|
| |
|
The Prosecutor v. Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojiljkovic - Case No. IT-99-37-I |
"Decision on Review
of Indictment and Application for Consequential Orders"
Judge David Hunt
24 May 1999
|
Article 19(1), Rule 54 and Sub-rules 47(B), (E) and 55(D) - establishing a prima facie case; issue of international arrest warrants; order for the freezing of assets; non-disclosure orders. According to Article 19(1) of the Statute and Sub-rule 47(E) of the Rules of Procedure and Evidence, an indictment must be confirmed if the material facts contained therein, supported by evidence, establish a prima facie case. Pursuant to Sub-rule 55(D), a Judge may issue international arrest warrants to States. Pursuant to Article 19(1), rule 47(H)(i) and rule 54, a Judge may order States to freeze assets. The risk of reprisals for Government and United Nations personnel constitutes exceptional circumstances and it is in the interests of justice, pursuant to Rule 53, to order the non-disclosure of the indictment and related documents. Likewise, the grave danger of physical harm to witnesses justifies the non-disclosure of the supporting material until the arrest of all the accused. |
On 22 May 1999, the Prosecutor submitted the indictment for review and confirmation, pursuant to Article 19 of the Statute, and also requested that a number of consequential orders be issued.
Review and Confirmation of the Indictment
Sub-rule 47(B) provides that together with the indictment the Prosecutor must provide supporting material which under Sub-rule 47(E) must be considered by the reviewing Judge. Upholding Tribunal jurisprudence, Judge Hunt held that the purpose of the supporting material is not to fill in any gaps in the material facts pleaded but rather to support those facts. Pursuant to Article 19(1), a prima facie case exists where the material facts in the indictment constitute a credible case which would, if not contradicted by the accused, be a sufficient basis for a conviction. Judge Hunt further held that the confirming Judge is not to consider the form of the indictment which, pursuant to Sub-rule 72(A), falls within the jurisdiction of a Trial Chamber.
Having reviewed the indictment and the supporting material, and having heard the Prosecutor in person, Judge Hunt was satisfied that the material facts pleaded in the indictment establish a prima facie case in respect of all counts and that evidence to support those facts exists. He consequently confirmed the indictment.
Consequential orders
Pursuant to Sub-rule 47(H), upon the confirmation of an indictment, the confirming Judge may issue an arrest warrant which, pursuant to Sub-rule 55(A), includes an order for the transfer of the accused to the Tribunal. Under Sub-rule 55(D), the warrant may be addressed to inter alia the national authorities of a State on whose territory the accused resides, or was last known to be or is believed by the Registrar to be likely to be found. In the case of the Federal Republic of Yugoslavia, Judge Hunt agreed with the Prosecutor that, given the senior government and military positions of the accused, the Minister of Justice was the most appropriate person in authority to execute the warrants.
Judge Hunt also ordered, under Sub-rule 55(D), that certified copies of the arrest warrants be transmitted to all United Nations Member States and to the Confederation of Switzerland. The Prosecutor had submitted that the power under Sub-rule 55(D) is broad and should be distinguished from the power under Sub-rule 61(D). In the latter case, a Trial Chamber issues an international arrest warrant if the warrant issued pursuant to Rule 55 has not been executed within a reasonable time. Rule 54 further grants a general power to a Judge to issue any order necessary for the preparation or conduct of trial. Since there can be no trial without an accused, an international arrest warrant is justified. Judge Hunt accepted this reasoning. He also held that, under Article 29(2), United Nations Member States are bound to comply with an order for the arrest and detention of a person. This was not suggested in respect of the Confederation of Switzerland, in which case the co-operation sought was formulated in terms of a request for assistance.
Judge Hunt further ordered all United Nations Member States to inquire whether the accused have assets in their territory and, if so, to adopt provisional measures to freeze them. The Prosecutor had argued inter alia that the requested measures would prevent the accused from using those assets to evade arrest. Judge Hunt considered that Sub-rule 61(D) grants a Trial Chamber the power to order the freezing of assets at a slightly later stage if the arrest warrant pursuant to Rule 55 has not been executed. However, that Sub-rule cannot be interpreted as a limitation of the broad powers conferred on a Judge under Article 19(2) as reiterated in Rule 54 and Sub-rule 47(H)(i). The Judge consequently ordered the freezing of assets specifying that this is without prejudice to the rights of third parties.
Lastly, Judge Hunt issued a number of non-disclosure orders. He considered Rules 53 and 54, and Sub-rule 55(D). According to Rule 53, an order for the non-disclosure of documents may only be made where there are exceptional circumstances and where this would be in the interests of justice. In his consideration of the Prosecutor’s request, Judge Hunt did not determine whether the possible political and diplomatic consequences of an indictment warrant non-disclosure. In light of the risk of reprisals for Government and United Nations personnel in the former Yugoslavia, however, he ordered the non-disclosure of the indictment and the arrest warrants and other related documents until after the departure of a United Nations Mission from the Federal Republic of Yugoslavia. Nonetheless, until such time, he allowed the Prosecutor to notify the Secretary-General of the United Nations and those Governments whose staff or personnel were at risk of reprisals or intimidation of the existence of those documents.
Finally, in light of the grave danger of physical harm to many witnesses residing in the territories over which the accused wield power, Judge Hunt also ordered the non-disclosure of the Prosecutor’s supporting material submitted with the indictment. The order may be modified when one or more, but not all, of the accused are arrested. At that stage, measures protecting the identity of the witnesses might be adopted in order to inform the arrested accused of the case against them.