WEBVTT

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Hello again, my name is Rod Rastan,

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Legal Advisor at the OTP

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speaking in my personal capacity.

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Very briefly on article 92,

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the provision is

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perhaps incorrectly

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labeled as "Provisional arrest",

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whereas it should

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properly refer to

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a "Provisional request for arrest',

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because

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nobody can be provisionally arrested

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pending the issuance of an arrest warrant.

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The arrest warrant must have already been issued.

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But, this deals with a scenario where the

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Court has not

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sent a request for arrest

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and surrender to that state,

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<v ->-</v>

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finds out that the person has arrived on the

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territory of that state,

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and basically, urgently,

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through whatever medium capable of

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delivering a written record-meaning,

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it could be anything from a fax, to

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an email, to a text message,

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it doesn't really specify here-

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<v ->-</v>

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can urgently notify the

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<v ->-</v>

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state authorities

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<v ->-</v>

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concerning the person's movement

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and inform them that

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the Court has a pending warrant against

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them and request the state to

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provisionally detain that person.

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(FUMBLE)

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In that sense, provision comes in,

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provisionally arrest that person,

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<v ->-</v>

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pending the Court presenting

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the necessary documentation

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which it normally would do when making a request

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for arrest and surrender.

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So, the provisional aspect relates to

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the speed by which the Court communicates

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its documentation.

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This provision is not a provision that would

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enable for example, the Prosecutor's

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Office or a chamber to

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ask a State to hold somebody

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in detention

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prior to consideration of

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an article 58 application for arrest and surrender.

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So, it's not

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a pre-arrest

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<v ->-</v>

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power.

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<v ->-</v>

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Now, so what

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paragraph 1 says is that

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in urgent cases, the Court

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may make that

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provisional request or request

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for provisional arrest,

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for such time period

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<v ->-</v>

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set out.

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[This] time period is regulated

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<v ->-</v>

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in Rule 188

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<v ->-</v>

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as being limited to sixty days.

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<v ->-</v>

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So, the Court has to

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present its request for

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arrest and surrender with all the

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supporting documentation,

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sixty days from its

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request for provisional arrest under article 92.

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<v ->-</v>

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And

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<v ->-</v>

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In terms of that

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request for provisional arrest,

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paragraph 2 sets out the minimum requirements

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that must be there: obviously, information

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identifying the person otherwise

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the state doesn't know who it is

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supposed to arrest;

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and a very

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<v ->-</v>

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basic set of requirements in terms of

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a concise statement of facts

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for which the person's arrest and surrender is

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being sought-

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<v ->-</v>

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including,

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it says, where possible the date and location

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of the crimes.

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So, it's possible [that information]

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is not provided,

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but

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as many reasons why such a justification

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would be required.

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First of all, of course, the states are exercising

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enforcement powers so this needs to be

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judicially authorized, normally

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at the national level.

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Judges

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authorising that procedure have

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to be satisfied

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<v ->-</v>

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factually

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that there is a sufficient cause,

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sufficient information to justify them

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proceeding in terms of

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the requirements to issue an arrest warrant.

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<v ->-</v>

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I mean, of course the domestic authorities

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would never have the authority to

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second guess the substantive rationale

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of the judges and that's made clear in article 59.

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It's not open to the national authorities to-

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<v ->-</v>

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here, it says, it says in paragraph 4 of article 59,

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"It shall not be open to the competent

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[authority] of the custodial State

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to consider whether the warrant of arrest was

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properly issued."

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But here, we're dealing with a different issue.

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It's not even that.

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The national authorities haven't been

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presented with the article 58 decision.

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They haven't been presented with

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any documentation.

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They have been asked urgently

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to hold somebody, pending [the] Court

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sending those documents.

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So, then at the minimum,

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this type of information

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such as the concise statement of facts

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of the crimes needs to be provided,

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but also in terms of the rights of the accused

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person, the suspect, they need to

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be properly informed of the nature of

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the allegations against them,

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so they are notified of

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the procedure

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and they can exercise their rights.

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So, linking to back article 55(2).

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<v ->-</v>

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So,

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<v ->-</v>

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there's been no practice on this,

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no litigation.

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But, it's interesting in terms of whether or not

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this issue of where possible, the

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date and location of crimes,

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what kind of specificity

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is required or meant by that?

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<v ->-</v>

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Presumably, some elements of specificity

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will be possible by nature of

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a generic

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description of date and location,

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but it may well be that the specific

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information

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<v ->-</v>

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is not communicated.

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Now, given that an arrest

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warrant will have already been issued,

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it's not that the Court doesn't have that

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information.

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(fumble)

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[It is clear] that

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in paragraph c it says that

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the record in relation to provisional

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arrest should also contain

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a statement of the existence of the warrant.

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<v ->-</v>

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So, the warrant must exist;

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<v ->-</v>

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or judgment or conviction, in terms of the

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case of a person who has absconded.

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So, the warrant must exist, so the

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date and location of the crime must be known

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already to the Court, clearly.

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But it may be that the medium by which

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the Court is transmitting that information

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is not a secure medium

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because it's doing so on an urgent basis.

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So, it may be that [in] the

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reference to "if possible", "possible"

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could be interpreted to relate to

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the practicalities of

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the confidentiality of the medium of

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communication rather than whether or not

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any suggestion of the Court

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itself isn't clear on what

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the allegations relate

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to or the date and location of the crimes.

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I think that's one way of understanding it.

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<v ->-</v>

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And yes,

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sub-paragraph d confirms that the

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statement, the request for arrest and

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surrender itself, will follow.

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<v ->-</v>

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Now, paragraph 3 deals with the consequence

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if the Court doesn't present its

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supporting documentation in time and

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if that time limit has run out-

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sixty days has run out.

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Then the person could be released.

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<v ->-</v>

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The person could also,

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nonetheless, voluntarily surrender

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to the Court.

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That's foreseen, in which case the

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person is to be surrendered forthwith.

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<v ->-</v>

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Also, paragraph 4

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deals with the situation

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[after] the person is being released because

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the Court didn't provide the documentation in time.

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This doesn't prejudice the Court subsequently

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presenting the information to the state and

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the state remaining under obligation to

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arrest the person properly-I mean,

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to re-arrest the person and to surrender

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them to the Court.