Case No. IT-04-84-PT
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser
Mr. Hans Holthuis
6 June 2005
DECISION ON RAMUSH HARADINAJ’S MOTION FOR PROVISIONAL RELEASE
The Office of the Prosecutor:
Ms. Carla del Ponte
Mr. Dermot Groome
Ms. Marie Tuma
Accused / Counsel for the Accused:
Mr. Rodney Dixon
Mr. Ben Emmerson
Mr. Conor Gearty
Mr. Michael O’Reilly
a) The Accused immediately resigned from his office as Prime Minister of Kosovo upon being informed of the indictment against him and voluntarily surrendered himself to the Tribunal without delay;
b) The legitimate authority and administration of Kosovo, UNMIK, has agreed to provide the necessary guarantees to ensure compliance with any conditions the Trial Chamber may impose if the Accused is provisionally released;
c) The Accused has already been provisionally released to Kosovo for a period of three days on compassionate grounds, with the Accused fully complying with all conditions imposed on him;5
d) The Accused has provided the Trial Chamber with a written undertaking that he will return for trial and not in any way interfere with any victims and witnesses, and fully abide by all conditions ordered by the Trial Chamber;
e) There has been no interference with witnesses on the part of the Accused from the time it was widely believed that he would be indicted, i.e. November 2004, and it has not been shown that the Accused would pose a concrete danger to anyone;
f) The Accused has an exceptional personal and political reputation, which is confirmed by a number of high-ranking international politicians, military officials and diplomats, who are all of the view that the Accused would honour all conditions imposed by the Trial Chamber;6
g) Considering the circumstances of the Accused’s surrender, no security concerns in Kosovo are to be anticipated should he be provisionally released, on the contrary, transition developments in Kosovo would be enhanced should the Accused be allowed to return there.7
1. All persons shall be equal before the International Tribunal.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
(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.
(C) The Trial Chamber may impose such conditions upon the release of the accused as it may deem 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.
(E) The Prosecutor may apply for a stay of a decision by the Trial Chamber to release an accused on the basis that the Prosecutor intends to appeal the decision, and shall make such an application at the time of filing his or her response to the initial application for provisional release by the accused.
a. Whether the accused is charged with serious criminal offences;
b. Whether the accused is likely to face a long prison term, if convicted;
c. The circumstances of the accused’s surrender;
d. The degree of co-operation 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 case of breach of the conditions of provisional release, the relevant authorities will re-arrest the accused if he declines to surrender; and
g. The accused’s degree of co-operation with the Prosecution.46
The charges against the Accused
The circumstances of the Accused’s voluntary surrender
I have been called upon to make yet another sacrifice, which I never believed would happen. I have been informed now that the Hague Tribunal has issued an indictment against me. First of all, I have to say, before you, that I am innocent of whatever crime I am accused of. I am saying this because I am responsible and accountable before my people, before all else. [...] I said before that I have worked the whole time through for the establishment of a democratic society, which deserves being part of the progressive world. This, in itself, means cooperation with international justice, irrespective of how unjust it may be at the moment. I feel offended with this process, I feel deeply touched, I feel that I am being removed from my work at a time when I was giving my utmost for my country, but I have to accept it for the sake of this country and for the sake of all of us. [...]
Therefore, I accept this burden. At the same time, I ask you to accept this fact. I ask from all of you to accept something that is nearly impossible to accept, but do this to honour your country and nation. I ask you to think of the great national interest.62
The character of the Accused
The Accused’s undertaking
The guarantees to be provided by UNMIK
General situation for witnesses
The impact of the Accused’s provisional release on witnesses
1. The Accused shall be transported to an airport in the Netherlands by the Dutch authorities;
2. At the airport, the Accused shall be provisionally released into the custody of an official of UNMIK to be designated prior to release, who shall accompany the Accused for the remainder of his travel to Kosovo;
3. The Accused shall reside and remain within the territory of Kosovo throughout the period of his provisional release, more specifically, at Pristina/Prishtinë or at Glodjane/Gllogjan, with addresses for both places to be provided to UNMIK and to the Registrar of the Tribunal prior to his provisional release;
4. On his return, the Accused shall be accompanied by the same designated official of UNMIK, who shall deliver the Accused to the custody of the Dutch authorities at Schiphol airport at a date and time to be determined by Order of the Trial Chamber, and the Dutch authorities shall then transport the Accused back to the United Nations Detention Unit in The Hague;
5. During the first period of ninety (90) days, the Accused will not be allowed to make any public appearance or in any way get involved in any public political activity. The Accused will however be allowed to take up administrative or organisational activities in his capacity of President of the Alliance for the Future of Kosovo, provided such activities do not conflict with any of the conditions set out in this decision. After this period of ninety (90) days the Trial Chamber will, if requested by the Defence, on the basis of the experience gained and after hearing the Prosecution and UNMIK on this issue, re-assess this condition;
6. During the period of his provisional release, the Accused shall abide by the following conditions, and UNMIK shall ensure compliance with such conditions:
a) To remain within the confines of the municipality of Pristina/Prishtinë or Glodjane /Gllogjan;
b) To inform UNMIK at least 24 hours in advance every time he intends to move from Pristina/Prishtinë to Glodjane/Gllogjan or vice versa and for how long he envisages to stay in either of these two places;
c) To surrender his passport to UNMIK, which shall remain in its custody;
d) To report each week to UNMIK at a time and local duty station to be designated by UNMIK;
e) To consent to having UNMIK check about his presence and to the making of occasional, unannounced visits upon the Accused by UNMIK personnel or by a person designated by the Registrar of the Tribunal;
f) Not to have any contact with the two other co-accused in the case;
g) Not to have any contact whatsoever or in any way interfere with any victim or potential witness or otherwise interfere in any way with the current proceedings or the administration of justice;
h) Not to discuss his case with anyone, including the media, other than with his counsels; not to make any statement or associate himself with any statement, public or otherwise, on his case or on any other case before this Tribunal or comparable cases that may be pending before the courts in Kosovo;
i) Not to hold any governmental position at any level in Kosovo;
j) To report to the Registrar of the Tribunal, within three days of the start of any employment or occupation, the position occupied, as well as the name and address of the employer;
k) To comply strictly with any instructions given to him by anyone acting under the authority of UNMIK that may be necessary to enable them to comply with their obligations under this Order and their guarantees;
l) To return to the Tribunal at such time and on such date as the Trial Chamber may order; and
m) To comply strictly with any further Order of the Trial Chamber varying the terms of or terminating his provisional release.
a) By designating an official into whose custody the Accused shall be provisionally released and who shall accompany the Accused from an airport in the Netherlands to his place of residence in Pristina/Prishtinë or Glodjane/Gllogjan, and notifying, as soon as practicable, the Trial Chamber and the Registrar of the Tribunal of the name of the designated official;
b) To take all reasonable measures to provide for the personal security and safety of the Accused while on provisional release, and to report immediately to the Registrar of the Tribunal should there be any concerns in that respect;
c) At the request of the Trial Chamber or the parties to facilitate all means of co-operation and communication between the parties and to ensure the confidentiality of any such communication;
d) To monitor the presence of the Accused at his place of residence in Pristina/ Prishtinë or Glodjane/Gllogjan on a regular basis, and to submit a written report to the Trial Chamber every two weeks as to the compliance of the Accused with the terms of this Order;
e) To arrest and detain the Accused immediately if he should breach any of the conditions of this Order; and to report immediately to the Trial Chamber any such breach;
f) To immediately inform the Trial Chamber of any change of UNMIK’s mandate that would affect UNMIK’s authority or ability to meet any of the responsibilities mentioned in this Decision.
a) to hold the Accused in custody for any time that he will spend in transit at the airport;
b) to arrest and detain the Accused pending his return to the United Nations Detention Unit in The Hague, should he attempt to escape.
Done in English and French, the English version being authoritative.
Dated this sixth day of June 2005
At The Hague
[Seal of the Tribunal]