rule 62 states that: "Upon his transfer to the Tribunal, the accused shall be brought before a Trial Chamber without delay, and shall be formally charged […]".

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ICTR Rule Rule 62 ICTY Rule Rule 62
Notion(s) Filing Case
Decision - 01.06.2000 SEMANZA Laurent
(ICTR-97-23-A)

112. Neither the Statute nor the Rules of the Tribunal specifically address writs of habeas corpus. However, the Appeals Chamber has already pointed out that the possibility for a detained individual to have recourse to an independent judicial authority for review of the lawfulness of his detention is "well established by the Statute and Rules".[1] This is a fundamental right and is enshrined in international human rights law,[2] which also provides that the right of an individual to challenge the lawfulness of his detention implies that "a writ of habeas corpus must be heard".[3]

113. The Appeals Chamber wishes to confirm the principle which it laid down in the Barayagwiza case: if an accused files a writ of habeas corpus, the Tribunal must hear it and rule upon it without delay, as principal instruments of international human rights law prescribe.[4] If such a writ is filed but not heard, the Chamber will find that a fundamental right of the accused has been violated.

[1] Case No. ICTR-97-19-AR72, Jean-Bosco Barayagwiza v. The Prosecutor, "Decision", Appeals Chamber, 3 November 1999, para. 88.

[2] Ibid., paras. 88-89. See in particular Article 8 of the Universal Declaration of Human Rights; Article 9 (4) of the International Covenant on Civil and Political Rights; Article 5 (4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and Article 7 (6) of the American Convention on Human Rights.

[3] Ibid., para. 89.

[4] Ibid., para. 88.

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Decision on Leave to Appeal - 17.02.2016 ORIĆ Naser
(MICT-14-79)

11.     The Appeals Chamber observes that, in the Impugned Decision, the Single Judge compared the acts on the basis of which Orić was charged and tried before the ICTY with the acts for which he is charged in Bosnia and Herzegovina and concluded that these acts differ fundamentally with respect to the alleged victims and the nature, time, and location of the alleged criminal conduct. […] The Appeals Chamber finds that […] Orić fails to demonstrate that the Single Judge incorrectly interpreted the governing law. The ICTR Appeals Chamber’s discussion [of non bis in idem] in Ntakirutimana [referenced by the Single Judge] is consistent with the clear language of the Statute and relevant jurisprudence holding that a defendant shall not be tried before a national jurisdiction for the same acts on the basis of which he has already been tried before the relevant international jurisdiction.[1]

[…]

13.     Similarly unpersuasive is Orić’s contention that the Single Judge erred in dismissing his abuse of process argument because the allegations in the case against him in Bosnia and Herzegovina concern matters of which the ICTY Prosecutor was aware. The Appeals Chamber considers that nothing in Article 7(1) of the Statute prohibits prosecutions in national jurisdictions in such circumstances. Rather, Article 7(1) of the Statute stipulates that a person cannot be tried in a national jurisdiction for acts for which he was already tried in the relevant international jurisdiction. It expressly refers to acts on the basis of which the person was tried, in the sense that a final judgment was rendered,[2] not circumstances in which certain acts may have been investigated but upon which the person concerned was not tried. […]

[1] See, e.g., Laurent Semanza v. The Prosecutor, Case No. ICTR-97-23-A, Decision, dated 31 May 2000, filed 4 July 2001 (“Semanza Decision”), para. 74 (noting that the “non bis in idem principle applies only where a person has effectively been ‘tried’’’ and that the “term ‘tried’ implies that proceedings in the national Court constituted a trial for acts covered by the indictment brought against the Accused by the Tribunal”) (first emphasis in original; second emphasis added). See also Prosecutor v. Miroslav Deronjić, Case No. IT-02-61-S, Sentencing Judgement, 30 March 2004, para. 31 (observing that the plea agreement only concerned crimes committed “during the attack in Glogova” and noting that the accused “can still be indicted for all other possible crimes which he might have been involved, including, e.g. Srebrenica, before [the ICTY] or in other countries which have jurisdiction as well”); Prosecutor v. Duško Tadić a/k/a/ Dule”, Case No. IT-94-1-T, Decision on the Defence Motion on the Principle of Non-Bis-in-Idem, 14 November 1995 (“Tadić Decision”), para. 9 (“Whether characterized as non-bis-in-idem, double jeopardy or autrefois acquit, autrefois convict, this principle normally protects a person from being tried twice or punished twice for the same acts.”) (emphasis added). Cf. The Prosecutor v. Tharcisse Muvunyi, Case No. ICTR-2000-55A-AR73, Decision on the Prosecutor’s Appeal concerning the Scope of Evidence to be Adduced in the Retrial, 24 March 2009 (“Muvunyi Decision”), para. 16 (referring to Article 14(7) of the International Covenant on Civil and Political Rights) (“The non bis in idem principle aims to protect a person who has been finally convicted or acquitted from being tried for the same offence again”) (emphasis added).

[2] See Muvunyi Decision, para. 16; Semanza Decision, para. 74. See also Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Decision on the Accused’s Motion for Finding of Non-bis-in-Idem, 16 November 2009, para. 13; The Prosecutor v. Joseph Nzabirinda, Case No. ICTR-2001-77-T, Sentencing Judgement, 23 February 2007, para. 46; Tadić Decision, paras. 9-11, 20, 22, 24, 30.

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MICT Statute Article 7 MICT Rule Rule 16
Notion(s) Filing Case
Decision - 03.11.1999 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

See paragraphs 42, 60 of the decision.

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ICTR Statute Article 28 ICTY Statute Article 29 ICTR Rule Rule 40;
Rule 40 bis
ICTY Rule Rule 40;
Rule 40 bis
Notion(s) Filing Case
Decision - 03.11.1999 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

See paragraphs 79-82, 85 of the decision.

See also paragraphs 83-84 of the decision.

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ICTR Statute Article 20(4) ICTY Statute Article 21(4) ICTR Rule Rule 40 bis ICTY Rule Rule 40 bis Other instruments Article 9(2) International Covenant on Civil and Political Rights;
Article 5(2) European Convention on Human Rights;
Article 7(4) American Convention on Human Rights
Notion(s) Filing Case
Decision - 03.11.1999 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

See paragraphs 46-47, 53-54, 61-63 of the decision.

See also paragraphs 48-51, 55-57, 64, 67 of the decision.

[RULE 40 bis OF THE ICTR STATUTE WAS AMENDED ON 26 JUNE 2000 AND 30 MAY 2001]

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ICTR Rule Rule 40;
Rule 40 bis
ICTY Rule Rule 40;
Rule 40 bis
Other instruments Article 9(2) International Covenant on Civil and Political Rights;
Article 14(3)(a) International Covenant on Civil and Political Rights
Notion(s) Filing Case
Decision - 03.11.1999 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

See paragraph 70 of the decision.

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ICTR Statute Article 20(4) ICTY Statute Article 21(4) ICTR Rule Rule 62 ICTY Rule Rule 62
Notion(s) Filing Case
Decision - 03.11.1999 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

See paragraphs 91-92, 99 of the decision.

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Notion(s) Filing Case
Decision - 03.11.1999 BARAYAGWIZA Jean-Bosco
(ICTR-97-19-AR72)

See paragraphs 88-89 of the decision.

See also paragraph 90 of the decision.

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Appeal Judgement - 29.09.2014 KAREMERA & NGIRUMPATSE
(ICTR-98-44-A)

61.     A suspect arrested by the Tribunal has the right to be informed promptly of the reasons for his or her arrest.[1] In the Semanza case, the Appeals Chamber concluded that a reference to the accused being provisionally detained “for serious violations of international humanitarian law and crimes within the jurisdiction of the Tribunal” adequately described the substance of the charges to satisfy the requirement of notice at that stage.[2] […]

[1] Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, 31 May 2000 (“Semanza Appeal Decision”), para. 78 and fns. 104, 106. An English translation was filed on 4 July 2001.

[2] Semanza Appeal Decision, paras. 83-85.

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Appeal Judgement - 14.12.2015 NYIRAMASUHUKO et al. (Butare)
(ICTR-98-42-A)

49. The Appeals Chamber considers that the circumstances of this case differ from the situation in the Kajelijeli case, in which the Appeals Chamber found that the delay in the holding of the initial appearance was attributable to the Tribunal notwithstanding any attribution of fault to Kajelijeli.[1] Unlike in Ntahobali’s case, Kajelijeli’s initial appearance was held 211 days after his transfer to the Tribunal as a result of difficulties in assigning him a counsel, the Registrar’s failure to assign a duty counsel, and the Registry’s difficulties in finding a date acceptable to all counsel representing Kajelijeli’s co-indicted.[2] Further, unlike Kajelijeli, Ntahobali was given the opportunity to enter his plea on 3 September 1997 but preferred to wait for his assigned counsel. The Appeals Chamber considers that when, like in Ntahobali’s case, the counsel for an accused explicitly requests the date of the initial appearance to be postponed and the accused expresses his preference for entering his plea in the presence of his assigned counsel rather than entering it at an earlier opportunity, the delay caused by the postponement of the initial appearance is not attributable to the Tribunal.[3]

[1] See Kajelijeli Appeal Judgement, para. 253.

[2] See Kajelijeli Appeal Judgement, paras. 248-250.

[3] Cf. Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision, dated 31 May 2000, filed 1 June 2000 (originally filed in French, English translation filed on 4 July 2001) (“Semanza Appeal Decision”), paras. 110, 111.

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ICTR Rule Rule 62 ICTY Rule Rule 62