Case No. IT-04-82-PT
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser
Mr. Hans Holthuis
18 July 2005
DECISION ON JOHAN TARCULOVSKI’S MOTION FOR PROVISIONAL RELEASE
The Office of the Prosecutor:
Mr. Kenneth Scott
Mr. William Smith
Counsel for the Accused:
Mr. Dragan Godzo for Ljube Boskoski
Mr. Antonio Apostolski for Johan Tarculovski
1. Trial Chamber II (“Trial Chamber”) of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”) is seised of the “Motion Filed by the Defense of Johan Tarculovski Requesting Provisional Release of Accused Tarculovski” (“Motion”) filed by the Defence for Johan Tarculovski (“Defence” and “Accused” respectively) on 20 May 2005, pursuant to Rule 65 of the Rules of Procedure and Evidence of the Tribunal (“Rules”).1 On 2 June 2005, the Prosecution filed the “Prosecution’s Response to Johan Tarculovski’s Application for Provisional Release” (“Response”), requesting that provisional release be denied.2 The “Defence Reply to the Prosecution’s Response to Johan Tarculovski’s Application for Provisional Release ” (“Reply”) was filed by the Accused on 27 June 2005.3
2. The Former Yugoslav Republic of Macedonia (“FYROM”) government has filed a guarantee pledging to undertake all measures to ensure that the Accused complies with all summonses of the Tribunal.4 The Netherlands, as the host country, has also filed a letter stating that it has no objections to the provisional release of the Accused.5 An oral hearing, at which the Defence and representatives of the FYROM government addressed the Trial Chamber, was held on 4 July 2005.
3. The Accused and Ljube Boskoski are included in the same indictment which was confirmed on 9 March 2005 and placed under seal (“Indictment”).6 The Accused is charged with violations of the laws or customs of war in connection with alleged attacks by the FYROM regular and reserve police on the village of Ljuboten between 10-12 August 2001. At the time of the attacks, the Accused was a police officer acting as an Escort Inspector in the President’s Security Unit, and also a member of the governing political party at the time, “VMRO-DPMNE”.7 The Accused is charged with individual criminal responsibility in the form of joint criminal enterprise, ordering, planning and instigating, and aiding and abetting under Article 7(1) of the Statute.8 Count 1 of the Indictment alleges the murder of seven individuals;9 Count 2, the wanton destruction of cities, towns or villages;10 and Count 3, cruel treatment in the form of detention and beating of civilians in various locations in Ljuboten and Skopje.11
4. The Accused was arrested by the FYROM authorities on 14 March 2005, pursuant to a confidential warrant of arrest issued by the Tribunal on 9 March 2005. The Accused was transferred to the United Nations Detention Unit in The Hague on 16 March 2005.
5. The Defence offers the following arguments in support of the Motion:
6. The Prosecution requests that provisional release be denied, for the following reasons:
7. The Defence offers the following arguments and evidence in rebuttal of the Prosecution’s submissions, and requests that the provisional release be allowed:
8. The Defence stated that the Accused has fulfilled the requirements set forth in Rule 65 of the Rules, in that he has presented personal and government guarantees that he will both appear at trial and not pose any danger to victims, witnesses, or other persons.39 The Defence further stated that the Accused had never received a summons or been notified of an indictment against him.40 In response to questions from the Trial Chamber about allegations of intentional avoidance of Prosecution investigators, the Defence stated that the Accused had been informed of a request for an interview by telephone but stressed that, in the FYROM, a summons is only valid in written form and when delivered in person.41 With respect to allegations of demonstrations in support of the Accused in the FYROM, the Defence stated that since 1999, the Accused has not been involved with the group of football supporters alleged to have demonstrated on behalf of the Accused, and so could not have organized them.42 The Accused delivered an oral statement on his own behalf, as well as a further written statement, reiterating in both his agreement to certain conditions of provisional release set forth by the Prosecution.43
9. The Prosecution argued against provisional release of the Accused. The Prosecution raised concerns about the ability of the FYROM authorities to “control what actually happens on the ground,” but conceded that the FYROM government has been “acting in good faith with regard to this investigation and others.”44 The Prosecution gave further evidence regarding the Accused’s avoidance of Prosecution investigators during the pre-indictment period, submitting that the behaviour of the Accused showed failure to cooperate with the Tribunal.45 The Prosecution agreed that the Accused had cooperated by providing interviews in 2003, but stated that the circumstances of that cooperation were “quite different.”46 The Prosecution conceded that the Accused does not appear to have a criminal record in the FYROM, as originally alleged in the written submissions.47 The Prosecution raised the concern however, that if released the Accused would be placed back in the community where the victims and witnesses live, and that this proximity poses a danger to the victims and witnesses by creating opportunities for intimidation.48 The Prosecution further alleged that the Accused has a “fanatical sort of support element” in the FYROM, presenting serious concerns in relation to witness protection.49 The Prosecution submitted that its evidence regarding demonstrations in support of the Accused was derived from highly accurate intelligence reports, and may be substantiated by witnesses if required.50
10. Ms. Meri Mladenovska-Gjorgjiveska, the Minister of Justice of the FYROM (the “Minister”) gave an oral statement in support of her previous written guarantee. The FYROM guaranteed that it will undertake all measures and activities to ensure the presence of the Accused at all summonses issued by the Trial Chamber.51 The FYROM further guaranteed that the Accused would not pose a threat to victims, witnesses, or other persons.52 The Minister reiterated the political will of her government for full cooperation with the Tribunal, both in the past and future.53 The Minister further addressed the existing and forthcoming legislation in the FYROM for criminal procedure, internal affairs, and witness protection which would allow the FYROM to comply with the orders of the Tribunal.54 With respect to witness protection law, the Minister stated that legislation was passed in May of 2005, to be implemented on January 1, 2006, “due to taking additional activities needed to initiate its implementation.”55
11. Rule 65(B) of the Rules provides the basis on which a Trial Chamber may order provisional release of the accused, as a discretionary matter notwithstanding the general rule of pre-trial detention stated in Rule 65(A) of the Rules.56 Rule 65(B) provides that:
Release may be ordered by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness, or other person.
12. Rule 65 is to be read in conjunction with Article 21(3) of the Statute, which provides that “the accused shall be presumed innocent until proven guilty according to the provisions of the present Statute.”57 The Accused bears the burden of proof in satisfying the Trial Chamber that, if released, he will appear for trial and pose no danger to victims, witnesses or other persons.58 A Trial Chamber is not obliged to deal with all possible factors which a Trial Chamber can take into account when deciding whether it is satisfied that, if released, an accused will appear for trial.59 It must deliver a reasoned opinion, however, and indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision.60
13. Among the factors which are considered relevant to the provisional release inquiry are:
a) the fact that the accused is charged with serious criminal offences;
b) the fact that, if convicted, the accused is likely to face a long prison term ;
c) the circumstances in which the accused surrendered;
d) the degree of cooperation given by the authorities of the State to which the accused seeks to be released;
e) the guarantees offered by those authorities, and any personal guarantees offered by the accused;
f) the likelihood that, in the case of breach of the conditions of provisional release, the relevant authorities will re-arrest the accused if he declines to surrender ;
g) the accused’s degree of cooperation with the Prosecution.61
14. The Trial Chamber is to consider all of these factors when it decides to grant provisional release, but all of them need not be considered when the Trial Chamber decides to refuse provisional release.62 For example, if one factor is sufficient to satisfy the Trial Chamber that the accused would not appear for trial if released, provisional release may be refused.63
15. In consideration of the seriousness of the offences with which an accused is charged, a Trial Chamber must make specific reference to the length of the sentence the accused can expect if convicted, and the incentive this may give the accused to flee.64 The expectation of a lengthy sentence cannot be held against the accused in abstracto, however, because all accused before the Tribunal face lengthy sentences if convicted.65 The Trial Chamber also observes that the European Court of Human Rights has “repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand.”66
16. In making a decision regarding provisional release, the Trial Chamber must consider the particular circumstances of each case. Thus, the weight given to government guarantees depends on the personal circumstances of the accused, including such factors as the position of the accused in relation to the willingness of the State to arrest him if he refuses to surrender himself.67
17. The cooperation of the accused with the Tribunal is also a relevant factor. A general attitude of cooperation toward the Tribunal is relevant to the issue that the accused will appear at trial.68 However, while cooperation may weigh in favour of the accused when seeking provisional release, an accused in the custody of the Tribunal who fails to cooperate with the Prosecution should not be penalized for declining to cooperate.69
18. A Trial Chamber must also review whether there is any danger posed by an accused, if released, to victims, witnesses, or other persons. The Trial Chamber may consider whether there was any suggestion that an accused had interfered with the administration of justice in any way since the date when an indictment was confirmed against him.70 Such assessments under Rule 65 cannot be done in abstracto; a concrete danger must be identified.71 If the influence of the accused over victims or witnesses is at issue, the Trial Chamber must rely on the information before it to determine whether the Accused would exercise such influence unlawfully.72
19. The Trial Chamber retains its discretion not to grant provisional release in cases where it is satisfied that the accused complies with the two requirements of Rule 65 of the Rules.73 Consequently, the express requirements within Rule 65(B) of the Rules should not be construed as intending to exhaustively list the reasons why release should be refused in a given case.74
The seriousness of the offences charged and the length of pre-trial detention
20. The Accused is charged with three counts under Article 3 of the Statute of the Tribunal, for violations of laws or customs of war, and, if convicted, may face a lengthy prison sentence. While this factor alone may not justify lengthy pre- trial detention, the Trial Chamber must take it into account as an incentive for the Accused to flee.75 The Defence and the Prosecution have additionally raised the issue of the expected trial date, which the Trial Chamber may consider in this context.76 The Prosecution stated in oral submissions that there are indications that trial could begin as soon as next year.77
The circumstances of the Accused’s surrender
21. The Accused was arrested by the FYROM authorities in March of 2005, pursuant to the order of the Tribunal and to a sealed indictment.78 The Defence has pointed out that the Accused was taken by surprise by his arrest, and due to the lack of notice of the Indictment, did not have the opportunity to surrender.79 Because the Indictment was sealed, the Trial Chamber finds that the circumstances of the surrender present a neutral factor in this provisional release determination. The Trial Chamber does note, however, the Prosecution’s argument that the pre-indictment behaviour of the accused, with respect to the attempts of the Tribunal to contact him, necessitated a sealed indictment.80
The character and assets of the Accused
22. The Defence has raised certain issues regarding the Accused’s character, as well as his assets with respect to being able to abuse provisional release if granted.81 The Prosecution has contested his claim of good character by citing an alleged criminal record in the FYROM,82 as well as a number of vehicles allegedly in the possession of the accused,83 allegations which the Defence has since rebutted.84 The Trial Chamber therefore does not find these factors to be relevant to this provisional release determination.
The personal guarantee
23. The Accused has presented a personal guarantee, and agreed to a number of conditions suggested by the Prosecution should provisional release be granted.85 The Accused has further raised certain family obligations as material to the provisional release determination.86 The Trial Chamber may consider these factors, but must first examine the other relevant factors,87 specifically evidence presented as to whether the Accused will appear at trial or will pose a danger to victims, witnesses, or other persons. In this case, the Trial Chamber finds that the other evidence diminishes the value of the personal guarantees.
The FYROM guarantee
24. The Trial Chamber heard oral submissions from the Minister regarding the ability of the FYROM government to guarantee the appearance of the Accused at trial and the protection of victims, witnesses, and other persons.88 At that same hearing, the Prosecution conceded that the FYROM government “have been acting in good faith in relation to this investigation and others,” and that they have been very cooperative.89 The Prosecution reiterated however that they remain sceptical of the practical ability of the political and executive powers to control “what actually happens on the ground.”90
25. The Trial Chamber finds that the FYROM authorities have exhibited a cooperative attitude towards the Tribunal, being willing to provide support in the form of investigative and law enforcement assistance, and in creating government liaisons to assist the Tribunal with its work. The Trial Chamber finds, however, that the guarantee must be balanced against other practical considerations.
Cooperation with the Prosecution and the Tribunal
26. The Prosecution submits, and the Defence has conceded,91 that attempts to interview the Accused were made by both representatives of the FYROM courts, and by investigators for the Prosecution, during the pre-indictment period of June through October of 2004.92 The Prosecution further submits that in October 2004, due to lack of cooperation from the Accused, the FYROM authorities were forced to arrest the Accused in order to question him.93 According to the Prosecution, the numerous attempts made to contact the Accused, which at one point number over twenty attempts in a two week period, amount to “active” or “intentional ” avoidance of the Prosecution investigators.94
27. The Trial Chamber is mindful of the right of the Accused to remain silent.95 In this case the Trial Chamber finds that the pattern of active avoidance, including failing to register a valid address, failure to attend scheduled meetings for investigative questioning, and selling the SIM card for his cellular telephone number at a time when the Accused knew that he was wanted for questioning, demonstrates lack of good faith towards the Prosecution on the part of the Accused. The fact that the Accused chose not to participate in the investigative process in this manner demonstrates both the will to obstruct the judicial process, as well as the material ability to do so successfully. While, as stated above, the Trial Chamber appreciates the political will demonstrated by the FYROM authorities with respect to cooperation with the Prosecution and enforcement of the rule of law, the Trial Chamber must nonetheless consider the potential impact in terms of delay of the judicial process should the Accused choose once again to actively circumvent cooperation. In these particular circumstances, the Trial Chamber finds that the pre-indictment behaviour of the Accused is a highly significant factor in assessing the likelihood of appearance of the Accused at trial.
28. The Defence has presented personal guarantees which state that the Accused will not have contact with victims or witnesses involved in these proceedings.96 The Defence has successfully rebutted, and the Prosecution has conceded,97 the contention that the Accused has a criminal record in the FYROM.
29. The Prosecution has presented evidence that the Accused has active supporters willing to demonstrate and take action on his behalf, in both Skopje and the village of Ljubanci.98 The Prosecution further submits that the proximity of the Accused, if released, to the village of Ljuboten, combined with “a pre-disposition for violent behaviour” inevitably increases the likelihood of harm to victims, witnesses and other persons.99 The Prosecution submits that this base of support, combined with proximity and the lack of an operative witness protection law, creates a combustible situation with a high likelihood of harm to victims, witnesses, and other persons.
30. The Trial Chamber agrees that the presence of active supporters of the Accused, in close proximity to victims and witnesses, presents a concrete danger of harm to victims and witnesses, and of interference with the administration of justice. Specifically, the Trial Chamber notes the roadblock in the village of Ljubanci, in close proximity to the location of the alleged crimes of the Accused.100 In this instance, as a show of support for the Accused, supporters of the Accused successfully kept police and the public from entering the village.101 In addition, supporters of the Accused demonstrated in front of the FYROM Supreme Court, and according to intelligence reports, called for weapons and ammunition in support of the Accused.102
31. The Accused claims to have distanced himself from the “Komiti” football formation,103 a group of which he was allegedly the head and which has been described as violent.104 However, the Trial Chamber finds that such manifestations of support, involving the successful blockade of the FYROM authorities, as well as calls to arms on behalf of the Accused, present concrete evidence of potential harm to victims and witnesses, and of interference with the administration of justice.
32. The Trial Chamber addressed the concerns about witness protection law in the FYROM at the provisional release hearing.105 The FYROM government has made a guarantee, in the form of a statement at the provisional release hearing, which states that the Accused will not be allowed to threaten victims, witnesses, or other persons.106 The FYROM government is, at this time, in the process of implementing a witness protection law.107 Notwithstanding the positive implications of this legislation, the Trial Chamber remains concerned about the ability of the FYROM authorities to actively protect witnesses.
33. The Trial Chamber has the discretion to order the provisional release of the Accused pursuant to Rule 65 of the Rules if it is satisfied that the Accused will appear for trial and that, if released, the Accused will not pose a danger to victims, witnesses, or other persons. On the basis of the foregoing, the Trial Chamber finds that there are serious concerns in relation to both standards.
34. For the foregoing reasons and pursuant to Rule 65 of the Rules, the Trial Chamber DENIES the Motion.
Done in French and English, the English version being authoritative.
Dated this 18th day of July 2005,
At The Hague,
[Seal of the Tribunal]