Case No. IT-98-29/1-PT
IN TRIAL CHAMBER II
Before:
Judge Carmel A. Agius
Judge Kevin Parker
Judge Jean-Claude Antonetti
Registrar:
Mr Hans Holthuis
Decision of:
9 February 2006
THE PROSECUTOR
v.
DRAGOMIR MILOSEVIC
____________________________________
DECISION ON SECOND DEFENCE MOTION FOR PROVISIONAL RELEASE
____________________________________
The Office of the Prosecutor:
Mr Chester Stamp
Counsel for the Accused:
Mr Branislav Tapuskovic
Ms Branislava Isailovic
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");
NOTING Article 21(3) and (4)(c) of the Statute;
NOTING Rule 65(B) and (C) of the Rules of Procedure and Evidence ("Rules");
NOTING the "Decision on Defence Motion for Provisional Release" of 13 July 2005 ("First Motion") whereby the Chamber rejected the Motion;
NOTING the new "Motion for Provisional Release" dated 28 December 2005 ("Second Motion");
NOTING the Prosecution’s Response of 11 January 2006;
CONSIDERING that the Chamber will only review the Second Motion on the basis of new information enabling it to reconsider its Decision of 13 July 2005;
CONSIDERING that in its Second Motion the Defence makes submissions on the certainty that the Accused, if released, will appear for trial, will not pose a danger to any victim, witness or other person, and on the length of the Accused’s pre-trial detention;
CONSIDERING that the certainty that the Accused will appear for trial is determined, inter alia, on the basis of factors – such as the gravity of the charges, the guarantees provided by the host country and the Accused, and the co-operation of the Republic of Serbia and Montenegro - which have already been set out in the First Motion and considered by the Chamber in its first decision1, but also with due regard to the circumstances in which the Accused was transferred to the Tribunal;
CONSIDERING that, as to the circumstances in which the Accused was transferred to the Tribunal, the Chamber recalls that in its Decision of 13 July 2005 it accepted the fact that the Accused surrendered voluntarily but could not explain the fact that the Accused had taken three years to do so, which significantly reduces the weight to be given to this factor2;
CONSIDERING that, in order to explain why the Accused allowed three years to elapse from the publication of the Indictment on 2 November 2001 to his transfer to the Tribunal on 3 December 2004, the Defence submits in its Second Motion that it emerges from a collation of the Accused’s passport with the report of the Ministry of Internal Affairs, Anti-Organized Crime Unit, that the authorities of the Republic of Serbia were trying to locate the Accused at the wrong address;
CONSIDERING that the Prosecution submits that it is unlikely that the Serbian authorities would have failed to locate the Accused for three years, since the change of address appears clearly on the Accused’s identity document;
CONSIDERING that the Chamber considers that a mere collation of documents is insufficient evidence to infer, on the basis of a report dated 15 September 2003, that the Serbian authorities failed, for three years, to locate the Accused because of a change of address clearly entered on the Accused’s identity documents;
CONSIDERING further that even if it is assumed the authorities did not use the right address to locate the Accused, this does not account for the fact that the Accused failed to surrender voluntarily for three years after the Indictment was made public;
CONSIDERING that the Defence also bases its Second Motion, pursuant to Article 21(4)(c) of the Statute, on a proposition that the Accused is entitled to be tried without undue delay and in particular Article 5(3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides that "Everyone arrested or detained … shall be entitled to trial within a reasonable time or to release pending trial";
CONSIDERING that while the fundamental legal structure reflected in the European Convention on Human Rights is different from that applicable to this Tribunal, underlying principles, in particular concern for the liberty of an individual and the need to hold this in balance with the need to effectively administer justice by trying those charged with offences and to do so without unreasonable delay, are common to both;
CONSIDERING further that the practice of the European Court of Human Rights has been considered in this Tribunal3 and that while it has been accepted that detention is the most severe measure that can be imposed on an accused and is to be used only when no other measures can achieve the effect of detention, it is recognized that this does not preclude the use of pre-trial detention in an appropriate case;4
CONSIDERING that in light of the case-law of the Tribunal the Chamber must assess the length of pre-trial detention according to the principle of proportionality, and that the length of pre-trial detention must be assessed in light of the specific circumstances of each case5;
CONSIDERING that to date the Accused has spent more than 13 months in pre-trial detention and that no date has been set for the commencement of the trial since the pre-trial phase is still in progress, the length of detention cannot be considered excessive or unreasonable when there has been no significant delay in the proceedings;
CONSIDERING that the proceedings are underway; that the Prosecution have filed the final version of its pre-trial brief as well as its list of witnesses and exhibits by 31 January 2006 and that the Defence must respond to the pre-trial brief by 28 February 2006;
CONSIDERING that while the Prosecution suggests the trial may not commence until 2008, which would be a relevant consideration for this decision, the pre-trial preparation of the case is continuing with a view to it being readied for a much earlier trial. Should it become clear that there will be along delay before trial a fresh application may be made;
CONSIDERING that the motion was confidential and that a confidential decision would be warranted if the Chamber were to grant the motion, in order to maintain public order and guarantee the safety and security of the Accused;
FOR THE FOREGOING REASONS, the Chamber dismisses the Accused’s Second Motion for provisional release;
Done in English and French, the English version being authoritative.
Done this ninth day of February 2006
At The Hague
The Netherlands
__________
Judge Carmel Agius
[Seal of the Tribunal]
1. The Prosecutor v. Dragomir Milosevic,
Defence’s Motion for Provisional Release, Case
No. IT-98-29/1-PT, 26 April 2005.
2. The Prosecutor v. Dragomir Milosevic, Decision on Defence Motion for Provisional Release, Case No. IT-98-29/1-PT, 13 July 2005, para. 16.
3. See for example Prosecutor v.
Enver Hadzihasanovic et al., Case
No. IT-01-47-PT Decision granting provisional
release to Amir Kubura, 19 December 2001; see also Prosecutor
v. Rahim Ademi, Case No.: IT-01-46-PT, Order on
Motion for Provisional Release, 20 February 2002.
4. Id. See also Prosecutor v. Darko Mrdja,
Case No.: IT-02-59-PT, Decision on Darko Mrdja’s Request
for Provisional Release, 15 April 2002; Prosecutor v. Radoslav Brdjanin, Case No.: IT-99-36-PT, Decision on Motion by Radoslav Brdjanin for Provisional Release, 25 July 2000.
5. The Prosecutor v. Vujadin Popovic, Ljubisa Beara,
Drago Nikolic, Ljubomir Borovcanin, Zdravko Tolimir,
Radivoje Miletic, Milan Gvero, Vinko Pandurevic, Milorad
Trbic, Decision on Drago Nikolic’s Request for
Provisional Release, Case No. IT-05-88-PT, 9 November
2005.
IN TRIAL CHAMBER II
Before:
Judge Carmel A. Agius
Judge Kevin Parker
Judge Jean-Claude Antonetti
Registrar:
Mr Hans Holthuis
Decision of:
9 February 2006
THE PROSECUTOR
v.
DRAGOMIR MILOSEVIC
____________________________________
DECISION ON SECOND DEFENCE MOTION FOR PROVISIONAL RELEASE
____________________________________
SEPARATE OPINION OF JUDGE ANTONETTI
The Office of the Prosecutor:
Mr Chester Stamp
Counsel for the Accused:
Mr Branislav Tapuskovic
Ms Branislava Isailovic
I agree entirely with the Trial Chamber’s Decision on second Defence Motion for provisional release but wish to make clear my opinion in the present case. This Decision calls for several observations on my part.
The Statute has never foreseen the release of an accused transferred to the Tribunal pending his trial.
Rule 65 of the Rules of this Tribunal had provided the possibility for an accused to be released in exceptional circumstances.
Over time, the judges have amended the Rules so that, presently, an accused can be released if he fulfils the requirements set forth in Rule 65 (B), which 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".
In the present case, the Prosecution states, in its submission , that the trial could commence in 2008. In the light of the information provided by the Scheduling Committee of the Tribunal, this statement of the Prosecution is, to say the least, surprising, especially as the case is obviously almost ready for trial because the Prosecution has filed its Pre-trial Brief and the list of its witnesses and exhibits.
The Statute, under article 21 (4) c)) provides that an accused is entitled to the guarantee to be tried without undue delay. It would be in contradiction with this provision to maintain the accused in detention for another two years pending his trial.
In the absence of more accurate information on the date of the trial, which is not the concern of the Pre-trial Judge or of the Chamber, I share the view of the two other judges of the Chamber on the Motion for Provisional Release, which is dismissed. Should there be no possibility to make the trial start in the coming weeks or months, it will then be appropriate for the Accused to file a new motion for provisional release.
Done in English and French, the English text being authoritative.
_________________________
Judge Jean-claude Antonetti
Dated day of 9 February 2006
At The Hague
The Netherlands
[Seal of the Tribunal]