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Brdjanin Case: 'Wrongly Entitled Motion' Dismissed

Tribunal Update 155: Last Week in The Hague (December 6-11, 1999)

Through the petition the former president of the Serbian Crisis Headquarters for Bosanska Krajina, demanded that the legality of his detention at The Hague be re-examined. Brdjanin based this request on a claim that the counts in the Hague indictment are not supported with sufficient evidence.

Brdjanin, a former member of parliament and deputy prime minister of Republika Srpska (RS), stands accused of crimes against non-Serbs in the area of Bosanska Krajina (north-western Bosnia). The Prosecutor alleges that the Crisis Headquarters played a decisive role in the ethnic cleansing of that area. Brdjanin was arrested during an SFOR operation in Banjaluka on July 6 1999.

General Momir Talic, a former member of the same Crisis Committee, who was arrested in Vienna at the end of August this year, is also named on the indictment for Bosanska Krajina.

In the petition for a writ of habeas corpus, defence counsel John Ackerman said on November 30 that Brdjanin had been detained under and by virtue of an indictment against him, but that the material filed by the prosecutor in support of that indictment did not provide a prima facie case justifying the detention.

The prosecutor had announced in October that she intended to amend the indictment. Ackerman contended that by seeking amendments the prosecutor had in effect conceded the above-mentioned point of the defence.

Brdjanin's counsel therefore requested a hearing on a writ of habeas corpus and a presentation by the prosecutor of the evidence in its possession, if there is any, supporting a prima facie case.

However, the Trial Chamber and subsequently the Appeals Chamber has already rejected Brdjanin's previous motions to dismiss the indictment and release him from detention.

"The validity of the indictment against Brdjanin... has been approved", therefore, the fact that that the Prosecution applied to amend the indictment "is of no relevance" to the issue of the legality of detention, the prosecutor argued. An amended indictment was lodged on November 19 and awaits the decision of the reviewing judge.

"The purpose of this petition is yet another attempt to force the Trial Chamber to reconsider the evidence placed before the confirming judge", the prosecution said in a response to Brdjanin's latest request.

In his decision of December 8, Judge Hunt agreed with the prosecution's point. The Judge concluded that the detention of the accused is lawfully based upon the arrest warrant - which was lawfully based upon the confirmation of the indictment.

The fact that the prosecutor subsequently applied to amend the indictment does not mean that the charges in the original indictment do not provide a basis detention, said Hunt.

Given the Brdjanin request was entitled a "petition for a writ of habeas corpus", Judge Hunt chose to tackle the inappropriateness of such motions.

"A writ of habeas corpus is one of the old forms of prerogative writ available in certain common law countries", but "prerogative writs no longer exist, as such, in most of those countries" having been replaced by orders of a different nature, wrote Hunt in his decision.

He noted that given the procedure for issuing a writ of habeas corpus is not therefore available he had decided to treat the petition as a "wrongly entitled motion". Judge Hunt therefore treated the petition as a motion pursuant to Rule 73 of the Statute of the Tribunal.

Brdjanin's defence submitted that the Appeals Chamber of the ICTR had held that habeas corpus is a proper remedy by which a person may challenge the lawfulness of his detention. Judge Hunt acknowledged "the fundamental right" of a detainee to have the lawfulness of his detention reviewed by the judiciary.

But he noted that the "Rwanda decision gives no support to such a challenge being made in either ICTR or ICTY by way of a writ of habeas corpus".

"The Tribunal "certainly does have both the power and the procedure to resolve a challenge to the lawfulness of a detainee's detention", said Hunt explaining that this can be done "pursuant to Rule 72 (if the application amounts to a challenge to jurisdiction) or Rule 73 (if it does not)."

In the case of another accused, Stevan Todorovic, a petition for a "habeas corpus writ" was also considered simply as a request to examine the legality of detention.

Todorovic's laywer was the first defence counsel to submit his requests for the examination of the legality of the detention in the form of writ of habeas corpus following that legal remedy mentioned in the decision by the Appeals Chambers ICTR in the Jean-Bosco Barayagwiza case.