Case No. IT-03-67-PT
IN TRIAL CHAMBER II
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker
Mr. Hans Holthuis
23 July 2004
DECISION ON DEFENCE MOTION FOR PROVISIONAL RELEASE
The Office of the Prosecutor:
Tjarda Eduard van der Spoel
- The Indictment charges Vojislav Seselj with crimes against humanity under
Article 5 and violations of the laws and customs of wars under Article 3 of
the Statute of the International Tribunal (“Statute”) for offences allegedly
committed in the territory of Croatia (SAO Western Slavonia and SAO SBWA,
Vukovar), Bosnia and Herzegovina (Bosanski Samac and Zvornik municipalities)
and parts of Vojvodina in Serbia in the period from 1 August 1991 to September 1993.
The Indictment was confirmed on 14 February 2003. The Accused surrendered
voluntarily to the custody of the International Tribunal on 24 February 2003
and made his initial appearance on 26 February 2003. At his initial appearance
the Accused stated that he would not be filing a motion for provisional release
as he had come to the Tribunal of his own free will and did not believe that
any government could provide guarantees on his behalf.1
- By a motion dated 14 June 2004 (“Defence Motion for Provisional Release”)
the Accused requested his provisional release until the start of the trial
against him. On 7 July 2004 the Office of the Prosecutor (“Prosecution”)
responded opposing the Motion. By a letter filed on 15 July 2004 the Host
Country indicated that it had no objection to the provisional release of the
Accused, provided that upon release he leaves the Netherlands.
Arguments of the parties
- In support of his Motion for provisional release the Accused submits,
in particular, that he had offered to cooperate with the Prosecution
even before he was formally indicted and that he surrendered voluntarily to
the custody of the International Tribunal shortly after an indictment against
him was issued.2 It is submitted that the Accused is self-represented
in the proceedings before the International Tribunal and that his procedural
right to defend himself in person has been violated by his continuing detention.3
It is alleged that the trial against him is tentatively scheduled to commence
only in early 2007 and that his right to fair and expeditious trial has been
violated.4 The Accused also submits family reasons
in support of his Motion.5
- The Prosecution responds, inter alia, that the Accused’s voluntary
surrender should be viewed in the context of his public statements that he
does not recognize the validity or the impartiality of the Tribunal and does
not accept the charges against him, and accordingly was not motivated by a
desire to stand trial but by a sense of self-publicity and determination to
undermine the work of the Tribunal.6
It is further submitted that the Accused is a public figure charged with serious
criminal offences and if convicted he would likely face a lengthy term of
imprisonment, that the Accused has produced no guarantees from the Republic
of Serbia and Montenegro for his return for trial.7 Further, it is submitted that in light of his well documented
behaviour during press conferences and proceedings before the Tribunal, where
the Accused has disclosed confidential material or has made insulting remarks
with respect to Tribunal witnesses, it is likely that he would intimidate
witnesses and would try to deter them from giving evidence in the proceedings
against him, even more so as now he is in possession of their unredacted statements.8 The Prosecution further submits that many Prosecution
witnesses and victims continue to live in the territory of the former Yugoslavia
and may find themselves at the same place as the Accused’s supporters,9 that in light of his prior behaviour there are no reasons
to believe that the Accused would respect any conditions imposed by the Tribunal
on the terms of his provisional release,10
and that the Accused has a history of violence.11
- With respect to the Accused’s claims that the proceedings against him violate
his right to expeditious trial, the Prosecution submits that there have been
no improper or unreasonable delays in the proceedings. It alleges that the
case against the Accused involves a number of complicated factual and legal
issues and that the length of the proceedings falls within the reasonable
parameters for pre-trial detention recognized by important international human
rights bodies.12 It submits that in
exercising its discretion the Trial Chamber should also consider the evidence
of the Accused’s attempts to interfere with the administration of justice.13
- Pursuant to Rule 65 of the Rules of Procedure and Evidence (“Rules”) a
Chamber may order a release of an accused inter alia, only if the Chamber
is satisfied that:
the accused will appear for trial, and
if released, the accused will not pose a danger to any victim, witness
or other person.
A provisional release may only be ordered by a Chamber if the Chamber
is satisfied that the above two conditions are met. However, it is not the
effect of the Rule that if the Chamber is satisfied about these matters,
release should necessarily be granted. In that case the question whether
to release an accused provisionally becomes a matter for the exercise of
the Chamber’s discretion. That discretion must be exercised in light of
all the circumstances of the case. It is necessary for an accused to satisfy
the Chamber that release is appropriate in a particular case. While it is
accepted that detention is the most severe measure that can be imposed on
an accused and is to be used only when no other measures can achieve the
effect of detention, it is recognized that this does not preclude the use
of detention in an appropriate case.14
- The Trial Chamber further notes that unlike national jurisdictions where
there are in existence established means to ensure the enforcement of court
orders, the Tribunal has not got its own law enforcement mechanisms and is
dependant on the effective cooperation and support of governments and agencies
of States. An accused provisionally released by a Chamber will be under the
jurisdiction of the State to which he or she is released. Therefore the questions
of that State’s willingness to ensure the accused’s return to the Tribunal
and his non-contact with victims and Prosecution witnesses while released,
and the extent to which the Tribunal can confidently rely on the effective
support of the State, are of importance in satisfying a Chamber that the requirements
of Rule 65 are met.
- In the present case, in the view of the Trial Chamber, none of the grounds
put forward by the Accused provide a reason for his provisional release at
the present time. The Trial Chamber further notes that the Accused’s Motion
provides no basis on which the Trial Chamber could be satisfied that if released
the Accused will not pose any danger to victims or Prosecution witnesses.
In this respect, the Trial Chamber also notes that no undertaking from a State
to ensure the Accused’s return for the commencement of his trial, and his
non-interference with victims or Prosecution witnesses was presented in support
of the Motion.
- The Trial Chamber further observes that, by their nature, the charges alleged
against the Accused are particularly grave. The likelihood is that in case
of conviction the appropriate punishment will be severe. Although this circumstance
alone is not necessarily a decisive factor for the Trial Chamber’s decision
whether to allow provisional release, it remains a relevant consideration.
- The Trial Chamber is mindful of the fact that the Accused represents himself
in the proceedings. The Tribunal has held that an accused’s right to adequate
time and facilities for the preparation of his defence may be adequately safeguarded
by means other than provisional release.15
In the present case, it is not demonstrated that the Accused’s right to prepare
his defence cannot be effectively exercised while in detention. This fact
alone does not warrant his provisional release.
- The Trial Chamber notes that the duration of the pre-trial detention is
a factor relevant to its decision whether to continue detention.16 While the Accused has already spent 15 months in pre-trial
detention, in light of the legal and factual complexity of the case, and in
particular the number of witness statements and evidence that has to be disclosed
to the Accused and the relevant procedural actions, this period is not unreasonable
and does not per se constitute a ground for allowing the Motion. In
any event this fact must be considered in light of all relevant factors in
each case. In this respect matters advanced by the Prosecution and referred
to in paragraph 4 weigh with some force against provisional release.
- The Trial Chamber is not satisfied that, if released, the Accused will
appear for trial and that he will not pose a danger to any victim or Prosecution
witness. The Trial Chamber is not persuaded that the requirements of Rule
65 in these respects are met. Further, the Trial Chamber is not persuaded
in any event that circumstances have been demonstrated by the Accused which
would justify an exercise of discretion in favour of ordering his provisional
- For these reasons the Motion is denied.
Done in English and French, the English text being authoritative.
Dated this twenty-third day of July 2004
At The Hague
[Seal of the Tribunal]
1. Prosecutor v. Vojislav Seselj, Case
No.: IT-03-67-PT, Order for Detention on Remand, 26 February 2003.
2. Motion, para. 18.
3. Motion, paras 18, 19, 12, 14, 15.4, 15.5.
4. Motion, paras 19, 15.3, 17.
5. Motion, para. 19.
6. Prosecution Response, paras 11- 15.
7. Prosecution Response, para. 17.
8. Prosecution Response, paras 19- 24.
9. Prosecution Response, para. 25.
10. Prosecution Response, para. 26.
11. Prosecution Response, paras 27- 29.
12. Prosecution Response, paras 30- 36.
13. Prosecution Response, paras 37- 38.
14. See for example Prosecutor v. Ivan Cermak and
Mladen Markac, Case No.: IT-03-73-PT, Decision on Ivan ^ermak’s and Mladen
Markac’s Motions for Provisional Release, 29 April 2004.
15. Prosecutor v. Slobodan Milos evic, Case No.: IT-02-54-T,
Decision on Accused’s Application for Provisional Release, 6 March 2002.
16. See for example Prosecutor v. Rahim Ademi,
Case No.: IT-01-46-PT, Order on Motion for Provisional Release, 20 February 2002,