Case No. IT-04-84-PT
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser
Mr. Hans Holthuis
12 October 2005
DECISION ON DEFENCE MOTION ON BEHALF OF RAMUSH HARADINAJ TO REQUEST RE-ASSESSMENT OF CONDITIONS OF PROVISIONAL RELEASE GRANTED 6 JUNE 2005
The Office of the Prosecutor:
Mr. Marks Moore
Mr. Gilles Dutertre
Accused / Counsel for the Accused:
Mr. Ben Emmerson
Mr. Rodney Dixon
Mr. Conor Gearty
Mr. Michael O’Reilly
Mr. Gregor Guy-Smith
Mr. Richard Harvey
TRIAL CHAMBER II (“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”);
NOTING the “Decision on Ramush Haradinaj’s Motion for Provisional Release ” (“Decision on Provisional Release”) of 6 June 2005, in which the Trial Chamber ordered that Ramush Haradinaj (“Accused”) abide by the following conditions:
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;
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;
BEING SEIZED OF the “Defence Motion on Behalf of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005” (“Motion ”), filed by counsel for the Accused (“Defence”) on 15 August 2005, in which the Defence requests
1. to lift the current constraints on the Accused’s appearance in public and his involvement in public political activities, under the caveat that the Accused will not hold any governmental position, any other publicly elected office in Kosovo, act on behalf of the Kosovo government, nor shall he refer to his case or engage in activities that would be in conflict with any other condition for provisional release imposed in the Decision on Provisional Release (“First Request”),1
2. that the Accused be permitted to travel throughout Kosovo, under the condition that the United Nations Interim Administration Mission in Kosovo (“UNMIK”) is notified 24 hours in advance, in the alternative, that the Accused be allowed to travel to 12 specified towns, or, in a second alternative, that he be permitted to visit the municipalities named in the indictment and that the requirement of 24 hours advance notice to UNMIK for movements of the Accused within the confines of the municipalities of Pristina/Prishtinë or Glodjane/Gllogjan is lifted (“Second Request”);2
NOTING the “Prosecution Response to the Motion for Re-Assessment of Conditions of Provisional Release Granted to Mr. Haradinaj on 6 June 2005” (“Response”), filed confidentially by the Office of the Prosecutor (“Prosecution”) on 15 September 2005 , in which the Prosecution opposes the Motion in its entirety,3 and requests that the Trial Chamber grant a stay of the current proceedings for a period of three months in order to complete pending investigations which it contends will have an impact on the outcome of the Trial Chamber’s present decision4;
NOTING a letter dated 1 September 2005 by UNMIK addressed to the Registrar of the Tribunal, in which UNMIK submits an assessment on the two Defence requests ;
HAVING HEARD the arguments of the Defence, the Prosecution, and a representative of UNMIK at an oral hearing held on 16 September 2005;5
NOTING that in support of its Motion, the Defence argues that (i) the experience gained thus far during the provisional release of the Accused has been overwhelmingly positive as he has fully complied with all conditions for provisional release;6 (ii) the Accused will play a constructive and stabilising role in the political life of Kosovo, if the ban on his appearance in public and his political activities is lifted;7 (iii) the geographical restrictions on the Accused’s movements should be varied to encompass the whole of Kosovo, to enable the Accused to discharge his duties as President of the Alliance for the Future of Kosovo, in the first alternative, that the Accused should be free to travel to the 12 municipalities where the Alliance for the Future of Kosovo has its most prominent offices, and in the second alternative, that he should be permitted to travel to and within the municipalities mentioned in the indictment in order to adequately prepare his defence8;
NOTING that as a preliminary request, the Prosecution applies for a stay of the current proceedings for, at a minimum, a period of one month, during which it will place before the Trial Chamber sensitive material, on an ex parte basis, that may well affect the outcome of the instant Motion;9
NOTING that in support of its Response, the Prosecution argues that the Motion should be denied for the reason that, (i) to the extent that the Accused’s public political activities are concerned, any relaxation would render other conditions of his provisional release ineffective or complicate them, and in any event, that appearances in public would have an intimidating effect on victims and witnesses,10 and (ii) to the extent the geographical limits on the Accused’s movements are at issue, that this condition was not subject to re-assessment by the Trial Chamber, that it is unnecessary to make any changes in light of the Accused’s duties as President of the Alliance for the Future of Kosovo, and furthermore, that the preparing of his defence does not require him to travel to the municipalities mentioned in the indictment11;
NOTING that the period of ninety (90) days mentioned in the Trial Chamber’s Decision on Provisional Release in relation to public appearances and public political activity has now expired;
NOTING that it is not in dispute that the Accused has been in full compliance with the conditions for provisional release; 12
NOTING that in the assessment of UNMIK, the Accused’s involvement in public political activities “would most likely contribute in a constructive manner to positive development of the political and security situation in Kosovo”;13
NOTING further that UNMIK has expressed “no objection to the relaxation of the terms of the Provisional Release as requested by the Defence for the free movement of Mr. Haradinaj throughout Kosovo”, with the exception of the requirement of 24 hours advance notice, which should ideally be maintained,14 UNMIK also confirming that it has the capacity to monitor the movements of the Accused if any of the requested relaxations of the conditions for movements are granted;15
CONSIDERING that, at this stage, the Prosecution has submitted no information which would justify the postponing of the Trial Chamber’s decision on the Motion ;
FINDING as to the First Request, that although the experience gained so far during the provisional release of the Accused appears to be positive, at this moment , the Trial Chamber still does not consider it to be in the interest of justice to allow the Accused to appear in public and to permit him engaging in political activities without any restrictions;
FINDING however, taking into account the very special circumstances of this case, especially UNMIK’s assessment of the anticipated positive effects of the Accused’s involvement in public political activities and the upcoming negotiations on the final status of Kosovo, there should be some possibility for the Accused to take part in public political activities and negotiations;
RECALLING, particularly in light of the presumption of innocence, that the seriousness of the crimes an accused is charged with is not a reason on its own for not granting provisional release, but merely one of the factors to be taken into account in evaluating whether the Accused will appear for trial,16 which in turn is the first of the two prongs listed in Rule 65(B) of the Rules when determining whether to grant provisional release or not, the second prong being whether the accused will pose a danger to any victim witness or other person ;
FINDING, by a majority, that in exercising its discretion to vary the conditions imposed on the Accused during his provisional release, the Trial Chamber is guided by the same two prongs of Rule 65(B) of the Rules when determining whether to grant provisional release or not, as provided in Rule 65(C) of the Rules, and as such, the seriousness of the crime does not a priori militate against a relaxation of the conditions for provisional release imposed on the Accused ;
FINDING, by a majority, that it would be appropriate, due to the sensitive nature of such activity, to empower UNMIK, without having to seek prior approval by the Trial Chamber, to authorise or deny, as the case may be, any request by the Accused to appear in public or to engage in a certain public political activity, provided that UNMIK in the concrete situation finds that it would contribute to a positive development of the political and security situation in Kosovo. Any such decision shall be included in the bi-weekly reports submitted to the Trial Chamber in accordance with para. 54(d) of the Decision on Provisional Release, and UNMIK shall also indicate any future activity of the Accused in these reports, provided that there is a pending request by the Accused before it;
FINDING, by a majority, that UNMIK is in the best position to determine what is in the interest of promoting peace and reconciliation in Kosovo, there being no reason to believe that giving UNMIK the authority to allow such activity would amount to or be perceived as a de facto reinstatement of the Accused in a position similar to his former position as a political leader in Kosovo, or that it would compromise the judicial authority of the Tribunal;
FINDING, by a majority, that the final responsibility regarding the public conduct of the Accused remains in the hands of the Trial Chamber, which will, on the basis of the reports to be submitted to it by UNMIK, closely monitor all such activities, direct UNMIK, if and as far as necessary, and take appropriate action – including revocation of privileges – if the Trial Chamber finds that any of the said activities are likely to endanger either the Accused’s appearance for trial , or pose a danger to any person, or in any way compromise the judicial authority of the Tribunal;
FINDING, as to the Second Request, that a re-assessment of the geographical restrictions on the Accused’s movements is neither necessary in order to achieve the purpose of the variation of conditions that will be granted, nor is such re- assessment in the interest of justice;
PURSUANT TO Rules 54 and 65 of the Rules
DISPOSES as follows:
1. By majority: Notwithstanding any other condition in the Decision on Provisional Release, the Accused may appear in public and engage in public political activities to the extent which UNMIK finds would be important for a positive development of the political and security situation in Kosovo, subject to the prior approval by UNMIK of a request by the Accused regarding each individual activity concerned.
2. By majority: The Trial Chamber requires UNMIK to assume responsibility to authorise or deny the Accused’s above-referred activities on a case-by-case basis, and to include any such activity in the bi-weekly reports submitted to the Trial Chamber pursuant to the Decision on Provisional Release. UNMIK is also required to indicate any such future activity of the Accused in these reports, provided that there is a pending request by the Accused before UNMIK.
3. Unanimously: The request to re-assess the current geographical restrictions on the movements of the Accused is rejected.
Done in English and French, the English version being authoritative.
Dated this twelfth day of October 2005
At The Hague
[Seal of the Tribunal]
Solely because of the position taken by UNMIK, I agree with the majority that there should be some limited and controlled possibility for the Accused to take part in public political activities and negotiations if, at times, this is considered by UNMIK to be necessary or at least conducive towards a more fruitful outcome of the upcoming negotiations on the final status of Kosovo, provided, however, that the relative ultimate scrutiny is always by this Tribunal and not by UNMIK.
In fact, I strongly disagree with the majority in delegating to UNMIK responsibilities and controls which, in my belief, pertain exclusively to the Trial Chamber and the Tribunal. I, of course, do understand the sense of practicality which has undoubtedly guided the majority, but I consider their decision to delegate to UNMIK important inherent powers and responsibilities of Chambers as unprecedented and one which, in my opinion, amounts to a misguided and dangerous abdication by the Trial Chambers of its responsibilities to oversee and control, at all times, all matters related to the freedom of operation and movement of the Accused. In my opinion, these responsibilities of the Trial Chamber cannot be delegated and are best exercised after that the Prosecution , and not just UNMIK, have been given the opportunity to be heard.
In addition, I also believe, that leaving the extent of political activity entirely in the hands of UNMIK, reserving only the right to receive periodical reports (even if the majority decision now requires UNMIK to include notice of announced future activities planned by the Accused), is not only intrinsically wrong in principle , but that it is also most definitely probable to give to the public in Kosovo, and others throughout the territory of ex-Yugoslavia, the impression, if not the perception, that although the Accused was indicted and taken into custody by this Tribunal, he is in actual fact gradually, de facto, being re-instated as a key political leader in Kosovo. This would, in turn, project, in my opinion, the undesirable perception that the Accused, rather than being restrained as an Accused , is being re-instated in a position of power. The issues raised in the majority decision, namely those of the presumption of innocence, the seriousness of the crimes the Accused is charged with, and the argument that they do not a priori militate against a relaxation of the conditions for provisional release imposed on him, are , with all due respect to the majority decision, unrelated to the principle which , in my opinion, is indeed paramount and over-riding, namely, that at no time should the Trial Chamber delegate to others its powers and responsibilities. I strongly believe that handing over to UNMIK to right to decide on the extent of the Accused’s engagement in public politics is not only wrong in principle and would constitute a dangerous precedent, but that it will also convey the wrong message amongst the public both in Kosovo and elsewhere, especially since the Accused is not the only politician indicted before this Tribunal from the territory of ex-Yugoslavia.
I strongly believe that the Trial Chamber, in exercising its overall discretion to relax the conditions relating to the activities of the Accused, has a responsibility to act in such a way as to ensure that no suggestion is projected which could be perceived as a de facto re-instatement of the Accused in the political scenario and state of affairs of Kosovo or that the case of the Accused is somewhat different or less serious than those of others who likewise are indicted by this Tribunal. For all intents and purposes of law, the Accused is and remains an indicted war criminal before this Tribunal even if he, undoubtedly, like every other indictee before this Tribunal enjoys a presumption of innocence.
Therefore, I believe that it is not appropriate to grant the Accused a general blanket authorisation to engage in all other public activities, even if such authorisation is conditional on permission by UNMIK. Even with the caveats that the majority decision now requires, namely that UNMIK will be required to report in its bi-weekly reports to the Tribunal any future activity the Accused gives prior notice of, I am far from satisfied that the majority decision addresses what I consider to be the above -mentioned fundamental principle involved. Apart from the fact that because of this requirement, the Accused can time his requests to avoid having them announced to the Tribunal before they are actually processed by UNMIK, this additional requirement is intended by the majority decision not to help the Trial Chamber decide whether permission should be granted on substantive merit, but to help it assess if the said planned future activities are likely to endanger either the Accused’s appearance for trial, or pose a danger to any person, or in any way compromise the judicial authority of the Tribunal. If anything, in my opinion, this is a confirmation that its absolutely mistaken and misguided on the part of the majority to delegate the said Trial Chamber powers to UNMIK: it clearly shows that the majority do understand and concede that the granting of such permission to the Accused to engage in certain public political activities could pose the dangers they want to avert and because of this it should be amply clear how dangerous the precedent that the majority decision seeks to establish is. It is obvious from the majority decision that the granting of a permission to the Accused to engage in a particular public political activity may involve considerations which may go well beyond the area that the majority decision believes UNMIK could best decide upon. I also strongly disagree with the belief that the majority seem to have “that the final responsibility regarding the public conduct of the Accused remains in the hands of the Trial Chamber, which will, on the basis of the reports to be submitted to it by UNMIK, closely monitor all such activities, direct UNMIK, if and as far as necessary, and take appropriate action – including revocation of privileges”. In my opinion, the way the whole delegation of powers and responsibilities to UNMIK is conceived in the majority decision obviously entails an ex post intervention by the Trial Chamber which may be too late . The decision of the majority basically means that whatever UNMIK decides will hold good because UNMIK knows best. I strongly disagree with such approach. The ultimate decision in each case should rest with the Trial Chamber and not with UNMIK which does not have the same responsibilities and concerns as the Trial Chamber. I also believe that the Prosecution should always be given the opportunity to communicate its assessment to the Trial Chamber before a decision is taken.
I am also dissenting because it is my considered opinion that he Trial Chamber has a responsibility to be protective of its role and task and should ensure that it will at all times be able to exercise its discretion fully and in conformity with its responsibilities and concerns. I therefore believe that if the Accused is to be allowed some limited and controlled relaxation of his existing prohibition from engaging in public political activity, this should be permitted after that the Trial Chamber has been given adequate prior notice by him of the particular kind of public activity the Accused seeks to take part in with an accompanying certification by UNMIK that such participation would in their considered opinion contribute to the positive development of the political and security situation in Kosovo. Both application and certification will then undergo the normal scrutiny by this Trial Chamber and significantly after that the Prosecution has been given the opportunity to communicate its assessment to the Trial Chamber and argue its case.
Done in English and French, the English version being authoritative.
Dated this twelfth day of October 2005
At The Hague
[Seal of the Tribunal]