Kosovo Specialist Chambers – Part 5: The Rules of Procedure and Evidence (Investigations and Arrest and Detention)

This is the fifth post in my series on the Kosovo Specialist Chambers (“KSC”), a hybrid internationalized set of chambers founded to try war crimes, crimes against humanity, and other crimes under Kosovo law committed during the aftermath of the conflict in Kosovo (1998-2000). In the previous post, I discussed general and structural matters regulated by the Rules of Procedure and Evidence (“RPE”). In this post, I will focus on investigations, arrests, and detention matters.

As I have previously noted, one of the unique features of the KSC is its constitutional chamber, the Specialist Chamber of the Constitutional Court (“SCCC”), which is responsible for interpreting the Kosovo Constitution as it relates to the work of the KSC and the Specialist Prosecutor’s Office.1   Law on Specialist Chambers and Specialist Prosecutor’s Office, 3 August 2015 (“KSC Statute”), Art. 49. In reviewing the RPE, which were drafted by the Judges of the plenary, the SCCC found some of the rules regulating the investigations, arrest, and detention to be unconstitutional. While the revised RPE are currently being deliberated by the SCCC, examining some of the unrevised rules gives us an insight on the how meticulous and sensitive to the Kosovo Constitution the KSC is, and why perhaps future ad hoc tribunals may wish to consider adopting a similar framework. The SCCC’s reasoning for striking them down is instructive, not only for interpreting the revised RPE, but for developing RPE for any future international(ized) criminal tribunal or court.

Investigative Measures – General Provisions

Rule 30 provides the general investigative powers of the Specialist Prosecutor. While the Specialist Prosecutor’s general powers under Rule 30(1) – to question victims, witnesses, and suspects, to collect evidence and conduct on site investigations, and to seek the assistance of third States and international organizations, etc. – are similar to those under the RPE of other international(ized) criminal tribunals and courts,2   See e.g., International Criminal Tribunal for the former Yugoslavia (“ICTY”) RPE, Rule 39: “In the conduct of an investigation the Prosecutor may: (i) summon and question suspects, victims and witnesses and record their statements, collect evidence and conduct on-site investigations.” See also International Criminal Tribunal for Rwanda (“ICTR”) RPE, Rule 39; Special Court for Sierra Leone (“SCSL”) RPE, Rule 39; Special Tribunal for Lebanon (“STL”) RPE, Rule 61. Unlike the ICTY, the ICTR, the SCSL, and the STL, the International Criminal Court (“ICC”) Prosecutor does not have the inherent authority to conduct investigations in the territory of a State, but must either request the Trial Chamber’s authorization or act pursuant to a request for cooperation under Part IX of the Statute. See Rome Statute, Art. 54. Another exception is the Extraordinary Chambers in the Courts of Cambodia (“ECCC”), where, following the French-inspired civil law model, investigations are conducted by the Co-Investigating Judges who have the authority to “[s]ummon and question Suspects and Charged Persons, interview Victims and witnesses and record their statements, seise exhibits, seek expert opinions and conduct on-sight investigations.” See ECCC Internal Rules, Rule 55. the KSC RPE provide an extra layer of protection to those being investigated.

Under Rule 30(3), “[w]here investigative measures may infringe on fundamental rights provided for under Chapter II of the Constitution,” the Specialist Prosecutor must apply for authorization to the KSC Panels, setting forth “(a) the grounds for such measures; (b) the manner in which they may infringe such rights; and (c) any proposed counterbalancing safeguards.” In other words, the Specialist Prosecutor must seek a search warrant before taking any investigative measures that could infringe on a person’s right to privacy guaranteed under Article 36 of the Kosovo Constitution. Rules 30(1)(d) and (e) also allow the Specialist Prosecutor to take “special investigative measures,” such as covert surveillance, and “other measures,” such as expert examination of bodily samples, which I will discuss below.

Special Investigative Measures

Rules 31 to 33 cover “special investigative measures,” which, as defined in Rule 2, include a host of surveillance measures provided for in the Kosovo Criminal Procedure Code:

–  covert photographic or video surveillance;

–  covert monitoring of conversations;

–  search of postal items;

–  interception of telecommunications;

–  controlled delivery of postal items;

–  use of tracking or positioning devices;

–  metering of telephone-calls (obtaining records of telephone calls made from a given telephone number); and

–  disclosure of financial data.

Providing such intrusive investigative measures in the RPE is a first for international(ized) criminal tribunals and courts, though the use of such measures is not uncommon. For instance, the Prosecutor at the International Criminal Court (“ICC”) has relied on national authorities to carry out interceptions of telecommunications in building its case.3   See Prosecutor v. Bemba et al., ICC-01/05-01/13-1989-Red, Judgment pursuant to Article 74 of the Statute, 19 October 2016, para. 214: “[T]he Prosecution also presented the logs/call data records (‘CDR’) of national, private telecommunication companies which had been requested, through a cooperation request, to provide this data to the Court. Where national authorities intercepted communications, audio recordings, together with corresponding call logs, were submitted for the Chamber’s consideration.”

Rule 31(1) lists the requirements for granting special investigative measures:

(a) there is a grounded suspicion that a crime within the jurisdiction of the Specialist Chambers has been committed, is being committed or is about to be committed; and

(b) information obtained from such measures, if applied, would assist the investigation of the crime and cannot be obtained by any other investigative measure or without a real risk of harm to persons or property.

Under Rule 32(1) the Specialist Prosecutor must request authorization from a KSC Panel to undertake special investigative measures,4 Rules of Procedure and Evidence Before the Kosovo Specialist Chambers, Rule 32(1) (“KSC RPE”). though Rule 31(2) does not require “[a] reasonable suspicion of the identity of a suspect committing or participating in the commission of a crime” for such measures to be granted. A decision authorizing special investigative measures, however, must include: (a) the period for which authorization is granted (which cannot exceed 60 days); (b) the time limit within which the Specialist Prosecutor must report on the implementation of the measures; and (c) authorization to “enter, search or seize private property and take other actions as are necessary to execute, maintain or terminate the investigative measure in question.” Rule 32(2) does not require that the accused person be notified of the authorization unless the KSC Panel determines that notification will not jeopardize the effectiveness of the sought measures.

Rule 33 specifies the “exceptional circumstances” under which the Specialist Prosecutor may act without prior judicial authorization. Rule 33(1) lists the requirements: (a) the grounds listed in Rule 31(1) are met; (b) exceptional circumstances require immediate implementation; and (c) delay will jeopardize the investigation or the safety of a witness, victim, or other person at risk. Under Rule 33(2), the Specialist Prosecutor must seek judicial approval of special investigative measures no later than 24 hours after the fact.5   Id., Rule 33(2). Rule 33(3) provides that if the KSC Panel denies the request, the Specialist Prosecutor must immediately terminate the measures.

The SCCC found Rules 31, 32, and 33 unconstitutional because they did not meet the “quality of law” requirement under Article 51 of the Kosovo Constitution: that the domestic law infringing on the right to privacy be accessible and foreseeable in application, and ensure that secret surveillance measures are applied only when “necessary in a democratic society.”6 KSC-CC-PR-2017-01/F00004/, Judgment on the Referral of the Rules of Procedure and Evidence Adopted by Plenary on 17 March 2017 to the Specialist Chamber of the Constitutional Court Pursuant to Article 19(5) of Law no. 05/L-053 on Specialist Chambers and Specialist Prosecutor’s Office, 26 April 2017 (“Judgment on KSC RPE”), paras. 64, 75. It found that as formulated, Rules 31, 32, and 33 “lack adequate safeguards against abuse of power in the field of special investigative measures and, particularly, as regards the interception of communications.”7   Id., para. 75.

In its analysis, the SCCC embraced the European Court of Human Rights’ jurisprudence (as required)8   Art. 3(2)(e) of the KSC Statute requires the KSC adjudicate and function in accordance with the “international human rights law which sets criminal justice standards including the European Convention on Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights, as given superiority over domestic laws by Article 22 of the Constitution.” that any secret surveillance measures or interception of communications contain minimum safeguards, such as:

  • specification of the nature of offences which may give rise to an interception order;
  • a definition of the categories of people liable to have their telephones tapped;
  • a limit on the duration of telephone tapping;
  • the procedure to be followed for examining, using and storing the data obtained;
  • the precautions to be taken when communicating the data to other parties; and
  • specification of the circumstances in which recordings may or must be erased or destroyed.9 Judgment on the KSC RPE, para. 66. See also id., para. 64, citing Roman Zakharov v. Russia [GC], no. 47143/06, ECHR 2015, para. 231.

Reviewing Rules 31, 32, and 33, the SCCC noted that:

Rule 31(1)(a) provides that special investigative measures may be authorised with regard to crimes within the jurisdiction of the Specialist Chambers. Thus, all offences under Article 6 of the Law, fall within the category of offences in respect of which interception orders may be made. Whilst this undoubtedly satisfies the requirement of clarity concerning the nature of the offences which may give rise to such an order, it is doubtful, in the Court’s view, whether all offences, including those that may be punishable by a fine, would warrant such a degree of interference with the right to respect for privacy.10   Judgment on the KSC RPE, para. 69.

The SCCC found that Rules 31 to 33 failed to “define the categories of persons in respect of whom the special investigative measures may be applied.”11   Id., para. 70. It reasoned that as formulated, Rules 31 to 33 “make it permissible for the most intrusive of measures to be carried out with respect to any person provided that the conditions under Rule 31(1) are met.”12   Id. (emphasis in original).   Concerning the general provision in Rule 31(2) permitting interference without a reasonable suspicion of a suspect’s identity, the SCCC found it “problematic on its face,” raising “serious concerns as to the justification for the imposition of such a measure.”13   Id., para. 71.

The SCCC also found that Rules 31 to 33 lacked sufficient precision regarding the duration of interception.14   Id., para. 72. It noted that while Rule 32(2)(a) imposes a 60-day limitation, nothing in the Rule prevents the Specialist Prosecutor from repeatedly obtaining a new decision after the 60-day expiration date.15   Id. “[S]uch measures cannot be indefinite in character. The Rules must specify, at a minimum, the circumstances under which a warrant may be renewed and the conditions under which it must be cancelled.”16   Id.

The SCCC criticized the lack of a procedure for retaining, storing, and securing information obtained during investigations.17   Id., para. 73. While Rule 43 provides that the Specialist Prosecutor is responsible for such measures, the SCCC found that there was no clear procedure to be followed for the destruction of such data or where the data collected is not relevant to a criminal investigation.18   Id.

Search and Seizure

Rules 34 to 36 govern searches and seizures conducted by the Specialist Prosecutor. Such detailed rules concerning searches and seizures are not provided in the statutes of the International Criminal Tribunal for the former Yugoslavia (“ICTY”), the International Criminal Tribunal for Rwanda (“ICTR”), the Special Court for Sierra Leone (“SCSL”), the Special Tribunal for Lebanon (“STL”), and the International Criminal Court (“ICC”), as such matters are handled by the national authorities acting on requests for judicial assistance.19   ICTY RPE, Rule 40; ICTR RPE, Rule 40; SCSL RPE, Rule 40; STL RPE, Rule 62; ICC Statute, Art. 93. The Internal Rules of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) have search and seizure provisions,20   See ECCC Internal Rules, Rule 61. though they are less detailed and, because of the French-inspired civil law nature of the court, such matters are handled by the Co-Investigating Judges and Judicial Police rather than the Co-Prosecutors.21   See id., Rules 14, 55.

Rule 34 requires the Specialist Prosecutor to obtain judicial approval of searches and seizures upon establishing “grounded suspicion” that:

(a) a crime within the jurisdiction of the Specialist Chambers has been committed, is being committed or is about to be committed; and

(b) the search is likely to result in the arrest of a person responsible for the crime or in the discovery and seizure of evidence essential for the investigation.

Rule 35(1) allows for the Specialist Prosecutor, without judicial authorization, to “search any person or property and temporarily seize any items found during the search” if:

(a) the person knowingly and voluntarily consents to the search and seizure;

(b) a person caught in the act of committing a crime under the jurisdiction of the Specialist Chambers, is to be arrested after a pursuit;

(c) a person against whom an arrest warrant has been issued by a Panel is on the property to be searched; or

(d) it is necessary to avoid an imminent risk of serious and irreversible harm to other persons or property.

Rule 35(2) requires the Specialist Prosecutor to file a request for judicial approval of the search and seizure no later than 24 hours after its initiation. If the KSC Panel denies approval, the Specialist Prosecutor must immediately terminate the search and seizure. Rule 35(3) specifies that the Panel shall approve the search and seizure only if all the conditions under Rule 35(1) are met.

The SCCC found Rule 35(1) unconstitutional because of the excessive powers it accords to the Specialist Prosecutor.22   Judgment on the KSC RPE, para. 86. It “allows the Specialist Prosecutor to search ‘any’ property on which a person caught in the act of committing a crime is to be arrested after a pursuit,” and to seize “any” items if the person against whom a warrant has been issued is on the searched property.23   Id. The SCCC reasoned that the Constitution permits Kosovo authorities to conduct searches only “to the extent necessary” and where they are “deemed necessary for the investigation of a crime.”24   Kosovo Constitution, Art. 36(2). The SCCC further found that the ex post facto judicial review under Rule 35(3) “makes no provision for the review to include an assessment of the proportionality of the measure.”25   Judgment on the KSC RPE, para. 87.

Rule 36 concerns the execution of a search and seizure. Under Rule 36(1), before the Specialist Prosecutor executes a search and seizure, he must: (a) provide the person concerned a certified copy of the search warrant; (b) inform that person of his or her rights; and (c) ensure that the search and seizure is executed in the presence of Counsel, unless that person waives that right. Rule 36(2) provides that in exceptional circumstances requiring an immediate search and seizure (such as where delay would jeopardize the investigation or cause irreversible harm to persons or property), the Specialist Prosecutor must request approval of a Panel no later than 24 hours after the initiation of the search and seizure.

The SCCC declared Rules 36(1) and (2) unconstitutional because they were not “formulated with the requisite degree of precision.”26   Id., para. 91. It reasoned that these rules are unclear as to whether they were intended to govern the execution of searches and seizures following judicial authorization, or those executed without judicial authorization.27   Id. The SCCC considered that the “exceptional circumstances” provision in Rule 36(2) was also unclear as to whether such circumstances should be considered a ground for non-judicially authorized searches and seizures in addition to the grounds set out in Rule 35.28   Id., para. 93. The SCCC concluded that while Rule 36(2) provides for an ex post facto judicial review of such searches and seizures, “given the lack of clarity as to applicability and operation of this and the proceeding provision,” it is unclear what such a review would entail.29   Id., para. 94.

Expert Examinations

Rule 38 provides for expert examination of hair, saliva, or other swab samples, blood samples and body tissues, DNA, and other similar material. It is a unique provision, not contained in the RPE of other international(ized) criminal tribunals and courts. It gives the Specialist Prosecutor the same powers granted to the Kosovo authorities under the Kosovo Criminal Procedure Code.30   See Kosovo Criminal Procedure Code, Law No. 04/L-123, 28 December 2012 (“Kosovo Criminal Procedure Code”), Art. 144.

Rule 38(1) allows for expert examination of hair, saliva, and other swab materials, which can be taken “without bodily intrusion.” Such materials can be collected by the Specialist Prosecutor without judicial authorization. By contrast, Rule 38(2) regulates the examination of other materials “which cannot be taken without bodily intrusion,” such as blood samples or body tissues. In order to collect and examine these materials, the Specialist Prosecutor must get voluntary written consent from the person concerned or judicial authorization. Rule 38(5) concerns the retention and destruction of the materials collected.

The SCCC declared Rule 38(1) unconstitutional because it does not provide sufficient safeguards for examinations in cases where a person does not give his or her consent.31   Judgment on KSC RPE, para. 106. The SCCC found the phrase “without bodily intrusion” in Rules 38(1) and (2) to be ambiguous.32   Id., para. 98. Collection of hair, saliva and other swab samples includes physical contact, and even if seemingly slight or minor, constitutes “bodily intrusion,” similar to the collection of blood samples or DNA.33   Id. Because Rule 38(1) permits the Specialist Prosecutor to order the collection of bodily samples without a person’s consent, the SCCC found there were insufficient safeguards, namely a judicial authorization requirement for any non-consensual contact or intrusion.34   Id., paras. 102-103. The SCCC considered that even in urgent and exceptional circumstances that make it impossible to seek judicial authorization, an after-the-fact judicial review must be done.35   Id., para. 103.

The SCCC also declared Rule 38(5) unconstitutional because it provides for retention of all the materials for a considerable period of time “without any particular assessment of the specific circumstances arising in each case.”36   Id., para. 105. It found that Rule 38(5) creates a possibility that the materials are retained regardless of the nature and gravity of the offense with which the person was charged, and regardless of whether that person was a suspect, an accused, or a third person.37 Id. Rule 38(5) also fails to ensure that materials are not retained longer than necessary.38   Id.

Interestingly, Article 144(5) of the Kosovo Criminal Procedure Code is nearly identical to Rule 38(1), stating that examinations of materials such as hair, saliva, “other similar samples which do not entail bodily intrusion can be taken during a physical examination without a specific court order.” Now that the SCCC found Rule 38(1) unconstitutional, query whether the Kosovo Criminal Procedure Code will be amended and harmonized with the KSC RPE.

Rights of persons during investigations, interview recording, and other procedural matters

Rules 39 to 44 concern the rights of persons during investigation. Nothing too trailblazing, but worth a general discussion.

Rule 39 provides anyone under investigation the rights: (a) to be free from self-incrimination; (b) “not to be subjected to any form of coercion, inducement, undue promise threat, torture or any other form of cruel, inhumane or degrading treatment or punishment”; (c) to be questioned in a language he or she understands or speaks, and have the free assistance of interpreters if necessary; and (d) not to be subjected to arbitrary arrest or detention.

Rule 40 contains the specific rights of suspects during the investigation. Under Rule 40(1), once a person is deemed a suspect (the Specialist Prosecutor has reasonable suspicion that the person has committed a crime within the KSC’s jurisdiction), that person must be accorded the full set of rights provided for in Article 38 of the Statute: (a) to be informed that there are grounds to believe that he/she has committed a crime within the KSC’s jurisdiction; (b) to remain silent and be cautioned that any statement he/she makes will be recorded and may be used as evidence; (c) to be assisted by Specialist Counsel of his or her own choosing; and (d) to have a free interpreter if he/she cannot understand or speak the language used for questioning. Rule 41(2) requires that the suspect be informed of these rights prior to any questioning in a language he/she understands. Rule 41(3) requires the presence of Specialist Counsel when the suspect is brought in for questioning, confrontation, a police line-up, or reconstruction of a crime scene. A waiver of this right must be done in writing and can be revoked at any point during the suspect’s interview.39   KSC RPE, Rule 41(4).

Rule 41 requires that all questioning of suspects by the Specialist Prosecutor be video-recorded. The detailed procedure in Rules 41(1)(a)-(f) provide a step-by-step breakdown of how the Specialist Prosecutor must conduct such interviews. For example, if the questioning has been interrupted, Rule 41(b) requires the Specialist Prosecutor to record the time when the questioning was interrupted and when it resumed. Rule 41(2) provides that in exceptional circumstances, when the recording is not possible, a suspect may still be questioned, but the Specialist Prosecutor must record reasons for not following the procedure. Unfortunately, there is no similar Rule requiring the video-recoding of interviews of witnesses. While video-recording of interviews can be resource-consuming, the value of having full-length video or even audio recordings cannot be underestimated. It enables the parties to identify irregularities in the interviewing process which may be aimed at contaminating or otherwise distorting the witness’s independent memory.40   For example, when listening to audio recordings of witness’ interviews with ECCC investigators and comparing those recordings to the witness summaries of the interviews in Case 002, we (the Ieng Sary Defence) discovered that the written summaries were prepared by the investigators after the interviews, and our Cambodian colleagues observed that the question-and-answer process was staged. The questions and answers were written out after an unrecorded interview and then read out for the audio recording. For more on this, see my post Learning from the ECCC Experience.

Rule 42 provides that confessions given out of court during questioning by the Specialist Prosecutor will be considered free and voluntary if the suspect is afforded all of his or her rights under Rule 40 (to be informed of the charges, remain silent, have Specialist Counsel, etc.) and the confession is video-recorded pursuant to Rule 41.

Under Rule 43, the Specialist Prosecutor is responsible for storing and maintaining the security of information obtained during investigation until it is tendered into evidence. The Specialist Prosecutor must ensure that this material is available for the Defence and the KSC Panel, if requested.

Rule 44 contains provisions on how investigations are to be terminated. If the Specialist Prosecutor does not issue an indictment within a reasonable time, the suspect can request the Specialist Prosecutor to terminate the investigation. If the request is denied or not considered, the suspect may request a Single Judge to consider the matter.

Compensation for Unlawful Arrests

Under Rule 48, investigated persons are entitled to compensation in case of an unlawful arrest. This rule incorporates Article 9(5) of the International Covenant on Civil and Political Rights: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” Unfortunately, there is no similar provision at other international(ized) criminal tribunals and courts.

Under Rule 48(1), a request for compensation must be made within six months of the decision rendering the arrest or detention unlawful. The KSC President will assign a Panel to decide on the request after having heard the Specialist Prosecutor. Rule 48(2) specifies that the Panel must consider the consequences of the unlawful arrest and detention on the personal, family, social, and professional situation of the person.

Although there is no similar provision in the statutes of other international(ized) criminal tribunals and courts, the ICTR Appeals Chamber (recall that the ICTR and ICTY share the same Appeals Chamber) has held that a remedy for a violation of the rights of the accused may include an award of financial compensation.41   Prosecutor v. Semanza, ICTR-97-20-A, Decision, 31 May 2000, p. 34; Prosecutor v. Barayagwiza, ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 75.

In Barayagwiza at the ICTR, the Appeals Chamber held Barayagwiza was entitled to financial compensation (if found not guilty) or a reduction of sentence (if found guilty) to account for violations of his rights to be informed of the charges against him and to be tried without delay.42   Prosecutor v. Barayagwiza, ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 75. Barayagwiza was arrested in Cameroon in 1996; at that time, there was no indictment against him and the transfer to Rwanda was rejected. It was not until 19 November 1997 that he was finally transferred to Arusha (the seat of the ICTR). Barayagwiza made an initial appearance in February 1998, pleading not guilty. The Trial Chamber dismissed his motion to nullify the arrest.43   Id., para. 2. On interlocutory appeal, the Appeals Chamber found a violation of his rights to be properly informed of the charges against him and to be brought before a tribunal without delay.44   Prosecutor v. Barayagwiza, ICTR-97-19-A, Decision, 3 November 1999, paras. 67, 72. Initially, the Appeals Chamber ordered Barayagwiza’s immediate release,45   Id., para. 113. but this decision was stayed in order to consider new evidence.46   Prosecutor v. Barayagwiza, ICTR-97-19-AR72, Decision (Prosecutor’s Request for Review or Reconsideration), 31 March 2000, para. 7. Subsequently, the Appeals Chamber held that Barayagwiza was entitled to an effective remedy for the violation of his rights (either financial compensation or a reduction of sentence).47   Id., para. 75. Ultimately, Barayagwiza’s conviction was upheld on appeal, and his sentence was reduced (though not to the extent Barayagwiza wished it to be reduced).48   Prosecutor v. Barayagwiza, ICTR-99-52-A, Judgment, 28 November 2007, para. 1095.

In 2000, the Presidents of the ICTY and ICTR, Judge Jorda and Judge Pillay, sent letters to UN Secretary-General requesting that the Statutes for the tribunals be amended to include the authority to award compensation in three situations when: (a) a final conviction decision is subsequently reversed, a pardon is granted, or newly discovered evidence proves there has been a miscarriage of justice; (b) a person is acquitted or “subsequently released following a decision to terminate the proceedings against him/her in circumstances which show conclusively that there has been a grave and manifest miscarriage of justice”; and (c) a person is unlawfully arrested or detained under the tribunal’s authority.49   Letter dated 28 September 2000 from the Secretary General to the President of the Security Council, UN Doc S/2000/925, 6 October 2000, Annex “Letter dated 26 September 2000 from the President of the ICTR addressed to the Secretary-General”; Letter dated 26 September 2000 from the Secretary-General to the President of the Security Council, UN Doc S/2000/904, 26 September 2000, Annex “Letter dated 19 September 2000 from the President of the ICTY addressed to the Secretary-General.” Apparently, the UN Security Council did not respond to the requests.50   UN Secretary-General forwarded the letters to the President of the Security Council. However, they were left without response. See Letter dated 28 September 2000 from the Secretary-General to the President of the Security Council, UN Doc S/2000/925, 6 October 2000; Letter dated 26 September 2000 from the Secretary-General to the President of the Security Council, UN Doc S/2000/904, 26 September 2000. The Appeals Chamber commented in Rwamakuba that just because the UN Security Council did not respond to the letters, it does “not suggest that an effective remedy in the form of financial compensation cannot be ordered and paid in the absence of an express provision.”51   Prosecutor v. Rwamakuba, ICTR-98-44C-A, Decision on Appeal Against Decision on Appropriate Remedy, 13 September 2007, para. 26. In that case, Rwamakuba was acquitted of all charges. The Appeals Chamber awarded him USD $2000, finding that there had been a breach of Rwamakuba’s right to legal assistance during the first months of his detention.52   Id., para. 31.

Execution of Arrest Warrants and Detention

As I mentioned in my third post, Article 35 of the KSC Statute provides the police force within the Specialist Prosecutor’s Office with the same powers given to the Kosovo police force under Kosovo law, including arrest and detention of suspects. Rule 52 complements Article 35 and regulates the execution of arrest warrants. Rule 52(5) obligates the Kosovo national authorities to comply with arrest warrants and detain and transfer the person without delay under the conditions set in the warrant. It is yet to be seen to what extent the national authorities will cooperate and whether there will be any difficulties in enforcing this provision. There is a reason why these cases are not being handled by the local courts.53   Statement of the Chief Prosecutor of the Special Investigative Task Force (“SITF”), 29 July 2014, p. 1, noting that the SITF “faced challenges due to a climate of intimidation that seeks to undermine any investigations of individuals associated with the former Kosovo Liberation Army[.]”

Unlike other international(ized) criminal tribunals and courts, the KSC has a seat in Kosovo and the Netherlands. Detention facilities are in both states, depending on where the proceedings are taking place.54   KSC Statute, Arts. 3, 41(7). Every two months, a specially assigned individual Judge reviews the detention of a suspect, on his or her own initiative or upon a request from the suspect of the Specialist Prosecutor. The total duration of the detention (including possible extensions justified by investigative measures) must not exceed one year. At the end of one year, unless the Pre-Trial Judge has been assigned, the suspect must be released.

Next Post

In the next post, I will discuss the Rules covering the proceedings from the pre-trial to the appeal.

About Author



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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