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 a partially confidential “Request for Provisional Release by General Miletic” (“Motion”) filed in French on 25 April 2005 by Radivoje Miletic (“Accused”).¹ On 6 May 2005 the Prosecution filed a “Prosecution Response to Request for Provisional Release for Accused Radivoje Miletic” (“Response”). On 10 May 2005 the Accused filed “Request for Leave to Reply and Reply to the Prosecutor’s Response to Request for Provisional Release by General Miletic” (“Reply”).² The Trial Chamber grants leave to reply and takes note of the contents of the Reply. 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 26 May 2005 the Accused filed a motion in which he requested the reconsideration of the Chamber’s order to stay the procedure. As it is now possible to adequately consider the merits of the original request for provisional release, the request 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 Radivoje Miletic 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 28 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 14 April 2005, at a further initial appearance before Judge Van Den Wyngaert, Pre-Trial Judge, the Accused pleaded not guilty to all the counts of the Indictment. On 13 May 2005 the Accused filed “General Miletic’s Preliminary Motion on the Form of the Indictment” (“Preliminary Motion ”).³ On 26 May 2005 the Prosecution submitted its response to that motion. On 27 May 2005, however, the Accused filed a “Memorandum”,⁴ in which he stated that, in view of the Prosecution’s intention to file a consolidated indictment for all the cases concerning the events in Srebrenica, his Preliminary Motion became irrelevant. The Trial Chamber, accordingly, has discontinued consideration of the Preliminary Motion.
   2. Submissions

3. The Accused requests provisional release to Serbia and Montenegro and submits that the seriousness of the charges and the severity of the sentence expected cannot, by themselves, justify prolonged periods of detention. He emphasises that he surrendered to the Tribunal as soon as he learned of the Indictment. The Accused submits that he held no official position in Serbia and Montenegro. He further makes reference to an improvement in co-operation between the Tribunal and the authorities of Serbia and Montenegro (“Federal Government”) and the Government of Serbia (“Serbian Government ”), and contends that those authorities have always respected the guarantees provided. The Accused provides a statement and personal guarantee to comply strictly with any condition which the Trial Chamber might impose on him in relation to his provisional release. He points out that he has co-operated with the Tribunal by his prompt surrender and pleading to the Indictment. The Accused submits that he has never posed a danger to any witness, victim or any other person who may appear before the Tribunal. He notes that most victims and witnesses in this case live outside Serbia and Montenegro. The Accused also enclosed a “Guarantee of the Council of Ministers of Serbia and Montenegro” and a decision of the Serbian Government. In a Reply to the Response of the Prosecution, the Accused submits that he is not charged with the acts the Prosecution refers to, and suggests the attitude of the Federal and Serbian Governments towards the arrests of the Tribunal’s indictees asserted by the Prosecution does not reflect the current state of affairs. As regards the Prosecution investigator’s statement relating to the co-accused Zdravko Tolimir, the Accused observes that the investigator stated only that he “believed” that the Serbian Government was aware of Tolimir’s whereabouts.

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”. The Prosecution states that the gravity of these charges is likely to result in a significant sentence should there be a conviction. It 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. 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. It states that one of the accused in the present case, Zdravko Tolimir, is well known to the Serb authorities but he has not yet been arrested. The Prosecution enclosed an affidavit of an investigator in its office in support of these two assertions concerning the Serb authorities. Finally, it observes that the Accused entered a plea only after having been granted an additional fourteen days.
   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 29 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. Copies of decisions providing guarantees by the Federal and Serbian Governments have been appended to the Motion. 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.⁵

   (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 his burden, the Trial Chamber has the discretion to refuse to order provisional release.⁶ The burden of proof is on the Accused.⁷ 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.⁸ 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 by virtue of either or both 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 law⁹, 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.¹⁰ 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.¹¹ 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. 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.¹² Radislav Krstic was eventually sentenced to thirty-five years’ imprisonment and Vidoje Blagojevic to eighteen.¹³ Momir Nikolic, after having reached a plea agreement, was not convicted of genocide, as initially indicted. He was sentenced to twenty-seven years’ imprisonment.¹⁴ 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.¹⁵ Accordingly, it is to be anticipated that, regardless of the role the Accused played in the perpetration of the crimes, he may face a long sentence if the offences charged in the Indictment are proven. 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.¹⁶ It is also to be noted that in one of the above-mentioned cases, Dragan Jokic was provisionally released,¹⁷ as was Biljana Plavsic, who was charged with genocide.¹⁸

    (ii) Circumstances of the surrender

11. As regards the circumstances of his surrender, the Accused submits that he surrendered as soon as he learned of the Indictment.¹⁹ 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.²⁰

    (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.²¹ 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.²² 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. Further, the Trial Chamber considers that the Prosecution suggestion that the Federal Government is aware of the whereabouts of Zdravko Tolimir has not been established and is based on a mere belief. Having regard to the date of the Indictment, it is too early to draw conclusions as to the general level of the Serbian authorities’ co-operation on this basis.

    (iv) Governmental guarantees in respect of the Accused

13. Governmental guarantees have been provided. The Serbian Government, in its decision of 3 March 2005, undertook to observe all orders of the Trial Chamber that the Accused appear at any time before the Tribunal.²³ 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.²⁴ The Chamber is obliged to determine the reliability of these guarantees in relation to the circumstances of the present case,²⁵ 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.²⁶ The Trial Chamber notes that during the time period relevant to the events described in the Indictment the Accused was allegedly a Chief of Operations and Training and Deputy Chief of Staff, or was Standing in for the Chief of Staff, of the Main Staff of the Bosnian Serb Army. It is not alleged that he held any position in the Federal Government.²⁷ He is retired and there is nothing to suggest 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, restrict his movement to the city of Belgrade, report daily to a police station, not pose danger to any victims or witnesses in his case and appear at trial when summoned.³⁰ The Trial Chamber takes note of the Parties’ disagreement on the issue of the Accused’s co-operation with the Tribunal. It observes, however, that the timing of his entering a plea was affected by difficulties relating to legal assistance, and cannot thus provide a reliable basis for any assessment of the Accused’s attitude towards co -operation with the Tribunal.

16. The Prosecution submits that the completion strategy of the Tribunal may reduce the likelihood of the Accused’s return for trial.³¹ 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 he has never posed a danger to any witness, victim or any other person who may appear before the Tribunal.³² 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, one of which, as mentioned, does 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]