INTERIM RELEASE
AND STATE
GUARANTEES
at the International
Criminal Court
Anna Chatelion Counet
University of Amsterdam
Faculty of Law
Supervisor – prof. dr. G. K. Sluiter
Master’s Thesis
27 July 2018
INTERIM RELEASE
AND STATE
GUARANTEES
at the International
Criminal Court
Anna Chatelion Counet
University of Amsterdam
Faculty of Law
Supervisor – prof. dr. G. K. Sluiter
Master’s Thesis
INTERIM RELEASE AND STATE
GUARANTEES
AT THE INTERNATIONAL CRIMINAL COURT
MASTER’S THESIS
University of Amsterdam Faculty of Law
International and European Law: Public International Law
Supervisor – prof. dr. G. K. Sluiter
27 July 2018
by
CONTENTS
ABBREVIATIONS...5
ABSTRACT...6
CHAPTER I INTRODUCTION...7
1.1 Contextualization...8
1.2 Interim release in practice...9
1.3 State consent...10
CHAPTER II FRAMEWORK OF THE RIGHT TO LIBERTY IN INTERNATIONAL HUMAN RIGHTS LAW 11 2.1 Introduction...11
2.2 Effective power to order release...12
2.2.1 Power to order release and state guarantees...13
2.3 Relevant and sufficient grounds...14
2.3.1 Relevant and sufficient grounds and state guarantees...14
2.4 Delay...15
2.4.1 Immediate Release...15
2.4.2 Interference with the release order...15
2.4.3 Delay and state guarantees...16
2.5 Interim conclusion...16
CHAPTER III FRAMEWORK OF THE INTERNATIONAL CRIMINAL COURT ON INTERIM RELEASE AND STATE GUARANTEES...17
3.1 System of the Statute and Rules of Procedure and Evidence...17
3.1.1 Rome Statute...17
3.1.2 Rules of Procedure and Evidence and Regulations...18
3.2 ICC jurisprudence...18
3.2.1 Conditional or unconditional...20
3.3 State obligation to cooperate with the court...21
3.3.1 Cooperation agreements...22
3.4 Interim conclusion...22
CHAPTER IV COMPARING THE SYSTEMS...24
4.2 Finding a state willing and able before the KSC...25
4.3 Context issues...26
4.3.1 Territory...26
4.3.2 Enforcement agencies...27
4.3.3 Trials in absentia...27
4.3.4 Factors increasing the risk of flight...27
4.4 Interim conclusion...28
CHAPTER V JUDGMENT OF THE KSC...29
5.1 Human Rights Obligations of the Kosovo Specialist Chambers...30
5.2 Reasoning of the Panel...30
5.3 Use of ECtHR Case Law...32
5.4 Interim conclusion...32
CHAPTER VI THE WAY FORWARD...34
6.1 Legal solutions...34
6.1.1 Re-interpret Rule 119(3)...34
6.1.2 Re-interpret the duty to cooperate with the Court...35
6.2.2 Host State responsibility...35
6.2.3 Financial Compensation...36
6.2 Diplomatic solutions...37
6.2.1 Strengthen cooperation agreements...37
6.2.2 Amend the Rome Statute...37
6.3 Release in the Netherlands as a final resort...37
CHAPTER VII CONCLUSION...39
BIBLIOGRAPHY...41
LIST OF INSTRUMENTS...44
ABBREVIATIONS
ECHR European Convention on Human Rights ECtHR European Court of Human Rights ICC International Criminal Court ICTs International Criminal Tribunals
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia IHRL International Human Rights Law
KSC Kosovo Specialist Chambers RPE Rules of Procedure and Evidence SPO Specialist Prosecutor’s Office
ABSTRACT
International Criminal Tribunals lack a territory of their own to release their suspects on. Consequently, tribunals have to rely upon state cooperation to execute interim release orders, which is the release of suspects from pre-trial detention. In order not to be left behind with release orders that cannot be executed, the International Criminal Court decided to require a state guarantee of a state which is willing and able to receive the released person on its territory prior to a decision granting interim release. However, pre-trial detention is a very sensitive subject in international human rights law, since it is closely related to the presumption of innocence. The European Court of Human Rights has, therefore, emphasized repeatedly that it requires that authorities reviewing the lawfulness of a detention should have the power to effectively order the release. The requirement to identify a state willing and able to receive the released person prior to the order of release takes away the effective power of the chambers to order a release when they have found the detention to be unlawful. This thesis analyses whether the requirement of state guarantees in interim release orders falls within the parameters of the concept of contextualization, which allows international criminal tribunals to adapt international human rights law to the unique and specific circumstances they operate in. Of importance in examining the parameters of contextualization with regard to interim releases is the ruling of the Kosovo Specialist Chambers, concluding that reliance upon state guarantees constitutes a flagrant violation of the right to liberty. Since the KSC operates within the same unique and specific context as the ICC, as opposed to national courts, it will be expected of the ICC to take the right to liberty explicitly into consideration the next time any issue with state guarantees comes up. This is expected all the more because the ICC neglected to consider any human rights perspective when it first proposed the requirement of state guarantees. The ICC might refer to the Judgment of the KSC as it can be applicable as part of internationally recognized human rights through Article 21(3) of the Statute.
CHAPTER I
INTRODUCTION
Interim release is the temporary release of an accused, either with or without specified conditions, for an extended period of time pending trial or judgment by the International Criminal Court (‘ICC’).1 The debate surrounding interim release is illustrative of the general tension between
international human rights law (‘IHRL’) and the practices of International Criminal Tribunals (‘ICTs’). It is difficult to apply IHRL to ICTs as such, because it is drafted primarily for states, from which the functioning of an ICT is fundamentally different.2 Tribunals lack a territory of their
own for the execution of release orders, which makes it specifically relevant to discuss the application of the right to liberty as protected by IHRL in the field of interim releases.3 The ICC
has adapted its own interpretation of the right to liberty by requiring state guarantees in release orders. State guarantees are declarations in which states consent to receive a released person. Recently, however, one of the other ICTs, the Kosovo Specialist Chambers (‘KSC’), broke with this tradition of state consent long known before the ICTs.4 It declared a detention based on the
sole reason that there is a lack of state consent to be inconsistent with the right to liberty and, therefore, to be unlawful.5 The point at issue in this thesis is whether the ICC may continue its
practice with regard to state guarantees or whether it needs to accept the view of the KSC. On this account, the research question of this study is:
“Is the current system of interim release at the International Criminal Court in accordance with international human rights law, when taking into account the judgment of the Kosovo Special Chambers on Detention on Remand?”
1 Maria Laura Ferioli, The Impact of Cooperation on the Rights of Defendants before the International Criminal
Court (PhD Thesis, University of Amsterdam 2016), 187.
2 Krit Zeegers, ‘International criminal tribunals and human rights law: Adherence and contextualization’ vol 5 (TMC Asser Press 2016), 104.
3 Göran Sluiter and Jessica Schechinger, ‘International Criminal Tribunals and Their Relation to States’ in André Nollkaemper and Ilias Plakokefalos (eds), The Practice of Shared Responsibility in International Law (Cambridge University Press 2017), 224.
4 See infra section 1.2.
5 KSC, Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law no. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, Case no. KSC-CC-PR-2017-01, 26 April 2017 (‘KSC Judgment of 26 April 2017’).
1.1 Contextualization
The concept of contextualization will be the point of focus in answering the research question. Contextualization is the practice of ICTs in which they adapt IHRL to the unique and specific contexts they operate in.6 The rationale behind contextualization is that IHRL is developed to
govern the conduct of states from which the functioning of ICTs fundamentally differs.7 General
aspects of the unique context of international criminal justice are the ICTs’ necessary reliance upon state cooperation, the gravity of the crimes, the complexity of the cases and their fundamental purpose: ending impunity. These aspects may allow for the adaption of IHRL, for instance, the right to be tried without undue delay is considered to restrict ICTs much less in comparison to national courts.8 The practice of contextualization is, within certain limits, generally
allowed.9 Some scholars even refer to it as the paramount way for ICTs to apply IHRL.10 Through
their own instruments, ICTs are all bound to IHRL one way or the other. The ICC is bound by IHRL through Article 21(3) of the Rome Statute that provides a prioritised position for IHRL above all other sources of law, including the Rome Statute itself.11 Despite the prioritised position,
the practice of contextualization has been acknowledged to be necessary in the practice of the ICC for the purpose of safeguarding the uniqueness of the criminal procedure before it.12 The
parameters of contextualization have to be analysed on a case by case basis and may differ from tribunal to tribunal. Although many differences exist between all tribunals,13 the issue is not as
straightforward as to say that no general conclusions regarding the status of IHRL in international criminal adjudication and the parameters of contextualization can be made.14 As long as the
different contexts are examined and taken into consideration, attempts to make general conclusions
6 Sergey Vasiliev, International Criminal Trials: A Normative Theory, (PhD Thesis, University of Amsterdam 2014), 138.
7Göran Sluiter and Masha Fedorova, Human Rights as Minimum Standards in International Criminal Proceedings’ (2009) 3 Human Rights and International Legal Discourse 9, 10; similarly Zeegers (n 2), 104.
8 Zeegers (n 2), section 7.3.
9 Vasiliev (n 6), 138. Vasiliev refers to it as an uncontroversial topic in legal literature. 10 ibid.
11 Article 21 (3) of the Rome Statute of the International Criminal Court UN Doc A/CONF 183/9 (adopted 17 July 1998, entered into force 1 July 2002) (the ‘Rome Statute’), see Sluiter and Fedorova (n 7), 24.
12 ICC, Annex 1 to the Decision on the Final System of Disclosure and the Establishment of the Timetable,
Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-102, 15 May 2006, para 4.
13 Fisnik Korenica, Argjend Zhubi and Dren Droli, ‘The EU-engineered hybrid and international specialist court in Kosovo: How ‘special’ is it?’ (2016) 12 European Constitutional Law Review 474, argued that the KSC contained a novel and unique hybrid model in comparison to the other hybrid courts, including the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Panels for Serious Crimes (East Timor), the Bosnian War Crimes Chamber and Special Tribunal for Lebanon.
are allowed. Chapter IV on the comparison of the systems will analyse specifically to what extent the context of the KSC deviates from the context of the ICC.
1.2 Interim release in practice
As to date, the ICC has ordered interim release in two cases. In the case of Bemba his release had been ordered once,15 but the order of release received suspensive effect and had been reversed by
the Appeals Chamber.16 In the case of Bemba et al. the four suspects besides Mr Bemba himself,
received an order of release. Except for one person they could all be immediately released after the order of release became official. The other one, Mr Mangenda, had to wait nine more days before he could be released due to the non-cooperation of the United Kingdom. Very recently, Mr Bemba has received an order for interim release as well in the case of Bemba et al., partly due to the acquittal in his main case.17 The KSC has not issued any arrest warrants yet, nor could any practice
of interim release be present.
At the Nuremberg and Tokyo Tribunals, set up to prosecute war criminals of the Nazi regimes, there were no options to argue for interim release. Some of the defendants were already detained before the tribunals were actually established. Detention was the general rule and there were no exceptions.18 However, it should be noted that these tribunals operated in a pre-human
rights era.19
The International Criminal Tribunal for Rwanda (‘ICTR’) has not provisionally released a single person either.20 The fact that Rwanda, the country of origin of most of the suspects, was not willing
to accept provisionally released persons was crucial.21 The International Criminal Tribunal for the
former Yugoslavia (‘ICTY’) on the other hand, has become increasingly permissive of provisionally releasing accused over the years, due to, among other things, the increased
15 ICC, Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa, Prosecutor v. Bemba, Case No. ICC-01/05-01/08-475, 14 August 2009, sentence starting with “For these reasons (…)”, page 35.
16 ICC, Judgment on the Appeal of the Prosecutor against Pre-Trial Chamber II's "Decision on the Interim Release of Jean-Pierre Bemba Gombo and Convening Hearings with the Kingdom of Belgium, the Republic of Portugal, the Republic of France, the Federal Republic of Germany, the Italian Republic, and the Republic of South Africa",
Prosecutor v. Bemba Gombo, Case No. ICC-01/05-01/08-631, 2 December 2009, para 111.
17 ICC, Decision on Mr Bemba’s Application for Release, Prosecutor v Bemba et al., Case No. ICC-01/05-01/13-2291, 12 June 2018, para 18.
18 Salvatore Zappalà, ‘Human Rights in International Criminal Proceedings’ (OUP 2003), 67. 19 ibid.
20 Zeegers (n 2), 204. 21 Zeegers (n 2), 220-221.
cooperation from countries to which accused persons sought release.22 The relevant countries had
always been willing to receive released suspects, but the ICTY found the guarantees to be insufficient for a long time.23 Still, even at the ICTY an ICTY Chamber, as recent as 2011, held
that before the Tribunal ‘detention appears to be the rule and provisional release the exception’.24
1.3 State consent
The difference between the ICTR and the ICTY in relying on state guarantees is relevant for the understanding of the kind of state guarantee that is at stake. On the one hand, there are state guarantees in which a state declares that it is willing to receive a released suspect. Thus, this state guarantee comes down to a state consenting, which Rwanda refused to do. On the other hand, there are state guarantees in which the state ensures that it is capable to provide the necessary conditions for release to be enforced as the relevant countries before the ICTY were not able to. This thesis discusses the former description of state guarantee, the state consent.
This thesis will subsequently discuss the framework of the right to liberty in IHRL, focussing upon possible conflicts between different aspects of the right to liberty with the reliance upon state guarantees by ICTs, the framework of the ICC with regard to interim release and state guarantees, the similarities and disparities of the ICC and the KSC, the judgment of the KSC on interim release and state consent and, last but not least, the way forward for the ICC.
22 ibid., 204. 23 ibid., 220.
24 ICTY, Decision on Jadranko Prlić’s Motion for Provisional Release, Prosecutor v. Prlić et al, Case No IT-04-74-T, 21 April 2011, 28; in: Zeegers (n 2) 204. See also Zappalà (n 18), 70.
CHAPTER II
FRAMEWORK OF THE RIGHT TO LIBERTY IN
INTERNATIONAL HUMAN RIGHTS LAW
2.1 Introduction
This chapter analyses the relevant components of the International Human Rights Law Framework on the right to liberty with regard to interim release. The right to liberty is protected by all major human rights conventions in similar wording.25 All conventions provide for a right to personal
liberty and prohibit arbitrary and unlawful deprivations of liberty. The International Covenant on Civil and Political Rights (‘ICCPR’) and the European Convention on Human Rights (‘ECHR’) explicitly allow the deprivation of liberty in cases of pre-trial detention.26
In referring to internationally recognized human rights the chambers of the ICC have relied heavily, even primarily, on the jurisprudence of the European Court of Human Rights (the ‘ECtHR’).27 Therefore, to merely discuss the jurisprudence of the ECtHR will suffice in analysing
the relevant framework of IHRL.
Article 5 envisages the right to liberty of the ECHR.28 The first paragraph sets out the
legitimate exceptions to the right to liberty. One of the authorized deprivations is detention ‘for the purpose of bringing before the competent legal authority’, which is equivalent to pre-trial detention.29 In connection with this authorized deprivation stands the procedural guarantee
included in the third paragraph, stating that detainees ‘shall be brought promptly before a judge or other officer authorised by law to exercise judicial power’. This procedural guarantee for pre-trial detainees has a stronger character than the procedural guarantee that follows from paragraph four, which applies to all forms of detention.30
In cases of pre-trial detention, reasons to detain someone always need to be balanced with the presumption of innocence. Since suspects may turn out to be innocent, they should be treated as
25 Art. 5 ECHR; Art. 9 ICCPR; Art. 7 American Convention on Human Rights; Art. 6 African Charter on Human and Peoples' Rights.
26 Art. 5(1)(c); Art. 9(3).
27 Sergey Golubok, ‘Pre-Conviction Detention before the International Criminal Court: Compliance or
fragmentation?’ (2010) 9 The Law & Practice of International Courts and Tribunals 295, 296; see also Heinze, infra note X, 1000 and Sluiter and Fedorova (n X), 44.
28 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950.
29 Article 5(1)(c) ECHR.
30 Despina Chatzivassiliou, ‘The Guarantees of Judicial Control with Respect to Deprivation of Liberty under Article 5 of the European Convention of Human Rights: An Overview of the Strasbourg Case-Law’ 5(4) ERA Forum 499, 506.
such until his conviction.31 From the presumption of innocence in relation with the right to liberty
also follows the presumption of liberty: detention should be the exception, not the rule.32
There are several aspects of the right to liberty that are might constitute a conflict with a system of pre-trial detention in which state guarantees are central. Those aspects being the power to release, the exhaustive list of relevant and sufficient grounds and the prohibition of delay.
2.2 Effective power to order release
Both paragraph 3 and 4 of Article 5 ECHR are aimed at bringing a detainee to a competent legal authority that can review the detention, as safeguarded by Article 5(1)(c). Under these paragraphs the ECtHR’s long-established case law brings with it that a “judge or other officer authorised by law to exercise judicial power” or “court” respectively, is supposed to be able to release the person of whom it is reviewing the detention.33 In other words, the court or officer should have the power
to effectively order the release.
The ECtHR has found it particularly troubling if the authority for which the detainee has to appear does not have the final say on the order of release. For example, in Stafford the Secretary of State had the power to make a final decision on the release of a detainee who had to appear before the Parole Board. As a consequence, the Parole Board just had an advising role which was found to be in violation of Article 5(4).34 The same goes for officers falling within the scope of Article
5(3) who are not judges. In the Schiesser case the ECtHR stated that these officers need to have the same attributes as judges have for them to be allowed to decide upon the lawfulness of pre-trial detentions. Including, the power to order release.35
31 Lonneke Stevens, ‘Pre-Trial Detention: The Presumption of Innocence and Article 5 of the European Convention on Human Rights Cannot and Does Not Limit its Increasing Use’ (2009) 17 European Journal of Crime, Criminal Law and Criminal Justice 165, 167-168.
32 Zeegers (n 2), 194.
33
Mckay v United Kingdom App No 543/03 (ECtHR, 3 October 2006), (2007) 44 EHRR 41, 35 referring toSchiesser v Schwitzerland App No 7710/76 (ECtHR, 4 December 1979), (1980) 2 EHRR 417, 31. See also, for paragraph 3: Ireland v United Kingdom App No 5310/71 (ECtHR, 13 December 1977), 199, for paragraph 4: Stafford
v United Kingdom App No 46295/99 (ECtHR, 28 May 2002), (2002) 35 EHRR 1121, 88; Curley v. United Kingdom
App No. 32340/96 (ECtHR, 28 June 2011), (2000) 31 EHRR 401, 32; Ryabikin v. Russia App No 8320/04 (ECtHR, 19 June 2008), (2009) 48 EHRR 55, 137; Öcalan v Turkey App No 46221/99 (ECtHR, 12 March 2003), (2003) 37 EHRR 238, 75; Ireland v United Kingdom App No 5310/71 (ECtHR, 18 January 1978), (1979-80) 2 EHRR 25, 200. 34 Stafford v United Kingdom App No 46295/99 (ECtHR, 28 May 2002), (2002) 35 EHRR 1121, 88-90.
Moreover, the competent legal authority should also have the power to grant conditional release.36 Because the authorities are obliged to consider alternative methods of ensuring
appearance at trial.37 Especially when the only remaining reasons for continued detention is the
fear that the accused will abscond and thereby subsequently avoid appearing for trial and if it is possible to obtain from him guarantees that will ensure such appearance, his release pending trial must be ordered.38
The requirement to give effective power to order a release to the authority in charge of deciding in pre-trial detention cases also entails that detention should not be dependent on administrative and diplomatic inconvenience, nor on any other external factors that are beyond the control of the detainee.39
2.2.1 Power to order release and state guarantees
When state guarantees are required in order to order the release of a suspect, a court lacks effective power to order release.40The question of whether a state guarantee is present precedes the question
of whether the person should be released. Even if a chamber takes the relevant question of the lawfulness of the detention into consideration, the fact remains that the non-availability of a state guarantee makes the answer to this question insignificant. These practices have been considered to be in breach with cases where the ECtHR found violations in similar situations of ineffective power.41
Furthermore, a chamber is not allowed to neglect to consider the possibility of conditional release exclusively on the basis that no state has yet offered to accept a detained person and to enforce conditions.
2.3 Relevant and sufficient grounds
The ECtHR has often reiterated that the reasonable suspicion of committing an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time,
36 In Mckay v United Kingdom App No 543/03 (ECtHR, 3 October 2006), (2007) 44 EHRR 41, 36 the ECtHR stated that the convention does not necessarily oblige that the possibility of conditional release be considered by the same authority at the same time as the non-conditional release.
37 Idalov v Russia App No 5826/03 (ECtHR, 22 May 2012), (2007) 44 EHRR 41, 140, 148; Lelièvre c. Belgique Requête No 11287/03 (ECtHR, 8 novembre 2007), 97, 108.
38 Wemhoff v Germany App No 2122/64 (ECtHR, 27 June 1968), (1979) 1 EHRR 55, 15.
39 Aiste Dumbryte, ‘The Roads to Freedom – Interim Release in the Practice of the ICC’ in Carsten Stahn (ed), The
Law and Practice of the International Criminal Court (OUP 2015), 1075.
40 See Golubok (n 27), 308
it no longer suffices: a Court must then establish whether other grounds exist which justify the deprivation of liberty.42 These ‘other grounds’ must be relevant and sufficient. The list of relevant
and sufficient grounds has evolved into an exhaustive list.43 The Convention case-law has
developed four acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: flight risk; the risk that the accused, if released, would take action to prejudice the administration of justice; the risk that the released person would commit further offences or that he or she would cause public disorder.44
2.3.1 Relevant and sufficient grounds and state guarantees
The list of relevant and sufficient grounds as evolved within the jurisprudence of the ECtHR can be considered to be in violation of requiring state guarantees. If the state guarantee is required in addition to what has been considered as relevant and sufficient grounds, it is an additional requirement. This additional requirement, either explicit or implicit, of a state guarantee is in violation of the exhaustiveness of the list of relevant and sufficient grounds. However, the state guarantee could be considered necessary to assess whether a flight risk exists, a court needs to rely upon the cooperation of the state where the suspect will be released. In order to assure his or her reappearance at court, the court is allowed to demand state guarantees.45 However, this kind of
state guarantee is focussing upon the ability of a state to receive and return the suspect, not on its willingness.
2.4 Delay
2.4.1 Immediate Release
A court should not only have the power to order the release of someone, but the release should also be carried out immediately. There are different situations in which issues of delay might come up. There is, of course, the general issue of a delay in time. The release might not have been carried out immediately. The ECtHR allows some delay in carrying out a decision to release a detainee, since it is sometimes inevitable.46 Nevertheless, in Giulia v Italy the Court had emphasized that
42 See for instance, Gál v Hungary App No 62631/11 (ECtHR, 11 March 2014), 40.
43 See Zeegers (n 2), 274; similarly Golubok, (n 27), 299, who stated that “It follows from the well-established jurisprudence of the ECtHR that the list of those grounds is not an unlimited one”; similarly Stevens (n 31), 172. 44 Smirnova v Russia App No 46133/99 and 48183/99 (ECtHR 24 July 2003), (2004) 39 EHRR 22, 59; similarly
Muradkhanyan v. Armenia App No 12895/06 (ECtHR, 5 June 2012), 81.
45 Zeegers (n 2), 218-220.
46 Guide on Article 5 of the Convention, Right to Liberty and Security, Council of Europe/European Court of Human Rights 2014, para II.10.
national authorities must attempt to keep the delay to a minimum.47 In another case, a delay of
eleven hours in executing a decision to release the applicant “forthwith” was found to be incompatible with Article 5(1) of the ECHR.48
2.4.2 Interference with the release order
If it were to be found that a detention lacks a legal basis, it means that part of the detention has been unlawful in retrospective. This could be regarded as a delay in the release as well. This was the case in Assanidze v Georgia, one of the standard cases on delay in executing orders of release.49 In brief, the problem with the detention of Mr Assanidze was that it continued while he
had received a judgment of acquittal.50 The government of Georgia argued that there was no basis
for the acquittal in law.51 However, the ECtHR did not agree with the government and found that
there had been no statutory or legal basis for the applicant’s deprivation of liberty. The detention could, therefore, not be justified under any sub-paragraph of Article 5(1) of the ECHR.52 Since this
case is also about the non-compliance of an authority with an order of release, it seems as if this ruling does not differ much from the rulings on the effective power to order a release. Nonetheless, a crucial difference exists between the case of Assandize and cases like Schiesser. In Schiesser the applicant came before an officer who was supposed to rule on the lawfulness of his detention, but could not effectively order the release if he were to find that the detention was unlawful. Thus, the legal system in place was lacking the possibility to order the release. In Assanidze, on the contrary, the Court that acquitted him would normally have been in charge to effectively order the release, but an institution from the outside had interfered and blocked the release. Hence, the Georgian legal system that was in place in Assanidze was in accordance with Article 5 ECHR, but the violation was found because of the interference.
2.4.3 Delay and state guarantees
With regard to the state guarantees in international criminal law, a situation might arise in which the detention was found to be unlawful. For example, on the basis of relying on grounds that are not relevant and sufficient, as concluded in the previous paragraph. Once such unlawfulness is
47 Giulia Manzoni v. Italy App No 19218/91 (ECtHR, 1 July 1997), (1998) 26 EHRR 691, 25. 48 Quinn v. France App No 18580/91 (ECtHR, 22 March 1995), (1996) 21 EHRR 529, 39-43. 49 ibid.
50 Assanidze v Georgia App No 71503/01 (ECtHR, 8 April 2004), (2004) 39 EHRR 32, 59. 51 ibid., 164.
discovered, the continued detention might be regarded as an extended delay from the moment that the detainee should have been released. This would mean that the detention was unlawful and that the release was unlawfully delayed.
2.5 Interim conclusion
In general, the case law of the ECtHR on the right to liberty requires that courts reviewing detentions should also be fully able to decide upon the release of those who are detained. First of all, the authority that is reviewing the detention, by having the detainee appearing before it, should also be the authority that orders the release. Secondly, this authority has a limited list of relevant and sufficient grounds on which it can base its decision that the detention is lawful. Thirdly, when the release is ordered, it must be carried out immediately and there cannot be interference from outside. The reliance upon state guarantees is not at all line with these aspects of the right to liberty. The ICC is therefore entering into dangerous waters every time it relies upon state guarantees.
CHAPTER III
FRAMEWORK OF THE INTERNATIONAL CRIMINAL
COURT ON INTERIM RELEASE AND STATE
GUARANTEES
3.1 System of the Statute and Rules of Procedure and Evidence
None of the instruments of the ICC contain specific provisions regulating a way to find a state willing to accept persons whom the ICC believes should be granted interim release.53 This is
already striking, since the Rome Statute (the ‘Statute’), the founding instrument of the ICC, does regulate in significant detail the role of states in enforcement of sentences of imprisonment.54 In
short, Article 103 of the Statute entails a list of states who can be considered when deciding to which state a sentenced person should be sent to, if no state can be found to cooperate, the Host State has a residual role in order not to end up in a legal limbo.55 The way in which the ICC
determines whether a detainee should be granted interim release will be set out in the following paragraphs.
3.1.1 Rome Statute
The basis for detention in the Rome Statute is the arrest warrant issued by the Pre-Trial Chamber pursuant to the grounds of Article 58(1)(b) of the Statute. The grounds of Article 58(1)(b) are similar to the relevant and sufficient reasons as applied by international human rights law (‘IHRL’). It is provided that a person may be detained if it is necessary to decrease the (i) flight-risk, (ii) risk of interference with the investigation or trial, or (iii) risk of reoffending.
A person detained on a warrant of arrest may apply for interim release pending trial, pursuant to Article 60(2) of the Statute. The Chamber will decide whether the reasons set forth in Article 58(1)(b) are still applicable. If so, the person shall continue to be detained. If the Chamber is not satisfied that the reasons are still applicable, it shall release the person, either with or without conditions.56 Article 60(3) states that the Pre-Trial Chamber shall periodically review its ruling on
the detention of the person, and may do so at any time on the request of the person. If the Chamber is satisfied that changed circumstances require the release of the person it may modify its decision.
53 Sluiter and Schechinger (n 3), 224. 54 Sluiter and Schechinger (n 3), 226. 55 Article 103(1) and (4) of the Rome Statute.
56 See ICC, Decision on Interim Release, Prosecutor v. Bemba et al., Case No. ICC-01/05-01/13-1151, 17 August 2015, para 13.
Neither Article 58, nor Article 60 makes any reference of the consent or guarantee of a state for ordering interim release.
3.1.2 Rules of Procedure and Evidence and Regulations
As stated in Article 60(3) the Chamber may order the release of a person either with or without conditions. Rule 119 of the Rules of Procedure and Evidence (the ‘RPE’) sets out a non-exhaustive list of conditions restricting the liberty of the released person that the Chamber may impose. Moreover, Paragraph 3 of Rule 119 states that the Chamber shall seek the views of the parties of any relevant State. This has been reiterated in Regulation 51 which states that the Chamber shall seek observations from the Host State and from the State to which the person seeks to be released. However, to seek observations or views is not the same as to rely upon the guarantee of a state. For example, a chamber may deviate from the views of a state. Moreover, the chamber must still order the immediate release without considering the views of any state in situations in which the accused has not yet identified a state in which he or she would want to be released in, possibly because the person had not expected that a release would follow. The role of a chamber in considering whether one should be granted interim release is merely to decide upon the lawfulness of the detention, not on the practical question of where the person would go if were to be released.
3.2 ICC jurisprudence
The leading judgment of the Appeals Chamber on interim releases and state guarantees is the Judgment in the Bemba case from 2 December 2009. In reversing the Decision of the Single Judge who decided that state guarantees were not a ‘prior indispensable requirement’ for interim release,57 the Appeals Chamber considered that:
“(…) a State willing and able to accept the person concerned ought to be identified prior to a decision on conditional release.”58
The Appeals Chamber derived this rule that requires chambers to identify a State willing and able to accept the person prior to a decision on conditional release from two things. Firstly, it interpreted Rule 119(3) as prescribing that such a State needs to be identified before deciding upon
57 Decision on Interim Release of Mr Bemba of 14 August 2009 (n 15), para 88.
the person’s release.59 Secondly, the Appeals Chamber stated that the rule follows from the fact
that the ICC is dependent on state cooperation, since it lacks a territory of its own.60 Without such
cooperation the decision would be ineffective.
The Judgment did not mention the right to liberty, 61 nor had it been made specific that they
were applying contextualization. However, the argument used by the Chamber that they had no choice but to incorporate the fact that the ICC lacks a territory of its own is clearly a contextualizing argument.
The execution of release orders cannot be done without any interference from states. The ICC lacks a territory of its own, so it needs to rely upon a state to cooperate. However, this de facto situation justifies in no way the decision of the Appeals Chamber to incorporate this problem into the legal consideration of the release of a person. In other words, when implying the IHRL Framework as set out in chapter II, the de facto situation is equivalent to the case of Assanidze in which there was an interference from outside in the execution of his release. Whereas this rule created by the Appeals Chamber to identify a state willing and able to receive the released person prior to a decision on interim release is equivalent to taking away the effective power to order release. Moreover, the reliance upon state guarantees is also an additional ground that needs to be considered, whereas IHRL prescribes an exhaustive list of relevant and sufficient grounds. Therefore, the Appeals Chamber has only increased its level of violating the right to liberty as enshrined in IHRL.
Unfortunately, the ICC continued to require the presence of state guarantees in interim release decisions.62 In some cases the reliance upon state guarantees was even heavier. For
example, in the case of Gbagbo the Appeals Chamber held that a Chamber only had to consider whether conditional release was feasible when there had been State which offered to accept a detained person.63 As has been mentioned, under IHRL a chamber is not allowed to neglect to
59 ibid., 106. 60 ibid., 107.
61 Sluiter and Schechinger (n 3), 225.
62 See for instance, ICC, Decision on the Defence's Application for Interim Release, Prosecutor v Ntaganda, Case no. ICC-01/04-02/06-147, 18 November 2013, para 62.
63 ICC, Judgment on the appeal of Mr Laurent Koudou Gbagbo against the decision of Pre-Trial Chamber I of 13 July 2012 entitled “Decision on the 'Requête de la Défense demandant la mise en liberté provisoire du président Gbagbo”,
Prosecutor v. Gbagbo, Case No. ICC-02/11-01/11-278, 26 October 2012, para 79. See also ICC, Decision on the
Review of Dominic Ongwen’s Detention and on the Restriction on Communication, Prosecutor v. Ongwen, Case No. ICC-02/04-01/15-503, 21 July 2016, para 15, Footnote 30 (paraphrasing ICC, Judgment on the appeal of Mr Jean-Jacques Mangenda Kabongo against the decision of Pre-Trial Chamber II of 17 March 2014 entitled “Decision on the 'Requête de mise en Iiberté' submitted by the Defence for Jean-Jacques Mangenda”, Prosecutor v. Bemba et al., Case No. ICC-01/05-01/13-560 OA 4, 11 July 2014, para. 128: the Chamber notes that the Appeals Chamber has indicated
consider the possibility of conditional release exclusively on the basis that no state has yet offered to accept a detained person and to enforce conditions.64
Very recently, Mr Bemba has been granted interim release.65 Within this decision, the
reliance upon a state guarantee has been loosened a bit for the first time, since Belgium’s previous demonstration of willingness and capability to receive Mr Bemba were considered sufficient in identifying a state willing and able to receive the released person.66 Nevertheless, the need for
Belgium’s consent was still as important as before.
3.2.1 Conditional or unconditional
The Appeals Chamber only referred to conditional releases in its landmark judgment of 2 December 2009. It became clear, however, from the ineffective release order of Mr Mangenda in the Bemba et al. case that the state guarantees are as important for unconditional releases as they are for conditional releases. Mr Mangenda’s release had been ordered without any state guarantee and could not be executed because the United Kingdom, in which the suspect wanted to be released, was not cooperating.67 When he requested financial compensation for the days of
detention between the order for release and the actual release to the United Kingdom (in the end, it did cooperate), the request was rejected because the detention was not unlawful.68 The chamber
concluded that Mr Mangenda was not entitled to immediate and unconditional release, when he could not fulfil the condition to provide an address. Thus, the chamber, implicitly, allowed for the reliance upon the lack of a state consent as a lawful interference with the release order. Since Mr Mangenda did fulfil all legal requirements for his release to be ordered, the non-compliance wsa only due to the practical issue of not having a state willing to receive him. However, since this interference took place after the release had already been ordered, this is a situation equivalent to the case of Assanidze and therefore, legally speaking, less serious of a violation than the rule of relying upon state guarantees prior to ordering conditional releases.
that where there are no adequate State guarantees, a Chamber’s ‘discretion to consider conditional release is unfettered’).
64 Infra section 2.4.1.
65 Case No. ICC-01/05-01/13-2291 (n 12). 66 ibid., para 25.
67 ICC, Requête extrêmement urgente en vue de la tenue d’une audience avec les représentants des Etats du Royaume Uni des Pays Bas et de la Belgique par rapport au manque de coopération en vue de la mise en liberté ordonnée de Monsieur Jean Jacques Kabongo Mangenda et à sa détention arbitraire, Prosecutor v. Bemba et al., Case No. ICC-01/05-01/13-723, Defence, 28 October 2014, para 3.
68 ICC, Decision on request for compensation for unlawful detention, Prosecutor v. Bemba et al., Case No. ICC-01/05-01/13-1663, 26 February 2016, para 23.
3.3 State obligation to cooperate with the court
As becomes clear from the example of the situation of Mr Mangenda as well, the Court does not find itself to be fully responsible for the lack of a state guarantee, nor does it oblige any state to accept a released person. Rather, it depends heavily on Defence teams to find the consent of states to which their client wants to be released.69 The Rome Statute is silent on the distribution of
responsibility between the Court and its state parties as it is also silent on the role state guarantees should have with regard to interim release decisions. The Rome Statute merely provides for a general obligation for state parties to fully cooperate with the Court in its investigation and prosecution of crimes in Article 86. However, on account of the jurisprudence as just discussed, this provision is perceived as not including an obligation to cooperate with regard to interim release.70 As a consequence, this area of cooperation is left to voluntary agreements to be
concluded by the Court and states.71 However, this narrow interpretation of the obligation to
cooperate has been considered to be wrong in the light of Article 21(3) of the Statute, which obliges the Court to follow IHRL. It follows from Article 21(3) that the duty of states to cooperate should especially be triggered when non-cooperation would entail the violation of human rights.72
3.3.1 Cooperation agreements
In finding a way to not violate the right to liberty of its suspects, the Court has tried to reiterate the importance of cooperation agreements on the interim release of suspects.73 Unfortunately, only two
states, Belgium and Argentina, have yet concluded such cooperation agreements.74 The agreements
69 The Defence team in the Ntaganda case had proposed to release the suspect in the Netherlands, when the Netherlands rejected this, the Court did not engage in finding another state willing and able to receive him. See ICC, Decision on the Defence's Application for Interim Release, Prosecutor v Ntaganda, Case no. ICC-01/04-02/06-147, 18 November 2013, para 61-62.
70 See Andrew Trotter, ‘Pre-Conviction Detention in International Criminal Trials’ (2013) 11 JICJ 351, 368; and Sluiter G, ‘Atrocity Crimes Litigation: Some Human Rights Concerns Occasioned by Selected 2009 Case Law’ (2010) 8 Nw U J Int’l Hum Rts 248, 265, stating that “[t]he Appeals Chamber regards this as a non-mandatory form of cooperation”.
71 Ferioli (n 1), 46-47. 72 Sluiter (n 70), 266-267.
73 See for example, International Criminal Court, ‘Report of the Court on Cooperation’, ICC-ASP/16/16, 26 October 2017.
74 ICC Press Release of 10 April 2014, ‘Belgium and ICC sign agreement on interim release of detainees’, ICC-CPI-20140410-PR993, available at <https://www.icc-cpi.int/Pages/item.aspx?name=pr993> all websites accessed at 27 July 2018. See ICC Press Release of 28 February 2018, ‘Argentina and ICC sign agreements on Interim Release and Release of Persons, reinforcing Argentina’s commitment to accountability and fair trial’, ICC-CPI-20180228-PR1360, available at <https://www.icc-cpi.int/Pages/item.aspx?name=pr1360>.
with Belgium and Argentina have not been made public, but a model agreement of the signed cooperation agreements has been made public on the website of the ICC.75
Part IV of the model agreement sets out the procedure for acceptance of the person granted interim release into the territory of the relevant state. Interestingly, the agreement does not provide for an obligation to accept the released detainee on its territory. The Registrar still has to request the relevant state on a case by case basis whether or not it wants to accept a specific person. Moreover, the Registrar shall make a request after the decision granting interim release has been issued. The absence of an obligation to accept a released detainee on the territory of a State has been confirmed by the Pre-Trial Chamber in Bemba et al. This Chamber stated that the agreement with Belgium did not indicate an ‘unconditional availability and willingness’ of Belgium to accept released persons on its territory, to say nothing of an ‘obligation on their part to do so’.76 In chapter
I two different descriptions of state guarantees were set out. With regard to the cooperation agreement, it seems as if it is more similar to the second description of state guarantees in which states declare that they are, in general, able to assure that the suspect will appear at trial. The willingness of a state remains a matter of case-by-case determination. Thus, the agreements do not change much about the ineffectiveness of the power of the Court to release its detainees.
3.4 Interim conclusion
Since the Rome Statue and RPE are silent on how to assure that the released suspect will be accepted by a state, the Court had to develop its own rules through case law. The Appeals Chamber has set up a strict line of reasoning in that a state willing and able to receive the detained person needs to be found prior to the granting of interim release. This reasoning and how it has developed in the Court’s case law is in many ways deviating from IHRL. The Court has tried to improve the situation by reiterating the importance of cooperation agreements for the interim release of suspects. However, these cooperation agreements do not obligate States to receive any persons being released. As a result, they hardly improve the situation at all.
75 ICC ‘Cooperation Agreements’, available at <https://www.icc-cpi.int/news/seminarBooks/Cooperation_ Agreements_Eng.pdf>.
76 ICC, Decision on first review of Jean-Jacques Mangenda Kabongo’s detention pursuant to Article 60(3) of the Statute, Prosecutor v. Bemba et al., Case No. ICC-01/05-01/13-611, 5 August 2014, para 13.
CHAPTER IV
COMPARING THE SYSTEMS
Although differences exist between the purely international tribunals and hybrid tribunals, it is not as straightforward as to say that no general conclusions regarding the status of IHRL in international criminal adjudication and the parameters of contextualization can be made.77
Moreover, many differences exist among the hybrid tribunals and, apart from them being half international, half national, they lack a general definition.78 Hence, it is not useful to determine in
what way the Kosovo Specialist Chambers can be defined as a hybrid court, nor in what way it is comparable to a purely international court. It is better to compare it forthwith with the International Criminal Court by also focusing on the context issues in relation to interim release. The context in which the ICC operates has been set out in the introduction.79 In sum, the ICC has
no territory to execute release orders, it has no enforcement agency, it cannot have trials in absentia and there are general factors increasing the risk of flight in comparison to domestic criminal trials. This chapter will analyse whether the context of the KSC differs substantially from the ICC. At first, however, a short introduction to the functioning of the KSC will be given.
4.1 Establishment and functioning of the Kosovo Specialist Chambers
The KSC is established by an amendment to the Constitution of the Republic in Kosovo (the ‘Constitution’).80 The amendment reads that the organization, functioning and jurisdiction shall be
regulated by this article and by a specific law. This specific law was adopted by Assembly of the Republic of Kosovo as well, it is the Law on the KSC.81 However, after adopting these instruments
(both were adopted on 3 August 2015), the EU took over the control over the establishment and functioning of the KSC.82
The Law of the KSC sets out the mechanism for the appointment of judges, for which the EU was put in charge. In the appointment no national judges were allowed. The Court is composed of four judicial instances that operate parallel to the judicial system of the Republic of Kosovo, the seat of the Court is in the Netherlands, with a mere ceremonial seat in Kosovo as well.83 One of the
77 See supra footnote 14.
78 Korenica, Zhubi and Droli (n 13), footnote 1. 79 See supra section 1.1.
80 Amendment 24, now Article 62 of the Constitution of the Republic of Kosovo (entered into force 15 June 2008). 81 Korenica, Zhubi and Droli (n 13), 481.
82 ibid., 479. The EU is also the main funder of the KSC, see Heinze A, ‘The Kosovo Specialist Chambers’ Rules of Procedure and Evidence – A Diamond Made Under Pressure?’ (2017) 15 JICJ 985, 987.
four judicial instances is the Constitutional Court that rules exclusively upon the consistency with the Constitution.84 However, it is important to note that the review still has an international
character because the ECHR and its case law are constitutionalized in the Constitution.85
4.2 Finding a state willing and able before the KSC
The Law of the KSC regulates the detention of suspects in Article 41. Article 41(11) sets out the system to designate the responsible state in which to release a person. Firstly, the detainee shall not be released in the Host State, which is also stated in the Host State Agreement between the Netherlands and the KSC.86 Secondly, the person will be released in the country where he or she
was originally detained on behalf of the KSC or in Kosovo. Thirdly, if the person has no right of residency in either of those states, he will be released in the country where he or she was lawfully residing. Fourthly, if there is no country where the person was lawfully residing, he or she will be released in another state. These states still need to give consent for the release on the basis of Rule 57(4), but the Law puts on the Chamber the obligation to reach out to these countries in the order provided by Article 41. When this system is compared to the system of finding a state willing and able to accept sentenced persons at the ICC,87 it is striking that the Law of the KSC does not
provide for any residual role.88 Therefore, the released suspect may still find itself in a situation in
which no state is willing to accept him.
The Law of the KSC lays down the possibility of ordering measures to ensure the presence of the accused instead of detention on remand (pre-trial detention).89 This option differs from the
possibility of conditional release in that it is not attached to the grounds justifying detention.90
Rather, it is within the full discretion of the Court to apply these measures.
4.3 Context issues
4.3.1 Territory
84 Article 49(1) of the Law of the KSC. 85 See infra section 5.1.
86 Article 42(1) of the Agreement between the Kingdom of the Netherlands and the Republic of Kosovo concerning the Hosting of the Kosovo Relocated Specialist Judicial Institution in the Netherlands (adopted 15 February 2016), 013132, entered into force on 1 January 2017 (‘Host State Agreement KSC’).
87 Chapter 10 of the Rome Statute and Chapter 12 of the RPE. 88 See supra section 2.1.
89 Article 41(12) of the Law of the KSC.
90 Although the Rome Statute in Article 60(2) does not suggest that conditions restricting liberty may change the risk assessment under Article 58(1). However, this seems to be the understanding by the chambers. See e.g. Judgment on the appeal of Mr Jean-Pierre Bemba Gombo against the decision of Trial Chamber III of 26 September 2011 entitled 'Decision on the accused's application for provisional release in light of the Appeals Chamber's judgment of 19 August 2011’, 26 September 2011, para 35-37.
The ICC lacks a territory of its own to execute release orders. Therefore, the ICC will always need to rely upon states to accept the released persons. Unfortunately, the countries of origin of the suspects, that would be the first countries to consider for accepting the released persons, are often unfit for accepting the released persons. Either because the country is politically unstable and geographically far removed from the premises of the Court or because suspects may benefit from connections and support in their countries of origin which might increase the flight risk,91 or
because suspects may be at risk of refoulement in their own states which prevents the Court from releasing them in their states of origin as well.92 In addition, the reluctance of any state in general
to hesitate over accepting temporary released suspects is understandable by their wish to protect their own security and public order.93
The premises of the KSC are in the Netherlands. However, the Host State Agreement does not allow for the release of suspects at the territory of the Netherlands.94 With this in mind, the
context in which the KSC operates in, with regard to the lack of a territory, is even more compolicated than that of the ICC. If the KSC were to decide that it would release a suspect from the prison it is detained in, because it sees no other way out to comply with the right to liberty, it would breach an international agreement, namely the Host State Agreement. Whereas the ICC did not make any such agreements with the Netherlands.
Still, as the Court is established by the Assembly of the Republic of Kosovo, one would expect that it could rely upon the cooperation of Kosovo in a higher degree than the ICC could with any state. However, there is no agreement imposing an obligation to accept released suspects upon Kosovo. Moreover, as is the case before the ICC as well, suspects often rely on a network of connections in their country of origin which increases the flight risk and, therefore, influences the decision of conditional release.
4.3.2 Enforcement agencies
The Office of the Prosecutor at the ICC does not have an enforcement agency, to re-arrest released persons for example. This is the most striking difference between the ICC and the KSC, since the Specialist Prosecutor’s Office (‘SPO’) of the KSC does have its own police force. This is unique in
91 Ferioli (n 1), 196.
92 The principle of non-refoulement is a rule of customary international law and it is enshrined in Article 3 ECHR. The principle protects people from being send to a country where they have a reason to fear prosecution.
93 Dumbryte (n 39), 1075.
the world of international criminal justice.95 According to Article 35(3) of the Law of the KSC the
police within the SPO shall have the authority and the responsibility to exercise powers given to Kosovo Police under Kosovo law in accordance with the modalities established by the Law of the KSC. Where the ICC depends on state cooperation in carrying out arrest warrants and reducing the flight risk of released persons, the KSC has its own police force to arrest someone.
Although this asset of the KSC should not be underestimated, for the reliance upon state guarantees it will essentially not make any difference. As has been discussed, two forms of state guarantees exist. State consent and a guarantee of applicable measures to satisfy possible conditions opposed on the released suspect. When the KSC would supposedly have suspects that cannot be released in Kosovo, the enforcement powers of the SPO constitute de facto not much more than the cooperation-agreements between the ICC and Belgium or Argentina. The SPO police force lacks any jurisdiction on the territories of other states.
4.3.3 Trials in absentia
The Rome Statute does not allow for trials in absentia.96 Similarly, trials in absentia are not
allowed before the KSC either. This rule is stated in Article 21(4)(e) of the Law of the KSC which guarantees that the person is entitled to be tried in his or her presence.
4.3.4 Factors increasing the risk of flight
Both the ICC and the KSC focus mainly upon heinous crimes. The Law of the KSC specifically refers to crimes against humanity and war crimes.97 The KSC also has subject-matter jurisdiction
over other crimes constituted in the domestic law of the Republic of Kosovo, but it is expected to focus on the most heinous crimes among these domestic crimes. Therefore, the KSC could also argue that the heinousness of the crimes it has jurisdiction over constitute a specific context in which contextualization of IHRL is allowed.
4.4 Interim conclusion
Both the ICC and the KSC operate in similar contexts with regard to interim release. There are some minor differences, but the overall picture is that the functioning of both tribunals differs a lot more from national courts than it does from one and other. As a result, the ways in which the
95 Heinze (n 82), 990.
96 Article 63(1) Rome Statute: “The accused shall be present during the trial”. 97 Article 13 and 14 of the Law of the KSC.
tribunals rely on contextualization may be compared and general statements about the parameters can be made.
CHAPTER V
JUDGMENT OF THE KSC
In the very first judgment of KSC the Constitutional Court Panel (‘Panel’) reviewed the newly drafted Rules of Procedure and Evidence (‘Rules’).98 The Panel had to determine the compliance
of the Rules with Chapter II on Fundamental Rights and Freedoms of the Constitution of the Republic of Kosovo (‘Constitution’).99
Chapter 4 of the judgment referred to the Rules on Summonses, Arrest and Detention. The Panel ruled that Rule 54 (old) Review and Reconsideration of Detention on Remand, was inconsistent with the right to liberty as formulated in Article 29 of the Constitution. The relevant part of Rule 54(4) stated:
Upon request under paragraphs (2) or (3), the Panel may impose such conditions upon the release as deemed appropriate to ensure the presence of the Accused during proceedings, in accordance with Article 41(12) of the Law. The Panel shall hear the Third State to which the detained person seeks to be released. A detained person shall not be released without the consent of that State.
In a subsequent judgment, the Panel, in a different composition, accepted the revised rule on the guidelines for the review and reconsideration of detention on remand, now stated in Rule 57(4):100
(…) The Panel shall hear a Third State if the detained person seeks to be released on its territory. A detained person shall not be released in the Third State without the consent of that State.
5.1 Human Rights Obligations of the Kosovo Specialist Chambers
The Panel recalled that Article 53 of the Constitution provides that human rights and fundamental freedoms, as guaranteed by the Constitution, should be interpreted in a manner consistent with the
98 KSC, Rules of Procedure and Evidence (adopted 17 March 2017, entered into force 5 July 2017) KSC-BD-03/Rev1/2017.
99 KSC Judgment of 26 April 2017 (n 5), para 10.
100 KSC, Judgment on the Referral of Revised Rules of the Rules of Procedure and Evidence Adopted by Plenary on 29 May 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law no. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, Case no. KSC-CC-PR-2017-03, 28 June 2017, paras 94-96 (‘KSC Judgment of 28 June 2017’).
court decisions of the ECtHR.101 Interestingly, Kosovo is not a party to the ECHR itself due to its
statehood recognition problems.102 However, the international community drove Kosovo’s
statehood-building process and it wanted to bind the state to IHRL. The method found to make Kosovo obligated to apply the ECHR and the jurisprudence of the ECtHR was constitutionalizing it.103 Through Article 22 of the Constitution the ECHR is given constitutional value,104 and Article
53 sees to the consistent interpretation of human rights in the Constitution with the court decisions of the ECtHR.
Article 29 of the Constitution on the right to liberty, therefore, had to be interpreted in consistency with the jurisprudence on Article 5 of the ECHR. This rule of interpretation from Article 53 Constitution is reiterated in Article 4 of the Rules which refers to Article 3 of the Law of the KSC setting out the Framework of adjudication for the KSC. Article 3 has been described as the modern version of Article 21(3) of the Rome Statute.105 Rather than mentioning ‘internationally
recognized human rights’, Article 3 refers to specific sources of human rights law which will have the potential to strengthen the shield function of human rights when compared to Article 21(3) of the Statute.106
5.2 Reasoning of the Panel
The judgment of inconsistency of Rule 54(4) (old) with the right to liberty was based on the
requirement of state consent. As the Rule stated that ‘A detained person shall not be released without the consent of that State’ the withholding of such a consent, in the Panel’s view, would mean that the detained person shall not be released.107 Hence, the release of a detained person
would be entirely dependent upon the consent of a state, even in circumstances where a Panel has found sufficient grounds requiring his or her release.108 This emphasis on the circumstances in
which a Panel has already found sufficient grounds requiring a person’s release demonstrates that the Panel acknowledged the exhaustiveness of the relevant and sufficient grounds, as is preserved
101 KSC Judgment of 26 April 2017 (n 5), para 16.
102 Fisnik Korenica and Dren Doli, ‘Taking Care of Strasbourg: The Status of the European Convention on Human Rights and the Case-Law of the European Court of Human Rights in Kosovo’s Domestic Legal System’ (2011) 32 Liverpool Law Review 209, 211.
103 ibid., 215.
104 Heinze (n 82), 1000. 105 ibid.
106 ibid.
107 KSC Judgment of 26 April 2017 (n 5), para 120. 108 ibid.
in IHRL.109 The Panel concluded that a detention on the sole basis of the lack of state consent
would be an unlawful detention.
Within the jurisprudence of the ECtHR and the framework of the ICC as discussed in chapter II and III respectively a distinction has been made between the situation in which a court does not have effective power to order a release on the one hand and, on the other hand, the situation in which an interference with the release order occurs after the release has been ordered. However, in the instant case, the Panel focussed upon the lawfulness of the detention. As the continued detention without any justifying grounds will be the outcome of both situations, it can be concluded that the Panel did not explicitly distinguish between these situations. Whether the person either received a release order which could not be executed or whether he could not receive a release order because the power of the court was ineffective, the situation in which the person would accordingly be is the same. In rejecting the outcome of the situations, it also rejected both of the situations itself. The Panel even called such an unlawful detention a ‘flagrant violation of the right of the detained person to liberty’.110 The Law of the KSC provides for the result of a lawful
detention in that the person has the right to have another Panel order his release immediately.111 As
a consequence of this regulation, the holding of the Panel that a detention would be unlawful should be read as the obligation for the court to release the person in question.
With this in mind, the new rule, stating that: “A detained person shall not be released in the Third State without the consent of that state”,112 should be read as the obligation upon the court to
find another State willing to receive the person when the consent is not given by the state that was considered at first. On this account, the Panel could rely upon the already existing system of determining the suitable state in which to release the person as set out in Article 41(11) of the Law of the KSC.113 In sum, when there is a lack of state consent hampering the release of the detainee
either during the decision ordering release or during the execution of this order, his or her detention is unlawful and, accordingly, the release must be ordered.
109 See supra section 2.3.
110 KSC Judgment of 26 April 2017 (n 5), 122.
111 Article 41(2) of the Law of the KSC states that the detainee shall be entitled to have the Specialist Chambers order the release of his or her release if the detention is not lawful.
112 ibid., para 121, RPE Rule 57(4). 113 See supra section 4.2.
5.3 Use of ECtHR Case Law
The panel began its reasoning with regard to release and state consent with a citation of the ruling in the Assanidze case of the ECtHR: ‘it is inconceivable that in a State subject to the rule of law, a person should continue to be deprived of his or her liberty despite the existence of a court order for his or her release’.114 While focussing upon this reference to the Assanidze case, it seems as if the
Panel above all condemns the Assanidze-situation in which an interference with the execution of the release order occurs. As it has just been concluded though, the Panel did not explicitly distinguish between the situation rejected by the ECtHR in the case of Assanidze – being that there was an external interference with the execution of the release – and the situation of lacking effective power to order release.115 This is one of the reasons why it is not easy to understand the
Panel’s choice to base its analysis on Assanidze as opposed to one of the cases focussing upon the ineffectiveness of the power to order release. Another reason is that it could have chosen a case with more closely related facts. The facts of the Assanidze case are quite hard to apply to the issues at stake: pre-trial detention before ICTs. For example, Assanidze was about a final acquittal instead of detention on remand, which clearly brings in the contrast of a situation in which the detention seems to have entered a dead-end versus having the prospect of, at least, the decision in the substantive part of the case. In general, the Panel could have elaborated on the subject in order for us to understand what it is exactly that they are rejecting in relation to state consent and interim release.
5.4 Interim conclusion
In summary, the situation created by Rule 54(4) (old) meant that one would be detained without any justification for the detention. This situation was created by the fact that the Chambers had to rely on the consent of a state for the detainee should otherwise not be released. The Panel found this situation to be inconsistent with the right to liberty.
The comparison of this judgment with the current system of the ICC does not need to be extensive. The discrepancy is clear: while the KSC disapproves of the reliance of any kind on state consent with regard to release orders, the ICC finds itself depending on it. When combining this conclusion with the conclusion in Chapter IV that the KSC operates in a similar context as the ICC, it can be stated that this discrepancy is in fact a declaration of inconsistency of the system of the ICC with the right to liberty given by the KSC.
114 KSC Judgment of 26 April 2017 (n 5), para 120, referring to Assanidze v Georgia (n 50), 173. 115 See supra section 5.2
