Vojislav Seselj in the courtroom

On 6 November 2014, the Trial Chamber led by the French judge Antonetti decided to grant Seselj provisional release by a two-to-one majority. The Trial Chamber made the decision proprio motu; the accused had not filed a motion for provisional release. The judges set only two basic conditions. According to the Trial Chamber’s decision, Seselj must return to The Hague voluntarily once he is summoned, and while he is in Serbia he must not exert pressure on the victims and witnesses. Ever since, the prosecution has fought to bring the accused back to the detention unit. Finally, today the Appeals Chamber ordered the Trial Chamber, in a decision reached by a three-to-two majority, to order Seselj back to The Hague because he has violated the conditions of his provisional release.

After only twenty-odd days of Seselj's provisional freedom, the prosecution called for a review of the Trial Chamber’s decision, noting that Seselj had vowed publicly that he would not return voluntarily to The Hague. Also, Seselj threatened all those who have cooperated with the prosecution and he made offensive remarks about victims. As the prosecution noted, Seselj’s health is not so bad that it would warrant his return to Serbia for humanitarian reasons. The accused himself has stated that this is the case in his public appearances.

In its decision made public today, the Appeals Chamber primarily focused on Seselj’s statements that he will never return voluntarily to The Hague.As the appellate judges note in the decision, this is‘new information’that the Trial Chamber had failed to take into consideration, clearly showing that the accused has breached the first of the two conditions for the provisional release. After the accused has indicated that he will not return voluntarily to The Hague, ‘no reasonable trial chamber could remain convinced that he fulfilled the conditions for provisional release’, the Appeals Chamber has stated.

This is why in the decision the Appeals Chamber orders the Trial Chamber to ‘immediately revoke’the decision granting provisional release to Seselj and to order his return to The Hague. As soon as the accused comes back to the Detention Unit, the Trial Chamber should give opportunity to Serbia and the Netherlands to be heard if and under which conditions Seselj could remain on provisional release.

Presiding judge Sekule from Tanzania, Judge Ramaroson from Madagascar and Pakistani judge Khan carried the vote. Two judges were against the decision: Russian judge Tuzmukhamedov and Judge Afandje from Togo. In their joint dissenting opinion, the judges state that the Appeals Chamber shouldn’t have discussed Seselj’s public appearances at all. The Appeals Chamber should have focused instead on ordering the Trial Chamber to correct its error and to assess Seselj’s announcement that he will not voluntarily return to The Hague, the dissenting judges stress.

The two judges also note that despite such ‘defiant’declarations, it is impossible to claim for sure that Seselj will not voluntarily come back to The Hague, once he is summoned. In the view of the Russian and Togolese judges, ‘human beings react in evolutive and unpredictable ways, and it cannot be predicted how Seselj would respond to the order to return to the Tribunal’.

The Appeals Chamber has thus put the ball in the Trial Chamber's court, ordering it to immediately reverse its decision on the provisional release and to bring Seselj back to The Hague. Judge Antonetti’s Trial Chamber has yet to issue its order, but the media have already quoted Seselj as saying that he will certainly never comply with such an order. It seems reasonable to conclude that Seselj’s reactions are not neither ‘evolutive’ nor‘unpredictable’, contrary to what the Russian and Togolese judges have said.

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