Todorovic's Defence Seek Help from Serbian Court - Arrest of suspected kidnappers could provide vital evidence say defence lawyers

Todorovic, accused of war crimes in Bosanski Samac, claims he was kidnapped on Mount Zlatibor inside Serbia on September 26, 1998, shipped over the Drina River into Bosnia illegally and handed over to Stabilisation force, S-For, troops for extradition to The Hague. The kidnappers were allegedly paid 50,000 German marks for the task.

Since his arrival, Todorovic's lawyers have sought his acquittal on the grounds that his arrest was illegal. But S-For has so far refused to provide any information relating to Todorovic's arrest citing security reasons and a belief that the circumstances of the arrest are not grounds in themselves for acquittal.

In a letter to the court on July 9 last year, S-For said to release Todorovic "would create circumstances in which there would be little point in apprehending additional indictees." (See Tribunal Update Nos. 184 and 186).

But the arrest in Serbia in late July of the alleged kidnappers has provided Todorovic's defence team with an alternative source of information relating to the arrest. On August 1 Todorovic's lawyers filed a request that the Tribunal court seek "judicial assistance" from the Federal Republic of Yugoslavia, FRY, to provide all documentation relating to the Zlatibor kidnapping. The defence lawyers also set up direct contact with the Serbian prosecutors leading proceedings against the suspected kidnappers.

On August 18, the Todorovic's lawyers added that they had also approached the Uzice court directly for access to all documentation. Should that be forthcoming, the lawyers said, they would withdraw the request for the Tribunal to seek "judicial assistance" as this would no longer be necessary.

Prosecutors in the Todorovic case, meanwhile, dismissed the defence team's moves as "premature" given the court has yet to rule on the essential legal question - whether any alleged illegality of the arrest in any way affects the court's jurisdiction.

"Even if all the facts suggested by the accused Todorovic were assumed to be true and were taken at their highest, they would not justify the dismissal of the indictment against the accused or his release," the prosecution said.

Until the court ruled on this matter, the prosecution added, "the defence may continue to file innumerable motions of a similar nature all of which may ultimately prove to be unnecessary and a waste of judicial time and resources."

The prosecution concluded their response by saying the court should not consider the motion for "judicial assistance" until the legal issue had been decided.

There is only one precedent at the Tribunal for the Todorovic case - that of Slavko Dokmanovic, former president of the Vukovar municipality, accused in a sealed indictment of involvement in the Ovcara massacre.

In June 1997 Dokmanovic was lured into leaving Serbia for a meeting with United Nations Transit Authorities for Eastern Slavonia, UNTAES, chief Jacques Klein. As soon as Dokmanovic crossed the Serbian border into Croatia he was arrested by representatives from the Tribunal prosecutor's office and members of UNTAES. (See Tribunal Update No. 50).

In October 1997, Tribunal judges ruled the arrest legal stating neither Dokmanovic's nor the FRY's sovereign rights had been violated.

Dokmanovic committed suicide in 1998, a week before he was due to be sentenced. (See Tribunal Update No. 83).

Just before leaving the Tribunal in November 1999, Judge Gabrielle Kirk McDonald, one of those who ruled on the Dokmanovic arrest, said of the Todorovic case, "We also have to take into consideration the practicalities of the situation. So that when Serbia is not transferring individuals and is not hiding that fact, then it seems to me we have to take that into account in terms of how individuals are brought to the Tribunal."

The judges' decision on the Todorovic case is awaited with great anticipation, not just at the Tribunal, but also by NATO, S-For and other organisations involved in locating, apprehending and extraditing fugitives from international justice.

Todorovic's release and return to a "country of refuge" would be seen as a grave setback by these organisations. Conversely, a ruling that the nature of an arrest has no bearing on the status of the accused would trigger a search for those "creative methods" of arrest advocated by Tribunal Chief Prosecutor Carla del Ponte.