Week 4: Pre-trial arrest and detention

Art 67 RS

Rights of the accused

67(1)(d) = refers to no trials in absentia

Art 63 RS

Prohibits trials in absentia

Art. 21(4)(d) and Art. 20(4)(d) ICTY/R

Prohibits trials in absentia

Suspect

before indictment of charges (ICT)/ confirmation of charges (ICC)

Accused

after indictment/confirmation of charges

Article 66 RS

Presumption of Innocence

Art 21(3) ICTY and 20(3) ICTR

Presumption of Innocence

Art 66 RS

Presumption of Innocence

Art. 9,9(3),9(5) ICCPT + Art. 5, 5(1),5(5) ECHR + Art. 7, 7(2) ACHR + Art. 6 ACHPR

IHR conventions outlining:

(1) Right to (personal) liberty and security → prohibition of arbitrary arrest and detention

(2) Limitations: lawful deprivation of liberty

(3) Remedies for unlawful arrest or detention: enforceable right to compensation

→ Liberty is the general rule, whereas being detained awaiting trial is the exception (can only be applied in exceptional circumstances clearly and strictly defined under the applicable law)

Art. 21(3) RS

Application and interpretation of law must be consistent with internationally recognised human rights

Arts 55 and 67 RS

Rights of suspect/accused during an investigation and trial

Art 85(1) RS

Enforceable right to compensation

IHRL and ICTs

no explicit statutory basis, but made formal commitment to adhere to IHRL in their case law

Legality of Provisional Detention under IHRL

• Right to liberty coupled with presumption of innocence → liberty is the general rule, while detention is the exception – i.e., it may only be applied in exceptional circumstances and. must be clearly and strictly defined under the applicable law.

• see (i) substantive requirements and (ii) safeguards for lawful detention

Substantive requirements for lawful detention (IHRL)

(1) ‘Reasonable suspicion’ as to the commission of a crime (conditio sine qua non).

(2) ‘Relevant and sufficient grounds’ as reasons for detention: risk of flight, risk of obstruction, risk of recidivism, risk of public disorder.

Safeguards for lawful detention (IHRL)

• Based on necessity, subsidiarity and proportionality: detention as last resort, no alternative less restrictive measures available.

• Gravity of the crime cannot be the sole factor: arrest/detention cannot be used in anticipation of high prison sentence (presumption of innocence).

• Focus should be on the concrete situation; no ‘stereotyped formulae’ or ‘general and abstract’ considerations.

• Right to challenge detention at reasonable intervals: judicial review of continuing necessity (substantive conditions) and reasonable duration (the longer the detention, the more critical the evaluation of legality).

• Prohibition against the use of torture and other forms of ill-treatment (art. 7, ICCPR and UNCAT).

Arrest and Detention legal framework ad hoc Tribunals

1. Art. 16(4) → Art. 17 IRMCT St. (indictment + review of indictment)

2. Art. 17(2) IRMCT (Prosecutor can request arrest warrant, to be issued by TC judge)

3. R55 IRMCT (general provision coercive measures)

4. R57 IRMCT (transmission and execution of arrest warrant)

5. Art. 28 IRMCT St + R58 IRMCT (cooperation of states)

   1. R61(b) IRMCT (failure to execute arrest warrant)

   2. R61bis IRMCT (transmission of warrant to non-state actors)

   3. R62 IRMCT (advertisement of indictment)

   4. R63 (last resort: substitute proceedings)

6. R67: detention on remand (in host country)

Art. 16(4) → Art. 17 IRMCT St.

Indictment

1. Upon determination that a prima facie case exists, Prosecutor prepares indictment with which the accused is charged & transferred to TC.

2. Then, under Art. 17, TC reviews indictment and checks if there exists a PRIMA FACIE case to confirm/dismiss indictment. (standard for indictment = prima facie)

3. Then can issue arrest warrant (17(2))

Art. 17(2) IRMCT

Arrest Warant

• TC (judge) may issue arrest warrant at the request of the Prosecutor

• (you  can also issue arrest warrant, arrest, and detain before indictment, R40 and 40 bis, ICTY/R RPE)

R55 IRMCT

general provision coercive measures

(“At the request of either Party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants, and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.”)

R57 IRMCT

Transmission and Execution of Arrest Warrants

- states are obligated to execute the arrest, focus is on cooperation and efficiency of states executing arrest warrants, instead of international human rights law

Art. 28 IRMCT St + R58 IRMCT

cooperation of states

1. R61(b) IRMCT = failure to execute arrest warrant)

2. R61bis IRMCT = transmission of warrant to non-state actors

3. R62 IRMCT = advertisement of indictment

4. R63 last resort: substitute proceedings

   1. Substitute proceedings = ruling on the evidence (not a ruling of guilt) -> arrest warrant issued to all states, no substantive conditions for arrest and detention

R67 IRMCT

“the accused shall be detained in facilities provided by the host country…”

Provisional Release legal framework ad hoc Tribunals

R68 IRMCT RPE (R65 ICTY/R)

• Release is only possible if ordered by a Chamber.

• Requirements for release: views of the host country and State envisaged; no risk of flight, or risk of obstruction or endangerment.

• Discretionary grounds: sufficiently compelling humanitarian grounds (e.g., illness).

  • =/= first version of R65(B) (1994-1999): ‘release may be ordered by a Trial Chamber only in exceptional circumstances, (…).’

• Potential conditions for release: execution of a bail bond, and any conditions ‘necessary to ensure the presence of the accused for trial and the protection of others’.

• Decision to (not) release is reviewed upon a filing of an appeal.

• → liberty as the EXCEPTION and detention as the rule…raises questions of respect to IHRL

Arrest and Detention Legal Framework ICC

1. Art 58: Pre-trial stage (PTC can issue warrant of arrest or summons to appear)

   1. Art. 61(1) Confirmation of charges before trial

   2. Art 58(1)(a) and (b): arrest warrant

   3. Art 58(7): alternative to arrest → summons to appear

2. Art 59: Arrest (Execution of arrest warrant)

   1. Art 86 and 88: General obligation of SP to cooperate

   2. Art 89: Cooperation on arrest and surrender (upon request)

   3. Art 92: Provisional arrest (pending request for surrender)

   4. Art 59(2)(c) and Art 55: Respect for the rights of the person arrested

   5. Art 85(1) and (3): Unlawful arrest or detention may give rise to compensation

   6. Section IV RPE: Rule 117-118 = Procedures for restriction and deprivation of liberty

3. Art 60: Initial Proceedings before the court

Article 58 RS

Issuance by the PTC of a (1) warrant of arrest or (2) summons to appear

• After initiation of an investigation = pre-trial stage

• Art 61(1): Confirmation of charges generally only after surrender or voluntary appearance

• Provides for the PTC for the issuance of an arrest warrant or summons to appear, following an application of the Prosecutor

  1. Art. 58(1) Arrest Warrant = warrant issued if (a) reasonable grounds to believe that person has committed crime within jurisdiction (b) arrest appears necessary (e.g. to ensure appearance at trial, does not obstruct proceedings etc)

  2. Art. 58(7) Summons to Appear = alternative, if 1) reasonable grounds to believe person committed crime + 2) that a summons is sufficient to ensure the person's appearance

Article 59 RS

Arrest Proceedings in Custodial State

• Art 59: SP who receive request for provisional arrest or arrest and surrender must immediately take steps to arrest with regard to Part 9 (state cooperation)

  • Art. 86 and 88 establish general obligation on part of SP to cooperation

    • Art 89: surrender of persons to the court (comply with cooperation on. arrest and surrender, upon request)

  • Art 92: in urgent cases, provisional arrest may be requested, pending a request for surrender and documents required under Art 91

  • Art 59(2)(c) and Art 55: States must respect the rights of the person arrested & domestic courts check this

• Art 85(1) and (3): Unlawful arrest or detention may give rise to compensation

Procedures for restriction and deprivation of liberty ICC (Arrest and Detention)

Section IV RPE

1. Rule 117: Detention in custodial State

2. Rule 118: Pre-trial detention at the seat of the Court

Article 60 RS

Proceedings before the ICC when person is surrendered

• including e.g. person may apply for provisional release

Provisional Release legal framework ICC

Art. 59(3) and 60(2) → Right for suspect/accused to apply for interim release pending surrender or pending trial

• Art. 59(4) RS: National authorities decision based on urgent and exceptional circumstances to justify interim

  release and whether necessary safeguards exist to ensure surrender

  • R 117(3) RPE: challenges to arrest warrant, in light of article 58(1)(a) and (b), only ruled by the PTC

• Art. 58(1)(b) ex vi Art. 60(2) RS: PTC (or TC) decision based on grounds for issuing an arrest warrant

  • R119(1): decision to release may be dependent upon the imposition of conditions

• R118(2) + Art. 60(3): Proprio motu periodic review of decision on interim release (every 120 days) and review at the request of the Prosecutor or the suspect/accused; requirement of

  ‘changed circumstances’

  • → problem with periodic review is that although the burden of proof is on prosecutor to show that they must be detained, there is an implicit reversal because periodic review by accused requires “changed circumstances”

• Art 60(4): Duration of pre-trial detention shall not be unreasonable

Provisional release: Bemba et al 2014

• Decision ordering the conditional interim release of Kilolo, Kabongo, Babala and Arido on the condition: appearance for trial or whenever summoned ensured by the signing of a personal commitment to that effect.

• PTC II decision reversed by the AC and remanded to TC VII; still, taking into account the length of time that had passed since their release, the AC found that it would not be in the interests of justice for the suspects to be re-arrested.

• Accused were convicted of the charges under art. 70, but remained on conditional release, pending the sentencing judgment (except for Bemba, whose release was only granted in 2018 pending a decision on appeals against the sentencing judgment).

• AC ordered the deduction from the sentence of the time spent in detention; the sentences of imprisonment were considered served, since the imposed sentence was equivalent to or less than the sentence applied.

• (From Seminar:)

  • AC just thought PTC failed in duty to (1) not do a proper risk assessment (2) err in their argument

  • None of the risks materialized (Article 58 risks)

  • PTC maybe has some sort of point (even though they were incorrect in the end)

    • Because on the basis of 60(4) no risks assessment under Article 58 needs to be done, just “unreasonable delay”

    • But they cant, so then decide on the basis of 60(3), but then you need risk assessment  (Art. 58 risks)

Provisional release: Gicheru 2021

• Decision ordering the interim release of Gicheru, during the confirmation of charges proceedings, with specific conditions restricting liberty (PTC A, 29 January 2021).

• Examples of conditions

  • Financial security to the ICC Registrar.

  • Full compliance with all orders, especially of immediate surrender; appearance before the Chamber.

  • No obstruction or endangerment of the investigation or proceedings.

  • No public statements, social media posts, or contact with the media about the merits of the case.

  • No international travel, in principle.

  • Residence in Kenya; weekly report to the Registrar.

• TC III terminated proceedings following the passing of the accused.

Cases on art. 70 offences (offences against the administration of justice).

• No interim release for art. 5 offences (core crimes): detention is the rule for serious crimes?

• Positive application of the anticipation rule: avoiding pre-trial detention exceeding the duration of a possible sentence.