Case No. IT-98-29/1-PT

Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Order of:
13 July 2005

Counsel for the Prosecutor:

Mr. Chester Stamp

Counsel for the Accused:

Mr. Branislav Tapuskovic

INTRODUCTION
1. This Trial 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 seized of “Defence’s Motion for Provisional Release” (“Motion”) filed on 26 April 2005 by Dragomir Milosevic (“Accused”), whereby the Accused requests the Trial Chamber to order his provisional release until the beginning of the trial, pursuant to Rule 65 of the Rules of Procedure and Evidence (“Rules”). On 10 May 2005, the Prosecution filed a “Prosecution’s Response to the Accused’s Motion for Provisional Release” (“Response”).

2. The Accused was initially charged jointly with Stanislav Galic in an indictment confirmed on 24 April 1998 and made public on 2 November 2001.¹ Following the arrest of Stanislav Galic, an ex parte and confidential order of 19 March 1999 authorised the Prosecutor to file an indictment of those charges solely related to Dragomir Milosevic,² and this indictment was filed on 26 March 1999 (“Indictment”). An order of 24 February 2005 held that the Initial Indictment and Indictment dated 26 March 1999 were “essentially identical”³ and made the latter public.
   THE LAW

3. Rule 65 of the Rules provides in the relevant parts:

   (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 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.

4. The Accused has the burden of proof on both elements which are pre-requisites for provisional release, set out in Rule 65(B), and must satisfy the Chamber on a balance of probabilities.⁴ This Trial Chamber considers that even if the Accused fully discharges his burden in relation to each element, he must then satisfy the Chamber having regard to all the circumstances that it should exercise its discretion to order provisional release.⁵
   DISCUSSION
   Opportunity to be heard

5. Guarantees have been provided in respect of the Accused by the Government of the Republic of Serbia on 9 December 2004 and the Council of Ministers of Serbia and Montenegro on 24 December 2004. The Trial Chamber therefore considers that the requirement of giving “the State to which the accused seeks to be released” the opportunity to be heard, set forth in Rule 65(B) of the Rules, is satisfied. The Trial Chamber notes that the Government of The Netherlands, the host country, has not filed any submissions but considering that the Motion was communicated to The Netherlands and that sufficient time has elapsed, the Trial Chamber considers that the host country has been given the opportunity to be heard.
   Whether the Accused will appear for trial

6. The Trial Chamber notes that the Statute of the Tribunal⁶ and the Rules⁷ provide for the pre- trial detention of accused, subject to Rule 65(B) of the Rules, but that a decision on provisional release must observe the relevant human rights standards that de jure pre-trial detention should be the exception and not the rule.⁸ The Appeals Chamber has indicated a non-exhaustive set of factors which a Trial Chamber should take into consideration while assessing whether an accused will appear for trial.⁹
   The gravity of the crimes charged

7. The Trial Chamber notes that the Accused is charged in the Indictment with crimes related to the campaign of shelling and sniping by Bosnian Serb forces against the civilian population of Sarajevo in which thousands of civilians were allegedly killed or injured - one count of unlawfully inflicting terror upon civilians¹⁰ and two counts of attacks on civilians¹¹ as violations of the laws or customs of war; as well as two counts of murder¹² and two counts of inhumane acts¹³ as crimes against humanity. The Accused is allegedly responsible for these crimes both individually under Article 7(1) of the Statute and as a superior under Article 7(3) of the Statute as Corps Commander of the Sarajevo Romanija Corps, where he was in a position of superior authority to approximately 18,000 military personnel.¹⁴

8. The Trial Chamber observes that the Tribunal was established for the prosecution of serious violations of international humanitarian law¹⁵ and therefore cases before it involve allegations of serious offences. It considers that the seriousness of offences should not be assessed in the abstract, but rather in the light or the requirements imposed by Rule 65 (B). The seriousness of the crimes charged is one of the factors that a Trial Chamber is required to take into account in assessing whether the accused will appear for trial if released.¹⁶ In Cermak, the Appeals Chamber held that it is “reasonable for a Trial Chamber to take into account the gravity of the offences charged in order to determine whether facing the possibility of a lengthy sentence would constitute an incentive for an accused to flee. It is evident that the more severe the possible sentence which an accused (…( is facing, the greater is his incentive to flee.”¹⁷ However, the seriousness of the charges cannot be the sole factor in denying provisional release – it must be considered in addition to the other factors.¹⁸

9. First, the Defence Motion cites the Prosecution’s Rule 11bis Motion of 31 January 2005 as stating “as a matter of fact, neither the gravity of crimes alleged nor the rank of the accused demand that this case be brought to trial before the International Tribunal.”¹⁹ The Prosecution’s Response rejects the assertion that the crimes alleged are not grave, relying on the introductory wording of the above cited passage which begins: “ Although these crimes are very grave”.²⁰ The Appeals Chamber has already dealt with the issue of provisional release while referral under Rule 11bis is being considered in its Third Decision on Provisional Release in Mrksic, stating:

   it does not follow that the effect of a request pursuant to Rule 11bis of the Rules is that the cumulative requirements set out in Rule 65(B) of the Rules would be automatically satisfied […] it cannot be inferred from the wording of the Request for Referral that the charges against the Applicant are not of a grave nature.²¹

   Therefore, the Trial Chamber rejects the claim of the Accused that the crimes alleged in the Indictment against him are any less serious simply because of the Rule 11bis proceedings.

10. As to the second issue related to the seriousness of the offences, the Accused submits that the Galic sentence “should not in any respect affect deciding upon this Motion” because Galic is under appeal and, at any rate, it cannot be a basis to conclude “with absolute certainty” that the Accused will be sentenced to a long term of imprisonment if he is convicted.²² The Prosecution disagrees and argues that the seriousness of the offences may be assessed with reference to the Indictment as well as the Trial Chamber Judgment in Galic.²³ The Trial Chamber recognizes that “(t(he circumstances of each accused who applies for provisional release must be evaluated individually”.²⁴ Therefore, when the Trial Chamber is evaluating the request for provisional release of an accused person, it would generally be improper to consider the outcome of the case against a co-accused unless their circumstances are distinguished so that any such comparison is reasonable.²⁵ The Trial Chamber decides, with this cautious approach, that it is entitled to consider the sentence delivered in Galic given that this case involved similar charges and similar events as those involving the Accused. The fact that the Galic decision is on appeal has no relevance for the purpose of gaining insight into the seriousness of the crimes alleged against the Accused.²⁶ Furthermore, the standard applied in evaluating the seriousness of the offences is a balance of probabilities – not “absolute certainty” as invoked in the Motion.

11. The Trial Chamber also finds that on an assessment of the Indictment dated 26 March 1999, the offences alleged are of a very serious nature and that, if convicted, the Accused would likely face a long term of imprisonment that enhances the risk he would flee if provisionally released. With respect to the Indictment, the Trial Chamber notes that it alleges the Accused held a “senior position of Major General in the Bosnian Serb Army”²⁷ and “( t(he alleged crimes involve a pervasive and continuous campaign of shelling and sniping conducted on a large scale on an almost daily basis over approximately 16 months and were part of a widespread and systematic attack against a civilian population which resulted in thousands of civilian casualties.”²⁸ In particular, the alleged death and injury caused to extremely young children ( as young as two years old), women and other civilians brings added weight to the seriousness of the charges against this Accused.²⁹

12. The Trial Chamber, considering the very serious nature of the crimes alleged in the Indictment, in conjunction with limited reference to the 20 year term of imprisonment in Galic, finds that the seriousness of the offences allegedly committed by the Accused would result in a substantial term of imprisonment, if he is convicted.³⁰ As stated earlier, this factor alone is insufficient to deny his request for provisional release, so it must be considered along with other relevant factors.
    Circumstances of surrender

13. As regards the circumstances of his surrender, the Accused submits that he “surrendered to the Tribunal even before the indictment against him was made public.”³¹ The Trial Chamber considers the voluntary surrender of an accused to be an important factor in determining whether he will appear at trial if provisionally released. Article 36 of the Law on Co-operation of Serbia and Montenegro with the Tribunal “prescribes the obligation of Ministries’ Council of Serbia and Montenegro and (the( Government of the Republic of which the Accused is the citizen, to give guarantee for persons which voluntarily give himself up to the International Criminal Tribunal”.³²

14. First, the Trial Chamber must determine whether, as a matter of fact, the accused voluntarily surrendered. Second, the Trial Chamber must evaluate whether the circumstances of the particular case afford more or less weight to this factor.³³

15. The Defence has consistently maintained that the Accused voluntarily surrendered, including at the Status Conference of 22 February 2005 where Defence Counsel stated “I think it is beyond dispute that he surrendered of his own free will and appeared here”. ³⁴ The Prosecution did not see fit to challenge this assertion at the time that it was made. In the Motion, it is more fully stated that the Accused voluntarily surrendered to the authorities of Serbia and Montenegro and was subsequently transferred to the United Nations Detention Unit (“UNDU”) on 3 December 2004.³⁵

16. The Prosecution’s Response implies that the Accused did not, in fact, voluntarily surrender.³⁶ However, the Trial Chamber observes that nowhere in the Response does the Prosecution actually state that the Accused did not voluntarily surrender. Furthermore, the Trial Chamber notes that the Prosecution has adduced no evidence whatsoever disputing the Accused’s version of events that he voluntarily surrendered. The Trial Chamber finds the Declaration of Robert William Reid, an investigator in the Office of the Prosecutor, which was appended to the Prosecution’s Response, of no help in determining whether the Accused actually voluntarily surrendered.³⁷ This document alleges that the Governments of Serbia and Montenegro and the Republic of Serbia have been conducting arrests of “a number of persons”³⁸ indicted by the Tribunal only to later claim these persons had voluntarily surrendered. The Trial Chamber finds the declaration of Mr. Reid to be of no help in this regard because it does not identify a single accused person alleged to have engaged in this scheme and, most notably, nowhere does Mr. Reid or the Prosecution in its Response allege that the Accused was actually arrested. Therefore, faced with no contrary evidence, the Trial Chamber accepts the evidence of the Accused that he surrendered voluntarily.

17. The Trial Chamber must now assess the circumstances of his surrender in order to determine how much weight should be given to this factor. The Accused submits that he “surrendered to the Tribunal even before the indictment against him was made public.”³⁹ The Trial Chamber finds that the procedural record in this case does not support his claim. The Indictment against the Accused was made public by an Order of 2 November 2001⁴⁰ and the Accused was not transferred to the United Nations Detention Unit (“UNDU”) until 3 December 2004.⁴¹ The Trial Chamber finds that a period of over three years elapsed from the time at which the Accused would have know that he was indicted and subsequently voluntarily surrendered. This is significant because the weight to be given to the voluntary surrender of an accused person diminishes with the passage of time during which he or she has failed to do so.⁴² On only one occasion has the Accused sought to justify the tardiness of his voluntary surrender. Defence Counsel asserted at the Status Conference of 22 February 2005 that the Accused would have voluntarily surrendered earlier if he had been given the chance, stating: “There is no shadow of a doubt that he would have been prepared to surrender even earlier, but no one was interested. I will not be explaining this now.”⁴³ The Trial Chamber notes that this claim is conspicuously absent in the Motion.

18. The Prosecution characterizes the Accused as “a fugitive from international justice for over three years”⁴⁴ and that he has a “proven ability to avoid arrest”.⁴⁵ The Trial Chamber finds evidence in the Prosecution’s Response that contradicts the assertion of the Accused that he would have surrendered earlier if he could. In particular, the Prosecution states that “the relevant authorities could not locate the accused at his registered address”.⁴⁶ A report dated 15 September 2003 from the Anti-Organized Crime Unit of the Ministry of Internal Affairs, Republic of Serbia stated that “(o(perative action has been intensified to trace the indictee (the Accused( or any persons in touch with him.”⁴⁷ Despite these attempts to apprehend him, the Accused remained at-large until his voluntary surrender over fourteen months later.

19. While the Trial Chamber has found that the Accused voluntarily surrendered, it is not satisfied with his explanation for the three year delay during which he failed to surrender himself voluntarily to the Tribunal. Therefore, while the voluntary surrender of the Accused is a factor that suggests he will appear for trial, it is entitled to little weight in this particular case.
    Governmental guarantees

20. Concerning the general level of co-operation given by the Serbian Government and the Federal Government, the Trial Chamber reiterates that this factor has relevance in determining whether these authorities would arrest the Accused, but it is not in itself a fact in issue and it is unnecessary to include in the Trial Chamber’s decision a separate finding concerning that general level of co-operation.⁴⁸ As regards the Prosecution assertion that those authorities have been reluctant to acknowledge that they arrested certain indictees, claiming that they have voluntarily surrendered, the Trial Chamber observes that this claim is only supported by a declaration by one of its own staff members and not by any convincing evidence. The Chamber takes note of the governmental guarantees provided by the Accused. The Serbian Government, in its decision of 24 February 2005, undertook to observe all orders of the Trial Chamber so that the Accused appear at any time before the Tribunal.⁴⁹ The Council of Ministers of Serbia and Montenegro guarantees, inter alia, to ensure that the Accused, if released, reports to the nearest police station, to arrest him should he violate any of the conditions for provisional release and to hand him over to the Dutch authorities at the time set by the Trial Chamber. Following the rulings of the Appeals Chamber, the Chamber is obliged to determine the reliability of these guarantees in relation to the circumstances which arise in the present case,⁵⁰ including the position which the Accused held prior to his arrest and, as far as foreseeable, circumstances as at the time when the case is due for trial and when he will be expected to return.⁵¹ The Trial Chamber notes that during the time period relevant to the events described in the Indictment the Accused was allegedly an Assistant Commander of the Main Staff of the Bosnian Serb Army and held no position in the Federal Government.⁵² In view of the fact that he retired nine years ago,⁵³ it is unlikely that he might possess any information of such importance as to make the Government concerned reluctant to hand him over to the Tribunal, in case of his failure to comply with the conditions of his provisional release.⁵⁴

21. As regards the circumstances as of the moment of the expected return of the Accused, if released, the Trial Chamber is not in a position to foresee whether the political situation and anticipated level of co-operation of the Federal Government will have changed by then, especially in view of the fact that the trial is not likely to commence in the imminent future. Therefore, the Trial Chamber is satisfied that personal circumstances concerning the Accused, as well as both current and future indicators of the co-operation offered by the Federal Government, provide sufficient guarantees that the authorities in charge will ensure the return of the Accused to the Tribunal, if released.
    Personal guarantees

22. The Trial Chamber notes that the Accused has appended his personal guarantee that, if released, he will, inter alia, remain in the confines of the Belgrade municipality, report once a week to the local police, have no contact with any victims or witness in his case and return to the Tribunal when ordered.⁵⁵
    11bis- referral motion

23. Submissions were made concerning the Prosecution motion for referral of this case under Rule 11 bis of the Rules to another country.⁵⁶ The Trial Chamber notes the decision refusing this motion filed 8 July 2005, and need not consider these submissions further.
    Cooperation of the Accused

24. The Accused has also declared his willingness to be interviewed by the Prosecution if this is a condition of his provisional release.⁵⁷ The Prosecution submits that the Accused has not provided any cooperation of value to the Prosecution.⁵⁸ The Trial Chamber observes that the Prosecution has not supplied any additional information as to whether the Accused has been invited to give an interview, but only comments that the cooperation has not be valuable, but does not state the reasons for it not being valuable. In view of the clear declaration given by the Accused and the early stage of the proceedings, it is premature to assess the level of his cooperation with the Prosecution. The Appeals Chamber has held that an accused should not be penalised because he declines to cooperate with the Prosecution⁵⁹ and that an accused person may, if he decides to do so, co-operate with the Office of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his giving such an interview while still in custody. As was pointed out by the Appeals Chamber, an accused person is not, while in the custody of the International Tribunal, at the disposal of the Prosecution.⁶⁰ The Trial Chamber notes that there is no clear indication of cooperation at this stage.
    Whether the Accused, if released, pose a danger to any victim, witness or other person

25. The Accused submits that he would not pose a risk to victims, witnesses or any other person if released, mainly due to the geographic distance between the location of these persons and the location of his proposed provisional release. In the Motion, it is stated that most of the victims and witnesses live today in Sarajevo, Bosnia and Herzegovina, while the Accused lives in Belgrade, Serbia, a city where none of the victims or witnesses live.⁶¹ In addition, the Accused states that as a pensioner in Serbia he is not in a position to directly or indirectly influence victims or witnesses.⁶² None of these claims have been contested by the Prosecution. Indeed, the Prosecution has not asserted that there would be any risk to victims, witnesses or any other person whatsoever if the Accused were provisionally released. Therefore, the Trial Chamber accepts the uncontested evidence of the Accused on this issue and is satisfied that he would not pose a risk to victims, witnesses or any other person if he were provisionally released.⁶³
    CONCLUSION

26. In view of the foregoing, on balance, the Accused has not persuaded the Trial Chamber that he will appear for trial.
    DISPOSITION

27. Pursuant to Rule 65 of the Rules, the Trial Chamber DENIES the Motion.

Done in English and French, the English version being authoritative.

Dated this thirteenth day of July 2005,
At The Hague
The Netherlands

_________________
Judge Carmel Agius
Presiding Judge

[Seal of the Tribunal]