Case No.: IT-04-83-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding

Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
6 May 2005

PROSECUTOR

v.

RASIM DELIC

_____________________________________________________________________

DECISION ON DEFENCE REQUEST FOR PROVISIONAL RELEASE

_____________________________________________________________________

The Office of the Prosecutor

Mr. Daryl Mundis

Counsel for the Accused

Mr. Stéphane Bourgon, Duty/Temporary Counsel

 

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 the “Motion Seeking the Provisional Release of Rasim Delic Until the Beginning of the Trial Phase of the Proceedings”, filed confidentially and partly ex parte on 1 April 2005 (“Motion”) by the Defence of Rasim Delic (“Accused”), in which the Defence asserts that the criteria established in Rule 65(B) of the Rules of Procedure and Evidence of the International Tribunal (“Rules ”) have been met for the Trial Chamber to order the provisional release of the Accused until the beginning of trial proceedings,

NOTING that, in support of its assertion, the Defence argues, inter alia , that the following factors militate in favour of his provisional release: (i) the voluntary surrender of the Accused; (ii) the cooperation of the Accused with the Office of the Prosecutor (“Prosecution”); (iii) the personal guarantee of the Accused dated 29 March 2005; (iv) the guarantee of the Government of the Federation of Bosnia and Herzegovina dated 3 March 2005; and (v) the remote distance between the Accused and the victims of the alleged crimes in the indictment against the Accused,

NOTING the “Prosecution Response to the Accused Rasim Delic’s Motion for Provisional Release”, filed by the Prosecution on 14 April 2005 (“Response”), in which the Prosecution opposed the Motion in light of “(a) the senior position of the Accused; (b) the period of time that is likely to elapse prior to trial; and (c) the serious nature of the charges faced by the Accused, with the likelihood of a substantial period of confinement upon conviction”, and noted that the “Accused has not provided any co-operation of value to the Prosecution”,1

NOTING the “Defence Reply to the Prosecution Response to the Accused Rasim Delic’s Motion for Provisional Release”, filed confidentially on 18 April 2005, without leave,

CONSIDERING that Rule 65(B) of the Rules provides:

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 that the Registry provided a certified copy of the Motion to the relevant authorities in the Netherlands along with an invitation to present the host country’s comments on the Motion, that no response has since been received, and that the requirement of Rule 65(B) of the Rules that the host country be offered an opportunity to be heard has therefore been fulfilled,

CONSIDERING that, at the hearing in this matter held on 26 April 2005, the Trial Chamber heard oral submissions from Ms. Borjana Kristo, the Minister of Justice of the Federation of Bosnia and Herzegovina (“Minister of Justice”), as a representative of the Government of the Federation of Bosnia and Herzegovina,2

CONSIDERING that there are two prongs to the provisional release inquiry, which must both be satisfied before a Chamber may grant release pursuant to Rule 65(B) of the Rules: (1) will the Accused appear for trial and (2) if released, will he pose a danger to victims, witnesses, or others,

CONSIDERING that a Trial Chamber must identify all the factors that it has taken into account in reaching its decision, with particular attention paid to the circumstances of the case before it,3

CONSIDERING that this Chamber has previously considered the following factors as especially relevant to the provisional release inquiry:

  1. the Accused is charged with serious criminal offences;
  2. if convicted, he is likely to face a long prison term;
  3. circumstances of the Accused’s surrender;
  4. degree of co-operation given by the authorities of the State to which the Accused seeks to be released;
  5. guarantees offered by those authorities, and any personal guarantees offered by the Accused; in particular, the weight given to the governmental guarantees must be assessed in light of the position held by the Accused prior to his rendition to the Tribunal;
  6. likelihood that, in case of breach of the conditions of provisional release, the relevant authorities will re-arrest the Accused if he declines to surrender;
  7. the Accused’s degree of co-operation with the Prosecution; and
  8. any suggestion that the Accused has interfered with the administration of justice since the confirmation of the indictment against him,4

CONSIDERING that the burden of proof on the balance of probabilities is placed upon the Accused with respect to both prongs of the provisional release inquiry,5

CONSIDERING that, although the Accused is charged with serious criminal offences and faces a lengthy prison sentence if convicted, this Chamber has previously emphasised that “the gravity of the charges cannot by itself serve to justify long periods of detention on remand”, an approach which has been upheld by the Appeals Chamber,6

CONSIDERING that the Accused surrendered immediately after being made aware of the indictment against him, which was confirmed on 16 February 2005, and that he was transferred to the International Tribunal on 28 February 2005,7

CONSIDERING the personal guarantee of the Accused dated 29 March 2005, in which the Accused submitted that he shall (i) “respond at any time to the Hague Tribunal”; and (ii) “obey all the procedure presented” to him, “including avoidance of any contact whatsoever with the persons engaged in the trial proceedings against ” him,8

CONSIDERING that the senior position held by an accused and the consequences thereof upon the weight of a governmental guarantee are significant factors that inform the Trial Chamber’s assessment in relation to the willingness of the State to arrest the Accused should he refuse to appear for trial,9

CONSIDERING that the Accused was the former Commander of the Army of Bosnia and Herzegovina, and that the Government of the Federation of Bosnia and Herzegovina has undertaken to adhere to any and all orders by the Trial Chamber so as to ensure the Accused’s presence at the Tribunal, and, in particular, has acknowledged its obligation to arrest the Accused should he violate any condition of provisional release,10

CONSIDERING that the Minister of Justice, on behalf of the Federation of Bosnia and Herzegovina, orally reiterated these guarantees at the hearing held on 26 April 2005,11

CONSIDERING that the Accused has co-operated with the Prosecution by participating in an interview prior to his indictment and that the lack of value of the information, by itself, “does not disprove cooperation by the Accused”,12

CONSIDERING that there is no indication that the Accused has interfered with the administration of justice since the confirmation of the indictment against him, for example by attempting to influence or intimidate victims or potential witnesses or that he will do so, and that there is no suggestion that he may pose a danger to others if released,

CONSIDERING that the Accused has satisfied the Chamber that, if released, he will return for trial and will not pose a danger to anyone,

CONSIDERING that the trial in this case is not yet scheduled and that the Prosecution submitted that it may not commence before the second half of 2007,13 thereby raising the possibility of an extended period of pretrial detention,

CONSIDERING that Rule 65(C) of the Rules provides that “[t]he 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”,

NOTING that the Defence requested that, if released, the Accused be “authorised to remain within the confines of the territory of the Federation of BiH” so that he may (i) use his apartment in Sarajevo for the purpose of continuing his research activity at the University of Sarajevo in order to complete his fourth book, while residing in Visoko with his family; (ii) visit his invalid brothers who are living in the municipalities of Brcko and Srebrenik; and (iii) “participate in the promotion tour which will be organised when his fourth book will be published”,14

NOTING that the Defence submitted that the distance between the apartment of the Accused in Sarajevo and his residence in Visoko is less than 25 kilometres,15

NOTING that Brcko and Srebrenik are adjacent municipalities in Bosnia and Herzegovina,

CONSIDERING that, although a standard condition of provisional release is that an accused shall remain within the confines of the municipality in which he resides, the circumstances of this Accused give rise to the need of an alternative condition so that the Accused is able to utilise his apartment in Sarajevo for purposes of his research, while residing in Visoko,

CONSIDERING that, in order for the Trial Chamber to assess whether the provisional release condition of the Accused can also include travel to Brcko and Srebrenik for the sole purpose of visiting his invalid brothers, further information is needed from the Federation of Bosnia and Herzegovina with respect to the travel arrangements for the Accused to Brcko and Srebrenik, and the guarantee that the conditions of provisional release will be enforced while the Accused is in Brcko and Srebrenik,

CONSIDERING HOWEVER that the request by the Accused to participate in the promotion of his book around the territory of the Federation of Bosnia and Herzegovina is not a valid basis to justify an exception to the conditions of his release,

PURSUANT TO Rule 65 of the Rules,

HEREBY GRANTS the Motion, and

ORDERS as follows:

  1. the Accused shall be transported to Schiphol airport in the Netherlands by the Dutch authorities;
  2. at Schiphol airport, the Accused shall be provisionally released into the custody of an official of the Government of the Federation of Bosnia and Herzegovina to be designated prior to release in accordance with operative paragraph 2(a) hereof, who shall accompany the Accused for the remainder of his travel to the Federation of Bosnia and Herzegovina and to his place of residence in Visoko;
  3. on his return, the Accused shall be accompanied by the same designated official of the Government of the Federation of Bosnia and Herzegovina, who shall deliver the Accused to the custody of the Dutch authorities at Schiphol airport at a date and time to be determined by Order of the Trial Chamber, and the Dutch authorities shall then transport the Accused back to the United Nations Detention Unit in The Hague;
  4. during the period of his provisional release, the Accused shall abide by the following conditions, and the authorities of the Federation of Bosnia and Herzegovina, including the local police, shall ensure compliance with such conditions:
    1. to provide (a) the address at which he will be staying in Visoko and (b) the address at which he will be continuing his research activity in Sarajevo to the Ministry of Justice and the Registrar of the International Tribunal before leaving the United Nations Detention Unit in The Hague;
    2. to remain within the confines of the municipalities of Visoko and Sarajevo;
    3. to surrender his passport to the Ministry of Justice;
    4. to report weekly to the police in Visoko at a local police station to be designated by the Ministry of Justice;
    5. to consent to having the Ministry of Justice check with the local police about his presence and to the making of occasional, unannounced visits upon the Accused by the Ministry of Justice or by a person designated by the Registrar of the International Tribunal;
    6. not to have any contact whatsoever or in any way interfere with any victim or potential witness or otherwise interfere in any way with the proceedings or the administration of justice;
    7. not to discuss his case with anyone, including the media, other than with his counsel ;
    8. to continue to cooperate with the International Tribunal;
    9. to comply strictly with any requirements of the authorities of the Federation of Bosnia and Herzegovina necessary to enable them to comply with their obligations under this Order and their guarantees;
    10. to return to the International Tribunal at such time and on such date as the Trial Chamber may order; and
    11. to comply strictly with any further Order of the Trial Chamber varying the terms of or terminating his provisional release.

REQUIRES the Government of the Federation of Bosnia and Herzegovina to assume responsibility as follows:

  1. by designating an official of the Government of Federation of Bosnia and Herzegovina into whose custody the Accused shall be provisionally released and who shall accompany the Accused from Schiphol airport to the Federation of Bosnia and Herzegovina and to his place of residence in Visoko, and notifying, as soon as practicable, the Trial Chamber and the Registrar of the International Tribunal of the name of the designated official;
  2. for the personal security and safety of the Accused while on provisional release ;
  3. for all expenses concerning transport of the Accused from Schiphol airport to his residence in Visoko and back;
  4. for all expenses concerning accommodation and security of the Accused while on provisional release;
  5. at the request of the Trial Chamber or the parties to facilitate all means of cooperation and communication between the parties and to ensure the confidentiality of any such communication;
  6. to submit a written report to the Trial Chamber every month as to the compliance of the Accused with the terms of this Order;
  7. to arrest and detain the Accused immediately if he should breach any of the conditions of this Order; and
  8. to report immediately to the Trial Chamber any breach of the conditions set out above.

REQUESTS the Government of the Federation of Bosnia and Herzegovina to provide information on the following matters:

  1. how the transfer of the Accused between Visoko/Sarajevo and Brcko/Srebrenik will be carried out, including the arrangements for an escort by a government authority ; and
  2. whether the Government of the Federation of Bosnia and Herzegovina can assume responsibility, in accordance with operative paragraph 2 hereof, during the period the Accused is in Brcko and Srebrenik.

INSTRUCTS the Registrar of the International Tribunal to consult with the Ministry of Justice in the Netherlands as to the practical arrangements for his release and to continue to detain the Accused at the United Nations Detention Unit in The Hague until such time as the Trial Chamber and the Registrar have been notified of the name of the designated official of the Government of the Federation of Bosnia and Herzegovina into whose custody the Accused is to be provisionally released.

REQUESTS the authorities of all States through whose territory the Accused will travel,

  1. to hold the Accused in custody for any time that he will spend in transit at the airport; and
  2. to arrest and detain the Accused pending his return to the United Nations Detention Unit in The Hague, should he attempt to escape.

 

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

_______________________
Judge Patrick Robinson
Presiding

Dated this sixth day of May 2005
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - Response, at paras 2 and 6 (footnote omitted).
2 - Hearing of 26 April 2005, T. 28-29.
3 - See Prosecutor v. Lazarevic, “Decision on Defence Request for Provisional Release”, Case No. IT-03-70-PT, 14 April 2005 (footnote omitted), at p. 2.
4 - Ibid (footnote omitted).
5 - Ibid (footnote omitted).
6 - Ibid (footnote omitted), at pp. 2-3.
7 - Motion, at paras 2-6, 20; T. 13.
8 - Motion, Annex A.
9 - See Prosecutor v. Milutinovic, “Decision on Second Application for Provisional Release”, Case No. IT-99-37-PT, 14 April 2005, at para. 19; Prosecutor v. Ojdanic, “Decision on General Ojdanic’s Fourth Application for Provisional Release”, Case No. IT-99-37-PT, 14 April 2005, at para. 22; Prosecutor v. Sainovic, “Decision on Third Defence Request for Provisional Release”, Case No. IT-99-37-PT, 14 April 2005, at para. 23.
10 - Motion, Annex B.
11 - Hearing of 26 April 2005, T. 29 (“On behalf of the federation government, I wish to express once again and emphasise our commitment to cooperating with the Tribunal, with this Trial Chamber in particular, and in expressing this commitment, I wish to put forward the clear standpoint of the government, that we are willing to fulfil all the conditions imposed upon us by this Chamber and the International Tribunal and we are willing to respond to any instructions. Should Rasim Delic be granted provisional release and permitted to live on the territory of the Federation of Bosnia and Herzegovina, I reiterate the guarantees of the government that he will appear for his trial, that he will not be a danger to any victim or witness, and that he will fulfil any other conditions imposed by this Chamber.”).
12 - Prosecutor v. Stanisic, “Decision on Provisional Release”, Case No. IT-03-69-PT, 28 July 2004, at para. 18.
13 - Hearing of 26 April 2005, T. 27.
14 - Motion, at paras 43-44; Hearing of 26 April 2005, T. 19.
15 - Hearing of 26 April 2005, T. 23.