The Prosecutor v. Mile Mrksic - Case No. IT-95-13/1-AR65

"Decision on Appeal against Refusal to grant Provisional Release"

8 October 2002
Appeals Chamber (Judges Shahabuddeen [Presiding], Hunt, Güney, Pocar and Meron)

Procedural Background

· Pursuant to leave to appeal granted by a Bench of the Appeals Chamber, Mile Mrksic appealed against Trial Chamber II’s "Decision on Mile Mrksic’s Application for Provisional Release" rendered on 24 July 2002.¹

The Decision

The Appeals Chamber dismissed the Appeal.

The Reasoning

In his first ground of appeal the Appellant Mile Mrksic claimed that the Trial Chamber had erred in the weight it attached to his surrender, to the guarantees offered by the Federal Republic of Yugoslavia (hereinafter "FRY") and to his own undertakings that he would return for trial. He compared his case with others in which provisional release was granted² and submitted that the Tribunal is applying "double standards for identical issues".³ The Prosecution expressed the view that comparison with other cases is of limited value as the various factors which the Chamber takes into account will depend on the accused. It stated that "[n]o single factor can be given controlling weight in deciding a provisional release motion".⁴

In the view of the Appeals Chamber, a reading of the Trial Chamber’s decision in the present case demonstrates that "it did not refuse to accept the guarantees of those two governments [the FRY and the Republic of Serbia] because they were not ‘valid’".⁵ The Trial Chamber held that the content of those guarantees "largely complies with that which the Trial Chamber would generally require for the purpose of provisional release".⁶ The Trial Chamber based itself on the fact that it was not satisfied that, despite those guarantees, the accused would appear for trial if provisionally released, and stated that it was "unable to ignore" the fact that neither government had arrested the two co-accused in this case.

In assessing the request of the accused the Trial Chamber did take into account that the accused could not be treated as if he had voluntarily surrendered as a factor relevant to his degree of cooperation and as a factor undermining the reliability of the guarantees provided on his behalf. But as the Appeals Chamber clearly stated, it would be a "misapprehension as to how the Trial Chambers are required to approach the reliability of such guarantees" to suggest that the Trial Chamber has applied double standards,⁷ as "the reliability of a guarantee given by the relevant authority must be determined in relation to the particular circumstances which arise in the particular case".⁸

The Appeals Chamber mentioned the eventuality that "academic and opinion writers and the interested public may, of course, nevertheless wrongly perceive an inconsistency in those two cases in relation to the same authority, and criticise the Tribunal for what has been wrongly perceived".⁹ It declared that "Trial Chambers should take care to explain their decisions in a way to avoid such criticisms, but they cannot be expected to change their views of the facts in a particular case in order to avoid unfounded criticism". The Appeals Chamber also stated that it should not "interfere with either such case simply because of the possibility of such criticism".¹⁰

In assessing whether guarantees provided by an authority are reliable, the Appeals Chamber made clear that "such reliability must be determined not by reference to any assessment of the level of cooperation by that authority with the Tribunal generally, but in relation to what would happen if that authority were obliged under its guarantees to arrest the particular accused in question".¹¹ The fact in issue is not the general level of cooperation by the authority with the Tribunal (although it has "some relevance" as to whether the authority would arrest the accused) but "what would happen in the circumstances of the particular accused in question".¹² The Appeals Chamber declared that as a consequence "it is both unnecessary and unwise to include in the Trial Chamber’s decision a separate finding concerning that general level of cooperation – unnecessary because any such finding can only be applicable to a particular point in time, and unwise because it could easily be misunderstood by the parties in relation to subsequent application for provisional release".¹³ Further it pointed out that the reliability of a guarantee by any particular authority "necessarily depends to some extent upon the vagaries of politics and of personal power alliances within the relevant authority as well as upon the impact of any international pressure (including financial pressure) upon the authority at any time, and indeed even the likelihood […] of a change of government".¹⁴

The Appeals Chamber found that the fact that the Trial Chamber reached a conclusion different from that of other Trial Chambers in other cases and had taken into account similar factors, does not mean that this Trial Chamber has reached a conclusion which no reasonable tribunal could have reached and therefore rejected the ground of appeal that the Trial Chamber had applied "double standards".

As regards the second ground of appeal that the Trial Chamber erred in law in the assessment of the length of the accused’s pre-trial detention,¹⁵ the Appeals Chamber found that –regardless of the period to take into account- it was too early for the Trial Chamber to determine whether that period was excessive in the circumstances. It rejected this ground of appeal.

In his third and last ground of appeal the Accused claimed that the Trial Chamber had erred in assessing his medical condition. The Appeals Chamber found that the Trial Chamber’s conclusions that the Appellant can receive adequate treatment in the UN Detention Unit were not of such nature that no reasonable tribunal of fact could have reached them. The Appeals Chamber rejected this ground of appeal.

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1. Defence Brief on Appeal against Trial Chamber's Decision to Deny Provisional Release, 30 August 2002.
2. Krajisnik and Plavsic, IT-00-39 & 40-PT, Decision on Biljana Plavsic's application for provisional release, 5 September 2001. Blagojevic et al., IT-02-53-AR-65, Decision on application by Dragan Jokic for Provisional Release, 28 May 2002. Sainovic and Ojdanic, IT-99-37-PT, Decision on Applications for Nikola Sainovic and Dragoljub Ojdanic for Provisional Release, 26 June 2002, Judicial Supplement No. 34.
3. Para. 5.
4. Prosecution's Response to the Accused Mrksic's Appeal of the Trial Chamber's Decision to Deny Provisional Release, 6 September 2002, para. 28.
5. Para. 7.
6. Decision on Mile Mrksic's Application for Provisional Release, 24 July 2002, para. 44.
7. Para. 8.
8. Para. 9.
9. Para. 10.
10. Ibid.
11. Para. 11.
12. Ibid.
13. Ibid.
14. Para. 12.
15. The Trial Chamber considered the period the Appellant had spent in detention until the delivery of its Decision on his application for provisional release while the Appellant claimed that the relevant period was rather until the probable start of the Trial.