State requests for review
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Challenge by Croatia - 29.11.2002 |
BOBETKO Janko (IT-02-62-AR54bis & IT-02-62-AR108bis) |
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11. [...] 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 historically accurate.[…] 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. |
ICTR Statute
Article 28
ICTY Statute
Article 29
ICTR Rule
Rule 108 bis ICTY Rule Rule 108 bis |
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| Notion(s) | Filing | Case |
| Decision on Review - 17.01.2008 |
GOTOVINA et al. (IT-06-90-AR108bis.2) |
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On 28 November 2007, Trial Chamber I denied a motion by Ante Gotovina for provisional release. It considered that, in the specific circumstances of the case, the guarantees offered by the Government of Croatia were not sufficient to satisfy the Trial Chamber that Gotovina, if provisionally released, would return to the International Tribunal when ordered. In this respect, the Trial Chamber found that, whereas the incentives not to appear for trial remain unchanged, such guarantees “were not sufficiently effective”. 5. Rule 108 bis of the Rules of Procedure and Evidence (“Rules” or “Rule”) provides a mechanism by which a State affected by a decision of a Trial Chamber may request review of that decision by the Appeals Chamber. For such a request to be admissible, the State in question must demonstrate that (i) it is directly affected by the Trial Chamber’s Decision and 6. In particular, the Appeals Chamber recalls that Rule 108 bis was adopted for a State to seek review of a decision that has affected its legal rights. This remedy is unavailable to a State which claims that a decision has affected its legitimate political interests.[3] 12. The Appeals Chamber finds that Croatia is not affected by the Decision, since the principle of sovereign equality enshrined in Article 2(1) of the United Nations Charter is not actually at stake. The Trial Chamber’s consideration on what effect to be given to a State’s guarantees does not affect a State’s legal right, as such guarantees are not dispositive of provisional release determinations. Rather, the Trial Chamber is required to assess all relevant factors relating to individual circumstances of an accused.[4] Here, the Trial Chamber’s decision to reject Gotovina’s request for provisional release was based on Gotovina’s individual circumstances, of which Croatia’s guarantees were only a part.[5] Thus, a Trial Chamber’s provisional release decision is emphatically not an assessment of the reliability of any particular government or the guarantees that it offers. 13. Furthermore, the Trial Chamber’s assessment of the guarantees cannot be said to have affected Croatia’s legal rights since Croatia has no legally cognizable interest either in securing Gotovina’s provisional release or in ensuring that a Trial Chamber will assesses its guarantee in one particular manner. [1] Rule 108 bis (A); see Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR108bis.1, Decision on Prosecution’s Motion to Strike Request for Review Under Rule 108bis, 13 December 2006 (“Gotovina First Review Decision”), para. 6. [2] Id. [3] Prosecutor v. Janko Bobetko, Case No. IT-02-62-AR54bis & IT-02-62-AR108bis, Decision on Challenge by Croatia to Decision and Orders of Confirming Judge, 29 November 2002 (“Bobetko Decision”), para. 11; see also Gotovina First Review Decision, paras 7-8. [4] See, e.g., Prosecutor v. Vujadin Popović, Case No. IT-02-57-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Vujadin Popović’s Application for Provisional Release, 28 October 2005, para. 10 (“The Trial Chamber, moreover, did not have to rely on the guarantees just because they had been offered by Governments with power to arrest the Appellant. A Trial Chamber must evaluate government guarantees in light of the circumstances surrounding each individual applicant, and in some circumstances, it may be reasonable to place little weight on a government guarantee. Indeed, here the Trial Chamber did not err by failing to find the government guarantees determinative notwithstanding the issuing authorities’ track record regarding compliance.”) (citation omitted and emphasis added); Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.3, Decision on Interlocutory Appeal of Trial Chamber’s Decision Denying Ljubomir Borovčanin Provisional Release, 1 March 2007, para. 16 (noting that “the reliability of such a guarantee must always be determined in relation to the circumstances of an individual accused in each case”) (emphasis added); Prosecutor v. Milan Lukić and Sredoje Lukić, Case No. IT-98-32/1-AR65.1, Decision on Defence Appeal Against Trial Chamber’s Decision on Sredoje Lukić’s Motion for Provisional Release, 16 April 2007, para. 21 (observing that “the Trial Chamber duly considered the weight to be accorded to the guarantees in relation to the particular circumstances of the Appellant’s case”) (emphasis added). [5] Cf. Gotovina First Review Decision, para. 8 and Bobetko Decision, para. 11. |
ICTY Rule Rule 108bis | |
| Notion(s) | Filing | Case |
| Decision on Review - 17.01.2008 |
GOTOVINA et al. (IT-06-90-AR108bis.2) |
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8. In the instant case, Croatia requests review of a decision, which was issued by Trial Chamber I upon motion of Gotovina.[1] Thus, according to the Rules, Gotovina has the right to be heard on this matter, while the Prosecution may be heard only if the Appeals Chamber considers it in the interests of justice.[2] The Appeals Chamber considers that, since Gotovina was arrested upon request of the Prosecution in the first place,[3] the interests of justice require that the Prosecution be heard in relation to this matter. The Prosecution Motion is therefore validly filed. [1] Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Defendant Ante Gotovina’s Motion for Provisional Release, 7 August 2007. [2] Rule 108 bis (B); Gotovina’s Motion to Strike, paras 2-3. [3] See, inter alia, Prosecutor v. Ante Gotovina, Case No. IT-01-45-I, Warrant of Arrest – Order for Surrender, 24 February 2004, p. 2. |
ICTY Rule Rule 108bis | |