Case No. IT-04-80-PT

Before:
Judge Kevin Parker, Presiding
Judge Krister Thelin
Judge Christine Van Den Wyngaert

Registrar:
Mr. Hans Holthuis

Order of:
19 July 2005

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Ms. Natacha Fauveau-Ivanovic for Radivoje Miletic
Mr. Dragan Krgovic for Milan Gvero

1. Background
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 (“Tribunal”) is seized of “General Gvero’s Motion for Provisional Release” (“Motion”) filed on 5 April 2005 by Milan Gvero (“Accused”). On 19 April 2005 the Prosecution filed a “Prosecution Response to Request for Provisional Release for Accused Milan Gvero” (“Response”). On 22 April 2005 the Accused filed a “Motion for Leave to Reply: General Gvero’s Motion for Provisional Release” (“Reply”). The Trial Chamber grants leave to reply and takes note of the contents of this motion. On 25 May 2005 the Trial Chamber stayed the consideration of the Motion because of a potential issue of joinder of the present case with other cases concerning the events in Srebrenica. That motion was filed by the Prosecution on 10 June 2005 and it is now feasible to view what is alleged against this Accused in the context of all these whom the Prosecution alleges were involved. On 31 May 2005 the Accused filed a “Motion for Reconsideration of Order Staying the Consideration of Motions for Provisional Release”. As it is now possible to adequately consider the merits of the original request for provisional release, the “Motion for Reconsideration…” has become irrelevant and the Trial Chamber leaves it without examination.

2. The indictment against Zdravko Tolimir, Radivoje Miletic and Milan Gvero (“ Indictment”) was confirmed on 10 February 2005. It charges Milan Gvero with murder, under Articles 3 and 5(a) of the Statute of the International Criminal Tribunal for the Former Yugoslavia (“Statute”), persecutions on political, racial and religious grounds, under Article 5(h) of the Statute, forcible transfer, under Article 5(i ) of the Statute and deportation, under Article 5(d) of the Statute. On 24 February 2005 the Accused arrived at the seat of the Tribunal. On 1 March 2005 the Presiding Judge of Trial Chamber II, to which the case had been assigned, ordered the detention on remand of the Accused until further order. On 2 March 2005, at an initial appearance before the Presiding Judge of Trial Chamber II, the Accused pleaded not guilty to all the counts of the Indictment.
   2. Submissions

3. The Accused requests provisional release to Serbia and Montenegro. He submits that, although the charges against him are serious, he is not charged with genocide, not accused of having intended that killings were committed and not charged with command responsibility for any of these acts. The Accused contends that, if convicted, he is not likely to face a long imprisonment sentence. He points out that he made arrangements to surrender to the Tribunal immediately upon learning of his indictment. The Accused further makes reference to a recent improvement in co-operation between the authorities of Serbia and Montenegro (“Federal Government”), as well as the Government of Serbia (“Serbian Government”), and the Tribunal, as well as to a Law on Co-operation with the Tribunal passed in 2002. He emphasises that he held no position in the Federal Government. The Accused submits that he has shown a degree of co-operation with the Tribunal by provisionally accepting to be interviewed by the Office of the Prosecutor. The Accused also expects to agree to the admission of evidence under Rule 92bis of the Rules of Procedure and Evidence (“Rules ”). He notes that he has not caused harm to or threatened any victims or witnesses, nor is there any evidence that he would do so, if released. Finally, the Accused submits that the commencement of the trial may be delayed by the arrival of other persons charged with crimes committed in relation to the events that occurred in Srebrenica. The Accused enclosed a “Guarantee of the Council of Ministers of Serbia and Montenegro” and a decision of the Serbian Government. He also attached his personal guarantee. In a Reply to the Response of the Prosecutor, the Accused observes that in another case concerning Srebrenica, as well as in other more serious cases, provisional release has been granted. He argues that a delay in the commencement of trial, to which the Prosecution refers, is a factor that speaks in favour of granting provisional release. The Accused refers to a recent decision in the Milutinovic case, in which a Trial Chamber acknowledged that the Serbian Government and the Federal Government respect their guarantees. He does not accept the Prosecution’s contention that the completion strategy of the Tribunal is a factor that might increase the risk of the Accused’s failure to appear for trial if released. He suggests that although his co-operation with the Prosecution has not yet been of substantial value, this is because of the early stage of the proceedings.

4. The Prosecution objects to the Motion, arguing that the Accused has not satisfactorily established that he will appear for trial. The Prosecution notes that the Accused is charged with crimes against humanity and violations of the laws and customs of war, “for his integral role in the organised ethnic cleansing of thousands of Bosnian Muslim men, women, and children from Srebrenica and thousands of women and children from Zepa and the deportation of the men from Zepa”. It submits that a lengthy sentence can be anticipated if the Accused is convicted. It suggests that, given the Accused’s age and the fact that he is faced with the prospect of spending the remainder of his life in prison, he may fail to present himself for trial. The Prosecution submits that the suggestion by the Accused that his pre-trial detention may exceed a reasonable time is premature and speculative at this point. It argues that, although the degree of co-operation from the Governments concerned has improved, this co-operation has not reached such a level as to ensure that the Accused will appear before the Tribunal at trial. The Prosecution submits that those Governments have been reluctant to acknowledge that they have carried out arrests of individuals indicted by the Tribunal and have claimed that these indictees have voluntarily surrendered. The Prosecution enclosed an affidavit of an investigator in its office in support of this contention. It also argues that the setting up of target dates for the completion of trials, in pursuance of the completion strategy of the Tribunal, may reduce the time the Governments concerned will have to comply with the Trial Chamber’s order should the Accused fail to surrender, and expresses a concern that the Accused might go into hiding until the Tribunal completes its mandate. Finally, it submits that, at this time, the Accused has not been willing to be voluntarily interviewed by the Prosecution.
   3. Discussion

5. Rule 65 of the Rules reads, in so far as relevant:

   (A) Once detained, an accused may not be released except upon an order of a Chamber.

   (B) Release may be ordered by a Trial Chamber only after 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. On 8 April 2005 the authorities of the host country informed the Tribunal that they had no objections in respect of the provisional release of the Accused. The Embassy of Serbia and Montenegro submitted copies of the two decisions providing guarantees in respect of the Accused. The Trial Chamber therefore considers that the requirement of giving the host country and the State to which the accused seeks to be released the opportunity to be heard, set forth in Rule 65(B) of the Rules, is satisfied.

7. The Appeals Chamber has indicated a non-exhaustive set of factors to be considered when assessing whether an accused will appear for trial: that the applicant is charged with serious criminal offences and, if convicted, is likely to face a long prison term; the circumstances in which he surrendered; the degree of co-operation given by the authorities concerned; that the relevant government has given guarantees that the accused will appear for trial and observe the conditions set for his provisional release; whether the accused held very senior positions, so far as it is relevant to the weight of governmental guarantees; that the Federal Government passed a Law on Co-operation with the Tribunal; that the applicant has given a personal guarantee to abide by the conditions set for his provisional release; the likelihood that the relevant authorities will re-arrest the accused should he decline to surrender at the time the Accused will be tried – so far as that can be predicted in the present circumstances; and whether the accused has agreed to be interviewed by the Office of the Prosecutor.¹

   (a) Burden of proof

8. The Prosecution submits that the Accused has the burden of proof of both elements, set out in Rule 65(B), and even if he discharges this burden, the Trial Chamber has the discretion to refuse to order provisional release.² The burden of proof is on the Accused.³ Indeed, the absence of any power in the Tribunal to execute its own arrest warrants and its need to rely on local or international authorities to effect arrests on its behalf has the practical consequence that an applicant for provisional release must have a clear and strong case to satisfy the Trial Chamber that he will appear for trial if released.⁴ The Chamber would observe, however, that the submission of the Prosecution is not entirely accurately expressed. Rule 65 (B) stipulates two preconditions. Unless the Chamber is satisfied of each of these, it cannot order provisional release. However, if the Trial Chamber is satisfied regarding these two preconditions, the Chamber must then determine whether it should exercise its discretion to order release. Hence, if the Chamber is not satisfied that the discretion should be exercised, there is no order for release. It is not a discretion to refuse to order release, as the Prosecution submission suggests.

   (b) Will the Accused appear for trial?

   (i) Seriousness of the offences charged

9. As indicated above, the Trial Chamber must in its analysis take into account the seriousness of the criminal offences with which the Accused is charged. It notes that the Accused is charged with murder (as a crime against humanity and a violation of the laws and customs of war), persecutions on political, racial and religious grounds, forcible transfer and deportation. The Accused is alleged to have committed these crimes either or both by virtue of participation in a joint criminal enterprise and co-perpetration in a criminal operation, the common purpose of which was to force the Muslim population out of the Srebrenica and Zepa enclaves to areas outside the control of Republika Srpska.

10. As this Tribunal is established to deal with serious violations of international humanitarian law⁵, the cases before it typically involve allegations of what are normally regarded as very serious offences. However, in the present context, the seriousness of offences is not to be assessed in the abstract and having regard only to the nature of the offences charged, but rather in the light of the actual circumstances in which the alleged offences occurred and in the light of the requirements imposed by Rule 65 (B). The gravity of the offences charged is of particular relevance, in this context, to whether the prospect of a lengthy sentence is so real that it would constitute an incentive for an accused to flee.⁶ In this regard, this Trial Chamber notes the cases of Radislav Krstic, Momir Nikolic, Vidoje Blagojevic and Dragan Jokic, which concerned the same events as those to which the present Indictment refers.⁷ Krstic was found guilty of, inter alia, aiding and abetting genocide. Blagojevic was convicted of complicity in genocide. This undoubtedly grave crime is not among the offences with which the Accused is charged.⁸ It is also to be noted that, unlike the case against this Accused, the majority of the accused whose cases the Prosecution seeks to join with the present case are charged with genocide.⁹ Radislav Krstic was eventually sentenced to thirty-five years’ imprisonment and Vidoje Blagojevic to eighteen.¹⁰ Momir Nikolic, after having reached a plea agreement, was not convicted of genocide, as initially indicted. He was sentenced to twenty-seven years’ imprisonment.¹¹ Dragan Jokic, who was not charged with genocide, was sentenced to nine years’ imprisonment. The Trial Chamber also notes that, similarly to the present case, Radislav Krstic and Momir Nikolic were charged with participation in a joint criminal enterprise.¹² Accordingly, it is to be anticipated that even if the Defence argument that the alleged role of the Accused was “peripheral ” is valid,¹³ he may face a long sentence if the offences charged in the Indictment are proven. In addition, the age of the Accused is, as noted by the Prosecution,¹⁴ a factor that, combined with the risk of a long prison term, could affect his readiness to return for trial. It follows that the seriousness of the offences charged and the likelihood of a long sentence militate to some extent against the provisional release of the Accused. The seriousness of the charges against the Accused is not, of course, the sole factor to be considered.¹⁵ It is also to be noted that in one of the above-mentioned cases, Dragan Jokic was provisionally released,¹⁶ as was Biljana Plavsic, who was charged with genocide.¹⁷

    (ii) Circumstances of the surrender

11. As regards the circumstances of his surrender, the Accused submits that he made arrangements therefor immediately after having learned of the Indictment.¹⁸ The Prosecution did not comment on this matter. The comparison of the date of the Indictment with the date of the surrender confirms the Accused’s submission. There is nothing to suggest that any coercive measures were used to ensure the transfer of the Accused to the Tribunal.¹⁹

    (iii) Degree of co-operation by the authorities concerned

12. Concerning the general level of co-operation given by the Serbian Government and the Federal Government, the Trial Chamber reiterates that this factor has some relevance in determining whether these authorities would arrest the Accused, but it is not in itself a fact in issue and it is unnecessary to include in the Trial Chamber’s decision a separate finding concerning that general level of co-operation.²⁰ The Trial Chamber, however, takes note of the Parties’ concordant view that the level of co-operation given by the authorities of Serbia and Montenegro has recently increased.²¹ As regards the Prosecution reservation that those authorities have been reluctant to acknowledge that they arrested certain indictees, claiming that they have voluntarily surrendered, the Trial Chamber observes that the Prosecution has not been able to offer convincing evidence to establish this assertion.

    (iv) Governmental guarantees in respect of the Accused

13. Governmental guarantees have been provided. The Serbian Government, in its decision of 24 February 2005, undertook to observe all orders of the Trial Chamber that the Accused appear at any time before the Tribunal.²² The Council of Ministers of Serbia and Montenegro guarantees in its decision of 3 March 2005, inter alia, the obligation of the Ministry of Internal Affairs of the Republic of Serbia and of the Security Information Agency of the Republic of Serbia to ensure that the Accused, if released, reports daily to the nearest police station, is immediately arrested should he violate any of the conditions for provisional release and to hand him over to the Dutch authorities at the time set by the Trial Chamber.²³ The Chamber is obliged to determine the reliability of these guarantees in relation to the circumstances of the present case,²⁴ including any governmental position which the Accused may have held prior to his arrest and, as far as foreseeable, anticipating the circumstances when the case is due for trial and the Accused is called on to return.²⁵ The Trial Chamber notes that during the time period relevant to the events described in the Indictment the Accused was allegedly an Assistant Commander of the Main Staff of the Bosnian Serb Army and held no position in the Federal Government.²⁶ In view of the fact that he retired 9 years ago,²⁷ it is unlikely that he might possess any information of such importance as to make the Government concerned reluctant to hand him over to the Tribunal, should he fail to comply with the conditions of his provisional release.²⁸

14. Regarding the circumstances to be anticipated when the return of the Accused might be required, if released, the Trial Chamber is satisfied that personal circumstances concerning the Accused, as well as current indicators of future co-operation by the Federal Government, as manifested inter alia within the framework of negotiations on the Stabilisation and Association Agreement with the European Union,²⁹ provide a basis for anticipating that the authorities will ensure the return of the Accused to the Tribunal for trial, if he is provisionally released.

    (v) Other factors

15. The Trial Chamber notes that the Accused has appended his personal guarantee that, if released, he will, inter alia, remain in the confines of the Belgrade municipality, report once a week to the local police, have no contact with any victims or witness in his case and return to the Tribunal when ordered. The Accused has also declared his willingness to be interviewed by the Prosecution if this is a condition of his provisional release.³⁰ This is less than a genuine indication of a readiness to co-operate and, as the Prosecution submits, the Accused has not been willing to provide a voluntary interview.³¹ This is not a factor which weighs in favour of provisional release. However, at this early stage of the proceedings, it is somewhat premature to make a final evaluation of the level of his co-operation with the Prosecution. The Trial Chamber will, however, make it a condition of provisional release, if release is justified having regard to the other relevant factors, that the Accused should agree to be interviewed if called on by the Prosecution.

16. The Prosecution submits that the completion strategy of the Tribunal may reduce the likelihood of the Accused’s return for trial.³² The Trial Chamber, however, notes that the anticipated date of the completion of the Tribunal’s mandate is not so imminent as to give any great force to this view in respect of the proceedings in the present case.

    (c) Will the Accused, if released, pose a danger to any victim, witness or other person?

17. The Accused submits that since the time of the events to which the Indictment refers he has not caused harm to, nor threatened any victim or witness.³³ The Prosecution does not comment on this matter. As there is nothing to suggest that the Accused has or will pose a danger to anyone if provisionally released, and the circumstances do not indicate he is in a position to facilitate this, the Trial Chamber finds no reason for not granting provisional release on this basis.
    4. Conclusion

18. In view of the foregoing and having weighed the various relevant factors, two of which, as mentioned, do not tell in favour of granting the Motion,the Chamber is persuaded that the Accused has sufficiently demonstrated that he will appear for trial and will not pose a danger to any victim, witness or other person if released. Further, on balance, the Chamber is satisfied that there is justification for exercising its discretion to grant the Accused provisional release.
    5. Disposition

19. Accordingly, pursuant to Rule 65 of the Rules, the Trial Chamber GRANTS the Motion and

    I. 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 II(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 a 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 International Tribunal, 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 provide the address at which he will be staying in Belgrade to the Ministry of Internal Affairs of the Republic of Serbia and the Registrar of the International Tribunal before leaving the United Nations Detention Unit in The Hague;

    ii. to remain within the confines of the municipality of Belgrade;

    iii. to surrender his passport to the Ministry of Internal Affairs of the Republic of Serbia;

    iv. to report each day to the police in Belgrade at a local police station to be designated by the authorities of the Republic of Serbia;

    v. to consent to having the Ministry of Internal Affairs of the Republic of Serbia check with the local police about his presence and to the making of occasional, unannounced visits upon the Accused by the same Ministry 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. to continue to cooperate with the International Tribunal;

    x. to agree to be interviewed if called on by the Prosecution;

    xi. 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;

    xii. to return to the International Tribunal at such time and on such date as the International Tribunal may order; and

    xiii. to comply strictly with any further Order of the International Tribunal varying the terms of or terminating his provisional release;

    II. 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 release ;

    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 International Tribunal, 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 month 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;

    III. 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;

    IV. REQUESTS the authorities of all States through whose territory the Accused will travel,

    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 version being authoritative.

Dated this nineteenth day of July 2005,
At The Hague
The Netherlands

____________________
Judge Kevin Parker
Presiding Judge

[Seal of the Tribunal]