BEFORE THE PRESIDENT OF THE ICTY

MOTION TO THE PRESIDENT FOR REVIEW OF THE DEPUTY REGISTRAR'S RENEWED DECISION TO DENY SLOBODAN MILOSEVIC'S RIGHT TO CONTACT WITH THE OUTSIDE WORLD

The Accused

Mr. Slobodan Milosevic

MOTION TO THE PRESIDENT FOR REVIEW OF THE DEPUTY REGISTRAR'S RENEWED DECISION TO DENY SLOBODAN MILOSEVIC'S RIGHT TO CONTACT WITH THE OUTSIDE WORLD

The present motion requests the President's intervention, on the basis of his powers set out at Rule 19 of the Rules of Procedure and Evidence, to overturn the Deputy Registrar's decision, dated December 11, 2003, which was renewed on January 8^{th, 2004} for a period of thirty days, from January 10^th, 2004, to ban communications between Slobodan Milosevic and all persons, with the exception of immediate family, consular or diplomatic representatives, and legal counsel.

The Deputy Registrar's decision was renewed on February 6^th 2004, and will be in effect thirty days starting February 10^th, 2004. The latest decision provides an exception to the general prohibition of contact between Slobodan Milosevic and the outside world: he is permitted contact "reasonably necessary" to the preparation of his defence. It is unclear who will determine the type of contact to be deemed 'reasonable' or 'necessary', or upon which evidentiary standard it will be based.

The Deputy Registrar's decision is based on his contention that the ICTY's mandate, and function is to assist in the "restoration and maintenance of peace and security in the former Yugoslavia", which mandate would be "frustrated" by "deleterious media coverage". The Deputy Registrar claims, in addition, that:

"[T]he facilities provided by the Detention Unit are intended for the well-being of the Accused and not for purposes that frustrate the Tribunal’s function to assist in establishing peace and security in the former Yugoslavia and that the fact that a detainee at the Detention Unit has communicated with the aid of facilities provided by the Detention Unit to participate in an ongoing Serbian parliamentary elections campaign is such an occasion that is likely to frustrate the Tribunal’s mandate.

RECALLING ALSO that "widespread media attention and coverage of the fact that an indictee for genocide, crimes against humanity and war-crimes such as the Accused is facilitating, with ease, the ongoing Serbian parliamentary elections campaign" was considered in the Decision when assessing factors that would likely frustrate the Tribunal’s mandate"

A. The Deputy Registrar's decision is based on demonstrably political considerations, is without legal basis, and therefore ultra vires his jurisdiction as provided by the Statute and relevant rules and regulations;

B. The Deputy Registrar was previously the executive director of an institution that has contributed to the Prosecution's case against Slobodan Milosevic, his decision therefore creates a reasonable apprehension of bias;

C. The Deputy Registrar's decision constitutes an arbitrary and illegal exercise of the discretion afforded by Regulation 33 (B) of the Regulations to Govern the Supervision of Visits to and Communications with detainees (the "Regulations") and Rule 66 (B) of the Rules of Detention, and should therefore be overturned;

D. The Registrar's decision violates the principle of equality of arms. The Registry permits, finances and otherwise aids and encourages unrestrained access to the media by the Prosecutor, while denying any such contact on the part of an accused person. The Registrar's decision should therefore be overturned;

E. The Registrar's decision violates the fundamental principle of freedom of expression, has no legitimate aim, no rational link to its stated objective, and is unnecessary. The Registrar's decision should be overturned;

F. The Registrar's decision violates the fundamental, universally recognized principle of presumption of innocence, and should therefore be overturned;

G. The Registrar's decision is tantamount to ordering the isolation of President Milosevic, and should be overturned.

1. On the 28^th of January 2004, I, Barry Lituchy, Director of the Jasenovac Research Institute, a non-governmental organization, applied, in accordance with the applicable rules and procedural requirements, for a visit with President Milosevic, who had also requested to meet with Mr. Lituchy[1].

2. The Jasenovac Research Institute is a U.S. accredited 501c-3 non-profit human rights organization dedicated to the study of genocide and human rights in the Balkans, beginning with the Holocaust in 1941-1945.

3. I requested a visit in order "to investigate and evaluate the respect of human rights of Mr. Milosevic in U.N. detention and on trial at the ICTY in (his) capacity as a Director and current C.E.O. of the Jasenovac Research Institute."

4. On the 29th January 2003, I received a faxed denial of my request for a visit, by the acting chief of OLAD. The letter states: "Please be informed that Mr. Milosevic's communication privileges are currently restricted pursuant to the Registrar's decision dated 11 December 2003, by which all visits between the Accused and any persons other than immediate family, legal counsel and diplomatic or consular representatives were prohibited for a period of thirty days, renewed on 8 January 2004 for another thirty days. This decision was taken in view of the fact that some detainees used the facilities of the Detention Unit to make political statements to their political parties and supporters during the election campaign in Serbia and Montenegro."

5. Other reasons were invoked by the Registry to deny my request for a visit. However, in light of the broad nature of the non-communication order, these reasons could not have been taken into account by the Registry in its decision to deny the visit, nor are they relevant to the present application.[2]

The Deputy Registrar's decision is based on demonstrably political considerations, is without legal basis, and therefore ultra vires his jurisdiction as provided by the Statute and relevant rules and regulations

6. The Deputy Registrar's decision is fatally flawed from the outset, as he has based his decision upon a misstatement of law, in particular with respect to the nature of the ICTY's "function" or "mandate". In effect, the decision states that this "function" or "mandate" consists in assisting in the "restoration and maintenance of peace in the former Yugoslavia". The Deputy Registrar refers to Security Council Resolution 827 in support of his claim. Nowhere in Resolution 827 is the restoration and maintenance of peace in the former Yugoslavia set out as a "function", much less as "the mandate" of the ICTY: the reference to peace is, upon a plain reading of the Resolution, simply a desired result of the ICTY's projected activities. The ICTY's function, according to Resolution 827, is to carry out trials, and it follows that those trials must be held in accordance with the principles of international criminal law as well as relevant international human rights instruments. It is telling that the ICTY's Statute does not refer to any "peacekeeping" function or mandate, but rather sets out a judicial function.

In fact, Resolution 827 clearly states that the sole function of the ICTY is to carry out trials.[3]

7. The legality of the ICTY will not be relitigated here, but suffice it to indicate that reference to the "restoration and maintenance of peace in the former Yugoslavia" in Security Council Resolution 827 was made merely in order to assert jurisdiction: as the Security Council possesses no jurisdiction under the United Nations Charter to establish courts, it relied upon its power to act on matters of peace and security. It does not follow that the ICTY's mandate or scope is in any way equivalent to that of the United Nations Security Council.

8. The preoccupations expressed by the Deputy Registrar are purely political in nature, and are not rationally linked to the objectives-- however mistaken-- invoked. There is no plausible link between the fact-- inexplicably asserted by the Deputy Registrar-- that "the results of the Serbian parliamentary elections held on 28 December 2003, indicate that the political party of the Accused won 22 seats of the 250 seat National Assembly of the Republic of Serbia" and the mere hypothesis that adverse media would somehow ensue, thus "frustrating" the ICTY's "mandate" and requiring the imposition of a sweeping ban of communications, in violation of Slobodan Milosevic's most fundamental human rights.

9. Slobodan Milosevic is the legally elected President of the Socialist Party of Serbia. It was his right, pursuant to Serbian law, to stand as a candidate in the Serbian parliamentary elections held on December 28^th, 2003. No provision contained in ICTY documents, nor in international legal instruments, prevent him from standing as a candidate in a democratic election, as the letter and spirit of international law presumes the innocence of an accused person until proof of guilt, beyond a reasonable doubt. The Deputy Registrar's decision betrays its political nature by focusing--exclusively-- on the Serbian electoral process.

10. The Deputy Registrar's decision constitutes an attempt to influence the political process of a sovereign nation, is contrary to the most basic United Nations principles with respect to state sovereignty and constitutes an abuse of administrative power. That Mr. Milosevic could participate in the electoral process is denounced by the decision as "frustrating" the ICTY's "mandate" to assist in the restoration of peace and security in the former Yugoslavia. Yet, as a matter of law, President Milosevic is committing no offence, and is participating, as is his right-- and responsibility as the head of a legitimate political party-- in the democratic process of a nation to the highest office of which he was thrice elected. As a matter of fact, elections have taken place, and the Deputy Registrar has not adduced any evidence to suggest that these elections, or Mr. Milosevic's participation in them, have had an adverse effect upon "peace and security in the former Yugoslavia".

11. If the ICTY is to be considered a judicial institution, it follows that its function should be to carry out fair trials, weighing relevant and admissible evidence, while respecting the internationally recognized rights of accused persons. Such an institution should carry out this sole function without taking into account any political considerations. The imposition of a ban on communications which cripples a political party's ability to communicate with its legitimate leader is at odds with any conception of a judicial function. It is not within the province of an administrative organ of a judicial body to render decisions which are political in nature, and interfere with the political process of a sovereign nation.

12. The Deputy Registrar was previously the executive director of an institution that has contributed to the Prosecution's case against Slobodan Milosevic, his decision therefore creates a reasonable apprehension of bias.

13. From February 2001 to August 2003, Deputy Registrar David Tolbert, the signatory of the initial ban on communications, issued on 11 December 2003, as well as the subsequent renewals of the order, was executive director of the Central and East European Legal Initiative, 91% of whose funding is provided by the government of the United States[4].

14. In his capacity as executive director of CEELI, Mr. Tolbert contributed an expert report and provided a witness for the Prosecution, Dr. Patrick Ball, with the stated objective of refuting a portion of Slobodan Milosevic's defence theory. A December 13^th, 2002 CEELI press release[5] clearly demonstrates Mr. Tolbert's partiality with respect to President Milosevic:

"(…)Testifying in the trial of Slobodan Milosevic, Ball said that a joint American Bar Association Central and East European Law Initiative AAAS report submitted to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia refutes Milosevic's claim that NATO or the Kosovo Liberation Army was responsible for the tragedy.

"A critical part of the Tribunal's mission is seek accountability and reconciliation by letting the victims speak the truth. This report and testimony gives voice to thousands of Kosovar Albanians, who have now been heard regarding these terrible events." said David Tolbert, Executive Director of ABA/CEELI.

The ABA/CEELI-AAAS report, submitted to the Office of the Prosecutor in January 2002, documents the deaths of approximately 10,500 Kosovar Albanians from March to June,

1999. With a groundbreaking combination of human rights investigative interviewing and cutting-edge statistical analysis, this report answers questions about the number of ethnic Albanians killed in Kosovo, the cause of those deaths, and the reasons for the massive refugee flow from Kosovo in 1999."

15. For reasons unknown, the ICTY's Registrar did not personally issue the decision to ban communication[6], nor he did not renew it. The Registrar appears to have delegated his authority to the Deputy Registrar. While the ICTY Rules of Procedure and Evidence permit such delegation of administrative authority, considering Mr. Tolbert's active involvement in the prosecution of Mr. Milosevic, a decision signed by him should be overturned, as it raises a reasonable apprehension of bias.

16. The Deputy Registrar's decision to suspend visits is arbitrary and constitutes an abuse of discretion:

c) the decision arbitrarily and unjustifiably targets persons and groups entirely unconnected to those allegedly in breach of rules governing visits and communication with detainees;

d) the decision is apparently unfounded, as no evidence is provided to support the Deputy Registrar's claim of transgression of the rules.

17. Regulation 33 (B) of the Regulations and Rule 66 of the Rules of Detention attribute discretion to the Registrar to deny visits to detainees. This discretionary power constitutes an exception to the general rule which provides that detainees have the right to meet with the person of their choice, subject to security considerations.

18. In absence of an express provision to the contrary, judicial review lies against administrative decisions before the ICTY[7].

19. This general principle is enunciated in Rule 92 of the Standard Minimum Rules for the Treatment of Prisoners[8]:

92. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.

20. The ICTY Registrar's discretion is set out as follows in Rule 66 (B) of the Rules of Detention and 33 (B) of the Regulations:

(B) Permission may be denied if the Registrar has reason to believe that the purpose of the visit is to obtain information which may be subsequently reported in the media.

21. The Registrar may only deny visits if he has "reason to believe" that the purpose of the visit is that of obtaining information which may subsequently be reported in the media. Nowhere in the Deputy Registrar's decision to renew the ban on communications is it alleged that the purpose of the potential visits or telephone conversations would be to obtain information that might subsequently be reported to the media. It was not alleged that there was reason to believe that the purpose of Mr. Litchi’s visit was to obtain information that might subsequently be reported to the media.

22. The Deputy Registrar has not stated any compelling reason to believe that any person will apply for a visit with President Milosevic "for the purpose" of obtaining information which may subsequently be reported in the media. Stating the fact that elections have taken place in Serbia on the 28^th of December, and asserting the likelihood of "post-elections political activities" does not constitute a reason to believe that rules would be transgressed;

23. In his decision to renew the communication ban for an additional 30 days, the Deputy Registrar fails to consider the fact that no allegation was made of any transgression, or attempt to transgress the terms of his previous order. Instead, he refers to the alleged transgression which formed the factual basis of his previous order. This allegation, insofar as it is included in the decision to renew a sweeping restriction of communications, is at the very least, misleading.

24. The second renewal of the order acknowledges that Slobodan Milosevic has respected the two previous bans on communication. In the twin order restricting the communications of Vojislav Seselj, it is alleged that Dr. Seselj did not respect the terms of the previous order, that his position is "defiant". Yet in both cases, the order is renewed, despite the fact that in one case trangression is alleged, and in the other it is acknowledged that the order has been respected. In light of this inexplicable discrepancy, it is impossible to conclude that the Deputy Registrar considered transgression of the rules as relevant to his decision to extend, yet again, the order to severely restrict communications.

25. The Deputy Registrar has simply banned, for a total of 90 days, which he reserves the right to review and renew, any person, with very limited exceptions, from visiting President Milosevic although those unknown persons have not yet expressed the desire to visit him, much less the intention of gathering information for the purposes of future publication in the media.

26. The decision is ultra vires the discretionary authority provided by the Rules of Detention. The Decision is overbroad as to targeted individuals and groups.

27. The Deputy Registrar has misstated the Rule in his decision. In it he writes that:

"it follows from this Rule and the principle on which it is founded, that communication between a detainee and others may be prohibited if there are reasons to believe that such communications would lead to a detainee’s statements appearing in the media, particularly if the effect of such statements is to undermine the Tribunal’s mandate to assist in the restoration and maintenance of peace in the former Yugoslavia".

Such a patent misstatement of the rule creates a reasonable apprehension that the Registrar also errs in the actual exercise of his discretion.

The decision to renew the communication ban did not respect the principle of audi alteram partem nor did it respect procedural fairness;

28. All persons, with the exception of immediate family members, diplomatic or consular representatives and legal counsel have been banned from visits to President Milosevic for an additional thirty days. This restriction is imposed in addition to a communication ban in place since August 2003 targeting members of the SPS, Freedom Association and "associated entities". At no point was a representative of any targeted individual, nor Mr. Milosevic, called upon by the Deputy Registrar to provide a response to the charge of having "frustrated the mandate" of the ICTY. It is obvious that the Deputy Registrar could not do so: no member of the general public is even alleged to have breached the Rules. Yet the Deputy Registrar's decision arbitrarily bans any individual, with extremely limited exceptions, from visits to Mr. Milosevic.

29. The Deputy Registrar's decision alleges a breach of Rules before the first ban was imposed, and not while it was in force, by President Milosevic. At no time prior to the first decision, or its renewal, was he given an opportunity to respond to the Registrar's allegations that he had violated the rules and regulations of the ICTY. The Deputy Registrar has thereby violated the most basic principles of natural justice.

30. The Deputy Registrar has not afforded an opportunity to Mr. Lituchy, or members of the general public, also subject to the decision to deny visits to President Milosevic, to respond to his allegations before deciding to deny requests for visits an additional 30 days. The Registrar's decision therefore violates the most basic tenets of natural justice.

31. The Registrar's failure to afford an opportunity to respond to non-confidential evidence has been held by the President of the ICTY to represent a failure to act with procedural fairness, and has resulted in the President quashing the Registrar's decision in Prosecutor v. Slijivancanin[9].

32. Rule 63 (A) and Rules and Rule 33 (B) of the Regulations clearly confer discretion to refuse a single visit-- not all visits,-- nor for "renewable", and potentially indefinite periods of thirty days. The Rule requires the Registrar to treat each case individually, which he, and the Deputy Registrar have failed to do. The Deputy Registrar has instead restricted his discretion and thus exceeded and/ or not exercised his jurisdiction. The Deputy Registrar has rendered an illegal decision, which should be reversed.

The Deputy Registrar's decision arbitrarily and unjustifiably targets persons and groups entirely unconnected to those allegedly in breach of rules governing visits and communication with detainees.

33. It is trite to point out that banning visits by persons not even alleged to have breached rules is a violation of any legal standard. The impugned decision targets all members of the public, with extremely limited exceptions. The Deputy Registrar has in essence banned unknown, unidentified, and unidentifiable persons from visiting President Milosevic. This decision is simply unprecedented and violates every fundamental principle of transparency. It is guilt by association, and worse, it targets people unknown.

34. The Deputy Registrar's allowance for contact "reasonable necessary" for the preparation of Slobodan Milosevic's defence does not cure the defect of overbroad targeting of individuals and groups as set out in the previous orders, but merely aggravates the violation of the defendant's rights.

35. The Deputy Registrar has failed to identify who will be responsible for determining what, if anything, would constitute "reasonably necessary" communication for the purposes of the preparation of the defence. Moreover, the very concept of necessity, or "reasonable" necessity has not been properly defined. The right to a defence is an absolute entitlement, to be exercised by the accused. The Deputy Registrar has, in violation of basic legal and procedural standards, provided himself, it appears, with a license to interfere in the independent-- and confidential-- preparation of Slobodan Milosevic's defence. The Deputy Registrar is in no position to determine what is a "reasonable" or "necessary" communication for the purposes of preparing the defence. He is not the accused, nor is he a legal associate. Furthermore, this particular Deputy Registrar's background as a contributor to the Prosecution's case demonstrates that he is particularily ill-equiped to determine, with any credibilty, what is reasonably necessary to the defence of Slobodan Milosevic.

36. By extending the ban on visits to undefined persons, the Deputy Registrar has usurped legislative jurisdictionve and conferred absolute discretion onto himself. The Registrar’s decision is patently ultra vires.

The Deputy Registrar's decision to renew the communication ban is apparently unfounded, as no transgression of the previous order is alleged

The Deputy Registrar's first decision to extend to 30-day communication ban stated that:

"the results of the Serbian parliamentary elections held on 28 December 2003, indicate that the political party of the Accused won 22 seats of the 250 seat National Assembly of the Republic of Serbia;

CONSIDERING that post-elections associated activities will likely see the political party and the supporters of the Accused seeking his further involvement in post-elections political activities associated with the 28 December 2003 Serbian parliamentary elections;

CONSIDERING that widespread media attention and coverage of the fact that Accused is facilitating, with ease, either an ongoing Serbian parliamentary elections campaign or post-elections political activities, each undermines the Tribunal’s mandate to assist in the restoration and maintenance of peace in the former Yugoslavia"

37. The second decision to extend the communication ban acknowledges the fact that Slobodan Milosevic has complied with the terms of the previous order, yet extends it nonetheless.

38. The paucity of information provided to support the renewal of such a sweeping ban is well below any standard of transparency required in the drafting of his decision[10]. The Deputy Registrar's speculation as to the likelihood of Mr. Milosevic's party and supporters "seeking his further involvement in post-elections political activities associated with the 28 December 2003 Serbian parliamentary elections" is entirely hypothetical, and unsupported by evidence. The conclusion "that widespread media attention and coverage of the fact that Accused is facilitating, with ease, either an ongoing Serbian parliamentary elections campaign or post-elections political activities, each undermines the Tribunal’s mandate to assist in the restoration and maintenance of peace in the former Yugoslavia" is patently unreasonable. There is no evidence whatsoever that Slobodan Milosevic is "facilitating, with ease" either an electoral campaign--which ended when the elections took place on December 28^th, 2003, before the impugned decision was issued, which makes this allegation moot-- nor "post-elections political activities". In addition, the language employed by the Deputy Registrar is so vague as to violate the principles of natural justice. It is unclear what "facilitating" elections or "post-elections political activities" could mean, or which activities would be included by the concept.

39. The Deputy Registrar's concern with respect to "widespread media coverage" and "deleterious media coverage" is entirely hypothetical, and can therefore not be relied upon as a basis upon which to curtail Slobodan Milosevic's right to communicate with the outside world. Furthermore, the decision provides absolutely no evidence that speculative media coverage would undermine the ICTY's mandate, which he has misstated.

The Deputy Registrar's decision violates the principle of equality of arms. The Registry permits, finances and otherwise aids and encourages unrestrained access to the media by the Prosecutor, while denying any such contact on the part of an accused person. The Registrar's decision should therefore be quashed

40. The Registry facilitates, finances and otherwise supports joint press briefings of the ICTY's Spokesman for Registry and Chambers with Office of the Prosecutor's spokeswoman. Summaries of these press conferences are made available on the ICTY's website at http://www.un.org/icty/latest/index.htm .

41. Article 21 of the ICTY Statute sets out the minimum rights of accused persons. These rights encompass the principle of the equality of arms.

42. The principle of equality of arms, in the context of a trial, is to be interpreted as meaning that each party must be afforded a reasonable opportunity to present its case, under conditions that do not place it at a substantial disadvantage vis à vis the opposing party[11].

43. The Deputy Registrar's renewed ban puts President Milosevic at "a substantial disadvantage vis-à-vis the opposing party" as, simply put, the "opposing party" maintains a channel of communication with the media, which it uses to present its case, and does so with the assistance and support of the Registry.

44. Equality of arms is violated when the Registrar or Deputy Registrar simultaneously bans visits to an accused, based on the prohibition of contact with the media, while facilitating joint press briefings of the Tribunal and Prosecutor's spokespeople. The imbalance is striking.

45. The Deputy Registrar's decision to ban visits to President Milosevic based on prohibition of contact with the media could not be made in other United Nations Tribunals. No rule permitting such discretion has been adopted at the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, or the International Criminal Court. These Tribunals are held to the respect of the principle of the equality of arms.

The Deputy Registrar's decision violates the fundamental principle of freedom of expression, and should be quashed

46. Some security considerations can legitimately justify the non-disclosure of certain information to the media by visitors such as the details of floor plans of Detention Unit, for instance. Security considerations are a pattern throughout legislation governing visits to detention units under international and domestic law.

47. In contrast, the Deputy Registrar's decision constitutes a blanket prohibition of contact with the media. No security considerations have been asserted in support of the ban, which is tantamount to a gag order.

48. The ICTY is held to apply and respect the provisions of the International Covenant for Civil and Political Rights[12].

49. The accused is innocent, presumed as such by Article 21 of the ICTY Statute until proof has established, beyond a reason doubt, the contrary. The accused preserves his freedom of expression[13].

50. Visitors of the accused also enjoy the right to freedom of expression, a fundamental freedom set out in Article 19 of the Universal Declaration of Human Rights[14]:

"Everyone has the right to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

51. The Appeals Chamber of the ICTY has recognized the public's right to receive information from the press as a component of freedom of expression. On interlocutory appeal in Prosecutor v. Brdjanin[15], the Appeals Chamber overturned the Trial Chamber's decision to issue a subpoena to Jonathan Randall. The Appeals Chamber held:

As has been noted, the right to freedom of expression includes not merely the right of journalists and media organizations freely to communicate information. It also incorporates a right of members of the public to receive information. As the European Court of Human Rights put it in its decision in Fresso and Roire v. France: “Not only does the press have the task of imparting information and ideas on matters of public interest: the public also has a right to receive them.”

52. Brdjanin described the vital role of war correspondents in the work of the Tribunal[16], and concluded:

The Appeals Chamber will not unnecessarily hamper the work of professions that perform a public interest.[17]

53. The House of Lords, in Regina v. Secretary of State for the Home Department Ex Parte Simms (A.P.) Secretary of State for the Home Department Ex Parte O'Brien [18] overturned the British Home Secretary's ban on verbal interviews between convicted prisoners serving sentences and the media[19].

54. The O'Brien case establishes that convicted prisoners have the right to conduct interviews with the media and discuss the unfairness of their trials. Lord Steyn stated:

The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more important function which free speech might fulfill.[20]

55. O'Brien acknowledged the reality of miscarriages of justice, and the crucial role of the media in exposing them.[21]

56. President Slobodan Milosevic asserts his innocence, and steadfastly criticizes the ICTY. He is innocent, until proven otherwise, and has every right to oppose the legitimacy of this institution. By banning contact with the media, the Registrar has violated the rights of Mr. Milosevic, of his visitors, and of the public at large. He also preserves his right, as set out above, to maintain his position as President of the SPS, and to stand as a candidate in Parliamentary elections.

57. The ICTY may not enjoy President Milosevic's criticism. Nonetheless, the public benefits of permitting him to communicate with the media far outweigh whatever embarrassment might be visited upon the ICTY. As Lord Steyn stated it:

Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfillment of individuals in society. Secondly, in the famous words of Mr. Justice Holmes (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market.": Abraham v. United States 250 U.S. 616, at 630 (1919), per Holmes J. (dissent). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnett, Constitutional Law, 3rd ed., (1996), 1078-1086. It is this last interest which is engaged in the present case. The prisoners argue that in their cases the criminal justice system has failed, and that they have been wrongly convicted. They seek with the assistance of journalists, who have the resources to do the necessary investigations, to make public the wrongs which they allegedly suffered.[22]

58. The House of Lords contemplated the right of convicted criminals to conduct interviews with the media. Neither Mr. Milosevic nor his visitors have been convicted of any crimes, yet the Registrar's decision strips them of rights enjoyed by convicted persons in the United Kingdom.

59. In the matter of Brdjanin, the Appeals Chamber recognized freedom of expression as a fundamental right. It had been asked to recognize a specific privilege for war correspondents before the Tribunal, but established instead a two-pronged test to determine whether a decision violating freedom of expression should be overturned in particular cases where compelling testimony would reduce the "free flow of information"[23] . The test developed by the majority of the Chamber is too narrow to apply to the instant matter.

60. Judge Shahabudeen's separate opinion, however, provides a useful test in the instant case. With respect to the International Covenant on Civil and Political Rights, he stated:

8. The Covenant was not constructed with the International Tribunal in view. So far as the Tribunal is concerned, there is no “law” providing for restrictions under article 19(3). But, given that it is acknowledged that the principles of the Covenant apply in relation to the Tribunal, those principles have to be construed to mean that the right to freedom of expression is subject to restrictions on the exercise of it which result from the responsibilities and functions of the Tribunal. This opinion will proceed on the basis that the protection of the public interests which justifies those restrictions includes the protection of the essential elements of the administration of justice; the matter is so understood generally.

9. If a restriction is judged “necessary”, no balancing of interests is thereafter required. The balance is made by the provision; the task of the courts is to say whether the particular restriction of freedom of expression is “necessary ” on any of the permitted grounds. If the restriction is necessary, the restriction prevails – the testimony is compelled; if the restriction is not necessary, freedom of expression prevails – the testimony is not compelled. But it seems to me that there is a preliminary stage at which some balancing of competing interests has inescapably to be made in the process of determining whether a restriction of freedom of expression is “necessary” for the protection of a public interest.

61. The Deputy Registrar has not asserted any grounds to establish that his decision to ban President Milosevic from contact with any person, with the exception of immediate family, consular or diplomatic representatives and legal counsel, or contacts "reasonably necessary" for the preparation of his defence, is necessary to protect the public interest.

"CONSIDERING that widespread media attention and coverage of the fact that Accused is facilitating, with ease, either an ongoing Serbian parliamentary elections campaign or post-elections political activities, each undermines the Tribunal’s mandate to assist in the restoration and maintenance of peace in the former Yugoslavia."

63. Concerns about "widespread media coverage" do not constitute legitimate administrative preoccupations, and fall far short of the standard set out by Judge Shahabudeen. The Registrar's decision fails to show how his decision would satisfy "the protection of the public interests which justifies those restrictions" to freedom of expression, a right enjoyed by the public and by the accused.

64. The protection of the essential elements of the administration of justice[24], as opposed to the shielding of the ICTY from hypothetical "deleterious" media coverage, could justify a restriction on freedom of expression.

65. Brdjanin stands for the general proposition that the protection of the administration of justice includes the protection of the free flow of information to the international community. The Deputy Registrar has not justified-- other than to misstate the mandate and function of the ICTY-- his restriction of the free flow of information to the public, nor has he adequately or accurately justified his restriction on the ability of members of the public to participate in, or contribute to, the free flow of information in the media.

66. Security considerations with respect to the administration of the Detention Unit are set out elsewhere in the Rules and Regulations adopted with respect to detention. It has not been shown that it is necessary to adopt additional measures which so severely curtail the fundamental rights of such a great number.

67. Transparency is required of any judicial institution. The Deputy Registrar's decision, absent justification, heightens concerns that the ICTY has something to hide.

68. In the course of a trial where the Prosecution has put the transparency of the accused's governance at issue, it is demeaning to the law to strip him of the right to contact media. To ban yet unidentified persons from visiting him is unconscionable.

The Deputy Registrar's decision violates the fundamental, universally recognized principle of presumption of innocence, and should therefore be overturned.

69. Only a blatant disregard for the presumption of innocence can justify the violation of President Milosevic's fundamental right of freedom of expression, in addition to the violation of the rights of his potential visitors.

70. In effect, a ban on visits following alleged communication with virtually any person at all supposes that President Milosevic is guilty and that his visitors are guilty by association. The ban assumes that Mr. Milosevic will tell his visitors bad things, which in turn will be reported in the media. The stated concern that:

"widespread media attention and coverage of the fact that an indictee for genocide, crimes against humanity and war-crimes such as the Accused is facilitating, with ease, the ongoing Serbian parliamentary elections campaign" was considered in the Decision when assessing factors that would likely frustrate the Tribunal’s mandate"

could only be understood if the Deputy Registrar presumes the guilt of Slobodan Milosevic.

71. The ban's effect will prevent information favorable to Mr. Milosevic from being published in the media, which could only be justified if his guilt were assumed.

72. In any event, the Deputy Registrar's decision suggests that the public cannot be trusted with any information that could be received in the course of a visit with Mr. Milosevic.

73. The Deputy Registrar's decision violates Rule 5 of the Rules of Detention, which states:

All detainees, other than those who have been convicted by the Tribunal, are presumed to be innocent until found guilty and are to be treated as such at all times.

The Deputy Registrar's decision is tantamount to ordering the isolation of President Milosevic, and should be overturned.

74. The governing principle with respect to detention has been set out above: All detainees, other than those who have been convicted by the Tribunal, are presumed to be innocent until found guilty and are to be treated as such at all times.

75. This principle is at the heart of the rule providing for detainees right to visitors of their choice, subject to security considerations[25]. This general rule is consistent with UN protocols on detention[26].

76. Amnesty International provides the following justification for the principle of free access to visitors:

The rights of detainees to communicate with others and to receive visits are fundamental safeguards against human rights abuses such as torture, ill treatment and "disappearances".

Detained and imprisoned people must be allowed to communicate with the outside world, subject only to reasonable conditions and restrictions.[27]

77. Mr. Milosevic is has been deprived of visits from his wife and immediate family since March 2003. The Registrar then banned him from visits from members of the Serbian Socialist Party, Sloboda/Freedom Association and "associated entities", "until further notice". Since December 11^th, 2003, he is deprived of all communication with the outside world, with very narrow exceptions: immediate family, diplomatic or consular representation, and legal associates. Since February 10^th, he is allowed communication "reasonably necessary" for the preparation of his defence, without knowing who will make that determination, or on what basis they will do it.

78. The Deputy Registrar's decision is tantamount to imposing isolation on Mr. Milosevic. The Rules of Detention only contemplate this measure pursuant to specific conditions or when a detainee has committed serious breaches to the Rule.

79. President Milosevic's isolation raises the apprehension that a punitive measure has been carried out, although he has committed no breach of rules and is innocent of the charges brought against him until proof of the contrary.

80. The isolation imposed as a result of the Deputy Registrar's decision is unwarranted, arbitrary and capricious.

FOR THE FOREGOING REASONS, PETITIONER, BARRY LITUCHY, REQUESTS THE PRESIDENT OF THE ICTY :

DIRECT the Registrar to overturn his decision, rendered December 11^th 2003, renewed on January 8^th and February 6^th 2004, to prohibit communications between Slobodan Milosevic and any person, with the exception of immediate family, consular or diplomatic representatives and legal counsel, and with the exception of communication and visits which are reasonably necessary for the preparation of his defence;

DECLARE Rule 63 (B) of the Rules of Detention and Regulation 33 (B) of the Regulations to govern the supervision of visits to and communications with detainees contrary to article 21 of the ICTY Statute, and the International Covenant on Civil and Political Rights.

[1] I had presented a previous request for a visit with Mr. Milosevic on January 26, 2004, which was denied on January 27^th, 2004, by the acting chief of OLAD. That denial did not refer to the ban on communication which was in force at that time.

[2] The denial is annexed to the present motion as exhibit A-1.

[3] Security Council Resolution 827: "Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace(…) "

[4] According to CEELI's website: http://www.abanet.org/ceeli/about/funders.html

[5] Which is available on CEELI's website at http://www.abanet.org/ceeli/press_releases/03.13.02_milosevic_case_pr.html , a copy of which is annexed to the present motion as exhibit A-2.

[6] However, the faxed denial of my request for a visit with Mr Milosevic inaccurately claims that the decision to restrict communications was made by the Registrar.

[7] Prosecutor v. Sljivancanin, Decision on Assignment of Defence Counsel, The President, IT-95-13/1-PT, 20 August 2003, paragraph 18.

1. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977

[9] Decision on Assignment of Defence Counsel, 20 August 2003, IT-95-13/1-PT, paragraph 23. See also Kvocka Decision, Appeal Chamber, paragraph 12: "The administrative decision will also be quashed if the Registrar has failed …to act with procedural fairness"

[10] See President's Decision on Assignment of Defence Counsel, Slijivancanin, supra.

[11] European Court judgments in the cases of Ofrer and Hopfinger, Nos. 524/59 and 617/59, Dec. 19.12.60, Yearbook 6, p. 680 and 696; Krajisnik and Plavsic, (IT-00-3940), Decision on Prosecution Motion for Clarification in respect of Application of Rules 65 ter, 66 (B) and 67 (C), 1 August 2001.

[12] Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No.: IT-99-36-T, Decision on interlocutory appeal, 11 December 2002, Separate Opinion of Judge Shahabudeen, footnote 4: "Paragraph 106 of the Secretary-General’s Report (S/25704 of 3 May 1993) said that it “is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of the proceedings. In the view of the Secretary-General, such internationally recognized standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights”. In the context in which the Secretary-General was speaking, his reference to the rights of the accused was understandable; it does not limit the applicability of the Covenant to other matters."

[13] See Bell v. Wolfish, 441 U.S. 520, 545 (1979) (Supreme Court of the United States), and Kimberlin v. Quinlan, 774 F.Supp. 1, 34 (D.D.C. 1991), rev'd on other grounds, 6 F.3d 789 (D.C. Cir.1993): A defendant preserves "a First Amendment right to be free from governmental interferencewith [his] contacts with the press if that interference is based on the content of the speech or proposed speech."

[14]

[15] Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No.: IT-99-36-T, Decision on interlocutory appeal, 11 December 2002.

[16] Brdjanin, supra, at paragraph 36: The Appeals Chamber is of the view that society’s interest in protecting the integrity of the newsgathering process is particularly clear and weighty in the case of war correspondents. Wars necessarily involve death, destruction, and suffering on a large scale and, too frequently, atrocities of many kinds, as the conflict in the former Yugoslavia illustrates. In war zones, accurate information is often difficult to obtain and may be difficult to distribute or disseminate as well. The transmission of that information is essential to keeping the international public informed about matters of life and death. It may also be vital to assisting those who would prevent or punish the crimes under international humanitarian law that fall within the jurisdiction of this Tribunal. In this regard, it may be recalled that the images of the terrible suffering of the detainees at the Omarska Camp that played such an important role in awakening the international community to the seriousness of the human rights situation during the conflict in Bosnia Herzegovina were broadcast by war correspondents. The Appeals Chamber readily agrees with the Trial Chamber that war correspondents “play a vital role in bringing to the attention of the international community the horrors and reality of conflict.”30 The information uncovered by war correspondents has on more than one occasion provided important leads for the investigators of this Tribunal.31 In view of these reasons, the Appeals Chamber considers that war correspondents do serve a public interest.

[17] Id., paragraph 44.

[18]

http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990708/obrien01.htm,Consolidated Appeals, 1998.

[19] In the United States, the right to freedom of speech for convicts was upheld by the Supreme Court in Pell v. Procunier, 417 U.S. (1974); see also Houchins v. KQED, Inc., 438 U.S. 1 (1978)

[20] .O'Brien, supra, p. XX

[21] O'Brien, supra,., p. XXX

[22] Id., p. XXX

[23] Brdjanin, supra, paragraph 50: "In view of the foregoing, the Appeals Chamber holds that in order for a Trial Chamber to issue a subpoena to a war correspondent a two-pronged test must be satisfied . First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere ."

[24] Separate Opinion of Shahabudeen, supra, paragraph 8.

[25] Rule 63 (A) of the Rules of Detention.

[26] See, supra, footnote 2

[27] Amnesty International, Fair Trials Manual, International Secretariate, London 1998. Cf Principle 19 of the Body of Principles:

"A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations."

BEFORE THE PRESIDENT OF THE ICTY

Filed: February 26th, 2004

The Accused

Mr. Slobodan Milosevic