Case No. IT-04-74-PT
Date: 30 July 2004
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie
Registrar: Mr. Hans Holthuis
Order of: 30 July 2004
The Office of the Prosecutor:
Mr. Kenneth Scott
The Government of the Republic of Croatia:
Ministry of Justice
Counsel for the Accused:
Mr. Marinko Skobic
The Government of the Kingdom of The Netherlands:
Ministry of Justice and Ministry of Foreign Affairs
1. Trial Chamber I (“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”) is seised of a “Motion for Provisional Release” filed confidentially on 14 June 2004 by the Defence of the accused Berislav Pusic (“Accused”) whereby the Defence requests the Trial Chamber to enter an order for the provisional release of the Accused on the grounds that the Accused will appear for trial and will not pose any danger to victims , witnesses or other persons (“Pusic Motion for Provisional Release”).
II. Procedural Background
2. The indictment against the Accused was confirmed by Judge Claude Antonetti on 4 March 2004. It jointly charges Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin ^oric and Berislav Pusic with 8 counts of Crimes Against Humanity (persecutions on political, racial or religious grounds, murder, rape, deportation , inhumane acts and imprisonment); 9 counts of Grave Breaches of the Geneva Conventions (wilful killing, inhuman treatment (sexual assault), unlawful deportation and transfer and confinement of civilians, wanton destruction and unlawful appropriation of property); and 9 counts of Violations of the Laws or Customs of War (cruel treatment, unlawful labour, wanton destruction of cities and towns, unjustified devastation, destruction of religious and educational institutions and infliction of terror) for participating in a joint criminal enterprise, from on or before 18 November 1991 to about April 1994, the aim of which was to politically and militarily subjugate, permanently remove and ethnically cleanse Bosnian Muslims and other non -Croats who lived in areas on the territory of the Republic of Bosnia and Herzegovina which were claimed to be part of the Croatian Community of Herceg-Bosna, and to join these areas as parts of a “Greater Croatia”.
3. Upon confirmation of the Indictment, Judge Antonetti issued a Warrant of Arrest and Order for Surrender of the Accused addressed to the authorities of the Republic of Croatia.( 1 ) On 31 March 2004 the Government of the Republic of Croatia handed out the Warrant of Arrest and a redacted indictment to all co-accused. On 5 April 2004, the accused were all transferred to the seat of the Tribunal and their initial appearance took place the next day before the pre-trial Judge Alphons Orie, who ordered their detention on remand.
4. On 28 June 2004, the Prosecution filed the “Prosecution Response to the Accused Berislav Pusic Motion for Provisional Release” opposing the Pusic Motion for Provisional Release (the “Response”). This Response incorporates matters of general application set out in the response addressed to the co-accused Valentin ]oric’s application for provisional release filed on 21 June 2004.
5. On 5 July 2004, the Defence filed a request for leave to reply to the Response. The request was granted orally by the Chamber on 9 July 2004. On 12 July 2004, the Defence filed a reply to the Response (the “Reply”). On 14 July 2004, the Defence filed a motion requesting that the Government of the Federation Bosnia and Herzegovina be heard in order to decide on the Pusic Motion for Provisional Release.
6. On 15 July 2004 the Prosecution filed a confidential motion to defer the decision on defence applications for provisional release until the Prosecution had received certain additional information.
7. A public hearing was held on 19 July 2004 to hear the parties’ arguments on the issue of provisional release (“Motion Hearing” or “Hearing”). The Hearing was attended by representatives of the Governments of the Republic of Croatia and the Federation of Bosnia and Herzegovina.
8. On 26 July 2004, the Defence of all accused in this case opposed the Prosecution’s deferral motion on the grounds that it is without any factual basis, there is no guarantee that the information sought by the Prosecution will be obtained within a reasonable time, or at all, and the Prosecution has failed to present any specific legal ground under which its request for a postponement of the decision may be justified .
9. On 29 July 2004, the Prosecution filed the “Prosecution’s Submission of NATO Report Concerning the Accused Berislav Pusic”. The report of the North Atlantic Treaty Organisation (“NATO”) which operates as the Stabilisation Force (“SFOR”) in Bosnia and Herzegovina provides information on the Accused which, according to the Prosecution , supports the Prosecution’s opposition to the Pusic Motion for Provisional Release .
III. Applicable Law
10. Rule 64 of the Rules provides in relevant part: “Upon being transferred to the seat of the Tribunal, the accused shall be detained in facilities provided by the host country, or by another country”.
11. Rules 65(A) and (B) of the Rules set out the basis upon which a Trial Chamber may order the provisional release of an accused:
(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 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, witnesses or other person.
12. Article 21(3) of the Statute of the Tribunal (“Statute”) mandates that the accused shall be presumed innocent until proved guilty. This provision both reflects and refers to international standards as enshrined inter alia in Article 14(2 ) of the International Covenant on Civil and Political Rights (“ICCPR”) and Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”). Furthermore, Article 9(3) of the ICCPR emphasises inter alia that “it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial”. Article 5(3) of the ECHR provides inter alia that “everyone arrested or detained … shall be entitled to trial within a reasonable time or to release pending trial . Release may be conditioned by guarantees to appear for trial”. These human rights instruments form part of public international law.
13. Rule 65 must be read in the light of the ICCPR and ECHR and the relevant jurisprudence .
14. The Trial Chamber considers that, as a general rule, a decision to not release an accused should be based on an assessment of whether public interest requirements , notwithstanding the presumption of innocence, outweigh the need to ensure, for an accused, respect for the right to liberty of person. A balancing exercise must be carried out. First, it should be considered whether the two express pre-conditions laid down in rule 65 (B) have been met. These pre-conditions are cumulative. That is, if the Trial Chamber is not convinced that the accused will both appear for trial and not pose a risk to any victim, witness or other person, a request for provisional release must be denied.( 2 ) In this regard, the burden of proof rests on the accused to satisfy the Trial Chamber that he will appear for trial and will not pose a danger to any victim, witness or other person. The accused’s burden is a substantial one, due to the jurisdictional and enforcement limitations of the Tribunal.( 3 )
15. Moreover, when interpreting Rule 65, the general principle of proportionality must be taken into account. A measure in public international law is proportional only when 1) it is suitable, 2) necessary and when 3) its degree and scope remain in a reasonable relationship to the envisaged target. Procedural measures should never be capricious or excessive. If it is sufficient to use a more lenient measure, it must be applied.( 4 )
16. In considering the two pre-conditions expressly laid down in Rule 65 (B), it must be recalled that factors specific to the functioning of the Tribunal may influence the assessment of the risk of absconding or interfering with witnesses. These factors are as such neither decisive nor negligible in individual cases and must be considered in the context of all the information presented to the Trial Chamber. They may however become decisive if they distinctly heighten the risk that an accused will either fail to attend court or interfere with witnesses and if the Trial Chamber can find no counter-balancing circumstances in the particular case before it.( 5 )
17. Among the aforementioned circumstances are that the Tribunal lacks its own means to execute a warrant of arrest, or to re-arrest an accused who has been provisionally released. The Tribunal must also rely on the co-operation of States for the surveillance of accused who have been released. This calls for a more cautious approach in assessing the risk that an accused will abscond. It depends on the circumstances whether this lack of an enforcement mechanism creates such a barrier that provisional release should be refused. The situation could alternatively call for the imposition of strict conditions on the accused or a request for detailed guarantees by the government in question. In this regard, prior voluntary surrender of an accused is not without significance in the assessment of the risk that an accused will not appear at trial .( 6 )
18. It should be noted that the Trial Chamber retains a discretion not to grant provisional release in cases where it is satisfied that the accused complies with the two requirements of the Rule.( 7 ) Consequently, the express requirements within Rule 65(B) should not be construed as intending to exhaustively list the reasons why release should be refused in a given case. There may be evidence of obstructive behaviour other than absconding or interfering with witnesses, which a Trial Chamber may find necessary to take into account. For example, the destruction of documentary evidence; the effacement of traces or alleged crimes; and potential conspiracy with co-accused who are at large. In addition, factors such as the proximity of a prospective judgement date or start of the trial may weigh against a decision to release. The public interest may also require the detention of the accused under certain circumstances, if there are good reasons to believe that the accused would commit further offences.( 8 )
19. In sum, the Trial Chamber, in interpreting Rule 65 of the Rules, deems that it must focus on the concrete situation of the individual applicant, and consequently the provision must not be applied in abstracto, but with regard to the factual basis of the particular case.( 9 )
20. The Trial Chamber now turns to an assessment, taking into consideration the arguments and submissions made by the parties, the facts of the case, the law, as well as the guarantees of the Accused and the guarantees provided by the relevant authorities , taken as a whole.
21. In support of its statement that the Accused will appear for trial, the Pusic Defence argues, inter alia, that:
- Pusic surrendered voluntarily and has shown no disrespect for the ICTY by any activity of his, any public appearance or in any other way;( 10 )
- Pusic has no criminal record, is a family man and has contributed to the procedure of exhumation and identification of war crimes;( 11 )
- both the Croatian and Bosnian governments have provided guarantees that the Accused will not abscond nor threaten victims, witnesses or otherwise interfere with the administration of justice if provisionally released;( 12 )
- the fact that the Accused holds both Croatian and Bosnian citizenship or that his son is a full-time student in Slovenia does not mean that the Accused can more easily abscond;( 13 )
- the situation described by the Prosecution regarding Pusic’s personal guarantee (namely Pusic’s alleged abuse of position and corrupt and criminal behaviour) has no bearing on the value of the guarantees given by the Croatian and Bosnian authorities ;( 14 )
- Pusic primarily proposes to be released in Bosnia and Herzegovina, in the area of Mostar, because his family lives there, and because of medical institutions which can assistance to the Accused.( 15 ) Alternatively , the Accused proposes to be allowed to stay in the Republic of Croatia. Alternatively , the Accused will remain under house arrest in the Republic of Croatia.( 16 )
22. In support of the statement that the Accused will not pose any danger to any victim , witness or other person, the Defence argues that:
- there are no concrete circumstances indicating that Pusic could in any way endanger victims, witnesses or other persons;( 17 )
- Pusic does not intend to and has never undertaken any action aimed at endangering victims, witnesses or other persons;( 18 )
- if placed under house arrest, the possibility of interfering with witnesses or victims will be removed;( 19 )
- Pusic submitted that there is no evidence of obstructive behaviour on his part,( 20 ) and emphasised in its Reply that he has not been convicted for the criminal charges of the Financial Police of 5 July 2001; therefore there are no grounds for downplaying the importance of the Cantonal guarantee;( 21 )
- no witnesses or other persons have requested protection during the investigation ;( 22 )
- Pusic is a well-known person and no attempt of his to get in touch with victims, witnesses or other persons related to this indictment, can pass unobserved;( 23 )
- Pusic was the lowest ranking person of all the accused and did not establish any substantial contacts in Bosnia and Herzegovina, especially not in Croatia, and does not have any influence there.( 24 )
23. The Trial Chamber notes, and takes due account of, the written undertaking made by the Accused and his own oral submissions during the hearing. The Accused stated , inter alia, that he will remain within the confines of the municipality of his chosen residence in Mostar or alternatively in Zagreb; that he will report to the local police once a week; that he will not to discuss the case with anyone ; that he will not have contact with any other accused persons; that he will not occupy any official position within the Republic of Croatia of the Federation of Bosnia and Herzegovina; that he will not have contact with any witnesses or obstruct justice in any way; that he will appear for trial and respond to any summons of the Tribunal; and that he will obey any order of the Trial Chamber. He also stated that he will “comply strictly with any other conditions as the Trial Chamber may determine appropriate”.( 25 )
24. The Accused further argued that his trial would not start for years.( 26 ) During oral arguments, he submitted that “I would like to go to Mostar, to my family house… If that is not possible, can you please provisionally release me to Zagreb . My health condition is not good”. He added that he would live “on the proceeds of ?hisg former work as a general manager of a company”.( 27 )
25. In its Response, the Prosecution opposes Pusic Motion for Provisional Release on the grounds, inter alia, that:( 28 )
- the Accused holds both Croatian and Bosnian nationalities, is wealthy, has family in Slovenia and this increases the possibility that the Accused will flee;( 29 )
- the guarantees provided by the Croatian authorities are not reliable and there is no evidence showing that the Accused holds strong links with the Republic of Croatia;( 30 )
- the guarantees provided by the Bosnian authorities are not reliable, in particular because according to the Ministry of Interior of the Neretva and Herzegovina Canton , its “guarantee is based on the fact that the accused is not on criminal, nor operative or misdemeanour records, and that no criminal proceedings are underway against him before the Courts of this Canton”; whereas there is evidence that on 5 July 2001 the Accused, as a member of the Bosnia and Herzegovina mine-clearing Commission, was criminally charged for abuse of office, and unauthorised use of assets;( 31 )
- the Accused only provided ambiguous information as to his intended residence in Bosnia and Herzegovina where the majority of the crimes alleged against the Accused were committed;( 32 )
- several incidents contradict and undermine the credibility of the Accused’s assertions that he will appear for trial and will not pose a danger to victims, such as his recurrent criminal and corrupt behaviour or his suggestion that the indictment against him is “wrong”;( 33 )
- many structures and associations are available to the Accused, which combined with his war-time positions (the Accused was a former Croat Representative of the Federation Commission for exchange of Prisoners of War) and influence give him substantial abilities and opportunities both to flee and to threaten witnesses ;( 34 )
- the Accused’s health condition does not require or support his release pending trial;( 35 )
- the Accused’s close geographical proximity would be an advantage should the Accused be willing to be interviewed by the Prosecution.( 36 )
26. The Prosecution has pointed to the advantages of having the Accused nearby, in the United Nations Detention Unit if he would agree, as he was invited to, to be interviewed by the Office of the Prosecutor. The Trial Chamber emphasises however that the issue of co-operation of an accused with the Prosecution should not, as a rule, be taken into consideration as a factor which could lead a Trial Chamber to deny a motion for provisional release. Otherwise an infringement of the fundamental right of an accused to remain silent may result.
27. The Prosecution also suggests that because the Accused holds Croatian and Bosnian nationalities, owns properties in Bosnia and Herzegovina, is a former official in the HZ/HVO military and political structures and is charged with having committed “financial crimes”, he is more likely to try to abscond or in some way interfere with the administration of justice by posing a danger to a victim, witness or other person.
28. The Prosecution submits that the Accused is under investigation for abuse of powers or position in the Financial Police of Mostar. This purportedly indicates that the Accused is dishonest and should not be believed when asserting that he will appear for trial and will not interfere with the administration of justice. The Trial Chamber finds that financially fraudulent transactions, which are still under investigations , considered together with other circumstances are insufficient to tip the scale against provisional release of the Accused.
29. The Trial Chamber finds it conceivable that Pusic still holds considerable powers to influence victims or witnesses and to destroy or suppress evidence against him and others by virtue of his network in the law enforcement agencies in the country where the crimes for which he now stands accused were committed. However, even if the Accused continues to enjoy influence, it does not necessarily follow that he will exercise it unlawfully. In this respect, the Trial Chamber must rely on the evidence before it. Considering that no suggestion has been made that the Accused has interfered with the administration of justice since the Indictment was confirmed against him, the Prosecution’s suggestion that, if released, the Accused may pose a danger to witnesses and victims is insufficiently supported by the evidence. No concrete danger has been identified. The assessment under Rule 65 cannot be done only in abstracto.
30. The Accused is charged with participating in serious crimes; if convicted, he is likely to face a long prison term. This may give him a strong incentive to flee. However, in itself, this argument made in abstracto cannot be used against the Accused. All accused before this Tribunal, if convicted, are likely to face heavy sentences.
31. The Trial Chamber notes that the fact that the Accused never tried to abscond prior to his arrest supports the likelihood that he will indeed appear for trial when so ordered by the Trial Chamber. This is true particularly because the Accused knew in advance that he was likely to be indicted by the Tribunal, and the Trial Chamber accepts that the Accused never attempted to go into hiding despite receiving indications that he was a suspect falling within the Tribunal’s jurisdiction and that he could face a severe sentence if convicted.
32. The Prosecution emphasised orally that the guarantees given by the Croatian authorities were “lightly given” because the Croatian Government is not a neutral and bona fide guarantor in this case.( 37 ) The Prosecution stated that since “March 2004, many of Croatia’s most senior government and political leaders, including the prime minister, the president of the parliament , have made high-profile public statements opposing the ]ermak/Markac indictments and opposing the indictments in this case, calling the indictments or at least parts of the indictments unacceptable to Croatia”.( 38 ) The Trial Chamber recalls that guarantees are not a requirement for a grant of provisional release.( 39 ) However they do provide further assurance to the Trial Chamber.
33. The representative of the Government of the Republic of Croatia, Mr. Muljacic, disputed in general the allegations made by the Prosecution concerning lack of good-faith and co-operation. He stated that co-operation with the Tribunal is a new priority for Croatia( 40 ) and “the Government of the Republic of Croatia will undertake all the measures in order to ensure that the aforementioned gentlemen stand trial and that in case of provisional release they will not present a danger for any potential witness, victim or any other individuals . The Republic of the Government of Croatia is prepared to provide any additional guarantees that might be needed for their provisional release. The Croatian government will comply with all requests from this Tribunal”.( 41 ) With regard to the particular issue of co-operation, Mr. Muljacic rejected the Prosecution’s assertions. He indicated that “co-operation has been already assessed by the Chief Prosecutor, Ms. Carla Del Ponte, His Excellency, Mr. Meron the President of this Tribunal as being full and complete”.( 42 ) He submitted that President Meron stated that “the Republic of Croatia is entitled to protecting the interests of its citizens … when the trial starts, the Republic of Croatia can apply for the status of amicus curiae and as such address certain political qualifications”.( 43 ) Mr. Krni c, another representative of the Government of the Republic of Croatia elaborated on this statement, disputing further the Prosecution’s allegations of bad faith on the part of Croatia. He stated that: “the Republic of Croatia is not in any partnership , let alone suspicious partnership, with the individuals who are present here. It merely protects them based on the Vienna Conventions, which gives certain commitments and obligations to Croatia and orders it to protect its citizens”.( 44 ) Responding more directly to the Prosecution’s argument that guarantees had been lightly given, he stated that in his view: “the Republic of Croatia has provided guarantees only in those cases when it was certain that it could fully stand behind those guarantees. There have been many more citizens of the Republic of Croatia who were charged before this Tribunal than those for whom guarantees were given”.( 45 )
34. The representative of the Government of the Federation of Bosnia and Herzegovina , Ms. Kristo, expressed her willingness to guarantee that “the Government of the Federation is going to comply with all the summons of the Trial Chamber and that it will honour all the conditions that are given to the accused by the ICTY”.( 46 ) She added that: “the Government of Bosnia and Herzegovina has all the institutions and instruments by which it can provide for all of the orders of this Trial Chamber to be carried out in time and for all the other conditions to be complied with”.( 47 ) Ms. Kristo further claimed that “the institutions of the Government of the Federation have carried out all the actions and have complied with all the commitments taken over by the Republic of Bosnia-Herzegovina within its cooperation with the Tribunal .”( 48 ) Moreover, Ms. Kristo expressed her optimism on the effectiveness of the Federation if the Accused would abscond to the Republica Srpska. “The government is functioning at the level of Bosnia-Herzegovina , which means that the entities are duty-bound to cooperate with the state ministry of security. So all the orders can be executed effectively and efficiently, in keeping with any of the conditions that may be imposed”.( 49 )
35. The Trial Chamber has balanced all the circumstances, including the present circumstances of the Accused and his family, and the control the guarantors can effectively exercise in their territory, in determining the state to which the Accused should preferably be released. It concludes that the Accused should be provisionally released to the Republic of Croatia. It accepts the assurances that have been put forward by the Government of the Republic of Croatia and the undertaking by the Accused in case he would be released in Croatia.
36. The Trial Chamber, upon balancing all the relevant circumstances as required by Rule 65(B) cannot identify in concreto any indication showing that the Accused will try to abscond or interfere with the administration of justice. The Trial Chamber finds it appropriate to order that the Accused should be provisionally released. Pusic’s links to Zagreb, where he has resided many years, make it reasonable to provisionally release him there.
37. Pursuant to Rule 65(C) of the Rules, 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 the presence of the accused for trial and the protection of others.” It is noted that the Accused has consented to the imposition of necessary conditions. Among the conditions to be imposed, the Trial Chamber intends to order that the Accused must not discuss the case with anyone, except his counsel. This order will include a prohibition on any contact with the media. The conditions listed below aim at ensuring that the Accused will not abscond and that he will not interfere with the administration of justice.
PURSUANT to Rules 65 and 54 of the Rules,
THE TRIAL CHAMBER,
HEREBY GRANTS the Pusic Motion for Provisional Release AND ORDERS that Berislav Pusic be provisionally released on the following terms and conditions :
(a) ORDERS the Accused:
1) to remain within the confines of the locality of his chosen residence in the Republic of Croatia;
2) to surrender his passport to the Ministry of the Interior of the Republic of Croatia ;
3) to report the address at which he will be staying to the Ministry of Interior and the Registrar of the Tribunal, and not to change his address without seven days’ prior notification to the Ministry and the Registrar;
4) to report once a week to the local police station;
5) to consent to having his presence checked, including by occasional, unannounced visits by the Ministry of Interior, officials of the Government of the Republic of Croatia, the local police, or by a person designated by the Registrar of the Tribunal;
6) not to have any contact whatsoever or in any way interfere with victims or potential witnesses;
7) not to otherwise interfere in any way with the proceedings or the administration of justice, in particular by destroying evidence;
8) not to discuss the case with anyone, other than his counsel, and not to have any contact with the media;
9) not to have any contact with any other accused before this Tribunal;
10) to comply strictly with any requirements of the authorities of the Government of the Republic of Croatia necessary to enable them to comply with their obligations under this Order;
11) to return to the Tribunal at such time and on such date as the Trial Chamber may order;
12) to comply strictly with any order of the Trial Chamber varying the terms of, or terminating, the provisional release;
13) not to occupy any official position within the Republic of Croatia;
14) to report to the Registrar of the Tribunal, within three days of the start of any employment or occupation, the position occupied, as well as the name and address of the employer.
INFORMS the Accused that he shall, at any time, be entitled to bring any matters to the attention of the Trial Chamber and to request a modification of the terms and conditions of the Order, while reminding the Accused that until such modification , if any, is made, the conditions set out in this Order shall apply in full.
(b) REQUIRES the Government of the Republic of Croatia, including the local police , to:
1) ensure compliance with the conditions imposed on the Accused by the Trial Chamber ;
2) ensure that all expenses for transport of the Accused from Dutch territory to his place of residence and back are covered;
3) upon the Accused’s provisional release at Schiphol airport (or any other airport within Dutch territory), have a designated official of the Government of the Republic of Croatia take custody of the Accused from the Dutch authorities and accompany the Accused for the remainder of his travel to his place of temporary residence;
4) ensure that a designated official of the Government of the Republic of Croatia accompanies the Accused on his return flight to the Kingdom of the Netherlands, after the termination of the provisional release has been ordered by the Tribunal, and hands the Accused over to the Dutch authorities in the Kingdom of the Netherlands at a date, place and time to be determined by the Trial Chamber;
5) at the request of the Trial Chamber or of the parties to the case, facilitate all means of cooperation and communication between the parties and ensure the confidentiality of any such communication;
6) not to issue to the Accused any new passport or documents enabling him to travel ;
7) monitor on a regular basis the presence of the Accused at the address communicated to the Registry of the International Tribunal and maintain a log of such reports ;
8) submit a written report, including inter alia the findings of the reports mentioned under point 7), to the Trial Chamber each month as to the compliance of the Accused with the terms and conditions of this Order;
9) provide for the personal security and safety of the Accused while on provisional release;
10) report immediately to the Registrar of the International Tribunal the substance of any threats to the security of the Accused, including full reports of investigations related to such threats;
11) immediately arrest the Accused should he breach any of the terms and conditions of his provisional release and report immediately any such breach to the Trial Chamber .
(c) REQUESTS the Registrar of the International Tribunal to:
1) consult with the Ministry of Justice of the Netherlands as to the practical arrangements for the Accused’s release;
2) keep the Accused in custody until relevant arrangements are made for his travel;
3) transmit this Order to the competent governments.
(d) REQUESTS the Dutch authorities to:
1) transport the Accused to Schiphol airport (or any other airport in the Kingdom of the Netherlands) as soon as practicable;
2) at the airport, provisionally release the Accused into the custody of the designated official of the Republic of Croatia;
3) on the Accused’s return, take custody of the Accused at a place, date and time to be determined by the Trial Chamber and transport the Accused back to the United Nations Detention Unit.
(e) REQUESTS the authorities of the States through whose territory the Accused may travel to:
1) hold the Accused in custody for any time he will spend in transit at the airport ;
2) arrest the Accused and detain him pending his return to the United Nations Detention Unit, should he attempt to escape.
Done in both English and French, the English text being authoritative.
Dated this 30th day of July 2004,
At The Hague
(Seal of the Tribunal)
1 - The warrant was issued under seal, which was subsequently lifted by Judge Antonetti.
2 - Prosecutor v. Rahim Ademi, Order on Motion for Provisional Release, Case No. IT-01-46-PT, 20 February 2002, para. 21.
3 - Prosecutor v. Radoslav Brdjanin and Momir Talic, Decision on Motion by Radoslav Brdjanin for Provisional Release, Case No. IT-99-36PT, 25 July 2000, para.18.
4 - Prosecutor v. Dragan Jokic, Case No. IT-02-53-PT, Decision on Request for Provisional Release of Accused Jokic, 28 March 2002, para 18.
5 - Prosecutor v. Miodrag Jokic, Case No. IT-01-42-PT, Order on Miodrag Jokic’s Motion for Provisional Release, 20 February 2002, para .22.
6 - Prosecutor v. Miodrag Jokic, Case No. IT-01-42-PT, Order on Miodrag Jokic’s Motion for Provisional Release, 20 February 2002, para. 23.
7 - See for example, Prosecutor v. Kovacevic, Case No. IT-97-24-PT, Decision on Defence Motion for Provisional Release, 21 January 1998, Prosecutor v. Brdjanin and Talic, Case No. IT-99-36-PT, Decision on Motion by Momir Talic for Provisional Release, 28 March 2001.
8 - Prosecutor v. Miodrag Jokic, Case No. IT-01-42-PT, Order on Miodrag Jokic’s Motion for Provisional Release, 20 February 2002, para 21.
9 - Prosecutor v. Hadzihasanovic et al., Case No. IT-01-47-PT, Decision Granting Provisional Release to Amir Kubura, 19 December 2001, para. 7.
10 - Pusic Motion for Provisional Release, paras 17, 18.
11 - Pusic Motion for Provisional Release, para. 23, Reply, paras 7-8, 20.
12 - Annexes 1 to 4 attached to the Pusic Motion for Provisional Release.
13 - Reply, paras 4-5.
14 - Reply, paras 9, 20-21.
15 - See Reply, para. 27 where the Accused explains why his medical condition requires treatment.
16 - Pusic Motion for Provisional Release, para 43, Reply, para. 6.
17 - Pusic Motion for Provisional Release, para. 35.
18 - Pusic Motion for Provisional Release, para. 36.
19 - Pusic Motion for Provisional Release, para. 40.
20 - Pusic Motion for Provisional Release, para. 26.
21 - Reply, paras 7-8.
22 - Pusic Motion for Provisional Release, para. 38.
23 - Pusic Motion for Provisional Release, para. 39.
24 - Reply, para 23.
25 - Annex 9 attached to the Pusic Motion for Provisional Release.
26 - See Pusic Motion for Provisional Release, paras 14, 15.
27 - Motion Hearing, T. 129.
28 - The Prosecution attaches documents to support the Prosecution’s arguments: Attachment A (Newspaper article Vercenji List dated 26 March 2004), Attachment B (Letter of 5 May 2004 indicating that the Accused underwent surgery in Slovenia and excerpt from the telephone guide from Slovenia on internet showing that the son of the Accused lives in Slovenia), Attachment C (Mostar Financial police of the Federation of Bosnia and Herzegovina showing that the Accused is charged with abuse of office or powers and unauthorized use), Attachment D (letter by the Cantonal Prosecutor’s Office of the Herzegovina-Neretva Canton confirming that the Accused is charged with “financial crimes”), Attachment E (Extracts of press articles), Attachment F (map of results of the 2002 elections for Cantonal Assembly 7 and Assembly 8), Attachment G (transcript of NATO-SFOR press briefing dated 12 October 2000 indicating that the Accused was removed from his official position as a member of the de-mining Commission), Attachment H (Letter by the Chief of the Mostar police dated 2 December 1993 indicating that the Accused assisted the Muslim side during the conflict), Attachment I (Excerpts of administrative documents showing that the Accused owns properties), Attachment J (Press excerpt dated 27 June 2004 indicating that the Accused denies being the right person named in the indictment).
29 - Response, paras 8, 19.
30 - Response, paras 5-6.
31 - Response, para. 9.
32 - Response, paras 10-11.
33 - Response, paras 12-13, 17-18.
34 - Response, paras 17, 20.
35 - Response, paras 21 -25.
36 - Response, para. 26.
37 - Motion Hearing, T. 99, 101.
38 - Motion Hearing, T. 101, 102
39 - Prosecutor v. Blagojevic et al., Decision on Application by Dragan Jokic for Leave to Appeal, IT-02-53-AR65, 18 April 2002, paras 7-8.
40 - Motion Hearing, T. 121.
41 - Motion Hearing, T. 120.
42 - Motion Hearing, T. 120.
43 - Motion Hearing, T. 122.
44 - Motion Hearing, T. 130.
45 - Motion Hearing, T. 130.
46 - Motion Hearing, T. 116.
47 - Motion Hearing, T. 117.
48 - Motion Hearing T.117.
49 - Motion Hearing, T. 119.