Case: IT-95-13/1-AR65.2

BEFORE A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Presiding

Judge Fausto Pocar
Judge Mehmet Güney

Registrar:
Mr. Hans Holthuis

Decision of:
19 April 2005

PROSECUTOR

v

MILE MRKSIC
MIROSLAV RADIC
VESELIN SLJIVANCANIN

_______________________________________

DECISION ON APPLICATION FOR LEAVE TO APPEAL

_______________________________________

Counsel for the Prosecution:

Mr. Jan Wubben

Counsel for Mile Mrksic:

Mr. Miroslav Vasic

THIS BENCH of 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 (“International Tribunal”),

BEING SEISED of the “Defence Application for Leave to Appeal” (“Application ”) filed by Mile Mrksic (“Applicant”) on 16 March 2005 against the “Decision on Defence Motion for Provisional Release” rendered by Trial Chamber II on 9 March 2005 (“Impugned Decision”), which denies the Applicant’s motion for provisional release;

NOTING the “Prosecution Response to Motion of the Applicant Mile Mrksic for Leave to Appeal Filed on 16 March 2005” filed by the Prosecution on 24 March 2005 , which submits that the Applicant has failed to show “good cause” and that consequently the Application should be denied;

NOTING that pursuant to Rule 65(B) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) an accused may only be provisionally released if the Trial Chamber is satisfied that he or she will appear for trial and, if released , will not pose a danger to any victim, witness or other person;

NOTING that Rule 65(D) of the Rules provides that a party may appeal against a decision on provisional release upon good cause being shown;

CONSIDERING that “good cause” within the meaning of Rule 65(D) of the Rules requires that the party seeking leave to appeal under that provision satisfy the bench of the Appeals Chamber that the Trial Chamber may have erred in reaching the Impugned Decision;1

CONSIDERING that the Application seeks leave to appeal the Impugned Decision on the grounds that: (i) the Trial Chamber erred in finding that the circumstances underlying the present Application cannot be compared with those supporting the Second Decision on Provisional Release;2 (ii) his voluntary surrender and the fact that he observed the Trial Chamber’s orders when provisionally released should be taken into account as an indication of his “positive attitude towards the International Tribunal”3 and thus as a “test for the question ?as tog whether ?heg will appear for trial ”4; (iii) the Trial Chamber erred in finding that the “relevance of the gravity of the crimes ?charged against himg would be to aggravate the risk that ?heg will not appear for trial”;5 (iv) the Trial Chamber erred in finding that the fact that the Prosecution has submitted a request for referral pursuant to Rule 11bis of the Rules6 “aggravates the risk that ?heg will not appear for trial”7; (v) copies of the government guarantees required were attached to the Applicant’s reply to the Prosecution’s response to his motion for provisional release8; and (vi) the Applicant’s behaviour during his provisional release does not substantiate the Trial Chamber’s concern that if released he would pose a danger to any victim , witness or other person;9

NOTING that pursuant to the Second Decision on Provisional Release, the Applicant was provisionally released from 30 January 2004 to 2 February 2004 to allow him to attend his mother’s funeral;

CONSIDERING that the Second Decision on Provisional Release was based on exceptional grounds of compassion and subject to stringent conditions i.e., that the Applicant would be escorted at all times either by an official of the Republic of Serbia and Montenegro or the Kingdom of the Netherlands and return to the Detention Unit within three days;10

CONSIDERING that with respect to the Applicant’s voluntary surrender, the Appeals Chamber found that, coming as it did six years after the indictment was made known to him, it was reasonable for the Trial Chamber to express doubts as to whether the Applicant could be treated as having voluntarily surrendered and to conclude that this factor could only have limited impact upon its First Decision on Provisional Release;11

CONSIDERING that, in light of the exceptional circumstances underlying the Applicant’s provisional release from 30 January 2004 to 2 February 2004, he has failed to show that the Trial Chamber may have erred in determining that, despite the fact that he observed the Trial Chamber’s orders during that time period, it was not satisfied that he would appear for trial if provisionally released;

NOTING that in support of his argument that the Trial Chamber erred in finding that the gravity of the crimes charged against him would aggravate the risk that he would not appear for trial, the Applicant submits that this finding is in “full contradiction” with the Prosecution’s position reflected in paragraphs 20 and 21 of its Request for Referral12 which relevant parts read as follows:

Although Mrksic was a colonel in the JNA who had ultimate responsibility for the safety of the civilians who took refuge in Vukovar Hospital, given that he took orders from the JNA command and that his rank in the JNA was at the intermediate level, it is not a case that demands that it be prosecuted at the Tribunal.13

On this basis, the Prosecutor considers that, as matters stand, neither the gravity of the crimes alleged nor the rank of the accused demand that this case be brought to trial before the International Tribunal.14

NOTING that the Request for Referral is still pending before the Referral Bench;15

CONSIDERING that when determining whether to refer a case to the authorities of a State, the Referral Bench must consider the gravity of the crimes charged and the level of responsibility of the accused in accordance with Security Council resolution 1534 (2004) which “[c]alls on each Tribunal, in reviewing and confirming any new indictments, to ensure that any such indictments concentrate on the most senior leaders suspected of being most responsible for crimes within the jurisdiction of the relevant Tribunal as set out in resolution 1503 (2003)”;16

CONSIDERING as a result, that it does not follow that the effect of a request pursuant to Rule 11bis of the Rules is that the cumulative requirements set out in Rule 65(B) of the Rules would be automatically satisfied;

CONSIDERING further that it cannot be inferred from the wording of the Request for Referral that the charges against the Applicant are not of a grave nature, and thus as stated in the Impugned Decision, the Request for Referral does not constitute “a new factor changing the situation of the [Applicant] to such an extent that the two Rule 65(B) criteria would be fulfilled”;17

CONSIDERING that the Applicant has failed to show that the Trial Chamber may have erred in considering the gravity of the crimes charged against him as a factor in reaching the Impugned Decision;

CONSIDERING that the Applicant has failed to show that the Trial Chamber may have erred in concluding that the Request for Referral might increase the risk that he would not appear for trial if released;

NOTING that the Applicant rather than appending a new guarantee either from the Government of the Federal Republic of Yugoslavia or from the Government of the Republic of Serbia to his motion for provisional release, relied instead on the guarantees submitted on 13 June 2002 and 31 January 2004 which were for specific periods of time;18

NOTING the Trial Chamber’s conclusion that it could not consider the guarantees submitted on 13 June 2002 and 31 January 2004 as valid and current;19

NOTING that the Trial Chamber was only provided with copies of the confirmation of the guarantees by the Federal Government of the Federal Republic of Yugoslavia , the Council of Ministers of Serbia and Montenegro and the Government of the Republic of Serbia, when the Applicant filed his Leave to File Reply;20

CONSIDERING that because government guarantees are such a fundamental aspect of an application for provisional release, the confirmation of governmental guarantees should not have been submitted as an annex to the Leave to File Reply, specially since according to the dates of the said confirmation of guarantees it appears that they were available to the Applicant at the time he filed his motion for provisional release;21

CONSIDERING that as the circumstances necessitating the Applicant’s provisional release from 30 January 2004 to 2 February 2004 were of an exceptional nature, he has failed to show that the Trial Chamber may have erred in determining that regardless of his behavior during his release, it was not satisfied that if provisionally released he would not pose a danger to any victim, witness or other person;

FINDING that the Applicant has failed to demonstrate that the Trial Chamber may have erred in taking the Impugned Decision;

HEREBY DENIES leave to appeal the Impugned Decision.

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

Dated this nineteenth day of April 2005
At The Hague,
The Netherlands.

__________________________
Judge Mohamed Shahabuddeen
Presiding

[Seal of the International Tribunal]


1 - Prosecutor v. Ivan Cermak, Case No.: IT-03-73-AR65.1, Decision on Joint Motion for Leave to Appeal Decision on Provisional Release, 13 October 2004, para. 4; Prosecutor v. Franko Simatovic, Case No.: IT-03-69-AR65.2, Decision on Prosecution’s Application for Leave to Appeal Decision on Provisional Release, 30 September 2004, para. 2; Prosecutor v. Fatmir Limaj et al, Case No.: IT-03-66-AR65.3, Decision on Isak Musliu’s Request for Provisional Release, 31 October 2003, para. 6; Prosecutor v. Milan Milutinovic, Nikola Sainovic and Dragoljub Ojdanic, Case No.: IT-99-37-AR65.3, Decision Refusing Milutinovic Leave to Appeal, 3 July 2003, para. 3; Prosecutor v. Milan Milutinovic, Nikola Sainovic and Dragoljub Ojdanic, Case No.: IT -99-37-AR65.2, Decision Refusing Ojdanic Leave to Appeal, 27 June 2003, p. 2; Prosecutor v. Vidoje Blagojevic et al, Case No.: IT-02-60-AR65.3 and IT-02-60-AR65.4, Decision on Application by Blagojevic and Obrenovic for Leave to Appeal, 16 January 2003, para. 8; Prosecutor v. Vidoje Blagojevic et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokic for Leave to Appeal, 18 April 2002, para. 3; Prosecutor v. Radoslav Brdjanin and Momir Talic, Case No.: IT-99-36-AR65, Decision on Application for Leave to Appeal, September 2000, p. 2; Prosecutor v. Blagoje Simic et al, Case No.: IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000, p. 3.
2 - Application, para. 5 referring to Prosecutor v. Mile Mrksic et al., Case No.: IT-95-13/1-PT, Decision Pursuant to Rule 65 Granting Mrksic’s Request to Attend his Mother’s Funeral, 30 January 2004 (“Second Decision on Provisional Release”).
3 - Application, para. 6.
4 - Ibid., para. 8.
5 - Ibid., para. 9.
6 - Prosecutor v. Mile Mrksic et al., Case No.: IT-95-13/1-PT, Request by the Prosecutor Under Rule 11bis for Referral of the Indictment to Another Court, 9 February 2005 (“Request for Referral”), para. 20.
7 - Application, para. 24.
8 - Ibid., para. 17.
9 - Ibid., para. 15.
10 - Impugned Decision, para. 13; see also Second Decision on Provisional Release, pp. 2-3.
11 - Prosecutor v. Mile Mrksic et al., Case No.: IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002, paras 4, 8, 14 and 15. This decision dismissed the appeal against the “Decision on Mile Mrksic’s Application for Provisional Release” issued by Trial Chamber II on 24 July 2002 (“First Decision on Provisional Release”) which denied the Applicant’s request for provisional release.
12 - Application, para. 10
13 - Request for Referral, para. 20.
14 - Ibid., para. 21 (footnote omitted).
15 - Prosecutor v. Mile Mrksic et al., Case No.: IT-95-13/1-PT, Motion by the Prosecutor Under Rule 11bis for Referral of the Indictment, 9 February 2005; see also Order Appointing a Trial Chamber for the Purpose of Determining Whether an Indictment Should be Referred to Another Court Under Rule 11bis, 10 February 2005.
16 - United Nations Security Council resolution 1534 (2004), S/RES/1534(2004), adopted by the Security Council at its 4935th meeting, 26 March 2004, para. 5 referring to the International Tribunal and the International Criminal Tribunal for Rwanda.
17 - Impugned Decision, para. 15.
18 - Impugned Decision, para. 14. See also Prosecutor v. Mile Mrksic, Case No.: IT-95-13/1-PT, Defence Motion for Provisional Release, 23 February 2005, paras 26 -28.
19 - Impugned Decision, para. 14.
20 - Prosecutor v. Mile Mrksic et al., Case No.: IT-95-13/1-PT, Defence Request to Leave to File Defence Reply, And The Defence Reply to “Prosecution’s Response to the Accused Mile Mrksic’s Defence Motion for the Provisional Release”, 9 March 2005 (“Leave to File Reply”). Confirmation of guarantees by the Federal Government of the Federal Republic of Yugoslavia and the Council of Ministers of Serbia and Montenegro dated 16 February 2005 and of the guarantees by the Government of the Republic of Serbia dated 9 December 2004, were attached to the Leave to File Reply. The Impugned Decision does not refer to the Leave to File Reply or the copies of the confirmation of guarantees attached.
21 - No explanation was provided by the Applicant as to why the said guarantees were not submitted earlier. Paragraph 21 of his Leave to File Reply simply states that: “…the guarantees […] have to be submitted to the ICTY by diplomatic channels.”