MILOSEVIC v. THE NETHERLANDS
Inadmissible
The applicant, Mr Slobodan Milošević, is a national of the Federal Republic of Yugoslavia (hereinafter “the FRY”) born in 1940. He is currently detained in the United Nations Detention Center in The Hague, Netherlands. He is represented before the Court by Mr N.M.P. Steijnen, a lawyer practising in Zeist (Netherlands). The facts of the case, as apparent from public information and the documents submitted by the applicant, may be summarised as follows. The applicant was indicted, together with others, by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (hereinafter “the ICTY”). On 24 May 1999 a judge of the Trial Chamber of the ICTY, finding that there was a prima facie case against the indictees, confirmed the indictment and issued a warrant for their arrest. The applicant was then the President of the FRY. In September 2000 the applicant was voted out of office. On 6 October 2000 he relinquished the position of President of the FRY. He was subsequently arrested on charges brought under FRY domestic law. On 29 June 2001 the applicant was transferred to The Hague, despite an order of the Constitutional Court of the FRY suspending his surrender to the ICTY pending consideration of its legality. On 3 July the applicant made an initial appearance before the Trial Chamber, during which he was formally charged and invited to plead guilty or not guilty. The applicant refused to enter a plea but attempted to argue that the ICTY was an unlawful institution. The presiding judge refused to hear his arguments. Noting the applicant’s refusal to plead, the Trial Chamber ex officio entered a plea of not guilty on his behalf. It also ordered his detention on remand. On 9 August 2001 the applicant lodged a preliminary motion arguing, in so far as is relevant here, that the ICTY was illegal. At a status conference on 30 August 2001, the applicant attempted to make an oral statement to the effect that the ICTY lacked a legitimate basis. He was prevented from so doing by the presiding judge, who invited him to make it in writing in the form of a preliminary motion. The applicant did so. On 6 September 2001, the applicant having refused to be represented before a tribunal which he considered illegal, the Trial Chamber appointed three practising lawyers as amici curiae to defend the applicant’s interests. On 19 October 2001 the amici curiae submitted a brief supporting the applicant’s preliminary motions of 9 and 30 August. On 30 October 2001, at a second status conference, the Trial Chamber gave an oral decision rejecting the applicant’s preliminary motions. The amici curiae made oral submissions concerning the proposed conduct of the trial. The applicant was allowed to speak uninterrupted. He alleged that the ICTY Prosecutor was biased, since she had failed to bring prosecutions in connection with the military intervention by NATO member States on the territory of the FRY which took place in 1999. He also complained about the conditions in which he was detained, and in particular about the lack of privacy. The Trial Chamber’s decision rejecting the applicant’s preliminary motions was published in writing, with reasons, on 8 November 2001. The indictment of 24 May 1999 has been amended on two occasions, and two further indictments have been brought. The applicant has consistently refused to plead, and pleas of not guilty have been entered on his behalf. On 30 January 2002 a hearing was held before the Appeals Chamber of the ICTY, the purpose of which was to decide whether the various indictments should be heard in separate sets of proceedings. The applicant submitted a request for his release and promised to appear for any hearings. On 1 February 2002 the Appeals Chamber of the ICTY decided that the three indictments should be heard in a single set of proceedings. The applicant’s trial opened on 12 February 2002. It was reported on 27 February 2002 that the applicant had repeated his request for release to the Trial Chamber, and on 6 March 2002 that it had been refused. The applicant brought summary civil proceedings (kort geding) against the Netherlands State before the President of the Regional Court (arrondissementsrechtbank) of The Hague. He sought an order directed against the State for his unconditional release; in the alternative, for him to be returned to the FRY; in the further alternative, for the State to make representations to “the so-called Tribunal” (i.e. the ICTY) and other competent international bodies and institutions for his release; in the still further alternative, for the State to make representations to “the alleged Tribunal” (again, i.e. the ICTY) and other competent international bodies and institutions for his return to the FRY. He argued, essentially, that his transfer to the ICTY was illegal as a matter of the domestic law of the FRY; that the ICTY itself lacked a basis in international law, having been set up by a resolution of the Security Council of the United Nations (to wit, resolution no. 827 of 25 May 1993) and not by a multilateral treaty; that the ICTY was the handmaiden of NATO and therefore not an independent and impartial tribunal in the sense of Article 6 of the Convention; that the actions of the Security Council and the ICTY were discriminatory; and that he was entitled to immunity as a former head of state. In view of these considerations the Netherlands State was acting unlawfully by allowing him to be detained and remain in detention on its territory, A public hearing was held on 23 August 2001. The President of the Regional Court gave judgment on 31 August 2001. He found that the ICTY did in fact have sufficient legal basis; that it offered sufficient procedural guarantees, as found by the European Court of Human Rights in its Naletilić v. Croatia decision (no. 51891/99, 4 May 2000); and that, the Kingdom of the Netherlands having lawfully transferred its jurisdiction over the ICTY’s indictees to the ICTY, the courts of the Netherlands were not competent to consider the applicant’s request for release. The applicant lodged an appeal against this judgment, but withdrew it again as of 17 January 2002. Article 289 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) provides that all cases where a speedy and provisionally enforceable decision is required in the interests of the parties shall be heard in summary proceedings by the President of the Regional Court, who shall set a hearing date on a working day. Article 295 provides for an appeal against the President’s judgment to the Court of Appeal (gerechtshof), and for a further appeal – on points of law –to the Supreme Court (Hoge Raad). Article 292 provides that a provisionally enforceable decision taken in summary proceedings shall not prejudge the merits of the case.