EARLY RELEASE: Has IRMCT President Carmel Agius moved the goalposts? (Part 1)

1967 Parole Hearings Man: Ellis Boyd Redding, your files say you’ve served 40 years of a life sentence. Do you feel you’ve been rehabilitated?

Red: Rehabilitated? Well, now let me see. You know, I don’t have any idea what that means.

1967 Parole Hearings Man: Well, it means that you’re ready to rejoin society…

Red: I know what you think it means, sonny. To me it’s just a made up word. A politician’s word, so young fellas like yourself can wear a suit and a tie, and have a job. What do you really want to know? Am I sorry for what I did?

1967 Parole Hearings Man: Well, are you?

Red: There’s not a day goes by I don’t feel regret. Not because I’m in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can’t. That kid’s long gone and this old man is all that’s left. I got to live with that. Rehabilitated? It’s just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don’t give a shit.

The Shawshank Redemption (1994)

A sentence imposed by some of the international(ized) criminal tribunals or courts, including the International Residual Mechanism for Criminal Tribunals (IRMCT), rarely reflects the years a convicted person will end up serving, just as eligibility for early release rarely corresponds with early release. Yet convicted persons, confusingly, consider early release upon eligibility as a given – an entitlement, as if it were a right. You cannot blame them. As they see it (as do many of us on the defense), baked into the sentence is the factor of eligibility for early release after serving the mandatory portion of the sentence, which, at the IRMCT, is 2/3 of the sentence imposed.

Early release is neither novel nor unique practice at the IRMCT. First adopted by the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) despite the absence of an express statutory provision, it is a time-tested and well-established practice in domestic penal systems.

Take for instance the domestic jurisdiction where I practiced, Alaska (USA). Eligibility for early release was after serving 1/3 of a sentence – assuming the sentencing judge did not find the convicted person to be beyond rehabilitation, in which case he/she would become eligible after serving 2/3 of the sentence. But there are few critical points to keep in mind. For instance, often a portion of the sentence was suspended, and any suspended time could be served on the installment plan, as we would say, for infractions and violations of the terms of probation. There was also parole, where convicted persons could be released early but be subject to the conditions of parole, under which (as with probation), violations would be met with going back to prison. And let’s not forget the severity of the sentences. Murder in the first degree (intentional), for instance, carried a maximum of 99 years, which, bar some exceptional circumstances, was imposed universally. The average time served before being released was around 45 years. Obviously, these sorts of sentences are not reflective of those meted out at the international(ized) criminal tribunals or courts for crimes of far greater magnitude, and humanely so – which is also reflective of redemptive hope: society’s sanguinity in the human capacity for positive change and the individual’s capacity to reflect and reform. But it does drive the point home: eligibility  release.

The IRMCT is the residual tribunal for the now defunct ICTY and ICTR, established as part of their completion strategies and for purposes of affording, among other things, post-conviction relief. One such type of relief available to convicted persons serving sentences in national prisons across the globe is early release from serving the entire sentence imposed. As has been the practice with his predecessors at the ICTY and ICTR, the IRMCT President makes the call based (though not exclusively) on the factors set out in the Rules of Procedure and Evidence (Rules). Specifically, the IRMCT President is to consider the sentencing factors set out in Rule 151: “the gravity of the crime or crimes for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner’s demonstration of rehabilitation, as well as any substantial cooperation of the prisoner with the Prosecutor.”

Current IRMCT President Carmel Agius issued a Practice Direction in May 2020 “to provide guidance on the procedure for … early release.” Though it does not elaborate on the factors to be considered under Rule 151, it does inform on what relevant evidence the President will order the Registrar to collect to establish these factors: reports from the appropriate authorities, psychiatric/psychological evaluations, medical reports, information on where the convicted person intends to live if released early, and any information regarding his/her co-operation with the Prosecutor.

Save for humanitarian reasons (e.g., impending death due to terminal illness), as previously noted, eligibility for early release under the IRMCT Practice Direction starts after having served 2/3 of the sentence imposed. Considering the sentencing scheme (the length of the periods of imprisonment imposed that carry an implied presumption of early release), it should be the exception and not the norm to delay or deny early release past the 2/3 sentencing mark. Here is why.

Having considered all facts and circumstances of the case, the impact the crimes committed by the convicted person had on the victims, the aggravators and mitigators, the need to reaffirm societal norms and deter others, and considering the gravity of the crime, a sentence of 20 years (actually served) is warranted. But, since eligibility for early release starts after 2/3 of the sentence, 20 years would be reduced to less than 14 – a sentence far below what had originally been assessed as a fair sentence tailored to the convicted persons’ acts and conduct.

To reconcile short-changing the justice owed to the community, and more importantly, to the victims, when a 30-year sentence is imposed, it is done so with the full appreciation that the convicted person may end up only serving at least 20 years of the sentence in a prison setting. So in theory, assuming model behavior and other factors reflecting fitness to rejoin society, the remainder of the sentence will not be served. Thus, looking at the sentencing scheme this way does militate in favor of granting early release immediately upon successfully completing 2/3 of the sentence. But there are other reasons for providing for early release.

The primary one in my view is hope, redemptive hope. Warehousing someone for years or decades without the possibility of hope – that however wisely they use their time in prison, however hard they try to improve themselves, however much they reflect on their past behavior and come to terms with the person they perhaps once were and how they see things now (as Red in The Shawshank Redemption), there is no reduction in the sentence – is cruel and inhumane (even without considering the exceptionally harsh and dangerous conditions under which sentences are often served). Some convicted persons may not and perhaps should not qualify, ever, for early release. But they are the exceptions, and if a sentencing judge or a Chamber hold this view, they should unambiguously express this in their sentencing decisions. Otherwise, it should be a forgone conclusion that convicted persons be released early. But how early is early?

Although the IRMCT has no parole provisions, the wonderful exchange in The Shawshank Redemption above is instructive, in that in addition to being well-behaved in prison, it seems the convicted person may now need to also come clean as it were – to confess guilt for his or her application for early release to be approved by the IRMCT President. And so, in considering whether President Agius has moved the goalposts to make it more difficult for convicted person to be released upon eligibility, query whether he has turned the early release procedure into a confess for release procedure.

One of the factors he indicated in recent decisions that will tip the balance for early release, among other things, of course, is a validation by the convicted person of the findings of fact and conclusions of law reflected in the Trial Judgement and confirmed by the Appeals Chamber (which goes in favor of rehabilitation).1 Prosecutor v. Bralo, MICT-14-78-ES, Decision on the Early Release of Miroslav Bralo, 31 December 2019, para. 39; Prosecutor v. Radoslav Brđanin, MICT-13-48-ES, Decision on the Application of Radoslav Brđanin for Early Release, 28 February 2020, para. 49; Prosecutor v. Semanza, MICT-13-36-ES.2, Decision on Laurent Semanza’s Application for Early Release, 17 September 2020, para. 46, referring to Prosecutor v. Krstić, MICT-13-46, Decision on the Early Release of Radislav Krstić, 10 September 2019, para. 32 (holding that one of the factors in favor of early release is the “acceptance of responsibility for the crimes a person was convicted for or for actions which enabled the commission of the crimes”); Prosecutor v. Miletić, MICT-15-85-ES.5, Decision on the Early Release of Radivoje Miletić, 5 May 2021, para. 45. That President Agius has other added factors to be considered in granting early release is readily apparent as we shall see. Whether these added factors have in fact moved the goalposts, or whether a confession of sorts is expected from the convicted person (some may view this as merely requiring acceptance of responsibility, acceptance being the first step to recovery, i.e., rehabilitation and redemption) reflecting as a quid pro quo for early release, is something I hope to settle.

But there is also one other matter equally deserving scrutiny and perhaps just as disconcerting: President Agius’s proclivity for delaying the consideration of early release applications, so much so, that optic-wise it lends the unavoidable impression of purposeful dillydallying in contravention of the Practice Direction. Whether President Agius is abusing his discretionary authority, I will leave to the reader to decide.

Continued in Part 2.



Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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