IN THE TRIAL CHAMBER
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Bert Swart
Mr. Hans Holthuis
28 July 2004
DECISION ON PROVISIONAL RELEASE
The Office of the Prosecutor:
Mr. Dermot Groome
Mr. David Re
Ms. Melissa Pack
Counsel for the Accused:
Mr. Gert-Jan Alexander Knoops
Mr. Wayne Jordash
- This 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 (“International
Tribunal”) is seized of the confidential and ex parte “Defence Motion
for Provisional Release ” filed by the defence of Jovica Stanisi} (“Accused”)
on 14 January 2004 (“Motion ”) pursuant to Rule 65 of the Rules of Procedure
and Evidence of the International Tribunal (“Rules”).1
- The Office of the Prosecutor (“Prosecution”) filed the “Prosecution’s Response
to Stanisic’s Defence Motion for Provisional Release” with a confidential
annex on 7 April 2004, opposing the Motion. The Defence subsequently filed
the “Reply to Prosecution’s Response to Stanisic’s Defence Motion for Provisional
Release” on 14 April 2004.2 A hearing,
at which the parties made oral submissions, was held on 10-11 May 2004 and
25-26 May 2004.
- The Accused, who worked in the State Security Service (“DB”) of the Ministry
of the Internal Affairs of the Republic of Serbia (“MUP”), is alleged to have
been, first, the de facto head of the DB, followed by his formal appointment,
from 31 December 1991 to 27 October 1998. Along with his co-accused Franko
Simatovic, the Accused is charged under Article 7, paragraph 1 of the Statute
of the International Tribunal with five counts: persecutions (as a crime against
humanity), murder (as a crime against humanity and a violation of the laws
or customs of war), deportation (as a crime against humanity) and forcible
transfer (inhumane act as a crime against humanity) committed in Croatia and
Bosnia and Herzegovina between 1 August 1991 and 31 December 1995.3
- The Accused was arrested by Belgrade authorities on 13 March 2003. However,
on 26 January 2004 the First Municipal Court in Belgrade, at the request of
the Accused, issued a statement confirming that the Accused was “not under
criminal investigation” before the municipal courts “with respect to any criminal
act under the jurisdiction of the said courts.”4
While he was detained in Belgrade, the Prosecution indictment against the
Accused was confirmed on 1 May 2003.5
Thereafter he was transferred to the United Nations Detention Unit (“UNDU”),
in The Hague, on 11 June 2003. At his initial appearance on 13 June 2003,
the Accused pleaded not guilty to all five counts.
- In summary, the Defence submitted, inter alia, the following
factors in support of its application for provisional release for the Accused:
the past cooperation of the Accused with the International Tribunal; that
the Accused should be accorded the rights of an accused who surrendered voluntarily
to the International Tribunal; the character of the Accused; the guarantees
for the Accused from the governments of the Republic of Serbia, Republic of
Montenegro, and Serbia and Montenegro ; and the medical condition of the Accused.
- In response, the Prosecution submitted that the sheer magnitude of the
crimes charged, which carry a possibility of life sentence, is a reason for
the Accused not to appear for trial; his past cooperation was mainly self-serving
and should be given no weight; government guarantees provide no weight; the
Accused should not be treated as though he surrendered voluntarily; and as
the Accused held a high position within the Serbian state security apparatus,
he had the necessary contacts and the means to locate witnesses and their
families, and potentially to utilise a variety of means of intimidation. Finally,
the Prosecution argued that, provisional release if granted will be widely
publicized within the former Yugoslavia and will have the effect of making
potential witnesses and informants more reluctant to assist the Prosecution
- With respect to the medical condition of the Accused, the Prosecution submitted
that the Accused suffered from certain illnesses, but that provisional release
was not the appropriate response. Rather the appropriate response was to ensure
that the Accused, while in custody of the UNDU, received proper and appropriate
medical care and any other care he requires.
- Rule 65 of the Rules, governing provisional release, provides:
Release may be ordered by a Trial Chamber only after
giving the host country and the State to which the accused seeks to be
released 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.6
- In determining whether to grant provisional release to an accused, it is
for the Trial Chamber to consider the particular circumstances of each case
and for an accused to satisfy the Trial Chamber of two matters: (i) that he
will appear for trial, and (ii) that, if released, he will not pose a danger
to any victim, witness or other person.7
- The Trial Chamber is “not obliged to deal with all possible factors which
a Trial Chamber can take into account when deciding whether it is satisfied
that, if released, an accused will appear for trial.”8 It is sufficient for the Trial Chamber to indicate all the
relevant factors that it has taken into account in reaching its decision.
In other words, the Trial Chamber must render a reasoned opinion.9
- In an application for provisional release the Appeals Chamber held that,
in determining whether the Accused, if released, will appear for trial, a
Trial Chamber is expected to consider, inter alia, the following
the fact that the applicants are charged with serious
criminal offences; the fact that, if convicted, they are likely to face
long prison terms; the circumstances in which they surrendered; the degree
of co-operation given by the authorities of the FRY and Serbia; the fact
that the government of the FRY and the government of the Republic of Serbia
gave guarantees that they would ensure the presence of the accused for
trial and guaranteed the observance of conditions set by the Trial Chamber
upon their provisional release; the fact that both accused held very senior
positions, so far as it is relevant to the weight of governmental guarantees;
the fact that the FRY recently passed a Law on Co-operation with the International
Tribunal; the fact that the Applicants gave personal guarantees in which
they undertook to abide by the conditions set by the Trial Chamber should
they be released; the likelihood that, in light of the circumstances prevailing
at the time of the decision, and as far as foreseeable, the circumstances
as they may turn out to be at the time when the accused will be expected
to return for trial, the relevant authorities will re-arrest the accused
should he decline to surrender; and the fact that the accused provisionally
accepted to be interviewed by the Office of the Prosecutor, thereby showing
some degree of co-operation with the Prosecution.10
- With respect to government guarantees, the Appeals Chamber held that “the
weight to be attributed to guarantees given by a government may depend a great
deal upon the personal circumstances of the applicant, notably because of
the position which he held prior to his arrest.”11 According to the Appeals Chamber, these circumstances must
not only be assessed at the time when the decision on provisional release
is being taken, but also, as far as foreseeable, at the time when the case
is due for trial and the accused will be expected to return.12 Further, in so far as the Trial Chamber relies upon the
guarantees, “the position of an accused in the hierarchy and the consequence
thereof upon the weight of governmental guarantees are indeed significant
factors which the Trial Chamber is expected to address as they could have
an important bearing upon a State’s willingness and readiness to arrest that
person if he refuses to surrender himself; those factors therefore reduce
the likelihood of his appearing at trial.”13
- In terms of reviewing whether there is any danger posed by an accused,
if released, to victims, witnesses or any other person, one of the factors
this Trial Chamber previously considered was whether there was any suggestion
that an accused had interfered with the administration of justice in any way
since the date when an indictment was confirmed against him.14 However, the Trial Chamber emphasises that it will examine
all relevant factors in reviewing this question.
- With respect to applications for provisional release, the burden of proof
is upon the Accused to satisfy the Trial Chamber that, if released, he will
appear for trial and will not pose any danger to victims, witnesses or other
persons. However that burden is discharged not on proof beyond reasonable
doubt, but on a lower standard.15
- The following paragraphs contain brief discussions of the factors considered
relevant by the Trial Chamber.
A. Whether the Accused, if released, will appear for trial.
Cooperation of the Accused
- Prior to the confirmation of the Indictment on 1 May 2003, the Prosecution
interviewed the Accused four times in November 2001. According to the investigator
who conducted the interviews, the Accused voluntarily agreed to be interviewed
and answered most of the questions, but the information regarding the activities
of the DB was considerably different from and inconsistent with the information
already in the possession of the Prosecution.16
The investigator further stated that the Accused provided “some material which,
had he been willing to further cooperate and give testimony, could have been
of evidentiary value to the OTP.”17
However, since the Prosecution believed that much of the information provided
by the Accused was incomplete and in many cases not truthful, it decided not
to conduct a further series of interviews to determine whether the Accused
could be a witness in other cases.18
- To counter, the Defence argued that an assessment of inconsistency and
the matter of cooperation should be distinguished.19 In addition, the Defence submitted documents to demonstrate
the significance of the information provided to the Prosecution.20 These included explanatory statements from the Accused
as to the material he provided to the Prosecution and letters from a former
defence counsel.21 According to the
former defence counsel, during his meetings with the Prosecution, the Prosecution
described the documents provided by the Accused as “professional,” and seemed,
at that time, to have considered the information provided by the Accused as
- Certainly, the more valuable the information provided by the Accused to
the Prosecution, the more valuable is his cooperation. However, in the Trial
Chamber’s view, if the information lacks value that, by itself, does not disprove
cooperation by the Accused. The Trial Chamber takes note of and accords due
weight to the voluntariness of the Accused in his interviews at a time when
the law on cooperation with the International Tribunal had not yet been passed
in Serbia and Montenegro; in the words of the Appeals Chamber, the willingness
to be interviewed by the Prosecution shows “some degree of co-operation with
- The Accused was already in the custody of Belgrade authorities prior to
the confirmation of the Indictment against him in May 2003. Therefore he was
not in a position to surrender voluntarily to the International Tribunal.
However in support of its argument that the Accused be accorded all the rights
of an accused who surrendered voluntarily, the Defence submitted documents
showing the efforts of the Accused to surrender voluntarily.24 These included a letter from former defence counsel to
the Belgrade Court, requesting modification of the detention order so that
the Accused could surrender voluntarily to the International Tribunal, and
a public statement of the Accused through his prior defence counsel of his
intention to surrender voluntarily. In addition, the Defence has submitted
documents indicating that the National Council for Cooperation with the International
Criminal Tribunal for the former Yugoslavia found that the Accused should
be accorded the rights of a person who voluntarily surrendered to the International
Tribunal.25 In Sainovic, the
Appeals Chamber took into consideration the fact that the accused in that
case had earlier made public statements to the media that they would not voluntarily
surrender.26 There is no allegation
that the Accused in this case made any such statements.
- The Trial Chamber notes that the Accused was already held in detention
when the Indictment against him was confirmed on 1 May 2003. On 10 May 2003,
the former attorney of the Accused requested the Belgrade court to “modify
the detention order and release” the Accused so that the Accused would have
the “right and possibility of voluntary surrender.”27 On 11 June 2003, the Accused, who was still detained by
the Serbian authorities, was transferred to the International Tribunal. In
the circumstances of this case, there is clear evidence of the intent of the
Accused to surrender voluntarily.
Seriousness of the crimes charged
- The Accused is charged with serious criminal offences, including persecutions
as crime against humanity. If convicted, the Accused will likely face a long
prison sentence. The Defence submitted numerous documents in an effort to
counter the notion that the Accused would likely be convicted on the charges
and face a long prison sentence.28
However, a substantive review of whether or not the Accused will be convicted,
is a matter for determination at the trial stage. For the purposes of provisional
release requests, the Trial Chamber is only concerned with the possibility
that the Accused faces a long prison sentence, if convicted.
- The seriousness of the crimes charged is merely one of the factors the
Trial Chamber takes into account in evaluating whether the Accused will appear
for trial, if released. In this regard, the Trial Chamber observes that the
European Court of Human Rights has “repeatedly held that the gravity of the
charges cannot by itself serve to justify long periods of detention on remand.”29
- The governments of Serbia and Montenegro, Republic of Serbia, and Republic
of Montenegro have given their guarantees with respect to the Accused. In
addition, the Trial Chamber heard from a representative of the Embassy of
Serbia and Montenegro and from the Minister of Justice of the Republic of
Serbia. During the hearing, the Minister of Justice stated that it would be
“perfectly simple” to arrest the Accused should the necessity arise.30
- In response, the Prosecution pointed to the general lack of cooperation,
particularly with respect to indictees remaining at large. In this regard,
the Prosecution submitted a letter from the President of the International
Tribunal to the Security Council, bringing to its attention a report from
the Prosecutor of the International Tribunal 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.”31 The Defence stated that
the Trial Chamber should “individualise the enforceability of the guarantees
and apply them not generally but to the person of Mr. Stanisic.”32
- The Trial Chamber is of the view that the reliability of a government guarantee
must be determined in relation to the circumstances which arise in the particular
case. As stated by the Appeals Chamber, “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.”33 In Mrksic, the Appeals Chamber gave an example of
a trial of two accused in which a Trial Chamber could accept a guarantee in
relation to one accused, whereas the same or another Trial Chamber could decline
to accept the same authority’s guarantee as reliable, in relation to another
accused, without there being an inconsistency :
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.34
The Trial Chamber also notes the dictum of the Appeals Chamber that
“the weight to be attributed to guarantees given by a government may depend
a great deal upon the personal circumstances of the applicant, notably because
of the position which he held prior to his arrest.”35
- The Accused commenced his service in the DB, a part of the MUP, in 1975.
By 1991, the Accused held the position of Deputy Head of the DB and was later
appointed the Head or Chief of the DB from 31 December 1991 to 27 October
1998. By virtue of his seniority, the position of the Accused appears to be
more analogous to that of Accused B, as described by the Appeals Chamber in
Mrksic. However, there is no evidence that the Accused possesses information,
which would provide a substantial disincentive for the state authorities to
enforce the guarantee given in support of his provisional release. In that
respect, the position of the Accused differs from that of Accused B in Mrksic.
- In any event, given that the Accused, who retired in 1998, was arrested
by Belgrade authorities on 13 March 2003 and was subsequently transferred
to the International Tribunal on 11 June 2003, the Trial Chamber is satisfied
that the Accused would indeed be re-arrested and transferred to the International
Tribunal, should the necessity arise. This is another feature which distinguishes
this Accused from the case of Accused B: even if this Accused does possess
valuable information, the government has already demonstrated its willingness
to arrest and surrender the Accused. In the view of the Trial Chamber, the
government guarantees (including the statement given by the Minister of Justice
that it would be “perfectly simple ” to arrest the Accused,36) should be accorded due weight.
Character of the Accused
- There have been numerous submissions from the Defence in support of the
character of the Accused, including statements from the former President of
the Supreme Court of Serbia,37 former
State Prosecutor of the Republic of Serbia38
and the Vice President of Montenegro,39
observing that the Accused displayed a respect for the law, and commenting
on the positive role of the Accused during the Balkan Crisis.40 In particular, the Defence points to the positive role
of the Accused with respect to his involvement in the release of three hundred
United Nations servicemen held by the forces of Republika Srpska after the
NATO campaign in 1995.41 The Trial
Chamber notes the significance that this evidence might have at the sentencing
stage, if convicted, but questions its relevance to an application for provisional
- In light of the foregoing, the Trial Chamber is satisfied that, if released, the Accused will appear for trial.
B. Whether the Accused, if released, will not pose a danger to victims,
witnesses or other persons.
- The Prosecution argued that the Accused retains influence in the DB and
that the Accused has the necessary contacts and means to locate Prosecution
witnesses and their families, and could utilise a variety of means of intimidation.42 It submitted a statement from a Prosecution investigator
that “a large number of potential witnesses,” both in the present case and
in the Milosevic case, refused to be interviewed for fear of their
safety.43 When the involvement of
local authorities and employment of waiver and summons procedures were proposed,
many witnesses still refused, stating that the real power lay with the Accused
and his co-accused Franko Simatovic. According to the Prosecution investigator, “they made it clear that as long as these men were at liberty they would
not feel safe speaking to me.”44
- A Prosecution investigator gave evidence that during the course of questioning
a suspect who participated in the conflict in Croatia and Bosnia and Herzegovina, the suspect answered questions about paramilitary activities in which he
participated in Croatia, but was reluctant to answer questions relating to
Bosnia and Herzegovina.45 When the
investigator asked the suspect why he was not willing to answer questions
about Bosnia and Herzegovina, the suspect responded that he was a “member
of the Special Unit of the Serbian State Security,” and that he considered
the Accused and his co-accused, Franko Simatovic, “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.”46
- With respect to the Accused in particular, the Prosecution investigator
referred to a witness who told him that “all former members of the Special
Unit(s( who were summoned by the OTP for an interview, were obliged to meet”
with the Accused prior to and after the interview.47 The witness gave the names of two former Special Unit members
who met with the Accused and it appeared to the investigator that the Accused
wanted to “screen the interviews.”48
There was no indication that the witness himself had met with the Accused.
- In response, the Defence stated that the only “concrete incident” mentioned
by the Prosecution investigator was the screening of interviews by the Accused.49 The Defence pointed out that the investigator was only
able to arrive at this conclusion by comparing the similarities of the statements
of the two former Special Unit members, and the dates of the meetings of
the two former Special Unit members and the investigator.50 However, the investigator did not verify the nature of
the meetings with the two former Special Unit members, and based his conclusion
that the Accused wanted to screen the interviews solely on the similarities
of the statements and dates.51
- With respect to the statements from the others interviewed by the Prosecution
investigator, the Defence questioned whether the statements were credible,
given the fact that the Accused did not have de jure power during the
time of the interviews because he had already stepped down from office.52 The investigator did not further verify the statements
of the witnesses and testified that he never received any concrete evidence
that the Accused himself tried to influence any witness.53
- In the opinion of the Trial Chamber, the fear of the witnesses, to which
the Prosecution investigator referred, reflects more a generalised concern
rather than an apprehension linked to any specific acts or conduct of the
Accused. There is nothing in the evidence to suggest that the Accused interfered
or would interfere with the administration of justice. Bearing in mind the
condition to be imposed on him not to interfere with any victims or witnesses,
should he be granted provisional release, and the guarantees from Serbia and
Montenegro, Republic of Serbia, and Republic of Montenegro to arrest the Accused
for breach of any conditions of the provisional release, the Trial Chamber
is satisfied that, on the basis of the evidence as a whole, the Accused will
not pose a danger to any victims or witnesses, if released.
C. Medical Condition
- The Defence submits that the medical condition of the Accused is an exceptional
circumstance justifying provisional release. At the hearing, the Defence argued
that the Accused could not be treated in detention and that if he remained,
he would either die or be unable to participate effectively in trial.54
- The International Tribunal’s jurisprudence is that for an application for
provisional release on medical grounds to succeed, it must be substantiated
by a showing by the applicant that he needs treatment which is unavailable
while at the UNDU. Thus, the Trial Chamber in Kovacevic noted that
the medical reports from a psychiatrist appointed by the Defence and the consulting
psychiatrist of the UNDU, together with a report filed by the Commanding Officer
of the UNDU, “recommended that the Accused be offered treatment urgently in
a mental health facility in a BCS-speaking environment, which may potentially
improve the condition of the Accused.”55
Against this background, and taking into account that the requirements of
Rule 65 were met, the Trial Chamber granted provisional release stressing,
inter alia , that in the circumstances of that case, the “purpose
of the provisional release of the Accused” was to make available the “specialised
medical treatment [the Accused ] needs.”56
- The Trial Chamber in Simic also dealt with a request for provisional
release on medical grounds that were not of terminal nature.57 Although this decision was issued prior to the amendment
of Rule 65, deleting the words “only in exceptional circumstances”, the analysis
of the Trial Chamber, with respect to provisional release on medical grounds,
is clear.58 In granting the provisional
release request of that accused the Trial Chamber noted in its decision that
the medical documents showed that the accused was “hemiplegic and suffering
from serious medical problems” and that he required “intensive daily care
dispensed by a qualified medical team.”59
Subsequently that accused, in compliance with an order from the Trial Chamber,
returned to the UNDU for the commencement of the trial proceedings.60
- The Trial Chamber heard extensive testimony on behalf of both parties,
including four medical experts; many exhibits were tendered. The evidence
clearly indicates that the Accused is not in the best of health and is, in
fact, quite ill. However, the parties disagree as to the seriousness of the
illness.61 The relevant issue for
the Trial Chamber is whether the Accused can be adequately treated while detained
at the UNDU.
- In determining that issue, the Trial Chamber has been guided not only by
the documents submitted by the parties, which include the medical reports
of the Accused from the UNDU and expert reports from the Prosecution and Defence,
but also by the testimony of the expert witnesses. In this regard, the Trial
Chamber recalls the testimony of the Prosecution expert witness that the Accused
could be adequately treated at the UNDU for his medical condition.62 A Defence witness, Dr. Tarabar, also stated unequivocally
that “treatment can be done with appropriate medical facilities available
in The Hague or in Amsterdam better.”63
In addition, with respect to the mental condition of the Accused, a psychiatrist
called by the Defence, testified that the condition of the Accused was alleviated
- On the basis of the foregoing, the Trial Chamber is satisfied that the
Accused can be adequately treated while in detention at the UNDU.
- The Trial Chamber is satisfied that, if released, the Accused will appear
for trial and that he will not pose any danger to victims, witnesses or other
- For these reasons, pursuant to Rule 65 of the Rules, the MOTION is
hereby GRANTED and the Trial Chamber
(1) ORDERS as follows:
a) the Accused shall be transported to Schiphol airport in the Netherlands
by the Dutch authorities;
b) at Schiphol airport, the Accused shall be provisionally released
into the custody of an official of the government of Serbia and Montenegro
to be designated prior to release in accordance with operative paragraph
(2)(a) hereof, who shall accompany the Accused for the remainder of his
travel to Serbia and Montenegro and to his place of residence;
c) on his return, the Accused shall be accompanied by the same designated
official of the government of Serbia and Montenegro, who shall deliver
the Accused to the custody of the Dutch authorities at Schiphol airport
at a date and time to be determined by Order of the Trial Chamber, and
the Dutch authorities shall then transport the Accused back to the United
Nations Detention Unit in The Hague;
d) during the period of his provisional release, the Accused shall abide
by the following conditions, and the authorities of the governments of
Serbia and Montenegro and the Republic of Serbia, including the local
police, shall ensure compliance with such conditions:
(i) to remain within the confines of the municipality of Belgrade;
(ii) to surrender his passport to the Ministry of Justice;
(iii)to report each day to the police in Belgrade at a local police
station to be designated by the Ministry of Justice;
(iv) to provide the address at which he will be staying to the Ministry
of Justice and the Registrar of the International Tribunal before leaving
the United Nations Detention Unit in The Hague;
(v) to consent to having the Ministry of Justice check with the local
police about his presence and to the making of occasional, unannounced
visits upon the Accused by the Ministry of Justice or by a person designated
by the Registrar of the International Tribunal;
(vi) not to have any contact with the co-accused in the case;
(vii) not to have any contact whatsoever or in any way interfere with
any victim or potential witness or otherwise interfere in any way with
the proceedings or the administration of justice;
(viii) not to discuss his case with anyone, including the media, other
than with his counsel ;
(ix) continue to cooperate with the International Tribunal;
to comply strictly with any requirements of the authorities of Serbia
and Montenegro and the Republic of Serbia necessary to enable them to
comply with their obligations under this Order and their guarantees;
(xi) to return to the International Tribunal at such time and on such
date as the Trial Chamber may order; and
(xii) to comply strictly with any further Order of the Trial Chamber
varying the terms of or terminating his provisional release; and
(2) REQUIRES the governments of the Serbia and Montenegro and the
Republic of Serbia to assume responsibility as follows:
a) by designating an official of the government of Serbia and Montenegro
into whose custody the Accused shall be provisionally released and who
shall accompany the Accused from Schiphol airport to Serbia and Montenegro
and to his place of residence, and notifying, as soon as practicable,
the Trial Chamber and the Registrar of the International Tribunal of the
name of the designated official;
b) for the personal security and safety of the Accused while on provisional
c) for all expenses concerning transport of the Accused from Schiphol
airport to Belgrade and back;
d) for all expenses concerning accommodation and security of the Accused
while on provisional release;
e) at the request of the Trial Chamber or the parties to facilitate
all means of cooperation and communication between the parties and to
ensure the confidentiality of any such communication;
f) to submit a written report to the Trial Chamber every two weeks as
to the compliance of the Accused with the terms of this Order;
g) to arrest and detain the Accused immediately if he should breach
any of the conditions of this Order; and
h) to report immediately to the Trial Chamber any breach of the conditions
set out above; and
(3) INSTRUCTS the Registrar of the International Tribunal to consult
with the Ministry of Justice in the Netherlands as to the practical arrangements
for his release and to continue to detain the Accused at the United Nations
Detention Unit in The Hague until such time as the Trial Chamber and the
Registrar have been notified of the name of the designated official of the
government of Serbia and Montenegro into whose custody the Accused is to
be provisionally released; and
(4) REQUESTS the authorities of all States through which the Accused
a) to hold the Accused in custody for any time that he will spend in transit
at the airport;
b) to arrest and detain the Accused pending his return to the United Nations
Detention Unit in The Hague, should he attempt to escape.
Done in English and French, the English text being authoritative.
Dated this twenty-eighth day of July 2004
At The Hague
[Seal of the Tribunal]
1 - Subsequent filings dated 18 February
2004 and 26 March 2004 completed motion for provisional release. See confidential
and ex parte, Prosecutor v. Stanisic, Case No. IT-03-69-PT,
“Additional Motion for Provisional Release,” 18 Feb. 2004, and confidential and
ex parte, Prosecutor v. Stanisic, Case No. IT-03-69-PT, “Second Additional
Motion for Provisional Release in Order to File Stipulations Pursuant to Rule
70 Decision,” 18 Mar. 2004.
2 - The Reply was filed without
requesting leave from the Trial Chamber.
3 - Prosecutor v. Stanisic
& Simatovic, Case No. IT-03-69-PT, “Amended Indictment,” 9 Dec. 2003.
4 - Defence Exh. 16. The First
Municipal Court in Belgrade, in response to requests from the Accused, issued
two other statements dated 2 July 2003 and 6 November 2003. Both statements
states that the Accused “is not under criminal investigation” before the municipal
courts “with respect to any criminal act under the jurisdiction of the said
courts.” See Defence Exh. 2 and 3.
5 - Prosecutor v. Stanisic
& Simatovic, Case No. IT-03-69-PT, “Indictment,” 1 May 2003.
6 - Rule 65 (B) of the Rules.
7 - Prosecutor v. Sainovic
& Ojdanic, Case No. IT-99-37-PT, “Decision on Application of Nikola Sainovic
and Dragoljub Ojdanic for Provisional Release,” 26 June 2002 (“Sainovic Trial
Chamber Decision”), para. 11, citing Prosecutor v. Blagojevic et
al., Case No. IT-02-53-AR65, “Decision on Application by Dragan Jokic for
Leave to Appeal,” 18 Apr. 2002, para. 7.
8 - Prosecutor v. Sainovic
& Ojdanic, Case No. IT-99-37-AR65, “Decision on Provisional Release”
(“Sainovic Appeals Chamber Decision”), 30 Oct. 2002, para. 6.
9 - Ibid.
10 - Ibid ( omitted).
11 - Sainovic Appeals Chamber
Decision, para. 7.
12 - Ibid.
13 - Sainovic Appeals Chamber
Decision, para. 9.
14 - Sainovic Trial Chamber Decision,
15 - See Prosecutor v. Krajisnik
and Plavsic, Case No. IT-00-39&40-PT, “Dissenting Opinion of Judge Patrick
Robinson on ‘Decision on Momcilo Krajisnik’s Notice of Motion for Provisional
Release,’” para. 30, in which Judge Robinson expressed the view that “the
burden, whether it be on the Prosecution or the accused, in an application
under Rule 65 is discharged not on the standard of proof beyond reasonable
doubt, but on the standard of the balance of probabilities”. Also Judge David
Hunt, in his dissenting opinion to the [ainovi} Appeals Chamber Decision stated
that the Prosecution argument “that there exists a heavier burden in relation
to proof that an accused person will appear for trial and will not pose a
danger to victims, witnesses and other persons when seeking provisional release
than that which is required for proof of any other fact in any other application
for relief” lacks support. He wrote: Contrary to the prosecution’s submission,
there does not exist any standard of persuasion fixed at an intermediate point
between the satisfaction beyond reasonable doubt required to establish guilt
of a criminal charge and satisfaction that more probably than not what any
applicant for relief asserts is true (sometimes referred to as the balance
of probabilities). Satisfaction that what such an applicant asserts is more
probably true than not depends upon the nature and consequences of the matter
to be proved. The more serious the matter asserted, or the more serious the
consequences flowing from a particular finding, the greater the difficulty
there will be in satisfying the relevant tribunal that what is asserted is
more probably true than not. That is only common sense ( omitted). The nature
of the issue necessarily affects the process by which such satisfaction is
attained, but the burden of proof is the same: that more probably than not
what is asserted by the applicant is true. “Dissenting Opinion of Judge David
Hunt on Provisional Release,”Sainovic Appeals Chamber Decision, para. 29.
16 - Prosecution Exh. 1, Tab 6,
17 - Prosecution Exh. 1, Tab 6,
para. 11, and Provisional Release Hearing (private session), T.111.
18 - Ibid.
19 - Provisional Release Hearing
(private session), T.110.
20 - Defence Exh. 7(under seal),
27-29 (under seal), and 37 (under seal).
21 - Ibid.
22 - Defence Exh. 29 (under seal)
and 37 (under seal).
23 - See paragraph 11 and supra
24 - Defence Exh. 4-6 and 8.
25 - Defence Exh. 4 and 6. The
guarantee from the government of Serbia and Montenegro also mentions the finding
of the Council. See Defence Exh. 4A.
26 - Sainovic Appeals Chamber
Decision, para 10.
27 - Defence Exh. 5.
28 - These include, inter
alia, those documents referred to at the Provisional Release Hearing
by the Defence. See Provisional Release Hearing, (private session),
29 - Ilijkov v. Bulgaria,
European Court of Human Rights, Judgement of 26 July 2001, para. 81.
30 - Provisional Release Hearing,
31 - Prosecution Exh. 1, Tab.
32 - Provisional Release Hearing
(private session), T. 176-177.
33 - Prosecutor v. Mrksic,
Case No. IT-95-13/1-AR65, “Decision on Appeal Against Refusal to Grant Provisional
Release,”8 Oct. 2002, para. 9.
34 - Ibid.
35 - Sainovic Appeals Chamber
Decision. para. 7.
36 - Provisional Release Hearing,
37 - Defence Exh. 19.
38 - Defence Exh. 20.
39 - Defence Exh. 21.
40 - Defence Exh. 2, 3, 12 (under
seal), 15, 19-21, 23 (under seal), 24 (under seal), 32 (under seal) and 38
41 - Defence Exh. 24 (under seal).
42 - Response, para. 9.
43 - Prosecution Exh. 1, Tab.
44 - Ibid.
45 - Ibid.
46 - Ibid.
47 - Ibid.
48 - Ibid.
49 - Provisional Release Hearing
(private session), T. 136.
50 - Ibid.
51 - Provisional Release Hearing
(private session), T. 137-138.
52 - Provisional Release Hearing
(private session), T. 139-140.
53 - Provisional Release Hearing
(private session), T. 140.
54 - Provisional Release Hearing
(private session), T. 167 and 170.
55 - Prosecutor v. Kovacevic,
Case No. IT-01-42/2-I, “Decision on Provisional Release,” 2 June 2004.
56 - Ibid.
57 - Prosecutor v. Milan Simic,
Case No. IT-95-9-PT, “Decision on Provisional Release of the Accused,” 26
Mar. 1998 (“Simic Provisional Release Decision”).
58 - The amendment to Rule 65,
which was adopted at the twenty-first session of the plenary in November 1999,
entered into force on 6 December 1999 (see IT/161).
59 - Simic Provisional Release
Decision, at p. 2.
60 - Prosecutor v. Milan Simic,
Case No. IT-95-9/2 “Decision on Return of Milan Simic for Medical Examination
and Termination of Provisional Release,” 26 July 2001.
61 - Provisional Release Hearing
(private session), T. 276; 294-295, T. 320; and Prosecution Exh. 1, Tab 30
62 - Provisional Release Hearing
(private session), T. 296.
63 - Provisional Release Hearing
(private session), T. 371.
64 - Provisional Release Hearing
(private session), T. 256.