Case No. IT-95-13/1-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
20 May 2004

PROSECUTOR

v.

MIROSLAV RADIC

____________________________________

DECISION ON REQUEST BY THE ACCUSED RADIC FOR PROVISIONAL RELEASE

____________________________________

The Office of the Prosecutor:

Mr. Jan Wubben

Counsel for the Accused Miroslav Radic:

Mr. Borivoje Borovic
Ms. Mira Tapuskovic

 

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"),

BEING SEISED OF the "Urgent Request by the Accused Radic for Provisional Release in Lieu of Previously Filed Request for Provisional Release of 18 June 2003", filed on 13 May 2004 ("Motion") by Counsel for the Accused Miroslav Radic ("Radic");

NOTING that, in the Motion, Radic requests provisional release for a period of five days to attend a traditional memorial service in commemoration of the anniversary of his fatherís death, which is scheduled to take place in Belgrade on 22 May 2004;1

NOTING further the "Addendum to the Request of the Accused Radic for Provisional Release filed on 13 May 2004" filed by Radic on 14 May 2004 ("Addendum");

NOTING that, in the Motion and the Addendum, Radic submits the following guarantees in regard to his release:

(1) a guarantee issued by the Council of Ministers of the Republic of Serbia and Montenegro dated 2 October 2003;2

(4) a guarantee from the government of the Republic of Serbia and Montenegro, dated 4 September 2003;3 and

(5) a guarantee of the new government of the Republic of Serbia and Montenegro confirming the guarantees issued on 4 September 2003, dated 13 May 2004;4

NOTING the "Prosecutionís Response to the Request and Addendum of Accused Radic for Provisional Release filed on 13 and 14 May 2004", filed by the Office of the Prosecutor ("Prosecution") on 18 May 2004 ("Response");

NOTING that, in its Response, the Prosecution opposes the Motion arguing, inter alia, the following:

(a) Radic has failed to meet the standard of Rule 64 of the Rules of Procedure and Evidence of this Tribunal ("Rules");5

(b) Radic has not met the burden of proof under Rule 65 of the Rules, as the guarantees provided by the government of the Republic of Serbia and Montenegro on 4 September 2003 and 13 May 2004 to the Trial Chamber are insufficient on their face. In particular, the guarantees do not specify: (a) what steps the government or the Ministry of the Interior, will undertake to ensure that Radic is under a controlled release; (b) whether the government will officially receive Radic from the Dutch authorities; (c) whether the government will provide for a "controlled visit" of Radic at all times while on the territory of the Republic of Serbia and Montenegro; and (d) whether the government will officially return Radic to the Dutch authorities;6 and

(c) the lack of co-operation of the Republic of Serbia and Montenegro with the Tribunal;7

NOTING the "Request by the Accused Radic for a Leave to File a Reply to the OTPís Response to the Urgent Request by the Accused Radic for Provisional Release in Lieu of Previously Filed Request for Provisional Release of 18 June 2003", filed by Radic on 19 May 2004 ("Reply"), requesting (a) leave to file the Reply; (b) confirmation of the Motion;

NOTING that in the Reply, Radic argues, inter alia, that lack of co-operation of the bodies of the authorities of Serbia and Montenegro with the Tribunal should not be the main criterion that a Trial Chamber takes into account when deciding on a provisional release;8

CONSIDERING that in the Motion, Radic requests the Trial Chamber to grant him provisional release pursuant to Rule 65 of the Rules;

CONSIDERING that pursuant to Rule 65(B) of the Rules, provisional release may only be granted if the Trial Chamber "is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person";

CONSIDERING that a Trial Chamber retains the discretion not to grant provisional release even if it is satisfied that the requirements laid down in Rule 65 (B) of the Rules are met;9

CONSIDERING that, although the Prosecution raises serious concerns about the guarantees provided by the Republic of Serbia and Montenegro and the lack of cooperation with the Tribunal, the Chamber does not have to pronounce on this issue, in light of the following paragraph;

FINDING that the reason for seeking the provisional release, i.e. the attendance of a memorial service, does not in itself justify the provisional release of Radic for the five day period requested;

FOR THE FOREGOING REASONS

PURSUANT TO Rule 65 (B) of the Rules,

HEREBY DENIES THE MOTION.

 

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

Dated this 20th day of May 2004,
At The Hague
The Netherlands

_____________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]
1. Motion, paras 10, 12 and 14. The Motion also provides that Radic will not file a further request for provisional release lasting until the commencement of the trial as he is "fully aware that all conditions required by the jurisprudence of the Tribunal have not been fully met to grant the request of the accused person for provisional release until commencement of the trial."
2. Ibid, Attachment A. Additionally, the Motion contains, in Attachment B, a Personal Declaration of Radic dated 11 May 2004, and, in Attachment C, the letter from Radic to the Minister of Internal Affairs of the Republic of Serbia dated 29 April 2004.
3. Addendum, Attachment A.
4. Ibid, Attachment B.
5. Response, paras 9 and 10.
6. Ibid, paras 9, 11 and 15.
7. Ibid, paras 12-14. The Response also provides, in Annex I, a letter from the President of the Tribunal to the President of the Security Counsel; in Annex II, the Prosecutionís Report to the President of the ICTY regarding the non-compliance on the part of Serbia and Montenegro with its obligations to co-operate with the Tribunal; and, in Annex III, an interview of the Serbian Premier Vojislav Kostunica.
8. Reply, paras 3 and 10.
9. The Prosecutor v. Radoslav Brdjanin, Case No. : IT-99-36-PT, Decision on Motion by Radoslav Brdjanin for Provisional Release, 25 July 2000, para. 22.