Custodial visit to an embassy

Notion(s) Filing Case
Decision on Custodial Visit - 10.11.2011 POPOVIĆ et al.

In this decision, the Appeals Chamber dealt with Pandurević’s request to allow him to arrange a brief custodial visit for him to the Serbian Embassy in The Hague for the purpose of completing the formalities required to obtain a national identity card and/or passport. Serbia agreed with the temporary alteration of the conditions of Pandurević’s detention proposed in the Motion but insisted that the Ministry of the Interior of Serbia be responsible for securing Pandurević’s personal safety during his visit to the Embassy and accompany him from the entrance of the Embassy until his departure from Embassy premises, thus not allowing any armed officers of The Netherlands onto the premises of the Embassy. According to The Netherlands, a visit by Pandurević to the Embassy on the terms proposed by Serbia would create an unwarranted security risk and an unwanted precedent in relation to other detainees, including detainees of other international courts and tribunals who are nationals of other countries and detained in The Netherlands. Pandurević’s Motion was denied by the Appeals Chamber.

p. 3: NOTING FURTHER that: (a) during a visit to an embassy (as opposed to a transfer to national authorities by way of provisional release), a detainee remains under detention and hence a responsibility of the Dutch authorities due to his or her presence on the territory of The Netherlands;[1] (b) Dutch authorities remain responsible not only for the detainees, but for the Embassy itself, and under the terms proposed by Serbia, the Dutch authorities could not sufficiently effect such responsibility during a detainee’s stay within the Embassy;[2] (c) the Serbian police officers whom the Embassy proposes to have present during the requested visit cannot lawfully be armed and would not be authorized to use force under Dutch law to secure Pandurević and the Embassy;[3] and (d) for these reasons, the Ministries representing the Dutch authorities would be “extremely reluctant to execute an order granting [such a] visit”[4]


CONSIDERING that the Motion is not properly filed under Rule 65 of the Rules, as the requested alteration of the conditions of the detention of Pandurević does not involve provisional release from detention, but rather a custodial visit to an embassy[5] 

[1] Ibid. [Registry Submission Pursuant to Rule 33(B) Regarding Further Order on Vinko Pandurević’s Motion for Temporary Alteration of the Conditions of His Detention, 22 March 2011 (confidential) (“22 March 2011 Registry Submission”)], Annex II, para. 2.

[2] Ibid. [22 March 2011 Registry Submission], Annex II, para. 4.

[3] Ibid. [22 March 2011 Registry Submission].

[4] Ibid. [22 March 2011 Registry Submission], Annex II, para. 6.

[5] See Motion [Motion on Behalf of Vinko Pandurevic [sic] for a Temporary Alteration in the Conditions of His Detention to Facilitate a Visit to the Serbian Embassy in The Hague, 8 December 2010 (confidential)], paras 4-7, referring, inter alia, to Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Decision on Borovčanin’s Motion for Custodial Visit, 3 June 2010. The Appeals Chamber notes that Trial Chamber granted Ljubomir Borovčanin’s request for a custodial visit to the Embassy under Rule 65 of the Rules. The Appeals Chamber considers that the Trial Chamber erred in so doing as such custodial visits do not fall within the compass of this Rule.

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