In a previous post I drew attention to issues relating to functional immunity for a Defence Counsel practicing before the ICTR. A similar issue has arisen before the ICTY, involving domestic criminal proceedings against an investigator and other members of a Defence team, and seizure of documents and other materials. On 14 February 2011 the Appeals Chamber rendered a decision in the case of Prosecutor v. Gotovina et al. relating to the issue of functional immunity for members of the Gotovina Defence team.
In June 2008 the Prosecution had requested the Trial Chamber to issue an order pursuant to Article 29 of the ICTY Statute and Rule 54bis of the Rules of Procedure and Evidence directing Croatia to produce military documents relevant to artillery operations carried out during ‘Operation Storm’. In its application the Prosecution contended that Croatia was not willing to provide these documents. Croatia refuted the Prosecution’s claim that it was unwilling to cooperate and submitted that it had initiated an investigation to search for the documents which had yielded positive results and was ongoing. In September 2008 the Trial Chamber deferred its decision on the Prosecution’s motion and ordered Croatia to intensify and broaden its investigation on Operation Storm Documents and to provide the Prosecution with any requested material it found during the investigation. Croatia was also to report on progress made in this regard.
In April 2009, while Croatia’s investigations were ongoing, Gotovina requested the Trial Chamber to issue a restraining order against the Croatian authorities, ordering them to cease all criminal investigations and prosecutions against Mr. Ivan Ivanović, an investigator of the Gotovina Defence team and ‘any other person which emanate from acts related to the Defence’s fulfillment of its function’ in his case. The Municipal State Prosecutor’s Office in Zagreb had charged Ivanović in November 2008 with alleged concealment of archival material. Gotovina contended that the criminal investigation was based on an allegation that in 2007 a commander during Operation Storm had given Ivanović two documents during a witness interview. According to Gotovina these documents were not sought by the Prosecution, but were relevant to his defence. He asserted that the states of the former Yugoslavia are obligated under Article 29 of the ICTY Statute to allow the Defence to discharge its duties free from any possible impediment or hindrance. That would include the right of Ivanović to be free from legal process ‘for acts emanating solely from the Defence’s performance of its function before the ICTY’.
In July 2009 the Trial Chamber denied Gotovina’s motion of April 2009 finding that Ivanović had not ‘invoked functional immunity as a ground for dismissal’ of the case against him in the Croatian court, nor established that invoking functional immunity before the Croatian court ‘would necessarily result in [its] rejection’. In September 2009 Gotovina again asked the Chamber for a restraining order against Croatia on the basis of Article 54 RPE to terminate criminal proceedings against his investigator. Gotovina argued that Municipal Criminal Court in Zagreb had denied Ivanović’s motion to cease the proceedings on the basis that he did not have functional immunity as a defence investigator for Gotovina at the Tribunal. This motion was pending when on 9 December 2010 the Croatian authorities arrested Ivanović and also detained Mr. Jozo Ribicic (Ribičić), another member of the Gotovina Defence team, and Mr. Zeljko Hucic (Hučić), a former member of the Gotovina Defence team. The Croatian authorities also conducted searches of several locations and seized material and computers affiliated with the Gotovina Defence. On 10 December 2009, pursuant to Rule 73 of the Rules, Gotovina requested the Trial Chamber to issue temporary and permanent restraining orders against Croatia to:
(i) cease all actions against Ivanović;
(ii) stop all searches of records and computers already in its custody; and
(iii) desist from future searches directed at the Gotovina Defence offices or members. On 11 December 2009, the Trial Chamber issued an oral interim order (11 December 2009 Interim Order) directing Croatia, until further notice, to stop all inspection of the items in its custody and belonging to the present or former members of the Gotovina Defence team or their relatives. The Chamber invited Croatia, the Prosecution and the Defence to file written submissions regarding the request for permanent restraining orders.
In his written submissions Gotovina requested a permanent restraining order to prevent Croatia from taking investigative steps against any member of the Gotovina Defence team without prior order from the Trial Chamber. In joining Gotovina, the Markač Defence argued that a reasonable likelihood existed that its members be subjected to the same problems. The Prosecution requested that the Trial Chamber deny Gotovina’s requests and, instead, apply a procedural mechanism to ensure that searches of seized Defence materials did not conflict with the rights of the accused.
In its decision of 12 March the Trial Chamber: (i) lifted the 11 December 2009 Interim Order, which directed Croatia to stop all inspection of the materials in its custody and belonging to the Gotovina Defence team and its present or former members or their relatives; (ii) established a procedure for review of the seized materials in order to preserve Gotovina’s rights under Rules 70 (A) and 97 of the, Rules; (iii) ordered Croatia to treat as confidential any information contained in the seized materials and subject to protective measures; (iv) denied the request for a permanent restraining .order directing Croatia to stop all searches of records and computers in its custody which were seized from offices or members of the Gotovina Defence; (v) denied the requests for permanent restraining orders precluding Croatia from taking investigative steps against any member and/or office of the Gotovina or Markač Defence teams without a prior order of the Chamber; and (vi) denied the requests for a permanent restraining order directing Croatia to cease its preliminary investigations and criminal prosecutions against Ivanović and Ribičić. Gotovina’s request for an interlocutory appeal was granted in April 2010. The Prosecution’s Motion of September 2008 was finally denied in June 2010, since in view of the circumstances the Chamber did not find it appropriate to issue an order to Croatia pursuant to Rule 54 bis of the Rules to produce the Operation Storm Documents.
2. Standard of review
The Appeals Chamber will grant relief with respect to a discretionary decision of a Trial Chamber under Rule 54 RPE only where it is found to be: (a) based on an incorrect interpretation of governing law; (b) based on a patently incorrect conclusion of fact; or (c) so unfair or unreasonable as to constitute an abuse of the Trial Chamber’s discretion.
3. Functional Immunity under Article 30(4) of the ICTY Statute
It would be too much for a short commentary to discuss all legal issues raised by the parties. Thus, the focus is on the Defence’s sixth ground of appeal, namely the finding that members of the defence do not enjoy functional immunity under Article 30(4) of the ICTY Statute.
3.1 The Position of the Trial Chamber
In considering the treatment that should be accorded to members of the defence under Article 30(4) of the Statute, the Trial Chamber had found that, unlike Articles 30(2) and 30(3) of the Statute, Article 30(4) of the Statute does not refer to the Vienna Convention on Diplomatic Relations or the Convention on the privileges and Immunities of the United Nations. The Trial Chamber also noted that Article 30(4) of the Statute does not otherwise explicitly provide for personal or functional immunity for members of the defence. Further, the Trial Chamber recalled that the treatment to be accorded to members of the defence had not been further defined by a resolution of the Security Council, a multilateral treaty, or a bilateral agreement with Croatia. After considering an opinion by Mr. Larry D. Johnson, Assistant Secretary-General for the Office of Legal Affairs of the United Nations, which was provided to the Registrar of the ICTR, addressing the issue of whether defence investigators at the ICTR should be entitled to functional immunity in the execution of their duties, the Trial Chamber found that it could not assist in the current matter as that opinion did not conclude that members of the defence enjoy functional immunity under Article 29(4) of the Statute of the ICTR, which mirrors Article 30(4) of the ICTY Statute.
The Trial Chamber further considered that domestic jurisdictions do not generally provide immunity from legal process to members of the defence or prosecution regarding the performance of their duties before domestic criminal courts, and that functional immunity was therefore not indispensable for the parties to fulfil their functions in a criminal trial. The Trial Chamber noted that it was also important that States be permitted to investigate and prosecute crimes committed in their territory and that an obligation to refrain from doing so might frustrate this legitimate State interest.
The Trial Chamber concluded that members of the defence do not enjoy personal or functional immunity from legal process under Article 30(4) of the Statute. However, it found that, under Article 30(4) of the Statute, a State may not improperly subject members of the defence to legal process ‘with regard to acts that fall within the defence’s fulfilment of its official function before the Tribunal, with the intended or foreseeable result of substantially impeding or hindering the performance by defence members of their functions.’
3.2 The Arguments of the Parties
Gotovina submitted that the Trial Chamber erred in finding that members of the defence do not enjoy functional immunity under Article 30(4) of the Statute, asserting that international criminal justice recognises the need for functional immunity of defence members for activities pertaining to the fulfilment of their functions before an international court. He further argued that the Trial Chamber erred in concluding that members of the defence could be granted some form of immunity only if the State possesses the mens rea to substantially impede or hinder the performance by members of the defence of their functions before the Tribunal.
The Prosecution responded that: (i) defence members were excluded from the immunities granted to other Tribunal organs under Article 30 of the Statute;70 (ii) statutes or treaties governing other institutions, not binding on the Tribunal, are not instructive; and (iii) the Johnson Legal Opinion, which recognised functional immunity of defence investigators at the ICTR, relied upon a bilateral agreement between the United Nations and the United Republic of Tanzania, which does not apply to the Tribunal. The Prosecution further argued that the Trial Chamber did not err in deciding to intervene only if it is proven that Croatia intends to and does exercise its jurisdiction in a manner that would impede Gotovina’s right to a fair trial. Finally, the Prosecution contended that granting ‘absolute’ functional immunity to members of the defence would allow them to violate domestic criminal laws with impunity.
3.3 The Position of the Appeals Chamber
The Appeals Chamber found that the Trial Chamber erred in finding that defence members do not enjoy functional immunity from legal process under Article 30(4) of the Statute, that is immunity from legal process ‘with respect to words spoken or written and acts done by them in the course of the performance of their duties as [defence members] before the Tribunal, in order to allow for the proper functioning of the Tribunal in accordance with Article  of the Statute.’ In particular, it erred in concluding that the absence of an explicit reference to the Vienna Convention on Diplomatic Relations and the UN Convention on Privileges and Immunities from the text of Article 30(4) of the Statute indicated that defence members were denied functional immunity. The Appeals Chamber found that the Trial Chamber placed undue emphasis on this textual omission. Instead, the Trial Chamber should have focused on what protection was ‘necessary for the proper functioning of the [ … ] Tribunal’ pursuant to Article 30(4) of the Statute. Similarly, the Trial Chamber erred in emphasising that there was no Security Council Resolution, multilateral treaty, or bilateral agreement with Croatia that defines the treatment to be accorded to members of the defence, including investigators. Again, the Appeals Chamber found that the relevant question was whether functional immunity for defence members is ‘necessary for the proper functioning of the [ … ] Tribunal’, not whether another treaty or Security Council Resolution provides for such immunity.
The Appeals Chamber considered that members of the defence working in an international criminal court operate in a different legal environment than those working in domestic criminal courts. Finding and interviewing witnesses, conducting on-site investigations, and gathering evidence in a State’s territorial jurisdiction may be more difficult without the grant of functional immunity, as there is always a risk that a State could interfere by exercising its jurisdiction in such a way as to impede or hinder the activities of the defence. Permitting freedom of action in these situations by virtue of a grant of functional immunity protects individuals before the Tribunal in a manner unnecessary in domestic courts, where individuals can rely upon the State’s judicial apparatus and other entities to protect their ability to perform their functions in a criminal trial.
The Appeals Chamber held that although a State may not intend or foresee that its actions will interfere with a defence investigation, such actions may nonetheless have this effect if the State arrests a member of the defence who is acting in his or her official capacity. Therefore, prioritising the State’s exercise of its domestic jurisdiction over a defence investigation does not accord with providing defence members protection ‘necessary for the proper functioning of the [ … ] Tribunal’ under Article 30(4) of the Statute. Turning to the contention of the Prosecution that the granting of functional immunity to members of the defence would allow them to act with impunity, the Appeals Chamber stated that functional immunity for members of the defence, as with Prosecution staff, is limited to the actions in fulfilment of their official functions before the Tribunal and in the interests of the United Nations. This immunity does not allow them to violate domestic criminal laws with impunity.
The Appeals Chamber granted Gotovina’s sixth ground of Appeal, finding that, under Article 30(4) of the Statute, members of the Gotovina Defence, including investigators, are provided with functional immunity, thereby allowing them to independently exercise their official functions, namely to assist the accused in the preparation of his or her defence. Since members of the Gotovina Defence enjoyed functional immunity under Article 30(4) of the Statute with regard to acts performed in the fulfilment of their official functions before the Tribunal, the Appeals Chamber found that Croatia was barred from continuing criminal proceedings and taking any further investigative steps against them for such acts.
The Appeals Chamber ordered the Trial Chamber to issue an order pursuant to Rule 54 of the Rules to Croatia requiring Croatia to:
1. Cease all criminal proceedings against members of the Gotovina Defence for acts performed in the fulfilment of their official function before the Tribunal;
2. Cease and desist from all current and future investigative activities against members of the Gotovina Defence for acts performed in the fulfilment of their official function before the Tribunal, including searches of their persons or premises; and
3. Return, as soon as practicable, all material seized from members of the Gotovina Defence, including but not limited to documents, computers, CD-ROMs and diskettes.