"Decisions on Simo Zaric's and Miroslav Tadic's applications for provisional release"

4 April 2000
Trial Chamber III (Judges Robinson [Presiding], Hunt and Bennouna)

Procedural Background

On 19 January 1999, Simo Zaric and Miroslav Tadic presented to Trial Chamber III their respective Requests for Provisional Release from detention to which the Office of the Prosecutor responded on 28 January 1999.

On 15 February 1999, Trial Chamber III issued two Decisions denying the Accused’s Motions which Simo Zaric and Miroslav Tadic appealed.

The two Accused filed an Addendum on 18 February 1999 in which the Defence reserved the right to present an oral argument on their applications.

By the Decisions dated 28 July 1999, the Appeals Chamber vacated the Trial Chamber’s Decisions denying Simo Zaric’s and Miroslav Tadic’s applications for provisional release on the grounds that the Decisions had been issued solely on the basis of written submissions. It then directed the Trial Chamber to hold an oral hearing on the applications.

Trial Chamber III issued a Scheduling Order on 22 September 1999 granting the two Accused an oral hearing on their applications.

The Prosecution presented a Brief in Opposition to Provisional Release dated 30 November 1999 and an Addendum dated 1 December 1999 in which, pursuant to Sub-rule 65(E) of the Rules of Procedure and Evidence1, it applied for a prospective stay of any decision granting the two Accused’s motions.

On 7 December 1999, Simo Zaric and Miroslav Tadic responded to the briefs and challenged the Prosecution’s application. The two Accused filed an Addendum to the Response to the Prosecution’s Brief on 8 December 1999.

Trial Chamber III issued an Order on 29 February 2000 requiring the Defence to provide undertakings and guarantees in writing from Simo Zaric and Miroslav Tadic.

The Defence filed a submission in response on 13 March 2000 in which the two Accused provided guarantees from the Government of the Republika Srpska, the local police in Bosanski Samac and themselves, and further provided a valid open-dated air ticket on Yugoslav Airlines from Schiphol airport to Banja Luka.

The Prosecution presented a Motion for Dismissal of the Accused Tadic’s and Zaric’s Requests for Provisional Release on 14 March 2000 on the grounds that the Defence guarantees do not comply with the Trial Chamber’s Order of 29 February 2000 and are not legally valid according to the Constitution of Bosnia and Herzegovina.

The Defence responded to the Prosecution’s Motion for Dismissal on 17 March 2000 objecting to both arguments.

The Reasoning

Trial Chamber III considered that while Sub-rule 65(B) of the Rules of Procedure and Evidence, as amended2, no longer requires an accused to demonstrate exceptional circumstances before release may be ordered3, the amendment does not affect the remaining requirements under that provision.

The Trial Chamber consequently considered that a determination as to whether release is to be granted must be made "in the light of the particular circumstances of each case" and may be granted only 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"4.

Trial Chamber III took into account the fact that Simo Zaric and Miroslav Tadic voluntarily surrendered to the custody of the International Tribunal. It also deemed that the two accused had provided, both on their behalf and through the Government of the Republika Srpska, the guarantees required and that the Government of the Republika Srpska is competent to issue such guarantees. Trial Chamber III thus declared it was satisfied that, if released, Simo Zaric and Miroslav Tadic would appear for trial. It also considered that they would not pose a danger to victims, witnesses or other persons.

The Trial Chamber considered that both Accused had been held in custody awaiting trial for more than two years5 and that "there was no likelihood of an early date being fixed for the commencement of [their] trial".

The Decision

Trial Chamber III granted the motion and ordered the provisional release of Simo Zaric and Miroslav Tadic provided inter alia that they:

1. remain within the confines of the municipality of Bosanski Samac;

2. surrender their passports;

3. report each day to the local police;

4. consent to having the International Police Task Force (IPTF) check with the local police about their presence and to occasional, unannounced IPTF visits by the to the Accused;

5. have no contact with any other co-accused in the case;

6. have no contact whatsoever or in any way interfere with any persons who may testify at their trial;

7. discuss their case with no one other than their counsel;

8. assume responsibility for all transport expenses to and from Schiphol airport and Bosanski Samac;

9. comply strictly with any order of Trial Chamber III varying the terms of or terminating their provisional release6.

Trial Chamber III further ordered the release of Simo Zaric and Miroslav Tadic be stayed until 5 April 2000 as the Prosecution had filed an application for a prospective stay of any Decision granting the accused’s motions for provisional release.

On 5 April 2000, the Prosecution applied for leave to appeal the Decisions before a bench of three Judges of the Appeals Chamber. A bench of three Judges of the Appeals Chamber rejected the application for leave to appeal on 19 April 2000 (see the summary of this Decision in this Bulletin).

________________________________________
1. "The Prosecutor may apply for a stay of a decision by the Trial Chamber to release an accused on the basis that the Prosecutor intends to appeal the decision, and shall make such an application at the time of filing his or her response to the initial application for provisional release by the accused".
2. Unamended Sub-rule 65(B) of the Rules of Procedure and Evidence read : "Release may be ordered by a Trial Chamber only in exceptional circumstances, after hearing the host country 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". This Rule was amended at the twenty-first plenary session of the Judges of the International Tribunal (15 – 17 November 1999), which removed the "exceptional circumstances" requirement. It now reads : "Release may be ordered by a Trial Chamber only after hearing the host country 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".
3. The requirement that "exceptional circumstances" be shown in order for provisional release, which "must be seen as emanating from or as the corollary of the principle of the presumption of innocence" (The Prosecutor v. Aleksovski, Decision denying a Request for Provisional Release, 23 January 1998), to be ordered means that detention was the rule and provisional release the exception. See The Prosecutor v. Blaskic, Decision rejecting a Request for Provisional Release, 25 April 1996.
4. See The Prosecutor v. Miroslav Kvocka et. al., Decision on Motion for Provisional Release of Miroslav Kvocka, Case No. IT-98-30-PT, 2 February 2000 holding that the effect of the amendment is not to establish release as the norm and detention as the exception, and that a determination as to whether release is to be granted must be made in light of the particular circumstances of each case, and only if the Trial Chamber is satisfied that the accused "will appear for trial and, if released, will not pose a anger to any victim, witness or other person".
5. Miroslav Tadic and Simo Zaric were respectively admitted to the United Nations Detention Unit on 15 and 25 February 2000.
6. These conditions are set forth in Trial Chamber III’s Order of 29 February 2000 and have been agreed to by the two Accused in the Defence Submission Regarding the Trial Chamber’s Order of 29 February 2000 in the Matter of Provisional Release, Prosecutor v. Simic et al., Case No. IT-95-9-PT, 13 March 2000.