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The Hague, 2 October 1996
Celebici update 5 : Delalic's provisional release rejected
In a decision rendered on 25 September 1996, Trial Chamber II rejected a motion by Zejnil DELALIC, one of the four accused in the Celebici indictment, for provisional release.
The Chamber ruled that "the accused has failed to justify his provisional release in accordance with Sub-rule 65(B)" of the Rules of Procedure and Evidence.
The Trial Chamber noted that, under Rule 65 (B), before provisional release can be granted, four criteria must be satisfied, three of which are substantive and one procedural. "They are conjunctive in nature, and the burden of proof rests on the Defence. Thus, the Defence must establish that there are exceptional circumstances, that the accused will appear for trial, and that if released the accused will not pose a danger to any victim, witness or other person. Additionally, the host country must be heard. If any of these requirements are not met, the Trial Chamber is not authorised to grant provisional release and the accused must remain detained."
In the instant case, the Netherlands responded to the Registrar's notification to the host country. "Although not providing a definitive position on the possibility for the accused to remain in the Netherlands, the host country has been heard, thereby fulfilling the procedural requirement (. . .)."
The Trial Chamber then considered the substantive provisions.
While noting that international standards dictate that pre-trial detention should be the exception rather than the rule, the Chamber observed that the seriousness of the crimes over which it has jurisdiction and the unique circumstances under which the Tribunal operates justify a showing of exceptional circumstances by and a shifting of the burden to the accused.
"In determining whether an accused has established exceptional circumstances the Trial Chamber looks to determine whether there is reasonable suspicion that he committed the crime or crimes as charged, his alleged role in the said crime or crimes, and the length of the accused's detention. (. . .) [D]etention on the basis of a reasonable suspicion alone is lawful. (. . .) This is particularly so for serious offences."
Reasonable suspicion Ôpresupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence', said the Chamber, quoting from a decision of the European Court of Human Rights.
"This analysis is equally applicable to the serious crimes which are within the subject-matter jurisdiction of the International Tribunal. (. . )Reasonable suspicion at the time of arrest is not, however, enough. To remain lawful the detention of the accused must be reviewed so that the Trial Chamber can assure itself that the reasons justifying detention remain. (. . .) The Trial Chamber will review in a cursory manner (. . .) the strength of the Prosecution's case in determining whether the accused has shown an absence of reasonable suspicion. Included in this determination will be additional evidence as to "irrefutable facts" submitted by the accused."
After reviewing the evidence in light of the above, the Trial Chamber concluded that "the accused has failed to demonstrate an absence of reasonable suspicion".
In considering whether exceptional circumstances justifying an accused's provisional release exist, the Trial Chamber will also consider his or her alleged role in the crime or crimes. "As a general principle, the greater the accused's role (. . .), the more difficult it will be to prove his entitlement to release."
The Chamber found that "[i]n light of the role which the accused is charged with having in these crimes, this element does not support a finding of exceptional circumstances sufficient to justify the release of the accused".
The Trial Chamber will also consider the duration of an accused's detention. "Pre-trial detention cannot extend beyond a reasonable period of time." However, in determining what is reasonable, the Chamber will look at each case on its merits. It concluded that in the case of Delalic, "the Trial Chamber does not consider a detention period of four months to constitute an exceptional circumstance (. . .)". It added that "in relation to the additional arguments proffered by the Defence, such as the accused's responsibilities towards his family and business, the Trial Chamber does not consider these to be exceptional".
Risk of Flight
Regarding the second substantive criterion, the Trial Chamber stated that "[d]espite the evidence submitted by the Defence, (. . .) [it] is not satisfied that if released the accused will appear for trial". While acknowledging the sincerity of the pledge by Bosnia and Herzegovina to ensure the availability of the accused, the Chamber noted that "the difficulties in actually implementing this guarantee are (. . .) overwhelming".
Danger to Victims and Witnesses
Noting that a great deal of hostility exists between the accused and various victims and witnesses, the Trial Chamber stated that although it "is not convinced that the accused would prove a danger to any such victim or witness or other person, it is not necessarily satisfied that he would not". In any case, "the failure of the Defence to prove exceptional circumstances and no risk of flight relieves the Trial Chamber of the obligation to make a final determination on this issue".
International Criminal Tribunal for the former Yugoslavia
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