Over 9 weeks after the death of Rasim Delic during the appellate procedure at the ICTY, the Appeals Chamber has finally reached a decision on the termination of the proceedings. It’s an interesting case, because it is the first time that an appellate body of an international criminal tribunal has to deal with such a situation. In all other cases, the person had died before completion of trial proceedings. Both Delic’s lawyer and the prosecutor had filed motions in support of the continuation of the proceedings, based on the interests of justice and of the family’s right to know the truth.
Several legal issues of interest had to be considered, which I briefly laid down at the time of his death. Basically, 1) should the proceedings continue and 2) if they are terminated, what happens to the trial judgment.
In its decision, the Appeals Chamber decides to terminate the proceedings and render the trial judgment final.
On the first point, it argues for the termination based on the personal jurisdiction of the Court, citing examples from other tribunals having dealt with this issue.
On the second point, the Chamber first shows that there is no uniform practice among civil law and common law traditions that would enable it to establish a general principle of law applicable to the specific situation. It therefore does an analysis based on the nature of the appellate proceedings, where contrary to trial, the presumption of innocence does not apply. It therefore concludes that (§15):
“Having found that the death of the appellant results in the termination of the proceedings and given that no appeal judgment can be rendered in this case, nothing can undermine the finality of the Trial Judgment. As a consequence, the Trial Judgment shall be considered final”.
It’s not a surprising decision on the substance, and the Chamber did make an effort to provide reasoned arguments, in difficult circumstances where, as often, judges have been left to deal with poor drafting and a most amazing normative void. There are however some questions that can still be raised on the argumentation.
For one, the Chamber draws no link whatsoever between the two aspects of the decision, the termination of the proceedings and the finality of the trial judgment. It decides to terminate the proceedings, and then in effect uses that finding as a reason to declare the judgment final. But the question of the presumption of innocence is also central to the termination of proceedings. Indeed, when trial chambers in various courts have terminated proceedings, the person benefited from the presumption of innocence and therefore died innocent. That is not the case at the appellate stage, according to the Appeals Chamber’s reading of the ICTY framework. This is a fundamental difference and should have at least warranted some discussion on the part of the judges.
Second of all, one can question the link between the lack of presumption of innocence at the appellate level and the finality of the trial judgment. One could argue that it is mostly a procedural question, with a different distribution of the burden and standard of proof at this stage of the proceedings, and has no impact on the finality of the trial judgment, especially as the whole point of the Appeal is that the trial judgment is not final. It’s a false “but for” causality approach. “But for” the Appeal, the trial judgment would be final. But that is always the case, even if there were application of the presumption of innocence at the appellate stage! For example, where a Prosecutor has appealed an acquittal, the death of the defendant could still be said to finalize the trial judgment, despite the presumption of innocence certainly applying to these crimes for which the acquittal was pronounced… I therefore think the Court should have found another basis for its ruling. And no, I don’t have any other ideas, given that I personally would have put an end to the proceedings ab initio. This would be based on a global concept of criminal proceedings that include both Trial and Appeal phases, both degrees of jurisdiction being actually recognised by human rights instruments as part of fair trial rights, their conditional application being solely dependent on the exercise of the right by the accused, which he did here.
Third of all, the Appeals Chamber touches upon a persistent grey area, namely the nature of the appellate proceedings. It might not be a trial de novo and the presumption of innocence might not apply, as the Appeals Chamber claims, but how is that compatible with the systematic practice of the Chamber to review evidence in a similar fashion to a Trial Chamber, increase sentences and even sometimes reverse “not guilty” findings, where you can’t really argue that the presumption of innocence doesn’t apply! There are several ways in dealing with these difficulties, especially in the last situation, by for example denying a right of appeal for the prosecutor in cases of not guilty verdicts, or requiring automatic remanding to a trial chamber, as is the case for most systems where the Appeals Chamber has a similar role. Right now, the Chamber has devised a system where it can have its cake and eat it, depending on the flavor…
Finally, and more generally, the 9 weeks it has taken to issue a 9 page decision (including the procedural history) essentially based on legal opinion in the absence of statutory rules, following the 18 months during which the appeals judgment was not rendered in what was not the most complicated case in the history of international justice, is a further testimony to the Tribunal’s chronic incapacity to render justice in a efficient way in conformity with fundamental fair trial requirements. You could even say that if the Appeals Chamber had done its job correctly the issue of Delic’s death might not have been an issue at all…
And the worst part is that the tribunals don’t even seem to acknowledge this difficulty, hiding, among other things, behind the complexity of the situations. This recent decision at the ICTR is interesting in that respect, where more than 9 years of detention before the trial judgment and more than 2 years without an Appeals Judgment being rendered was not considered undue delay! See particularly the dissenting opinion where Judge Short clearly finds that it is undue delay, and specifically considers the appalling personnel management of the ICTR, which assigns too many cases to the judges, thus preventing speedy justice.