CHAMBERS

CHAMBRES

The Hague, 20 October 2000
XT/ P.I.S./ 536-e

On 18 October 2000, Trial Chamber III (Judges Robinson (Presiding), Hunt and Bennouna) issued its Decision on the accused Stevan Todorovic’s Motion for judicial assistance, in which it granted the Motion.

In September 1998, Stevan Todorovic was detained by SFOR and transferred into the custody of the Tribunal in The Hague the same day. On 30 September 1998, at his initial appearance, the accused pleaded not guilty to all counts charged against him.

On 24 November 1999, the defence for Todorović filed a "Notice of Motion for Judicial Assistance", in which the accused sought an order from the Trial Chamber requesting the assistance of SFOR and other military and security forces operating on the territory of Bosnia and Herzegovina, to provide documents and witnesses to the defence in connection with the arrest and transfer of Todorović for use in evidentiary hearings to be held on the legality of his arrest.

On 1 June 2000, the Trial Chamber ordered that the defence Motion be served on SFOR and scheduled a hearing on the Motion for 23 June 2000. Following a request for postponement in a letter from the SFOR Legal Advisor of 16 June 2000, on 21 June 2000, Trial Chamber III ordered that SFOR file its response by 28 June 2000.

On 7 July 2000, the Trial Chamber granted SFOR’s request, dated 28 June 2000, seeking an extension of time in which to file a written response to the motion for judicial assistance and ordered that a hearing on the application be held on 25 July 2000. SFOR submitted its views concerning the Motion for judicial assistance on 10 July 2000 and informed the Trial Chamber on 13 July 2000 that it would not be represented at the hearing on the application.

The hearing on the application took place on 25 July 2000.

In its Decision of 18 October 2000, Trial Chamber III granted Todorović’s Motion. The Trial Chamber ordered that:

1. "SFOR and its responsible authority, the North Atlantic Council", as well as all the "States participating in SFOR…disclose to the Defence for Stevan Todorovic" the following documents, items and material "relating to the apprehension of the accused" by 17 November 2000:

b) the original or a copy of all audio and video tapes made by SFOR on 27 September 1998 of the initial detention and arrest of the accused , Stevan Todorovic; and

c) copies of all SFOR pre- and post-arrest operations reports relating to the arrest and detention of the accused, Stevan Todorovic; and

d) the identity, if known, of the individual or individuals who transported the accused, Stevan Todorovic, by helicopter to the Tuzla Air Force base, Bosnia and Herzegovina, on or about 26 and 27 September 1998; and

e) the identity, if known, of the individual or individuals who placed the accused, Stevan Todorovic, under arrest and who served the arrest warrant issued by the International Tribunal on the accused, Stevan Todorovic, on or about 28 September 1998."

2. a subpœna "be issued in due course to General Shinseki…requiring him to provide evidence in the ongoing evidentiary hearing in this matter at a date and time to be specified". General Shinseki was the Commanding General of SFOR at the time of Todorovic’s detention and transfer. However, he "is to be treated qua individual in respect of any event that he has personally witnessed, even if observed while performing his official functions. Thus he is compellable not in his role as Commanding General of SFOR but as an individual with personal knowledge of the events of which complaint is made".

3. The Trial Chamber’s orders were made pursuant to Rule 54 bis (E)(iii), in accordance with which SFOR, as well as a State participating in SFOR, "may, within fifteen days of service of the order, apply by notice to the Judge or Trial Chamber to have the order set aside, on the grounds that disclosure would prejudice national security interests".

Judge Patrick Robinson attached a Separate Opinion to this decision.

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Copies of the full text of the decision are available on request.