|Decision - 03.11.1999||
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See paragraphs 42, 60 of the decision.
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Rule 40 bis ICTY Rule Rule 40;
Rule 40 bis
|Appeal Judgement - 23.05.2005||
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. It is for the requested State to decide how to implement its obligations under international law.
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.” 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, 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 and consular officers. 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.
 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….”
 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).
 Barayagwiza, Decision, 3 November 1999 [Jean Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-97-19-AR72, Decision, 3 November 1999], paras. 91, 92.
 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.
 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.
 See Vienna Convention on Consular Relations, art. 36(b).
 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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