Appeals Panel Grapples with Pretrial Release: Denies release to Ojdanic and Sainovic
Appeals Panel Grapples with Pretrial Release: Denies release to Ojdanic and Sainovic
Is pretrial release the rule or the exception at the ICTY? Prior to 1999, it was definitely the exception. The rule provided that pretrial release, called 'provisional release,' should be granted only in 'exceptional circumstances,' even where an accused posed no threat to victims or witnesses and the court was satisfied he would appear at trial. But the Tribunal amended Rule 65(B) on 17 November 1999, removing the 'exceptional circumstances' requirement. This appeared to be a shift in position, providing that pretrial release should be the rule where there was no danger to witnesses and the accused could satisfy the court he would appear for trial. A rule favoring pretrial release in this manner is more consonant with the fundamental rights of individual liberty and the presumption of innocence, guaranteed by the International Covenant on Civil and Political Rights.
However, a recent decision by a panel of the Tribunal's Appeals Chamber appears to have returned the Tribunal to its earlier position: an accused will be granted pretrial release only in exceptional circumstances. The decision came in the case of the Prosecutor vs. Dragoljub Ojdanic and Nikola Sainovic on review of a Trial Chamber's grant of provisional release pending trial. A four member majority of the Appeals Panel ruled that the Trial Chamber had committed errors of law and fact. Rather than send the decision back to the Trial Chamber for further consideration in line with its ruling, the Appeals Panel applied the law it had announced to the facts it found relevant and decided that it wasn't convinced Sainovic and Ojdanic would appear for trial. The Court therefore denied provisional release. In addition to a 14 page concurring opinion by Judge Mohamed Shahabuddeen, Judge David Hunt submitted a 54 page dissent.
Ojdanic and Sainovic, originally charged in a joint indictment with Slobodan Milosevic, face charges of war crimes and crimes against humanity for their roles in the Kosovo War. Ojdanic was chief of the general staff of the Yugoslav Army; Sainovic was Deputy Prime Minister of the Federal Republic of Yugoslavia (FRY) and Milosevic's point man on Kosovo. Though the indictment was issued in 1999 during the Kosovo War, both only surrendered to the Tribunal following the FRY's adoption of a law on cooperation with the ICTY last spring: Ojdanic on April 25, and Sainovic on May 2, 2002. The Trial Chamber granted provisional release on June 26, and the prosecutor appealed. The two accused remained in detention pending the outcome of the appeal.
TRIAL CHAMBER DECISION
The Trial Chamber began its analysis by announcing that the accused had the responsibility of convincing the court (burden of proof) that they would appear for trial and would not pose a danger to any victim or witness, if released. The court then briefly stated that it attached 'significant weight to the fact that they [the accused] have surrendered' and also attached 'importance to the Law on Co-operation passed in April of this year by the Federal Government of the FRY.' It noted that the new law provided a mechanism for the arrest and surrender to the Tribunal of accused persons which had not existed before. It went on to say that regardless of the broader issues of the FRY's noncooperation with the ICTY raised by the Office of the Prosecutor (OTP), the only relevant issue was its cooperation in the instant case. The FRY had sent the Deputy Minister of Justice to inform the Court that it would guarantee the accused's appearance for trial should they be granted provisional release. The Trial Chamber found this was not a requirement for granting provisional release, but was nevertheless further assurance.
The Trial Court also dismissed the OTP's argument that the possibility of a long prison sentence meant the accused would not show up for trial. It was one factor to consider, the Court said, but 'not a reason [by itself] to refuse provisional release.' The Chamber then inartfully concluded that it was 'satisfied that there is no evidence to negative the assertion that the accused will appear for trial.' Concerning whether a grant of pretrial release would endanger any victim or witness, the Trial Chamber concluded that '[n]o evidence . . . was adduced to support' the prosecution's 'suggestion' of potential danger.
Indeed, the OTP did not present evidence, only argument on undisputed facts and inferences to be drawn therefrom. That is the case with nearly all provisional release hearings, where the court must decide what is likely to happen in the future, not what has already happened in the past. Both the Trial Chamber's and the Appeals Chamber's decisions reflect confusion about the standard of proof which the accused must meet for provisional release under Rule 65(B). As Judge Hunt points out in his dissent, only guilt need be proven beyond a reasonable doubt. He goes on to argue that the proper standard is a 'balance of probabilities,' i.e. that an accused seeking provisional release must prove it is more probable than not that he will appear for trial. This is the lowest standard of proof and is rejected by Judge Mohamed Shahabuddeen in his separate opinion concurring with the Appeals Chamber's judgment. Since the Appeals Chamber majority did not address this issue, the standard of proof for deciding future provisional release applications remains unclear.
The Trial Chamber's concluding statements also confuse the issue of which party has the burden of proof under Rule 65(B). ('There is no evidence to negative the assertion that the accused will appear for trial.' 'No evidence . . . was adduced to support the Prosecution's suggestion that if released the accused may pose a danger to witnesses and victims.') However, it appears from a contextual reading of its conclusions that the Chamber was merely careless in its use of language and did not shift the burden of proof to the prosecution to establish the need for pretrial detention. As the Trial Chamber earlier stated, Rule 65(B) requires the accused to convince the court he will appear for trial and will not pose a danger to victims and witnesses if released.
Having found that the two accused had met the requirements of Rule 65(B), the Trial Chamber still had discretion to grant or deny provisional release. The rule provides no guidance on what factors to consider in exercising its discretion. Generally, a trial chamber's exercise of discretion will be overturned on appeal only when the chamber has abused it, another nonspecific, though high standard. In this case, the Trial Chamber exercised its discretion in favor of releasing Ojdanic and Sainovic based on the expected length of time before trial would commence. At the hearing, one of the accused's attorneys estimated the trial was unlikely to start for two years. The prosecution offered no contrary estimate.
APPEALS CHAMBER DECISION
The Appeals Chamber reversed the Trial Chamber's grant of provisional release, finding the 'Trial Chamber . . . erred in fact and in law, and misdirected itself.' Unfortunately, the Appeals Panel's majority decision did little to clarify the standards that should be applied to future provisional release applications and, indeed, confused the issues by essentially substituting its view for that of the Trial Chamber with regard to whether the accused would return for trial if released.
For clarity of the applicable legal standards on appeal, we must turn again to Judge Hunt's dissent. 'It is for the party challenging the Trial Chamber's findings of fact [here, the OTP] to demonstrate that the particular finding challenged was one which no reasonable tribunal of fact could have reached, or that the finding was invalidated by an error of law, or that the evaluation of the evidence was wholly erroneous.' In the words of the ICTY Statute, the Appeals Chamber reviews cases where an error on a question of law which would invalidate the decision or an error of fact which has occasioned a miscarriage of justice is alleged. While Article 25 provides that the 'Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers,' it is not authorized to substitute its judgment for that of the trial chambers on issues of fact. That appears to be exactly what this Appeals Panel did.
The Appeals Panel majority stated that the Trial Chamber did not address the factors that a 'reasonable Trial Chamber would have been expected to take into account before coming to a decision.' While stating it was 'not obliged to deal with all possible factors,' the Appeals Panel went on to list ten factors it should have considered. Specifically, it held that the Trial Chamber committed an error of law by failing to consider the effect of the accused's senior positions on FRY's guarantee of their return. In his dissent, Judge Hunt argued that the OTP had conceded the Trial Chamber had considered this factor. If it had not, the appropriate remedy was for the Appeals Chamber to return the decision to the Trial Chamber to consider what effect, if any, the senior positions of the accused had in this case. Instead, the majority decided to decide the factual issue itself under its general grant of authority in the ICTY statute. It concluded that the senior position of an accused 'reduces the likelihood of his appearing at trial.' The Court cited no evidence to indicate if that was in fact the case with Ojdanic and Sainovic, both no longer in positions of power within the FRY. This makes it look as if the Appeals Chamber decided the issue as a matter of law, which would effectively resurrect the presumption against pretrial release, at least for accused in senior positions, except in exceptional circumstances. The better course is for trial chambers to take care to address the issue in every application for provisional release. In limiting appellate review to errors of law or errors of fact amounting to miscarriages of justice, the law recognizes that trial courts are in a better position to judge the facts than appellate courts which generally review the record and do not hear the witnesses and evidence first hand.
The Appeals Panel also decided that the Trial Chamber erred as a matter of law by not referring to prior public statements of the accused to the effect that they would not surrender voluntarily despite their later surrender. The Appeals Court went on to overrule the Trial Chamber's decision that the eventual surrenders were voluntary. The higher court agreed with the prosecutor that a surrender only after the FRY and Serbia would no longer protect them was not voluntary. The accused had argued that they could not surrender until the FRY passed a law on cooperation with the ICTY. Again, the Appeals Chamber appears to find an error of law so that it can substitute its opinion for that of the Trial Chamber on an issue of fact. The Appeals Chamber should overturn an issue of fact only when it finds that no reasonable trial chamber could have concluded that the accused's surrender was voluntary. That seems unlikely.
In his lengthy dissent, Judge Hunt addressed the fundamental principles* that are at stake in detaining an accused before trial and conviction. Prime among them are the individual's right to liberty and the presumption of innocence. As well as in many constitutions and state laws, these principles are embodied in the International Covenant on Civil and Political Rights. Article 9 provides: '1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. . . . 3. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.'
Despite a preference that accused persons retain their liberty until guilt is established, modern jurisprudence allows for pretrial detention when competing values require it. In U.S. domestic courts, serious charges such as murder and treason can override a right to release, as can reasons indicating the accused is a security risk, i.e. where he might harm others or take flight. The ICTY is different from domestic criminal courts in several important respects: 1) all the charges are serious, certainly commensurate with murder and treason, 2) the ICTY has no ability to find and arrest an accused who doesn't show up and must rely on states to do it; and 3) it often takes several years from the time of detention for a case to come to trial. The first two factors favor pretrial detention, while the third favors release.
It must be assumed that the Tribunal considered these principles when it adopted and later amended Rule 65(B). Yet the Appeals Chamber's decision in Sainovic and Ojdanic appears to reflect a re-balancing of those principles, resurrecting the prior rule favoring pretrial detention unless 'exceptional circumstances' are proved. As such, the ruling is wrong. The Appeals Chamber also errs when it substitutes its judgment on the facts for that of the Trial Chamber, absent a clear showing that a miscarriage of justice has occurred. Accused and trial chambers looking for guidance would be well advised to look to the dissent, and hope that future panels and the Appeals Chamber as a whole will do so as well. Given the differing views on the legal principles involved, as well as the majority's questionable reasoning, this is unlikely to be the Tribunal's last word on pretrial release.
However, a recent decision by a panel of the Tribunal's Appeals Chamber appears to have returned the Tribunal to its earlier position: an accused will be granted pretrial release only in exceptional circumstances. The decision came in the case of the Prosecutor vs. Dragoljub Ojdanic and Nikola Sainovic on review of a Trial Chamber's grant of provisional release pending trial. A four member majority of the Appeals Panel ruled that the Trial Chamber had committed errors of law and fact. Rather than send the decision back to the Trial Chamber for further consideration in line with its ruling, the Appeals Panel applied the law it had announced to the facts it found relevant and decided that it wasn't convinced Sainovic and Ojdanic would appear for trial. The Court therefore denied provisional release. In addition to a 14 page concurring opinion by Judge Mohamed Shahabuddeen, Judge David Hunt submitted a 54 page dissent.
Ojdanic and Sainovic, originally charged in a joint indictment with Slobodan Milosevic, face charges of war crimes and crimes against humanity for their roles in the Kosovo War. Ojdanic was chief of the general staff of the Yugoslav Army; Sainovic was Deputy Prime Minister of the Federal Republic of Yugoslavia (FRY) and Milosevic's point man on Kosovo. Though the indictment was issued in 1999 during the Kosovo War, both only surrendered to the Tribunal following the FRY's adoption of a law on cooperation with the ICTY last spring: Ojdanic on April 25, and Sainovic on May 2, 2002. The Trial Chamber granted provisional release on June 26, and the prosecutor appealed. The two accused remained in detention pending the outcome of the appeal.
TRIAL CHAMBER DECISION
The Trial Chamber began its analysis by announcing that the accused had the responsibility of convincing the court (burden of proof) that they would appear for trial and would not pose a danger to any victim or witness, if released. The court then briefly stated that it attached 'significant weight to the fact that they [the accused] have surrendered' and also attached 'importance to the Law on Co-operation passed in April of this year by the Federal Government of the FRY.' It noted that the new law provided a mechanism for the arrest and surrender to the Tribunal of accused persons which had not existed before. It went on to say that regardless of the broader issues of the FRY's noncooperation with the ICTY raised by the Office of the Prosecutor (OTP), the only relevant issue was its cooperation in the instant case. The FRY had sent the Deputy Minister of Justice to inform the Court that it would guarantee the accused's appearance for trial should they be granted provisional release. The Trial Chamber found this was not a requirement for granting provisional release, but was nevertheless further assurance.
The Trial Court also dismissed the OTP's argument that the possibility of a long prison sentence meant the accused would not show up for trial. It was one factor to consider, the Court said, but 'not a reason [by itself] to refuse provisional release.' The Chamber then inartfully concluded that it was 'satisfied that there is no evidence to negative the assertion that the accused will appear for trial.' Concerning whether a grant of pretrial release would endanger any victim or witness, the Trial Chamber concluded that '[n]o evidence . . . was adduced to support' the prosecution's 'suggestion' of potential danger.
Indeed, the OTP did not present evidence, only argument on undisputed facts and inferences to be drawn therefrom. That is the case with nearly all provisional release hearings, where the court must decide what is likely to happen in the future, not what has already happened in the past. Both the Trial Chamber's and the Appeals Chamber's decisions reflect confusion about the standard of proof which the accused must meet for provisional release under Rule 65(B). As Judge Hunt points out in his dissent, only guilt need be proven beyond a reasonable doubt. He goes on to argue that the proper standard is a 'balance of probabilities,' i.e. that an accused seeking provisional release must prove it is more probable than not that he will appear for trial. This is the lowest standard of proof and is rejected by Judge Mohamed Shahabuddeen in his separate opinion concurring with the Appeals Chamber's judgment. Since the Appeals Chamber majority did not address this issue, the standard of proof for deciding future provisional release applications remains unclear.
The Trial Chamber's concluding statements also confuse the issue of which party has the burden of proof under Rule 65(B). ('There is no evidence to negative the assertion that the accused will appear for trial.' 'No evidence . . . was adduced to support the Prosecution's suggestion that if released the accused may pose a danger to witnesses and victims.') However, it appears from a contextual reading of its conclusions that the Chamber was merely careless in its use of language and did not shift the burden of proof to the prosecution to establish the need for pretrial detention. As the Trial Chamber earlier stated, Rule 65(B) requires the accused to convince the court he will appear for trial and will not pose a danger to victims and witnesses if released.
Having found that the two accused had met the requirements of Rule 65(B), the Trial Chamber still had discretion to grant or deny provisional release. The rule provides no guidance on what factors to consider in exercising its discretion. Generally, a trial chamber's exercise of discretion will be overturned on appeal only when the chamber has abused it, another nonspecific, though high standard. In this case, the Trial Chamber exercised its discretion in favor of releasing Ojdanic and Sainovic based on the expected length of time before trial would commence. At the hearing, one of the accused's attorneys estimated the trial was unlikely to start for two years. The prosecution offered no contrary estimate.
APPEALS CHAMBER DECISION
The Appeals Chamber reversed the Trial Chamber's grant of provisional release, finding the 'Trial Chamber . . . erred in fact and in law, and misdirected itself.' Unfortunately, the Appeals Panel's majority decision did little to clarify the standards that should be applied to future provisional release applications and, indeed, confused the issues by essentially substituting its view for that of the Trial Chamber with regard to whether the accused would return for trial if released.
For clarity of the applicable legal standards on appeal, we must turn again to Judge Hunt's dissent. 'It is for the party challenging the Trial Chamber's findings of fact [here, the OTP] to demonstrate that the particular finding challenged was one which no reasonable tribunal of fact could have reached, or that the finding was invalidated by an error of law, or that the evaluation of the evidence was wholly erroneous.' In the words of the ICTY Statute, the Appeals Chamber reviews cases where an error on a question of law which would invalidate the decision or an error of fact which has occasioned a miscarriage of justice is alleged. While Article 25 provides that the 'Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers,' it is not authorized to substitute its judgment for that of the trial chambers on issues of fact. That appears to be exactly what this Appeals Panel did.
The Appeals Panel majority stated that the Trial Chamber did not address the factors that a 'reasonable Trial Chamber would have been expected to take into account before coming to a decision.' While stating it was 'not obliged to deal with all possible factors,' the Appeals Panel went on to list ten factors it should have considered. Specifically, it held that the Trial Chamber committed an error of law by failing to consider the effect of the accused's senior positions on FRY's guarantee of their return. In his dissent, Judge Hunt argued that the OTP had conceded the Trial Chamber had considered this factor. If it had not, the appropriate remedy was for the Appeals Chamber to return the decision to the Trial Chamber to consider what effect, if any, the senior positions of the accused had in this case. Instead, the majority decided to decide the factual issue itself under its general grant of authority in the ICTY statute. It concluded that the senior position of an accused 'reduces the likelihood of his appearing at trial.' The Court cited no evidence to indicate if that was in fact the case with Ojdanic and Sainovic, both no longer in positions of power within the FRY. This makes it look as if the Appeals Chamber decided the issue as a matter of law, which would effectively resurrect the presumption against pretrial release, at least for accused in senior positions, except in exceptional circumstances. The better course is for trial chambers to take care to address the issue in every application for provisional release. In limiting appellate review to errors of law or errors of fact amounting to miscarriages of justice, the law recognizes that trial courts are in a better position to judge the facts than appellate courts which generally review the record and do not hear the witnesses and evidence first hand.
The Appeals Panel also decided that the Trial Chamber erred as a matter of law by not referring to prior public statements of the accused to the effect that they would not surrender voluntarily despite their later surrender. The Appeals Court went on to overrule the Trial Chamber's decision that the eventual surrenders were voluntary. The higher court agreed with the prosecutor that a surrender only after the FRY and Serbia would no longer protect them was not voluntary. The accused had argued that they could not surrender until the FRY passed a law on cooperation with the ICTY. Again, the Appeals Chamber appears to find an error of law so that it can substitute its opinion for that of the Trial Chamber on an issue of fact. The Appeals Chamber should overturn an issue of fact only when it finds that no reasonable trial chamber could have concluded that the accused's surrender was voluntary. That seems unlikely.
In his lengthy dissent, Judge Hunt addressed the fundamental principles* that are at stake in detaining an accused before trial and conviction. Prime among them are the individual's right to liberty and the presumption of innocence. As well as in many constitutions and state laws, these principles are embodied in the International Covenant on Civil and Political Rights. Article 9 provides: '1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. . . . 3. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.'
Despite a preference that accused persons retain their liberty until guilt is established, modern jurisprudence allows for pretrial detention when competing values require it. In U.S. domestic courts, serious charges such as murder and treason can override a right to release, as can reasons indicating the accused is a security risk, i.e. where he might harm others or take flight. The ICTY is different from domestic criminal courts in several important respects: 1) all the charges are serious, certainly commensurate with murder and treason, 2) the ICTY has no ability to find and arrest an accused who doesn't show up and must rely on states to do it; and 3) it often takes several years from the time of detention for a case to come to trial. The first two factors favor pretrial detention, while the third favors release.
It must be assumed that the Tribunal considered these principles when it adopted and later amended Rule 65(B). Yet the Appeals Chamber's decision in Sainovic and Ojdanic appears to reflect a re-balancing of those principles, resurrecting the prior rule favoring pretrial detention unless 'exceptional circumstances' are proved. As such, the ruling is wrong. The Appeals Chamber also errs when it substitutes its judgment on the facts for that of the Trial Chamber, absent a clear showing that a miscarriage of justice has occurred. Accused and trial chambers looking for guidance would be well advised to look to the dissent, and hope that future panels and the Appeals Chamber as a whole will do so as well. Given the differing views on the legal principles involved, as well as the majority's questionable reasoning, this is unlikely to be the Tribunal's last word on pretrial release.
