Da: "Vladimir Krsljanin"
Data: Mer 3 Set 2003 00:34:54 Europe/Rome
Oggetto: The Hague: "There is no defence, only prosecution!"
"There is no defence, only prosecution!"
-Slobodan Milosevic, September 2nd, 2003
SLOBODA calls upon all organizations and individuals who care
about freedom, justice and democracy to stand URGENTLY AND SOUNDLY
against the perhaps final proof that the aim of the "tribunal" and it's
NATO masters is to suppress freedom and to silence the truth.
Today's outrageous developments at the Hague require that no decent
person remains silent.
Progressive forces and lawyers have a particular responsibility to
stand up and let their voices be heard - there are thousands of
arguments!
The alternatives of today's world are: freedom or slavery. In the
version of the "judicial" arm of NATO the alternative is: truth or
inquisition.
SLOBODAN MILOSEVIC WILL HELP ALL OF US WINNING OUR BATTLE IF WE HELP
HIM NOW!
Address the public and all relevant international factors!
ICDSM and all national committees will give the tone to this action.
Either the truth will be allowed to appear or destinies of another
nations can be sealed for a long time.
TWO YEARS OF FREEDOM FOR THE VICTORY OF TRUTH!
Earlier today President Slobodan Milosevic addressed the "Tribunal",
stating again, before being summarily shut down by Richard May, that he
did not recognize the ICTY and that the exercise was "not a trial".
At a status conference scheduled today to establish the modalities of
the "defense case", President Milosevic told the "ICTY" that two issues
were central: time and circumstances.
He stated that two years to prepare a response to the allegations made
was a bare minimum, that in fact the time required would be endless. In
addition, President Milosevic has demanded direct and unsupervised
contacts with witnesses and the ability to locate and obtain key
documents to refute the lies that have been put forward in The Hague,
which can only be done if he is
released.
"I will need the conditions necessary for me to prepare my trial while
at liberty," Slobodan Milosevic told the Chamber.
President Milosevic reminded Mr. May that the opposing side,
represented by Carla Del Ponte, had filed the Kosovo indictment in
1999, practically three years before the beginning of his Hague
"trial", and four and one half years before today. Other issues raised
in the subsequent indictments with respect to Croatia and Bosnia date
back to 1993.
President Milosevic pointed out that although he does not acknowledge
the process as legitimate, Mr. May and his colleagues must provide him
with adequate time for preparation, without which it will be clear that
the ICTY does not respect the rights it claims to stand for, that in
fact at the ICTY there is no defence, only a prosecution.
President Milosevic also demanded direct, unsupervised and unimpeded
contact with witnesses under adequate conditions, at liberty. He added
that he could not even begin to estimate the number of people working
for the opposite side. He demanded to be given the ability to prepare
witnesses properly, reminding the Chamber of the extent of preparation
carried out by the other side.
President Milosevic stressed that it was the Chamber, not he, who
claimed that "rights" were being afforded to him, and therefore they
should see that he be given the possibility of realizing those rights.
President Milosevic explained that the symbolic value of the equality
of arms supported his demands to prepare his witnesses and documents in
conditions that were adequate and suitable.
Following President Milosevic's presentation, "Judge" May did not
hesitate to immediately deny, yet again, any request for provisional
release made by President Milosevic, without stating any justification.
Mr. May also summarily dismissed President Milosevic's request for two
years to prepare his case.
After lengthy submissions from the "amicus" and opposite side,
President Milosevic spoke again, and strongly criticized the
"Prosecution's" suggestion that they were equal all on equal footing as
absurd. He reiterated, before being cut off, that he did not recognize
the "Tribunal" and that the process was not a "trial", but that the
Chamber itself had claimed he had rights. After being told to be
concrete by Mr. May, President Milosevic responded that he had been
speaking in the most practical terms, and asked how it was possible for
him to communicate with witnesses without direct and unsupervised
contact with them. He stated that two years of preparation was a most
modest evaluation of the time required under the so-called "Tribunal's"
principles.
President Milosevic concluded his remarks by stating that it was
well-known that at the ICTY there is only a prosecution and no defence,
nor is there equality of arms.
The "Chamber" has not issued any formal rulings on the submissions
heard today, but has already rejected President Milosevic's concrete
demands without deliberations. A decision setting out the modalities of
resident Milosevic's presentation of evidence is expected soon.
Recently, the "tribunal" banned all visits of all SPS members, Sloboda
and other associated people to President Milosevic. By that, pratically
no witness could be prepared. Fighting that decision and the "rule"
forbidding President Milosevic contacts with the media, earlier today
Sloboda sent to the president of the "tribunal" a written request to
annull that decision, naming dozens of arguments. The full text of the
letter by Sloboda is attached as Appendix.
---
APPENDIX
---
Belgrade, September 2, 2003
To: Judge Theodor Meron, President
ICTY, The Hague, The Netherlands
URGENT
REQUEST TO THE PRESIDENT FOR REVIEW OF THE REGISTRAR'S DECISION TO DENY
REQUESTS FOR VISITS TO PRESIDENT SLOBODAN MILOSEVIC AT THE DETENTION
CENTRE, PURSUANT TO THE PRESIDENT'S SUPERVISORY POWERS, RULE 19 OF THE
RULES OF PROCEDURE AND EVIDENCE
Hereby we request the President's intervention, on the basis of his
powers set out at Rule 19 of the Rules of Procedure and Evidence, to
reverse the Registrar's decision to deny, until further notice, visits
from members of the Freedom Association (SLOBODA) (1). The Registrar's
decision is supported by his claim that individuals having visiting
President Slobodan Milosevic disclosed information to the media. (2)
SUMMARY OF ARGUMENT
A. The Registrar's decision constitutes an arbitrary and illegal
exercice of the discretion afforded by Regulation 33 (B) of the
Regulations to Govern the Supervision of Visits to and Communications
with detainees (the "Regulations") and Rule 66 (B) of the Rules of
Detention, and should therefore be overturned;
B. The Registrar's decision violates the principle of equality of arms.
The Registry permits, finances and otherwise aids and encourages
unrestrained access to the media by the Prosecutor, while denying any
such contact on the part of an accused person. The Registrar's decision
should therefore be overturned;
C. The Registrar's decision violates the fundamental, universally
recognized principle of presumption of innocence, and should therefore
be overturned;
D. The Registrar's decision violates the fundamental principle of
freedom of expression, has no legitimate aim, and is unnecessary. The
Registrar's decision should be overturned;
E. The Registrar's decision is tantamount to ordering the isolation of
President Milosevic, and should be overturned.
THE FACTS
1. On 11 August 2003, Mr. Bogoljub Bjelica, Chairman of the Freedom
Association, a non-government association, applied, in accordance with
the applicable rules and procedural requirements, for a visit with
President Milosevic, who had also requested to meet with Mr. Bjelica.
2. On 15 August 2003, he received a copy of a fax sent by the Registrar
to Mr. Milosevic denying "until further notice" visits from "members of
the SPS and associated entities, such the Freedom Association" until
further notice.
3. On 19 August 2003, Mr Igor Raicevic of the Freedom Association
requested the Registrar reconsider his decision to deny visits to
members of the Freedom Association, which request did not get any reply;
ARGUMENT
The Registrar's decision to suspend visits is arbitrary and constitutes
an abuse of discretion:
a) the decision was not made in accordance with statutory authority;
b) the decision did not respect the principle of audi alteram partem;
c) the decision is overbroad and abusive with respect to its
application over time;
d) the decision arbitrarily and unjustifiably targets persons and
groups entirely unconnected to those allegedly in breach of rules
governing visits and communication with detainees;
e) the decision is apparently unfounded, as no evidence is provided to
support the Registrar's claim of transgression of the rules.
a) The decision was not made in accordance with statutory authority.
Regulation 33 (B) of the Regulations and Rule 66 of the Rules of
Detention attribute discretion to the Registrar to deny visits to
detainees. This discretionary power constitutes an exception to the
general rule which provides that detainees have the right to meet with
the person of their choice, subject to security considerations.
In absence of an express provision to the contrary, judicial review
lies against administrative decisions before the ICTY.(3)
This general prinicple is enunciated in Rule 92 of the Standard Minimum
Rules for the Treatment of Prisoners (4):
92. An untried prisoner shall be allowed to inform immediately his
family of his detention and shall be given all reasonable facilities
for communicating with his family and friends, and for receiving visits
from them, subject only to restrictions and supervision as are
necessary in the interests of the administration of justice and of the
security and good order of the institution.
The ICTY Registrar's discretion is set out as follows in Rule 66 (B) of
the Rules of Detention and 33 (B) of the Regulations:
(B) Permission may be denied if the Registrar has reason to
believe that the purpose of the visit is to obtain information which
may be subsequently reported in the media.
1. The Registrar may only deny visits if he has "reason to believe"
that the purpose of the visit is that of obtaining information which
may subsequently be reported in the media. Nowhere in the Registrar's
fax to the Freedom Association is it alleged that the purpose of the
visit made by 5 named SPS members was to obtain information that might
subsequently be reported to the media.
2. The Registrar has not stated any reason to believe that any other
member of the SPS, "associated entities" or members of the Freedom
Association will apply for a visit with President Milosevic "for the
purpose" of obtaining information which may subsequently be reported in
the media.
3. The Registrar has simply banned, for an indeterminate period,
members of a political party, members of an association, as well as
persons unknown and unidentifiable, from visiting President Milosevic
although those unknown have not yet expressed the desire to visit him,
much less the intention of gathering information for the purposes of
future publication in the media.
4. The decision is overbroadly prospective, and is ultra vires the
discretionary authority provided by the Rules of Detention. The
Decision is overbroad as to targeted individuals and groups, and is
overbroad as to its duration.
5. The Registrar has misstated the Rule in his decision. In it he
writes that the visitors had been advised that "dissemination to the
media of any information disclosed to the media in any form is
prohibited". The Rule merely confers discretion to the Registrar to
prohibit visits if he has reason to believe that its purpose to obtain
information that is subsequently reported by the media. Such a patent
misstatement of the rule creates a reasonable apprehension that the
Registrar also errs in the actual exercise of his discretion.
b) The decision did not respect the principle of audi alteram partem
nor did respect procedural fairness;
1. Freedom Association/Sloboda is banned from visits to President
Milosevic "until further notice". At no point was a representative of
Sloboda/Freedom association called upon by the Registrar to provide a
response to the charge of "flagrant (…) breach" of the Rules. It is
obvious that the Registrar could not do so: No member of Freedom
Association is even alleged to have breached the Rules. Yet the
Registrar's decision arbitrarily bans its members from visits to Mr
Milosevic.
2. In fact, all visits undertaken by Freedom Association members have
been made without incident.
3. The Registrar's decision alleges a breach of Rules by two
individuals, Mr. Vucelic and Mr. Andjelkovic. At no time prior to the
ban were they given an opportunity to respond to the Registrar's
allegations that they had violated their undertaking to comply with the
rules and regulations of the ICTY. The Registrar has violated the most
basic principles of natural justice.
4. The Registrar has not afforded an opportunity to the SPS, or its
members, also subject to the Registrar's decision to deny visits to
President Milosevic, to respond to his allegations before deciding to
deny requests for visits "until further notice". The party, and its
members, could not, in any event, reasonably be expected to respond to
allegations made not against them, but against third parties. The
Registrar's decision therefore violates the most basic tenets of
natural justice.
5. The Registrar's failure to afford an opportunity to respond to
non-confidential evidence has been held by the President of the ICTY to
represent a failure to act with procedural fairness, and has resulted
in the President quashing the Registrar's decision in Prosecutor v.
Slijivancanin (5)
6. The Registrar has banned, until further notice, visits to President
Milosevic, by "associated entities" of the SPS. These "entities" are
unspecified, and therefore unknown. It is strikingly evident that
unspecified groups or entities have not had an opportunity to respond
to the Registrar's allegations against third parties. The Registrar's
decision constitutes an egregious violation of the most basic
principles of natural justice.
c) The Registrar's decision is overbroad and abusive with respect to
its application over time.
1. The Registrar's decision to deny request to visit President
Milosevic to members of the SPS, the Freedom Association, as well as
entities as to yet unknown and unspecified "until further notice"
constitutes an excess of jurisdiction. Discretion is to be exercised
on a case by case basis, as clearly envisaged by the relevant rules. An
administrative decision in force "until further notice" removes all
exercise of discretion, essentially applying one discrete factual
evaluation to all future cases.
2. In addition, an administrative decision taken "until further notice"
is egregiously arbitrary with respect to the period of time in which it
will be in force. The Registrar has failed to assert any legislative
basis to justify the indeterminate nature of the decision. The
Registrar has also failed to indicate what requirements or criteria, if
any, would need to be met in order to terminate his decision to ban
visits from persons and groups, some unspecified and yet to be
identified. The decision is overbroad, and does not constitute an
acceptable exercise of administrative discretion.
3. Rule 63 (A) and Rules and Rule 33 (B) of the Regulations clearly
confers discretion to refuse a single visit-- not all visits,-- for an
undisclosed, potentially indefinite period. The Rule requires the
Registrar to treat each case individually, which he has failed to to
do. Instead he has restricted his discretion and thus exceeded and/ or
not excercised his jurisdiction. The Registrar has rendered an illegal
decision, which should be reversed.
d) The Registrar's decision arbitrarily and unjustifiably targets
persons and groups entirely unconnected to those allegedly in breach of
rules governing visits and communication with detainees.
1. It is trite to point out that banning visits by persons not even
alleged to have breached rules is a violation of any legal standard.
Not only does the impugned decision target all members of a political
party, present and future, as well as present and future members of the
Freedom Association, but outrageously extends the ban on visits to
"associated entities" of the SPS. The Registrar has in essence banned
unknown, unidentified, and unidentifiable groups from visiting
President Milosevic. This decision is simply unprecedented and violates
every fundamental principle of transparency. It is guilt by
association, and worse, it targets people unknown.
2. By extending the ban on visits to undefined groups, the Registrar
has usurped legislative jurisdiction and conferred absolute discretion
onto himself. The Registar's decision is patently ultra vires.
e) The Registrar's decision is apparently unfounded, as no evidence is
provided to support the Registrar's claim of transgression of the rules
1. The Registrar's decision laconically states that "two articles were
published in the media in Belgrade". The Registrar has provided no copy
of publication, no date of publication, and has not identified the
media in question. The Registrar has failed to positively identify the
type of media alleged to have published details of a visit. The
Registrar points to "factual inaccuracies" in the "articles". The
paucity of information provided to support such a sweeping ban is well
below any standard of transparency required in the drafting of his
decision (6). The Registrar's claim that a "flagrant breach" of the
Rules occurred is unreasonable, his reasons inadequate.
The Registrar's decision violates the principle of equality of arms.
The Registry permits, finances and otherwise aids and encourages
unrestrained access to the media by the Prosecutor, while denying any
such contact on the part of an accused person. The Registrar's decision
should therefore be quashed
1. The Registry facilitates, finances and otherwise supports joint
press briefings of the ICTY's Spokesman for Registry and Chambers with
Office of the Prosecutor's spokeswoman. Summaries of these press
conferences are made available on the ICTY's website at
http://www.un.org/icty/latest/index.htm .
2. Article 21 of the ICTY Statute sets out the minimum rights of
accused persons. These rights encompass the principle of the equality
of arms.
3. The principle of equality of arms, in the context of a trial, is to
be interpreted as meaning that each party must be afforded a reasonable
opportunity to present its case, under conditions that do not place it
at a substantial disadvantage vis à vis the opposing party (7).
4. The Registrar's ban puts President Milosevic at "a substantial
disadvantage vis-à-vis the opposing party" as, simply put, the
"opposing party" maintains a channel of communication with the media,
which it uses to present its case, and does so with the assistance and
support of the Registry.
5. Equality of arms is violated when the Registrar simultaneously bans
visits to an accused, based on the prohibition on contact with the
media, while facilitating joint press briefings of the Tribunal and
Prosecutor's spokespeople. The imbalance is striking.
6. The Registrar's decision to ban visits to President Milosevic based
on prohibition of contact with the media could not be made in other
United Nations Tribunals. No rule permitting such discretion has been
adopted at the International Criminal Tribunal for Rwanda, the Special
Court for Sierra Leone, or the International Criminal Court. These
Tribunals are held to the respect of the principle of the equality of
arms.
The Registrar's decision violates the fundamental principle of freedom
of expression, and should be quashed
1. Some security considerations can legitimately justify the
non-disclosure of certain information to the media by visitors such as
the details of floor plans of Detention Unit, for instance. Security
considerations are a pattern throughout legislation governing visits to
detention units under international and domestic law.
2. In contrast, the Registrar's decision constitutes a blanket
prohibition of contact with the media. No security considerations have
been asserted in support of the ban, which is tantamount to a gag order.
3. The ICTY is held to apply and respect the provisions of the
International Covenant for Civil and Political Rights (8).
4. The accused is innocent, presumed as such by Article 21 of the ICTY
Statute until proof has established, beyond a reason doubt, the
contrary. The accused preserves his freedom of expression (9).
5. Visitors of the accused also enjoy the right to freedom of
expression, a fundamental freedom set out in Article 19 of the
Universal Declaration of Human Rights:
"Everyone has the right to the freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and
regardless of frontiers."
The Appeals Chamber of the ICTY has recognized the public's right to
receive information from the press as a component of freedom of
expression. On interlocutory appeal in Prosecutor v. Brdjanin (10),
the Appeals Chamber overturned the Trial Chamber's decision to issue a
subpoena to Jonathan Randall. The Appeals Chamber held:
As has been noted, the right to freedom of expression includes not
merely the right of journalists and media organizations freely to
communicate information. It also incorporates a right of members of the
public to receive information. As the European Court of Human Rights
put it in its decision in Fresso and Roire v. France: “Not only does
the press have the task of imparting information and ideas on matters
of public interest: the public also has a right to receive them.”
1. Brdjanin described the vital role of war correspondents in the work
of the Tribunal (11), and concluded:
The Appeals Chamber will not unnecessarily hamper the work of
professions that perform a public interest. (12)
1. The House of Lords, in Regina v. Secretary of State for the Home
Department Ex Parte Simms (A.P.) Secretary of State for the Home
Department Ex Parte O'Brien (13) overturned the British Home
Secretary's ban on verbal interviews between convicted prisoners
serving sentences and the media (14).
2. The O'Brien case establishes that convicted prisoners have the right
to conduct interviews with the media and discuss the unfairness of
their trials. Lord Steyn stated:
The prisoners are in prison because they are presumed to have been
properly convicted. They wish to challenge the safety of their
convictions. In principle it is not easy to conceive of a more
important function which free speech might fulfil. (15)
1. O'Brien acknowledged the reality of miscarriages of justice, and the
crucial role of the media in exposing them. (16)
2. President Slobodan Milosevic asserts his innocence, and steadfastly
criticizes the ICTY. He is innocent, until proven otherwise, and has
every right to oppose the legitimacy of this institution. By banning
contact with the media, the Registrar has violated the rights of Mr.
Milosevic, of his visitors, and of the public at large.
3. The ICTY may not enjoy President Milosevic's criticism. Nonetheless,
the public benefits of permitting him to communicate with the media far
outweigh whatever embarassment might be visited upon the ICTY. As Lord
Steyn stated it:
Freedom of expression is, of course, intrinsically important: it is
valued for its own sake. But it is well recognised that it is also
instrumentally important. It serves a number of broad objectives.
First, it promotes the self fulfilment of individuals in society.
Secondly, in the famous words of Mr. Justice Holmes (echoing John
Stuart Mill), "the best test of truth is the power of the thought to
get itself accepted in the competition of the market.": Abraham v.
United States 250 U.S. 616, at 630 (1919), per Holmes J. (dissent).
Thirdly, freedom of speech is the lifeblood of democracy. The free flow
of information and ideas informs political debate. It is a safety
valve: people are more ready to accept decisions that go against them
if they can in principle seek to influence them. It acts as a brake on
the abuse of power by public officials. It facilitates the exposure of
errors in the governance and administration of justice of the country:
see Stone, Seidman, Sunstein and Tushnett, Constitutional Law, 3rd ed.,
(1996), 1078-1086. It is this last interest which is engaged in the
present case. The prisoners argue that in their cases the criminal
justice system has failed, and that they have been wrongly convicted.
They seek with the assistance of journalists, who have the resources to
do the necessary investigations, to make public the wrongs which they
allegedly suffered. (17)
1. The House of Lords contemplated the right of convicted criminals to
conduct interviews with the media. Neither Mr. Milosevic nor his
visitors have been convicted of any crimes, yet the Registrar's
decision strips them of rights enjoyed by convicted persons in the
United Kingdom.
Freedom of expression before the ICTY
1. In the matter of Brdjanin, the Appeals Chamber recognized freedom of
expression as a fundamnetal right. It had been asked to recognize a
specific privilege for war correspondents before the Tribunal, but
established instead a two-pronged test to determine whether a decision
violating freedom of expression should be overturned in particular
cases where compelling testimony would reduce the "free flow of
information" (18) . The test developed by the majority of the Chamber
is too narrow to apply to the instant matter.
2. Judge Shahabudeen's separate opinion, however, provides a useful
test in the instant case. With respect to the International Covenant on
Civil and Political Rights, he stated:
8) The Covenant was not constructed with the International Tribunal in
view. So far as the Tribunal is concerned, there is no “law” providing
for restrictions under article 19(3). But, given that it is
acknowledged that the principles of the Covenant apply in relation to
the Tribunal, those principles have to be construed to mean that the
right to freedom of expression is subject to restrictions on the
exercise of it which result from the responsibilities and functions of
the Tribunal. This opinion will proceed on the basis that the
protection of the public interests which justifies those restrictions
includes the protection of the essential elements of the administration
of justice; the matter is so understood generally.
9) If a restriction is judged “necessary”, no balancing of interests is
thereafter required. The balance is made by the provision; the task of
the courts is to say whether the particular restriction of freedom of
expression is “necessary ” on any of the permitted grounds. If the
restriction is necessary, the restriction prevails – the testimony is
compelled; if the restriction is not necessary, freedom of expression
prevails – the testimony is not compelled. But it seems to me that
there is a preliminary stage at which some balancing of competing
interests has inescapably to be made in the process of determining
whether a restriction of freedom of expression is “necessary” for the
protection of a public interest.
1. The Registrar has not asserted any grounds to establish that his
decision to ban President Milosevic from contact , until further
notice, with members of the SPS, and "associated entities", including
the Freedom Association is necessary to protect the public interest.
2. The Registrar thus justified his decision to ban visits, as a result
of alleged contacts with the media by previous visitors :
"In view of the flagrant nature of this breach of the rules and
regulations of the Tribunal, I have decided that it would be in the
interests of the good administration of the Detention Unit to deny
until further notice any requests from members of the SPS and
associated entities, such as the Freedom Association, for visits with
you at the Detention Unit." (19)
1. "The good administration of the Detention Unit", is a legitimate
administrative preoccupation, but falls far short of the standard set
out by Judge Shahabudeen. The Registrar's decision fails to show how
his decision would satisfy "the protection of the public interests
which justifies those restrictions" to freedom of expression, a right
enjoyed by the public and by the accused.
2. The protection of the essential elements of the administration of
justice (20), as opposed to the administration of the Detention Unit,
could justify a restriction on freedom of expression. The Appeals
Chamber has further held (21) that adequate weight must be given to the
ability of war correspondents to provide vital information to citizens
of the international community.
3. Brdjanin stands for the general proposition that the protection of
the administration of justice includes the protection of the free flow
of information to the international community. The Registrar has not
justified his restriction of the free flow of information to the
public, nor has he justified his restriction on the ability of members
of the public to participate in, or contribute to, the free flow of
information in the media.
4. Security considerations with respect to the administration of the
Detention Unit are set out elsewhere in the Rules and Regulations
adopted with respect to detention. It has not been shown that it is
necessary to adopt additional measures which so severely curtail the
fundamental rights of such a great number.
5. Transparency is required of any judicial institution. The
Registrar's decision, absent justification, heightens concerns that the
ICTY has something to hide.
6. In the course of a trial where the Prosecution has put the
transparency of the accused's governance at issue, it is demeaning to
the law to strip him of the right to contact media. To ban yet
unidentified persons from visiting him is unconscionable.
The Registrar's decision violates the fundamental, universally
recognized principle of presumption of innocence, and should therefore
be overturned.
1. Only a blatant disregard for the presumption of innocence can
justify the violation of President Milosevic's fundamental right of
freedom of expression, in addition to the violation of the rights of
his potential visitors.
2. In effect, a ban on visits following alleged communication with the
media supposes that President Milosevic is guilty and that his visitors
are guilty by association. The ban assumes that Mr. Milosevic will tell
his visitors bad things, which in turn will be reported in the media.
3. The ban also appears to prevent information favorable to Mr.
Milosevic from being be published in the media, which could only be
justified if his guilt were assumed.
4. In any event, the Registrar's decision suggests that the public
cannot be trusted with any information that could be received in the
course of a visit with Mr. Milosevic.
5. The Registrar's decision violates Rule 5 of the Rules of Detention,
which states:
All detainees, other than those who have been convicted by the
Tribunal, are presumed to be innocent until found guilty and are to be
treated as such at all times.
The Registrar's decision is tantamount to ordering the isolation of
President Milosevic, and should be overturned.
1. The governing principle with respect to detention has been set out
above: All detainees, other than those who have been convicted by the
Tribunal, are presumed to be innocent until found guilty and are to be
treated as such at all times.
2. This principle is at the heart of the rule providing for detainees
right to visitors of their choice, subject to security considerations
(22). This general rule is consistent with UN protocols on detention
(23).
3. Amnesty International provides the following justification for the
principle of free access to visitors:
The rights of detainees to communicate with others and to receive
visits are fundamental safeguards against human rights abuses such as
torture, ill-treatment and "disappearances".
Detained and imprisoned people must be allowed to communicate with the
outside world, subject only to reasonable conditions and restrictions.
(24)
1. Mr. Milosevic is has been deprived of visits from his wife and
immediate family since March 2003. The Registrar's decision now bans
visits from members of the Serbian Socialist Party's "associated
entities". This could justify denying every request for visitation made
by anyone close or affiliated not with the SPS, but with Slobodan
Milosevic himself.
2. The Registrar's decision is tantamount to imposing isolation on Mr.
Milosevic. The Rules of Detention only contemplate this measure
pursuant to specific conditions or when a detainee has committed
serious breaches to the Rule;
3. President Milosevic's isolation raises the apprehension that a
punitive measure has been carried out, although he has committed no
breach of rules and is innocent of the charges brought against him
until proof of the contrary;
4. The isolation imposed as a result of the Registrar's decision is
unwarranted, arbitrary and capricious;
RELIEF SOUGHT
FOR THE FOREGOING REASONS, PETITIONER, FREEDOM ASSOCIATION/ SLOBODA
REQUESTS THE PRESIDENT OF THE ICTY :
DIRECT the Registrar to overturn his decision, rendered August 12th
2003, to deny visits from members of the SPS, "associated entities" and
Freedom Association, until further notice;
DECLARE Rule 63 (B) of the Rules of Detention and Regulation 33 (B) of
the Regulations to govern the supervision of visits to and
communications with detainees contrary to article 21 of the ICTY
Statute, and the International Covenant on Civil and Political Rights.
(1) On August 15th, 2003, Mr Bogoljub Bjelica, Chairman of Freedom
Association, received a copy of a letter to Mr. Slobodan Milosevic
dated August 19th 2003 from the Registrar, Mr. Hans Holthuis,
informing him that he had "decided that it would be in the interests of
the good adminstration of the Detention Unit to deny untli further
notice any requests from members of the SPS and associated entities,
such as the Freedom Association, for visits with you at the Detention
Unit".
(2) Id., second paragraph of the Registrar's decision: "Subsequent to
the visit, two articles were published in the media in Belgrade, which
quoted from Mr. Vucelic and Mr. Andjelkovic respectively in relation to
the details of the visit. Despite the existence of some factual
inaccuracies, it is clear that the only possible source of the
information referred to in the articles was the SPS delegation"
(3) Prosecutor v. Sljivancanin, Decision on Assignment of Defence
Counsel, The President, IT-95-13/1-PT, 20 August 2003, paragraph 18.
(4) Adopted by the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, held at Geneva in 1955, and
approved by the Economic and Social Council by its resolution 663 C
(XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977
(5) Decision on Assignment of Defence Counsel, 20 August 2003,
IT-95-13/1-PT, paragraph 23. See also Kvocka Decision, Appeal Chamber,
paragraph 12: "The administrative decision will also be quashed if the
Registrar has failed …to act with procedural fairness"
(6) See President's Decision on Assignment of Defence Counsel,
Slijivancanin, supra.
(7) European Court judgments in the cases of Ofrer and Hopfinger,
Nos. 524/59 and 617/59, Dec. 19.12.60, Yearbook 6, p. 680 and 696;
Krajisnik and Plavsic, (IT-00-3940), Decision on Prosecution Motion for
Clarification in respect of Application of Rules 65 ter, 66 (B) and 67
(C), 1 August 2001.
(8) Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No.:
IT-99-36-T, Decision on interlocutory appeal, 11 December 2002,
Separate Opinion of Judge Shahabudeen, footnote 4: "Paragraph 106 of
the Secretary-General’s Report (S/25704 of 3 May 1993) said that it “is
axiomatic that the International Tribunal must fully respect
internationally recognized standards regarding the rights of the
accused at all stages of the proceedings. In the view of the
Secretary-General, such internationally recognized standards are, in
particular, contained in article 14 of the International Covenant on
Civil and Political Rights”. In the context in which the
Secretary-General was speaking, his reference to the rights of the
accused was understandable; it does not limit the applicability of the
Covenant to other matters."
(9) See Bell v. Wolfish, 441 U.S. 520, 545 (1979) (Supreme Court of
the United States), and Kimberlin v. Quinlan, 774 F.Supp. 1, 34
(D.D.C. 1991), rev'd on other grounds, 6 F.3d 789 (D.C. Cir.1993): A
defendant preserves "a First Amendment right to be free from
governmental interferencewith [his] contacts with the press if that
interference is based on the content of the speech or proposed speech."
(10) Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No.:
IT-99-36-T, Decision on interlocutory appeal, 11 December 2002.
(11) Brdjanin, supra, at paragraph 36: The Appeals Chamber is of the
view that society’s interest in protecting the integrity of the
newsgathering process is particularly clear and weighty in the case of
war correspondents. Wars necessarily involve death, destruction, and
suffering on a large scale and, too frequently, atrocities of many
kinds, as the conflict in the former Yugoslavia illustrates. In war
zones, accurate information is often difficult to obtain and may be
difficult to distribute or disseminate as well. The transmission of
that information is essential to keeping the international public
informed about matters of life and death. It may also be vital to
assisting those who would prevent or punish the crimes under
international humanitarian law that fall within the jurisdiction of
this Tribunal. In this regard, it may be recalled that the images of
the terrible suffering of the detainees at the Omarska Camp that played
such an important role in awakening the international community to the
seriousness of the human rights situation during the conflict in Bosnia
Herzegovina were broadcast by war correspondents. The Appeals Chamber
readily agrees with the Trial Chamber that war correspondents “play a
vital role in bringing to the attention of the international community
the horrors and reality of conflict.”30 The information uncovered by
war correspondents has on more than one occasion provided important
leads for the investigators of this Tribunal.31 In view of these
reasons, the Appeals Chamber considers that war correspondents do serve
a public interest.
(12) Id., paragraph 44.
(13)
http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990708/
obrien01.htm,Consolidated Appeals, 1998.
(14) In the United States, the right to freedom of speech for
convicts was upheld by the Supreme Court in Pell v. Procunier, 417 U.S.
(1974); see also Houchins v. KQED, Inc., 438 U.S. 1 (1978)
(15) O'Brien, supra, p. XX
(16) O'Brien, supra,., p. XXX
(17) Id., p. XXX
(18) Brdjanin, supra, paragraph 50: "In view of the foregoing, the
Appeals Chamber holds that in order for a Trial Chamber to issue a
subpoena to a war correspondent a two-pronged test must be satisfied .
First, the petitioning party must demonstrate that the evidence sought
is of direct and important value in determining a core issue in the
case. Second, it must demonstrate that the evidence sought cannot
reasonably be obtained elsewhere ."
(19) Registrar's decision, supra, note 1.
(20) Separate Opinion of Shahabudeen, supra, paragraph 8.
(21)Brdjanin, supra, majority opinion, paragraph 38: "Rather, it is
because vigorous investigation and reporting by war correspondents
enables citizens of the international community to receive vital
information from war zones that the Appeals Chamber considers that
adequate weight must be given to protecting the ability of war
correspondents to carry out their functions."
(22) Rule 63 (A) of the Rules of Detention.
(23) See, supra, footnote 2
(24) Amnesty International, Fair Trials Manual, International
Secretariate, London 1998. Cf Principle 19 of the Body of Principles:
"A detained or imprisoned person shall have the right to be visited by
and to correspond with, in particular, members of his family and shall
be given adequate opportunity to communicate with the outside world,
subject to reasonable conditions and restrictions as specified by law
or lawful regulations."
---
SLOBODA urgently needs your donation
Please find the detailed instructions at:
http://www.sloboda.org.yu/pomoc.htm
To join or help this struggle, visit:
http://www.sloboda.org.yu/ (Sloboda/Freedom association)
http://www.icdsm.org/ (the international committee to defend Slobodan
Milosevic) now back in service!
http://www.free-slobo.de/ (German section of ICDSM)
http://www.icdsmireland.org/ (ICDSM Ireland)
http://www.wpc-in.org/ (world peace council)
http://www.geocities.com/b_antinato/ (Balkan antiNATO center)
Data: Mer 3 Set 2003 00:34:54 Europe/Rome
Oggetto: The Hague: "There is no defence, only prosecution!"
"There is no defence, only prosecution!"
-Slobodan Milosevic, September 2nd, 2003
SLOBODA calls upon all organizations and individuals who care
about freedom, justice and democracy to stand URGENTLY AND SOUNDLY
against the perhaps final proof that the aim of the "tribunal" and it's
NATO masters is to suppress freedom and to silence the truth.
Today's outrageous developments at the Hague require that no decent
person remains silent.
Progressive forces and lawyers have a particular responsibility to
stand up and let their voices be heard - there are thousands of
arguments!
The alternatives of today's world are: freedom or slavery. In the
version of the "judicial" arm of NATO the alternative is: truth or
inquisition.
SLOBODAN MILOSEVIC WILL HELP ALL OF US WINNING OUR BATTLE IF WE HELP
HIM NOW!
Address the public and all relevant international factors!
ICDSM and all national committees will give the tone to this action.
Either the truth will be allowed to appear or destinies of another
nations can be sealed for a long time.
TWO YEARS OF FREEDOM FOR THE VICTORY OF TRUTH!
Earlier today President Slobodan Milosevic addressed the "Tribunal",
stating again, before being summarily shut down by Richard May, that he
did not recognize the ICTY and that the exercise was "not a trial".
At a status conference scheduled today to establish the modalities of
the "defense case", President Milosevic told the "ICTY" that two issues
were central: time and circumstances.
He stated that two years to prepare a response to the allegations made
was a bare minimum, that in fact the time required would be endless. In
addition, President Milosevic has demanded direct and unsupervised
contacts with witnesses and the ability to locate and obtain key
documents to refute the lies that have been put forward in The Hague,
which can only be done if he is
released.
"I will need the conditions necessary for me to prepare my trial while
at liberty," Slobodan Milosevic told the Chamber.
President Milosevic reminded Mr. May that the opposing side,
represented by Carla Del Ponte, had filed the Kosovo indictment in
1999, practically three years before the beginning of his Hague
"trial", and four and one half years before today. Other issues raised
in the subsequent indictments with respect to Croatia and Bosnia date
back to 1993.
President Milosevic pointed out that although he does not acknowledge
the process as legitimate, Mr. May and his colleagues must provide him
with adequate time for preparation, without which it will be clear that
the ICTY does not respect the rights it claims to stand for, that in
fact at the ICTY there is no defence, only a prosecution.
President Milosevic also demanded direct, unsupervised and unimpeded
contact with witnesses under adequate conditions, at liberty. He added
that he could not even begin to estimate the number of people working
for the opposite side. He demanded to be given the ability to prepare
witnesses properly, reminding the Chamber of the extent of preparation
carried out by the other side.
President Milosevic stressed that it was the Chamber, not he, who
claimed that "rights" were being afforded to him, and therefore they
should see that he be given the possibility of realizing those rights.
President Milosevic explained that the symbolic value of the equality
of arms supported his demands to prepare his witnesses and documents in
conditions that were adequate and suitable.
Following President Milosevic's presentation, "Judge" May did not
hesitate to immediately deny, yet again, any request for provisional
release made by President Milosevic, without stating any justification.
Mr. May also summarily dismissed President Milosevic's request for two
years to prepare his case.
After lengthy submissions from the "amicus" and opposite side,
President Milosevic spoke again, and strongly criticized the
"Prosecution's" suggestion that they were equal all on equal footing as
absurd. He reiterated, before being cut off, that he did not recognize
the "Tribunal" and that the process was not a "trial", but that the
Chamber itself had claimed he had rights. After being told to be
concrete by Mr. May, President Milosevic responded that he had been
speaking in the most practical terms, and asked how it was possible for
him to communicate with witnesses without direct and unsupervised
contact with them. He stated that two years of preparation was a most
modest evaluation of the time required under the so-called "Tribunal's"
principles.
President Milosevic concluded his remarks by stating that it was
well-known that at the ICTY there is only a prosecution and no defence,
nor is there equality of arms.
The "Chamber" has not issued any formal rulings on the submissions
heard today, but has already rejected President Milosevic's concrete
demands without deliberations. A decision setting out the modalities of
resident Milosevic's presentation of evidence is expected soon.
Recently, the "tribunal" banned all visits of all SPS members, Sloboda
and other associated people to President Milosevic. By that, pratically
no witness could be prepared. Fighting that decision and the "rule"
forbidding President Milosevic contacts with the media, earlier today
Sloboda sent to the president of the "tribunal" a written request to
annull that decision, naming dozens of arguments. The full text of the
letter by Sloboda is attached as Appendix.
---
APPENDIX
---
Belgrade, September 2, 2003
To: Judge Theodor Meron, President
ICTY, The Hague, The Netherlands
URGENT
REQUEST TO THE PRESIDENT FOR REVIEW OF THE REGISTRAR'S DECISION TO DENY
REQUESTS FOR VISITS TO PRESIDENT SLOBODAN MILOSEVIC AT THE DETENTION
CENTRE, PURSUANT TO THE PRESIDENT'S SUPERVISORY POWERS, RULE 19 OF THE
RULES OF PROCEDURE AND EVIDENCE
Hereby we request the President's intervention, on the basis of his
powers set out at Rule 19 of the Rules of Procedure and Evidence, to
reverse the Registrar's decision to deny, until further notice, visits
from members of the Freedom Association (SLOBODA) (1). The Registrar's
decision is supported by his claim that individuals having visiting
President Slobodan Milosevic disclosed information to the media. (2)
SUMMARY OF ARGUMENT
A. The Registrar's decision constitutes an arbitrary and illegal
exercice of the discretion afforded by Regulation 33 (B) of the
Regulations to Govern the Supervision of Visits to and Communications
with detainees (the "Regulations") and Rule 66 (B) of the Rules of
Detention, and should therefore be overturned;
B. The Registrar's decision violates the principle of equality of arms.
The Registry permits, finances and otherwise aids and encourages
unrestrained access to the media by the Prosecutor, while denying any
such contact on the part of an accused person. The Registrar's decision
should therefore be overturned;
C. The Registrar's decision violates the fundamental, universally
recognized principle of presumption of innocence, and should therefore
be overturned;
D. The Registrar's decision violates the fundamental principle of
freedom of expression, has no legitimate aim, and is unnecessary. The
Registrar's decision should be overturned;
E. The Registrar's decision is tantamount to ordering the isolation of
President Milosevic, and should be overturned.
THE FACTS
1. On 11 August 2003, Mr. Bogoljub Bjelica, Chairman of the Freedom
Association, a non-government association, applied, in accordance with
the applicable rules and procedural requirements, for a visit with
President Milosevic, who had also requested to meet with Mr. Bjelica.
2. On 15 August 2003, he received a copy of a fax sent by the Registrar
to Mr. Milosevic denying "until further notice" visits from "members of
the SPS and associated entities, such the Freedom Association" until
further notice.
3. On 19 August 2003, Mr Igor Raicevic of the Freedom Association
requested the Registrar reconsider his decision to deny visits to
members of the Freedom Association, which request did not get any reply;
ARGUMENT
The Registrar's decision to suspend visits is arbitrary and constitutes
an abuse of discretion:
a) the decision was not made in accordance with statutory authority;
b) the decision did not respect the principle of audi alteram partem;
c) the decision is overbroad and abusive with respect to its
application over time;
d) the decision arbitrarily and unjustifiably targets persons and
groups entirely unconnected to those allegedly in breach of rules
governing visits and communication with detainees;
e) the decision is apparently unfounded, as no evidence is provided to
support the Registrar's claim of transgression of the rules.
a) The decision was not made in accordance with statutory authority.
Regulation 33 (B) of the Regulations and Rule 66 of the Rules of
Detention attribute discretion to the Registrar to deny visits to
detainees. This discretionary power constitutes an exception to the
general rule which provides that detainees have the right to meet with
the person of their choice, subject to security considerations.
In absence of an express provision to the contrary, judicial review
lies against administrative decisions before the ICTY.(3)
This general prinicple is enunciated in Rule 92 of the Standard Minimum
Rules for the Treatment of Prisoners (4):
92. An untried prisoner shall be allowed to inform immediately his
family of his detention and shall be given all reasonable facilities
for communicating with his family and friends, and for receiving visits
from them, subject only to restrictions and supervision as are
necessary in the interests of the administration of justice and of the
security and good order of the institution.
The ICTY Registrar's discretion is set out as follows in Rule 66 (B) of
the Rules of Detention and 33 (B) of the Regulations:
(B) Permission may be denied if the Registrar has reason to
believe that the purpose of the visit is to obtain information which
may be subsequently reported in the media.
1. The Registrar may only deny visits if he has "reason to believe"
that the purpose of the visit is that of obtaining information which
may subsequently be reported in the media. Nowhere in the Registrar's
fax to the Freedom Association is it alleged that the purpose of the
visit made by 5 named SPS members was to obtain information that might
subsequently be reported to the media.
2. The Registrar has not stated any reason to believe that any other
member of the SPS, "associated entities" or members of the Freedom
Association will apply for a visit with President Milosevic "for the
purpose" of obtaining information which may subsequently be reported in
the media.
3. The Registrar has simply banned, for an indeterminate period,
members of a political party, members of an association, as well as
persons unknown and unidentifiable, from visiting President Milosevic
although those unknown have not yet expressed the desire to visit him,
much less the intention of gathering information for the purposes of
future publication in the media.
4. The decision is overbroadly prospective, and is ultra vires the
discretionary authority provided by the Rules of Detention. The
Decision is overbroad as to targeted individuals and groups, and is
overbroad as to its duration.
5. The Registrar has misstated the Rule in his decision. In it he
writes that the visitors had been advised that "dissemination to the
media of any information disclosed to the media in any form is
prohibited". The Rule merely confers discretion to the Registrar to
prohibit visits if he has reason to believe that its purpose to obtain
information that is subsequently reported by the media. Such a patent
misstatement of the rule creates a reasonable apprehension that the
Registrar also errs in the actual exercise of his discretion.
b) The decision did not respect the principle of audi alteram partem
nor did respect procedural fairness;
1. Freedom Association/Sloboda is banned from visits to President
Milosevic "until further notice". At no point was a representative of
Sloboda/Freedom association called upon by the Registrar to provide a
response to the charge of "flagrant (…) breach" of the Rules. It is
obvious that the Registrar could not do so: No member of Freedom
Association is even alleged to have breached the Rules. Yet the
Registrar's decision arbitrarily bans its members from visits to Mr
Milosevic.
2. In fact, all visits undertaken by Freedom Association members have
been made without incident.
3. The Registrar's decision alleges a breach of Rules by two
individuals, Mr. Vucelic and Mr. Andjelkovic. At no time prior to the
ban were they given an opportunity to respond to the Registrar's
allegations that they had violated their undertaking to comply with the
rules and regulations of the ICTY. The Registrar has violated the most
basic principles of natural justice.
4. The Registrar has not afforded an opportunity to the SPS, or its
members, also subject to the Registrar's decision to deny visits to
President Milosevic, to respond to his allegations before deciding to
deny requests for visits "until further notice". The party, and its
members, could not, in any event, reasonably be expected to respond to
allegations made not against them, but against third parties. The
Registrar's decision therefore violates the most basic tenets of
natural justice.
5. The Registrar's failure to afford an opportunity to respond to
non-confidential evidence has been held by the President of the ICTY to
represent a failure to act with procedural fairness, and has resulted
in the President quashing the Registrar's decision in Prosecutor v.
Slijivancanin (5)
6. The Registrar has banned, until further notice, visits to President
Milosevic, by "associated entities" of the SPS. These "entities" are
unspecified, and therefore unknown. It is strikingly evident that
unspecified groups or entities have not had an opportunity to respond
to the Registrar's allegations against third parties. The Registrar's
decision constitutes an egregious violation of the most basic
principles of natural justice.
c) The Registrar's decision is overbroad and abusive with respect to
its application over time.
1. The Registrar's decision to deny request to visit President
Milosevic to members of the SPS, the Freedom Association, as well as
entities as to yet unknown and unspecified "until further notice"
constitutes an excess of jurisdiction. Discretion is to be exercised
on a case by case basis, as clearly envisaged by the relevant rules. An
administrative decision in force "until further notice" removes all
exercise of discretion, essentially applying one discrete factual
evaluation to all future cases.
2. In addition, an administrative decision taken "until further notice"
is egregiously arbitrary with respect to the period of time in which it
will be in force. The Registrar has failed to assert any legislative
basis to justify the indeterminate nature of the decision. The
Registrar has also failed to indicate what requirements or criteria, if
any, would need to be met in order to terminate his decision to ban
visits from persons and groups, some unspecified and yet to be
identified. The decision is overbroad, and does not constitute an
acceptable exercise of administrative discretion.
3. Rule 63 (A) and Rules and Rule 33 (B) of the Regulations clearly
confers discretion to refuse a single visit-- not all visits,-- for an
undisclosed, potentially indefinite period. The Rule requires the
Registrar to treat each case individually, which he has failed to to
do. Instead he has restricted his discretion and thus exceeded and/ or
not excercised his jurisdiction. The Registrar has rendered an illegal
decision, which should be reversed.
d) The Registrar's decision arbitrarily and unjustifiably targets
persons and groups entirely unconnected to those allegedly in breach of
rules governing visits and communication with detainees.
1. It is trite to point out that banning visits by persons not even
alleged to have breached rules is a violation of any legal standard.
Not only does the impugned decision target all members of a political
party, present and future, as well as present and future members of the
Freedom Association, but outrageously extends the ban on visits to
"associated entities" of the SPS. The Registrar has in essence banned
unknown, unidentified, and unidentifiable groups from visiting
President Milosevic. This decision is simply unprecedented and violates
every fundamental principle of transparency. It is guilt by
association, and worse, it targets people unknown.
2. By extending the ban on visits to undefined groups, the Registrar
has usurped legislative jurisdiction and conferred absolute discretion
onto himself. The Registar's decision is patently ultra vires.
e) The Registrar's decision is apparently unfounded, as no evidence is
provided to support the Registrar's claim of transgression of the rules
1. The Registrar's decision laconically states that "two articles were
published in the media in Belgrade". The Registrar has provided no copy
of publication, no date of publication, and has not identified the
media in question. The Registrar has failed to positively identify the
type of media alleged to have published details of a visit. The
Registrar points to "factual inaccuracies" in the "articles". The
paucity of information provided to support such a sweeping ban is well
below any standard of transparency required in the drafting of his
decision (6). The Registrar's claim that a "flagrant breach" of the
Rules occurred is unreasonable, his reasons inadequate.
The Registrar's decision violates the principle of equality of arms.
The Registry permits, finances and otherwise aids and encourages
unrestrained access to the media by the Prosecutor, while denying any
such contact on the part of an accused person. The Registrar's decision
should therefore be quashed
1. The Registry facilitates, finances and otherwise supports joint
press briefings of the ICTY's Spokesman for Registry and Chambers with
Office of the Prosecutor's spokeswoman. Summaries of these press
conferences are made available on the ICTY's website at
http://www.un.org/icty/latest/index.htm .
2. Article 21 of the ICTY Statute sets out the minimum rights of
accused persons. These rights encompass the principle of the equality
of arms.
3. The principle of equality of arms, in the context of a trial, is to
be interpreted as meaning that each party must be afforded a reasonable
opportunity to present its case, under conditions that do not place it
at a substantial disadvantage vis à vis the opposing party (7).
4. The Registrar's ban puts President Milosevic at "a substantial
disadvantage vis-à-vis the opposing party" as, simply put, the
"opposing party" maintains a channel of communication with the media,
which it uses to present its case, and does so with the assistance and
support of the Registry.
5. Equality of arms is violated when the Registrar simultaneously bans
visits to an accused, based on the prohibition on contact with the
media, while facilitating joint press briefings of the Tribunal and
Prosecutor's spokespeople. The imbalance is striking.
6. The Registrar's decision to ban visits to President Milosevic based
on prohibition of contact with the media could not be made in other
United Nations Tribunals. No rule permitting such discretion has been
adopted at the International Criminal Tribunal for Rwanda, the Special
Court for Sierra Leone, or the International Criminal Court. These
Tribunals are held to the respect of the principle of the equality of
arms.
The Registrar's decision violates the fundamental principle of freedom
of expression, and should be quashed
1. Some security considerations can legitimately justify the
non-disclosure of certain information to the media by visitors such as
the details of floor plans of Detention Unit, for instance. Security
considerations are a pattern throughout legislation governing visits to
detention units under international and domestic law.
2. In contrast, the Registrar's decision constitutes a blanket
prohibition of contact with the media. No security considerations have
been asserted in support of the ban, which is tantamount to a gag order.
3. The ICTY is held to apply and respect the provisions of the
International Covenant for Civil and Political Rights (8).
4. The accused is innocent, presumed as such by Article 21 of the ICTY
Statute until proof has established, beyond a reason doubt, the
contrary. The accused preserves his freedom of expression (9).
5. Visitors of the accused also enjoy the right to freedom of
expression, a fundamental freedom set out in Article 19 of the
Universal Declaration of Human Rights:
"Everyone has the right to the freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and
regardless of frontiers."
The Appeals Chamber of the ICTY has recognized the public's right to
receive information from the press as a component of freedom of
expression. On interlocutory appeal in Prosecutor v. Brdjanin (10),
the Appeals Chamber overturned the Trial Chamber's decision to issue a
subpoena to Jonathan Randall. The Appeals Chamber held:
As has been noted, the right to freedom of expression includes not
merely the right of journalists and media organizations freely to
communicate information. It also incorporates a right of members of the
public to receive information. As the European Court of Human Rights
put it in its decision in Fresso and Roire v. France: “Not only does
the press have the task of imparting information and ideas on matters
of public interest: the public also has a right to receive them.”
1. Brdjanin described the vital role of war correspondents in the work
of the Tribunal (11), and concluded:
The Appeals Chamber will not unnecessarily hamper the work of
professions that perform a public interest. (12)
1. The House of Lords, in Regina v. Secretary of State for the Home
Department Ex Parte Simms (A.P.) Secretary of State for the Home
Department Ex Parte O'Brien (13) overturned the British Home
Secretary's ban on verbal interviews between convicted prisoners
serving sentences and the media (14).
2. The O'Brien case establishes that convicted prisoners have the right
to conduct interviews with the media and discuss the unfairness of
their trials. Lord Steyn stated:
The prisoners are in prison because they are presumed to have been
properly convicted. They wish to challenge the safety of their
convictions. In principle it is not easy to conceive of a more
important function which free speech might fulfil. (15)
1. O'Brien acknowledged the reality of miscarriages of justice, and the
crucial role of the media in exposing them. (16)
2. President Slobodan Milosevic asserts his innocence, and steadfastly
criticizes the ICTY. He is innocent, until proven otherwise, and has
every right to oppose the legitimacy of this institution. By banning
contact with the media, the Registrar has violated the rights of Mr.
Milosevic, of his visitors, and of the public at large.
3. The ICTY may not enjoy President Milosevic's criticism. Nonetheless,
the public benefits of permitting him to communicate with the media far
outweigh whatever embarassment might be visited upon the ICTY. As Lord
Steyn stated it:
Freedom of expression is, of course, intrinsically important: it is
valued for its own sake. But it is well recognised that it is also
instrumentally important. It serves a number of broad objectives.
First, it promotes the self fulfilment of individuals in society.
Secondly, in the famous words of Mr. Justice Holmes (echoing John
Stuart Mill), "the best test of truth is the power of the thought to
get itself accepted in the competition of the market.": Abraham v.
United States 250 U.S. 616, at 630 (1919), per Holmes J. (dissent).
Thirdly, freedom of speech is the lifeblood of democracy. The free flow
of information and ideas informs political debate. It is a safety
valve: people are more ready to accept decisions that go against them
if they can in principle seek to influence them. It acts as a brake on
the abuse of power by public officials. It facilitates the exposure of
errors in the governance and administration of justice of the country:
see Stone, Seidman, Sunstein and Tushnett, Constitutional Law, 3rd ed.,
(1996), 1078-1086. It is this last interest which is engaged in the
present case. The prisoners argue that in their cases the criminal
justice system has failed, and that they have been wrongly convicted.
They seek with the assistance of journalists, who have the resources to
do the necessary investigations, to make public the wrongs which they
allegedly suffered. (17)
1. The House of Lords contemplated the right of convicted criminals to
conduct interviews with the media. Neither Mr. Milosevic nor his
visitors have been convicted of any crimes, yet the Registrar's
decision strips them of rights enjoyed by convicted persons in the
United Kingdom.
Freedom of expression before the ICTY
1. In the matter of Brdjanin, the Appeals Chamber recognized freedom of
expression as a fundamnetal right. It had been asked to recognize a
specific privilege for war correspondents before the Tribunal, but
established instead a two-pronged test to determine whether a decision
violating freedom of expression should be overturned in particular
cases where compelling testimony would reduce the "free flow of
information" (18) . The test developed by the majority of the Chamber
is too narrow to apply to the instant matter.
2. Judge Shahabudeen's separate opinion, however, provides a useful
test in the instant case. With respect to the International Covenant on
Civil and Political Rights, he stated:
8) The Covenant was not constructed with the International Tribunal in
view. So far as the Tribunal is concerned, there is no “law” providing
for restrictions under article 19(3). But, given that it is
acknowledged that the principles of the Covenant apply in relation to
the Tribunal, those principles have to be construed to mean that the
right to freedom of expression is subject to restrictions on the
exercise of it which result from the responsibilities and functions of
the Tribunal. This opinion will proceed on the basis that the
protection of the public interests which justifies those restrictions
includes the protection of the essential elements of the administration
of justice; the matter is so understood generally.
9) If a restriction is judged “necessary”, no balancing of interests is
thereafter required. The balance is made by the provision; the task of
the courts is to say whether the particular restriction of freedom of
expression is “necessary ” on any of the permitted grounds. If the
restriction is necessary, the restriction prevails – the testimony is
compelled; if the restriction is not necessary, freedom of expression
prevails – the testimony is not compelled. But it seems to me that
there is a preliminary stage at which some balancing of competing
interests has inescapably to be made in the process of determining
whether a restriction of freedom of expression is “necessary” for the
protection of a public interest.
1. The Registrar has not asserted any grounds to establish that his
decision to ban President Milosevic from contact , until further
notice, with members of the SPS, and "associated entities", including
the Freedom Association is necessary to protect the public interest.
2. The Registrar thus justified his decision to ban visits, as a result
of alleged contacts with the media by previous visitors :
"In view of the flagrant nature of this breach of the rules and
regulations of the Tribunal, I have decided that it would be in the
interests of the good administration of the Detention Unit to deny
until further notice any requests from members of the SPS and
associated entities, such as the Freedom Association, for visits with
you at the Detention Unit." (19)
1. "The good administration of the Detention Unit", is a legitimate
administrative preoccupation, but falls far short of the standard set
out by Judge Shahabudeen. The Registrar's decision fails to show how
his decision would satisfy "the protection of the public interests
which justifies those restrictions" to freedom of expression, a right
enjoyed by the public and by the accused.
2. The protection of the essential elements of the administration of
justice (20), as opposed to the administration of the Detention Unit,
could justify a restriction on freedom of expression. The Appeals
Chamber has further held (21) that adequate weight must be given to the
ability of war correspondents to provide vital information to citizens
of the international community.
3. Brdjanin stands for the general proposition that the protection of
the administration of justice includes the protection of the free flow
of information to the international community. The Registrar has not
justified his restriction of the free flow of information to the
public, nor has he justified his restriction on the ability of members
of the public to participate in, or contribute to, the free flow of
information in the media.
4. Security considerations with respect to the administration of the
Detention Unit are set out elsewhere in the Rules and Regulations
adopted with respect to detention. It has not been shown that it is
necessary to adopt additional measures which so severely curtail the
fundamental rights of such a great number.
5. Transparency is required of any judicial institution. The
Registrar's decision, absent justification, heightens concerns that the
ICTY has something to hide.
6. In the course of a trial where the Prosecution has put the
transparency of the accused's governance at issue, it is demeaning to
the law to strip him of the right to contact media. To ban yet
unidentified persons from visiting him is unconscionable.
The Registrar's decision violates the fundamental, universally
recognized principle of presumption of innocence, and should therefore
be overturned.
1. Only a blatant disregard for the presumption of innocence can
justify the violation of President Milosevic's fundamental right of
freedom of expression, in addition to the violation of the rights of
his potential visitors.
2. In effect, a ban on visits following alleged communication with the
media supposes that President Milosevic is guilty and that his visitors
are guilty by association. The ban assumes that Mr. Milosevic will tell
his visitors bad things, which in turn will be reported in the media.
3. The ban also appears to prevent information favorable to Mr.
Milosevic from being be published in the media, which could only be
justified if his guilt were assumed.
4. In any event, the Registrar's decision suggests that the public
cannot be trusted with any information that could be received in the
course of a visit with Mr. Milosevic.
5. The Registrar's decision violates Rule 5 of the Rules of Detention,
which states:
All detainees, other than those who have been convicted by the
Tribunal, are presumed to be innocent until found guilty and are to be
treated as such at all times.
The Registrar's decision is tantamount to ordering the isolation of
President Milosevic, and should be overturned.
1. The governing principle with respect to detention has been set out
above: All detainees, other than those who have been convicted by the
Tribunal, are presumed to be innocent until found guilty and are to be
treated as such at all times.
2. This principle is at the heart of the rule providing for detainees
right to visitors of their choice, subject to security considerations
(22). This general rule is consistent with UN protocols on detention
(23).
3. Amnesty International provides the following justification for the
principle of free access to visitors:
The rights of detainees to communicate with others and to receive
visits are fundamental safeguards against human rights abuses such as
torture, ill-treatment and "disappearances".
Detained and imprisoned people must be allowed to communicate with the
outside world, subject only to reasonable conditions and restrictions.
(24)
1. Mr. Milosevic is has been deprived of visits from his wife and
immediate family since March 2003. The Registrar's decision now bans
visits from members of the Serbian Socialist Party's "associated
entities". This could justify denying every request for visitation made
by anyone close or affiliated not with the SPS, but with Slobodan
Milosevic himself.
2. The Registrar's decision is tantamount to imposing isolation on Mr.
Milosevic. The Rules of Detention only contemplate this measure
pursuant to specific conditions or when a detainee has committed
serious breaches to the Rule;
3. President Milosevic's isolation raises the apprehension that a
punitive measure has been carried out, although he has committed no
breach of rules and is innocent of the charges brought against him
until proof of the contrary;
4. The isolation imposed as a result of the Registrar's decision is
unwarranted, arbitrary and capricious;
RELIEF SOUGHT
FOR THE FOREGOING REASONS, PETITIONER, FREEDOM ASSOCIATION/ SLOBODA
REQUESTS THE PRESIDENT OF THE ICTY :
DIRECT the Registrar to overturn his decision, rendered August 12th
2003, to deny visits from members of the SPS, "associated entities" and
Freedom Association, until further notice;
DECLARE Rule 63 (B) of the Rules of Detention and Regulation 33 (B) of
the Regulations to govern the supervision of visits to and
communications with detainees contrary to article 21 of the ICTY
Statute, and the International Covenant on Civil and Political Rights.
(1) On August 15th, 2003, Mr Bogoljub Bjelica, Chairman of Freedom
Association, received a copy of a letter to Mr. Slobodan Milosevic
dated August 19th 2003 from the Registrar, Mr. Hans Holthuis,
informing him that he had "decided that it would be in the interests of
the good adminstration of the Detention Unit to deny untli further
notice any requests from members of the SPS and associated entities,
such as the Freedom Association, for visits with you at the Detention
Unit".
(2) Id., second paragraph of the Registrar's decision: "Subsequent to
the visit, two articles were published in the media in Belgrade, which
quoted from Mr. Vucelic and Mr. Andjelkovic respectively in relation to
the details of the visit. Despite the existence of some factual
inaccuracies, it is clear that the only possible source of the
information referred to in the articles was the SPS delegation"
(3) Prosecutor v. Sljivancanin, Decision on Assignment of Defence
Counsel, The President, IT-95-13/1-PT, 20 August 2003, paragraph 18.
(4) Adopted by the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, held at Geneva in 1955, and
approved by the Economic and Social Council by its resolution 663 C
(XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977
(5) Decision on Assignment of Defence Counsel, 20 August 2003,
IT-95-13/1-PT, paragraph 23. See also Kvocka Decision, Appeal Chamber,
paragraph 12: "The administrative decision will also be quashed if the
Registrar has failed …to act with procedural fairness"
(6) See President's Decision on Assignment of Defence Counsel,
Slijivancanin, supra.
(7) European Court judgments in the cases of Ofrer and Hopfinger,
Nos. 524/59 and 617/59, Dec. 19.12.60, Yearbook 6, p. 680 and 696;
Krajisnik and Plavsic, (IT-00-3940), Decision on Prosecution Motion for
Clarification in respect of Application of Rules 65 ter, 66 (B) and 67
(C), 1 August 2001.
(8) Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No.:
IT-99-36-T, Decision on interlocutory appeal, 11 December 2002,
Separate Opinion of Judge Shahabudeen, footnote 4: "Paragraph 106 of
the Secretary-General’s Report (S/25704 of 3 May 1993) said that it “is
axiomatic that the International Tribunal must fully respect
internationally recognized standards regarding the rights of the
accused at all stages of the proceedings. In the view of the
Secretary-General, such internationally recognized standards are, in
particular, contained in article 14 of the International Covenant on
Civil and Political Rights”. In the context in which the
Secretary-General was speaking, his reference to the rights of the
accused was understandable; it does not limit the applicability of the
Covenant to other matters."
(9) See Bell v. Wolfish, 441 U.S. 520, 545 (1979) (Supreme Court of
the United States), and Kimberlin v. Quinlan, 774 F.Supp. 1, 34
(D.D.C. 1991), rev'd on other grounds, 6 F.3d 789 (D.C. Cir.1993): A
defendant preserves "a First Amendment right to be free from
governmental interferencewith [his] contacts with the press if that
interference is based on the content of the speech or proposed speech."
(10) Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No.:
IT-99-36-T, Decision on interlocutory appeal, 11 December 2002.
(11) Brdjanin, supra, at paragraph 36: The Appeals Chamber is of the
view that society’s interest in protecting the integrity of the
newsgathering process is particularly clear and weighty in the case of
war correspondents. Wars necessarily involve death, destruction, and
suffering on a large scale and, too frequently, atrocities of many
kinds, as the conflict in the former Yugoslavia illustrates. In war
zones, accurate information is often difficult to obtain and may be
difficult to distribute or disseminate as well. The transmission of
that information is essential to keeping the international public
informed about matters of life and death. It may also be vital to
assisting those who would prevent or punish the crimes under
international humanitarian law that fall within the jurisdiction of
this Tribunal. In this regard, it may be recalled that the images of
the terrible suffering of the detainees at the Omarska Camp that played
such an important role in awakening the international community to the
seriousness of the human rights situation during the conflict in Bosnia
Herzegovina were broadcast by war correspondents. The Appeals Chamber
readily agrees with the Trial Chamber that war correspondents “play a
vital role in bringing to the attention of the international community
the horrors and reality of conflict.”30 The information uncovered by
war correspondents has on more than one occasion provided important
leads for the investigators of this Tribunal.31 In view of these
reasons, the Appeals Chamber considers that war correspondents do serve
a public interest.
(12) Id., paragraph 44.
(13)
http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990708/
obrien01.htm,Consolidated Appeals, 1998.
(14) In the United States, the right to freedom of speech for
convicts was upheld by the Supreme Court in Pell v. Procunier, 417 U.S.
(1974); see also Houchins v. KQED, Inc., 438 U.S. 1 (1978)
(15) O'Brien, supra, p. XX
(16) O'Brien, supra,., p. XXX
(17) Id., p. XXX
(18) Brdjanin, supra, paragraph 50: "In view of the foregoing, the
Appeals Chamber holds that in order for a Trial Chamber to issue a
subpoena to a war correspondent a two-pronged test must be satisfied .
First, the petitioning party must demonstrate that the evidence sought
is of direct and important value in determining a core issue in the
case. Second, it must demonstrate that the evidence sought cannot
reasonably be obtained elsewhere ."
(19) Registrar's decision, supra, note 1.
(20) Separate Opinion of Shahabudeen, supra, paragraph 8.
(21)Brdjanin, supra, majority opinion, paragraph 38: "Rather, it is
because vigorous investigation and reporting by war correspondents
enables citizens of the international community to receive vital
information from war zones that the Appeals Chamber considers that
adequate weight must be given to protecting the ability of war
correspondents to carry out their functions."
(22) Rule 63 (A) of the Rules of Detention.
(23) See, supra, footnote 2
(24) Amnesty International, Fair Trials Manual, International
Secretariate, London 1998. Cf Principle 19 of the Body of Principles:
"A detained or imprisoned person shall have the right to be visited by
and to correspond with, in particular, members of his family and shall
be given adequate opportunity to communicate with the outside world,
subject to reasonable conditions and restrictions as specified by law
or lawful regulations."
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