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The Rome Statute of the International Criminal Court - A Commentary edited by Cassese, Antonio; Gaeta, Paola; Jones, John RWD (25th July 2002)

Volume II, s.6 International Criminal Proceedings, Ch.38 Compensation to an Arrested or Convicted Person

Salvatore Zappalà

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 23 October 2019

Subject(s):
International courts and tribunals, decisions — Imprisonment

(p. 1577) Chapter 38  Compensation to an Arrested or Convicted Person

I. Introduction

Article 85 of the ICC Statute provides for a right to compensation for unlawful arrest (and detention), unjust conviction and unjust detention, implying a miscarriage of justice.1 These guarantees are to a large extent an implementation of international human rights rules on the right of compensation. However, in respect of the right to compensation for unjust detention (Article 85(c) ), the ICC Statute has gone beyond international human rights law.

Article 85 lays down three distinct rights. On the one hand, compensation for unlawful arrest, which presupposes a formal assessment as to respect for the rules that set the criteria and govern the procedure for the arrest and detention of an individual. On the other hand, the ICC Statute provides for a right of compensation for unjust conviction and for unjust detention due to a grave and manifest miscarriage of justice. These forms of compensation go beyond a formal evaluation of respect for certain rules and are generally based on a more concrete judgement as to the overall justice of the outcome of the proceedings.

(p. 1578) While the right to compensation is provided for in international human rights treaties, such as the ICCPR,2 the ECHR,3 and the ACHR,4 there was no mention of such a right either in the Charter of the Nuremberg Tribunal,5 or in the Charter of the Tokyo Tribunal.6 The Statutes of the UN ad hoc Tribunals also did not provide for this right.7 Recently an amendment of the Statutes to this effect was proposed.8 This seems a very important step; nonetheless, it is submitted that it might have been sufficient to amend the Rules of Procedure and Evidence. In any event the ICC Statute is the most advanced text in terms of protection of the right of compensation, even compared to the provisions of the international conventions on human rights.

II. The Right to Compensation: A General Rule under International Human Rights Law

The right to compensation, both for unlawful arrest and/or detention, and for miscarriage of justice, can be found in most of the provisions on the rights of persons involved in criminal proceedings contained in international conventions on human rights.

There are in general two kinds of rights that entail compensation: on the one hand, the right to compensation for unlawful arrest or detention; on the other hand, the right to be compensated for unjust conviction. The first right is provided for by Article 9(5) of the ICCPR. This provision states that ‘[anyone] who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation’. The second right is contained in Article 14(6) of the ICCPR. The provisions of this rule establish that a person who has been convicted of a criminal offence by a final decision, which turns out to be unjust, shall be com(p. 1579) pensated. The person may request compensation if his or her conviction has been reversed, on the ground of new or newly discovered evidence showing that there has been a miscarriage of justice. This right is limited to the case that the non-disclosure of the unknown fact in time is not wholly or partly attributable to the person requesting compensation.

Similar rights are provided for by the European and American Conventions on human rights. Article 5(5) and Article 3, Protocol VII, of the ECHR and Article 10 of the ACHR contain provisions to this effect. The European Convention originally contained only the right to compensation for unlawful arrest or detention, subsequently the right to be compensated for unjust conviction has been provided for by Protocol VII. The text of this rule follows to the letter the provisions of Article 14(6) of the ICCPR.

The interpretation of these provisions does not create particular problems, as their meaning is relatively plain.9 However, a trait common to the provisions on the right to be compensated for unjust conviction resulting from a miscarriage of justice is the fact that they are rather narrowly drafted.10 This can certainly be explained by the intention to avoid the multiplication of proceedings. Nevertheless, it might be questioned whether it would be possible or not to extend their scope by means of interpretation.

It is interesting to note that the right to be compensated for a detention, not necessarily unlawful from a strictly formal point of view, but due to a grave and manifest miscarriage of justice does not seem to be provided for by international instruments. In general, it can be said that international human rights law provides only for two types of rights of compensation: the right to be compensated for unlawful arrest or detention, and the right to be compensated for unjust conviction. With its provisions the ICC Statute has extended the protection to the case of a person who has been detained due to a grave and manifest miscarriage of justice and finally has been released by a final decision of acquittal. It does not seem that a similar protection is explicitly granted under international human rights treaties.

III. The Practice of International Criminal Tribunals

No provisions on the right of compensation to defendants for unlawful arrest (or detention), unjust conviction, or unjust detention due to miscarriage of justice (p. 1580) can be found in the Charters of the Nuremberg and Tokyo Tribunals and in the Statutes of the UN ad hoc Tribunals.

The lack of such provisions in the Charters of the post-World War II Tribunals is not surprising, especially in consideration of the overall legal framework and of the prevailing circumstances at that time. As mentioned elsewhere in this commentary,11 this can probably be explained by the absence of international provisions on the rights of individuals in the administration of justice and lesser emphasis on the importance of the due process guarantees (both in national and international trials).

It is more surprising that no provisions on compensation exists in the Statutes of the ad hoc Tribunals, or in their Rules of Procedure and Evidence. There have been cases before the Tribunals where the existence of such norms could have been useful and it seems that, in the near future, the Security Council may consider the adoption of some form of rules on compensation for the Statutes of the ad hoc Tribunals.

The discussion of two cases of the ICTY and one of the ICTR on matters related to the issue of compensation for unlawful or unjust detention may shed some light on the perspective of having some rules on compensation in the system of the ad hoc Tribunals.

In the Lajić case, before the ICTY, a person was arrested and detained under the authority of the Tribunal and it subsequently turned out that he was the wrong person. In that case the counsel of the person unjustly detained wanted to ask for compensation but the proceedings were never started. Actually, it seems that under the rules of the ICTY there would have been absolutely no opportunity for such a request and that the UN—in application of the agreements on privileges and immunities of the United Nations—would have been immune from legal process in proceedings before national courts. This was at least the official position of the United Nations Office for Legal Affairs, but, as the person who had wrongfully been detained did not pursue his claim, it was never presented before a court.

Another case that could be of some interest in respect of the question of compensation is the case against Delalić (IT-96-21-A). This accused was acquitted at first instance and his acquittal confirmed in the appeal proceedings.12 The Tribunal may have to face a problem of request of compensation, since the defendant spent almost two years in pre-trial detention, during which time his (p. 1581) business collapsed as a direct result of his incarceration. It would be very difficult (and unfair) at that stage, especially considering the adoption of thorough guarantees of the rights of persons in the ICC Statute, not to provide for compensation.

Certainly the most interesting case, in particular for the developments it may have on the regulatory framework of the Tribunals, is the Barayagwiza case.13 This case led to the formulation of a proposal to amend the Statutes of the UN Tribunals to explicitly provide for a right of compensation for unlawful arrest or detention, unjust conviction, or miscarriage of justice.14

In Barayagwiza, the accused had been arrested and kept in detention in Cameroon for almost two years, before being transferred to the seat of the Tribunal. The accused then spent four months in detention at the Tribunal without an initial appearance, and without being ever brought before a judge. He subsequently filed two motions, the first of which was never decided upon, the second resulted in the decision under examination. The accused challenged the authority of the Tribunal to continue the proceedings against him on the grounds that his fundamental rights had been grossly violated. The Trial Chamber denied this motion, but the Appeals Chamber, seized of an appeal by the accused, reversed the first decision. The Appeals Chamber found that the violations of the rights of the accused had been so egregious that it was justified to strike out the case with prejudice for the Prosecution and immediately release the accused.15 This extreme measure was intended as a sanction for the serious breaches of fundamental guarantees of which the Prosecution was found to be responsible. As a consequence of this decision the government of Rwanda violently protested and threatened to suspend cooperation with the Tribunal. Meanwhile, the Appeals Chamber, as the Prosecutor had announced the intention to impugn the decision, decided that the accused would not be immediately released and ordered the stay of execution of its decision.

Subsequently, the Prosecutor filed with the Appeals Chamber a motion for revision of its previous decision. The Chamber followed the interpretation of the Statute and the Rules given by the prosecution, in the sense of allowing the discussion of such motion irrespective of the absence of any explicit provision to this effect. At the end of this sui generis ‘revision proceeding’, the Appeals Chamber reversed its first decision, on the grounds that the new facts presented by the prosecution had shown that the violations of the rights of the accused had been of a less serious nature than previously found. The Chamber, however, recognized that (p. 1582) material violations of the defendant’s right had indeed occurred and it established the principle that in case of conviction the Trial Chamber would have to take into consideration in the determination of the sentence the fact that the accused’s rights had been violated. Finally, the Appeals Chamber stated that in the case of an acquittal, the accused should be adequately compensated for the unjust detention.16

After the innovative decision of the Appeals Chamber of the Tribunals,17 a proposal was made to the effect that the Statutes of the Ad Hoc Tribunals should be amended to explicitly provide for such a right of compensation. It seems, however, that while the Security Council will be examining this proposal, the judges could already amend the Rules and provide for such a right. After all, this amendment would simply be an implementation of the rights of the accused as internationally protected by all international conventions on human rights. Moreover, the fact that the provisions of the ICC Statute explicitly recognize a wide right of compensation to the accused should facilitate the task of the judges of the Ad Hoc Tribunals in amending the Rules. This said, it should be recognized that there are several reasons that would require in any case the intervention of the Security Council or, at least, its implicit agreement with an amendment to the Rules (such as, for example, making it easier to provide for a specific budget for compensation).

IV. The Rome Statute

Article 85(1) of the ICC Statute establishes that ‘anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation’. This text reproduces the wording of international provisions, such as Article 9(5) of the ICCPR or Article 5(5) of the ECHR. However, it does not seem clear what the purpose is of such a provision in the ICC Statute with a view to its implementation within the system of the ICC itself. In other words, while it seems rather obvious that the ICCPR and the ECHR adopt those terms, as they are intended to impose on States the obligation to implement in their own municipal system a mechanism that enables the victim of an unlawful arrest or detention to obtain compensation, it would not have seemed necessary to state that the unlawfully detained should have ‘an enforceable right to compensation’ in the ICC system. It would have been enough to explicitly provide for such right.

Article 85(2) of the ICC Statute provides for the right of a person, convicted by a final decision, to obtain compensation, when subsequently such conviction is (p. 1583) reversed on the grounds that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. The person loses such right to compensation if it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him or her. In this respect it should be noted that wide discretion should be left to the Chamber to determine whether a person to whom non-disclosure is partly attributable should still receive a certain amount (proportionally reduced) of compensation.

Article 85(3) of the ICC Statute establishes that in exceptional circumstances, where a grave and manifest miscarriage of justice has occurred, the Court may award compensation to a person ‘who has been released from detention following a final decision of acquittal or a termination of the proceedings for that reason’. This kind of compensation can hardly be considered as amounting to an individual right. Not only compensation under paragraph 3 may be granted solely in exceptional circumstances, but also the decision as to award or not to award compensation is left to the wide discretion of the Court. Of course, it seems correct to argue that the Court will have to respect in its decisions the principles of equality and non-discrimination. Therefore, similar cases will have to be treated in conformity with the same principles. However, it would have been appropriate to have more stringent criteria for the exercise of such power by the Court.

Additionally, it seems that the fact of being victim of a grave and manifest miscarriage of justice should be considered ipso facto an ‘exceptional circumstance’ within the meaning of the provisions of Article 85(3) of the ICC Statute. It seems reasonable to argue that the draftspersons used the formula ‘in exceptional circumstances’ more as a wish than as a limitation of the scope of the rule. In other words, it is hoped that ‘grave and manifest miscarriages’ of justice will occur only in exceptional circumstances, but it would seem that in every case of ‘grave and manifest’ miscarriage of justice, some sort of compensation should be foreseen.

The Rules of Procedure and Evidence have to a large extent supplemented the ICC Statute. The provisions on compensation are contained in Chapter 10, entitled ‘compensation to an arrested or convicted person’ (Rules 173–175) and devoted exclusively to this topic. Rule 173, relies by way of principle on the system of the double procedure. First, the interested person must obtain a decision of the Court affirming that the arrest or detention was unlawful (Article 85(1) ), or that the conviction had been reversed on the grounds of a new fact (Article 85(2) ) or that there was a grave and manifest miscarriage of justice (Article 85(3) ). Moreover, the request shall contain all elements justifying the request and the amount requested. Additionally, it is stated that the person requesting compensation has the right to legal assistance, but it is not specified whether he or she would also be entitled to legal aid if indigent. In such cases, it would seem reasonable to conclude that he would.

(p. 1584) The Rules of Procedure and Evidence also establish the procedure to be followed, which requires that a person seeking compensation under Article 85 of the ICC Statute shall file a request to the Presidency. This request must be filed in writing, which seems to reinforce the idea that such a request cannot be made in the course of the proceeding on the unlawfulness of the detention or in the revision proceeding. Another element that would seem to go in this direction is the fact that the request shall be made to the Presidency who will then designate a special chamber (composed of three judges). A time limit of six months from the date the person requesting compensation was notified has also been set for the presentation of the request. The procedure is adversarial: the Prosecutor shall be notified of the request and any accompanying materials in order to present his or her observation (Rule 174 ICC RPE). Subsequently the Chamber designated shall hold a hearing to permit the submission of the written observations by the Prosecutor and the person filing the request. A further hearing must be held if either party so requests.

Rule 175 of the ICC RPE contains the criteria for establishing the amount of compensation. This rule, however, is apparently drafted only for compensation under paragraph 3 of Article 85. Nothing seems to prevent the interpretative extension of this norm to all the other kinds of compensation. After all it seems that every case, in which compensation should be granted, can be considered as entailing a form of miscarriage of justice. Rule 175 establishes that the Chamber shall take into consideration the consequences which the grave and manifest miscarriage of justice has had for the personal, family, social, and professional situation of the person filing the request.

It seems that the provisions of the Rules of Procedure and Evidence exclude that the request for compensation can be discussed and decided over within the proceedings on the lawfulness of the detention or the revision proceedings. On the contrary, it would have seemed more reasonable to provide explicitly for the possibility of deciding on the request of compensation, within the same proceeding (either the proceeding on the unlawfulness of the arrest or detention, or the revision proceeding). Finally, it is submitted that it would have been preferable to attribute competence to decide on compensation to the same Chamber that determines the unlawfulness of the arrest or detention, or decides on the motion for revision. This solution would have ensured more speed in doing justice to the victim of an unlawful arrest or unjust conviction. Moreover, it would have had the interest of speeding up the activities of the Court as a whole, as it does not seem appropriate to burden the system of the Court with several micro-proceedings unrelated to the main object of its jurisdiction.

(p. 1585) V. Conclusion

The above discussion has shown how international criminal procedure is progressively becoming more and more protective of the rights of individuals. It is clear that there has been progress from Nuremberg and Tokyo to The Hague and Arusha. It seems that the evolution in the protection of fundamental rights has not stopped and this is also confirmed by the provisions of the ICC Statute on the right of victims of unlawful arrest or unjust conviction or detention. These provisions certainly represent a positive model.

The establishment of a clear and effective mechanism makes it certainly easier for persons appearing before the Court to concretely enjoy this right. However, there still are some questions that remained unsolved. First, one may wonder whether the right to seek compensation may be exercised by the relatives or the heirs of the victim of the violation, in particular when the victim dies in custody or shortly after release. Second, it seems that the Prosecutor should file such a request in the interest of the victim, if the victim (and or his or her relatives or inheritors) is unable, for whatever reason, to do so. Finally, it still is unclear whether it is absolutely necessary to have two distinct proceedings. It is suggested that in the practice of the Court it will be appropriate to make an effort to have the request for compensation examined by the same Chamber that decides on the grounds for compensation.

The provisions of the Rome Statute alone were not particularly clear, but the Rules of Procedure and Evidence shed sufficient light on the procedure to be followed for compensation, on the competent organs and on the criteria for compensation. If there are other lacunae, they will be of such nature that the judges will solve on a case by case basis. Of course, it would be appropriate to add provisions on the maximum possible amount of compensation and on financial resources for compensation. Finally, a norm could have been added to the provisions of the Rome Statute, imposing on States the obligation to adopt all possible measures to restore, insofar as possible, the status quo ante in respect of an accused wrongfully detained or convicted, or victim of a miscarriage of justice.(p. 1586)

Footnotes:

1  On this issue, see generally the comments by C. Staker, ‘Article 85’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (1999).

2  Cf. Arts. 9 and 14 International Covenant on Civil and Political Rights (ICCPR); Art. 14(6) ICCPR, ‘When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

3  Cf. Art. 5 European Convention on Human Rights (ECHR) and Arr. 3 Protocol VII.

4  Cf. Art. 10 American Convention on Human Rights (ACHR), ‘Every person has the right to be compensated in accordance with the law in the event he has been sentenced by a final judgment through a miscarriage of justice’.

5  For the Nuremberg Charter, cf. the Internet site of the Avalon Project at Yale, <http://www.yale.edu/avalon>.

6  For the Tokyo Charter, cf. <http://www.yale.edu/avalon>.

7  The Statutes of the Tribunals can be read respectively on the web page of the Tribunals, <http://www.un.org/icty> and <http://www.ictr.org>; the Tribunals were created by UN SC Res. 825 (1993) and 955 (1994) and their Statutes were attached to the relevant resolution.

8  Cf. Address of the President of the ICTY to the UN GA, IT SB/S.I.P/512-e) (20 June 2000).

9  In this sense, cf. F. G. Jacobs and R. White, The European Convention on Human Rights (2nd edn., 1996) at 171.

10  Ibid.

11  Cf. the chapter on the rights of the accused, in this Commentary, Ch. 31.3 above.

12  Cf. Trial Chamber Judgment, Delalić and others, IT-96-21-T, 16 November 1998 and Appeals Chamber Judgment, 20 February 2001.

13  In this case there are two important decisions of the Appeals Chamber: the first in the appeals proceeding (3 November 1999, infra note 15) and the second at the outcome of a revision procedure (31 March 2000, infra note 16).

14  Cf. Address of President Jorda to the UN General Assembly, supra note 8.

15  Cf. Decision of the Appeals Chamber, 3 November 1999, ICTR-97-19-AR72.

16  Cf. Decision of the Appeals Chamber, 31 March 2000, ICTR-97-19-AR72, paras. 71 et seq.

17  The Appeals Chamber followed the same approach in Semanza, 30 May 2000.