Case: IT-02-62-AR54bis & IT-02-62-AR108bis

_________________________________

1. On 17 September 2002, an indictment against Janko Bobetko ("Bobetko") was confirmed by Judge Liu and, on 17 and 20 September 2002, the Judge issued warrants of arrest and orders to (inter alia) Croatia to search for, arrest and surrender Bobetko to the International Tribunal.

2. On 30 September 2002, the Republic of Croatia ("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" ("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" ("Second Application"). On 11 October 2002, the President issued an order assigning Judges to the Appeals Chamber and joining both applications so that they be treated together¹. 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.

3. On 11 October 2002, the Senior Trial Attorney for the prosecution wrote a confidential letter to the Registry requesting that the confidential aspects of its "Prosecution’s Response to the Application of the Republic of Croatia to Submit an Interlocutory Appeal against the Warrant of Arrest and Order for Surrender of 20 September 2002" be lifted², and, on 17 October 2002, Croatia filed Bobetko’s medical report and analysis of his medical condition. Finally, by letter of 18 October 2002, Croatia informed the Appeals Chamber that Mr Goran Mikulicic had been appointed as its representative (Legal Counsel) in relation to these proceedings.

4. The nature of the two applications and the terminology adopted by Croatia in them is mistaken or at least confused. Rather than rejecting both applications on technicalities, the Appeals Chamber has considered the merits of each of them by reference to the real issues which they raise, and regardless of the heading or terminology used in the application in question.

5. The following issues are raised by Croatia’s applications:

1. Does the Statute or the Rules provide for a right to appeal or to seek a review of a decision of a confirming Judge?
2. If so, does Croatia have locus standi to make such an application?
3. Was the prosecution under an obligation prior to issuing an arrest warrant to interview the proposed accused person?
4. Should the confirming Judge have requested the prosecution to submit evidence which would demonstrate the necessity to arrest the accused?
5. Should the confirming Judge have adopted a procedure less constraining than the issue 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?

6. The Prosecution says that Rule 54 and Rule 108bis do not provide for either a right to appeal from, or for a review of, a decision of a single Judge confirming an indictment and issuing a warrant of arrest and order for surrender. Croatia, the Prosecution submits, does not have locus standi in relation to such a matter. The Prosecution adds that, contrary to Croatia’s submission, Rules 54, 47(H), (I) and 55(A) do not mandate an optional regime for the issuing of arrest warrants. The Prosecution contends that Croatia’s reliance on Rule 54bis for its submission that a Judge must request a written application with supporting evidence from the Prosecution before issuing an arrest warrant is misconceived. The Prosecution also submits that there is no requirement in the Statute and the Rules that other measures for securing the appearance of an accused before the Tribunal must be exhausted before resorting to a warrant of arrest, nor that a Judge would be obliged to contact a State before issuing a warrant of arrest against a citizen of that State.

7. Croatia’s First Application is brought under Rule 54, 54bis, 73(D) and 73(E) of the Rules of Procedure and Evidence ("Rules"). Rule 54 confers a general procedural competence to a Judge or a Chamber to issue orders and warrants, but it does not provide for any right of appeal. Rule 54bis 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), and it cannot therefore give Croatia any right to appeal against the decision and orders of a confirming Judge pursuant to that rule. Rules 73(D) and (E) were, at the time of the application, no longer in force.

8. The Second Application is brought under Rule 108bis of the Rules. 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. Such an application in the present case must fail for a number of reasons.

9. 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 108bis refers.

10. 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 commenced³. 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 Tribunal⁴. Even if the Appeals Chamber were of the view that Rule 108bis 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.

11. 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 108bis, the Appeals Chamber does not accept that Croatia has standing to make the present application. Rule 108bis 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 accurate⁵. The time for the investigation into the truth of the facts alleged in an indictment does not arise until the trial.

12. Article 29 of the Tribunal’s Statute 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. In particular, Article 29(d) expressly provides that this general obligation includes a duty to comply with any such request or order relating to "the arrest or detention of persons". 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. A State which is ordered to arrest or detain an individual pursuant to Article 29(d) has no standing to challenge the merits of that order.

13. 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. The 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. There 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. There 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. One accused, Biljana Plavsic, was recently permitted by a Trial Chamber to enter a plea by video-link rather than to re-enter detention in order to do. But, 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.

14. Croatia further submitted that, because Bobetko satisfies all the requirements for provisional release, he need not be arrested because he would at once be granted provisional release. The Appeals Chamber 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. Therefore, arguments based on considerations which are relevant to an appeal for provisional release are premature so far as the Appeals Chamber is concerned. Whether or not the Trial Chamber before which Bobetko may appear would grant provisional release can only be determined by that Trial Chamber upon the material placed before it at that time.

15. The Appeals Chamber does point out that an accused person who has appeared before the Tribunal is not without remedy in relation to the issue of the indictment against him if he is able to demonstrate that its issue constitutes an abuse of the Tribunal’s process. The Tribunal has an inherent power to stay proceedings which are an abuse of process, such a power arising from the need for the Tribunal to be able to exercise effectively the jurisdiction which it has to dispose of the proceedings.⁶ Nothing alleged in the applications made by Croatia would demonstrate that such an abuse of the process had occurred in the present case.

16. Accordingly, the Appeals Chamber rejects both applications made by Croatia.

Done in French and English, the French text being authoritative.

Dated this 29^th day of November 2002,
At The Hague,
The Netherlands.

______________________
Claude Jorda
Presiding

President Jorda and Judge Shahabuddeen append a Declaration to this decision.

Judge Hunt and Judge Pocar append a Separate Opinion to this decision.

1. We agree with the decision and would like to speak on one point: 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. If the Appeals Chamber decides to deal with an additional ground, that does not oblige it to deal with all other additional grounds.

2. In this case, it was a sufficient ground of disposition to determine that Croatia lacked standing, but this did not prevent the Appeals Chamber from going on, as it did, to pass on Croatia’s other "submission that the prosecution must interview or offer to interview every proposed accused before seeking a confirmation of an indictment" (para. 12 of the Decision).

3. The additional question there was one of law, and so was the Appeals Chamber’s reply, as can be seen from the cited paragraph of its Decision. General and immediate guidance would be beneficial to the workings of the Tribunal on the issue whether there was a requirement to interview an accused before confirmation of the indictment against him could be sought.

4. Not quite so with another additional argument, in which Croatia submitted that Mr Bobetko satisfied all the requirements for provisional release, and that, in view of this, he need not be arrested because he would at once be granted provisional release (para. 13 of the Decision). Here matters of fact would have to be assessed specific to the particular case.

5. In particular, the Appeals Chamber would have to say whether, on the material which has been placed before it by Croatia, it accepts the claim by Croatia that Mr Bobetko would appear for trial so as to satisfy the requirements for provisional release. If an application for provisional release were to be later made by Mr Bobetko to a Trial Chamber, he would in all likelihood rely, wholly or largely, on the same facts which are now available to the Appeals Chamber; and an appeal from the Trial Chamber would lie to the same Appeals Chamber.

6. While the Trial Chamber and the Appeals Chamber would not be legally bound by any findings now made by the latter, we believe that there would be practical difficulty in ignoring those findings, inclusive of a possible finding that, on the basis of the available factual material, Mr Bobetko would not appear for trial. In any provisional release proceedings of his own, Mr Bobetko would wish to argue the exact opposite and may complain of unfairness. There could of course be a complete legal answer to that. But, if it could be avoided, as we consider it could be, Mr Bobetko should not have to content himself with a legal answer.

7. The Appeals Chamber should not be unnecessarily expressing itself on matters of fact which could be later brought before a Trial Chamber for decision and thence on appeal back to the same Appeals Chamber. The circumstance 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; it had a discretion in the matter. In the circumstances of the case, the discretion was correctly exercised.

Done in English and in French, the English text being authoritative.

____________________
Claude Jorda
President

_______________________
Mohamed Shahabuddeen

Dated this 29^th day of November 2002
At the Hague
The Netherlands

Case: IT-02-62-AR54bis

& IT-02-62-AR108bis

IN THE APPEALS CHAMBER

Before: Judge Claude Jorda, Presiding

Judge Mohamed Shahabuddeen
Judge David Hunt 
Judge Mehmet Güney
Judge Fausto Pocar

Registrar: Mr Hans Holthuis

Decision of: 29 November 2002

PROSECUTOR

v

JANKO BOBETKO

SEPARATE OPINION OF JUDGE DAVID HUNT AND JUDGE FAUSTO POCAR

ON CHALLENGE BY CROATIA TO DECISION AND ORDERS

OF CONFIRMING JUDGE

Counsel for the Prosecutor:
Ms Carla del Ponte, Prosecutor

Counsel for the Croatia:
Mr Goran Mikulicic

SEPARATE OPINION OF JUDGE DAVID HUNT AND JUDGE FAUSTO POCAR

1. We agree with the decision of the Appeals Chamber, so far as it goes. That decision does not, however, deal with one of the issues raised by the Republic of Croatia ("Croatia") as being fundamental to the merits of its applications and which, in our opinion, should have been determined for the purposes of dismissing these applications.

2. We hold that opinion notwithstanding the rulings by the Appeals Chamber (with which we agree) that:

We do so because, in the light of those rulings, it was open to the Appeals Chamber to have dismissed the applications upon that basis alone and without dealing with the merits of those applications. But that is not the approach which the Appeals Chamber took. It said that it would consider the merits of the applications, and it proceeded to deal with one of the issues raised as to the merits – whether there was an obligation to interview a proposed accused person before seeking confirmation of an indictment against him. It has held that there was no such obligation, again a ruling with which we agree.

3. The Appeals Chamber took that approach, as we understand it, because of the obvious importance which Croatia placed upon the merits of its applications, so that Croatia would not feel that its applications were being dismissed upon some mere technicality. In our view, it was appropriate to do so in the circumstances of this case. The lack of standing on the part of an applicant does not prevent the Appeals Chamber from dealing with the merits of the matter if it considers that it is appropriate to do so in the particular case.

4. However, the Appeals Chamber having ventured into the merits of the applications made by Croatia, it should also, in our view, have dealt with what is clearly regarded by Croatia as one of the most important bases for those applications. This was the claim by Croatia that a warrant of arrest is inappropriate in this case because, as the accused Janko Bobetko ("Bobetko") satisfies all the requirements for provisional release, he need not be arrested because he would at once be granted provisional release. That claim is without foundation. Provisional release will be granted only if the accused person establishes that he will appear for trial. The onus of proof in relation to this issue is placed upon the applicant. Relevant to that issue is the intention of the accused himself to appear and both the intention and the capacity of the relevant State to comply with any undertaking which it may give to the Tribunal to arrest the accused if he does not appear.

5. Following the issue of the indictment against him, Bobetko has publicly stated on a number of occasions that he will not surrender voluntarily to the Tribunal. Moreover, Croatia has still not served Bobetko with the indictment, contrary to its obligation to do so in accordance with Article 29 of the Tribunal’s Statute. Based upon the material which has been placed before the Appeals Chamber by Croatia, we do not accept the claim by it that Bobetko would appear for trial so as to satisfy the requirements for provisional release. It must be emphasised, of course, that Bobetko himself has not sought provisional release, as he has not yet been transferred into the custody of the Tribunal, and (as has now been determined by the Appeals Chamber) no such application for provisional release would be entertained until he does appear before the Tribunal. Any Trial Chamber from which he may seek provisional release after he has appeared must determine the application upon the material which is placed before it by the parties in relation to that application, and any conclusion which may be stated in the Appeals Chamber upon the material which Croatia has put forward in support of its applications should not influence the Trial Chamber in that determination. In any event, the two bodies of material are certain to be different.

Done in English and French, the English text being authoritative.

Dated this 29^th day of November 2002,

At The Hague,

The Netherlands.

_________________________ ___________________________

Judge David Hunt Judge Fausto Pocar

[Seal of the Tribunal]