Date: 23 November 2006
BEFORE THE PRESIDENT OF THE INTERNATIONAL CRIMINAL TRIBUNAL
Judge Fausto Pocar, President
Registrar: Mr. Hans Holthuis
Decision of: 23 November 2006
DECISION ON APPEAL AGAINST THE REGISTRAR’S DECISION OF 19 OCTOBER 2006
Counsel for the Prosecutor:
Ms. Hildegard Uertz-Retzlaff
Mr. Daniel Saxon
Mr. Ulrich Mussemeyer
The Accused (representing himself):
Mr. Vojislav Šešelj
Mr. David Hooper
Mr. Andreas O’Shea
1. Vojislav Šešelj ("Šešelj") has filed an Appeal before me pursuant to Rule 64(C) of the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal ("Rules of Detention") against the Registrar’s Decision of 19 October 2006. At my request, the Registrar submitted a Response to the Appeal. 2. In the Impugned Decision, the Registrar imposed restrictions on Šešelj’s right to receive visits from his wife for a period of 30 days pursuant to Rule 64 of the Rules of Detention. The restrictions followed an allegation made by the Prosecution that he disclosed the names of some eight protected witnesses through his wife. In his Appeal, Šešelj claims that the allegation of the Prosecution should have been verified and that he should have been granted an opportunity to respond to it prior to the issuing of the Impugned Decision. He says that the failure to do so denied him the opportunity to petition the President to deny the request of the Prosecutor pursuant to Rule 64(C). He further claims that he has never been given a list of the names of witnesses to whom he was required to sign a non-disclosure obligation and therefore it was not possible for him have wrongly disclosed the names of any witnesses. Finally, Šešelj questions the propriety of the Registrar filing his Decision confidentially. 3. In his Response, the Registrar states that on 13 October 2006, the Prosecutor "submitted a Highly Confidential Internal Memorandum" requesting pursuant to Rule 64(A)(ii), (iii) and (iv) of the Rules of Detention that conditions be placed upon the contacts of Šešelj with his wife to make it impossible for information to be exchanged concerning witnesses. The Registrar claims that his actions were in conformity with Rule 64, which requires him to grant a request of the Prosecutor provided that he is satisfied that that request is "prima facie reasonable and legitimate". He says that as the Prosecutor’s request satisfied the requirements of Rule 64(A), his decision to grant the request was appropriate. The Registrar claims that in reaching the Impugned Decision, he "complied with the standard for administrative decision making". 4. Following the filing of Šešelj’s Appeal and the Response of the Registrar, the Prosecution advised the Registrar by memorandum on 14 November 2006, that it would not seek a continuation of the 30 day conditions placed on Šešelj’s contacts with his wife when those conditions expired. On 20 November 2006, the Acting Deputy Registrar advised Šešelj that the Prosecutor had not requested an extension of the restrictions imposed by the Impugned Decision and the restrictions were lifted from that day. 5. In light of the fact that the restrictions are no longer in force, Šešelj’s request that I reverse the Impugned Decision becomes moot. However, in this instance, I still consider it appropriate, in light of the complaints made by Šešelj, to consider whether the Registrar acted properly in issuing the Impugned Decision. 6. The relevant part of Rule 64 of the Rules of Detention provides as follows: (A) The Prosecutor may request the Registrar or, in cases of emergency, the Commanding Officer, to prohibit, regulate or set conditions for contact between a detainee and any other person if the Prosecutor has reasonable grounds for believing that such contact: …….. iv. could be used by the detainee to breach an order for non-disclosure made by a Judge or a Chamber pursuant to Rule 53 or Rule 75 of the Rules of Procedure and Evidence. ….. (C) A detainee may at any time request the President to deny or reverse a request made by the Prosecutor under this rule. 7. In his Response, the Registrar says that the language of this provision leaves him with "little or any, discretion" to deny a request of the Prosecutor made pursuant to this Rule. He says that it is the Prosecutor and not the Registrar who must have reasonable grounds for believing that contact between a detainee and a certain individual will result in one of the circumstances identified in Rule 64(A) and "[i]n the absence of manifest unreasonableness, the Registrar must rely on the assessment of the Prosecutor when the said provision is invoked by her". In the instant case, the Registrar claims that the Prosecutor based her request on what she considered to be credible information that Šešelj had disclosed the identity of eight protected Prosecution witnesses to his wife, "with an instruction to take action to threaten and intimidate these witnesses". As such, he claims that the requirements of Rule 64 were satisfied and he was obliged to take action and issue the Impugned Decision. 8. The Registrar says that the specific measures imposed by the Impugned Decision, "namely live monitoring of the communication between the Accused and his wife" was imposed to address the Prosecutor’s concerns while placing minimum restrictions on the rights of Šešelj. He says that the ability of Šešelj to communicate with others, and to receive visits was not affected by the Impugned Decision. With respect to the complaint of Šešelj that the Impugned Decision was filed confidentially, the Registrar claims that this was necessary to protect the confidentiality of the information contained in the request of the Prosecutor, which had been submitted to the Registrar on a confidential basis. 9. The Registrar also submits that in issuing the Impugned Decision he acted in accordance with the principles of natural justice and procedural fairness. He served Šešelj with a copy of the Impugned Decision in a language that he understands on the date it was issued and "well before he received a visit from his wife". He also submits that, contrary to the claim of Šešelj, he was not required to inform him of the Prosecutor’s request under Rule 64(A). Finally, he says Šešelj was not deprived of his right to request the President to deny or reverse the Prosecutor’s request as Šešelj has filed this Appeal before the President. 10. Having considered the Response of the Registrar, I make the following observations. I agree that it is for the Prosecutor to assess, in making such a request to the Registrar, whether there is a reasonable basis for conditions to be attached to an accused’s contacts with others. However, the Registrar does have an obligation to satisfy himself that the request of the Prosecutor is not arbitrary and is made on the basis of credible information. It is not sufficient for the Registrar to take any such Request made by the Prosecutor at face value, rather the Registrar has an obligation to ensure that any request which would result in the infringement of the rights of the accused is justified and made on reasonable grounds. Further, where the Prosecutor’s request invokes an allegation of a breach of an order for protective measures issued by a Chamber, such an allegation should simultaneously be brought by the Prosecutor to the attention of the relevant Chamber. A failure of the Prosecutor to advise the Chamber of such an allegation may be cause for the Registrar to question the reasonableness of the request. 11. While I accept that the Registrar was not required to inform Šešelj of a request made directly to him and under Rule 64, it is only when the request is made to the Commanding Officer of the United Nations Detention Unit that the accused is required to be informed, I do not consider that it is consistent with principles of natural justice not to have advised Šešelj of the allegation brought and allowed him an opportunity to respond. If an accused is required to be so advised when a request is made urgently to the Commanding Officer, I can see no reason why this could not apply as well when a request is made on a less than urgent basis to the Registrar. It is only by informing an accused and allowing him or her an opportunity to be heard that the Registrar can make a fully informed decision as to the reasonableness of the request made. 12. I also accept that where a decision of the Registrar would reveal confidential information provided to him by the Prosecutor as the basis for her request, such a decision should be filed confidentially. However, I do not consider that the Registrar’s Impugned Decision did disclose any confidential information. The Impugned Decision did not reveal the source of information that Šešelj had allegedly disclosed the names of protected witnesses. The Impugned Decision merely recorded the fact that this was indeed the allegation made by the Prosecutor, based on what she considered to be credible information. It is for that reason that this decision will be filed publicly.
Disposition13. On the basis that the Impugned Decision has expired Šešelj’s Appeal is DISMISSED as moot and Order the Registry to publicly file the Impugned Decision. Done in English and French, the English version being authoritative.
Done this 23rd day of November 2006,At The Hague, The Netherlands.
Judge Fausto Pocar