Proposal for a Council Regulation imposing certain restrictive measures in support of effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY)
Date: 2004-04-29
Institutions: European Commission
Subjects: International Criminal Tribunal, common position, fight against crime, international criminal law

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.4.2004 
COM(2004) 348 final 

2004/0114 (CNS) 

Proposal for a 

COUNCIL REGULATION 

imposing certain restrictive measures in support of effective implementation of the 
mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY) 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
  
EXPLANATORY MEMORANDUM 

(1) 

On  16  April  2003,  the  Council  adopted  Common  Position  2003/280/CFSP  which 
provides that Member States have to take the necessary measures to prevent the entry 
into, or transit through, their territories of certain persons who are engaged in activities 
which  help  persons  at  large  to  evade  justice  for  crimes  for  which  the  International 
Criminal  Tribunal  for  the  former  Yugoslavia  (ICTY)  has  indicted  them  or  are 
otherwise  acting 
the  ICTY’s  effective 
implementation of its mandate. These restrictive measures were renewed by Common 
Position 2004/293/CFSP of 30 March 2004. 

in  a  manner  which  could  obstruct 

(2)  When  renewing  these  restrictive  measures,  Member  States  indicated  that  they  will 
adopt a Common Position on further measures and invited the Commission to submit a 
proposal for a Regulation on the freezing of certain funds and economic resources in 
support  of  the  effective  implementation  of  the  mandate  of  the  ICTY.  The  draft 
Common Position provides for the Council to adopt a list of those persons indicted by 
ICTY whose funds and economic resources should be frozen. 

(3) 

(4) 

(5) 

(6) 

(7) 

The  ICTY  has  the  power  to  prosecute  persons  responsible  for  serious  violations  of 
international  humanitarian  law  committed  in  the  territory  of  the  former  Yugoslavia 
since  1991.  This  Tribunal  was  established  by  means  of  UN  Security  Council 
Resolutions 808 and 827 (1993), which are based on Chapter VII of the UN Charter. 
The  Security  Council  argued  that  the  widespread  and  flagrant  violations  of 
humanitarian law occurring within the territory of the former Yugoslavia constituted a 
threat  to  international  peace  and  security  and  that  the  establishment  as  an  ad  hoc 
measure  of  an  international  tribunal  and  the  prosecution  of  persons  responsible  for 
serious violations of international humanitarian law would contribute to the restoration 
and maintenance of peace. 

On 28 August 2003, the UN Security Council adopted Resolution 1503 (2003), which 
calls on all States to intensify cooperation with and render all necessary assistance to 
the ICTY, particularly to bring all fugitive indictees to the ICTY. 

The Commission proposes to adopt legislation based on Articles 60, 301 and 308 of 
the EC Treaty. The persons, groups and entities whose funds and economic resources 
should be frozen are not part of a regime of a third country, and the objective of the 
restrictive  measures  is  to  help  to  preserve  international  peace  and  security.  Their 
position under the Treaty is therefore similar to that of the persons, groups and entities 
whose funds and economic resources are frozen because of indication of involvement 
in international terrorism (Regulations (EC) Nos 2580/2001 and 881/2002). 

The  proposed  provisions  and  set-up  are  in  line  with  recent  Regulations  imposing 
financial  restrictions,  and  in  particular  with  the  relevant  provisions  of  Council 
Regulation  (EC)  No  314/2004  concerning  certain  restrictive  measures  in  respect  of 
Zimbabwe. 

In  order  to  prevent,  in  so  far  as  possible,  before  the  proposed  Regulation  enters  into 
force,  funds  and  economic  resources  that  should  be  frozen  from  being  moved,  the 
Commission asks for the contents thereof not to be disclosed to the public before the 
Regulation  is  approved  by  the  Council  and  published  in  the  Official  Journal  of  the 
European Union. 

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2004/0114 (CNS) 

Proposal for a 

COUNCIL REGULATION 

imposing certain restrictive measures in support of effective implementation of the 
mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
60, 301 and 308 thereof, 

Having  regard  to  Common  Position  2004/…  /CFSP  on  further  measures  in  support  of 
effective implementation of the mandate of the International Criminal Tribunal for the former 
Yugoslavia,1 

Having regard to the proposal from the Commission,2 

Having regard to the opinion of the European Parliament,3 

Whereas: 

(1) 

(2) 

(3) 

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established 
by means of UN Security Council Resolutions 808 and 827 (1993), which are based 
on  Chapter  VII  of  the  UN  Charter.  The  ICTY  has  the  power  to  prosecute  persons 
responsible for serious violations of international humanitarian law committed in the 
territory  of  the  former  Yugoslavia  since  1991.  The  Security  Council  argued  that  the 
widespread and flagrant violations of humanitarian law occurring within the territory 
of  the  former  Yugoslavia  constituted  a  threat  to  international  peace  and  security  and 
that  the  establishment  as  an  ad  hoc  measure  of  an  international  tribunal  and  the 
prosecution of persons responsible for serious violations of international humanitarian 
law would contribute to the restoration and maintenance of peace. 

On 28 August 2003, UN Security Council Resolution 1503 (2003) called on the ICTY 
to complete all work in 2010 and on all States to intensify cooperation with and render 
all necessary assistance to the ICTY, particularly to bring all fugitive indictees to the 
ICTY. 

Common Position 2004/…/CFSP stipulates that certain funds and economic resources 
should be frozen in support of effective implementation of the mandate of the ICTY. 
This  additional  restrictive  measure  should  be  used  so  as  to  control  all  dealings  with 

1 
2 
3 

OJ L , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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funds and economic resources owned by persons indicted by the ICTY who are still at 
large and to ban any support they might receive from within the Community. 

The freezing of funds and economic resources falls within the scope of the Treaty and, 
therefore,  in  order  to  avoid  any  distortion  of  competition,  Community  legislation  is 
necessary  to  implement  this  measure  as  far  as  the  Community  is  concerned.  For  the 
purposes  of  this  Regulation,  the  territory  of  the  Community  should  be  deemed  to 
encompass  the  territories  of  the  Member  States  to  which  the  Treaty  is  applicable, 
under the conditions laid down in that Treaty.  

For  reasons  of  expediency,  the  Commission  should  be  empowered  to  amend  the 
Annexes to this Regulation. 

In order to ensure that the measures provided for in this Regulation are effective, this 
Regulation should enter into force on the day of its publication, 

(4) 

(5) 

(6) 

HAS ADOPTED THIS REGULATION: 

Article 1 

1. 

For the purposes of this Regulation, the following definitions shall apply: 

(1) 

"funds"  means  financial  assets  and  benefits  of  every  kind,  including  but  not 
limited to: 

(a) 

cash, cheques, claims on money, drafts, money orders and other payment 
instruments;  

(b)  deposits with financial institutions or other entities, balances on accounts, 

debts and debt obligations;  

(c) 

(d) 

(e) 

publicly  and  privately  traded  securities  and  debt  instruments,  including 
stocks  and  shares,  certificates  representing  securities,  bonds,  notes, 
warrants, debentures and derivatives contracts;  

interest,  dividends  or  other  income  on  or  value  accruing  from  or 
generated by assets;  

credit, right of set-off, guarantees, performance bonds or other financial 
commitments;  

(f) 

letters of credit, bills of lading, bills of sale;  

(g)  documents evidencing an interest in funds or financial resources; 

(h) 

any other instrument of export financing; 

(2) 

"freezing  of  funds"  means  preventing  any  move,  transfer,  alteration,  use  of, 
access to, or dealing with funds in any way that would result in any change in 
their volume, amount, location, ownership, possession, character, destination or 
other  change  that  would  enable  the  funds  to  be  used,  including  portfolio 
management; 

4 

 
 
  
 
2. 

1. 

2. 

3. 

1. 

(3) 

(4) 

"economic  resources"  means  assets  of  every  kind,  whether  tangible  or 
intangible,  movable  or  immovable,  which  are  not  funds  but  can  be  used  to 
obtain funds, goods or services; 

"freezing  of  economic  resources"  means  preventing  their  use  to  obtain  funds, 
goods or services in any way, including, but not limited to, the selling, hiring or 
mortgaging of them. 

Nothing  in  this  Regulation  shall  be  construed  as  preventing  the  crediting  of  the 
frozen accounts by financial institutions that receive funds transferred by third parties 
to  the  account  of  the  listed  person  or  entity,  provided  that  any  additions  to  such 
accounts  are  also  frozen.  The  financial  institutions  shall  immediately  inform  the 
competent authorities of such transactions. 

Article 2 

All funds and economic resources belonging to, or owned or held by, natural persons 
indicted by the ICTY, and listed in Annex I, shall be frozen. 

No funds or economic resources shall be made available, directly or indirectly, to or 
for the benefit of the natural persons listed in Annex I. 

The  participation,  knowingly  and  intentionally,  in  activities  the  object  or  effect  of 
which is, directly or indirectly, to circumvent the measures referred to at paragraphs 
1 and 2 shall be prohibited. 

Article 3  

By way of derogation from Article 2, the competent authorities of the Member States 
as listed in Annex II may authorise the release of certain frozen funds or economic 
resources  or  the  making  available  of  certain  frozen  funds  or  economic  resources, 
under  such  conditions  as  they  deem  appropriate,  after  having  determined  that  the 
funds or economic resources concerned are: 

(a) 

(b) 

necessary  for  basic  expenses,  including  payments  for  foodstuffs,  rent  or 
mortgage,  medicines  and  medical  treatment,  taxes,  insurance  premiums,  and 
public utility charges;  

intended  exclusively  for  payment  of  reasonable  professional  fees  and 
reimbursement  of  incurred  expenses  associated  with  the  provision  of  legal 
services;  

(c) 

intended exclusively for payment of fees or service charges for routine holding 
or maintenance of frozen funds or economic resources;  

(d)  necessary  for  extraordinary  expenses,  provided  that  the  relevant  competent 
authority  has  notified  the  grounds  on  which  it  considers  that  a  specific 
authorisation  should  be  granted  to  all  other  competent  authorities  and  the 
Commission at least two weeks prior to the authorisation. 

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The relevant competent authority shall inform the competent authorities of the other 
Member  States  and  the  Commission  of  any  authorisation  granted  under  this 
paragraph. 

2. 

Article 2(2) shall not apply to the addition to frozen accounts of: 

(i) 

interest or other earnings on those accounts; or 

(ii)  payments due under contracts, agreements or obligations that were concluded 
or  arose  prior  to  the  date  on  which  those  accounts  became  subject  to  this 
Regulation, 

provided that any such interest, other earnings and payments continue to be subject 
to Article 2(1). 

Article 4 

1. 

Without  prejudice  to  the  applicable  rules  concerning  reporting,  confidentiality  and 
professional secrecy and to the provisions of Article  284  of the Treaty, natural and 
legal persons, entities and bodies shall: 

(a) 

supply  immediately  any  information  which  would  facilitate  compliance  with 
this  Regulation,  such  as  accounts  and  amounts  frozen  in  accordance  with 
Article 2, to the competent authorities of the Member States listed in Annex II 
where they are resident or located, and shall transmit such information, directly 
or through these competent authorities, to the Commission; 

(b) 

cooperate with the competent authorities listed in Annex II in any verification 
of this information. 

Any  additional  information  directly  received  by  the  Commission  shall  be  made 
available to the competent authorities of the Member State concerned. 

Any information provided or received in accordance with this Article shall be used 
only for the purposes for which it was provided or received. 

2. 

3. 

Article 5 

The  freezing  of  funds  and  economic  resources  or  the  refusal  to  make  funds  or  economic 
resources  available,  carried  out  in  good  faith  on  the  basis  that  such  action  is  in  accordance 
with this Regulation, shall not give rise to liability of any kind on the part of the natural or 
legal person or entity implementing it, or its directors or employees, unless it is proved that 
the funds and economic resources were frozen as a result of negligence. 

Article 6 

The Commission and the Member States shall immediately inform each other of the measures 
taken under this Regulation and shall supply each other with any other relevant information at 
their  disposal  in  connection  with  this  Regulation,  in  particular  information  in  respect  of 
violation and enforcement problems and judgments handed down by national courts. 

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The Commission shall be empowered to: 

Article 7 

(a) 

amend  Annex  I,  taking  into  account  the  Council  decisions  implementing  Common 
Position 2004/…/CFSP, and 

(b) 

amend Annex II on the basis of information supplied by Member States. 

Article 8 

The Member States shall lay down the rules on sanctions applicable to infringements of the 
provisions  of  this  Regulation  and  shall  take  all  measures  necessary  to  ensure  that  they  are 
implemented. The sanctions provided for must be effective, proportionate and dissuasive. 

The Member States shall notify those rules to the Commission without delay after the entry 
into force of this Regulation and shall notify it of any subsequent amendment. 

This Regulation shall apply: 

Article 9 

(a) 

(b) 

(c) 

(d) 

within the territory of the Community, including its airspace; 

on board any aircraft or any vessel under the jurisdiction of a Member State; 

to any person inside or outside the territory of the Community who is a national of a 
Member State; 

to  any  legal  person,  group  or  entity  which  is  incorporated  or  constituted  under  the 
law of a Member State; 

(e) 

to any legal person, group or entity doing business within the Community. 

This Regulation shall enter into force on the day of its publication in the Official Journal of 
the European Union.  

Article 10 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels,  

For the Council 
The President 

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List of persons referred to in Article 2 

ANNEX I 

(1) 

(2) 

(3) 

Ante GOTOVINA. Date of birth: 12 October 1955. Place of birth: island of Pasman, 
Zadar, Croatia. 

Radovan  KARADZIC.  Date  of  birth:  19  June  1945.  Place  of  birth:  Savnik, 
Montenegro, Serbia and Montenegro. 

Ratko  MLADIC.  Date  of  birth:  12  March  1942.  Place  of  birth:  Kalinovik,  Bosnia-
Herzegovina. 

List of competent authorities referred to in Articles 3 and 4 

ANNEX II 

(to be completed) 

BELGIUM 

CZECH REPUBLIC 

DENMARK 

GERMANY 

ESTONIA 

GREECE 

SPAIN 

FRANCE 

IRELAND 

ITALY 

CYPRUS 

LATVIA 

LITHUANIA 

LUXEMBOURG 

HUNGARY 

MALTA 

NETHERLANDS 

AUSTRIA 

8 

 
 
  
 
POLAND 

PORTUGAL 

SLOVENIA 

SLOVAKIA 

FINLAND 

SWEDEN 

UNITED KINGDOM 

EUROPEAN COMMUNITY 

Commission of the European Communities 

Directorate-General for External Relations 

Directorate CFSP 

Unit A.2: Legal and institutional matters for external relations - Sanctions 

CHAR 12/163 

B - 1049 Bruxelles/Brussel 

Tel. (32-2) 296 25 56 

Fax (32-2) 296 75 63 

E-mail: relex-sanctions@cec.eu.int 

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