Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
11 April 2006
ORDER TO THE GOVERNMENTS OF SERBIA AND MONTENEGRO AND THE REPUBLIC OF SERBIA REGARDING PROVISIONAL RELEASE
Office of the Prosecutor
Mr. Thomas Hannis
Mr. Chester Stamp
Ms. Christina Moeller
Ms. Patricia Fikirini
Mr. Mathias Marcussen
Government of Serbia and Montenegro
Government of the Republic of Serbia
Counsel for the Accused
Mr. Eugene O’Sullivan and Mr. Slobodan Zecevic for Mr. Milan Milutinovic
Mr. Toma Fila and Mr. Vladimir Petrovic for Mr. Nikola Sainovic
Mr. Tomislav Visnjic and Mr. Peter Robinson for Mr. Dragoljub Ojdanic
Mr. John Ackerman and Mr. Aleksander Aleksic for Mr. Nebojsa Pavkovic
Mr. Mihaljo Bakrac for Mr. Vladimir Lazarevic
Mr. Theodore Scudder and Mr. Dragan Ivetic for Mr. Sreten Lukic
THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (the “Tribunal”),
NOTING the “Submission of the Registrar Pursuant to Rule 33 (B) on the Provisional Release of Nikola Sainovic, Dragoljub Ojdanic and Nebojsa Pavkovic”, filed on 24 March 2006, which states that “several Serbian newspapers . . . reported on 19, 20 and 21 March that Mr. D. Ojdanic, Mr. N. Pavkovic and Mr. N. Sainovic had been present at Mr. Slobodan Milosevic’s funeral in the municipality of Pozarevac”,1 and that “[v]ideo footage shot on the occasion of Mr. Milosevic’s funeral and broadcasted by the Serbian broadcasting company “B92” . . . appear to confirm information contained in the reports of the print media”,2
NOTING that the terms and conditions set out in the Orders for Provisional Release concerning Nikola Sainovic,3 Dragoljub Ojdanic4 and Nebojsa Pavkovic 5 are substantially identical and that the Orders all provide, in relevant part, that:
During the period of this provisional release, the Accused shall abide by the following conditions, and the authorities of the governments of Serbia and Montenegro and the Republic of Serbia, including the local police, shall ensure compliance with such conditions:
(i) to remain within the confines of the municipality of Belgrade . . .
(vi) not to have any contact with the co-accused in the case
* * *
The Governments of the State Union of Serbia and Montenegro and the Republic of Serbia [are required] to assume responsibility as follows: . . .
(g) to arrest and detain the Accused immediately if he should breach any of the conditions of this Order; and
(h) to report immediately to the Trial Chamber any breach of the conditions set out above . . . ,
NOTING a statement, dated 20 March 2006, of the Ministry of Justice of the Republic of Serbia, which reads in full:
The Government of the Republic of Serbia, more precisely, the Ministry of Justice and the Ministry of the Interior, are complying fully with the conditions and orders set out in the decisions of the Trial Chamber of the International Criminal Tribunal on the provisional release of Dragoljub Ojdanic, Nikola Sainovic and Nebojsa Pavkovic .
This also applies to the above-named, who are fully abiding by the obligations set out in the Tribunal’s decisions, including the obligation not to leave the territory of the city of Belgrade without the approval of this Ministry.
As regards leaving the territory of the city of Belgrade, this Ministry allows all provisionally released indictees in Serbia, in certain cases, to leave the territory of the city of Belgrade for several hours. Such approval is immediately sent also to the Ministry of the Interior, which takes measures within its range of responsibilities to ensure full compliance with the commitments undertaken.
In this case too, the above-named approached this Ministry and were granted approval ,6
NOTING, however, the Registrar’s submission that the “Serbian online news service B92 conveyed that the Serbian Deputy Prime Minister Miroljub Labus stated that no one from the Government had permitted Hague indictees to go to Pozarevac nor had they asked for permission to go to Pozarevac. According to B92, Mr. Labus , furthermore, stated: ‘It was their decision and they will bear responsibility for its consequences’”,7
NOTING the representations, made by defence counsel at a Status Conference on 31 March 2006 and annexed to this Order, that it is the Serbian Ministry of Justice’s practice occasionally to permit provisionally released accused to travel outside Belgrade with police escorts for up to several hours a day,8 that the Accused here obtained Serbian Government permission to attend Mr. Milosevic’s funeral9 and that the journey beyond Belgrade was a minor affair that should not consume the Trial Chamber’s time,10
NOTING the statement of the Prosecution, also made at the Status Conference , that the provisional “release conditions are that [the Accused] are not to leave the territory. There is no exception, there is no delegation of this Court’s authority to the Ministry of Justice in Serbia . . . . They’ve taken it upon themselves, apparently, without any consultation with the Court”,11
CONSIDERING that there is no provision in the Orders for Provisional Release which authorises either the Government of Serbia and Montenegro or the Government of the Republic of Serbia to permit the Accused to leave the municipality of Belgrade ,
CONSIDERING, however, that the Ministry of Justice of the Republic of Serbia states that it possesses such authority, in that it claims that “the obligations set out in the Tribunal’s decisions includ[e] the obligation not to leave the territory of the city of Belgrade without the approval of this Ministry”, and that it authorised the Accused here to leave Belgrade,
CONSIDERING, moreover, that the Deputy Prime Minister of the Republic of Serbia has denied that the Accused either requested or were given permission to leave Belgrade,
CONSIDERING, therefore, that there appears to be some confusion regarding the conditions of provisional release regarding the Accused here and, perhaps, provisionally released accused in general,
PURSUANT TO Article 29 of the Statute of the Tribunal and Rule 54 of the Rules of Procedure and Evidence,
HEREBY ORDERS both the Government of Serbia and Montenegro and the Government of the Republic of Serbia to file, within 14 days of this Order, submissions indicating (a) whether it is their practice to exempt an accused from the explicit conditions of provisional release; (b) if so, the basis of such a practice; and (c) all other information relevant to this issue.
Done in both English and French, the English text being authoritative.
Judge Patrick Robinson
Dated this eleventh day of April 2006.
At The Hague,
[Seal of the Tribunal]