Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Mr. Hans Holthuis
20 September 2002
DECISION ON THE MOTION FOR PROVISIONAL RELEASE OF THE ACCUSED MOMIR TALIC
The Office of the Prosecutor:
Ms. Joanna Korner
Mr. Andrew Cayley
Counsel for the Accused:
Mr. John Ackerman and Mr. Milan Trbojevic, for Radoslav Brdjanin
Mr. Slobodan Zecevic and Ms. Natacha Fauveau-Ivanovic, for Momir Talic
TRIAL CHAMBER II (“Chamber”) of the International 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 for Provisional Release of Momir Talic” (“Motion”) filed confidentially by the Accused Momir Talic (“Talic”) on 10 September 2002.
“ (A) Once detained, an accused may not be released except upon an order of a Chamber.
(B) Release may be ordered by a Trial Chamber only after hearing the host country 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.
(C) The Trial Chamber may impose such conditions upon release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others.”
“the accused shall be presumed innocent until proved guilty”.
This provision both reflects and refers to international standards as enshrined inter alia in Article 14(2) of the International Covenant on Civil and Political Rights of 19 December 1966 (“ICCPR”) and Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (“ECHR”).
“First the Tribunal lacks its own means to execute a warrant of arrest, or to re-arrest an accused who has been provisionally released. It must also rely on the co-operation of States for the surveillance of accused who have been released . This calls for a more cautious approach in assessing the risk that an accused may abscond. It depends on the circumstances whether this lack of enforcement mechanism creates such a barrier that provisional release should be refused. It could alternatively call for the imposition of strict conditions on the accused or a request for detailed guarantees by the government in question.
(…) Among other factors that may be relevant in relation to the circumstances of individual cases the following may be mentioned: completion of the Prosecution’s investigation which may reduce the risk of potential destruction of documentary evidence; a change in the health of the accused or immediate family members”. 21
43. In reaching its decision the Trial Chamber has also taken into consideration Talic’s offer to waive his right to be present, should the proceeding against him continue. The Trial Chamber is not imposing any such condition upon him as a pre -requisite for his provisional release mainly because of legal considerations, but certainly acknowledges his willingness not to obstruct the contination of the trial agains t him.
44. The Prosecution seeks a stay of the decision in order to appeal against the grant of provisional release. The Defence has entered its opposition. It is, however , fit and proper, considering the Prosecution’s Response, that the grant of provisional release will therefore be stayed pending any appeal by the Prosecution.
For the foregoing reasons,
PURSUANT TO Rule 65 of the Rules
TRIAL CHAMBER II HEREBY GRANTS the Motion AND ORDERS the provisional release of Talic on the following terms and conditions:
Talic shall be transported to Schiphol airport in the Netherlands by the Dutch authorities .
At Schiphol airport, Talic shall be provisionally released into the custody of the designated officials of the FRY (whose names shall be provided in advance) and who shall accompany him for the remainder of his travel to his place of residence in Belgrade.
During the period of his provisional release, Talic shall agree to abide and will abide the following conditions, and the FRY shall ensure compliance with each and every of them:
To reside and remain at all times at the address provided in Belgrade26, except for occasional visits for tests, medical treatment and therapy, as may be required, to the VMA. For this purpose his address in Belgrade will be communicated by the Registrar to the authorities of FRY;
To inform the Representative of the Registry at the Field Office in Belgrade if he leaves the address provided for tests, medical treatment and therapy in VMA;
Without prejudice to condition a) above, to remain within the confines of the municipality of Belgrade;
Except when hospitalised at the VMA or when for reason of health unable to do so , to contact once a day the local police in Belgrade which will maintain a log and report accordingly to the Representative of the Registry at the Field Office in Belgrade at the end of each month;
To assume responsibility for, and bear all expenses necessary for his transport from Schiphol airport to Belgrade and back;
Under no circumstances will he travel to Banja Luka or any of the other municipalities covered by the Indictment, unless authorised by the Trial Chamber;
To surrender his passport to the Representative of the Registry at the Field Office in Belgrade or to the authorities of the FRY as required;
To surrender his driving license to the Representative of the Registry at the Field Office in Belgrade or to the authorities of FRY as required;
To consent to have the authorities of FRY verify his presence at the address provided in Belgrade or at the VMA, as may be required;
To consent to have a Representative of the Registry at the Field Office in Belgrade to verify his presence at the address provided in Belgrade or at the VMA, as may be required;
To consent to have a Representative of the Registrar of the Tribunal to have access to him at any time, in order to assess arrangements for his security and welfare ;
To consent to have a medical specialist appointed by the Registrar of the Tribunal to visit him once a month or as required, in order to assess and report his state of health;
Not to have any contacts with the other co-accused in the case;
Not to have any contacts whatsoever or in anyway interfere with victims or any person who may testify at his trial, or otherwise interfere in any way with the proceedings or the administration of justice;
Not to discuss his case with anyone, including the media, other than his counsel ;
Not to occupy any official position;
To comply strictly with any requirements by the authorities of FRY necessary to enable them to comply with their obligations under the order for provisional release and their guarantees;
To comply with any other and further order and/or condition the Trial Chamber may deem necessary under the circumstances;
To return to the Tribunal at such time and on such date as the Trial Chamber may order;
To comply strictly with any order of the Trial Chamber varying the terms of, or terminating, the provisional release of the accused.
REQUIRES the Dutch authorities:
To transport Talic to Schiphol airport;
At Schiphol airport, to provisionally release Talic into the custody of the designated official(s) of the FRY (whose name(s) shall be provided in advance to the Registrar of the Tribunal) and who shall accompany Talic for the remainder of his travel to his place of residence in Belgrade;
On Talic’s return flight, to take custody of the accused at Schiphol airport at a date and time to be determined by the Trial Chamber seised of the case;
To transport Talic back to the UNDU or to another place indicated by the Trial Chamber .
REQUIRES the authorities of FRY to assume responsibility for:
Transport expenses, jointly and severally with Talic, from Schiphol airport to his place of residence and back;
The personal security and safety of Talic while on provisional release;
Reporting immediately to the Registrar of the Tribunal the substance of any threats to the security of Talic, including full reports of investigations related to such threats;
Facilitating, at the request of the Trial Chamber or of the parties, all means of co-operation and communication between the parties and ensuring the confidentiality of any such communication;
Ensuring compliance with the conditions imposed on Talic by this or any future order ;
Submitting a written report to the Registrar of the Tribunal every month as to the presence of Talic and his compliance with the terms of this order and any further order;
Immediately detaining Talic should he breach any of the terms and conditions of his provisional release and reporting immediately any such breach to the Trial Chamber ;
Respecting the primacy of the Tribunal in relation to any existing or future proceedings in the FRY concerning Talic;
Not issuing to Talic any passport or document enabling him to travel.
INSTRUCTS the Registrar of the Tribunal
To consult with the Ministry of Justice of the Netherlands and the authorities of FRY as to the practical arrangements for Talic’s release and travel to Belgrade;
To keep Talic in custody until relevant arrangements are made for his travel, unless hospitalisation is needed instead;
To take any necessary measure to grant to Talic all the medical assistance he requires during the transfer from the UNDU to his place of residence in Belgrade;
To communicate to the authorities of FRY Talic’s address in Belgrade;
To appoint a medical specialist to have access to Talic once a month or as may be required in order to assess his state of health and who will provide a written report to this Tribunal on such state of health.
REQUESTS the authorities of all States through which Talic will travel:
to hold Talic in custody for any time he will spend in transit at the airport;
to detain and arrest Talic pending his return to the United Nations Detention Unit , should he attempt to escape.
That the provisional release of Talic is stayed pending an appeal by the Prosecution pursuant to Rule 65(D), (E), (F) and (G).
Done in French and English, the English version being authoritative.
Dated this twentieth day of September 2002
At The Hague
[Seal of the Tribunal]