Savo Todović’s appeal against the Referral Bench’s 31 May 2006 decision (“Second Impugned Decision”), was largely based on a report by the OSCE  Mission to BiH on the proceedings in the Janković case transferred to the State Court pursuant to Rule 11bis, last November.[1] To sum up, the OSCE Report:

(a)  raises concerns related mainly to the “Law on the Transfer of Cases from the ICTY to the Prosecutor’s Office of BiH and the Use of Evidence Collected by ICTY in Proceedings before the Courts in BiH” (“Law on Transfer”) regarding provisions on the procedure for adapting the ICTY indictment and for reviewing pre-trial custody during the pre-adaptation period;

(b)  provides an assessment of the practice of the State Court and the Appellate Panel,  vis-à-vis Article 5 of the European Convention on Human Rights (“ECHR”); 

(c)  makes recommendations to the legislative authorities on specific amendments to the Law on Transfer;

(d)  makes recommendations to the judges dealing with transferred cases regarding the interpretation of applicable law, and

(e)  makes recommendations to the BiH Prosecutor regarding motions for pre-trial custody.

The OSCE Report is critical of the State Court’s decision to give primacy to the ICTY orders on detention on remand, and the Appellate Panel’s practice of “rubber-stamping” first instance decisions when examining appeals on detention. Hence, the OSCE Report concludes that after examining the State Court’s practice through the prism of international human right standards, Janković’s right to have a judicial authority review his detention during the adaptation period according to Article 5(3) of the ECHR, has been breached.

Noting that the OSCE report makes recommendations under Article 5 of the ECHR, which provides for the right to liberty and security of person, rather than Article 6 of the ECHR with respect to the right to a fair trial, the Appeals Chamber’s decision concludes that the OSCE report does not provide concrete reason to believe that Todović will receive an unfair trial in BiH; emphasizes the seriousness of the concerns raised by the OSCE; acknowledges the importance of the role played by this organisation in the monitoring of the proceedings in cases transferred by the International Tribunal to the Sate Court of BiH, and encourages the competent authorities in BiH to follow the recommendations made by the OSCE concerning judicial practice and the amendment of legal provisions.

See paras 112-124, and in particular the following paragraphs:

118.    The Appeals Chamber finds that the OSCE raises very legitimate concerns with regard to the Law on Transfer as well as Article 132(1)(d) of the BiH CPC. Nevertheless, it finds that the Referral Bench did not abuse its discretion in considering that overall, the BiH laws applicable to the Appellant still provide an adequate legal basis to ensure compliance with the requirement for a fair trial, which includes ensuring rights of an accused while in detention, and the Appeals Chamber does not read the OSCE April 2006 Report as asserting the contrary.[2] However, the Appeals Chamber has no doubt that the competent authorities of BiH will seriously take into consideration the OSCE’s recommendation to strengthen this legal basis by making certain amendments to the Law on Transfer, as well as to  Article 132(1)(d) of the BiH CPC.

119.    With regard to the OSCE’s recommendations on the interpretation and application of applicable law to pre-trial detention vis-à-vis proper judicial review of pre-trial custody conditions by the State Court, the Appeals Chamber does not yet consider that the OSCE’s findings with regard to the Stanković and Janković cases, constitute evidence of an ongoing practice of “rubber stamping” by the Appellate Panel of the State Court when examining appeals of first instance decisions on pre-trial detention. Nevertheless, the Appeals Chamber agrees with the OSCE that the failure of preliminary hearing Judges and the Appellate Panel to consider the merits of complaints made by Stanković and Janković during the pre-adaptation of the indictment phase primarily on the basis of the primacy of the International Tribunal’s Order on Detention on Remand, does not constitute meaningful judicial review of complaints as to pre-trial detention conditions. That being said, the Appeals Chamber emphasizes that despite the failure by the preliminary Judges and the Appellate Panel to apply the relevant provisions in those cases, the Referral Bench did not abuse its discretion in finding that there exists a satisfactory legal framework in BiH to ensure the respect of the rights of an accused in pre-trial custody. The Appeals Chamber reiterates that it expects that the State Court will adhere to the recommendations of the OSCE and will therefore apply those provisions in the BiH laws guaranteeing the rights of an accused in pre-trial custody in such a way as to actually guarantee those rights.