Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Mumba
Judge Mehmet Güney
Mr. Hans Holthuis
28 September 2005
Ljube BOSKOSKI and Johan TARCULOVSKI
DECISION ON LJUBE BOSKOSKI’S INTERLOCUTORY APPEAL ON PROVISIONAL RELEASE
Dragan Godzo (for Ljube Boskoski)
Antonio Apostolski (for Johan Tarculovski)
Office of the Prosecutor
1. Ljube Boskoski (“Appellant”) has filed an appeal against the decision of the Trial Chamber rejecting his application for provisional release.1 Prior to filing his Appeal, the Appellant filed an application for leave to appeal from a bench of three Appeal Judges in accordance with Rule 65 (D) of the Rules of Procedure and Evidence of the Tribunal (“Rules”).2 On 8 August 2005, an amendment to Rule 65 entered into force, granting leave to appeal as a right to a bench of five Judges of the Appeals Chamber.3 On 15 August 2005, the President issued an order assigning a bench of five Appeals Judges and ordered the parties to brief the appeal with time running from the date of the Order.4 On 22 August 2005, the Appellant filed his Appeal and on 1 September 2005, the Prosecution filed its response to the Appeal.5
2. The indictment against the Appellant was confirmed on 9 March 2005, and he was subsequently transferred to the United Nations Detention Unit (“UNDU”) on 24 March 2005. The indictment against the Appellant charges him jointly with Johan Tarculovski for violations of the laws and customs of war. Specifically, he is charged under Article 7(3) of the Statute of the International Tribunal with command responsibility for certain violations of the laws and customs of war, including murder, wanton destruction, and cruel treatment of civilians. The crimes are alleged to have been committed during the period from 10-12 August 2001 during an attack on the village of Ljuboten by police forces of the Former Yugoslav Republic of Macedonia (“FYROM ”) 6 under the Appellant’s command and control. At that time of the attack, the Appellant held the position of Minister of the Interior in the FYROM government.7
3. The Appellant is also facing separate criminal charges in both Croatia and the FYROM stemming out of events unrelated to this case. He is accused of murdering seven civilians in the FYROM on 2 March 2002, events referred to as the “Rastanski Lazja case”. The Trial Chamber in this case found that the Appellant, rather than face these charges in the FYROM, had fled the country and was later apprehended in Croatia. At the time of his transfer to the UNDU, the Appellant was in the custody of the County Court in Pula, Croatia, where he was awaiting trial on Croatian criminal charges arising from the Rastanski Lazja case. The Appellant is a citizen of both Croatia and the FYROM, and he now seeks provisional release to either country.8
4. Under Rule 65(B) of the Rules, an accused seeking provisional release bears the burden of proving that he “will appear for trial and, if released, will not pose a danger to any victim, witness, or other person”. The Trial Chamber in this case held that the Appellant had satisfied neither requirement with respect to release to the FYROM, and that with respect to release to Croatia, he had not established that he would appear for trial. It cited a number of factors indicating the Appellant’s potential flight risk, including the seriousness of the criminal charges faced in three jurisdictions, his previous flight from justice in the FYROM, the unreliability of the FYROM’s guarantees of the Appellant’s presence at trial, and the absence of governmental guarantees from Croatia. With respect to the finding of danger to witnesses in the FYROM, the Trial Chamber cited evidence of witness intimidation in the Rastaski Lozja case as well as his continued ties to the “Lions formation ” police unit allegedly formed by the Appellant that had allegedly been involved in violence. For these reasons, the Trial Chamber denied provisional release.9
5. An interlocutory appeal from a decision of a Trial Chamber is not an appeal de novo. For the Appeals Chamber to intervene in a Trial Chamber’s exercise of discretion, such as the decision on whether or not to grant provisional release, the Appellant must demonstrate that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.10
6. In this Appeal, the Appellant alleges a number of errors on the part of the Trial Chamber in the Impugned Decision. Most of those errors relate to the weight the Trial Chamber attributed to various factors that the Appellant claims discharged the burden upon him to show that he would appear for trial and that also show that he would not interfere with victims and witnesses if provisionally released.11 He claims that the Trial Chamber placed too much weight on the possibility of danger to victims and witnesses and placed undue emphasis on his connections to the Lion’s group. He further argues that the Trial Chamber erred in holding that if the FRYOM conducted its trial against him on the Rastanski Lazja case, it may hinder the Croatian authorities from completing their prosecution of him. Finally, the Appellant claims that the Trial Chamber erred by placing undue weight on the Croatian government’s failure to provide a guarantee of his appearance at trial.
7. In the Impugned Decision, the Trial Chamber noted that the Appellant had provided personal guarantees that he would appear for trial and abide by any conditions imposed by the Trial Chamber, and specifically stated that it had taken them into account in determining whether or not the Appellant would appear for trial.12 The Trial Chamber also explicitly stated that it had taken note of the letters provided by the Appellant from leading politicians in the FYROM attesting to his good character.13 However, the Appellant claims that the Trial Chamber should have placed greater weight on his personal guarantees, including his statement that he was willing to offer “his family’s whole personal assets as a bail bond”14 and should have attached appropriate weight to the personal guarantees given by “relevant present politicians in FYROM”.15 He also claims that the Trial Chamber erred when it failed to consider that he intended to return to political duty once the case at the Tribunal has been determined against him as this factor is relevant to assessment of his motive to flee.16 The Appellant argues that in the Haradinaj case, the Trial Chamber placed significant weight on similar factors, and for the Trial Chamber not to do so in his case would be inconsistent with the Tribunal’s jurisprudence.17
8. The Appeals Chamber finds that the Trial Chamber’s consideration of the factors identified by the Appellant was reasonable in the circumstances of his case.18 While the Trial Chamber did not explicitly deal with the Appellant’s claim that he wanted to return to public life once the Tribunal’s proceedings were finalised, the Appeals Chamber is not satisfied that this factor could outweigh the other factors upon which the Trial Chamber relied to conclude that the Appellant would not appear for trial if released, including the Appellant’s prior flight from the FYROM. These factors are considered further below. The Appellant’s argument that the Trial Chamber attached considerable weight to such factors in the Haradinaj case, is irrelevant to the weight such factors should carry in the Appellant’s case. These factors are evaluated in light of the circumstances of each case, and there are few similarities between the circumstances of these two cases.
(ii) Letters of the Appellant Seeking Transfer to FYROM to Face Trial
9. In the Impugned Decision, the Trial Chamber did not consider that the Appellant had written to the Court President in Pula, Croatia, seeking transfer to FYROM to face trial in the Rastanski Lozja case, to be a necessary factor for the determination of whether the Appellant would return to The Hague to face trial here if released. The facts that the Trial Chamber considered relevant in this context were that the Appellant had fled FYROM to avoid prosecution there,19 and had been transferred to The Hague from the custody of the Croatian authorities where he was awaiting trial in that same prosecution, albeit by a different authority.20 However, the Appellant argues that the Trial Chamber erred by concluding that he had fled the FYROM. He says he did not flee but rather legally entered into Croatia, and that both FYROM and Croatia are legal places of residence for him. He argues that if he had intended to flee prosecution in FYROM, he certainly would not have fled to Croatia, where he has a legal right to reside, and furthermore would not have “legally registered his residence in Zagreb”.21 The Appellant claims that the Trial Chamber’s analysis of the evidence was “wholly erroneous” and led to an error of law.22
10. In the Impugned Decision, the Trial Chamber considered the evidence of the Prosecution which established that on 30 April 2004, a committee of the FYROM parliament voted to remove the Appellant’s parliamentary immunity. On that day, the Appellant held a press conference at a hotel to discuss the removal of his immunity. The investigating Judge in the FYROM served the Appellant, while at the hotel, with a summons to appear before that judge the following day and informed the Appellant of the reasons for the summons, his legal rights and the consequences should he fail to appear. The Appellant left the FYROM that day.23 In these circumstances, the finding of the Trial Chamber that the Appellant left the FYROM to avoid criminal prosecution24 was clearly reasonable, and particularly in light of the conflicting explanations given by the Appellant regarding his departure at that time. He initially claimed that he had never received the summons,25 and later claimed that he had departed because he “feared for his life and that the trial would not be fair”.26 As such, with this information before the Trial Chamber, it was reasonable for it to conclude that his letters showing that he wished to be transferred back to the FRYOM to face those same criminal proceedings were insufficient to establish that he would return for trial at the Tribunal if provisionally released.
11. In the Impugned Decision, the Trial Chamber found that even if it accepted the Appellant’s claim that the severity of the charges against him were at the “bottom end” of the scale vis-à-vis other accused, the charges are still very serious and if convicted, the Appellant could face a lengthy sentence.27 The Trial Chamber noted the charges against the Appellant in the Rastanski Lozja case, which alleged participation in the murder of seven people in the FYROM, and while considering that the guilt or innocence of the Appellant was an issue of fact to be litigated in that case, the Trial Chamber considered that if the Appellant were convicted for either that case or this one before the Tribunal, it was likely that a lengthy prison sentence would be imposed. It concluded therefore that “the potential for a lengthy prison sentence resulting from either of these two cases may constitute an incentive for the Accused to flee as a factor in determining whether the Accused will appear for trial”.28 The Appellant argues that the Trial Chamber erred by failing to consider that a not guilty verdict had been rendered against his co-accused in the Rastanski Lozja case. He claims this is not an incentive for him to flee and in fact, he made clear submissions to the Trial Chamber that he was willing to face trial in both cases.29 The Appellant claims that the Trial Chamber further erred by “regarding the possible severity of the sentence as determinative”.30
12. The Appeals Chamber finds that that the Trial Chamber’s consideration of the severity of a possible sentence in either case was a relevant factor to be weighed in the Trial Chamber’s consideration of whether the Appellant would appear for trial. Despite the assertion of the Appellant, it is evident from the Impugned Decision that the Trial Chamber considered this as a relevant factor to be considered and not a determinative factor.31 Although the Trial Chamber failed to consider the not guilty verdict rendered in favour of the Appellant’s co-accused in the Rastanski Lozja case, the Appeals Chamber notes that the Appellant’s guilt or innocence remains a matter to be adjudicated. In these circumstances, it was entirely reasonable for the Trial Chamber to take into account the possibility of a conviction of the Appellant in that case, as well as the case before the Tribunal as an aggravating factor providing an incentive for the Appellant to flee.
13. The Trial Chamber’s consideration of this evidence in the Impugned Decision has already been considered above.32 The Appellant argues that the Trial Chamber erred by failing to consider that “he fully submitted himself to the authorities of Croatia and FYROM”.33 He says that the evidence established that he had entered Croatia legally; properly registered his residence in Zagreb; cooperated with the Croatian authorities regarding the Rastanski Lozja case; and requested transfer to FYROM to face trial in the Rastanski Lozja case.34
14. The Trial Chamber’s consideration of the evidence demonstrating that the Appellant left the FYROM to escape criminal prosecution has already been discussed above.35 The finding of the Trial Chamber was well founded and clearly reasonable.
15. The Trial Chamber considered the Appellant’s submission that because he was already in custody at the time of his transfer to The Hague, he was not in a position to surrender voluntarily to the Tribunal. The Trial Chamber considered that in these circumstances it could not “give much weight surrounding the surrender of the Accused to the Tribunal”.36 The Appellant claims that the Trial Chamber erred as he did not resist his transfer to the United Nations Detention Unit and “did not employ any legal means to delay or evade extradition”.37 The Appeals Chamber agrees with the Prosecution that “this ground is baseless”.38 As the Appellant was in legal custody, he was not in a position to be voluntarily transferred to the Tribunal and the fact that he did not actively seek to prevent Croatia from carrying out its international legal obligation to transfer him to the Tribunal is not a factor that should be weighed in the Appellant’s favour. Accordingly, the finding of the Trial Chamber was clearly reasonable.
16. In the Impugned Decision, the Trial Chamber considered the government guarantees and the oral submissions made by the Minister of Justice of the FYROM with respect to the capacity of the FYROM government to guarantee the appearance of the Appellant at trial and to ensure the protection of victims, witnesses and other persons. It also made note of the Prosecution’s concession that the FYROM government “has been cooperative and has acted in good faith in relation to this investigation and others”, but also “its concerns regarding the practical ability of the FYROM government to control what actually happens on the ground”.39 In light of the evidence presented, the Trial Chamber found that the FYROM had shown a cooperative attitude to the Tribunal and had been willing to provide investigative and law enforcement assistance.40 However, it found that these factors had to be balanced against other practical matters and the circumstances of the Appellant. Relevant circumstances included the influence the Appellant has retained among the public and the police and the fact that the Appellant was alleged to have been assisted by the police in fleeing FYROM. The Trial Chamber found “that the failure of the FYROM to prevent the Accused from fleeing to avoid prosecution in the Rastanski Lozja case is a factor that should be weighed in determining whether the Accused will appear for trial”.41
17. The Appellant claims that the Trial Chamber’s assessment of these guarantees was erroneous. He argues that the Trial Chamber “erred when not granting the benefit of the doubt to the FYROM authorities”.42 He again refers to the situation in the Haradinaj case as an example of which the Trial Chamber should have followed.43 The Appellant also claims that the Trial Chamber erred by failing to also consider that the Prosecution had not established that he exercised influence over the police force and by failing to take into account that FRYOM could not legally obstruct his trip to Croatia as there was no proceeding against him at the time he left FYROM.44
18. The Appeals Chamber finds that the Appellant has not demonstrated any error in the Trial Chamber’s analysis of the government guarantees. It was entirely reasonable for the Trial Chamber to consider the FYROM guarantees in the context of the Appellant’s circumstances and to conclude that the guarantees were not sufficient to ensure that the Appellant would appear for trial. It was also entirely reasonable for the Trial Chamber to consider that the Appellant’s former position as Interior Minister meant that he retained influence over the police and that the failure of the FYROM authorities to prevent his departure from FYROM at the time of the lifting of his political immunity, was evidence of that continued influence.
19. In considering whether the Appellant would pose a danger to victims and witnesses, the Trial Chamber took into account the personal guarantees of the Appellant, the fact that if provisionally released, he would be in close proximity to victims and witnesses, and the fact that there was no witness protection law operative in the FYROM. It also took note of the evidence of witness intimidation in the Rastanski Lozja case and of the threats of violence from former members of the Lions formation. The Trial Chamber agreed with the Prosecution that the influence the Appellant had over the Lions formation “may present a concrete harm to victims and witnesses, and the interference with the administration of justice”.45 It recognised that the fact of influence by the Appellant did not necessarily mean that he would exercise that influence illegally, but noted that he was alleged to have already exercised it illegally by accepting the assistance of the police to flee the FYROM. Considering the totality of the evidence, the Trial Chamber was not persuaded that the release of the Appellant would not pose a danger to victims, witnesses or other persons.46
20. The Appellant argues that the Trial Chamber placed undue weight on the consideration of victims and witnesses in denying provisional release and that it placed undue weight on his connection to the Lions formation without actual evidence of there being a likely danger to victims and witnesses.47 The Appeals Chamber finds these claims to be without merit. The Appeals Chamber notes that while there may not have been specific evidence of witness intimidation in the case before the Tribunal, there was evidence of witness intimidation in the Rastanski Lozja case by members of the Lions formation, and it was reasonable for the Trial Chamber to consider that as evidence of a possible danger to witnesses in this case.
21. The Appellant also argues that the Trial Chamber misjudged the evidence concerning his continued influence over the police force. He says he has not been the Minister of Interior for more than three years and that the Lions formation was disbanded in 2002 by a government decision and no longer exists. He claims that the former members of the Lions are not under his control and that there is not a single incident involving a threat to a victim or witness to support the Trial Chamber’s finding.48 The Appeals Chamber finds that, in making these claims, the Appellant has not demonstrated that the reasoning of the Trial Chamber regarding his continued influence over the police was unreasonable. It was quite reasonable for the Trial Chamber to conclude that his former position as Interior Minister meant that he retained some influence in the present circumstances, where the FYROM failed to prevent the Appellant from fleeing from FYROM to avoid criminal prosecution.49 The Trial Chamber’s finding is supported by the evidence of witness intimidation in the Rastanski Lozja case by members of the Lions formation.
22. Another factor considered by the Trial Chamber was that the Appellant has been transferred to the Tribunal from the custody of the Croatian authorities who had the Appellant in custody pending trial in the Rastanski Lozja case. It noted that should it provisionally release the Appellant to the FYROM, where the Appellant faced charges for the same case, a trial there could prevent the Croatian authorities from completing their criminal proceedings in that case. On principles of international comity, it stated that it would not want to provisionally release the Appellant to the FYROM without having the consent of the Croatian authorities.50 The Appellant contends that the same alleged crimes could be tried either in Croatia or the FYROM so the venue does not matter.51 But the Appeals Chamber note that the Trial Chamber’s holding was not merely based on a concern with enabling those crimes to be effectively prosecuted; rather, it related to respect for Croatia’s interest in continuing its own ongoing criminal proceedings in the case. That interest would not necessarily be satisfied by a trial in the FYROM, and so the Trial Chamber was not wrong in stating that comity concerns made it advisable to seek the views of Croatia on the matter. Accordingly, the Appellant has not established an error in the reasoning of the Trial Chamber.
23. The Trial Chamber invited the Croatian government to send representatives to attend the oral hearing on the provisional release application of the Appellant. The Croatian government chose not to send such a representative and while the Trial Chamber noted the submissions of the Appellant and the Prosecution of “the willingness of the Croatian government to respect the decision of the Tribunal in regard to the provisional release”, it also noted that the Croatian government had failed to issue guarantees of the Appellant’s appearance at trial at the Tribunal, and had not attended the oral hearing. In these circumstances, the Trial Chamber reasonably concluded that it was unable to determine the current position of the Croatian government. Given the Trial Chamber’s reservations as to the Appellant appearing for trial, the lack of government guarantees from the Croatian government weighs heavily against the Appellant.52 The Appellant claims that the Trial Chamber erred by weighing the lack of guarantees too heavily against him given that the jurisprudence of the Tribunal makes clear that government guarantees are not a necessary condition of provisional release.53 Again, the Appellant has failed to show that the Trial Chamber’s reasoning was erroneous. While a lack of governmental guarantees does not alone bar provisional release, the Trial Chamber reasonably concluded that given the lack of such guarantees from Croatia as well as the other above-discussed factors such as the Appellant’s history of flight, it could not be confident in the Appellant’s presence for trial at the Tribunal. Accordingly, the Appellant has again failed to establish any error on the part of the Trial Chamber.
24. As noted previously, in order to demonstrate that he is entitled to provisional release, the Appellant must show both that he would appear for trial and that he poses no danger to others. The Trial Chamber’s findings, upheld by the Appeals Chamber here, demonstrate that his release to either Croatia or the FYROM would pose a significant risk of his flight, and the first criterion is therefore not satisfied. Although it is therefore not necessary to consider the second criterion, the Appeals Chamber has also found no error in the Trial Chamber’s holding that his release to the FYROM would potentially endanger witnesses there.
On the basis of the foregoing, the Appellant’s interlocutory appeal is DISMISSED.
Done in English and French, the English text being authoritative.
Dated this 28th day of September 2005,
At The Hague,
Judge Theodor Meron
[Seal of the International Tribunal]