Orders on Motions for Provisional Release

20 February 2002
Trial Chamber I, Section A (Judges Liu [Presiding], El Mahdi and Orie)

Procedural Background

· On 14 and 18 December 2001 respectively, Rahim Ademi and Miodrag Jokic filed a Motion for Provisional Release pursuant to Rule 65 of the Rules of Procedure and Evidence1.

· On 19 and 21 December 2001, the Prosecution responded. It objected to the application of Rahim Ademi but not to the Motion of Miodrag Jokic provided certain conditions were met. The Host Country did not oppose the provisional release of both accused.

· On 21 December 2001, Miodrag Jokic filed a response to the Prosecutor stating that the Prosecution conditions had been satisfied.

· That same day, the Duty Judge issued the Decisions on the Defence Motions for Provisional Release2 in which he remitted the Motions to the Trial Chamber seized of the cases for a decision on the merits.

· On 31 January and 1 February 2002 the Defence counsel for the two accused, the Prosecution and the Representatives of the Governments of the Republics of Croatia and Serbia presented oral arguments at hearings on the Motions.

The Orders

The Trial Chamber granted the Motions and ordered that Rahim Ademi and Miodrag Jokic be provisionally released under certain terms and conditions.

The Reasoning

Interpretation of Rule 65(B) of the Rules

The Trial Chamber held that the removal of the "exceptional circumstances" requirement from Rule 65(B) of the Rules had not made detention the exception and release the rule3 or, despite amendment, resulted in detention remaining the rule and release the exception4. It also held that "the focus must be on the particular circumstances of each individual case"5 without considering that the eventual outcome "is either the rule or the exception." The Trial Chamber specified that "[i]ts task must rather be to weigh up and balance the factors presented to it in that case before reaching a decision" and that the unique circumstances of the Tribunal must "be considered in the context of the individual case and facts presented, in order for the correct balance to be struck." Consequently, it did not believe that "recourse to a so-called 'rule-exception' system provides it with assistance in reaching a decision." The Trial Chamber also held that the burden of proof that provisional should be ordered rests on the accused6. It added that "[t]his does not, however, exclude intervention by, for example, the Trial Chamber, should it […] require more information regarding […] a factor that should or may result in a change in the detention situation of the accused (either with regard to modification of the conditions of detention under Rule 64, or, in the context of an application for provisional release under Rule 65)." The Trial Chamber specified that it "may seek this information either by ordering a party to supply it or by obtaining the information itself."

It considered that continued detention is not prohibited "[n]or does it have the nature of a sanction." The Trial Chamber specified that "[i]ts purpose is to ensure the presence of the accused at trial, to preserve the integrity of victims and witnesses and to serve the public interest."

It also considered that "as a general rule, a decision to release an accused should be based on an assessment of whether public interest requirements, notwithstanding the presumption of innocence, outweigh the need to ensure, for an accused, respect for the right to liberty of person." The Trial Chamber must first examine whether the accused complied with the two express pre-conditions laid down in Rule 65(B), which are cumulative. Second, the Trial Chamber still retains "a discretion not to grant provisional release" even if it is satisfied that the requirements are met7. The Trial Chamber added that "[t]his applies even if the Prosecution does not object to the application for release." Consequently, it found that the requirements "should not be construed as intending to exhaustively list the reasons why release should be refused in a given case." The Trial Chamber held that "[t]here may be evidence of obstructive behaviour other than absconding or interfering with witnesses" which it finds necessary to take into account, e.g. "the destruction of documentary evidence; the effacement of traces of alleged crimes; and potential conspiracy with co-accused […] at large." In addition, the Trial Chamber specified that "factors such as the proximity of a prospective judgement date or start of the trial may weigh against a decision to release."8 Last, it considered that "[t]he public interest may also require the detention of the accused under certain circumstances, if there are serious reasons to believe that he or she would commit further serious offences."

Factors relevant to the decision-making process

The Trial Chamber found 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."9 It mentioned the following factors which "may be relevant in relation to the circumstances of individual cases", i.e. "completion of the Prosecution's investigation which may reduce the risk of potential destruction of documentary evidence; or a change in the health of the accused10 or immediate family members."

Material put forward by the Accused

The Trial Chamber emphasised that "lack of co-operation of an accused should not, as a rule, be taken into consideration as a factor" which could lead it "to deny an application for provisional release."11 It underscored that "[t]he alternative would easily result in infringement of the fundamental right of an accused to remain silent."12

The Trial Chamber reiterated that among the grounds Miodrag Jokic submitted in support of his application were the facts that (1) he had voluntarily surrendered to the Tribunal and that (2) his daughter was ill and would give evidence at a hearing if necessary. It accepted that these circumstances may be of some relevance in reaching a decision. However, the Trial Chamber emphasised that these circumstances alone would "not suffice in order for a decision to be taken to provisionally release an accused."

The Trial Chamber examined the material put forward by Miodrag Jokic and Rahim Ademi and found "it appropriate to order that the Accused should be provisionally released."

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1. "(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.
(D) Any decision rendered under this Rule by a Trial Chamber shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown. Subject to paragraph (F) below, applications for leave to appeal shall be filed within seven days of filing of the impugned decision. Where such decision is rendered orally, the application shall be filed within seven days of the oral decision, unless

(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which case, the time-limit shall run from filing of the written decision.

(E) 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.
(F) Where the Trial Chamber grants a stay of its decision to release an accused, the Prosecutor shall file his or her appeal not later than one day from the rendering of that decision.
(G) Where the Trial Chamber orders a stay of its decision to release the accused pending an appeal by the Prosecutor, the accused shall not be released until either:

(i) the time-limit for the filing of an application for leave to appeal by the Prosecutor has expired, and no such application is filed;
(ii) a bench of three Judges of the Appeals Chamber rejects the application for leave to appeal;
(iii) the Appeals Chamber dismisses the appeal; or
(iv) a bench of three Judges of the Appeals Chamber or the Appeals Chamber otherwise orders.

(H) If necessary, the Trial Chamber may issue a warrant of arrest to secure the presence of an accused who has been released or is for any other reason at liberty. The provisions of Section 2 of Part Five shall apply mutatis mutandis.
(I) Without prejudice to the provisions of Rule 107, the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that:

(i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be;
(ii) the appellant, if released, will not pose a danger to any victim, witness or other person, and
(iii) special circumstances exist warranting such release.

The provisions of paragraphs (C) and (H) shall apply mutatis mutandis."
2. Summarised in Judicial Supplement No. 30.
3. See The Prosecutor v. Momcilo Krajisnik & Biljana Plavsic ("Bosnia and Herzegovina"), Case No. IT-00-39 & 40-PT, Trial Chamber III, Decision on Momcilo Krajisnik's Notice of Motion for Provisional Release, 8 October 2001 (hereinafter the "Krajisnik Decision"), Dissenting Opinion of Judge Patrick Robinson, paras. 16, 21 and 22; The Prosecutor v. Enver Hadzihasanovic et al. ("Central Bosnia"), Case No. IT-01-47-PT, Trial Chamber II, Decisions granting Provisional Release to Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, 19 December 2001 (hereinafter the "Hadzihasanovic, Alagic and Kubura Decisions", summarised in Judicial Supplement No. 30), paras. 7.
4. See The Prosecutor v. Radoslav Brdjanin & Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Radoslav Brdjanin for Provisional Release, 25 July 2000 (hereinafter the "Brdjanin Decision", summarised in Judicial Supplement No. 18), para. 12; Decision on Motion by Momir Talic for Provisional Release, 28 March 2001; The Prosecutor v. Miroslav Kvocka et al. ("Omarska, Keraterm and Trnopolje Camps"), Case No. IT-98-30-PT, Trial Chamber I, Decision on Motion for Provisional Release of Miroslav Kvocka, 2 February 2000; Krajisnik Decision, para. 12.
5. See The Prosecutor v. Blagoje Simic et al. ("Bosanski Samac"), Case No. IT-95-9-PT, Trial Chamber III, Decision on Simo Zaric's and Miroslav Tadic's Applications for Provisional Release, 4 April 2000 (hereinafter the "Zaric and Tadic Decisions", summarised in Judicial Supplement No. 14).
6. See the Brdjanin Decision, para. 13. See also The Prosecutor v. Momcilo Krajisnik & Biljana Plavsic ("Bosnia and Herzegovina"), Case No. IT-00-39 & 40-AR73.2, Appeals Chamber, Decision on Interlocutory Appeal by Momcilo Krajisnik, 26 February 2002 (summarised in this issue of the Judicial Supplement), para. 22.
In the opposite sense, see the Dissenting Opinion of Judge Patrick Robinson in the Krajisnik Decision, paras. 11, 16, 18 and 44.
7. See the Brdjanin Decision, para. 22.
8. Ibidem, para. 24; Zaric and Tadic Decisions.
9. See the Zaric and Tadic Decisions; The Prosecutor v. Blagoje Simic et al. ("Bosanski Samac"), Case No. IT-95-9-PT, Trial Chamber III, Decision on Milan Simic's Application for Provisional Release, 29 May 2000; Hadzihasanovic, Alagic and Kubura Decisions, paras. 14.
10. See The Prosecutor v. Dorde Djukic, Case No. IT-96-20-PT, Trial Chamber I, Decision rejecting the Application to Withdraw the Indictment and Order for Provisional Release, 24 April 1996, in which the Trial Chamber considered that, on the basis both of the report dated 12 April 1996 from Dr. Th. J. de Man, Inspector of the Dutch Penitentiary Services, designated as an expert by the decision of the Trial Chamber of 25 March 1996 and the closed deliberations at the hearing of 22 April 1996, the Tribunal had verified the extreme gravity of the medical condition of General Djukic of which his Defence counsel stated he was aware. The Trial Chamber found that General Djukic was suffering from an incurable illness which, in the opinion of the medical experts, was "in its terminal phase" and that the critical medical condition of the accused required "urgent and appropriate measures" (pages 2 and 3). It concluded that the extreme gravity of his medical condition was "not compatible with any form of detention and that the palliative care which his condition" required, or would require, justified a different environment" (page 4); The Prosecutor v. Milan Simic ("Bosanski Samac"), Case No. IT-95-9-PT, Trial Chamber I, Decision on Provisional Release of the Accused, 26 March 1998, in which the Trial Chamber noted that "the medical documents submitted in support of the Motion show that the accused who is hemiplegic and suffering from serious medical problems requires intensive daily care dispensed by a qualified medical team"; The Prosecutor v. Pavle Strugar et al. ("Dubrovnik"), Case No. IT-01-42-PT, Trial Chamber I, Order on the Provisional Release of the Accused Pavle Strugar, 30 November 2001, in which the Trial Chamber was "satisfied that the accused, in particular due to […] his serious medical problems […] is not likely to pose a danger to any victim, witness or other person" (page 4).
11. See the Dissenting Opinion of Judge Patrick Robinson in the Krajisnik Decision, para. 39.
12. See the Hadzihasanovic Decision, para. 15.