Case No.: IT-03-69-AR65.2
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Florence Mumba
Judge Mehmet Güney
Judge Inés Weinberg de Roca
Mr. Hans Holthuis
3 December 2004
DECISION ON PROSECUTION’S APPEAL AGAINST DECISION ON PROVISIONAL RELEASE
Counsel for the Prosecution
Mr. Dermot Groome
Mr. David Re
Counsel for the Accused:
Mr. Zoran Jovanovic for Franko Simatovic
Mr. Geert-Jan Alexander Knoops and Mr. Wayne Jordash for Jovica Stanisic
1. On 30 September 2004,1 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”), granted the Prosecution’s application for leave to appeal the decision of Trial Chamber III issued on 28 July granting the accused Franko Simatovic’s (“Simatovic”) application for provisional release (“Impugned Decision”).2 The Prosecution appeals the Impugned Decision pursuant to Rule 65(D) of the Rules of Procedure and Evidence (“Rules”). 3
2. The Prosecution argues that the Trial Chamber erred in its findings on whether Simatovic, if released, would appear for trial and would not pose a danger to victims, witnesses or other persons. In relation to the Trial Chamber’s finding that if released Simatovic would appear for trial, the Prosecution alleges that the Trial Chamber erred in its consideration of the cooperation of Simatovic with the Office of the Prosecutor (“OTP”), its consideration of the seriousness of the charges and the length of likely pre-trial detention, and its consideration of the strength of the Government Guarantees obtained by Simatovic. The Prosecution identifies no specific error in the Trial Chamber’s finding that if released Simatovic would not pose a danger to victims, witnesses or other persons.4
3. The Prosecution argues that the Trial Chamber erred in finding that Simatovic showed some degree of cooperation with the Prosecution. It also submits that the Trial Chamber’s evaluation of the evidence in support of this finding “was wholly erroneous leading it into legal error”.5
4. The Prosecution argues that although it interviewed Simatovic seven times before his indictment, it assessed that he “was not forthright and candid and that none of the information he provided could be used to advance any of the investigations being conducted by the Prosecution”.6 The Prosecution refers to the declaration of its investigator, Tore Soldal, tendered as an exhibit before the Trial Chamber. In that declaration Tore Soldal stated that:
During the interview, Mr Simatovic assigned himself a completely different role in the war in the former Yugoslavia than most other evidence we have collected, indicated. Mr Simatovic portrayed himself as a low-level intelligence agent with a minimal role in the war. He denied any connections with the Special Units of the Serbian DB and denied that they existed before 1995. Mr Simatovic did not give any information regarding the involvement of Serbian DB during the war activity. According to him the Serbian DB had only the function of gathering intelligence. My assessment of the interview was that Frank Simatovic was not forthright and candid during the course of the interview. None of the information that he did provide was able to be used to advance any of the investigations being conducted by the Office of the Prosecutor.7
The Prosecution further argues that Mr Soldal did not depart from this evidence during his cross-examination and that Simatovic did not adduce any evidence to contradict the assessment. It further argues that during the hearing, Simatovic was unable to demonstrate how the information that he provided to the Office of the Prosecutor investigators was of any value and that “the only inference available from the circumstances of the meetings suggests a tactical decision by the Accused to ‘test the waters’.”8 It says that in this circumstance, the Trial Chamber erred in finding that there was some degree of cooperation by Simatovic with the Prosecution, and that the Trial Chamber gave excessive weight to the fact of the interview rather than to the quality of information provided. It claims that this information was self-serving and of no value and the Trial Chamber should have discounted it.9
5. The Prosecution argues that the Trial Chamber also erred in finding that the fact that the information provided by Simatovic lacked value did not by itself disprove cooperation by Simatovic. It says that Simatovic worked in a very senior position in the Serbian State Security and had access to information that could have assisted the Prosecution. It argues that the Trial Chamber erred in failing to consider the position of Simatovic and his access to relevant information, which he could have provided to the Prosecution had he so chosen.10 The Prosecution argues that “the Trial Chamber’s evaluation of the evidence was wholly erroneous in failing to consider the position of the Accused and his access to relevant information which he could have provided to the Prosecution had he so chosen”.11 The Prosecution claims that the information he did provide to the OTP investigators “severly conflicted with evidence it had presented in other cases, including in the Milosevic trial, as to the role of the Serbian DB (“Serbian State Security”) in the crimes committed in the Republic of Croatia and Bosnia-Herzegovina before 1995” and as such cooperation by Simatovic is disproved.12
6. In Response, Simatovic argues that Rule 42(A)(iii) of the Rules sets forth the right of the accused not to make a statement. He did not avail himself of this right but agreed to be interviewed. He claims that the investigator of the Prosecution, Tore Soldal, had stated that the accused had been willing to provide information and that he was cooperative throughout the interview.13 Simatovic argues further that the fact that the accused established contact with the Office of the Prosecutor prior to the adoption of the Law on Cooperation of Serbia and Montenegro with the International Tribunal and gave an interview, is evidence of his cooperation.14 He says that the assertion of the Prosecution that he was not cooperative during the interview is based on the Prosecution’s assessment of the Investigator’s evidence,15 and that the evidence of the Investigator is unreliable. In his evidence, the Investigator did not remember the formal position of Simatovic in the Ministry of Internal Affairs; he made an assessment of the value of the interview in circumstances where the Investigator admitted that he had only been “involved in a few of the crime base (investigations )”;16 and during cross-examination, he could not remember if Simatovic had expressed fears for his safety.17
7. Simatovic argues further that his position in the Ministry of Internal Affairs during the period relevant to the indictment has not been established, and the Prosecution should not be able to rely upon this unestablished fact. Also, as he had been identified as a participant in the joint criminal enterprise in the Milosevic indictment, he had the right not to make a statement at the time he gave his interview and thus, his willingness to be interviewed is evidence of his cooperation with the Prosecution.18
8. In reply, the Prosecution says that it is entitled to present arguments regarding Simatovic’s seniority in the provisional release hearing as this is a factor that the Trial Chamber should consider in determining a provisional release application.19 It argues that, as Simatovic bears the evidentiary burden in seeking provisional release, he could have called evidence as to his position with the Serbian DB during the indictment period. His failure to do so allows an inference to be drawn, on this appeal, that any such evidence would not have assisted him.20
9. The Appeals Chamber is not satisfied that the Prosecution has clearly identified any possibility that the Trial Chamber erred in its consideration of the cooperation of Simatovic. It is well within the discretion of the Trial Chamber to take into account the voluntariness of Simatovic in his interviews at a time when the law on cooperation with the International Tribunal had not yet been passed in Serbia and Montenegro. The Appeals Chamber does not accept the assertion of the Prosecution that the cooperation of an accused is to be assessed solely by reference to the value of the information the accused provides. The fact that an accused agrees to be inteviewed is evidence of some degree of cooperation that a Trial Chamber is entitled to consider in assessing whether the accused, if released, will appear for trial. The fact that the Prosecution does not accept the information provided by an accused to be credible or as extensive as the accused could provide, is irrelevant. Every accused before this Tribunal has a right to silence and a right not to incriminate him or herself. To restate a first principle of the International Tribunal, an accused is not required to assist the Prosecution in proving its case against them.
10. The Prosecution argues that the Trial Chamber erred by failing to give proper consideration to the seriousness of the crimes with which the Accused is charged and in only considering this factor by reference to a possible period of pre-trial detention.21 The Prosecution says that Simatovic is charged with participating in some of the most serious crimes against humanity and that the Trial Chamber, in noting the jurisprudence of the European Court of Human Rights (“ECHR”), that the gravity of the charges cannot itself justify long periods of detention on remand, failed to give any consideration to whether the “period was excessive in the circumstances” of the charges to which the accused stands charged.22 In making this argument, the Prosecution says that it relies upon the decision of the Trial Chamber in Brdanin & Talic. In that case, the Trial Chamber stated that “(w)hat is a reasonable length of pre-trial detention must be interpreted, so far as this Tribunal is concerned, against the circumstances in which it has to operate”.23 The Prosecution argues that in the Impugned Decision, the Trial Chamber appears to have considered that the period of remand would be long but did not consider the length or context of that remand. It argues that the anticipated pre-trial detention of Simatovic cannot be excessive in light of his circumstances, “namely the gravity of the charges, the seniority of the accused, and the unique position of the International Tribunal ”.24
11. The Prosecution refers to the jurisprudence of the International Tribunal and alleges that there is inconsistency in approaches by the Appeals Chamber. In the decision of Prosecutor v Limaj et al, a three member bench of the Appeals Chamber stated that “no distinction can be drawn between persons facing criminal procedures in their home country or at the international level” and therefore the International Tribunal’s Rules on provisional release must be read in light of the International Covenant on Civil and Political Rights (“ICCPR”) and ECHR and its jurisprudence.25 In the decision of Prosecutor v Brdanin & Talic, a three member bench of the Appeals Chamber noted that in applying internationally recognised standards, “account has to be taken of the different circumstances and situations envisaged by those standards which did not visualise the nature and character of the International Tribunal and that the International Tribunal does not have the same facilities as are available to national courts to enforce appearance”.26 The Prosecution says that the approach in Brdanin & Talic should be followed as that is further supported by the Tadic Appeal Judgment, which “distinguished between the procedural rights to parties mandated in the ECHR case law and the conditions actually pertaining in international tribunals which have no enforcement mechanisms of their orders.”27 It argues that, applying this reasoning to Rule 65(B), the Prosecution would be disadvantaged in presenting its case if it was unable to secure the attendance of an accused person for trial.28
12. The Prosecution claims further that the Trial Chamber erred in failing to acknowledge the general differences between accused persons facing trial in a domestic jurisdiction and before the International Tribunal and in failing to consider the material difference between national jurisdictions and the International Tribunal in granting the accused provisional release.29 It says that because the Trial Chamber is dependent upon the cooperation of States, provisional release of high-ranking officials charged with the most serious violations of international humanitarian law poses potentially greater risks for victims, witnesses and the administration of justice, than at a national level.30 It says that an accused facing the possibility of conviction for even one offence, “generally has a greater incentive to flee than a person facing charges in a domestic situation”.31 Finally, it says that the Trial Chamber also “erred in failing to place any weight on the fact that provisional release in the circumstances of this particular case – the seriousness of the crime alleged and the seniority of the accused – could weaken the confidence of the international community in the Tribunal’s administration of justice”.32
13. In Response, Simatovic argues that the Trial Chamber did not err in taking into account the practice of the ECHR in finding that the gravity of the charges itself cannot justify long periods of detention on remand, and claims that at this point in time, no one knows when the trial will actually begin.33 Further, he argues that the International Tribunal “has the mechanism to force governments to ensure, through the same authorities as when national courts are in question, the presence of the accused before the ICTY and thus allow smooth conduct of the proceedings”.34 He also claims that with respect to the seriousness of the charges against him, the Prosecution has announced its intention to amend the indictment against him, removing the charge in relation to Vukovar Hospital.35
14. In Reply, the Prosecution says that the charge relating to Vukovar Hospital is only one of many crimes pleaded in support of Counts 1 to 3 of the indictment, and that the expected length of sentence, if Simatovic is convicted of any of the counts, remains a major disincentive for him to appear for trial.36
15. The Appeals Chamber is not satisfied that the Prosecution has clearly established that the Trial Chamber erred by failing to give proper consideration to the seriousness of the crimes charged. The Trial Chamber expressly stated that Simatovic is charged with serious offences and that if convicted, he will likely face a long prison sentence. While the Trial Chamber did not dwell on the seriousness of the crimes charged, it does not have to do so. The Trial Chamber correctly reasoned that it was one of the factors that it was required to take into account and observed that the gravity of the charges is not considered by the ECHR of itself to provide justification for long periods of detention on remand.37 The Trial Chamber also considered its dependence on the authorities of Serbia, finding itself satisfied that those authorities would re-arrest Simatovic and transfer him to the International Tribunal should the need arise, as well as the evidence of Simatovic’s intention to surrender voluntarily to the International Tribunal. In this respect, contrary to the Prosecution’s submission, the Trial Chamber did consider that unlike domestic courts, the International Tribunal has no power to execute arrest warrants and is reliant upon State authorities. The Appeals Chamber is not satisfied that the Trial Chamber erred by failing to take into account the differences between national jurisdictions and the International Tribunal.
16. The Prosecution argues that the authorities in Serbia and Montenegro have persistently failed to cooperate with the International Tribunal for many years. It argues that at the hearing the Trial Chamber noted, but appeared not to consider, the President’s letter to the Security Council, notifying it of the Prosecutor’s complaint of “a consistent failure on the part of Serbia and Montenegro to comply with the obligations under Article 29 of the Statute and Rule 39”,38 in determining the reliability of the Government Guarantees. It argues that the Trial Chamber therefore erred in placing no weight on the letter of the President and that its evaluation of the evidence was wholly erroneous.39 The Prosecution also claims that the Trial Chamber erred by refusing to admit into evidence the Prosecutor’s report referred to in the letter,40 and a video and transcript of an interview with the Serbian Prime Minister Vojislav Kostunica.41
17. The Prosecution claims that the Trial Chamber erred further by giving disproportionate weight to the statement of the Serbian Minister of Justice that it would be “perfectly simple” to arrest the accused. The Prosecution says that the Trial Chamber erred in failing to consider the relevant consideration of a decreased willingness of the authorities in Belgrade to cooperate with the International Tribunal.42
18. The Prosecution also argues that the Trial Chamber erred by placing excessive weight on the fact that both accused were transferred to the International Tribunal by the authorities in Belgrade after their arrests following the assassination of Prime Minister Šindic. Further, it also erred in failing to consider what circumstances might exist at the time the accused will be expected to return for trial.43 The Prosecution argues that the Trial Chamber erred in failing to consider that circumstances in Belgrade have changed since the arrest of Simatovic on charges related to the assassination of Šindic in 2003.44 It refers to the Appeals Chamber’s Decision in Mrksic where it stated that the reliability of any guarantees depends to some extent on the vagaries of politics and personal power alliances, the impact of any international pressure and the likelihood of a change of government.45
19. The Prosecution claims that the Trial Chamber erred in failing to consider this factor and also in failing to recognize that a Government Guarantee could be thwarted by circumstances out of the control of an official who gives the guarantee. It argues that in theory it may be “perfectly simple” to arrest an indictee, but that practice has shown the contrary. It says that direct evidence was provided of the theory versus practice problem by a declaration of Investigator Bernard O’Donnell, tendered by the Prosecution.46 In his declaration, he stated that a number of persons indicted by the International Tribunal were living openly in Serbia, and that details of these fugitives and their locations have been provided to the authorities in Serbia, but no action has been taken by those authorities to arrest them.47
20. The Prosecution claims that during cross-examination, the Minister of Justice of the Republic of Serbia, Mr Zoran Stojkovic, was unable to explain to the Trial Chamber as to why indictees Vladimir Lazarevic, Nebojsa Pavkovic and Streten Lukic had not been apprehended.48 It quotes the response of the Minister in which he says that as far as he is aware, there are a number of problems. There had been a change in government and a council for cooperation with the International Tribunal had not yet been appointed and that council would be responsible for future action. At that time they were in an interim situation as the body responsible for cooperation with the International Tribunal was yet to be fully formed. However, they are aware of the existence of the indictments and their obligations thereto and “will certainly act in accordance with our obligations ”.49
21. The Prosecution argues that despite the Minister’s acknowledgement of the problems the indictees remain at large, presumably in Serbia and Montenegro, and that this highlights “the depth of the Trial Chamber’s error in placing reliance upon the Minister’s assertion that it would be ‘perfectly simple’ to re-arrest the Accused if provisionally released”.50
22. In Response, Simatovic argues that the Trial Chamber correctly assessed the Government Guarantees by reference to his individual circumstances.51 He argues that the Trial Chamber did not err by placing excessive weight on the fact that he was transferred to the International Tribunal by the Belgrade authorities after the assassination of Prime Minister Zoran Šindic. He says that he was arrested without grounds and that no criminal proceedings were ever instituted against him in Serbia. He was held in detention without charge from 13 March until 1 May 2004 in contravention of his human rights. When it became impossible to hold him further without charge, the Belgrade authorities requested the Prosecutor of the International Tribunal to raise charges against him and the Prosecution accelerated its investigaton against him.52 He says that these circumstances cannot be construed as a lack of voluntary surrender on his part.53
23. Simatovic also argues that the Minister of Justice of the Republic of Serbia, Mr Zoran Stojkovic, agreed to testify before the International Tribunal as a representative of the government. In his evidence, he made a distinction between accused persons in hiding and those brought before the International Tribunal and provisionally released under conditions set by the International Tribunal.54 He argues that the Prosecution’s Investigator, Bernard O’Donnell, drew the same distinction.55 On this basis, he argues that the Trial Chamber correctly found that Government Guarantees had to be considered against the particular circumstances of the accused.56
24. In Reply, the Prosecution argues that the only material difference between indictees still at large and a provisionally released accused, is that the Serbian authorities have given a written guarantee to return a provisionally released accused for trial, and with respect to indictees at large, “the Serbian authorities have disregarded their ongoing international obligations under Article 29, to effect warrants of arrest.”57 The Prosecution argues that the will of the Serbian authorities to arrest an indictee is as important as its ability to do so. It says that its repeated failure to do so is detailed in the Prosecutor’s report it sought to be admitted as additional evidence on this appeal.58
25. In the Impugned Decision, the Trial Chamber stated quite clearly that the weight to be attributed to the Government Guarantees depended on the personal circumstances of the Accused, which must be assessed at the time when the decision on provisional release is being taken and also, as far as is forseeable, the time when he will be expected to return for trial. It further considered that the position of the Accused in the Serbian State Security hierarchy and the consequence of that position upon the weight of the Government Guarantees are significant factors that it was expected to assess in relation to the willingness of the State to arrest a person if he refuses to surrender himself.59 In considering the reliability of the Government Guarantees, the Trial Chamber considered the evidence adduced by the Prosecution of non-cooperation on the part of the Serbian authorities with respect to indictees that remain at large and the statement of the President to the Security Council regarding the report of the Prosecutor complaining of “a consistent failure on the part of Serbia and Montenegro to comply with its obligations under Article 29 of the Statute and Rule 39 of the Rules of Procedure and Evidence”.
26. Following the Appeals Chamber Decision in Mrksic, the Trial Chamber properly considered that in these circumstances, the reliability of the guarantees was to be assessed in relation to the circumstances of the particular case. It considered the senior position held by Simatovic and the effect of that position on the willingness of the government authorities to re-arrest him. It found that despite the seniority of Simatovic, there was no evidence that he possessed “information which would provide a substantial disincentive for the state authorities to enforce the guarantee given in support of his provisional release”. Coupled with this factor, the Trial Chamber also considered the fact that Simatovic retired in 2001, had been arrested in Belgrade by the authorities on 13 March 2003, on suspicion of “endangering the security of other citizens and the security of the Republic,” and was then transferred by the authorities to the International Tribunal on 30 May 2003. On this basis, it was satisfied that even if Simatovic did possess valuable information, the government had already demonstrated its willingness to arrest and surrender Simatovic, and that the Government Guarantees and the statement of the Minister that it would be “perfectly simple” to re-arrest Simatovic, should be accorded due weight.60
27. The Appeals Chamber is not satisfied that the Prosecution has identified that the Trial Chamber erred in its consideration of the Government Guarantees by placing insufficient weight upon the failure of the authorities to cooperate with the International Tribunal with respect to indictees that remain at large. The Trial Chamber did consider this factor, as it was entitled, in light of the evidence that in relation to Simatovic, the authorities had shown a willingness to cooperate with the International Tribunal.
28. The Prosecution argues that the Trial Chamber erred in finding that the fear “of the witnesses reflects more a ‘generalised concern’ rather than an apprehension linked to any specific acts or conduct of the Accused”.61 It argues that the Trial Chamber failed to give weight or consideration to the position of Simatovic within the Serbian State Security hierarchy over a significant period of time, or the fact that the “generalised concern” of the witnesses arises from the position occupied by Simatovic in the Serbian State Security during the period of the ethnic cleansing in Bosnia and Herzegovina and Croatia. The Prosecution argues that the Trial Chamber further erred in “minimising the telephone contact between the Accused and a witness giving testimony in the Milosevic trial, Dragan Vasikjovic, a.k.a Captain Dragan, mid-testimony, and the witness’ subsequent change in his testimony.”62 The Prosecution claims that the Trial Chamber’s consideration of the evidence was “wholly erroneous ”.63 The Prosecution argues that the requirement of Rule 65(B) that an accused if released “will not pose a danger to any victim, person or other person,” should be considered to include the possibility of influencing the testimony of witnesses.64
29. In Response, Simatovic argues that the Trial Chamber did not err in its finding that he “will not pose a danger to any victim, person or other person”. He says the Trial Chamber was correct to consider that he no longer held a high position in the Serbian State Security. He further argues that the Prosecution does not identify how the Trial Chamber erred with respect to the Prosecution’s allegations regarding the witness Dragan Vasikjovic.65
30. In its Reply, the Prosecution argues that while Simatovic no longer holds a high position in the Serbian State Security, others who were his subordinates at the time he held his position are still in the Ministry and would still be subject to some influence by him. The Prosecution claims that it would be difficult for those persons to arrest Simatovic should that become necessary.
31. In the Impugned Decision, the Trial Chamber clearly considered the arguments of the Prosecution that many witnesses refused to talk to Prosecution investigators because they feared for their safety due to the power wielded by Simatovic and his co-accused and their influence over former subordinates still employed in the Serbian State Security.66 It also considered the evidence given by a Prosecution investigator that, during his questioning of a suspect, the suspect stated that he was unwilling to answer questions about Bosnia and Herzegovina, and that he considered Simatovic and his co-accused “to be the most powerful persons in the country and he did not want to annoy them as that could have dangerous consequences for him”. The Trial Chamber also considered the evidence of the Prosecution investigator that witness Dragan Vasikjovic’s “testimony and attitude” changed on the second day of his testimony and that it was revealed that he had spoken to Simatovic during the overnight break. The investigator attributed his change to something said to him by Simatovic.
32. The Trial Chamber found that this incident did not, by itself, demonstrate that Simatovic would pose a danger to victims and witnesses. There was no evidence to support the Prosecution assertion that the witness was calling Simatovic to “report back” to him, and the transcript of the proceedings showed that when questioned by the Prosecution, the witness stated that he had been a friend of Simatovic for 12 years, that the witness had called him, and that he did not discuss his testimony with him.67 In these circumstances, the Appeals Chamber is not satisfied that the Trial Chamber erred in its finding that the fear of witnesses reflected “more a generalised concern…than an apprehension linked to any specific acts or conduct of the Accused”.68 There was no evidence before the Trial Chamber to show an interference by Simatovic with the administration of justice or that he would interfere with the administration of justice.
33. On the basis of the foregoing the Appeals Chamber is not satisfied that the Prosecution has established that the Trial Chamber erred in finding that Simatovic be provisionally released. The Prosecution Appeal is dismissed.
Done in both English and French, the English text being authoritative.
Done this Third day of December 2004,
At The Hague,
[Seal of the Tribunal]