07 Feb Schabas on the OTP’s Attempt to Reconsider Perisic
It’s an excellent post, well worth reading in its entirety. I just want to flag two particularly important points. The first concerns whether, in light of Šainović, Perišić can really be considered fundamentally flawed. Schabas compellingly argues no:
But the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather, the Prosecutor is arguing that the law has changed as a result of the legal basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?
First, there was a dissenting opinion in Šainović. Under the circumstances, the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson, who sat in both Perišić and Šainović agreed with the majority judgment in both cases. I would not use the word ‘unequivocal’ to describe such a strange situation. Judge Ramaroson might have enlightened us with a separate opinion to explain the change of heart. Third, the Appeals Chamber cannot ‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to follow the finding in Perišić the judges in Šainović may inadvertently have undermined the authority of their own judgment. Who is to say that yet another five-judge panel of the Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and abetting? It seems more accurate to describe what has happened is that four judges of the Appeals Chamber disagree with four other judges of the Appeals Chamber (really, three judges, because one of them disagrees with herself).
The second point concerns the human-rights implications of “reconsidering” Perišić’s acquittal 11 months after it became final. I considered mentioning the issue in my previous post, but ultimately didn’t. Here is what Schabas says:
The real problem with the Prosecutor’s motion concerns the rights of the accused. According to article 14(7) of the International Covenant on Civil and Political Rights, ‘No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.’ The same rule is formulated slightly differently in article 4 of Protocol No. 7 to the European Convention on Human Rights:
1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of the State.
2. The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.
Can the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a fundamental defect in the proceedings’? There is not much in the way of judicial interpretation on this expression. Recently a Chamber of the European Court of Human Rights held that there was such a ‘fundamental defect’ where an acquittal was based upon an amnesty (Marguš v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending before the Grand Chamber. But four judges disagreeing with four judges cannot be described as a ‘fundamental defect in the proceedings’.
The rule against double jeopardy (ne bis in idem) is part of a larger norm known by the term res judicata. It is almost certainly a general principle of law in the sense this expression is employed by article 38 of the Statute of the International Court of Justice. There is something profoundly troublesome about reconsideration of a final acquittal because a new judicial finding concerning legal interpretation is at variance with an earlier one.
I have nothing to add to Schabas’s points. I completely agree with them. We can only hope, for the sake of the ICTY’s legitimacy, that the Appeals Chamber does as well.
I think more attention should be given to considering Schabas’ point that the Appeals Chamber cannot overturn itself. At common law, of course a future differently constituted court can overturn a previous decision of that decision, even if decided affirmatively by the same number of judges. In Australia, the High Court would be reluctant to do it, but it certainly happens. So yes, I think a 4 Judge decision could overturn even a previously unanimous 5 Judge decision. A future court could again overturn that. That’s what exposes the farce of this situation.
I did find Kevin’s previous suggestion of the Court sitting en banc to decide these matters. The problem is, this views “the Court” as a whole, I think for jurisprudential discussion, at least for stare decisis questions, the Court is not a whole, it is at least two courts: The pre&trial chambers, and the appeals chamber. So in that view, the appeals chamber did sit en banc.