Last friday, Rasim Delic, a former Bosnia Army General, died while awaiting the result of his appeal against his three year conviction for war crimes. It has to be a relief the the tribunal that he was provisionally released and that he has not joined the list of defendants that died in the UN detention center.
His death raises interesting questions because apparently, he is the first defendant to die during the appellate phase. I must say I'm not too sure what to think about what should happen to the proceedings and wanted to throw some random thoughts out there for your consideration.
One argument is to say, as when other defendants died, that the proceedings should cease. That would be an open and shut case. But somehow, I feel, without being exactly able to argue my point yet, that the situation is different on appeal. Before the Trial Judgment, if the proceedings are stopped, the presumption of innocence means that the person dies innocent. There has been no consequence of the ongoing proceedings because, legally, it is as if they had never started. On appeal, the presumption of innocence doesn't work anymore (or does it?) and he would die guilty if the proceedings were to stop before the issuance of the appeals judgment. That somehow does not feel right.
One has to keep in mind the hybrid nature of the appellate process in international criminal courts. In most national systems, an appeal is basically a new trial and the appellate procedure suspends the sentence of the first instance tribunal. Afterwards there is usually a third degree of jurisdiction which only determines whether the lower courts have made a mistake of law, and the procedure is not suspensive. At the ICTY, the Appeals Chamber fulfills both functions. It is a judge of law, mostly, but also of fact, without there being a new trial per se (which leads to the weird procedure whereby the Appeals Chamber can overturn a finding of innocence or increase the sentence, without any chance of appeal, which I personally find disturbing, as I've already argued, but that's a different issue). Interestingly, the Appellate procedure does not suspend the sentence.
With all this in mind, there are, in my opinion two approaches.
1) I would prefer that the appeal judgment be rendered. What is in the dock at this stage is the Trial Judgment, not the defendant anymore. I think it is in the interests of the good administration of justice that we know whether the trial chamber got it right. Especially as, from what I've seen on the website, all the appellate hearings seem to have been concluded, so the rights of everybody to be heard have been respected.
2) If the proceedings are called to an end, there remains the question of what to do with the Trial Judgment. In order to respect the presumption of innocence, I think the trial judgment should be quashed for reasons of equity.
Whatever the judges decide, the worst would be for them, faced with this novel situation in international criminal proceedings and because it is likely to happen again, to issue an unsubstantiated order that would give no indication on their reasoning.
Footnote on Garzon:
Thank you for your reactions to my thoughts on the Garzon proceedings. I wanted to add a small point, although it doesn't fundamentally change my general views on the whole situation and on the way people have reacted to it.
It appears, and I've had difficulty in finding precise information, not being a Spanish speaker, that the investigation was stopped in 2008 following a court decision. If that is the case, I do think that Garzon has a strong defense in the current proceedings. Indeed, if Garzon initiated an investigation and then went before a judge to confirm it, failed to obtain that confirmation and then stopped the proceedings, I don't see where the abuse of power would be constituted. The normal procedure seems to have been followed. It happens daily in every system where a prosecutor or investigative judge builds up a case and then is told that he got it wrong by a court. If that is an abuse of power, then every national prosecutor would be facing such charges at one point in their career. That's just how the system works.
Of course, at this stage, this is just speculation, as I can't seem to get hold of the alleged 2008 decision or its content. If anybody has it, I'd be happy to read it.