Trial Chambers

The Prosecutor v. Dusko Sikirica, Damir Dosen and Dragan Kolundzija - Case No. IT-95-8-S

"Order of the President on the Early Release of Dragan Kolundzija"

5 December 2001
Judge Claude Jorda, President of the Tribunal

Article 28 of the Statute - Rules 101(C), 123 to 125 of the Rules of Procedure and Evidence - Practice Direction on the procedure for the determination of applications for pardon, commutation of sentence and early release of persons convicted by the Tribunal - Request for immediate release - Inherent powers of the Tribunal.

No provision of the Statute or the Rules precludes the Tribunal from ruling on the basis of its inherent powers on a request for early release by a convicted person who is not serving his sentence in a State signatory to the agreement with the Tribunal on the enforcement of sentences.

Procedural Background

The Order

The President granted the request for release, effective 6 December 2001, and decided that, in this particular case, in view of all the information available on the behaviour of the accused in detention at the United Nations Detention Unit, there was no reason to impose a probationary period or any other specific condition on him.

The Reasoning

Admissibility of the request

The President noted that paragraph 1 of the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal3 provides that when a convicted person becomes eligible for early release under the law of the State in which the convicted person is serving his sentence, the enforcing State shall, in accordance with its agreement with the Tribunal on the enforcement of sentences, notify it accordingly.

He also noted that Dragan Kolundzija was not serving his sentence in one of the States signatory to the agreement on the enforcement of sentences and that the Practice Direction does not lay down the procedure to follow when a convicted person has served the part of his sentence at the United Nations Detention Unit which, under the law of all the States signatory to the agreement on the enforcement of sentences, permits him to request early release.

The President considered that, in such a situation, no provision of the Statute or the Rules precludes the Tribunal from ruling on the basis of its inherent powers4 on a convicted person's request for early release.

He concluded that the request need not be submitted by a State signatory to the agreement for examination by the Tribunal.

Merits of the request

The President took into account the elements mentioned in Rule 125 of the Rules6, i.e. "the gravity of the offence committed by Dragan Kolundzija and the manner in which other convicted persons in the same situation are dealt with" as well as "the resolve to be reintegrated into society demonstrated by the convicted person". He took into account "his determination not to re-offend, his good physical and mental condition, his irreproachable behaviour whilst in detention, his attachment to his family and the possibility for him again to exercise a profession showing that release will open up encouraging prospects for Dragan Kolundzija". Lastly, the President referred to the guilty plea of the convicted person and to the documents submitted pursuant to paragraphs 2(b) and (c) of the Practice Direction, i.e.:

1) the report of Mr. Tim McFadden, Commanding Officer of the United Nations Detention Unit, dated 21 November 2001 on the behaviour of Dragan Kolundzija while in detention7;

2) the Deputy Registrar's confidential Memorandum of 22 November 2001, established in accordance with paragraph 2(c) of the Practice Direction8;

3) the statement of Dr. Vera Petrovic, neuropsychiatrist, dated 23 November 2001 about Dragan Kolundzija's mental condition9;

4) the internal Memorandum from the Office of the Prosecutor dated 29 November 2001 regarding the co-operation of the convicted person10.

The President consulted the Bureau and the Presiding Judge of Trial Chamber III11 and concluded that "under the current circumstances, his detention [wa]s no longer necessary".

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1. The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-S, Trial Chamber III, Sentencing Judgement, 13 November 2001 (summarised in Judicial Supplement No. 29).
2. "Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending surrender to the Tribunal or pending trial or appeal."
3. IT/146 of 7 April 1999.
4. On the inherent powers of the Tribunal, see The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Decision of the President on the Prosecutor's Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdravko Mucic, 11 November 1996, in which President Antonio Cassese stated, obiter dictum, that contempt of the Tribunal was the prerogative of the Chambers since it derived from the inherent power of the Court to control its own proceedings; The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A-R77, Appeals Chamber, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000 (summarised in Judicial Supplement No. 11), paras. 26 to 28; The Prosecutor v. Blagoje Simic et al. ("Bosanski Samac"), Case No. IT-95-9-PT, Trial Chamber III, Judgement on Allegations of Contempt against an Accused and his Counsel, 30 June 2000 (summarised in Judicial Supplement No. 16).
5. "The convicted person shall be given ten (10) days to examine the information, following which the President shall hear him or her either through written submissions or, alternatively, by video- or telephone-link."
6. "In determining whether pardon or commutation is appropriate, the President shall take into account, inter alia, the gravity of the crime for which the prisoner was convicted, the treatment of similarly-situated prisoners, the prisoner's demonstration of rehabilitation, as well as any substantial co-operation of the prisoner with the Prosecutor.".
7. Paragraph 2(b) of the Practice Direction provides that the Registry shall "request reports and observations from the relevant authorities […] as to the behaviour of the convicted person during his or her period of incarceration and the general conditions under which he or she was imprisoned".
8. The Registry shall "request the Prosecutor to submit a detailed report of any co-operation that the convicted person has provided to the Office of the Prosecutor and the significance thereof".
9. Paragraph 2(b) of the Practice Direction provides that the Registry shall request "any psychiatric or psychological evaluations prepared on the mental condition of the convicted person during the period of incarceration".
10. Paragraph 2(c) of the Practice Direction provides that the Registry shall "request the Prosecutor to submit a detailed report of any co-operation that the convicted person has provided to the Office of the Prosecutor and the significance thereof".
11. Paragraph 7 of the Practice Direction provides that "having regard to the criteria specified in Rule 125 […], and any other information that he or she considers relevant, and after taking into account the views of the members of the Bureau and the sentencing Chamber, the President shall determine whether pardon, commutation of sentence or early release is to be granted."