Case No. IT-95-9
THE PRESIDENT OF THE INTERNATIONAL TRIBUNAL
Before:
Judge Theodor Meron, President
Registrar:
Mr. Hans Holthuis
Order of:
21 January 2004
ORDER OF THE PRESIDENT ON THE APPLICATION FOR THE EARLY RELEASE OF SIMO ZARIC
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I, THEODOR MERON, President 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");
NOTING the Application for Early Release dated 18 November 2003 ("Application") filed by Simo Zaric ("Zaric");
NOTING that, on 17 October 2003, Trial Chamber II rendered its Judgement in Prosecutor v. Simic et al., No. IT-95-9 ("Judgement"), in which it sentenced Zaric to six (6) years imprisonment;
NOTING that, pursuant to Article 7 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 Tribunal, IT/146, 7 April 1999 ("Practice Direction"), the President of the International Tribunal determines, in consultation with the Sentencing Chamber and the Bureau, whether applications for early release should be granted;
CONSIDERING that, under the Judgement and Rule 101(C) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), which provides that the convicted person shall be given credit for time spent in custody pending surrender to the Tribunal or pending trial or appeal, Simo Zaric is entitled to credit for 1558 days served in custody prior to judgement, and will therefore have completed his sentence on 10 July 2005;
CONSIDERING that, under Article 28 of the Statute of the International Tribunal, Rule 123 of the Rules and Article 1 of the Practice Direction, when a convicted person becomes eligible for early release under the law of the State in which he is serving his sentence, the enforcing State shall, in accordance with its agreement with the International Tribunal on the enforcement of sentences, notify the International Tribunal accordingly;
CONSIDERING, however, that Zaric is not serving his sentence in one of the States signatory to the agreement with the International Tribunal on the enforcement of sentences ("Signatory State" or, for more than one Signatory State, "Signatory States"), but rather remains in detention at the United Nations Detention Unit ("UNDU");
CONSIDERING that the Practice Direction does not specify the early release procedure when a convicted person is serving his sentence at the UNDU in The Netherlands, which is not a Signatory State;
CONSIDERING that the conditions for eligibility regarding early release applications should be applied equally;
CONSIDERING that eligibility for early release in some Signatory States starts at two-thirds of the sentence served and, in some circumstances, even earlier, and that Zaric’s application is receivable because he has served over two-thirds of his sentence and is therefore eligible for early release;
NOTING the further letter from counsel for Zaric dated 18 November 2003 forwarding certain pension and medical information regarding Zaric and his family;
NOTING the Registry’s confidential memorandum of 18 December 2003 ("Registry’s Confidential Memorandum"), which forwards the information gathered by the Registry in accordance with Article 2 of the Practice Direction;
NOTING the 19 November 2003 report from Mr. Tim McFadden, Commanding Officer of the UNDU ("Detention Report"), in which he described Zaric’s behaviour in detention as good, respectful of the staff and management of the UNDU, and in compliance with the rules of detention and instructions of the guards, with one exception that was dealt with under the disciplinary procedure;
NOTING the 24 November 2003 medical report from Mr. Paul Falke, Medical Officer of the UNDU ("Medical Report"), reporting that Zaric is in good health;
NOTING the internal memorandum from the Office of the Prosecutor dated 10 December 2003 concerning Zaric’s cooperation ("Prosecutor’s Memorandum");
NOTING Zaric’s letter dated 18 December 2003, in which he acknowledged receipt of the Registry’s Confidential Memorandum, the Detention Report, the Medical Report, and the Prosecutor’s Memorandum, confirmed that he understood them in full, and stated that he had no comments regarding them, and further noting the letter of counsel for Zaric dated 18 December 2003 (together, "December Letters");
NOTING that the Registry has advised that no psychological or psychiatric reports have been submitted under Article 2(b) of the Practice Directive because Zaric is considered to be emotionally stable;
CONSIDERING Rule 125, incorporated by reference in Article 7 of the Practice Direction, which lists some of the elements to consider when examining an application for early release, including the gravity of the offence, demonstration of rehabilitation, any substantial cooperation of the prisoner with the Prosecutor, and treatment of similarly-situated prisoners, as well as further criteria enunciated in prior Orders pertaining to early release application;
CONSIDERING the gravity of the offences committed by Zaric, as detailed in the Judgement;
CONSIDERING that Zaric has expressed remorse for the suffering of victims, including to witnesses who testified at trial;
CONSIDERING Zaric’s resolve to be reintegrated into society, his good behaviour in detention, his attachment to his family, and his prominence in his community;
CONSIDERING the likelihood that Zaric will take an active role in his community upon release and contribute to reconciliation in his home country;
CONSIDERING that Zaric’s case is no less appropriate for a grant of early release than that of other prisoners previously granted early release by the President of the International Tribunal;
CONSIDERING Zaric’s Application, the Judgement, the Registry’s Confidential Memorandum, the Detention Report, the Medical Report, the Prosecutor’s Memorandum, and the December Letters;
CONSIDERING that, because the Trial Chamber that initially sentenced Zaric cannot be reconstituted, the consultation required by Article 7 of the Practice Direction was limited to the members of the Bureau;
HAVING CONSULTED the Members of the Bureau and considered their recommendation;
CONSIDERING that, in the particular circumstances of this case, further detention of Zaric is unnecessary, except for a brief period of time to permit the Registry and the authorities at the UNDU to arrange Zaric’s orderly release and departure from the Netherlands;
PURSUANT to Rules 124 and 125 of the Rules and Article 7 of the Practice Direction,
FOR THE FOREGOING REASONS,
GRANT Simo Zaric’s Application, effective 28 January 2004;
REQUEST the Registrar to inform the authorities at the United Nations Detention Unit of this Order.
Done in French and English, the English version being authoritative.
Done this 21st day of January 2004,
At The Hague,
The Netherlands.
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Theodor Meron
President of the International Tribunal
[Seal of the Tribunal]