Case No. IT-98-29-A

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Ndepele Mwachande Mumba
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision:
23 March 2005

The Office of the Prosecutor:

Mr. Norman Farrell

Counsel for Stanislav Galic:

Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin

1. The Appeals 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 “Defence Request for Provisional Release of Stanislav Galic” filed on 4 March 2005 (“Request”) by Stanislav Galic (“Appellant”), in which the Appellant seeks provisional release from 31 March 2005 to 5 April 2005¹ in order to attend the memorial service for his late sister, Mrs Mirjana Grmusa, in Banja Luka, Republika Srpska. The Office of the Prosecutor (“Prosecution”) filed its response on 9 March 2005.² On 18 March 2005, Mr Trivun Jovicic, Minister Counsellor and Republika Srpska Liaison Officer, submitted guarantees and authorisation from the Government of Republika Srpska.

2. On 5 December 2003, a Trial Chamber sentenced the Appellant to 20 years’ imprisonment.³ The Appeals Chamber is currently seised of the Appellant’s and Prosecution’s appeals against the Galic Trial Judgement.
   B. Applicable Law

3. Rule 65(I) of the Rules of Procedure and Evidence (“Rules”)⁴ provides:

   (I) Without prejudice to the provisions of Rule 107, the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that:

   (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be;

   (ii) the appellant, if released, will not pose a danger to any victim, witness or other person, and

   (iii) special circumstances exist warranting such release.

   The provisions of paragraphs (C) and (H) shall apply mutatis mutandis.⁵

   The aforementioned Rules 65(C) and (H) provide, respectively, as follows:

   (C) The Trial Chamber may impose such conditions upon the 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.⁶

   (H) If necessary, the Trial Chamber may issue a warrant of arrest to secure the presence of an accused who has been released or is for any other reason at liberty. The provisions of Section 2 of Part Five shall apply mutatis mutandis.⁷

4. Rule 65 on provisional release was inspired by humane and compassionate considerations together with concerns related to the principle of proportionality in international law, concerns which remain even if the applicant has been convicted at trial.⁸

5. The requirements mentioned in Rule 65(I) are cumulative.⁹ Whether an applicant should be granted provisional release is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities.¹⁰

6. The Appeals Chamber will consider the seriousness of the offences of which an appellant has been found guilty as it is one of the factors it has to take into account when assessing whether an appellant, if released, would return to detention. The Appeals Chamber also notes that the more severe the sentence, the greater the incentive to flee.¹¹ However, these are not the sole factors that determine the outcome of an application for provisional release.¹²
   C. Submissions

7. The Appellant seeks provisional release from 31 March 2005 until 5 April 2005 ¹³ in order to attend the requiem, that is, the memorial service for his late sister, which is to be held on the forty-day anniversary of her death, which is 2 April 2005¹⁴ in Banja Luka, Republika Srpska.

8. The Appellant submits that all the pre-conditions provided by Rule 65(I) for the granting of provisional release are met because:

   i. the death of his older sister, who was like a mother to him, and with whom he had a special bond, constitutes a “special circumstance” in terms of Rule 65(I).¹⁵ The Appellant submits that he and his sister were very close, their parents having died more than 30 years ago.¹⁶

   ii. the Appellant is ready to give a deposition to the effect that after the expiration of the period determined by the Appeals Chamber he will return to the United Nations Detention Unit in the Hague (“UNDU”) voluntarily.¹⁷

   iii. the Government of Republika Srpska will submit all necessary guarantees that will ensure his return to the UNDU. These guarantees will be submitted by the Liaison Officer of Repubika Srpska.¹⁸

   iv. the Appellant is ready to accept any order that the Appeals Chamber may make in its decision on the Request.¹⁹

   v. the Appellant states that if granted provisional release in order to attend his sister’s requiem, he will stay in Banja Luka, and that therefore he will not pose any danger to any victim, witness or other person, as there are no victims or witnesses from the trial in Banja Luka.²⁰ He submits that, in any case, the Appellant is not a person who would get in touch with victims, witnesses or other persons who could be in danger and is prepared to undertake as such.²¹

   vi. the Tribunal has already granted similar requests for provisional release for the same reasons as those given by the Appellant in the Request.²²

9. The Prosecution opposes the request for provisional release. It “accepts that the death of the Appellant’s sister is a personal situation of humanitarian and compassionate concern that satisfies the additional requirement of ‘special circumstances’ set out in Rule 65(I)(iii)”,²³ and that it has no information suggesting that the Appellant will pose a danger to any victim, witness or other person contrary to Rule 65(I)(ii),²⁴ but submits that the Appellant has not shown that if released, he will surrender to the UNDU at the conclusion of the fixed period, as required by Rule 65(I)(i).²⁵

10. The Prosecution submits that there is a serious risk that if released, even for a limited period under supervision, the Appellant would abscond from custody.²⁶ It submits that it forms this view of the Appellant’s risk of flight based on a number of factors.

11. The first of these is the fact that the Appellant did not voluntarily surrender into the custody of the Tribunal.²⁷ Secondly, the Prosecution argues that the documents seised from the Appellant upon his arrest by the Multinational Stabilisation Force (“SFOR”) on 20 December 1999 indicate that he was at that time attempting to seek refuge in the Federal Republic of Yugoslavia (“FRY”) in order to evade arrest.²⁸ The Prosecution refers to a letter dated 16 September 1999 addressed to the Federal Minister of Defence of the FRY, in which the Appellant “stated that he had learned that he was ‘on the list of accused for the so-called war crimes during the war in BH’” and that he was therefore seeking to move out of the territory of Republika Srpska and into Belgrade.²⁹ The Prosecution submits that the Trial Chamber relied on this letter in denying the Appellant provisional release pending trial.³⁰ The Prosecution further submits that that the Appellant’s attempt to evade arrest distinguishes the Appellant’s case from that of an appellant who was recently granted temporary release to attend a memorial service, but who had voluntarily surrendered to the Tribunal.³¹

12. Thirdly, the Prosecution submits that the Appellant was convicted of extremely serious offences for the role he played in the siege of Sarajevo, as a result of which the Trial Chamber sentenced him to twenty years’ imprisonment.³² The Prosecution submits that given the gravity of offences for which the Appellant has been convicted and the severity of sentence, the Appellant would have a strong incentive to flee if provisionally released. It further argues that the Appellant has served approximately five years of his sentence and thus the remaining fifteen years of his sentence is still considerable.³³ According to the Prosecution, the Trial Chamber that denied the Appellant provisional release pending trial took into consideration the gravity of the crimes with which he was charged and the severe penalties which could be imposed after a finding of guilt.³⁴ The Prosecution submits that the risk of flight is more pronounced after a guilty verdict and sentence have been entered by the Trial Chamber, especially where the sentence imposed is a lengthy one.³⁵

13. The Prosecution points out that at the time it filed its Response, the Appellant had not put forward any state guarantees.³⁶ The Prosecution states, however, that since it is not in a position to comment on the specific merits of the guarantees which may be filed by the Appellant, it reserves a right to file a further response, if necessary, subsequent to the filing of the government guarantees.³⁷ Nevertheless, the Prosecution argues that, given the Appellant’s demonstrated willingness to relocate in order to evade arrest, any forthcoming guarantee of a single state cannot address the question of what might happen if the Appellant were to abscond from custody and move to a state that is unwilling or unable to secure his arrest.³⁸

14. Alternatively, the Prosecution submits that if the Appeals Chamber decides that the Appellant may be provisionally released, strict conditions should be imposed to ensure the he is returned to the custody of the Tribunal in a timely manner.³⁹ The Prosecution considers that the heightened risk of flight in this case requires more stringent supervisory conditions than those imposed in the Simic or Krnojelac Decisions.⁴⁰ The Prosecution further submits that, in that event, the period of provisional release be strictly limited to the necessary time to travel to Banja Luka, to attend the requiem, and to return to The Hague, and that the period requested by the Appellant is unjustified for those limited purposes.⁴¹
    D. Discussion

15. The Appeals Chamber is satisfied that the memorial service organised on the forty-day anniversary of the death of the Appellant’s sister and scheduled to take place on 2 April 2005,⁴² constitutes a “special circumstance” within the meaning of Rule 65(I)(iii).

16. The Appeals Chamber notes that the Appellant was convicted of crimes against humanity (murder and inhumane acts) pursuant to Article 5 of the Tribunal’s Statute and of violations of the laws or customs of war (acts of violence the primary purpose of which is to spread terror among the civilian population, as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949) pursuant to Article 3 of the Statute. He was sentenced to twenty years imprisonment.⁴³ Although the Appellant has already been in detention for more than five years,⁴⁴ the remainder of his sentence would still be considerable if his sentence is confirmed in whole or in part. On the other hand, the Appeals Chamber notes that the Appellant has exhibited exemplary behaviour throughout the proceedings before the Tribunal.⁴⁵ The fact that the Appellant is ready to accept any order given by the Appeals Chamber on the conditions for his provisional release supports the Appellant’s good faith.⁴⁶

17. The Appeals Chamber notes the guarantees of the Government of Republika Srpska filed on 18 March 2005 in which the Government of Republika Srpska undertakes to comply with the orders of the Appeals Chamber and provides a number of guarantees relating to the provisional release of the Appellant. The Appeals Chamber considers that, in previous decisions, it relied successfully on guarantees provided by the Government of Republika Srpska.⁴⁷

18. The Appeals Chamber also notes that, as submitted by the Prosecution, the Appellant applied for and was previously denied provisional release.⁴⁸ The circumstances at the time, however, cannot be compared with those at present. Notably, the Trial Chamber denied him provisional release, inter alia, because the Government of Republika Srpska had not provided any guarantees.⁴⁹ In the present case, such guarantees have been provided and special circumstances exist necessitating the Appellant’s release for a fixed period. The Appeals Chamber reiterates that the Tribunal is entrusted with bringing justice to the former Yugoslavia, which means justice to the victims, as well as respect for the convicted persons’ fundamental rights, in particular, their right for private and family life.⁵⁰ Accordingly, by granting provisional release to the Appellant pending appeal when special circumstances exist and when the criteria of Rule 65(I) are met, the Tribunal fulfils its obligation to pursue justice for all parties involved.

19. Considering all the circumstances of this case, the Appeals Chamber is satisfied that, if released subject to specific conditions, the Appellant will surrender into detention at the end of the fixed period. In the opinion of the Appeals Chamber, the fact that the Appellant was convicted at trial necessitates a condition of constant supervision while on release. Taking into account that an official of Republika Srpska will be accompanying the Appellant at all times until his return to The Hague and the guarantees provided by the Government of Republika Srpska, the Appeals Chamber is also satisfied that if released the Appellant will not pose a danger to any victim, witness or other person.

20. Therefore, the Appeals Chamber is satisfied that the requirements are met to grant the Appellant’s request for provisional release.

21. With regard to the period of provisional release, the Appeals Chamber considers that the Appellant should be given sufficient time to attend the memorial service for his late sister in Banja Luka. The requiem is scheduled to take place on 2 April 2005. The Appeals Chamber finds that it is sufficient that the Appellant be released on 31 March, and returning to The Hague on the first available flight on 3 April.
    E. Disposition

22. For the foregoing reasons and pursuant to Rule 65(I) of the Rules, the Appeals Chamber GRANTS in part the Request and ORDERS that the Appellant be provisionally released for a fixed period from 31 March 2005 to 3 April 2005 under the following terms and conditions:

    1. The Appellant shall be transported to Schiphol airport in The Netherlands by the Dutch authorities on 31 March 2005;

    2. At Schiphol airport, the Appellant shall be provisionally delivered into the custody of the designated official(s) of the Government of Republika Srpska (whose name or names shall be provided in advance to the Appeals Chamber and the Registry) and who shall accompany the Appellant for the remainder of his travel to the Republika Srpska and during the course of his stay in the Banja Luka;

    3. If the circumstances prevent the designated official(s) from fulfilling his duties, the Appellant shall be provisionally delivered into the custody of another official of the Government of Republika Srpska with the condition that this person is authorised by the Appeals Chamber to take up those duties no later than 30 March 2005;

    4. The period of provisional release shall commence when the Appellant is delivered into the custody of the designated official(s) of the Government of Republika Srpska, or of the other official accredited, and shall terminate upon his return to the Dutch authorities, which shall be no later than 3 April 2005;

    5. On his return flight, the Appellant shall be accompanied by a designated official of the Republika Srpska (or by such other designated officials as the Appeals Chamber may order or accept) who shall deliver the Appellant into the custody of the Dutch authorities at Schiphol airport. The Dutch authorities shall then transport the Appellant back to the UNDU;

    6. During the period of his provisional release, the Appellant shall abide by the following conditions, and the authorities of the Republika Srpska, including the local police in Banja Luka, shall ensure compliance with such conditions:

    a) The Appellant shall remain within the confines of the municipality of Banja Luka ;

    b) The Appellant shall be under the surveillance of the Banja Luka police;

    c) The Appellant shall surrender his passport to the police in Banja Luka;

    d) The Appellant shall report once a day to the local police who will maintain a log and file a written report with the International Tribunal confirming his presence each day;

    e) The Appellant shall not in any way interfere with any persons who testified at his trial;

    f) The Appellant shall not discuss his case with anyone other than his counsel;

    g) The Appellant shall comply strictly with any order of the Appeals Chamber varying the terms of or terminating his provisional release.

24. On the basis of the guarantees provided by the Government of Republika Srpska, the Appeals Chamber REQUIRES the Government of Republika Srpska to assume responsibility for:

1. all expenses in connection with the transport from Schiphol airport to Banja Luka and back;

2. ensuring the personal security and safety of the Appellant while on provisional release;

3. reporting immediately to the Registrar of the Tribunal as to the substance of any threats to the security of the Appellant, including full reports of investigations related to such threats;

4. facilitating, at the request of the Appeals Chamber or of the parties, all means of co-operation and communication between the parties and ensuring the confidentiality of any such communication;

5. detaining the Appellant immediately should he attempt to escape from Banja Luka, or should he in any other way breach the terms and conditions of his provisional release as set out in this Decision and reporting immediately any such breach to the Registry and the Appeals Chamber; and

6. respecting the primacy of the Tribunal in relation to any existing or future proceedings in the Republika Srpska concerning the Appellant.

25. The Appeals Chamber INSTRUCTS the Registrar of the Tribunal to:

    1. Consult with the Dutch authorities and the authorities of the Republika Srpska, as to the practical arrangements for the provisional release of the Appellant;

2. Request the authorities of States through whose territory the Appellant may travel to:

a) Hold him in custody for any time he will spend in transit at the airport; and

b) Arrest and detain the Appellant pending his return to the UNDU should he attempt to escape during travel.

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

Dated this 23rd day of March 2005
At The Hague,
The Netherlands.

________________________
Theodor Meron
Presiding Judge

[Seal of the Tribunal]