Case No. IT-98-29-A
IN THE APPEALS CHAMBER
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Ndepele Mwachande Mumba
Judge Wolfgang Schomburg
Mr. Hans Holthuis
23 March 2005
DECISION ON DEFENCE REQUEST FOR PROVISIONAL RELEASE
OF STANISLAV GALIC
The Office of the Prosecutor:
Mr. Norman Farrell
Counsel for Stanislav Galic:
Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin
- The Appeals 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 seised
of the “Defence Request for Provisional Release of Stanislav
Galic” filed on 4 March 2005 (“Request”) by Stanislav Galic
(“Appellant”), in which the Appellant seeks provisional release
from 31 March 2005 to 5 April 20051
in order to attend the memorial service for his late sister,
Mrs Mirjana Grmusa, in Banja Luka, Republika Srpska. The Office
of the Prosecutor (“Prosecution”) filed its response on 9
March 2005.2 On 18 March 2005,
Mr Trivun Jovicic, Minister Counsellor and Republika Srpska
Liaison Officer, submitted guarantees and authorisation from
the Government of Republika Srpska.
- On 5 December 2003, a Trial Chamber sentenced the Appellant
to 20 years’ imprisonment.3 The
Appeals Chamber is currently seised of the Appellant’s and
Prosecution’s appeals against the Galic Trial Judgement.
B. Applicable Law
- Rule 65(I) of the Rules of Procedure and Evidence (“Rules”)4
(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,
(iii) special circumstances exist
warranting such release.
The provisions of paragraphs (C) and
(H) shall apply mutatis mutandis.5
The aforementioned Rules 65(C) and (H) provide, respectively,
(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
(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.7
- Rule 65 on provisional release was inspired by humane and
compassionate considerations together with concerns related
to the principle of proportionality in international law,
concerns which remain even if the applicant has been convicted
- The requirements mentioned in Rule 65(I) are cumulative.9
Whether an applicant should be granted provisional release
is to be determined on a balance of probabilities, and the
fact that an individual has already been sentenced is a matter
to be taken into account by the Appeals Chamber when balancing
- The Appeals Chamber will consider the seriousness of the
offences of which an appellant has been found guilty as it
is one of the factors it has to take into account when assessing
whether an appellant, if released, would return to detention.
The Appeals Chamber also notes that the more severe the sentence,
the greater the incentive to flee.11
However, these are not the sole factors that determine the
outcome of an application for provisional release.12
- The Appellant seeks provisional release from 31 March 2005
until 5 April 2005 13 in order
to attend the requiem, that is, the memorial service
for his late sister, which is to be held on the forty-day
anniversary of her death, which is 2 April 200514
in Banja Luka, Republika Srpska.
- The Appellant submits that all the pre-conditions provided
by Rule 65(I) for the granting of provisional release are
i. the death of his older sister, who was like a mother
to him, and with whom he had a special bond, constitutes
a “special circumstance” in terms of Rule 65(I).15
The Appellant submits that he and his sister were very close,
their parents having died more than 30 years ago.16
ii. the Appellant is ready to give a deposition to the
effect that after the expiration of the period determined
by the Appeals Chamber he will return to the United Nations
Detention Unit in the Hague (“UNDU”) voluntarily.17
iii. the Government of Republika Srpska will submit all
necessary guarantees that will ensure his return to the
UNDU. These guarantees will be submitted by the Liaison
Officer of Repubika Srpska.18
iv. the Appellant is ready to accept any order that the
Appeals Chamber may make in its decision on the Request.19
v. the Appellant states that if granted provisional release
in order to attend his sister’s requiem, he will
stay in Banja Luka, and that therefore he will not pose
any danger to any victim, witness or other person, as there
are no victims or witnesses from the trial in Banja Luka.20
He submits that, in any case, the Appellant is not a person
who would get in touch with victims, witnesses or other
persons who could be in danger and is prepared to undertake
vi. the Tribunal has already granted similar requests
for provisional release for the same reasons as those given
by the Appellant in the Request.22
- The Prosecution opposes the request for provisional release.
It “accepts that the death of the Appellant’s sister is a
personal situation of humanitarian and compassionate concern
that satisfies the additional requirement of ‘special circumstances’
set out in Rule 65(I)(iii)”,23
and that it has no information suggesting that the Appellant
will pose a danger to any victim, witness or other person
contrary to Rule 65(I)(ii),24
but submits that the Appellant has not shown that if released,
he will surrender to the UNDU at the conclusion of the fixed
period, as required by Rule 65(I)(i).25
- The Prosecution submits that there is a serious risk that
if released, even for a limited period under supervision,
the Appellant would abscond from custody.26
It submits that it forms this view of the Appellant’s risk
of flight based on a number of factors.
- The first of these is the fact that the Appellant did not
voluntarily surrender into the custody of the Tribunal.27
Secondly, the Prosecution argues that the documents seised
from the Appellant upon his arrest by the Multinational Stabilisation
Force (“SFOR”) on 20 December 1999 indicate that he was at
that time attempting to seek refuge in the Federal Republic
of Yugoslavia (“FRY”) in order to evade arrest.28
The Prosecution refers to a letter dated 16 September 1999
addressed to the Federal Minister of Defence of the FRY, in
which the Appellant “stated that he had learned that he was
‘on the list of accused for the so-called war crimes during
the war in BH’” and that he was therefore seeking to move
out of the territory of Republika Srpska and into Belgrade.29
The Prosecution submits that the Trial Chamber relied on this
letter in denying the Appellant provisional release pending
trial.30 The Prosecution further
submits that that the Appellant’s attempt to evade arrest
distinguishes the Appellant’s case from that of an appellant
who was recently granted temporary release to attend a memorial
service, but who had voluntarily surrendered to the Tribunal.31
- Thirdly, the Prosecution submits that the Appellant was
convicted of extremely serious offences for the role he played
in the siege of Sarajevo, as a result of which the Trial Chamber
sentenced him to twenty years’ imprisonment.32
The Prosecution submits that given the gravity of offences
for which the Appellant has been convicted and the severity
of sentence, the Appellant would have a strong incentive to
flee if provisionally released. It further argues that the
Appellant has served approximately five years of his sentence
and thus the remaining fifteen years of his sentence is still
considerable.33 According to
the Prosecution, the Trial Chamber that denied the Appellant
provisional release pending trial took into consideration
the gravity of the crimes with which he was charged and the
severe penalties which could be imposed after a finding of
guilt.34 The Prosecution submits
that the risk of flight is more pronounced after a guilty
verdict and sentence have been entered by the Trial Chamber,
especially where the sentence imposed is a lengthy one.35
- The Prosecution points out that at the time it filed its
Response, the Appellant had not put forward any state guarantees.36
The Prosecution states, however, that since it is not in a
position to comment on the specific merits of the guarantees
which may be filed by the Appellant, it reserves a right to
file a further response, if necessary, subsequent to the filing
of the government guarantees.37
Nevertheless, the Prosecution argues that, given the Appellant’s
demonstrated willingness to relocate in order to evade arrest,
any forthcoming guarantee of a single state cannot address
the question of what might happen if the Appellant were to
abscond from custody and move to a state that is unwilling
or unable to secure his arrest.38
- Alternatively, the Prosecution submits that if the Appeals
Chamber decides that the Appellant may be provisionally released,
strict conditions should be imposed to ensure the he is returned
to the custody of the Tribunal in a timely manner.39
The Prosecution considers that the heightened risk of flight
in this case requires more stringent supervisory conditions
than those imposed in the Simic or Krnojelac Decisions.40
The Prosecution further submits that, in that event, the period
of provisional release be strictly limited to the necessary
time to travel to Banja Luka, to attend the requiem,
and to return to The Hague, and that the period requested
by the Appellant is unjustified for those limited purposes.41
- The Appeals Chamber is satisfied that the memorial service
organised on the forty-day anniversary of the death of the
Appellant’s sister and scheduled to take place on 2 April
2005,42 constitutes a “special
circumstance” within the meaning of Rule 65(I)(iii).
- The Appeals Chamber notes that the Appellant was convicted
of crimes against humanity (murder and inhumane acts) pursuant
to Article 5 of the Tribunal’s Statute and of violations of
the laws or customs of war (acts of violence the primary purpose
of which is to spread terror among the civilian population,
as set forth in Article 51 of Additional Protocol I to the
Geneva Conventions of 1949) pursuant to Article 3 of the Statute.
He was sentenced to twenty years imprisonment.43
Although the Appellant has already been in detention for more
than five years,44 the remainder
of his sentence would still be considerable if his sentence
is confirmed in whole or in part. On the other hand, the Appeals
Chamber notes that the Appellant has exhibited exemplary behaviour
throughout the proceedings before the Tribunal.45
The fact that the Appellant is ready to accept any order given
by the Appeals Chamber on the conditions for his provisional
release supports the Appellant’s good faith.46
- The Appeals Chamber notes the guarantees of the Government
of Republika Srpska filed on 18 March 2005 in which the Government
of Republika Srpska undertakes to comply with the orders of
the Appeals Chamber and provides a number of guarantees relating
to the provisional release of the Appellant. The Appeals Chamber
considers that, in previous decisions, it relied successfully
on guarantees provided by the Government of Republika Srpska.47
- The Appeals Chamber also notes that, as submitted by the
Prosecution, the Appellant applied for and was previously
denied provisional release.48
The circumstances at the time, however, cannot be compared
with those at present. Notably, the Trial Chamber denied him
provisional release, inter alia, because the Government
of Republika Srpska had not provided any guarantees.49
In the present case, such guarantees have been provided and
special circumstances exist necessitating the Appellant’s
release for a fixed period. The Appeals Chamber reiterates
that the Tribunal is entrusted with bringing justice to the
former Yugoslavia, which means justice to the victims, as
well as respect for the convicted persons’ fundamental rights,
in particular, their right for private and family life.50
Accordingly, by granting provisional release to the Appellant
pending appeal when special circumstances exist and when the
criteria of Rule 65(I) are met, the Tribunal fulfils its obligation
to pursue justice for all parties involved.
- Considering all the circumstances of this case, the Appeals
Chamber is satisfied that, if released subject to specific
conditions, the Appellant will surrender into detention at
the end of the fixed period. In the opinion of the Appeals
Chamber, the fact that the Appellant was convicted at trial
necessitates a condition of constant supervision while on
release. Taking into account that an official of Republika
Srpska will be accompanying the Appellant at all times until
his return to The Hague and the guarantees provided by the
Government of Republika Srpska, the Appeals Chamber is also
satisfied that if released the Appellant will not pose a danger
to any victim, witness or other person.
- Therefore, the Appeals Chamber is satisfied that the requirements
are met to grant the Appellant’s request for provisional release.
- With regard to the period of provisional release, the Appeals
Chamber considers that the Appellant should be given sufficient
time to attend the memorial service for his late sister in
Banja Luka. The requiem is scheduled to take place
on 2 April 2005. The Appeals Chamber finds that it is sufficient
that the Appellant be released on 31 March, and returning
to The Hague on the first available flight on 3 April.
- For the foregoing reasons and pursuant to Rule 65(I) of
the Rules, the Appeals Chamber GRANTS in part the Request
and ORDERS that the Appellant be provisionally released
for a fixed period from 31 March 2005 to 3 April 2005 under
the following terms and conditions:
1. The Appellant shall be transported to Schiphol airport
in The Netherlands by the Dutch authorities on 31 March
2. At Schiphol airport, the Appellant shall be provisionally
delivered into the custody of the designated official(s)
of the Government of Republika Srpska (whose name or names
shall be provided in advance to the Appeals Chamber and
the Registry) and who shall accompany the Appellant for
the remainder of his travel to the Republika Srpska and
during the course of his stay in the Banja Luka;
3. If the circumstances prevent the designated official(s)
from fulfilling his duties, the Appellant shall be provisionally
delivered into the custody of another official of the Government
of Republika Srpska with the condition that this person
is authorised by the Appeals Chamber to take up those duties
no later than 30 March 2005;
4. The period of provisional release shall commence when
the Appellant is delivered into the custody of the designated
official(s) of the Government of Republika Srpska, or of
the other official accredited, and shall terminate upon
his return to the Dutch authorities, which shall be no later
than 3 April 2005;
5. On his return flight, the Appellant shall be accompanied
by a designated official of the Republika Srpska (or by
such other designated officials as the Appeals Chamber may
order or accept) who shall deliver the Appellant into the
custody of the Dutch authorities at Schiphol airport. The
Dutch authorities shall then transport the Appellant back
to the UNDU;
6. During the period of his provisional release, the Appellant
shall abide by the following conditions, and the authorities
of the Republika Srpska, including the local police in Banja
Luka, shall ensure compliance with such conditions:
a) The Appellant shall remain within the confines of the
municipality of Banja Luka ;
b) The Appellant shall be under the surveillance of the
Banja Luka police;
c) The Appellant shall surrender his passport to the police
in Banja Luka;
d) The Appellant shall report once a day to the local
police who will maintain a log and file a written report
with the International Tribunal confirming his presence
e) The Appellant shall not in any way interfere with any
persons who testified at his trial;
f) The Appellant shall not discuss his case with anyone
other than his counsel;
g) The Appellant shall comply strictly with any order
of the Appeals Chamber varying the terms of or terminating
his provisional release.
- On the basis of the guarantees provided by the Government
of Republika Srpska, the Appeals Chamber REQUIRES the
Government of Republika Srpska to assume responsibility for:
1. all expenses in connection with the transport from Schiphol
airport to Banja Luka and back;
2. ensuring the personal security and safety of the Appellant
while on provisional release;
3. reporting immediately to the Registrar of the Tribunal
as to the substance of any threats to the security of the
Appellant, including full reports of investigations related
to such threats;
4. facilitating, at the request of the Appeals Chamber or
of the parties, all means of co-operation and communication
between the parties and ensuring the confidentiality of any
5. detaining the Appellant immediately should he attempt
to escape from Banja Luka, or should he in any other way breach
the terms and conditions of his provisional release as set
out in this Decision and reporting immediately any such breach
to the Registry and the Appeals Chamber; and
6. respecting the primacy of the Tribunal in relation to
any existing or future proceedings in the Republika Srpska
concerning the Appellant.
- The Appeals Chamber INSTRUCTS the Registrar of the
1. Consult with the Dutch authorities and the authorities
of the Republika Srpska, as to the practical arrangements
for the provisional release of the Appellant;
2. Request the authorities of States through whose territory
the Appellant may travel to:
a) Hold him in custody for any time he will spend in transit
at the airport; and
b) Arrest and detain the Appellant pending his return
to the UNDU should he attempt to escape during travel.
Done in English and French, the English text being authoritative.
Dated this 23rd day of March 2005
At The Hague,
[Seal of the Tribunal]
1 - Prosecutor v. Stanislav
Galic, Case No. IT-98-29-A, Information About RS Government’s
Guarantees for Provisional Release of General Stanislav Galic,
18 March 2005, (“Addendum of Government Guarantees”) para. 6.
The Appellant had initially requested that he be released from
2 April 2005 to 10 April 2005, see Request, para. 18. After receiving
information that the requiem would be held on 2 April 2005,
the Appellant altered the dates of his request. See also
Transcript (T.) of the Status Conference, 11 March 2005, T.29.
2 - Prosecutor v. Stanislav Galic, Case
No. IT-98-29-A, Prosecution’s Response to Defence Request for
Provisional Release of General Stanislav Galic, 9 March 2005 (“Response”).
3 - Prosecutor v. Stanislav Galic, Case
No. IT-98-29, Judgement and Opinion, 5 December 2003 (“Galic
4 - Rules of Procedure and Evidence, IT/32/Rev.
34, 22 February 2005.
5 - Rule 65(I), amended 14 July 2000, 1 December
2000 and 13 December 2000.
6 - Rule 65(C), revised 12 November 1997.
7 - Rule 65(H), amended 25 July 1997.
8 - Prosecutor v. Blagoje Simic, Case
No. IT-95-9-A, Decision on Motion of Blagoje Simic Pursuant to
Rule 65(I) for Provisional Release for a Fixed Period to Attend
Memorial Services for his Father, 21 October 2004 (“Simic
Decision”), para. 14.
9 - Prosecutor v. Dario Kordic and Mario
Cerkez, Case No. IT-95-14/2-A, Decision on Mario Cerkez’s
Request for Provisional Release, 12 December 2003, (“Cerkez
Decision”) para. 10.
10 - Simic Decision, para. 14.
11 - Simic Decision, para. 15.
12 - Simic Decision, para. 15.
13 - Addendum of Government Guarantees, para.
14 - Status Conference, 11 March 2005, T. 29;
See also Prosecutor v. Stanislav Galic, Case No.
IT-98-29-A, Delivery of Document According the Decision of the
Pre-Appeal Judge Dated 11 March 2005, 18 March 2005, in which
the Appellant submits a certificate issued by Head of Church in
Banja Luka, which confirms that the requiem will be held on 2
15 - Request, para. 16.
16 - Request, para. 6.
17 - Request, para. 11.
18 - Request, para. 12.
19 - Request, para. 13.
20 - Request, para. 14.
21 - Request, para. 15.
22 - Request, para. 17, referring to the Simic
Decision and to Prosecutor v. Mile Mrksic et al., Case
No. IT-95-13/1-PT, Decision pursuant to Rule 65 Granting Mrksic’s
Request to Attend his Mother’s Funeral, 30 January 2004.
23 - Response, para. 4.
24 - Response, para. 3.
25 - Response, para. 2.
26 - Response, para. 5.
27 - Response, para. 6.
28 - Response, para. 7.
29 - Response, para. 7.
30 - Response, para. 8 ; See Prosecutor
v. Stanislav Galic, Case No. IT-98-29-PT, Order on the Defence
Motion for Provisional Release (“Galic Provisional Release
Pending Trial Decision”), 27 July 2000, p. 5.
31 - Response, para. 9 ; See Simic Decision.
32 - Response, para. 10.
33 - Response, para. 11.
34 - Response, para. 12 ; Galic Provisional
Release Pending Trial Decision, p. 5.
35 - Response, para. 12.
36 - Response, paras 13 and 14.
37 - Response, para. 14.
38 - Response, para. 15.
39 - Response, para. 16.
40 - Response, para 17. Prosecutor v. Milorad
Krnojelac, Case No. IT-97-25-A, Decision on Application for
Provisional Release (filed confidentially), 12 December 2002 (“Krnojelac
41 - Response, para. 18.
42 - Status Conference, 11 March 2005, T. 29.
43 - Trial Judgement, para. 769.
44 - See Trial Judgement, para. 770
which states that the Appellant was arrested by SFOR on 20 December
1999 and has been detained in the UNDU ever since.
45 - Trial Judgement, para. 766.
46 - See Simic Decision, para.
16 where the Appeals Chamber also found that the Appellant’s agreement
to condition his provisional release for a short period on all
the requirements the Appeals Chamber would deem necessary supported
the Appellant’s good faith.
47 - Simic Decision; Krnojelac
Decision; Prosecution v. Kvocka et al. IT-98-30/1-A, Decision
on the Request for Provisional Release of Miroslav Kvocka, 17
48 - See Galic Provisional Release Pending
Trial Decision, p. 6.
49 - Galic Provisional Release Pending
Trial Decision, p. 5.
50 - Simic Decision, para. 22.