Case No. IT-02-62-I

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius

Registrar:
Mr. Hans Holthuis

Decision of:
19 March 2003

PROSECUTOR
v.
JANKO BOBETKO

_______________________________________

DECISION ON "MOTION OF THE PROSECUTOR TO SCHEDULE A FITNESS HEARING AND TO TAKE RELATED MEASURES"

_______________________________________

The Office of the Prosecutor:

Ms. Carla del Ponte, Prosecutor

 

I, Carmel Agius, Judge 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 ("Tribunal"):

BEING SEISED OF the confidential and ex parte "Motion of the Prosecutor to Schedule a Fitness Hearing and to Take Related Actions" ("Motion") filed on 6 February 2003, which requests that Orders be made that:

  1. A Trial Chamber be appointed to schedule a hearing, at which Janko Bobetko ("Accused") and the responsible authorities of the Republic of Croatia ("Croatian Authorities") may be represented by counsel, to:
    1. consider the medical report on the fitness of the Accused; and
    2. discuss further conduct of matters ("Request I");

  2. The Croatian Authorities serve the indictment upon the Accused or his counsel and confirm the service of the indictment ("Request II");
  3. The warrant for the Accusedís arrest be suspended, pending the final disposal of the matter ("Request III");

NOTING the decision of the Zagreb County Court of 28 November 2002 ("Zagreb County Court Decision") that the Accused is not fit to take part in court proceedings, based on findings and opinions of experts of the Faculty of Medicine of the University of Zagreb who examined the medical records pertaining to the Accused and conducted a physical examination of the Accused;

NOTING that, pursuant to Rule 59 of the Rules of Procedure and Evidence ("Rules"), the Government of the Republic of Croatia has notified the Registrar of this Tribunal by letter dated 28 November 2002 that it has been unable to serve the indictment, execute the warrants of arrest and transfer due to the health condition of the Accused;

NOTING the confidential and ex parte "Order for Medical Examination of the Accused", issued by me on 20 December 2002, which orders a medical examination of the Accused by independent and qualified medical experts to be appointed by the Registrar of the Tribunal;

NOTING the confidential and ex parte medical report filed on 27 January 2003 by the medical experts appointed by the Registrar ("Medical Report"), which is based on a review of the medical documentation and a physical examination of the Accused, and confirms the Zagreb County Court Decision that the Accused is unfit to stand trial before this Tribunal;

NOTING the confidential and ex parte "Order of the President on the Prosecutorís Motion of 6 February 2003" dated 6 March 2003, which orders me to deal with the Motion and to make all relevant arrangements;

CONSIDERING that the Prosecution indicates in its Motion that it does not intend to challenge the findings of the Medical Report;

CONSIDERING that the Medical Report clearly shows that the Accused is unfit to travel to and stand trial before this Tribunal;

CONSIDERING that the only matter which is relevant as to the further conduct of the case is to establish a monthly monitoring mechanism in order to assess the medical condition of the Accused and to report on his state of health to the relevant Tribunal authorities;

CONSIDERING that no hearing is necessary to discuss the fitness of the Accused or to set up a periodic mechanism to monitor the Accusedís medical condition;

FINDING therefore that there are not sufficient grounds to grant Request I;

CONSIDERING that before this Tribunal can proceed to a decision based on the Medical Report findings, it is necessary to have the indictment served on the Accused or counsel of his own choice;

CONSIDERING that to date the Croatian Authorities have failed to serve the indictment upon the Accused;

CONSIDERING that pursuant to Rule 53bis of the Rules the service of the indictment must be effected personally on the Accused at the time the Accused is taken into custody or as soon as reasonably practicable thereafter;

CONSIDERING that the rationale behind Rule 53bis of the Rules is that the Accused has a right to be informed through official channels about the fact that he is indicted before this Tribunal, which is linked to the fundamental principle enshrined in Article 21, para. 4 (a) of the Statute of the Tribunal ("Statute") that an accused be informed promptly and in detail, in a language he understands, of the nature and the cause of the charges against him;

CONSIDERING however that on the basis of the Medical Report the Accused is unfit to travel to and to stand trial before this Tribunal, and that therefore it is justified to suspend the warrants for the Accusedís arrest and the orders for surrender, pending a change in the Accusedís state of health that would allow him to stand trial;

CONSIDERING that as a result, and in the special circumstances of the Accusedís medical condition, the Accused shall be served the indictment, or a counsel who he elects to represent him;

FINDING that there is a compelling basis for granting Request II and Request III;

FOR THE FOREGOING REASONS

PURSUANT TO Article 21, para. 4 (a) of the Statute, and Rule 53bis and Rule 54 of the Rules;

HEREBY DECIDE AS FOLLOWS:

  1. Request I of the Motion is denied.
  2. Request II and Request III of the Motion are granted.
  3. Immediately upon the service of the indictment on the Accused or a counsel who he elects to represent him, the confidential warrants of arrest and orders for surrender, issued by this Tribunal on 17 and 20 September 2002, shall be suspended, pending further instruction by the Tribunal.
  4. The Croatian Authorities be ordered in a separate document to:
    1. serve the indictment upon either the Accused himself or counsel of his own choice, in a language the Accused understands;
    2. confirm the service of the indictment within 15 days of the issuance of this Decision;
    3. inform the Accused or counsel of his own choice of the suspension of the warrants of arrest and orders for surrender, issued by this Tribunal on 17 and 20 September 2002, which suspension is being ordered to be effective immediately upon the service of the said indictment upon the Accused or counsel of his own choice;
    4. provide an updated medical report on a monthly basis on the state of health of the Accused and submit such a report to the Registrar of this Tribunal.

AND REQUEST the Registrar of the Tribunal to provide the monthly medical report to the relevant organs within this Tribunal.

 

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

Dated this 19th day of March 2003,
At The Hague
The Netherlands

____________________________
Carmel Agius
Judge of the Tribunal

[Seal of the Tribunal]

   

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