The Prosecutor v. Rasim Delić (AC)

Court	International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number	IT-04-83-A
Decision title	Decision on the Outcome of the Proceedings (public)
Decision date	29 June 2010
Parties	Prosecutor Rasim Delić
Categories	War crimes
Keywords	Appeal, cruel treatment, Death of appellant, war crimes
Links	Decision on the Outcome of the Proceedings (public)

Summary

On 15 September 2008, Trial Chamber I found Delić guilty of war crimes for his role in the events in the Livade and Kamenica Camps between July and August 1995. Delić appealed the decision but died before the Appeals Chamber could issue a judgment on his appeal.

The Chamber was faced with two questions. First, whether the death of Delić will terminate the appeals proceedings, and second, whether this termination will render the Trial Chamber's initial judgment final.

With regard to the first issue, the Chamber found that it only has jurisdiction when the persons before it are natural persons which implies that they are alive. This means that the death of the appellant will terminate the appeal. As concerns the second issue, now that no appeal judgment could be rendered in this trial because of the death of the appellant, the trial judgment remains in force.

Procedural history

The amended indictment was issued on 14 July 2006. The trial commenced on 9 July 2007 and Trial Chamber I rendered its judgment on 15 September 2008. The appeals hearing took place on 19 January 2010.

Delić died on 16 April 2010.

Legally relevant facts

On 15 September 2008, Trial Chamber I issued its decision in the case of Rasim Delić in which it found him guilty on counts of violations of the laws or customs of war on the basis of command responsibility for his role in the events of July and August 1995 that led to the commission of crimes against soldiers of the Army of Republika Srpska at the Livade and Kamenica Camps (paras. 1-2).

Delić filed an appeal to this judgment on several grounds (para. 3). However, soon afterwards (in April 2010) he passed away. His son requested the continuation of the appellate proceedings for his father but the motion was denied by the Appeals Chamber (para. 4).

Core legal questions

Does the death of the appellant terminate the proceedings before the Appeals Chamber?
If established to be so, will the trial judgment be final and remain in force?

Specific legal rules and provisions

Articles 6 and 25 of the ICTY Statute
Domestic legal instruments and case-law for the analysis of customary international law on the finality of trial judgments in the event of the death of the Appellant (paras. 11-12).

Court's holding and analysis

The Tribunal was faced for the first time with the issue of the death of an appellant before a judgment being rendered on his appeal (para. 5).

With regard to the issue of termination of the appellate proceedings, the Chamber interpreted the “natural person” requirement of Article 6 of the Statute as meaning a “living” person (para. 6) and found that the death of Rasim Delić will terminate these proceedings (para. 8).

The Chamber further considered whether this termination will have an effect upon the finality of the Trial Chamber's judgement. In the absence of any guiding provision, the Chamber analyzed the rules of customary international law (para. 10).

The examination of domestic legislations and case law led to the conclusion that no rules exist under customary international law as to the finality of the trial judgement in the event that the appellant passes away (para. 13).

Nevertheless, the Chamber held that “the presumption of innocence does not apply to persons convicted by Trial Chambers pending the resolution of their appeals” (para. 14). Furthermore, the appealing party bears the burden of proving errors of law or fact that invalidate the trial judgment or that lead to a miscarriage of justice.

In view of the fact that no appeal judgment can be rendered, the Appeals Chamber found that the trial judgment remains in force (para. 15).

Further analysis

M. Bohlander, 'Death of an Appellant – the Termination of the Appellate Proceedings in the Case of Rasim Delic at the ICTY', Criminal Law Forum, 2010, Vol. 21, pp. 495-509;
T. Bachvarova, 'Impact of the Death of a Convicted Person on Pending Proceedings before the International Criminal Court', Journal of International Criminal Justice, 2012, Vol. 10, pp. 547-559.

Instruments cited

UN Security Council, (UNSC Res. 808), Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute), 25 May 1993.
UN ICTY, 11 February 1994 (last amended on 20 October 2011), Rules of Procedure and Evidence (ICTY RPE).

Related cases

International Criminal Court, The Prosecutor v. Joseph Kony et al., Case No. ICC-02/04-01/05, Decision to Terminate the Proceedings against Raska Lukwiya, 12 July 2007, p. 4.
Special Court for Sierra Leone, Prosecutor v. Samuel Hinga Norman et al., Case No. SCSL-04-14-T, Decision on Registrar's Submission of Evidence of Death of Accused Samuel Hinga Norman and Consequential Issues, 21 May 2007.