IN THE TRIAL CHAMBER
Before: Judge Richard George May, Presiding
Judge Lal Chand Vohrah
Judge Florence Ndepele Mwachande Mumba
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 20 January 1998
DECISION ON DEFENCE MOTION FOR PROVISIONAL RELEASE
The Office of the Prosecutor:
Mr. Grant Niemann
Mr. Michael Keegan
Mrs. Hildegard Uertz-Retzlaff
Mr. Morten Bergsmo
Counsel for the Accused:
Mr. Dusan Vucicevic
and Mr. Igor Pantelic, for Milan Kovacevic
1. The accused, Milan Kovacevic, was transferred to the United Nations Detention Unit in The Hague ("the Detention Unit") on 10 July 1997 and is being detained there pursuant to an Order for Detention on Remand dated 30 July 1997.
2. This present decision concerns a motion filed by the Defence on 9 September 1997 which seeks, inter alia, the provisional release of the accused. A response by the Office of the Prosecutor ("the Prosecution") to this motion was filed on 23 September 1997.
3. On 10 October 1997, a hearing on the matter was adjourned until 31 October 1997 in order that the accused be examined by a panel of medical experts agreed upon by the parties. The hearing scheduled for 31 October 1997 was vacated sine die on 28 October 1997 to allow further medical examinations of the accused. On 24 November 1997 the matter was set for hearing on 19 December 1997 but was again adjourned to accommodate requests from the Defence for additional medical tests.
4. The Defence filed its memorandum of law in support of Defence Motion for Provisional Release ("the Defence Memorandum") on 7 January 1998. After the filing of the Prosecutors Response to the Defence Memorandum on 14 January 1998, the matter was heard before this Trial Chamber on 16 January 1998.
II. APPLICABLE LAW
5. Provisional release of accused persons awaiting trial before the International Tribunal is governed by Rule 65 of the Rules of Procedure and Evidence ("the Rules"). The relevant provisions of this Rule read:
(A) Once detained, an accused may not be released except upon an order of a Trial Chamber.
(B) 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.
(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 his presence for trial and the protection of others.
(D) . . . .
(E) . . . .
6. It has been consistently held that pre-trial detention is the general rule under Rule 65. Provisional release before trial is an exception to this general rule and may be ordered only where four conditions are met. The burden of proof rests upon the Defence to establish firstly that there are exceptional circumstances justifying provisional release. Secondly, the Defence must satisfy the Trial Chamber that the accused will appear for trial. Thirdly, the Defence must show that if released the accused will not pose a danger to any victim, witness or other person. Finally, the host country must be heard.
7. These four conditions are conjunctive. The Defences failure to satisfy the Trial Chamber in respect of any one of the conditions would suffice for the rejection of the motion for provisional release. On the other hand, even if the Trial Chamber is satisfied in respect of all four conditions, it retains a discretion not to grant provisional release.
8. The host country, the Netherlands, has stated in a letter to the Registrar of the International Tribunal dated 18 July 1996 that it is for the International Tribunal to decide when provisional release is appropriate and that it will only comment as to the practical consequences of release if granted. The host country has thus been heard and the burden rests upon the Defence to establish the remaining three conditions.
9. We heard oral argument from the parties on 16 January 1998 and after due consideration of the submissions of the parties, announced that this motion for provisional release would be rejected and that we would subsequently give our reasons in writing.
10. We find that the Defence has failed to establish the conditions required for provisional release pursuant to Rule 65. We are not satisfied as to the existence of exceptional circumstances. This of itself is sufficient to dispose of the present motion. For the sake of completeness, however, we would add that we are also not satisfied that if released, the accused will appear for trial and will not pose a danger to any victim, witness or other person. We would set out our reasoning as follows.
A. Exceptional Circumstances
11. The Defence contends that three circumstances regarding the accused may be characterised as exceptional and thus justify provisional release: the accuseds medical condition; the absence of a reasonable suspicion that the accused committed the crimes with which he is charged; and the length of the accuseds pre-trial detention.
1. The accuseds medical condition
12. Provisional release may be ordered when the accuseds state of health is not compatible with any form of detention. It is the submission of the Defence that the medical condition of the accused, consisting of both physical and mental disorders, is indeed incompatible with his incarceration at the Detention Unit. In respect of his physical ailments, the Defence relies upon the expert medical reports of Dr. Miodrag Ostojic, cardiologist, and Dr. Miroslav Kovacevic, neurologist. In respect of his psychiatric disorders, the Defence relies upon the expert opinion of Dr. Lorraine Summerfeldt, psychiatrist.
13. We are of the view that the medical condition of the accused is not such as amounts to an exceptional circumstance warranting his provisional release. With regard to his psychiatric condition, the expert opinions of Dr. A.L. Elsman, psychiatrist, and Dr. Paul Bowden, consultant forensic psychiatrist, both expressly indicate that the psychiatric condition of the accused is compatible with his continued detention. We prefer these two opinions over the single contrary opinion of Dr. Summerfeldt.
14. In respect of the accuseds physical condition, we have considered the medical opinions submitted by Dr. Miodrag Ostojic, Director, Division of Cardiology, Institute for Cardiovascular Diseases, Belgrade, Federal Republic of Yugoslavia and Prof. Dr. Miroslav Kovacevic, Professor of Neuropsychiatry, Belgrade University School of Medicine, Federal Republic of Yugoslavia. We have also had regard to the copy of a nurses notes of the accuseds daily blood pressure readings at the Detention Unit. Although it is clear from these medical opinions and notes that the accused has a serious illness, there is no indication that the condition of the accused is terminal or immediately life-threatening. In addition, there is no suggestion that the accused cannot be treated effectively in the Netherlands. The fact that an accused who is ill would be in better spirits and more receptive to medical treatment in his home country with the support of his family does not, in our view, amount to an exceptional circumstance.
2. Absence of reasonable suspicion
15. In the Decision on Motion for Provisional Release filed by the Accused Zejnil Delalic of 25 September 1996 ("the Delalic Decision"), the Trial Chamber held:
In determining whether an accused has established exceptional circumstances, the Trial Chamber looks to determine whether there is reasonable suspicion that he committed the crime or crimes as charged, his alleged role in the said crime or crimes, and the length of the accuseds detention. SEmphasis added.C
16. It is open to the Defence to bring evidence which may establish the absence of a reasonable suspicion. As stated in the Delalic Decision "[t]o remain lawful the detention of the accused must be reviewed so that the Trial Chamber can assure itself that the reasons justifying detention remain". In that case, the Prosecutions submission that additional evidence is not admissible because it goes to the merits of the case was rejected. The Trial Chamber must review "in a cursory manner" the strength of the Prosecutions case in determining whether the accused has shown an absence of reasonable suspicion, keeping in mind that this is not the proper time to consider the merits of the case.
17. The Defence contends that the accuseds continued detention is unjustified because no reasonable suspicion that the accused committed the crimes with which he is charged can be entertained. It argues that the Prosecution has led no evidence of the mens rea element required to prove the crime with which the accused is charged. The Defence submits that this specific intent cannot reasonably be inferred from the merely circumstantial fact of the accuseds position on the Municipality of Prijedor Crisis Staff, the body which the Prosecution alleges directed and controlled the Bosnian Serb forces in their seizure of the town of Prijedor. The Defence contends that it is not reasonable to infer from the accuseds de jure membership of the Crisis Staff that he was responsible for criminal activities allegedly organised and ordered by that body. Consequently, the Defence submits that Judge Odio Benito erred when she confirmed the indictment against the accused in the absence of a "specific finding of intent".
18. To support its contention of absence of reasonable suspicion, the Defence tendered the following evidence to which we have given due consideration:
(a) copies of the Anesthesia Logs of the Prijedor General Hospital from 24 May 1992 to 1 September 1992;
(b) a list of the Moslem patients admitted to and treated in various departments of Prijedor Hospital from 21 April 1992 to 1 September 1992 when the accused was the hospitals director;
(c) a statement by Mr. Goran Dragojevic, an ambulance driver in Prijedor;
(d) a statement by Dr. Zvonimir Iglic, Chairman of the Ear, Nose and Throat Department of Prijedor Hospital.
19. There is, in our view, no requirement that the Prosecution prove mens rea at this pre-trial stage of proceedings to establish the existence of a reasonable suspicion. In the Delalic Decision, it was noted that having a reasonable suspicion presupposes the
existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. SEmphasis added.C
There is no requirement that "the existence and nature of the offence of which the person concerned is suspected be established since that is the aim of the investigation, the proper conduct of which is facilitated by detention".
20. Similarly, we hold that, in this context, there is no requirement that the Prosecution prove mens rea or intent to secure the confirmation of an indictment. Confirmation of indictment is not trial on the merits. The confirmation of an indictment requires that there be "sufficient evidence to provide reasonable grounds for believing that a suspect has committed a crime within the jurisdiction of the Tribunal". In the confirmation of the indictment in the case Prosecutor v. Rajic, Judge Sidhwa noted that "[t]o constitute reasonable grounds, facts must be such which are within the possession of the Prosecutor which raise a clear suspicion of the suspect being guilty of the crime". Judge Sidhwa added that "[t]he evidence, therefore, need not be overly convincing or conclusive; it should be adequate or satisfactory to warrant the belief that the suspect has committed the crime".
21. We, accordingly, find that the Defence has failed to discharge its burden of proving an absence of a reasonable suspicion that the accused has committed the crimes charged. We are of the view that the evidence submitted by the Defence is inadequate to rebut the presumption of a reasonable suspicion which exists by virtue of confirmation of the indictment against the accused. We are satisfied as to the continued existence of such a reasonable suspicion warranting the continued detention of the accused.
3. Length of Detention
22. The length of an accuseds detention is a factor to be considered in determining whether the accused has shown exceptional circumstances sufficient to justify his provisional release.
23. The Defence argues that the lengthy detention of the accused constitutes a breach of his human rights. The Defence cites numerous national authorities, mostly from the United States, which condemn lengthy pre-trial detention as a denial of due process and as punitive, not regulatory, in nature. It submits that the International Tribunal should adopt standards regarding the reasonableness of length of pre-trial detention which are not lower than those of national systems.
24. We find that the length of the detention of the accused in this case is entirely within acceptable limits. We would accordingly reject the submissions of the Defence for the following reasons. Firstly, the length of the accuseds detention at present and projected until the expected date of his trial, is well within established international standards, bearing in mind the seriousness of the crime with which he has been charged. The European Commission of Human Rights and the European Court of Human Rights have each upheld periods of pre-trial detention of over four years. Secondly, in view of the difficulties faced by the International Tribunal in investigating and prosecuting complex cases involving grave crimes committed thousands of kilometres from its seat in the Netherlands and without the assistance of a police force, the accuseds present detention of six months does not constitute an exceptional circumstance warranting his provisional release. It is these difficulties which immediately distinguish proceedings before the International Tribunal from those before national courts with police and other investigative resources at their disposal to investigate crimes within national boundaries. We, therefore, find that the accused has not been detained for an undue length of time pending trial and that his rights have not been violated.
25. The accused wishes to be released to the territory of the Republika Srpska if provisional release is granted. At the first hearing on the matter of provisional release on 10 October 1997, the Defence tendered a letter from the then President of the Republika Srpska, Mr. Gojko Klickovic, dated 7 October 1997. This letter advised that the Republika Srpska was willing to accept the return of the accused.
26. The Defence submits that if released, the accused will appear for trial and will not pose any danger to victims, witnesses or other persons pursuant to Rule 65(B). We note, however, that the Defence has tendered no evidence in support of these submissions except for two letters. The first letter, dated 7 October 1997 and tendered by the Defence at the hearing of 10 October 1997, was also from the then President of the Republika Srpska, Mr. Gojko Klickovic, and advised that the Republika Srpska was willing to offer a deposit to the International Tribunal as a guarantee that the accused would appear for trial. The second letter, dated 11 January 1998 and filed by the Defence on 12 January 1998, was from the President of the Republika Srpska, Ms. Biljana Plavsic and advised that she supported the accuseds motion for provisional release but offered no guarantees that the accused will appear for trial.
27. We find, having given due consideration to both letters submitted by the Defence, that we are not sufficiently satisfied that that the accused will appear for trial. It is a matter of public record that the Republika Srpska has not arrested any one of the forty-eight persons publicly indicted by the International Tribunal and believed to be resident in that country. We are also alive to the difficulty of implementing any such guarantee or other conditions of release such as daily reporting to police authorities or house arrest.
28. The Defence has submitted no further evidence on this matter. Bearing in mind the submission of the Prosecution that the seriousness of the offence and the disclosure process render interference with witnesses more likely, we find that the Defence has failed to demonstrate that, if released, the accused will appear for trial and will not pose a danger to any victim, witness or other person.
29. For the foregoing reasons, the TRIAL CHAMBER unanimously REJECTS the Defences Motion for Provisional Release pursuant to Rule 65 of the Rules of Procedure and Evidence.
DONE in English and French, the English text being authoritative.
Richard George May
Dated this twentieth day of January 1998
At The Hague
[Seal of the Tribunal]