Case No. IT-02-59-PT

Before:
Judge Wolfgang Schomburg, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Carmel Agius

Registrar:
Mr. Hans Holthuis

Decision of:
15 April 2002

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Nicholas Koumjian
Ms. Sureta Chana

Counsel for the Accused:

Mr. Vojislav M. Dimitrijevic

I. INTRODUCTION
A. Procedural history
1. Trial Chamber II 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 seised of a motion entitled “Motion for Provisional Release of Darko Mrdja” (“Motion”), filed by the Defence for Darko Mrdja (“Defence”) on 14 March 2003 in which the accused Mrdja seeks to be provisionally released to his family home in Prijedor in the Republika Srpska. Already by letter of 26 November, filed on 29 November 2002, the Government of Republika Srpska, Bosnia and Herzegovina, submitted guarantees relating to the request for provisional release of the accused Mrdja to the Tribunal.

2. The Office of the Prosecutor (“Prosecution”) filed its partly confidential “Prosecution Response to Motion for Provisional Release” (“Response”) on 25 March 2003, requesting that the Trial Chamber deny Mr. Mrdja’s application for provisional release.

3. Neither of the parties requested an oral hearing on the present Motion.

4. The accused Darko Mrdja is charged with extermination, murder and inhumane acts, as a crime against humanity and a violation of the laws or customs of war, in relation to the killing of approximately 200 non-Serb men on a road over Vlasic Mountain in August 1992. He was arrested on 13 June 2002 and entered an initial appearance on 17 June 2002, at which time he pleaded not guilty to all the charges against him.
   B. Arguments of the parties
   1. Arguments of the Defence

5. The Defence argues in the first place that, although it is aware of the seriousness of the offences, the accused is not charged on the basis of command responsibility under Article 7 (3) of the Statute, but under Article 7 (1), thus making the case against the accused a less complicated one.

6. The Defence submits that the accused was not aware of the existence of the indictment against him, prior to his arrest, and therefore had no opportunity to surrender voluntarily to the Tribunal.

7. The Defence refers to the guarantees provided by the authorities from the Republika Srpska and argues that, in addition to such guarantees, there is a strong presence of the international community in the Republika Srpska. The Defence further contends that the accused does not have any political influence in the Republika Srpska. All in all, this leads the Defence to the conclusion that the guarantees provided by the authorities from the Republik Srpska “are more credible than in most other cases” and that it “is very unlikely that competent authorities in Republika Srpska will not comply with taken responsibility”.

8. The Defence also refers to personal circumstances of the accused which would support his commitment to comply with his obligations, if provisionally released . In the first place, it is argued that his family is faced with a difficult financial situation due to the fact that the accused is in pre-trial detention. In case of a provisional release, he would therefore not be in a material situation to escape from Prijedor. And in the second place, his nearly two year old son is suffering from a serious disease which requires intensive health care and health expenses.

9. The Defence further argues that the accused would not pose any danger to witnesses and victims. The survivors of the crime for which he is charged are publicly known . He has never tried to get in contact with them. And all potential witnesses, as far as their names have been disclosed to the Defence, are according to the Defence all living outside Prijedor municipality and Bosnia and Herzegovina.

10. The Defence in addition argues that no date has yet been fixed for the trial to start and that in light of the relevant international human rights provisions , pre-trial detention should be kept to a minimum.

11. According to the Defence, the accused will agree to any conditions the Trial Chamber might consider necessary for the provisional release. Moreover, the accused is willing to cooperate with the Prosecution “under conditions that will be agreed ”.

12. Lastly, the Defence submits that the presence of the accused in Prijedor would permit a more effective preparation of the defence case.
    2. Arguments of the Prosecution

13. The Prosecution submits that the accused bears the burden of establishing that , if released he (i) will appear for trial and (ii) will not pose a danger to any victim, witness or other person. It further submits that even where the Defence has discharged its burden in this regard, under Rule 65 of the Rules the Trial Chamber has the discretion to refuse to order provisional release.

14. According to the Prosecution, the Chamber cannot be satisfied that the accused will appear for trial. The accused is charged with very serious crimes. He was in command of a police unit which, according to the Prosecution’s case, perpetrated a massacre of approximately 200 men. If this case would be proven at trial, it will lead to a substantial sentence.

15. The Prosecution further submits that the Defence provides no evidence whatsoever for the alleged financial and family circumstances of the accused. The Motion does not provide any details about the financial situation of the accused or his family. There is no proof provided of any employment or income record of the accused prior to his arrest. Nor is there any official medical information supporting the alleged poor state of health of the accused’s son.

16. As to the reliability of the information relating to the accused, the Prosecution observes that during the initial appearance of the accused, he has provided wrong information about his home address. Investigations into the address he had provided revealed that that address related to that of his father and sister and that he himself had not been living at that address since he got married several years before. Since he had left, he had moved residence four times. The Prosecution concludes that these factors affect the stability of the accused’s personal circumstances and lead to fears for absconding if granted provisional release.

17. Finally, in relation to the question as to whether the accused will appear for trial, the Prosecution refers to the circumstances surrounding his arrest. According to the Prosecution, the statement of the accused that he had not been aware of the existence of an indictment against him, needs to be read in context with the fact that, when arrested by SFOR soldiers, the accused tried to resist this arrest and that a loaded pistol was found on him.

18. In relation to the second criterion, included in Rule 65 (B), i.e. that an accused will not pose a danger to any victim, witness or other person, the Prosecution expresses first of all its concern about the fact that the accused would, if released, return to Prijedor. As a former member of the Prijedor police, he can be considered a notorious figure, who has access to a vast amount of information. The return of the accused to Prijedor could have a deterring effect on victims and witnesses, who the Prosecution might want to call during this or other trials. The Prosecution is of the view that the accused would pose a grave danger to such persons and may attempt to intimidate witnesses in order to prevent them from testifying.

19. The Prosecution in addition considers that the guarantees provided by the authorities of the Republika Srpska are insufficient. In particular, it expresses serious concerns about the functioning of the police force, a factor of crucial importance in light of its fears that the accused may try to abscond if provisionally released.

20. All in all, the Prosecution concludes that, given the insufficient guarantees by the relevant authorities, the lack of an own police force of the Tribunal, the need for the Tribunal to primarily rely upon international bodies to effect arrests on its behalf, the gravity of the crimes with which the accused is charged and the lack of sufficient information about his personal circumstances, the preconditions for provisional release, as laid down in Rule 65 (B) are not met and the Motion should be denied.
    II. DISCUSSION
    A. Applicable law

21. Rule 65 of the Rules sets out the basis upon which a Trial Chamber may order provisional release of an accused. It provides in relevant part:

    (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.

    (C) The Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others.

    […]

22. Article 21(3) of the Statute of the Tribunal (“Statute”) requires that the accused “be presumed innocent until proved guilty”. This provision reflects international standards as enshrined in, inter alia, Article 14(2) of the International Covenant on Civil and Political Rights of 19 December 1966 (hereinafter “the ICCPR ”) and Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (hereinafter “the ECHR”),

23. Moreover, Article 9(3) of the ICCPR emphasises, inter alia, that: “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial”. Article 5(3) of the ECHR provides, inter alia, that: “[e]veryone arrested or detained […] shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial”,

24. These human rights instruments form part of public international law.

25. As regards the ICCPR, it should be taken into account that the following parts of the former Yugoslavia are now United Nations Member States: Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Slovenia and Serbia and Montenegro. Amongst 149 States, they are parties to the ICCPR. As a tribunal of the United Nations, the Tribunal is committed to the standards of the ICCPR, and the inhabitants of Member States of the United Nations enjoy the fundamental freedoms within the framework of a United Nations court.

26. As regards the ECHR, Croatia, Bosnia and Herzegovina,¹ Slovenia, the former Yugoslav Republic of Macedonia and Serbia and Montenegro² are Member States of the Council of Europe. The Council of Europe represents, at present, 45 pan-European countries. Apart from Serbia and Montenegro, who recently ³ signed the ECHR, all Member States have ratified the Convention.⁴

27. The Tribunal is entrusted with bringing justice to the former Yugoslavia. First and foremost, this means justice for the victims, their relatives and the innocent. Justice, however, also means respect for the alleged offenders’ fundamental rights. Therefore, no distinction can be drawn between persons facing criminal procedures in their home country or on an international level. Additionally, a distinction cannot be drawn between the inhabitants of States on the territory of the former Yugoslavia, regardless of whether they are Member States of the Council of Europe.

28. Rule 65 must therefore be read in the light of the ICCPR and ECHR and the relevant jurisprudence.

29. The application of the aforementioned principles stipulates that, as regards prosecution before an international court, de jure pre-trial detention should be the exception and not the rule. Unlike national courts the Tribunal does not have its own coercive power to enforce its decisions, and for this reason pre-trial detention seems de facto to be rather the rule at the Tribunal. Additionally , one must take into account the fact that the full name of the Tribunal mentions “serious” crimes only. Nevertheless, leaving the aforementioned human rights unchanged but applying them specifically for the purposes of an international criminal court , Rule 65 of the Rules allows for provisional release. Any system of mandatory detention on remand is per se incompatible with Article 5(3) of the Convention .⁵ In view of this, the Trial Chamber must interpret Rule 65 of the Rules not in abstracto but with regard to the factual basis of the single case and with respect to the concrete situation of the individual applicant.

30. Pursuant to Rule 65(B) of the Rules, a Trial Chamber may order the provisional release of an accused “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 .”

31. When interpreting Rule 65, the general principle of proportionality must be respected. A measure in public international law is proportional only when (1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target (proportionality in its narrowest sense). Procedural measures should never be capricious or excessive. If it is sufficient to use a more lenient measure, that measure must be applied.
    B. Application of the law to the facts

32. The Trial Chamber will first inquire into the question whether the accused, if released, will appear for trial.

33. In considering this criterion, the following considerations, recently set out in the Ademi case, should be recalled:

    First, the Tribunal lacks its own means to execute a warrant of arrest, or to re-arrest an accused who has been provisionally released. It must also rely on the cooperation of States for the surveillance of accused who have been released. This calls for a more cautious approach in assessing the risk that an accused may abscond . […] it goes without saying that prior voluntary surrender of an accused is not without significance in the assessment of the risk that an accused may not appear for trial.⁶

34. In the present case, the Trial Chamber observes that the indictment against the accused was not publicly disclosed and that the accused, at the moment he was arrested on 13 June 2002 by SFOR, was not aware of the fact that an indictment had been issued against him. In his Motion, the accused indicates that he had therefore no opportunity to surrender voluntarily to the ICTY. He indicates furthermore that he fully recognizes the authority of the Tribunal. However, in its Response, the Prosecution makes it clear that, when he was arrested, he was carrying a loaded weapon and made an effort to resist his arrest. As far as the accused could have cooperated by immediately surrendering while arrested, the accused apparently chose to – unsuccessfully – try to resist his arrest. In the view of the Trial Chamber, this needs to be taken into account when assessing his request for provisional release.

35. In assessing whether an accused will appear for trial, the Trial Chamber also takes into account that the accused is charged with very serious crimes in relation to a massacre of which approximately 200 non-Serb men became victim. If the role of the accused could be proven by the Prosecutor, according to the charges laid down in the indictment, the accused may face a serious sentence. An accused that may face such a sentence could be attracted to attempt to subvert the proceedings by failing to present himself for trial. The Defence submits that the case against the accused is based on article 7 (1) and not on article 7 (3) of the Statute, thus making the present case a less complicated case compared with other cases in which provisional release has been granted. The Trial Chamber observes that the question as to whether a case is a more or less complicated one is not a relevant factor to be taken into account when deciding upon a request for provisional release. As far as this submission could be interpreted as meaning that a case based on article 7 (1) might be considered a less serious case than one based on article 7 (3), the submission fails as well. Whether an accused is considered criminally responsible under one of the modes of responsibility mentioned in article 7 (1) or one of those mentioned under article 7 (3), as such do not impact on the seriousness of the crimes for which the accused is charged.

36. Another aspect that needs to be taken into account is the guarantees provided by the government of the Republika Srpska in Bosnia and Herzegovina in support of this application for provisional release. As the Appeals Chamber has held, “as a matter of law and for the purposes of the Tribunal, an undertaking given by Republika Srpska qualifies for acceptance by the Trial Chamber, whether or not it is a sovereign State as defined in public international law”.⁷

37. The Defence itself acknowledges that the guarantees of the Republika Srpska have in the past been treated with caution. However. the Defence refers to the fact that on 26 October 2001, the Law on Co-operation of the Republika Srpska with the Tribunal entered into force. The Trial Chamber has to observe though that the adoption of this law in itself has not led to a recognizable change in the performance of the Republika Srpska and its obligations towards the Tribunal. As the Appeals Chamber recently made clear, “Republika Srspka has so far failed to arrest any persons indicted by the Tribunal, …”⁸ Also the Defence seems to appreciate this factor, as it tries to convince this Chamber of the relevance of the guarantees by referring to the fact that in the Republika Srpska the international community, and in particular the Office of the High Representative (OHR) and the Stabilisation Forces (SFOR) have a broad mandate, which includes the execution of arrest warrants. The Trial Chamber is not convinced. Against the performance, or rather lack of performance, of the Republika Srspka, the guarantees provided can at best only be given a very limited substantive relevance.

38. The Trial Chamber finds itself unable to attach great importance to the Defence’s comments on the accused’s material and personal circumstances. The Trial Chamber agrees in this respect with the Prosecution, that these comments are entirely unsubstantiated. A mere allegation that the accused’s family is faced with a difficult financial situation and that one of the two children needs medical attention does not convince this Chamber. Therefore, this Chamber is unable to follow the conclusion of the Defence that the accused, if provisionally released, would not be in a position to escape from the municipality of Prijedor. In this context, the Trial Chamber also expresses its serious concerns about the fact that the accused has been providing inaccurate information about his whereabouts prior to his arrest. The fact that the accused has apparently been in a position to change from residence a couple of times over the last few years, leads this Chamber to the conclusion that nothing would stop the accused, if provisionally released, to do the same again in the future .

39. Moreover, the Trial Chamber is not satisfied, in relation to the second criterion set out in Rule 65(B) that the accused, if released, “will not pose a danger to any victim, witness or other person”. Quite to the contrary. If the accused would be provisionally released, he would return to Prijedor, close to where the crime for which he is charged has taken place. The accused has been a former police officer . It can therefore not be excluded that the accused may have, apart from public information about the names of the survivors of this crime, easy access to information about the whereabouts of such survivors or other witnesses or persons. The fear of the Prosecution in this context that the provisional release might have a deterring effect on victims and witnesses seems justified. The Defence argument that the accused has never tried to get in touch with surviving victims of the crime fails to convince the Trial Chamber. It moreover seems to contradict his argument that, prior to his arrest, the accused was not aware of the indictment against him. If the accused would now be provisionally released, with knowledge about the charges against him , it can not be excluded that he would take a different approach towards surviving victims. The Trial Chamber is consequently not convinced that he will not pose a danger to any victim, witness or other person.

40. This being said, the Trial Chamber in addition considers it necessary to decide whether or not an ongoing detention pending trial is proportional in the narrowest sense.

41. The Chamber observes that the accused has until now been detained for just over ten months and that there is, as yet, no date set for trial. Evidently, the length of pre-trial detention is one of the factors that must be considered in any application for provisional release. As was held by Trial Chamber I in the Ademi case:

    This issue may need to be given particular attention in view of the provisions of Article 9(3) of the ICCPR and Article 5(3) of the ECHR. This is all the more true , since in the system in the Tribunal, unlike generally in jurisdictions, there is no formal procedure in place providing for periodic review of the necessity for continued pre-trial detention.⁹

42. There is no doubt that an accused before this Tribunal is “entitled to trial within a reasonable time or to release (Article 9(3), sentence 1, of the ICCPR¹⁰) ‘pending trial’” (Article 5(3) of the ECHR¹¹), a requirement which is closely linked to the reasonable time requirement under Article 6 of the ECHR. Whether a time limit is appropriate can be evaluated only in light of all the circumstances of a given case, such as the complexity of the case, speed of handling, conduct of the accused, conduct of the authorities, no unjustified inertia¹², and no lack of adequate budgetary appropriations for the administration of criminal justice.¹³

43. Here, the duration of Mr. Mrdja’s pre-trial detention to date has not yet exceeded those periods which the European Court of Human Rights or the Human Rights Committee has found to be reasonable for comparable cases of comparable weight in comparable circumstances. The Trial Chamber therefore concludes that the pre-trial detention of the accused is still proportional in its narrowest sense: this measure is suitable , necessary and its degree and scope remain in a reasonable relationship to the envisaged target.¹⁴
    III. DISPOSITION

44. For the foregoing reasons, this Trial Chamber denies Mr. Mrdja’s application for provisional release of 14 March 2002.

Done in English and French, the English version being authoritative.

_____________
Judge Wolfgang Schomburg

Dated this fifteenth day of April 2003, Presiding
At The Hague
The Netherlands

[Seal of the Tribunal]