Case No. IT-01-42-PT
Judge Daquin Liu, Presiding
Judge Amin El Mahdi
Judge Alphons Orie
Mr. Hans Holthuis
20 February 2002
The Office of the Prosecutor:
Ms. Susan Somers
Mr. Alun Jones
1. 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 (the “Tribunal”) is seized of the “Motion for the Provisional Release of Miodrag Jokic” filed on behalf of the accused Miodrag Jokic (the “Accused”) on 18 December 2001 (the “Motion”) pursuant to Rule 65 of the Rules of Procedure and Evidence of the International Tribunal (the “Rules”).1 Attached to the Motion were an undertaking by the Accused (Annex A) and guarantees from the Republic of Serbia (Annex B).
2. The Prosecution filed the “Prosecution’s Response to Motion for the Provisional Release of Miodrag Jokic” on 19 December 2001 (the “Response”). It stated that it had no objection to the Motion being granted on condition that: the Accused provide an undertaking that he will not attempt to contact, either personally or through intermediaries, witnesses for the Prosecution; the Accused provide a signed undertaking in the terms set out in Annex A to the Motion but including the aforementioned condition ; an official letter of guarantee signed by an authorised representative of the Government of the Republic of Serbia be filed.
3. On 21 December 2001, the Accused filed the “Defendant’s Response to the Prosecutor’s Response to the Motion for the Provisional Release of Miodrag Jokic” in which he confirmed that the Prosecution conditions had been complied with, to the extent that Annex A to the Motion had been signed and filed and an official letter of guarantee signed by Minister of Justice, Dr. Vladan Batic, on behalf of the Government of Serbia (Annex B to the Motion) had been filed. The Accused filed the requested documents attached to a second identical copy of the Motion filed on 19 December 2001. Although the condition concerning contact with witnesses had not been included in Annex A , a signed assurance by the Accused was filed on 21 December 2001.
4. In support of his application for provisional release, the Accused argues, inter alia that:
- there are no grounds to believe that he will not appear for trial or pose any danger to any victim, witness or other person;
- he voluntarily surrendered to the custody of the International Tribunal on 12 November 2001 and therefore the Tribunal should be confident that he will return as required;
- it is important that the Accused has full opportunities, within the terms of his release, to develop his defence outside prison in the Netherlands;
- his daughter is ill and lives with her parents on whom she is dependant;
- amendment of Rule 65(B) of the Rule means that, in view of the presumption of innocence, an accused is entitled as of right to provisional release when the other two conditions are satisfied.
5. The Host Country does not object to provisional release of the accused on the understanding that if released the Accused will be leaving the Netherlands.2
6. Both parties and the Minister of Justice of the Republic of Serbia, Dr. Vladan Batic, were heard by the Trial Chamber on 31 January 2002.
7. 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.”
8. Rule 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 Trial 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.
9. The Accused refers to the fact that Rule 65 (B) was amended with effect from the 7 December 1999, in that the requirement to show “exceptional circumstances” was removed.3 He states that this amendment brought Rule 65 in line with Article 5.3 of the European Convention on Human Rights , which provides that everyone arrested or detained shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or release pending trial and that release may be conditioned by guarantees.4
10. The amendment of Rule 65 has resulted in various interpretations by Trial Chambers as to what the requirements of the Rule now are and how they should be satisfied . Consequently, this Trial Chamber feels it should set out how, in its view, the question of detention and Rule 65(B) should be construed.
A. Amendment of Rule 65(B) of the Rules
11. In addition to those that are still included, Rule 65(B) originally included a requirement that provisional release could be ordered by a Trial Chamber “only in exceptional circumstances.” Under this rule it seemed that detention was considered to be the rule and not the exception. However, some decisions issued by Trial Chambers concluded that the fact that the burden was on the accused and that he had to show that exceptional circumstances existed before release could be granted, was justified given the gravity of the crimes charged and the unique circumstances in which the Tribunal operated.5
12. The requirement to show “exceptional circumstances” meant that in reality Trial Chambers granted provisional release in very rare cases. These were limited to those where for example, very precise and specific reasons presented themselves which leant strongly in favour of release. Thus, for example, Trial Chambers, before the amendment was adopted, accepted that a life-threatening illness or serious illness of the accused or immediate family members constituted exceptional circumstances justifying release, while illnesses of a less severe nature did not.6 As stated, the burden remained on an accused at all times to demonstrate to the satisfaction of the Trial Chamber that such circumstances existed. Should the Trial Chamber conclude that they did not, release would not be ordered.
13. After amendment of the rule, an accused no longer needed to demonstrate that such “exceptional circumstances” existed. Trial Chambers seem to have taken two approaches to the new provision. Most Trial Chambers have continued to find that the amendment did not change the other requirements in the Rule and that provisional release was not now the norm. They considered that the particular circumstances of each case should be assessed in light of Rule 65(B) as it now stood.7 The burden still remained on the accused to satisfy the Trial Chamber that the requirements of Rule 65(B) had been met.8 This was justified by some given the specific functioning of the Tribunal and absence of power to execute arrest warrants.9 The second approach seems to have been the following. It has been concluded that based on international human rights standards, “de jure pre-trial detention should be the exception and not the rule as regards prosecution before an international court.”10 The Trial Chamber in question referred to the fact that at the Tribunal, in view of its lack of enforcement powers , “pre-trial detention de facto seems to be…the rule.”11 In addition it stated that one must take account of the reference to serious crimes . Nevertheless, it found that that “any system of mandatory detention on remand is per se incompatible with Article 5(3) of the Convention (see Ilijkov v. Bulgaria, ECourtHR, Decision of 26 July 2001, para. 84). Considering this , the Trial Chamber must interpret Rule 65 with regard to the factual basis of the single case and with respect to the concrete situation of the individual human being and not in abstracto.”12
B. Effect of the Amendment of Rule 65 of the Rules
14. This Trial Chamber wishes to approach the question from two angles. First, on a point of procedure and second, with regard to interpretation of Rule 65(B) itself and how and when an accused can be provisionally released.
i. Procedural aspect
15. As to the first point, this Trial Chamber wishes to clarify the procedure for consideration by a Trial Chamber of detention and release of an accused. Proceedings with regard to an accused commence with review and confirmation of the indictment pursuant to Article 19 of the Statute and Rule 47 of the Rules. Generally speaking , once an indictment has been confirmed, an arrest warrant will be issued by the same Judge including an order for prompt transfer of the accused to the Tribunal upon arrest.13 The arrest warrant provides the legal basis for detention of the accused as soon as he or she is arrested 14 and, upon being transferred to the seat of the Tribunal, Rule 64 provides that “the accused shall be detained in facilities provided by the host country, or by another country.”
16. Rule 62 of the Rules provides that “?ugpon transfer of an accused to the seat of the Tribunal, the President shall forthwith assign the case to a Trial Chamber . The accused shall be brought before that Trial Chamber or a permanent Judge thereof without delay, and shall be formally charged.” The Rule sets out the issues, which should be raised during this initial appearance. The issue of detention is not specifically included, most probably given the fact that the text of Rule 65(B) as it stood at that time meant that an accused could only be released in “exceptional circumstances .” Rule 65(A) provides that “?ognce detained, an accused may not be released except upon an order of a Chamber.” As the accused is already detained as a result of the arrest warrant that has been issued, detention will continue unless further order is made. During the initial appearance, the Trial Chamber generally orders orally that detention will continue until further order and in some cases an order for detention on remand is formally issued.15 The fact of detention and the reasons for it are rarely, if at all, raised as issues to be discussed at the initial appearance. Nevertheless, this Trial Chamber believes that an accused or indeed the Trial Chamber proprio motu, is entitled to raise the matter of the accused’s detention at this hearing, being his or her first before the Tribunal. This is so, in particular in view of this Trial Chamber’s interpretation of the consequences of the amendment of Rule 65 which will be discussed below, ( including the fact that detention should not be considered to be the rule). Should the question of detention be raised at this time,16 the provisions of Rule 65 will of course apply and must be satisfied before a Trial Chamber would in any event order release Indeed, it may be, and is likely that, a Trial Chamber would adjourn the question in order to schedule a later hearing for arguments to be put or for filings to be received, in addition in view of the requirement to hear from the host country.
ii. Interpretation of Rule 65(B) of the Rules
17. The amendment of Rule 65 left one matter of procedure and two express pre-conditions that must be met before a Trial Chamber will order provisional release.17 As a matter of procedure, the Trial Chamber is required to hear from the host country . Thereafter release may be ordered only if the Trial Chamber is satisfied that the accused will both appear for trial and if released, pose no risk to any victim , witness or other person. However, as mentioned above, Rule 65 previously stipulated that notwithstanding satisfaction of these two criteria, provisional release was only to be granted in “exceptional circumstances.” Detention was therefore in reality the rule. This Trial Chamber believes that removal of this requirement has had the following effect. It has neither made detention the exception and release the rule , nor resulted in the situation that despite amendment, detention remains the rule and release the exception. On the contrary, this Trial Chamber believes that the focus must be on the particular circumstances of each individual case,18 without considering that the outcome it will reach is either the rule or the exception . Its task must rather be to weigh up and balance the factors presented to it in that case before reaching a decision. It may be that some unique circumstances of this Tribunal may weigh against a decision being taken to provisionally release (see below). Nevertheless, they must still be considered in the context of the individual case and facts presented, in order for the correct balance to be struck.
18. Consequently, this Trial Chamber does not believe that recourse to a so-called “rule-exception” system provides it with assistance in reaching a decision. As to the question of the burden of proof in satisfying the Trial Chamber that provisional release should be ordered, it is the case that in an application under Rule 65, this rests on the accused. This does not, however, exclude intervention by, for example, the Trial Chamber, should it for whatever reason require more information regarding what it may suspect is a factor that should or may result in a change in the detention situation of the accused (either with regard to modification of the conditions of detention under Rule 64, or, in the context of an application for provisional release under Rule 65). A Trial Chamber may seek this information either by ordering a party to supply it or by obtaining the information itself.
19. The Trial Chamber turns now to consider how the decision to release or maintain detention should be taken. First, it is useful to recall a decision issued by the European Court of Human Rights, in which it specifically acknowledged the existence of cases where continued detention may be justified. The Court stated that,
…continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the Convention….Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention…. the existence of the concrete facts outweighing the rule of respect for individual liberty must be nevertheless convincingly demonstrated.19
Continued detention is therefore not prohibited. Nor does it have the nature of a sanction. Its purpose is to ensure the presence of the accused at trial, to preserve the integrity of victims and witnesses and to serve the public interest.
20. This Trial Chamber consequently considers that, as a general rule, a decision to 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. This balancing exercise is carried out as follows. 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.
21. However, even if these requirements are met, this Trial Chamber does not believe that it is obliged to release the accused.20 In this regard, it agrees with the interpretation that a Trial Chamber will still retain a discretion not to grant provisional release even if it is satisfied that the accused will appear for trial and will not pose a danger to any victim, witness or other person.21 This applies even if the Prosecution does not object to the application for release. 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 finds necessary to take into account. For example: the destruction of documentary evidence; the effacement of traces of 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 serious reasons to believe that he or she would commit further serious offences.
iii. Factors relevant to the decision-making process
22. In considering the two pre-conditions expressly laid down in Rule 65(B), it must be remembered that, there are factors that are specific to the functioning of the Tribunal which may influence the assessment of the probability of the risk of absconding or interfering with witnesses. These factors would as such be neither decisive nor negligible in individual cases and must be considered in the context of all the information presented to the Chamber. They may however become decisive if they strongly support the risk that an accused will either fail to attend court or interfere with witnesses (as expressly mentioned in Rule 65(B)) and if the Chamber can find no counter-balancing circumstances in the particular case before it. These factors include the following.
23. First, the Tribunal lacks its own means to execute a warrant of arrest, or to re-arrest an accused who has been provisionally released. It 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 may abscond . It depends on the circumstances whether this lack of enforcement mechanism creates such a barrier that provisional release should be refused. It 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, it goes without saying that prior voluntary surrender of an accused is not without significance in the assessment of the risk that an accused may not appear for trial.
24. Second, the fact that the Tribunal’s jurisdiction is limited to serious offences (“serious violations of international humanitarian law”22), means that accused may expect to receive, if convicted, a sentence that may be of considerable length.23 This very fact could mean that an accused may be more likely to abscond or obstruct the course of justice in other ways.
25. Third, the duration of pre-trial detention is a relevant factor to be considered when deciding whether or not detention should continue. The complexity of the cases before the Tribunal and the fact that the Tribunal is located at great distance from the former Yugoslavia means that pre-trial proceedings are often lengthy. This issue may need to be given particular attention in view of the provisions of Article 9(3) of the ICCPR and Article 5(3) of the ECHR.24 This is all the more true, since in the system in place in the Tribunal, unlike generally that in national jurisdictions, there is no formal procedure in place providing for periodic review of the necessity for continued pre-trial detention . Consequently, if in a particular case, detention is prolonged, it could be that , in a given case, this factor may need to be given more weight in considering whether the accused in question should be provisionally released.
26. Among other factors that may be relevant in relation to the circumstances of individual cases, the following may be mentioned: completion of the Prosecution’s investigation which may reduce the risk of potential destruction of documentary evidence; or a change in the health of the accused or immediate family members. In addition, other Trial Chambers have taken into account: the accused’s substantial co-operation with the Prosecution; guarantees offered by the accused and his or her government; and changes in the international context.
27. In light of the above analysis, the Trial Chamber turns now to examine the material put forward by the Accused and consider whether it is satisfied in this case that the Accused should be provisionally released. In doing so, it recalls that a determination as to whether release is to be granted must be made in light of the particular circumstances of each case and taking into account the considerations set out above.
28. The Accused submits that among the grounds for his application are the fact that he voluntarily surrendered to the custody of the International Tribunal on 12 November 2001. In addition, he refers to the fact that his daughter is ill and that, if necessary, she would give evidence at a hearing. The Trial Chamber accepts that these circumstances may be of some relevance to it in reaching a decision. However, it emphasises that alone, these circumstances will not suffice in order for a decision to be taken to provisionally release an accused.
29. The Trial Chamber notes and takes due account of the written undertaking filed by the Accused in support of his application. In addition it notes the submissions made by the Accused himself at the hearing. In particular, the Accused has stated that if released: he will not leave the territory of the Republic of Serbia; he will reside at one of the two addresses disclosed to the Registry of the Tribunal ; he will surrender his passport to the Office of the Ministry of Interior; he will consent to have his presence checked by the Ministry at his address; he will report daily to the said Ministry or as directed by the Ministry; he will not communicate with his co-accused, nor discuss the case with anyone, except his lawyers; he will return to the Tribunal when required; and he will comply with any amendment or alteration to any decision for provisional release. During the oral hearing, the Accused himself submitted that if granted provisional release, he would return before the Trial Chamber whenever required but that in the interests of fairness he should be given the opportunity to prepare his defence in better circumstances.25
30. Together with his own guarantees, the Accused relies on those provided by the Government of the Republic of Serbia to support his assertion that he will appear for trial and will not pose a danger to victims and witnesses. These guarantees were also given in both written form (as seen above), and verbally during the hearing , by the Minister for Justice, Dr. Batic, on behalf of the Government of the Republic of Serbia. This Government has accordingly stated that it will guarantee compliance of the Accused with the terms and conditions imposed by the Trial Chamber and that it wishes to ensure intensive co-operation by the Government of the Republic of Serbia with the Tribunal, although this should be two-way.
31. At the hearing, Dr. Batic admitted that “at the federal level, the law on cooperation with the Tribunal has not as yet been adopted.”26 However, relying on certain developments which had taken place, he put forward his view that these indicated that the Republic of Serbia had adopted a new approach to the Tribunal. He spoke of the decision reached on 28 June 2001 by the Government of Serbia, providing for the automatic application of the Statute, on which basis Mr. Slobodan Milosevic and the “brothers Banovic” were transferred to the Tribunal . He stated that this is the legal basis on which the Government must act and is cooperating with the Tribunal and that if the Accused in this case refused to comply with the “summons of” the Tribunal it would then be obliged to arrest and transfer him to the Tribunal.27 He asserted that the Accused would “have absolute and permanent 24-hour monitoring by the Ministry of Internal Affairs of the Republic of Serbia, both as a guarantee of his own security and in order to comply with all the obligations contained in the written guarantees of the Republic of Serbia.”28 Finally , he referred to the fact that the accused Biljana Plavsic was also granted provisional release by Trial Chamber III who, in that case, accepted the guarantees offered by the Government of the Republic of Serbia29: “the government of the Republic of Serbia, by providing guarantees, places its international legal credibility, as well as its dignity in general, at a risk, and it would like very much to keep and to preserve this international credibility which has been quite hard to earn.”30
32. The Trial Chamber is satisfied with the assurances that have been put forward by the Government of the Republic of Serbia and is satisfied with the undertakings by the Accused. It also notes that the trial of the Accused is unlikely to start soon.
33. The Trial Chamber, upon balancing all the relevant circumstances as required by Rule 65(B) and as discussed above, finds it appropriate to order that the Accused should be provisionally released.
34. 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.” Among others , 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. In addition, the Accused will be prohibited from occupying any official function. Generally, the conditions listed below aim at ensuring that the Accused will not abscond and that he will not interfere with the administration of justice in this case.
PURSUANT TO Rules 54 and 65, and with the agreement of the parties,
THIS TRIAL CHAMBER
HEREBY GRANTS the Motion AND ORDERS the provisional release of Miodrag Jokic on the following terms and conditions:
ORDERS the Accused:
1) to remain within the confines of the municipality of his chosen residence in the Republic of Serbia as communicated in point 3) below;
2) to surrender his passport to the Ministry of the Interior, Ministarstvo Unutrasnjih poslova, Republic of Serbia, Kneva Milosa 101, 11000 Belgrade;
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 said Ministry and the Registrar of the Tribunal;
4) to report once a week to the local police;
5) to consent to having his presence checked, including by occasional, unannounced visits by the Ministry of Interior, or officials of the Government of the Republic of Serbia with the local police, or by a person designated by the Registrar of the Tribunal;
6) not to have any contact whatsoever nor in any way interfere with victims or potential witnesses or otherwise interfere in any way with the proceedings or the administration of justice;
7) not to discuss the case with anyone, other than counsel, including not to have any contact with the media;
8) not to have any contact with any other accused or the co-accused in this case;
9) to comply strictly with any requirements of the authorities of the Government of the Republic of Serbia necessary to enable them to comply with their obligations under this Order;
10) to return to the Tribunal at such time and on such date as the Trial Chamber may order;
11) to comply strictly with any order of the Trial Chamber varying the terms of, or terminating the provisional release;
12) not to occupy any official position within the Republic of Serbia;
13) to report to the Registrar of the Tribunal, within 3 days of the start of employment or occupation, if any, 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 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.
REQUIRES the Government of the Republic of Serbia, 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 the Dutch territory to his place of residence and back are covered;
3) upon the accused’s release at Schiphol airport (or any other airport within the territory of the Kingdom of the Netherlands), have a designated official of the Government of the Republic of Serbia 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 Serbia accompanies the Accused on his return flight to the Kingdom of the Netherlands after termination of the provisional release upon an order of 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 .
REQUESTS the Registrar of the 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.
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 that airport, provisionally release the Accused into the custody of the designated official of the Republic of Serbia;
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.
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 English and French, the English text being authoritative.
President of Trial Chamber I
Dated this twentieth day of February 2002
At The Hague,
[Seal of the Tribunal]