Case No.: IT-95-13/1-AR65
IN THE APPEALS CHAMBER
Judge Shahabuddeen, Presiding
Mr. Hans Holthuis
8 October 2002
DECISION ON APPEAL AGAINST REFUSAL TO GRANT PROVISIONAL RELEASE
Counsel for the Prosecutor:
Mr. Jan Wubben
Mr. Mark J. McKeon
Counsel for the Defence:
Mr. Miroslav Vasic
- Pursuant to leave granted by a Bench of the Appeals Chamber,1
Mile Mrksic (“Appellant”) appealed against Trial Chamber II’s “Decision on
Mile Mrksic’s Application for Provisional Release”, rendered on 24 July 2002
(“Appeal ”).2 On 6 September 2002 the Prosecution
filed the “Prosecution’s Response to Accused Mrksic’s Appeal of the Trial
Chamber’s Decision to Deny Provisional Release”, and on 12 September 2002
the Appellant filed the “Defence Reply to ‘Prosecution’s Response to Accused
Mrksic’s Appeal on the Trial Chamber’s Decision to Deny Provisional Release’”.
First ground of appeal
- The Appellant submits that the Decision of the Trial Chamber is out of
line with other decisions on provisional release.
- Rule 65 of the Rules of Procedure and Evidence (“Rules”) provides, in relevant
part, as follows:
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 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.
- The Trial Chamber stated in its Decision that it was not satisfied that,
if released, the Appellant would appear for trial. It considered three factors
in particular with regard to the likelihood of his appearance. First of all,
it examined the Appellant’s surrender to the Tribunal, which, coming as it
did six years after the indictment was made known to him, the Trial Chamber
found to have “only limited impact” upon its Decision. Secondly, the Trial
Chamber considered guarantees offered by the Federal Republic of Yugoslavia
(“FRY”) and the Republic of Serbia designed to ensure co- operation with the
terms of any provisional release, including the promise to re -arrest the
Appellant if he tried to escape: these the Trial Chamber treated “with much
caution” due to the fact that the governments concerned had arrested neither
the other two co-accused in the case nor “other high-ranking individuals indicted
by the Tribunal”. Thirdly, the Trial Chamber declared itself not satisfied
with the Appellant’s own personal undertakings that he would return for trial
since he had rejected the authority of the Tribunal during the six years when
he knew of the indictment against him and yet failed to surrender for trial.
- The Appellant submits that the Trial Chamber erred in the weight it attached
to these factors in reaching its Decision. He compares his case with others
in which provisional release was granted,3 and
claims that these same factors weighed differently, and in favour, of the
applicants in those other cases. He submits that the Tribunal is applying
“double standards for identical issues”.
- The Prosecution makes the general point that comparison with other cases
is of limited value as the various factors which the Chambers take into account
will weigh differently in relation to different accused. So with regard to
the Appellant’s arguments on the issue of surrender, it submits that “SnCo
single factor can be given controlling weight in deciding a provisional release
motion”.4 In relation to the weight to be attached
to the guarantees from the FRY and the Republic of Serbia, the Prosecution
points again to the specificity of each case , and submits that the “question
remains whether in this case the presence of guarantees issued by the
FRY and the Republic of Serbia significantly softened the risks inherent in
the fact that the Tribunal lacks the ability to re-arrest Mrksic once he is
- The Appellant’s allegations of double standards are developed in some detail
, in particular with regard to the guarantees provided by the FRY and the
Republic of Serbia. According to the Appellant, these were recognised by the
Trial Chambers in the other decisions mentioned but were not accepted as “valid”
in his own case .6 A reading of the Trial Chamber’s
Decision in the present case demonstrates that it did not refuse to accept
the guarantees of those two governments because they were not “valid”. Indeed,
the Trial Chamber held that the content of those guarantees “largely complies
with that which the Trial Chamber would generally require for the purposes
of provisional release”.7 What the Trial Chamber
decided was that, despite the guarantees provided by those two governments,
it was not satisfied that the accused would appear for trial.8
It did so, as mentioned above, because it felt unable to ignore the fact that,
to date, neither government has arrested two co-accused in this present case,
nor “ other high-ranking individuals indicted by the Tribunal”.
- This fact was relevant in this case, where the Trial Chamber had expressed
doubts as to whether Mrksic could be treated as having voluntarily surrendered.
Whether he had voluntarily surrendered is relevant to the degree of cooperation
which could be expected of Mrksic when the time came for him to appear for
trial . The Trial Chamber’s finding concerning that degree of cooperation
therefore necessarily placed some importance upon the reliability of the guarantees
which had been provided by the two governments. But the suggestion by Mrksic
that the Trial Chamber was applying double standards by not being satisfied
that he would appear for trial despite the provision of those guarantees demonstrates
a misapprehension as to how Trial Chambers are required to approach the reliability
of such guarantees.
- The reliability of a guarantee given by the relevant authority must be
determined in relation to the circumstances which arise in the particular
case. The issue in each particular case is what would occur if the relevant
authority were obliged under its guarantee to arrest the accused person seeking
provisional release in that case. A Trial Chamber may accept such a guarantee
as reliable in relation to Accused A, whereas the same or another Trial Chamber
may decline to accept that the same authority’s guarantee as reliable in relation
to Accused B, without there being any inconsistency (or “double standards”)
involved in those two decisions. To give two easy examples: Accused A may
have surrendered voluntarily as soon as he learnt that he had been indicted
and may have cooperated with the Office of the Prosecutor in a way which demonstrated
his bona fide intention to appear for trial. The reliability of the
guarantee provided by the relevant authority is of less importance in such
a case, and may more easily be accepted as sufficiently reliable in relation
to this particular accused person. On the other hand, Accused B may have
been a high level government official at the time he is alleged to have committed
the crimes charged, and he may have since then lost political influence but
yet possess very valuable information which he could disclose to the Tribunal
if minded to cooperate should he be kept in custody. There would be a substantial
disincentive for that authority to enforce its guarantee to arrest that particular
accused if he did not comply with the conditions of his provisional release.
A finding that the guarantee is not sufficiently reliable in the case of Accused B
would be completely reasonable, despite the finding that it was reliable in
relation to Accused A.
- Academic and opinion writers and the interested public may, of course,
nevertheless wrongly perceive an inconsistency in those two cases in relation
to the same authority , and criticise the Tribunal for what has been wrongly
perceived. Trial Chambers should take care to explain their decisions in a
way to avoid such criticisms, but they cannot be expected to change their
view of the facts in a particular case in order to avoid unfounded criticism.
Nor should the Appeals Chamber interfere with either such case simply because
of the possibility of such criticism.
- There are many factors which are relevant to a Trial Chamber’s determination
of the reliability of the guarantee provided by the authority in question.
Such reliability must be determined not by reference to any assessment of
the level of cooperation by that authority with the Tribunal generally, but
in relation to what would happen if that authority were obliged under its
guarantee to arrest the particular accused in question. What would happen
in the circumstances of that particular accused in question is a fact in issue
to be decided when determining whether that accused will appear for trial.
The general level of cooperation by the authority with the Tribunal does have
some relevance in determining whether it would arrest the particular accused
in question, but it is not itself a fact in issue. It is therefore both unnecessary
and unwise to include in the Trial Chamber’s decision a separate finding concerning
that general level of cooperation – unnecessary because any such finding can
only be applicable to a particular point in time, and unwise because it could
easily be misunderstood by the parties in relation to subsequent applications
for provisional release.
- The reliability of guarantees by any particular authority necessarily depends
to some extent upon the vagaries of politics and of personal power alliances
within the relevant authority as well as upon the impact of any international
pressure (including financial pressure) upon the authority at any time, and
indeed even the likelihood in the future of a change of government in any
particular case. A difference in cooperation as a result of a change of government
is a fact of life (even though a political one) which must be taken into account
in determining whether a guarantee will be enforced by an authority in relation
to the accused person in question.
- Once this approach is understood, and provided that the Trial Chambers
make such an approach clear in their decisions, no suggestion of inconsistency
(or, more gravely, of double standards) can fairly be made.
- Under Article 25 of the Statute of the Tribunal, the Appeals Chamber has
jurisdiction to deal with errors of fact which have occasioned a miscarriage
of justice, or errors on a question of law invalidating the decision. The
finding of the Trial Chamber that it was not satisfied that the Appellant
would appear for trial is a finding of fact. Such a finding of fact will be
reversed only if the party challenging it demonstrates that it was one which
no reasonable tribunal of fact could have reached , or that the finding was
invalidated by an error of law, or that the evaluation of the evidence was
- The Appeals Chamber is unable to characterise the Trial Chamber’s Decision
in this case in this way. The fact that other Trial Chambers have reached
different conclusions in different cases, having taken similar factors into
account, does not mean that this Trial Chamber has reached a conclusion which
no reasonable tribunal of fact could have reached. The Trial Chamber evaluated
the circumstances which it thought to be relevant and reached a conclusion
which was open to it.
- This ground of appeal therefore fails.
Second ground of appeal
- The Appellant further alleges an error of law in the Trial Chamber’s assessment
of the length of his pre-trial detention. The Trial Chamber considered the
relevant period to be length of time that the Appellant had spent in detention
until the delivery of its Decision on his application for provisional release
(the actual period). The Appellant claims that the relevant period is rather
until the probable start of trial (the probable period). The Prosecution responds
that the only thing the Trial Chamber could look at was the actual period,
as it would have been “rank speculation” for it to do otherwise.
- It is true that the length of pre-trial detention raised by the Appellant
in his motion before the Trial Chamber was the probable period of detention
until the start of the trial.9 The Trial Chamber
appeared to acknowledge this in its initial consideration of the matter, as
it held that:
The Chamber must, in this context, consider the Defence
submission that it should take into account the likelihood that the Accused
might face a slightly longer pre -trial procedure in the light of the
pending amendment to the indictment and the Schedule of this Trial Chamber.10
However, the Chamber did not in fact consider the probable period, but
rather went on to assess whether the actual period the Appellant had spent
in pre-trial detention breached his right to trial within a reasonable time
or to release, as reflected in article 9 of the International Covenant on
Civil and Political Rights and article 5 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms.
- It is of course open to the Trial Chamber to take the actual period of
pre- trial detention into account in considering an application for provisional
release , in particular in relation to any breach of the above-mentioned right.
However, this was not the argument put forward by the Appellant. The Appellant
did not submit that the Trial Chamber was obliged to release him because his
right to trial within a reasonable time had been breached by the actual period
he had spent in detention , but rather that the Trial Chamber should take
into account the probable period he would spend in pre-trial detention.
- The Appeals Chamber understands the Appellant’s submission to have been
directed to the exercise of the Trial Chamber’s discretion to release him.
As the Appellant submits, some other decisions of this Tribunal on provisional
release have taken the probable length of pre-trial detention into account
in the exercise of this discretion.11 However,
even if the Trial Chamber had considered the correct period, it was far too
early for it to determine whether that period was excessive in the circumstances.
- This ground of appeal therefore fails.
Third ground of appeal
- The last ground of appeal put forward relates to the health of the Appellant
, who has a heart condition. He claims that the Trial Chamber’s assessment
of his medical condition was erroneous.
- The Trial Chamber held, on the basis of medical reports, that the Appellant’s
condition did not warrant his release, and that nothing in the record indicated
that the treatment he would receive in detention was inferior to the treatment
he could receive in Belgrade. The Appellant submits that the stress of being
detained and the diet he receives in the Detention Unit contribute to his
high blood pressure and hinder his recovery from a recent heart operation.
The Prosecution concedes that, although health is not listed as an issue in
Rule 65, the Tribunal has previously considered the question of whether an
applicant’s state of health is “incompatible with any form of detention” (see
paragraph 21, supra). It goes on to assert that the treatment the Appellant
requires can be obtained in the Netherlands, and that his contention that
detention is causing or aggravating his condition is unsupported by the medical
- The Appeals Chamber notes that the medical reports do find that the Appellant’s
condition may be partly attributable to his detention. In particular, Dr.
van Dijkman’s report states that:
Naturally, recent detention has resulted in considerable stress. Possibly
as a result also high blood pressure.12
However, this report goes on to summarise the patient’s situation as “currently
good” and to prescribe medication for the high blood pressure. The Trial
Chamber’s conclusions from the reports that the Appellant can receive adequate
treatment in the UN Detention Unit are not of such nature that no reasonable
tribunal of fact could have reached them.
- This ground of appeal thus also fails.
FOR THE FOREGOING REASONS,
THE APPEALS CHAMBER
DISMISSES the Appeal.
Done in both English and French, the English text being authoritative.
Dated this eighth day of October 2002
At The Hague,
[Seal of the Tribunal]
1 - “Decision on Application for Leave to Appeal”,
26 August 2002.
2 - “Defence Brief on Appeal against Trial Chamber’s Decision
to Deny Provisional Release”, 30 August 2002.
3 - Prosecutor v. Krajisnik & Plavsic IT-00-39 & 40-PT,
“Decision on Biljana Plavsic’s application for provisional release”, 5 September
2001; Prosecutor v. Blagojevic, Obrenovic & Jokic IT-02-53-AR65, “Decision
on application by Dragan Jokic for Provisional Release”, 28 May 2002; Prosecutor
v. Sainovic & Ojdanic IT-99-37-PT, “Decision on Applications of Nikola Sainovic
and Dragoljub Ojdanic for Provisional Release”, 26 June 2002 (“Sainovic Decision”);
Prosecutor v. Gruban IT-95-4-PT, “Decision on request for pre-trial provisional
release”, 17 July 2002.
4 - “Prosecution’s Response to Accused Mrksic’s Appeal of the
Trial Chamber’s Decision to Deny Provisional Release”, 6 September 2002, §28.
5 - Ibid., §36.
6 - Appeal, § 10.
7 - Decision on Mile Mrksic’s Application for Provisional Release,
24 July 2002 (“Trial Chamber Decision”), § 44.
8 - The Appeals Chamber here adopts the words of Rule 65(B),
rather than the words used by the Trial Chamber, which may themselves be open
9 - “Defence Motion for Provisional Release”, 23 May 2002, §23;
transcript of motion hearing 19 July 2002 p.17 lines 8-12.
10 - “Decision on Mile Mrksic’s Application for Provisional
Release”, 24 July 2002, §48.
11 - See Sainovic Decision, §17; IT-00-39 & 40-PT Prosecutor
v Krajisnik “Decision on Momcilo Krajisnik’s Notice of Motion for Provisional
Release”, 8 October 2001, §22.
12 - 12 July 2002, p.1.