The Trial Chamber hearing the case of Vojislav Seselj has decided by a majority vote that extended supervision of privileged communication of the accused might jeopardize the fairness of his trial. The Trial Chamber has ‘called’ on the ICTY Registry to ‘draw appropriate conclusions’. The Registry has opposed the majority decision and applied to the ICTY president for ‘urgent guidelines’ on how to proceed

Frederik Harhoff, the Danish judge at the TribunalFrederik Harhoff, the Danish judge at the Tribunal

Vojislav Seselj has succeeded once again in dividing the judges and causing a rift between the ICTY Registry and the Trial Chamber.

Judges Antonetti and Lattanzi outvoted Judge Harhoff and ruled that the Trial Chamber had the power to review the Registry decision to monitor Seselj’s privileged communication with his legal advisors because there are reasons to believe that this communication was used not only to facilitate preparations for defense but also to intimidate witnesses. As a result, by a majority vote, the judges concluded that to extend the monitoring of the privileged communication might jeopardize the fairness of the trial, calling on the Registry ‘to draw appropriate conclusions’ from the decision.

Judge Harhoff – outvoted in this case – believes that neither the Rules of Procedure and Evidence nor jurisprudence give the Trial Chamber the power to review decisions of the Registry. As he put it, it is in the sole jurisdiction of the ICTY president. Judge Antonetti himself has in fact noted this repeatedly, when he advised Seselj to address his appeals against Registry decisions to the Tribunal’s president. Since Seselj refused to do so, the Trial Chamber – or rather, the majority thereof – decided to take matters into its own hands and declared they had appropriate jurisdiction.

The ICTY Registry shares Judge Harhoff’s opinion and has asked the ICTY president for urgent guidelines on how to proceed in this case. Despite the fact that the majority has not revoked the Registry decision to monitor Seselj’s communication, but merely ‘called on the Registry to draw appropriate conclusions’ – out of respect for the Trial Chamber the Registry decided to temporarily allow privileged communication between Boris Aleksic and the accused pending the guidelines from the president. At the same time, noting that it ‘has reason to believe’ that two other Seselj’s advisors, Krasic and Jerkovic, have violated their undertaking not to disclose confidential information, the Registry has suspended their privileged communication with the accused leader of the Serbian Radical Party.

In addition to asking the ICTY president for ‘urgent guidelines’ on how to proceed in this case, the Registry also urged the Trial Chamber with Judge Antonetti presiding to rule as soon as possible on the motion for additional witness protection measures filed on 3 October 2008.