IN THE TRIAL CHAMBER
Judge Florence Ndepele Mwachande Mumba, Presiding
Judge Antonio Cassese
Judge David Anthony Hunt
Mrs. Dorothee de Sampayo Garrido-Nijgh
11 November 1999
DECISION ON REQUEST FOR PROVISIONAL
RELEASE OF DRAGOLJUB KUNARAC
Office of the Prosecutor:
Mr. Dirk Ryneveld
Ms. Peggy Kuo
Ms. Hildegard Uertz-Retzlaff
Counsel for the Accused:
Mr. Slavisa Prodanovic and Ms. Mara Pilipovic for the accused Mr. Dragoljub Kunarac
Mr. Momir Kolesar for the accused Mr. Radomir Kovac
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 ("International Tribunal") is seised of the "Request for Provisional Release of the Accused Mr. Dragoljub Kunarac" ("Request"). The Request was filed on 11 October 1999 and is made pursuant to Rule 65 ("Provisional Release") of the Rules of Procedure and Evidence of the International Tribunal ("Rules"). The "Prosecutions Response to the Request for Provisional Release of the Accused Mr. Dragoljub Kunarac" ("Response") was filed on 20 October 1999. The Prosecutor opposes the Request. The Netherlands Ministry of Foreign Affairs sent a letter dated 13 October 1999, stating that the Netherlands Government has no objection to the provisional release of Mr. Kunarac, providing that he is not released in The Netherlands.
2. The applicable provisions to be considered are the following. Rule 65(A) reads as follows: "Once detained, an accused may not be released except upon an order of a Trial Chamber." Rule 65(B) provides that:
Release may be ordered by a Trial Chamber only in exceptional circumstances, after hearing the host country 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.
3. The accused relies on various factors to show that exceptional circumstances justifying his provisional release exist. These are:
4. In relation to factor (a), the Trial Chamber is of the view that the voluntary surrender of an accused to the jurisdiction of the International Tribunal is not in itself an exceptional circumstance justifying the provisional release of an accused, once detained. It could even be said that indictees who know that they have been indicted, should voluntarily surrender themselves to the International Tribunal. To base a request for provisional release on such surrender is unacceptable.
5. Factors (b), (c), (d) and (h), neither individually nor together, are exceptional, even assuming that the pre-trial proceedings relating to his case, including the gathering of evidence against him, have been completed and that he is ready to proceed to trial. Further, the Trial Chamber intends to commence with the trial in early February 2000.
6. In relation to factor (e), as was mentioned above, the Trial Chamber intends to commence with the trial in early February 2000. The other trial obligations of the Trial Chamber make it impossible to commence with this trial any earlier. The Trial Chamber is not aware of any reason why the trial in this case should not commence in early February 2000. The assertion by the accused that the commencement of the trial may be postponed has no basis.
7. As to factors (f), (g) and (k), under Rule 65(B) the Trial Chamber may only order the provisional release of an accused "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." The willingness of the accused to give personal undertakings in this regard, cannot be sufficient in the circumstances of the case, the most important of which is that other indictees are still at large. The Trial Chamber is of the view that the Prosecutors submission is justified that were the accused to be released this close to the intended commencement of the trial, such action could have a negative impact on the willingness of her witnesses to participate. In the circumstances of the case, a reasonable danger might arise that potential witnesses would feel reluctant to participate in the trial.
8. With regard to his medical condition, the accused does not claim that he can not undergo the necessary medical rehabilitation while detained or that his continued detention worsens his medical condition. The accused is free to request any medical treatment at any time, even through the Trial Chamber, under Rule 29(A) of the Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal. The Rule provides that the "medical services of the host prison, including psychiatric and dental care, shall be fully available to detainees, subject to any practical arrangements made with the General Director."
9. The assertion by the accused that his provisional release will have a positive influence on other indictees who remain at large, is speculative.
10. In conclusion, the Trial Chamber is of the view that, in the circumstances of the present case, none of the factors put forward by the accused, either alone or in combination, amounts to exceptional circumstances within the ambit of Rule 65 of the Rules.
11. For the foregoing reasons, pursuant to Rule 65, the Trial Chamber hereby decides to deny the Request.
Done in both English and French, the English version being authoritative.
Dated this eleventh day of November 1999,
At The Hague,
[Seal of the Tribunal]