(continua/follows)
1.The rules on detention and the practice when
ordering detention - breach of the right to liberty
Before the Tribunal, detention is a rule and
temporary release an exception (Rule 64
stipulates that "upon being transferred to the seat
of the Tribunal, the accused shall be detained...",
whereas Rule 65, paragraph (A): "once detained,
an accused may not be released except upon an
rder of a Chamber").
This contravenes international law and
particularly the International Covenant on Civil
and Political Rights. In its Article 9, this Covenant
proclaims the right to liberty as one of the basic
human rights. Article 9, paragraph 3, inter alia,
stipulates: "It shall not be the general rule that
persons awaiting trial shall be detained in
custody...".
The judges of the Hague Tribunal are not
duty-bound to elaborate on their arrest warrants
and detention decisions. This contravenes Article
9, paragraph 2 of the International Covenant on
Civil and Political Rights, which reads: "Anyone
who is arrested shall be informed, at the time of
rrest of the reasons for his arrest and shall be
promptly informed of any charges against him".
This situation also contravenes principle 11/2 of
the UN General Assembly resolution 173 (XLIII)
of 8 December 1988, titled "A set of principles for
protecting all persons placed in any form of
custody or detention", according to which: "The
person placed in detention and possibly his
Defence Counsel shall be communicated without
delay and in full the arrest warrant and the
reasons explaining it".
Detention pending trial before The Hague Tribunal
is of an indefinite duration. In practice, detention
pending trial lasts very long and, bearing in mind
the length of the trial itself, this problem becomes
even more pronounced and more unacceptable.
This long detention contravenes the first sentence
of Article 9, paragraph 3 of the International
Covenant on Civil and Political Rights. It reads as
follows: "Anyone arrested or detained on a
riminal charge shall be brought promptly before a
judge or other officer authorised by law to
exercise judicial power and shall be entitled to
trial within a reasonable time or to release".
Too long a detention pending trial is not consistent
with the court practice of the European Court for
Human Rights that applies the European
Convention on Human Rights and Fundamental
Freedoms where detention is limited to up to two
years (in the FRY law it is up to six months). In
the case of Momir Talic, the two-year period of
detention is just about to expire and the trial has
not even begun.
At The Hague Tribunal, there is no right to
compensation of damage in case of unlawful
detention either. This contravenes Article 9,
aragraph 5 of the International Covenant on Civil
and Political Rights, which reads: "Anyone who
has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation".
2.Legality of sanctions
Article 15 of the International Covenant on Civil
and Political Rights prescribes:
"1. No one shall be held guilty of any criminal
offence on account of any act or omission which
did not constitute a criminal offence, under
national or international law at the time when it
was committed. Nor shall a heavier be imposed
than the one that was applicable at the time when
he criminal offence was committed.
...
2. Nothing in this Article shall prejudice the trial
and punishment of any person for any act or
omission which at the time when it was
ommitted was criminal according to the general
principles of law recognised by the community of
nations."
This is about the rule of criminal and international
law that usually finds expression in the sentence:
"Nulum crimen sine lege, nula poena sine lege",
and also comes under the corps of the universally
ccepted basic human rights.
When it comes to the legality of determining the
criminal offences which are tried before The
Hague Tribunal, this legality cannot be called into
question even when it is about the offences
committed before the Tribunal's Statute was
adopted. For, they were stipulated as such by
different international instruments (Convention on
the Prevention and Punishment of the Crime of
Genocide, the Geneva Conventions on
International Humanitarian Law), as well as by
national Criminal Codes. However, no
international norm envisaged sanctions for
violation of international humanitarian law before
the Tribunal's Statute adopted in May 1993.
Penalties are prescribed for the crimes from this
group stipulated by the Criminal Law of SFR
Yugoslavia and all the states formed in that
space. Namely, for each offence a separate
inimum and maximum penalty may be imposed
within the scope of the general minimum and
maximum penalty applicable in the respective
legal systems.
However, the Tribunal's Statute stipulates
penalties very vaguely. This is inappropriate for
modern criminal law. Article 24 of the Tribunal's
Statute prescribes:
"The first-instance Chamber shall pass only
prison sentences. When determining the terms of
imposing a prison penalty, the first-instance
hamber shall be guided by the general practice of
passing prison sentences applied by the courts in
the former Yugoslavia."
The former Yugoslavia's Criminal Code stipulated
as the heaviest penalty the term of imprisonment
of up to 15 years and exceptionally a 20-year term
but only as a substitute for the death penalty.
However, the Tribunal's Rule of Procedure and
Evidence also contravene even the thus
formulated Article 24 of the Statute. Namely, Rule
101 stipulates the possibility of passing a life
sentence: "The persons found guilty by the
Tribunal may be given a term of imprisonment that
may go up to life sentence". In addition, it is
noteworthy that the Rules of Procedure and
vidence, as a document containing procedural
rules should not even regulate the term of
imprisonment because this is an issue governed
by criminal substantive law.
This evident discrepancy between the Rules and
the Statute as the superior of the two cannot be
denied by the claim that the quoted Article 24 of
the Statute recalls the conditions of serving prison
sentences in the former Yugoslavia. Namely, it is
clear that that provision concerns the duration of
prison sentences in the former SFRY as this was
the only thing that could be determined by the
courts. The same cannot be said of the conditions
of imprisonment that the courts do not deal with.
The French version of the Statute is even more
explicit on the matter. Namely, instead of the
expression "general practice regarding prison
sentences in the courts of the former Yugoslavia",
this version uses the words "la grille generale des
eines d'emprisonnement appliquee par les
Tribunaux de l' ex-Yougoslavie ("General
frameworks for determining prison sentences
applied by the courts in the former Yugoslavia".
The term "grille" denotes the frameworks, i.e. the
ermitted range for determining the length of prison
sentences. This interpretation of ours is also
confirmed by the UN Secretary General's report
f 3 May 1993, which clearly states that: "when
determining the duration of prison sentence, the
first-instance Chamber shall be guided by the
general frameworks for determining prison
sentences applied in the courts of the former
Yugoslavia".
Finally, it should be pointed out that in its practice
so far the Tribunal passed prison sentences
largely exceeding the maximum prison sentence
that could be passed in the formed SFRY.
3.Absence of reasons for exclusion of criminal
responsibility
Neither the Statute nor the Rules envisage any
reason for the exclusion of criminal responsibility.
However, modern criminal law, i.e. the general
principles of criminal and international law,
generally recognise and accept the existence of
reasons for the exclusion of criminal responsibility
(such as necessary self-defence, extreme need,
coercion, etc.).
In its practice, too, the Tribunal does not take into
account the existence of such circumstances. For
example, in the case of Drazen Erdemovic, the
Tribunal refused to treat coercion as a basis for
the exclusion of responsibility but simply as an
extenuating circumstance when deciding how
eavy a penalty to impose. (According to
Erdemovic's claim, which the Tribunal accepted
as justifiable, he had actually been threatened
with death unless he committed the crimes of
murder for which the Tribunal later tried him).
4.Violation of the right to defence by treating
elements relevant for defence as confidential
In its work, the Tribunal has the possibility to issue sealed
indictments (Rule 53 on Procedure and Evidence, titled
"Non-disclosure of Indictment", paragraph (A) stipulates:
"(A) In exceptional circumstances, a Judge or a Trial
Chamber may, in the interests of justice, order the
non-disclosure to the public of any documents or
information until further order."). One cannot challenge
the right of the prosecuting organs to prosecute suspects
without disclosing that they are after them. However, it is
not legally acceptable and sustainable that a given person
is aware that proceedings have been initiated against him
and, in particular, that the indictment has been issued
against him without making it possible for him to learn
why he is being prosecuted and by keeping that fact
confidential. Thus, for instance, in the case against Zeljko
Raznatovic Arkan, the Tribunal announced that Arkan had
been indicted without letting the public or the accused
learn about the contents of the indictment.
We also wish to point out that the quoted provision
(which, as such, is itself inappropriate for modern law)
stipulates the keeping of indictments confidential (even
vis-�-vis the accused), as well as other documents and
information as an exception while, in practice, this is
increasingly becoming a rule.
The prosecutor forwards too late to the Defence Counsel
the data on the identity of the witnesses and the victims,
as well as these witnesses' allegations, i.e. the claims
regarding the victims against the accused, so that the
Defence Counsel does not have enough time to collect
data and evidence to possibly refute all these allegations
and claims. The Tribunal tries to justify this practice by
reasons of security of the witnesses and the alleged
victims. However, an institution that has at its disposal all
the means available to the Tribunal quite certainly will not
find it a problem to simultaneously provide security to
witnesses and alleged victims and give the accused and
his Defence Counsels enough time to prepare the defence.
An extreme scenario based on this approach is the
possibility, permitted under Rule 75 on Procedure and
Evidence, to keep the identity of a witness or a victim a
total secret until the very end and for the witness to be
heard by means of various technical devices (picture or
sound distorting devices or closed-circuit television; by
giving a witness a pseudonym, etc.). These methods make
it impossible to establish a given person's identity. Such
action makes it impossible for the Counsel to prepare the
defence and by its nature opens up the possibility for
manipulation rather than contributing to protecting a given
person. Namely, when a witness is heard on an actual
event that has really taken place, the accused can
conclude based on the actual contents of the witness
hearing which particular person is speaking, so that
keeping identity a secret does not make much sense.
However, it gives exceptional advantage to false
witnesses and victims, who may make statements
without any risk to themselves about something that
never happened. Namely, their identity is kept a secret
and the accused cannot conclude who they are based on
the contents of their statement as they testify about
something that never happened.
The above mentioned methods are used in particular to
violate Article 14 on the International Covenant on Civil
and Political Rights that protects the right of the accused
in the proceedings and whose paragraph 3, inter alia,
stipulates that:
"3. In the determination of any criminal charge against
him, everyone shall be entitled to the following minimum
guarantees, in full equality:
a.to be informed promptly and in detail in a
language which he understands of the
nature and cause of the charge against
him;
b.to have adequate time and facilities for
the preparation of his defence and to
communicate with counsel of his own
choosing;
...."
The above mentioned methods also violate the similar
provisions of Article 21, paragraph 4, items a) and b) of
the Tribunal's Statute.
1.Disproportionate difference between the terms of
work of the Prosecutor's Office and the Defence
The Prosecutor's Office has disproportionately
more favourable terms of work than the terms and
means available to the Defence. Not only is this
unfair but also, inter alia, violates the right to
efence, particularly in the part concerning the
above quoted Article 14, paragraph 3, item b) of
the International Covenant on Civil and Political
ights (as well as Article 21, paragraph 4, item b)
of the Tribunal's Statute).
Namely, the Prosecutor's Office has offices in
several towns in the territory of Yugoslavia, has a
large number of investigators and an unlimited
capacity of access to all cases before the
Tribunal. The Defence Counsels do not have any
of this, i.e. have it but to a much more moderate
xtent. Thus, for instance, in some of the cases
(particularly those against the highest officials of
the Republika Srpska that are on trial - Momcilo
rajisnik and Biljana Plavsic), the problem arose of
actual feasibility for the Defence Counsels to read
all the documents submitted by the Prosecutor's
ffice that have so many pages that the usual group
of several Counsels would need several years of
full-time work to read only once the contents of
the submitted documents.
The costs of litigation before the Tribunal are so
high that no accused can afford to pay them. The
Tribunal pays Defence Counsels ex officio and
the amounts of their fees are exceptionally high,
particularly if viewed from the Yugoslav
perspective and measured by our yardsticks.
owever, in real terms, even these amounts are
inadequate to meet the overall needs for a quality
defence compared to the formidable means and
possibilities available to the Prosecutor's Office.
In addition, by employing this method of paying
the Attorneys, which is a rule rather than an
exception, which would be normal, the Tribunal's
Secretariat keeps the Defence under control and
ndermines its independence.
2.Violation of the principle "audiatur et altera pars"
in some cases
Rule 94 on Procedure and Evidence, paragraph
(A) stipulates that: (A) A Trial Chamber shall not
require proof of facts of common knowledge but
shall take judicial notice thereof". This rule,
otherwise widely accepted in procedural
legislation, becomes problematic before The
Hague Tribunal because allegations made by the
mass media are often considered as generally
ccepted facts related to the Yugoslav crisis and
have, as a result of frequent repetition, acquired
the character of notorious facts. In a situation
hen the judges, as a rule, do not have enough
preliminary knowledge about the overall context of
the events underlying the ongoing proceedings,
which will be discussed later on, the mentioned
procedural possibility poses a big treat to the
accused placing him at a great disadvantage.
Paragraph (B) of the same rule prescribes: "(B)
At the request of a party or proprio motu, a Trial
Chamber, after hearing the parties, may decide to
take judicial notice of adjudicated facts or
ocumentary evidence from other proceedings of
the Tribunal relating to matters at issue in the
current proceedings". Notwithstanding the fact
that it is obliged to previously hear the parties,
meaning to also give the possibility to the accused
to plead, the Trial Chamber may take as proved,
ven if the accused challenges them, the facts
established in the course of some other
proceedings before the Tribunal since the quoted
provision only envisages the obligation to hear the
parties but not the obligation to supply proof again
if the accused (or possibly the Prosecutor) claims
that these facts have not been correctly
established. Although the facts already proved in
another case are at issue here, perhaps the facts
proved in these other proceedings are not
important for the accused to the extent that he
would challenge the Prosecutor's allegations
thereon; namely, they do not significantly affect
the verdict in that case and therefore the accused
may not wish to enter into a debate thereon.
However, in the case where later on these very
same facts are taken as established and proved,
they may be of major importance to the accused
and the accused will not be given the possibility
for presenting new evidence. Given that in
different cases the accused are different and that
the Prosecutor's Office is the same in all of them,
and given that the Prosecutor's Office decides
when it will issue a particular indictment, it has
the possibility to adjust the sequence of
ndictments submitted, so that the same disputable
issue in particular earlier proceedings will appear
as an issue of no particular importance to the
ccused. In some later proceedings, however, the
same issue may be of crucial importance to the
contents of the verdict and the position of the
accused and may make the accused in the
later-on initiated proceedings face a situation
here he will not be able to challenge the
Prosecutor's allegation that will decide his fate.
In the mentioned way, the anyway inequitable
position of the Defence vis-�-vis that Prosecutor
is additionally aggravated and the right of the
accused to effectively challenge the Prosecutor's
allegations and succeed in having evidence
supplied in his favour is seriously undermined.
And this right is also stipulated and protected by
Article 14 of the International Covenant on Civil
and Political Rights (as well as by Article 21 of
the Tribunal's Statute).
(2 - continua/follows)
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1.The rules on detention and the practice when
ordering detention - breach of the right to liberty
Before the Tribunal, detention is a rule and
temporary release an exception (Rule 64
stipulates that "upon being transferred to the seat
of the Tribunal, the accused shall be detained...",
whereas Rule 65, paragraph (A): "once detained,
an accused may not be released except upon an
rder of a Chamber").
This contravenes international law and
particularly the International Covenant on Civil
and Political Rights. In its Article 9, this Covenant
proclaims the right to liberty as one of the basic
human rights. Article 9, paragraph 3, inter alia,
stipulates: "It shall not be the general rule that
persons awaiting trial shall be detained in
custody...".
The judges of the Hague Tribunal are not
duty-bound to elaborate on their arrest warrants
and detention decisions. This contravenes Article
9, paragraph 2 of the International Covenant on
Civil and Political Rights, which reads: "Anyone
who is arrested shall be informed, at the time of
rrest of the reasons for his arrest and shall be
promptly informed of any charges against him".
This situation also contravenes principle 11/2 of
the UN General Assembly resolution 173 (XLIII)
of 8 December 1988, titled "A set of principles for
protecting all persons placed in any form of
custody or detention", according to which: "The
person placed in detention and possibly his
Defence Counsel shall be communicated without
delay and in full the arrest warrant and the
reasons explaining it".
Detention pending trial before The Hague Tribunal
is of an indefinite duration. In practice, detention
pending trial lasts very long and, bearing in mind
the length of the trial itself, this problem becomes
even more pronounced and more unacceptable.
This long detention contravenes the first sentence
of Article 9, paragraph 3 of the International
Covenant on Civil and Political Rights. It reads as
follows: "Anyone arrested or detained on a
riminal charge shall be brought promptly before a
judge or other officer authorised by law to
exercise judicial power and shall be entitled to
trial within a reasonable time or to release".
Too long a detention pending trial is not consistent
with the court practice of the European Court for
Human Rights that applies the European
Convention on Human Rights and Fundamental
Freedoms where detention is limited to up to two
years (in the FRY law it is up to six months). In
the case of Momir Talic, the two-year period of
detention is just about to expire and the trial has
not even begun.
At The Hague Tribunal, there is no right to
compensation of damage in case of unlawful
detention either. This contravenes Article 9,
aragraph 5 of the International Covenant on Civil
and Political Rights, which reads: "Anyone who
has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation".
2.Legality of sanctions
Article 15 of the International Covenant on Civil
and Political Rights prescribes:
"1. No one shall be held guilty of any criminal
offence on account of any act or omission which
did not constitute a criminal offence, under
national or international law at the time when it
was committed. Nor shall a heavier be imposed
than the one that was applicable at the time when
he criminal offence was committed.
...
2. Nothing in this Article shall prejudice the trial
and punishment of any person for any act or
omission which at the time when it was
ommitted was criminal according to the general
principles of law recognised by the community of
nations."
This is about the rule of criminal and international
law that usually finds expression in the sentence:
"Nulum crimen sine lege, nula poena sine lege",
and also comes under the corps of the universally
ccepted basic human rights.
When it comes to the legality of determining the
criminal offences which are tried before The
Hague Tribunal, this legality cannot be called into
question even when it is about the offences
committed before the Tribunal's Statute was
adopted. For, they were stipulated as such by
different international instruments (Convention on
the Prevention and Punishment of the Crime of
Genocide, the Geneva Conventions on
International Humanitarian Law), as well as by
national Criminal Codes. However, no
international norm envisaged sanctions for
violation of international humanitarian law before
the Tribunal's Statute adopted in May 1993.
Penalties are prescribed for the crimes from this
group stipulated by the Criminal Law of SFR
Yugoslavia and all the states formed in that
space. Namely, for each offence a separate
inimum and maximum penalty may be imposed
within the scope of the general minimum and
maximum penalty applicable in the respective
legal systems.
However, the Tribunal's Statute stipulates
penalties very vaguely. This is inappropriate for
modern criminal law. Article 24 of the Tribunal's
Statute prescribes:
"The first-instance Chamber shall pass only
prison sentences. When determining the terms of
imposing a prison penalty, the first-instance
hamber shall be guided by the general practice of
passing prison sentences applied by the courts in
the former Yugoslavia."
The former Yugoslavia's Criminal Code stipulated
as the heaviest penalty the term of imprisonment
of up to 15 years and exceptionally a 20-year term
but only as a substitute for the death penalty.
However, the Tribunal's Rule of Procedure and
Evidence also contravene even the thus
formulated Article 24 of the Statute. Namely, Rule
101 stipulates the possibility of passing a life
sentence: "The persons found guilty by the
Tribunal may be given a term of imprisonment that
may go up to life sentence". In addition, it is
noteworthy that the Rules of Procedure and
vidence, as a document containing procedural
rules should not even regulate the term of
imprisonment because this is an issue governed
by criminal substantive law.
This evident discrepancy between the Rules and
the Statute as the superior of the two cannot be
denied by the claim that the quoted Article 24 of
the Statute recalls the conditions of serving prison
sentences in the former Yugoslavia. Namely, it is
clear that that provision concerns the duration of
prison sentences in the former SFRY as this was
the only thing that could be determined by the
courts. The same cannot be said of the conditions
of imprisonment that the courts do not deal with.
The French version of the Statute is even more
explicit on the matter. Namely, instead of the
expression "general practice regarding prison
sentences in the courts of the former Yugoslavia",
this version uses the words "la grille generale des
eines d'emprisonnement appliquee par les
Tribunaux de l' ex-Yougoslavie ("General
frameworks for determining prison sentences
applied by the courts in the former Yugoslavia".
The term "grille" denotes the frameworks, i.e. the
ermitted range for determining the length of prison
sentences. This interpretation of ours is also
confirmed by the UN Secretary General's report
f 3 May 1993, which clearly states that: "when
determining the duration of prison sentence, the
first-instance Chamber shall be guided by the
general frameworks for determining prison
sentences applied in the courts of the former
Yugoslavia".
Finally, it should be pointed out that in its practice
so far the Tribunal passed prison sentences
largely exceeding the maximum prison sentence
that could be passed in the formed SFRY.
3.Absence of reasons for exclusion of criminal
responsibility
Neither the Statute nor the Rules envisage any
reason for the exclusion of criminal responsibility.
However, modern criminal law, i.e. the general
principles of criminal and international law,
generally recognise and accept the existence of
reasons for the exclusion of criminal responsibility
(such as necessary self-defence, extreme need,
coercion, etc.).
In its practice, too, the Tribunal does not take into
account the existence of such circumstances. For
example, in the case of Drazen Erdemovic, the
Tribunal refused to treat coercion as a basis for
the exclusion of responsibility but simply as an
extenuating circumstance when deciding how
eavy a penalty to impose. (According to
Erdemovic's claim, which the Tribunal accepted
as justifiable, he had actually been threatened
with death unless he committed the crimes of
murder for which the Tribunal later tried him).
4.Violation of the right to defence by treating
elements relevant for defence as confidential
In its work, the Tribunal has the possibility to issue sealed
indictments (Rule 53 on Procedure and Evidence, titled
"Non-disclosure of Indictment", paragraph (A) stipulates:
"(A) In exceptional circumstances, a Judge or a Trial
Chamber may, in the interests of justice, order the
non-disclosure to the public of any documents or
information until further order."). One cannot challenge
the right of the prosecuting organs to prosecute suspects
without disclosing that they are after them. However, it is
not legally acceptable and sustainable that a given person
is aware that proceedings have been initiated against him
and, in particular, that the indictment has been issued
against him without making it possible for him to learn
why he is being prosecuted and by keeping that fact
confidential. Thus, for instance, in the case against Zeljko
Raznatovic Arkan, the Tribunal announced that Arkan had
been indicted without letting the public or the accused
learn about the contents of the indictment.
We also wish to point out that the quoted provision
(which, as such, is itself inappropriate for modern law)
stipulates the keeping of indictments confidential (even
vis-�-vis the accused), as well as other documents and
information as an exception while, in practice, this is
increasingly becoming a rule.
The prosecutor forwards too late to the Defence Counsel
the data on the identity of the witnesses and the victims,
as well as these witnesses' allegations, i.e. the claims
regarding the victims against the accused, so that the
Defence Counsel does not have enough time to collect
data and evidence to possibly refute all these allegations
and claims. The Tribunal tries to justify this practice by
reasons of security of the witnesses and the alleged
victims. However, an institution that has at its disposal all
the means available to the Tribunal quite certainly will not
find it a problem to simultaneously provide security to
witnesses and alleged victims and give the accused and
his Defence Counsels enough time to prepare the defence.
An extreme scenario based on this approach is the
possibility, permitted under Rule 75 on Procedure and
Evidence, to keep the identity of a witness or a victim a
total secret until the very end and for the witness to be
heard by means of various technical devices (picture or
sound distorting devices or closed-circuit television; by
giving a witness a pseudonym, etc.). These methods make
it impossible to establish a given person's identity. Such
action makes it impossible for the Counsel to prepare the
defence and by its nature opens up the possibility for
manipulation rather than contributing to protecting a given
person. Namely, when a witness is heard on an actual
event that has really taken place, the accused can
conclude based on the actual contents of the witness
hearing which particular person is speaking, so that
keeping identity a secret does not make much sense.
However, it gives exceptional advantage to false
witnesses and victims, who may make statements
without any risk to themselves about something that
never happened. Namely, their identity is kept a secret
and the accused cannot conclude who they are based on
the contents of their statement as they testify about
something that never happened.
The above mentioned methods are used in particular to
violate Article 14 on the International Covenant on Civil
and Political Rights that protects the right of the accused
in the proceedings and whose paragraph 3, inter alia,
stipulates that:
"3. In the determination of any criminal charge against
him, everyone shall be entitled to the following minimum
guarantees, in full equality:
a.to be informed promptly and in detail in a
language which he understands of the
nature and cause of the charge against
him;
b.to have adequate time and facilities for
the preparation of his defence and to
communicate with counsel of his own
choosing;
...."
The above mentioned methods also violate the similar
provisions of Article 21, paragraph 4, items a) and b) of
the Tribunal's Statute.
1.Disproportionate difference between the terms of
work of the Prosecutor's Office and the Defence
The Prosecutor's Office has disproportionately
more favourable terms of work than the terms and
means available to the Defence. Not only is this
unfair but also, inter alia, violates the right to
efence, particularly in the part concerning the
above quoted Article 14, paragraph 3, item b) of
the International Covenant on Civil and Political
ights (as well as Article 21, paragraph 4, item b)
of the Tribunal's Statute).
Namely, the Prosecutor's Office has offices in
several towns in the territory of Yugoslavia, has a
large number of investigators and an unlimited
capacity of access to all cases before the
Tribunal. The Defence Counsels do not have any
of this, i.e. have it but to a much more moderate
xtent. Thus, for instance, in some of the cases
(particularly those against the highest officials of
the Republika Srpska that are on trial - Momcilo
rajisnik and Biljana Plavsic), the problem arose of
actual feasibility for the Defence Counsels to read
all the documents submitted by the Prosecutor's
ffice that have so many pages that the usual group
of several Counsels would need several years of
full-time work to read only once the contents of
the submitted documents.
The costs of litigation before the Tribunal are so
high that no accused can afford to pay them. The
Tribunal pays Defence Counsels ex officio and
the amounts of their fees are exceptionally high,
particularly if viewed from the Yugoslav
perspective and measured by our yardsticks.
owever, in real terms, even these amounts are
inadequate to meet the overall needs for a quality
defence compared to the formidable means and
possibilities available to the Prosecutor's Office.
In addition, by employing this method of paying
the Attorneys, which is a rule rather than an
exception, which would be normal, the Tribunal's
Secretariat keeps the Defence under control and
ndermines its independence.
2.Violation of the principle "audiatur et altera pars"
in some cases
Rule 94 on Procedure and Evidence, paragraph
(A) stipulates that: (A) A Trial Chamber shall not
require proof of facts of common knowledge but
shall take judicial notice thereof". This rule,
otherwise widely accepted in procedural
legislation, becomes problematic before The
Hague Tribunal because allegations made by the
mass media are often considered as generally
ccepted facts related to the Yugoslav crisis and
have, as a result of frequent repetition, acquired
the character of notorious facts. In a situation
hen the judges, as a rule, do not have enough
preliminary knowledge about the overall context of
the events underlying the ongoing proceedings,
which will be discussed later on, the mentioned
procedural possibility poses a big treat to the
accused placing him at a great disadvantage.
Paragraph (B) of the same rule prescribes: "(B)
At the request of a party or proprio motu, a Trial
Chamber, after hearing the parties, may decide to
take judicial notice of adjudicated facts or
ocumentary evidence from other proceedings of
the Tribunal relating to matters at issue in the
current proceedings". Notwithstanding the fact
that it is obliged to previously hear the parties,
meaning to also give the possibility to the accused
to plead, the Trial Chamber may take as proved,
ven if the accused challenges them, the facts
established in the course of some other
proceedings before the Tribunal since the quoted
provision only envisages the obligation to hear the
parties but not the obligation to supply proof again
if the accused (or possibly the Prosecutor) claims
that these facts have not been correctly
established. Although the facts already proved in
another case are at issue here, perhaps the facts
proved in these other proceedings are not
important for the accused to the extent that he
would challenge the Prosecutor's allegations
thereon; namely, they do not significantly affect
the verdict in that case and therefore the accused
may not wish to enter into a debate thereon.
However, in the case where later on these very
same facts are taken as established and proved,
they may be of major importance to the accused
and the accused will not be given the possibility
for presenting new evidence. Given that in
different cases the accused are different and that
the Prosecutor's Office is the same in all of them,
and given that the Prosecutor's Office decides
when it will issue a particular indictment, it has
the possibility to adjust the sequence of
ndictments submitted, so that the same disputable
issue in particular earlier proceedings will appear
as an issue of no particular importance to the
ccused. In some later proceedings, however, the
same issue may be of crucial importance to the
contents of the verdict and the position of the
accused and may make the accused in the
later-on initiated proceedings face a situation
here he will not be able to challenge the
Prosecutor's allegation that will decide his fate.
In the mentioned way, the anyway inequitable
position of the Defence vis-�-vis that Prosecutor
is additionally aggravated and the right of the
accused to effectively challenge the Prosecutor's
allegations and succeed in having evidence
supplied in his favour is seriously undermined.
And this right is also stipulated and protected by
Article 14 of the International Covenant on Civil
and Political Rights (as well as by Article 21 of
the Tribunal's Statute).
(2 - continua/follows)
---
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