Case No. IT-03-68-PT

IN THE TRIAL CHAMBER III

Before:
Judge Richard May, Presiding
Judge Patrick Robinson
Judge O-Gon Kwon

Registrar:
Mr. Hans Holthuis

Decision:
25 July 2003

PROSECUTOR
v.

NASER ORIC

______________________________

DECISION ON APPLICATION ON PROVISIONAL RELEASE

______________________________

The Office of the Prosecutor:

Mr. Ekkehard Withopf
Mr. Jayantha Jayasuriya
Mr. Daryl Mundis

Counsel for the Accused:

Ms. Vasvija Vidovic
Mr. John Jones

 

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 (“International Tribunal”),

BEING SEISED of a Confidential Application for Provisional Release filed by the defence of Naser Oric (respectively “Defence” and “Accused”) on 21 May 2003 (“Application”), of a Confidential Prosecution’s Response to the Defence Application for Provisional Release filed by the Office of the Prosecutor (“Prosecution”) on 3 June 2003 (“Response”), of a Confidential Reply to Prosecutor’s Response to the Defence Application for Provisional release filed by the Defence on 13 June 2003 (“Reply”), of a Confidential Submission of Additional Material in Relation to the Application for Provisional Release filed by the Prosecution on 30 June 2003 (“Prosecution Submission”), and of a Confidential Submission of Additional Material in Relation to the Application for Provisional Release filed by the Defence on 2 July 2003 (“ Defence Submission”),

NOTING that on 6 June 2003, the Dutch Ministry of Foreign Affairs’ Protocol Department informed the Registry of the International Tribunal that, with regard to the practical consequences of this provisional release, the Host Country had no objection to the provisional release of the Accused, provided that upon his provisional release, the Accused leave the Dutch territory,

NOTING the hearing on these applications (“Hearing”) held on 1 July 2003,

NOTING that in support of the Application, the Defence submits, inter alia, the following:

(i) Detention should be the exception, and the burden of proof should be on the Prosecution to demonstrate why the Accused should not enjoy his right to liberty pending trial,1

(ii) The Accused was wrongfully deprived of the opportunity of surrendering voluntarily to the Tribunal as, during his April 2001 interview with the Prosecution, he had made it clear that he would surrender in the event he should be indicted and that, as such, his situation should be treated on a par with that of a voluntary surrender,2

(iii) The Accused is not charged with genocide and/or crimes against humanity which, all things being equal, are more serious than war crimes, and that this relative seriousness of the crimes weighs in favour of granting provisional release,3

(iv) If released, the Accused will not interfere with witnesses, as (a) the statement of witness C002, that the Accused suggested to other persons that, should they be interviewed by the Tribunal, they should blame the dead for all the events of the war is false, and (b) the Accused would be bailed to Tuzla where Muslim victims of the Srebrenica genocide for the most part are refugeed; very few if any Prosecution witnesses are located,4

(v) The Accused is willing to offer the guarantees to ensure his surrender, with which the authorities of the FBH, are willing to ensure compliance,5 and

(vi) These FBH guarantees contain conditions similar to the Hadzihasanovic et al. case, which were considered to be sufficient to ensure the re-surrender of all three accused,6

NOTING that in its Response, the Prosecution agreed that the Accused should be considered as having surrendered voluntarily,7 and that in both its Response and Submission, the Prosecution objected to the Application, inter alia, on the following grounds:

(i) According to the jurisprudence of the Tribunal, the burden of the proof is on the accused to satisfy that the two pre-requisites set forth in Rule 65(B) are met and that, even if these are satisfied, the Trial Chamber still has the discretionary power to deny provisional release,8

(ii) The Accused’s personal guarantee to appear for Trial warrants little weight, as he has had the chance to review the evidence disclosed to him and, as shown by the demonstrations held during the April 2001 interview, he is considered a hero in his community, a fact which will place the FBH under considerable public pressure if it is called to arrest him, and put the Accused in a position analogous to a senior politician,9

(iii) The reliability of the guarantees of the FBH must be determined in relation to the circumstances of this case,10

(iv) During his rise to the rank of Brigadier, the Accused was able to muster immense power within the ABiH as well as within all circles of his community, including people inclined to engage in criminal activities, and many individuals who spoke against him or challenged his authority were killed or subjected to violent encounters, and belonged to his community,11 while the Accused has interfered with criminal investigations either by harming or making undue contacts with potential witnesses, including in the course of the investigations conducted by the Prosecution, leading potential witnesses for the military investigations conducted against the Accused to express fears about possible revenge by his associates if they testified in court, as evidenced, inter alia , in (a) the 23 September 1995 report entitled “Brigadier Naser Oric, Informations and Indications”, which is signed by Brigadier General Jasarevic and which contains the findings of an investigation conducted by the Military Security Service of the ABiH 2nd Corps (SVB);12 and (b) the 12 January 1996 report entitled “Summary of available information on committed murders, criminal activities, prostitution and other in the territory of Srebrenica in the period before the occupation of this ‘protected zone’”,13

(v) Not only has the Accused not denied his demand to Witness C002 that he should blame the dead if he is interviewed by the Prosecution, but also during an interview with the Prosecution, the Accused attempted to shift the responsibility to his dead comrades,14

(vi) Pre-trial detention is necessary to maintain public confidence in the integrity of criminal justice system,15

NOTING the arguments of the Defence in the Reply which include, inter alia, the following:

(i) “It is now commonly agreed that Rule 65 neither lays down detention as the rule nor as the exception; it is a matter that must be assessed case-by -case”; that “there is neither a burden on the Defence nor on the Prosecution ; the matter should be assessed case-by-case”, that “it is not necessary, to speak of burdens of proof at all in relation to Rule 65. it is simply a question of whether the Chamber is “satisfied” that the Accused will appear for Trial and not pose a danger to any victim, witness or other person”,16

(ii) The argument that the Accused “had the chance to review the evidence that has been disclosed to him”, would render the effect of voluntary surrender in all cases nugatory, since the application for provisional release comes always after disclosure; furthermore, after the interview, where the Accused was presented with a much broader range of accusations than are in the indictment, he left and returned to Bosnia, not taking that opportunity to flee,17

(iii) The argument that the FBH will be under public pressure is invalid, as the Accused calmed the protest during is April 2001 interview, while the Women of Srebrenica have given express assurance that they would not interfere in the re-surrender of the Accused,18

(iv) The FBH has consistently shown its total and unconditional support for, and co-operation with, the Tribunal since the immediate post war; it arrested, guaranteed and supervised the provisional release of Hadzihasanovic, Alagic and Kubura, whose arrests were unpopular,19

(v) With regard to the allegation that the Accused sought to blame crimes on the dead, the Prosecution has quoted very selectively from the Accused’s statements, which, taken as a whole, is not true at all, while the Accused does not know at all who Witness C002 is,20

(vi) The Trial Chamber granting provisional release in the Hadzihasanovic et al. case rejected the submission that “pre-trial detention is necessary to maintain public confidence in the integrity of the criminal justice system”,21

(vii) Jusuf Jasarevic’s 5 June 2003 Statement provides that in the course of the investigation, it became apparent that not only there were certain antagonism among certain persons in Srebrenica as well as a campaign of disinformation –of which the Accused was the target– but also the initial information and findings were contradictory, adding that, as the result of the above, the SVB did not initiate the criminal proceedings against the Accused,22

NOTING the submissions made at the Hearing, during which, inter alia,

(i) The Prosecution indicated that the 23 September 1995 and the 12 January 1996 reports are comprehensive and detailed official reports from Government authorities, as opposed to Jusuf Jasarevic’s 5 June 2003 Statement which is the “very vague, hardly connected […] statement of a private person”, and that the question is not whether the Accused was convicted for the crimes detailed in the reports, but rather whether based on the information available, he may pose a threat to others,23

(ii) The Defence pointed to the 12 January 1996 report’s translation mistakes, which alters the meaning of the report to the detriment of the Accused; adding that the point is not whether Jusuf Jasarevic is a private citizen, but that he signed the 23 September 1995 report,24

(iii) The FBH representative indicated that his Government was prepared to provide further guarantees; adding that, while the Government was not aware of the 23 September 1995 and the 12 January 1996 reports, this does not mean that the local police, following whose assessment the written guarantees were issued, did not have these reports,25

(iv) [confidential]

(v) [confidential]

NOTING Rule 65 which provides in the 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.

CONSIDERING the Prosecution’s concession that the Accused surrendered voluntarily,

CONSIDERING that, irrespective of their characterisation, all crimes charged before the Tribunal, including those in the present case, are serious by virtue of the Tribunal’s jurisdiction as set forth in Article 1 of the Statute of the Tribunal,26

CONSIDERING the submission of the Defence that essentially all that a Chamber needs to do in relation to Rule 65 is to be satisfied, on the basis of the evidence before it, that the accused will appear for trial and that he will not pose a threat to any victim, witness or other person,

CONSIDERING however that the Prosecution’s submission, in particular the 23 September 1995 and the 12 January 1996 reports, raise the question as to whether the Accused may pose a threat to any victim, witness or other person,

CONSIDERING that the Trial Chamber finds reliable the evidence brought by the Prosecution to support the submission that, if released, the Accused will pose a threat to victims, witnesses or other persons,

CONSIDERING that the Trial Chamber is not satisfied that the material brought to its attention in the Defence Submission and at the Hearing, in particular with regard to the 23 September 1995 and the 12 January 1996 reports, such as to persuade it not to accept the Prosecution’s submission,

CONSIDERING that, in these circumstances, the Trial Chamber is not satisfied that if released, the Accused would not pose a threat to any victim, witness or other person,

PURSUANT TO Rules 54 and 65 of the Rules of Procedure and Evidence of the International Tribunal,

HEREBY DISMISSES the Motion.

 

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

__________
Richard May
Presiding

Dated this twenty fifth day of July 2003
At The Hague
The Netherlands

[Seal of the Tribunal]

Footnote 1 - Application, paras. 3-6, referring to Prosecutor v. Hadzihasanovic et al, Decision Granting Provisional Release to Enver Hadzihasanovic, Decision Granting Provisional Release to Mehmet Alagic and Decision Granting Provisional Release to Amir Kubura, 19 December 2001, para. 7.
Footnote 2 - Application, paras. 13-17.
Footnote 3 - Ibid., paras. 20-21.
Footnote 4 - Ibid., para. 24.
Footnote 5 - Ibid., para. 26, and Annex F.
Footnote 6 - Application, para. 28.
Footnote 7 - Response, para. 5.
Footnote 8 - Ibid., para. 4.
Footnote 9 - Ibid., paras. 9-11, referring to Prosecutor v. Sainovic et al., Decision on Provisional Release, Case No. IT-99-37-AR65, 30 October 2002, paras. 7 and 9.
Footnote 10 - Response, para. 8, referring to Prosecutor v. Mrksic, Decision on Appeal against Refusal to Grant Provisional Release, Case No. IT-95-13/1-AR65, 8 October 2002, para. 9; Prosecutor v. Sainovic et al., Decision on provisional Release, Case No. IT-99-37-AR65, 30 October 2002, para. 7; and Hearing T. 37-38.
Footnote 11 - Response, paras. 12-13, and Attachment B, paras. 1, 4-5, and 7, and Attachment-C.
Footnote 12 - Response, para. 14, and Attachments B and D.
Footnote 13 - Prosecution Submission, Attachment 1-a.
Footnote 14 - Response, para. 17, and Annex F to the Application.
Footnote 15 - Response, para. 19, referring to Prosecutor v. Sainovic et al., Separate Opinion of Judge Shahabuddeen, Case No. IT-99-37-AR65, 30 October 2002, para. 17, in which The concerns expressed by Judge Shahabuddeen in his separate opinion in the Sainovic et al. Decision on Provisional Release, in which Judge Shahabuddeen cited approvingly a decision of the Canadian Supreme Court to the effect that Pre-trial detention is necessary to maintain public confidence in the integrity of criminal justice system, should be taken into consideration.
Footnote 16 - Reply, paras. 5-7, The Defence referred to the Ademi case, in which the Trial Chamber held that the removal of the requirement of exceptional circumstances “has neither made detention the exception and release the rule, nor resulted in the situation that despite the amendment, detention remains the rule and release the exception. On the contrary, this Trial Chamber believes that the focus must be on the particular circumstances of each individual case, without considering that the outcome it will reach is either the rule or the exception. Its task must rather be to weigh up and balance the factors presented to it in that case before reaching a decision”, see Prosecutor v. Rahim Ademi, Case No. IT-01-46-PT, Order on Motion for Provisional Release, 20 February 2002, para. 18.
Footnote 17 - Reply, paras. 9-10, referring to Annex 1.
Footnote 18 - Reply, paras. 11-12, referring to Annex 3; furthermore, the Defence argues that the Prosecution did not express such objections at any stage of the provisional release of General Alagic, a genuine “leadership figure”, when 15,000 persons went out to the streets, Reply, para. 14-15.
Footnote 19 - Reply, paras. 16-17.
Footnote 20 - Reply, para. 27, referring to Annex 12 and p. 1461 of Attachment F to the Response.
Footnote 21 - Reply, para. 8.
Footnote 22 - Reply, paras. 20-21, referring to Annex 6 to the Reply.
Footnote 23 - Hearing, T. 26-34, referring to Attachment B to the Response and Attachment 1-a to the Prosecution Submission.
Footnote 24 - Hearing T. 18 and 42.
Footnote 25 - Ibid., T. 23-25, 47-48.
Footnote 26 - According to the Appeals Chamber, “there is in law no distinction between the seriousness of a crime against humanity and that of a war crime” and “the authorised penalties are also the same, the level in any particular case being fixed by reference to the circumstances of the case”; see Prosecutor v. Dusko Tadic, Case No. IT-94-1-A and IT-94-1-Abis, Judgement in Sentencing Appeals, 26 January 2000, para. 69.