Todorovic Case: Rejected Defence Motion For 'Evidentiary Hearing'

More than four months after Stevan Todorovic was allegedly kidnapped in Serbia by four armed men and handed over to SFOR troops across the River Drina in Bosnia, his Defence submitted a "Motion for evidentiary hearing on the facts and circumstances of the arrest, detention and delivery of the defendant to the jurisdiction of the Tribunal". After a short hearing last Thursday the request was rejected by the Trial Chamber III (Presiding Judge Richard May; Judges Mohamed Bennouna and Patrick Lipton Robinson).

Todorovic, also known as "Stiv" (Steve) or "Monstrum," was indicted for alleged crimes committed in Bosanski Samac, Bosnia, where he was chief of police during the war. He was arrested on 27 September 1998 in what was officially termed a "Stabilisation Force (SFOR) operation in Northern Bosnia." During his first appearance before the Tribunal, on 30 September, Todorovic said he was "unfit to enter a plea" having allegedly received a Blow to his head during his apprehension inside the Federal Republic of Yugoslavia (FRY) (see Tribunal Update No. 95).

His counsel at the time, Goran Neskovic, told journalists after the hearing that four disguised and armed persons who spoke Serbian language had captured Todorovic somewhere on Mt. Zlatibor in Serbia, where he was hiding. According to Neskovic, they took him across the Drina river aboard a launch to Bosnia where he was handed over to SFOR troops.

The request for "evidentiary hearing on the facts and circumstances of the arrest" was based on the version of events of 27 September 1998 as narrated by Neskovic. In his motion, Todorovic's current Defence counsel, American, Deyan Ranko Brashich, stated that Tribunal and its Prosecutor "are duty bound to adhere to internationally accepted norms of behaviour".

"In performing their assigned task, [the Tribunal] must not and may not violate any law," Brashich said. Whether acting independently or in concert with others, the Prosecutor "may not act to deprive an accused [person] of certain inalienable rights as to person or property, including the right not to be illegally kidnapped or illegally abducted," the Defence argues.

In line with this argument, Todorovic's counsel then requested the Trial Chamber issue an Order "directing the Prosecutor to make available to defence all documents and things in the Prosecutor's files as to manner, method and individuals who detained, arrested and delivered the defendant to the jurisdiction of the Court." If the Prosecutor fails to prove that the arrest, detention and delivery were "just and proper and in accordance with customary international law, practice and usage," the indictment should be dismissed and the accused released - his Defence argues.

While the Defence Motion included an excerpt from a report on Todorovic's capture written by Tom Walker of The London Times and published on November 11, it did not include a statement from the indictee himself.

According to Walker, "Western diplomatic sources confirmed that a war crimes suspect arrested in Bosnia in September was actually seized by SAS troops inside Serbia. The regiment's most daring snatch operation to date sent a clear warning to President Milosevic that his country was no longer a haven for those wanted for trial in The Hague." In his article, Walker further mentions "American sources in Serbia," who allegedly "admitted that their elite Delta units were involved in an operation that had crossed the Drina." Finally, Walker also refers to "angry relatives of Mr Todorovic [who] told The Times that [the accused] was dragged from his cabin, gagged, blindfolded and beaten, before being bundled into a black station wagon and driven across the Drina." He was then transferred by helicopter to Tuzla Airbase, where an American officer reportedly told him: "So, you thought you were safe over there, did you?"

The Prosecution's response to the Defence Motion claims attributed to unnamed "Western diplomatic sources", to "angry relatives," and to other unnamed persons in Tom Walker's article, argues that these are at best "quadruple or quintuple hearsay." "Even if all the facts suggested in the attachment to the motion were assumed to be true, and were taken at their highest," the Prosecutor continues, "they would not justify the dismissal of the indictment against the accused or his release. Accordingly, there is simply no need to hold any enquiry into the facts (...) and the accused's Motion should be dismissed in limine on the ground that it discloses no serious question to be tried."

Furthermore, the Prosection argued, Walker's article "contains no reference to any conduct whateover on the part of the Prosecutor (...) and no reference to the Prosecutor having acted with anyone in relation to any activity in the territory of the FRY in connection with the detention of the accused." The Office of the Prosecutor (OTP), it is claimed in their reply to Defence Motion, "had no prior information of any proposed operation to secure the arrest of the accused. The first knowledge of the matter was on 27 September 1998, when it was informed that SFOR had detained the accused and had him in custody in northern Bosnia. Investigators from the Office of the Prosecutor immediately went to Tuzla Airbase where they effected his arrest and followed all procedures mandated by the Rules."

While the OTP denied any interest or involvement in events prior to 27 September, it nevertheless is unconvinced that the detention of Todorovic "violated any right of the accused to liberty or security of person." Since it is not inconceivable that similar cases may come up in the future, it may be of interest to note the way the OTP formed the arguments for its response:

"The circumstances assumed in this case are entirely distinguishable from a case where an accused, who is subject to the protection of the laws of one country, is forcibly removed, contrary to the laws protecting him or her, into the jurisdiction of another country's legal system. No State has the power to 'protect' an accused from the processes of the Tribunal. There are no 'safe havens' from the Tribunal. In particular, an accused's right to security of person does not confer a right to seek protection from the processes of the Tribunal by remaining in a country that the accused can confidently expect will fail to fulfil its obligations of co-operation with the Tribunal.

"It would be legally inconsistent, and against common sense, if an individual right could be deducted from a State's reluctance or failure to comply with its international obligations. Here, the Tribunal had indicted the accused, and had issued warrants for his arrest. There was lawful authority for his detention by the authorities of any State. He had no legal right to be arrested only by the authorities of the FRY. He had no claim to be free from the detention of the Tribunal anywhere in the world. Thus, even if the forcible removal of the accused from the FRY as part of his transfer to the Tribunal violated rights of the FRY under international law, it cannot be said to have violated any right of the accused to liberty or security of person."

At a public hearing on the Defence Motion held last Thursday, the judges were only interested in two material facts: whether the OTP, or any other person attached to the Tribunal, had taken part in an illegal activity; and whether during the execution of arrest the rights of the indicted person were respected. Nancy Paterson from the OTP, categorically denied that her office may have taken any part, whether in a "conspiracy" against the indictee, or in the violation of his rights.

The Trial Chamber denied the Defence Motion and announced that its reasons for refusal will be published later.

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