Case No.IT-02-54-T


Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Decision of:
23 February 2006







Office of the Prosecutor

Ms. Carla Del Ponte
Mr. Geoffrey Nice

The Accused

Mr. Slobodan Milosevic

Court Assigned Counsel

Mr. Steven Kay
Ms. Gillian Higgins

Amicus Curiae

Prof. Timothy McCormack

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 (“Tribunal”), is seized of an “Assigned Counsel Request for Provisional Release Pursuant to Rule 65” (“Application ”), and hereby renders its decision thereon.

    Procedural History
  1. On 15 November 2005, pursuant to an oral order from the Trial Chamber,1 the Registry received and filed a set of reports by three physicians, including Dr. M.V. Shumilina, who had conducted medical examinations of the Accused Slobodan Milosevic (“Accused”) on 4 November 2005.2
  2. Following an oral request by the Accused for provisional release on 12 December 2005,3 the Assigned Counsel filed a “Request for Provisional Release pursuant to Rule 65” on 20 December 2005 (“Request ”), which was accompanied by three confidential attachments (Attachments A, B, and C, respectively), and in which they request that Trial Chamber grant the Accused provisional release for the purpose of medical treatment in a medical institution in Moscow.
  3. The Prosecution filed an Interim Response on 22 December 2005;4 on the same day, Assigned Counsel filed a First Addendum to the Request (“First Addendum”) with a confidential Attachment D.5
  4. On 11 January 2006, the Chamber issued a “Preliminary Order on Assigned Counsel Request for Provisional Release for the Accused” (“Preliminary Order”), instructing the Defence to submit any additional material, including the guarantees from the Russian Federation, within seven days of the date of the Preliminary Order.6
  5. A Second Addendum to the Request was filed on 18 January 2006 (“Second Addendum”),7 which included guarantees from the Russian Federation via the Embassy of the Russian Federation in the Kingdom of the Netherlands, and a personal undertaking from the Accused, labelled as confidential attachments E and F, respectively.8
  6. The Prosecution filed a “Notice of Intention to File Further Response to Assigned Counsel Request for Provisional Release” on 19 January 2006 (“Notice of Intention ”), which was followed by a “Further Interim Response to Assigned Counsel Request for Provisional Release”, filed confidentially on 20 January 2006 (“Further Interim Response”).
  7. After these submissions were received, certain matters relating to the Accused’s medical treatment in the United Nations Detention Unit were brought to the attention of the Trial Chamber. As these matters were arguably relevant to the basis for the Request, the Chamber considered that its consideration of the Request should be deferred until it was fully informed on these matters.9 Although certain allegations have been made during this period, the Trial Chamber has made no conclusions that are adverse to the Accused on the basis of the information received.
  8. The Trial Chamber notes that Assigned Counsel did not seek leave, pursuant to Rule 126 bis of the Rules of Procedure and Evidence of the Tribunal (“Rules”), to reply to the Interim Response. The Chamber also notes that there is no provision in the Rules for the filing of an interim response or a further interim response.10 Nonetheless, because the Trial Chamber believes that its decision is aided by consideration of all the arguments raised and information provided by the parties, Assigned Counsel are granted leave to reply, and the Chamber will consider the Interim Response, Notice of Intention, and Further Interim Response as collectively constituting the timely filed Response by the Prosecution to the Request. The parties are reminded of their obligations to comply with the Rules.
  9. Applicable Law
  10. Rule 65, which governs provisional release, 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.

  11. This Trial Chamber has therefore repeatedly held that “Rule 65(B) … requires an applicant for provisional release to satisfy the Trial Chamber of two matters: ( 1) that he will appear for trial, and (2) that, if released, he will not pose a danger to any victim, witness or other person”.11 The burden of proof rests on the accused seeking provisional release, and the standard applied is that of the balance of probabilities.12
  12. The Tribunal’s jurisprudence on the factors to be considered when evaluating a request for provisional release was reviewed in this Chamber’s decisions granting release to the Accused Stanisic and Simatovic,13 and in the Appeals Chamber’s decisions upholding those grants of provisional release.14 In sum, though a Trial Chamber is not obliged to consider all possible factors and must take the particular circumstances of each case into account,15 certain factors have been highlighted as especially important, including whether the Accused is charged with serious criminal offences; and whether, if convicted, he is likely to face a long prison term. The Trial Chamber considers that, in the context of a request for provisional release during the course of a trial, specific attention must also be paid to the reasons for which provisional release has been sought.
  13. Discussion

  14. The Trial Chamber has considered the arguments of the parties, and will neither reproduce nor summarise them here. The Chamber will, however, refer to the parties’ submissions where its discussion of the issues and the reasons for its decision is aided by such reference.
  15. As Assigned Counsel have emphasised in the Second Addendum, “The request for provisional release occurs in order to ensure that the Accused receives necessary and appropriate [medical] treatment, and for no other reason.”16
  16. The basis for the application for provisional release is clearly stated in the Request :

    The Assigned Counsel request the conditional and limited provisional release of the Accused pursuant to Rule 65 of the Rules of Procedure and Evidence. This application is made during the course of the Accused’s trial, which commenced on 12 February 2002 and is due to continue until at least the middle of 2006.

    The reason for this application is to enable the Accused to be admitted for medical treatment for a defined period at the specialist Bakoulev Scientific Center for Cardiovascular Surgery in Moscow, a hospital of international renown.[…] Mr. Milosevic would be a patient of Dr. L. A. Bockeria who is the Head and Chairman of the Bakoulev Center and an academician of the Russian Academy of Medical Sciences.17

  17. In the Interim Response, the Prosecution argues as follows:

    There is no evidence upon which findings may be made as to what the Accused’s medical problem is, what treatment it requires, why this treatment may not be provided in the Netherlands as opposed to Moscow, and what its outcome might be. There is no evidence to support a finding that the Accused requires medical treatment that cannot be provided in The Hague. If he wishes to be treated by specialists from Russia, then there may be no good reason why they may not treat him, alongside Dutch specialists, in The Hague.18

  18. Assigned Counsel’s Reply did not discuss this issue raised by the Prosecution, and there is little information, in either the various medical reports on the Accused’s condition or in the Request, on the issue of whether proper diagnosis and treatment of the Accused’s condition require him to seek medical care outside of the Netherlands. In the Request, Assigned Counsel assert that “[t]he Accused’s long-standing history of ill-health and recent cochleovestibular complications make it necessary for him to receive treatment at this specialist hospital”;19 and that “it is clear from a review of the recent medical reports that the Accused’s current condition was neither originally discovered, nor treated appropriately, by the Registry-approved doctors and consultants.”20 Last, they argue that “[a] request for the recommended treatment to be carried out at the specialised hospital in Moscow is neither exceptional nor disproportionate in circumstances where the Accused has previously benefited from medical examination and diagnosis by doctors from the Bakoulev Center”,21 and note that the Request “is based upon the recent conclusions of Dr Shumilina and Dr. Bockeria from the Bakoulev Center that there is a link between the current complications and uncorrected hypertension.”22
  19. The Trial Chamber notes, however, that neither Dr. Shumilina nor Dr. Bockeria states that the Bakoulev Center is the only possible location for appropriate diagnosis and treatment of the Accused’s condition. Rather, it is their preferred location because of its position and experience in the field. Moreover, Assigned Counsel have made no real attempt to demonstrate that the Accused’s medical needs cannot be met in the Netherlands. The Chamber considers that an application for provisional release on medical grounds cannot be granted unless such a showing is made.23 In this regard, the Trial Chamber accepts the submission of the Prosecution,24 that if the Accused wishes to be treated by specialists who are not from the Netherlands, such physicians may come here to treat him.25
  20. In any event, the Chamber notes that the Accused is currently in the latter stages of a very lengthy trial, in which he is charged with many serious crimes, and at the end of which, if convicted, he may face the possibility of life imprisonment. In these circumstances, and notwithstanding the guarantees of the Russian Federation and the personal undertaking of the Accused, the Trial Chamber is not satisfied that the first prong of the test has been met—that is, that it is more likely than not that the Accused, if released, would return for the continuation of his trial.
  21. Disposition
  22. For these reasons, and pursuant to Rules 54, 65, 126 bis, and 127 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), the Trial Chamber hereby unanimously ORDERS as follows:

    i. Assigned Counsel are GRANTED leave to reply to the Prosecution’s Response, as defined above in paragraph 8; and

    ii. The Request is DENIED.


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

Judge Patrick Robinson

Dated this twenty-third day of February 2006
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - Prosecutor v. Milosevic, Case No. IT-02-54-T, Transcript, T. 46481–46484 (15 November 2005). See especially ibid., T. 46482 (Accused notes that these three physicians were “professionals from Russia, France, and Serbia”).
2 - These reports were filed confidentially, but their existence and the fact that they were filed before the Trial Chamber is a matter of public record. See ibid. (discussion of procedural matters in open session).
3 - Milosevic, Case No. IT-02-54-T, Transcript, T. 47258–47259 (12 December 2005).
4 - Milosevic, Prosecution’s Interim Response to Assigned Counsel Request for Provisional Release, 22 December 2005 (“Interim Response”).
5 - Milosevic, First Addendum to Assigned Counsel Request for Provisional Release pursuant to Rule 65 with Confidential Attachment D, 22 December 2005 (“First Addendum” and “Attachment D”, respectively).
6 - Milosevic, Preliminary Order on Assigned Counsel Request for Provisional Release for the Accused, 11 January 2006 (“Preliminary Order”), p. 3.
7 - Milosevic, Second Addendum to Assigned Counsel Request for Provisional Release pursuant to Rule 65 with Confidential Attachments E and F and Reply to Prosecution’s Interim Response to Assigned Counsel Request for Provisional Release pursuant to Rule 65 with Confidential Attachments E and F, 22 December 2005 (“Second Addendum”, “Attachment E”, and “Attachment F” respectively).
8 - Although the attachments themselves are confidential, they are described in the Second Addendum, which was filed publicly. See Second Addendum, para. 5.
9 - See Milosevic, Order on Release of Medical Information, issued confidentially on 26 January 2006.
10 - See Rule 126 bis (providing that “[u]nless otherwise ordered by a Chamber either generally or in the particular case, a response, if any, to a motion filed by a party shall be filed within fourteen days of the filing of the motion.”) (emphasis added).
11 - Prosecutor v. Milutinovic, Sainovic, Ojdanic, Pavkovic, Lazarevic, Djordevic, Lukic, Case No. IT-05-87-PT, Decision on Sreten Lukic’s Provisional Release, 3 October 2005 (public redacted version), p. 3 (citing Prosecutor v. Milutinovic, Case No. IT-99-37-PT, “Decision on Second Application for Provisional Release”, 14 April 2005, para. 4; Prosecutor v. Ojdanic, Case No. IT-99-37-PT, “Decision on General Ojdanic’s Fourth Application for Provisional Release”, 14 April 2005, para. 6; Prosecutor v. Sainovic, Case No. IT-99-37-PT, “Decision on Third Defence Request for Provisional Release”, 14 April 2005, para. 5).
12 - See Prosecutor v. Prlic et al., Case No. IT-04-74-PT, 30 July 2004, Order on Provisional Release of Jadranko Prlic, para. 14; Prosecutor v. Stanisic, Case No. IT-03-69-PT, “Decision on Provisional Release”, 28 July 2004 (“StanisicTrial Chamber Decision”), para. 14 & n.15. But see Prosecutor v. Krajisnik and Plavsic, Case Nos. IT-00-39-PT and IT-00-39-40-PT, Decision on Momcilo Krajisnik’s Notice of Motion for Provisional Release, 8 October 2001, Dissenting Opinion of Judge Patrick Robinson, para. 30 (agreeing on the standard of proof, but arguing that the burden should rest on the Prosecution).
13 - See generally Stanisic Trial Chamber Decision, supra note 12, paras. 8–14; Prosecutor v. Simatovic, Case No. IT-03-69-PT, “Decision on Provisional Release”, 28 July 2004 (“Simatovic Trial Chamber Decision”), paras. 7–13.
14 - See generally Prosecutor v. Stanisic, Case No. IT-03-69-AR65.1, “Decision on Prosecution’s Appeal Against Decision Granting Provisional Release”, 3 December 2004 (“Stanisic Appeals Chamber Decision”), paras. 14, 18, 27, 37–39, 43; Prosecutor v. Simatovic, Case No. IT-03-69-AR65.2, “Decision on Prosecution’s Appeal Against Decision on Provisional Release”, 3 December 2004 (“Simatovic Appeals Chamber Decision”), paras. 9, 15, 25–27, 31–32.
15 - Stanisic Trial Chamber Decision, supra note 12, paras. 9–10.
16 - Second Addendum, para. 9. See also ibid., para. 11 (“The application is based solely on the grounds of the health of the Accused and his need for medical treatment.”).
17 - Request, paras. 1–2.
18 - Interim Response, para. 21.
19 - Request, para. 2.
20 - Ibid., para. 13. See also Second Addendum, para. 11 (“The application … arises due to the failure of the local doctors to identify and treat his condition.”).
21 - Request, para. 16.
22 - Ibid., para. 17.
23 - See, e.g., Prosecutor v. Strugar, Case No. IT-01-42-A, Decision on “Defence Motion: Request for Providing Medical Aid in the Republic of Montenegro in Detention Conditions”, 8 December 2005, pp. 3–4 (noting that, although “the fact that the Appellant needs a total hip prosthesis implantation is undisputed”, “the Appellant did not demonstrate that the preparation for, and the placement of a total hip prosthesis and the ensuing rehabilitation treatment cannot be adequately carried out in health institutions within [t]he Netherlands”, and denying the motion).
24 - See supra para. 15.
25 - See supra note 1 and accompanying text.