Case No.: IT-03-67-PT
BEFORE THE PRESIDENT OF THE INTERNATIONAL CRIMINAL TRIBUNAL
Judge Fausto Pocar, President
Mr. Hans Holthuis
11 April 2006
DECISION ON APPEAL AGAINST DECISIONS OF THE REGISTRY OF 20 AUGUST 2004 AND 30 JANUARY 2006
Counsel for the Prosecutor:
Ms. Hildegaard Uertz-Retzlaff
Mr. Daniel Saxon
Mr. Vojislav Seselj
Mr. Tjarda Eduard van der Spoel
1. On 28 February 2006, Vojislav Seselj ("Seselj") filed an appeal 1before me pursuant to Rule 64bis (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").2 In his Appeal, Seselj objects to a decision communicated to him on 20 August 2004, that following a visit to him by Tomislav Nikolic (“Nikolic”) in the United Nations Detention Unit (“Detention Unit”), Nikolic violated the terms of the Undertaking for Visitors to the United Nations Detention Unit ("Undertaking") he had signed on 30 July 2004 by revealing the name of a potential defence witness to the media. The Registry advised that due to this violation, visits from Nikolic would be denied until further notice. Seselj also objects to a decision of the Registry of 30 January 2006, by which the Registry refused to allow Nikolic to visit him in the Detention Unit, such refusal based on the violation of the Undertaking by Nikolic on 20 August 2004.
2. The decision of the Registrar appealed by Seselj is based on Rule 61(B) of the Rules of Detention which provides:
The Registrar shall refuse to allow a person to visit a detainee if he has reason to believe that the purpose of the visit is to obtain information which may be subsequently reported to the media. Rule 64bis (C) shall apply mutatis mutandis to decisions taken by the Registrar under this Sub-Rule.
Rule 64bis (C) provides that a detainee may request the President to reverse a denial of contact, and the President may decide to either review the Registrar’s decision, or if the President finds that the denial of contact by the Registry impugns the right of the accused to a fair trial, he may refer the request to the Trial Chamber to determine.
3. In his Appeal, Seselj does not deny that Nikolic disclosed to a journalist the name of a potential protected witness but claims that the fact was established erroneously, in that the Registrar failed to take into account that Nikolic had no intention of breaching his Undertaking in disclosing the name. He claims that Nikolic was answering questions of a journalist about his visit and in addition to the usual information he mentioned that he had met the potential witness who was his friend. He claims that at that time Nikolic did not know that the person was a potential witness, or a protected witness and he did not reveal his name “to reveal an allegedly official secret".3 Seselj claims, therefore, that the conclusion of the Registry that Nikolic came to visit him at the Detention Unit with the intention of acquiring information to disclose “to the media is presposterous”.4 Against this backdrop, Seselj claims that the Registry has no basis to suspect that Nikolic would on future visits obtain information for the purposes of reporting it to the media.5
4. On Appeal, Seselj says that in its letter of 20 August 2004, the Registrar informed him that he would be permitted to nominate two members of the Serbian Radical Party ("SRS") to visit him at the UNDU, but that the Registry is refusing to allow him to nominate two members by advising in its decision of 20 January 2006, by reference to its decisions of 20 August 2004, that Nikolic would not be permitted visits to him.6 Seselj claims that he and not the Registry is authorised to choose the two members of the SRS to visit him and that the Registrar’s decision denying his visits is an abuse of his authority.7
5. In its response, the Registry refers to Nikolic’s violation of the Undertaking following his visit on 5 August 2004 and claims that that violation, in conjunction with his prominent status in the SRS is a reasonable basis for it to conclude that the purpose of his visit to Seselj is to obtain information which may then be reported in the media.8 The Registry says that it recognises the legitimate interest of Seselj in communicating with members of the SRS and in this regard it has allowed him to nominate two members of the SRS to visit him at the Detention Unit. However, it considers that "the Tribunal’s interest in ensuring the safety of witnesses, the security and good order of the UNDU (Detention Unit), and the administration of justice, justify refusing" to allow Nikolic to visit the Detention Unit.9
6. On the basis of the above, I am not satisfied that the Registrar acted improperly in placing a ban on visits from Nikolic to Seselj. The language of Rule 61(B) is mandatory, the Registrar "shall" refuse to allow visits to detainees if he considers that the purpose of the visit is to acquire information to be reported in the media. Accordingly, provided the Registrar has a reasonable basis for considering that the purpose of a visit is to obtain information to report in the media he must prohibit the visit. In this case, I am satisfied that the basis of the Registrar’s conclusion was a reasonable one. Nikolic had violated his undertaking by reporting to the media on his visit to Seselj and not only did he reveal the name of a protected witness in that interview, albeit allegedly erroneously, but he also made reference to the health of Seselj and another detainee knowing that in doing so he was in violation of other provisions of the Undertaking. Indeed, in answering questions about the health of Seselj in the 7 August 2004 edition of the Vecernje Novosti newspaper Nikolic stated “Vojislav Seselj weighs 112 kilograms and is very fit. But I cannot talk about his health and certain other matters". However, when asked about another detainee he reported that he "looks very well and is obviously fit for trial". The deliberate disclosure of this information, after acknowledging that he was not permitted to discuss such issues, further supports the reasonableness of the Registrar’s conclusion that the purpose of Nikolic’s visit is to obtain information to disclose to the media.
7. For the foregoing reasons the Appeal of Seselj is dismissed.
Done in English and French, the English version being authoritative.
Done this 11th day of April 2006,
At The Hague,
Judge Fausto Pocar
[Seal of the International Tribunal]
1. Appeal by Professor
Vojislav Seselj Against the Registry Decisions
of 20 August 2004 and 30 January 2006, 28 February
2. IT38/Rev.9, 21 July 2005.
3. Appeal, page 4.
5. Ibid., page 5.
6. Ibid., page 9.
8. Registry Submission Pursuant to Rule 33 of the Rules of Procedure and Evidence Regarding Vojislav Seselj’s request to Reverse the Registry’s Decision Refusing the Visit of Tomislav Nikolic, 17 March 2006 ("Response").
9. Ibid., para.7.