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Bosanski Samac, Prosecutor v. Todorovic, Decision on Prosecution Motion to Withdraw Counts of the Indictment and Defence Motion to Withdraw Pending Motions, IT-95-9/1 (ICTY TC, Feb. 26, 2001)

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge David Hunt
Judge Mohamed Bennouna

Registrar:
Mr. Hans Holthuis

Decision of:
26 February 2001

PROSECUTOR

v.

STEVAN TODOROVIC

____________________________________

DECISION ON PROSECUTION MOTION TO WITHDRAW COUNTS OF THE INDICTMENT AND DEFENCE MOTION TO WITHDRAW PENDING MOTIONS

____________________________________

The Office of the Prosecutor:

Ms. Nancy Paterson

Counsel for the Accused:

Mr. Deyan Brashich and Mr. Nikola Kostich, for Stevan Todorovic

 

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the International Tribunal"),

BEING SEISED of a "Motion Under Rules 51 and 73 to Withdraw Counts in the Indictment against Stevan Todorovic" filed by the Office of the Prosecution ("Prosecution") on 23 January 2001 ("the Prosecution Motion") and a "Motion Pursuant to Rule 73 to Withdraw all Pending Motions" filed by the Defence on the same date ("the Defence Motion"),

NOTING the finding of guilt entered by the Trial Chamber against Stevan Todorovic on 19 January 2001, based on his guilty plea,

NOTING the confidential "Plea and Co-operation Agreement between the Prosecutor and Stevan Todorovic" dated 28 November 2000 ("Plea Agreement") submitted to this Trial Chamber on 29 November 2000, and the undertaking therein by the accused Stevan Todorovic to withdraw all motions now pending before the Trial Chamber in which the accused sought an evidentiary hearing regarding the circumstances of his arrest and his requests for judicial assistance, as amended orally by the Prosecution and counsel for Stevan Todorovic at the hearing on 19 January 2001,

NOTING that Prosecution seeks to withdraw Counts 2 to 27 of the indictment against Stevan Todorovic without prejudice, reserving the right to reinstate the counts should the accused fail to comply fully with the Plea Agreement,

NOTING that Rule 51 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") provides that, after initial appearance, "an indictment may only be withdrawn by motion before that Trial Chamber pursuant to Rule 73",

CONSIDERING that, pursuant to Rule 51 of the Rules, it is in the interests of justice for the Trial Chamber to grant leave to the Prosecution to withdraw Counts 2 to 27 of the indictment, but that, while the Prosecution may reserve the right to apply to reinstate the charges should the accused fail to comply fully with the Plea Agreement, any actual reinstatement of those charges would be subject to consideration by a Trial Chamber to determine whether, in all the circumstances, it would be in the interests of justice to do so,

NOTING that the Defence Motion seeks leave to "withdraw all pending motions relating to judicial assistance, evidentiary hearing regarding the circumstances of his arrest and return to country of refuge and specifically the Defense request for disclosure of reports and documents from SFOR and NATO and request for subpoenas issued to among others General Shinseki as well for an order granting the Defense leave to withdraw all allegations that his arrest was unlawful and that SFOR and NATO were involved in any unlawful activity in regard to the arrest of the Accused", without prejudice, and reserving the Defence’s right to reinstate such motions and allegation should the Prosecution deem the accused not to have complied fully with the terms and conditions of the Plea Agreement,

NOTING, however, that the Defence request for disclosure of reports and documents from SFOR and NATO and request for subpoenas issued to, inter alia, General Shinseki, is no longer pending before the Trial Chamber as it has already been determined by this Trial Chamber in its Decision of 18 October 2000, which Decision was stayed by the Appeals Chamber of the International Tribunal by Order of 8 November 2000,

PURSUANT TO Rules 51 and 73 of the Rules

HEREBY GRANTS the Prosecution Motion in part, GRANTS the Defence Motion in part, and ORDERS as follows:

  1. Counts 2 to 27 of the indictment against the accused, Stevan Todorovic, are hereby withdrawn without prejudice and reserving the right of the Prosecution to apply to reinstate the counts should the accused fail to comply fully with the Plea Agreement; and
  2. all motions filed by the accused and currently pending before the Trial Chamber, as listed in Annex A to this Decision, are withdrawn without prejudice and reserving the right for the Defence to reinstate such motions should the Prosecution deem the accused not to have complied fully with the Plea Agreement.

 

Done in English and French, the English text being authoritative.

___________________________
Patrick Robinson
Presiding

Dated this twenty-sixth day of February 2001
At The Hague
The Netherlands

[Seal of the Tribunal]

ANNEX A

Defence Motion for Evidentiary Hearing on Arrest, Detention and Removal of Defendant Stevan Todorovic and for Extension of Time to Move to Dismiss Indictment, filed 11 February 1999

Defence Motion for an Order directing the Prosecutor to forthwith return the accused Stevan Todorovic to the country of refuge, filed 21 October 1999

Accused Stevan Todorovic’s Petition for a Writ of Habeas Corpus, filed 15 November 1999

Defence motion requesting judicial assistance from the Federal Republic of Yugoslavia [Serbia & Montenegro] to provide documents and witnesses, filed 2 August 2000

   

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