Future of Appeal of Dead Defendant at the ICTY (and a footnote on Garzon)

Last friday, Rasim Delic, a former Bosnia Army General, died while awaiting the result of his appeal against his three year conviction for war crimes. It has to be a relief the the tribunal that he was provisionally released and that he has not joined the list of defendants that died in the UN detention center.

His death raises interesting questions because apparently, he is the first defendant to die during the appellate phase. I must say I’m not too sure what to think about what should happen to the proceedings and wanted to throw some random thoughts out there for your consideration.

One argument is to say, as when other defendants died, that the proceedings should cease. That would be an open and shut case. But somehow, I feel, without being exactly able to argue my point yet, that the situation is different on appeal. Before the Trial Judgment, if the proceedings are stopped, the presumption of innocence means that the person dies innocent. There has been no consequence of the ongoing proceedings because, legally, it is as if they had never started. On appeal, the presumption of innocence doesn’t work anymore (or does it?) and he would die guilty if the proceedings were to stop before the issuance of the appeals judgment. That somehow does not feel right.
One has to keep in mind the hybrid nature of the appellate process in international criminal courts. In most national systems, an appeal is basically a new trial and the appellate procedure suspends the sentence of the first instance tribunal. Afterwards there is usually a third degree of jurisdiction which only determines whether the lower courts have made a mistake of law, and the procedure is not suspensive. At the ICTY, the Appeals Chamber fulfills both functions. It is a judge of law, mostly, but also of fact, without there being a new trial per se (which leads to the weird procedure whereby the Appeals Chamber can overturn a finding of innocence or increase the sentence, without any chance of appeal, which  I personally find disturbing, as I’ve already argued, but that’s a different issue). Interestingly, the Appellate procedure does not suspend the sentence.

With all this in mind, there are, in my opinion two approaches.
1) I would prefer that the appeal judgment be rendered. What is in the dock at this stage is the Trial Judgment, not the defendant anymore. I think it is in the interests of the good administration of justice that we know whether the trial chamber got it right. Especially as, from what I’ve seen on the website, all the appellate hearings seem to have been concluded, so the rights of everybody to be heard have been respected.
2) If the proceedings are called to an end, there remains the question of what to do with the Trial Judgment. In order to respect the presumption of innocence, I think the trial judgment should be quashed for reasons of equity.

Whatever the judges decide, the worst would be for them, faced with this novel situation in international criminal proceedings and because it is likely to happen again, to issue an unsubstantiated order that would give no indication on their reasoning.

Footnote on Garzon:
Thank you for your reactions to my thoughts on the Garzon proceedings. I wanted to add a small point, although it doesn’t fundamentally change my general views on the whole situation and on the way people have reacted to it.
It appears, and I’ve had difficulty in finding precise information, not being a Spanish speaker, that the investigation was stopped in 2008 following a court decision. If that is the case, I do think that Garzon has a strong defense in the current proceedings. Indeed, if Garzon initiated an investigation and then went before a judge to confirm it, failed to obtain that confirmation and then stopped the proceedings, I don’t see where the abuse of power would be constituted. The normal procedure seems to have been followed. It happens daily in every system where a prosecutor or investigative judge builds up a case and then is told that he got it wrong by a court. If that is an abuse of power, then every national prosecutor would be facing such charges at one point in their career. That’s just how the system works.
Of course, at this stage, this is just speculation, as I can’t seem to get hold of the alleged 2008 decision or its content. If anybody has it, I’d be happy to read it.

2 responses to “Future of Appeal of Dead Defendant at the ICTY (and a footnote on Garzon)

  1. Just to answer your question anbout Mr garzon's cases. He is is being investigated in three cases. First, for having investigated something that was not (allegedly) possible to investigate since there (allegedly) was not any non-prescribed criminal activity; secondly, for (allegedly)having asked some financial help from some banks for some courses in NY in (allegedly) exchange for unlawful instruction in some bankers's court cases; thirdly, for having order to intercept communications between some (allegedly) criminals (in temp prison awaiting trial) and their lawyers.In all three cases the criminal charges have been pressed by civil bodies (i.e., "popular action"), and it has not sustained by the public prosecutor.In the first case. Starting with a criminal report from several civil bodies, it was his duty to start an investigation (an instruction, as it is called); one of the cases aroused was that of some children which had been taken fron their parents (republicans) and given to some other people; another was that of the mass graves that are in different points in Spain; in a given moment Garzón decided he as a judge from the Central Instruction Court (which works for the National Court) was not competent, so he submitted the case to the courts in the various places the facts haad taken place (one of them, at least, has decided that the National Court is competent.One of the groups that have pressed charges is a far-right party, the Falange. Its view from the start is that Garzon was abusing some people's honour (something that cannot take really place in a simple instruction), so decided to try to stop all the investigation.As for the second case. There appears to not have been enay link in the financial help asked and the relevant cases; Garzon in NY acted as a coordinator of some lectures; in fact he was in King Juan Carlos's Center at NYU;there are many institutions which give financial aid; we'll see.As for the third case. In his court decision Garzon granted the right to defence and only try to avoid some money laundering in a case of political corruption, where some people (allegedly) could try via their lawyers to clean the money or proceed to send it to other places.A footnote on the first case. Judge Varela, instructor, asked the (private pressing) parties to rearrange their final reports for the courts. That decision is new (and probably not acceptable) in the procedural system.

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