ICTY PUBLISHES CROATIA'S APPLICATION FOR INTERLOCUTORY APPEAL

THE HAGUE, Oct 1 (Hina) - Arrest, as the gravest form of force against retired Croatian General Janko Bobetko, is unfounded because there are no indications that his participation in the process before the Hague-based war crimes tribunal could not have been secured without his being arrested, notes a Croatian application for filing an interlocutory appeal against the tribunal's warrant for Bobetko's arrest and extradition, whose contents the tribunal published on Tuesday. #L# In the application, Croatia cites the basic institute of the penal code - the principle of proportionality. According to this principle, measures of force in criminal procedure must be used successively. i.e. a heavier process measure is not applied until a more lenient one has been exhausted, the application states. The principle states that, respecting the basic human right to a just and fair trial, the most lenient measure should be applied towards the indictee/accused to secure his or her presence in proceedings, when his or her presence may be secured by this measure. The application states that the tribunal's rules on procedure and evidence which regulate the issuing of arrest and hand-over warrants are not imperative, but facultative. According to the rules, a judge MAY issue warrants for arrest and extradition, which means that the judge is not obliged to do so. Therefore, the application states, before the judge issued the warrant, he should have requested the prosecutor to submit evidence indicating the necessity of issuing the warrant. This conclusion is made by analogy from other provisions of the tribunal's regulations, by which the party requesting that such a warrant be issued is obliged to submit a written request with an explanation why the judge should undertake such an action towards the country to which the warrant refers. Only pursuant to an explained and submitted written request may the judge issue the arrest warrant, the application states. In the case of retired Croatian general Janko Bobetko, the arrest warrant contains no arguments or explanations to indicate that the issuing of the warrants was necessary for preparing and conducting the trial, says the application. Moreover, states the application, the prosecutor had no information to indicate that Bobetko would not turn up for the proceedings, since no summons was ever sent to him. Despite this, the prosecutor unilaterally and unfoundedly concluded that participation in the process before the tribunal can be secured only and exclusively by retaining the indictee in custody. Therefore, the application states, the decision of the judge was not founded on the tribunal's legal rules, and is also contrary to the principle of proportionality. The judge never even contacted Croatia to secure cooperation in the arrest before issuing such a warrant, nor did he explain what valid reason he had not to inform the country, which this concerns, about this. The Croatian application for an appeal recalls that Janko Bobetko is a person of 83 years of age, in very bad health, who never leaves his Zagreb home. The party submitting the appeal is prepared to present to the Chamber of Appeals its firmest guarantees that Bobetko, as part of aforementioned possibilities, will take part in the future proceedings. In this light, the party submitting the appeal claims that in this concrete case all conditions which, according to the tribunal's practice, had to be met when making a decision on the temporary release of a detainee, have been met. According to the above, if all these conditions are met, then there certainly is no reason for detention and arrest to be ordered at all, the application says, noting that the warrant for arrest and extradition is legally unfounded. Taking into consideration General Bobetko's medical condition and his being available to the bodies of the judiciary, the application notes that detention and arrest are not necessary, because the same goal can be achieved with a summons sent directly, with guarantees by the indictee and the Republic of Croatia that the indictee will attend the trial. Detaining Janko Bobetko would seriously harm his health, causing irreparable damage and possibly the death of the indictee. Arrest and detention in such a case would be not only illegal, but also inhumane and in contrast to the European Convention on Human Rights, the application states. Recalling that the tribunal has previously passed decisions allowing indictees to defend themselves in freedom, Croatia calls on a change to the tribunal's legal practice regarding the indictee's first appearance before the tribunal and requests that the indictee first be sent a regular court summons to appear at the reading of the indictment and enter his or her plea. In case the indictee refuses to do so, an arrest and extradition warrant can be carried out, the application states. A supplement to the application contains medical documentation with the results of three Bobetko's check-ups conducted in September 2002. (hina) lml sb