Case No.
IT-98-29-A
IN THE APPEALS CHAMBER
Before:
Judge
Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Ndepele Mwachande Mumba
Judge Wolfgang Schomburg
Registrar:
Mr.
Hans Holthuis
Decision:
31
October 2005
PROSECUTOR
v.
STANISLAV GALIC
__________________________________________
DECISION ON SECOND DEFENCE REQUEST FOR PROVISIONAL
RELEASE OF STANISLAV GALIC
__________________________________________
The Office of the Prosecutor:
Ms. Helen Brady
Counsel for Stanislav Galic:
Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin
Background
- The Appeals Chamber of the International
Criminal 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 the “Appellant’s Request for Provisional
Release” filed on 6 September
2005 (“Request”) by Stanislav Galic (“Appellant”),
in which the Appellant seeks provisional release pending
his appeal hearing, to Banja Luka, Republika Srpska,
pursuant to Rule 65(I) of the Rules of Procedure and
Evidence (“Rules”).1
The Office of the Prosecutor (“Prosecution”) filed
its response on 15 September 2005 opposing the Request.2 On 19 September
2005, the Appellant filed a reply.3
- The Appellant was arrested by the Multinational
Stabilisation Force (“SFOR”)
on 20 December 1999, and has been in the United Nations
Detention Unit (“UNDU”)
ever since.4 On
5 December 2003, a Trial Chamber convicted the Appellant
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
and sentenced the Appellant to 20 years of imprisonment.5
The Appeals Chamber is currently seised of the Appellant’s
and Prosecution’s appeals
against the Galic Trial Judgement and sentence.
A date for the hearing of these appeals has not yet
been scheduled. The Appeals Chamber has previously
granted the Appellant provisional release for four
days following his sister’s death in
order to attend her requiem in Banja Luka, Republika
Srpska.6
The Appellant returned to the UNDU at the time specified
by the Appeals Chamber.
Applicable Law
- Pursuant to Rule 65(I), a convicted person
may be granted provisional release pending an appeal
if the Appeals Chamber is satisfied that the following
three requirements are met: (a) if released, the
appellant will return for the appeal hearing; (b)
if released, the appellant will not pose a danger
to any victim, witness, or other person; and (c)
special circumstances exist warranting such release.
These requirements are cumulative.7 Whether an applicant
satisfies these requirements 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 probabilities.8
Submissions
- The Appellant submits that all the pre-conditions
provided in Rule 65(I) for granting provisional
release are met and provides various arguments in
support of this contention, namely that: (i) if
released, he would appear for the hearing of the
appeal;9 (ii)
if released, he would not pose a danger to any victim,
witness or other person;10
and (iii) special circumstances exist warranting his
provisional release, in the form of (a) the merits
of his appeal;11
(b) the length of his pre-appeal detention;12
and (c) his poor health.13 The Prosecution
opposes the Request and submits that the Appellant
has not satisfied two of the criteria set out in Rule
65(I).14
- Concerning his first argument, the Appellant
submits that taking into account that his appeal
will not be heard in the next months and considering
that he fully complied with all the conditions set
by the Appeals Chamber when he was granted provisional
release to attend his late sister’s requiem,
the Request should be granted.15 In support of the Request
, the Appellant has also attached a formal letter of
guarantee from the Government of Republika Srpska,
which certifies, inter alia, that representatives
of Republika Srpska shall arrest the Appellant in
case he flees or breaches any of the conditions
specified by the Tribunal.16
The Appellant further submits that he is ready to give
a personal statement in writing not to contravene
any of the obligations contained in Rule 65 and also
to appear at the hearing or surrender to the UNDU
at the conclusion of the period of his release .17 He adds that if released to Banja
Luka where his family is, he will deliver his passport
to the local authorities there in conformity with
the usual practice.18
- The Appellant also submits that a failure to
surrender himself at the time set by the Appeals
Chamber would be contrary to his best interests.19
He adds that, given that he entered a plea of not guilty,
he has an interest in appearing at the hearing and
in being recognised as not guilty for the crimes for
which he was prosecuted.20 At the
same time, however, the Appellant contends that there
exists no reason why a convicted person should be
treated differently from one that is only accused,
particularly if the convicted person has already
spent a long period in detention,21
and submits that in his case, he has always demonstrated
a perfect attitude in detention .22 He further submits that the foreseeable
duration of his provisional release would not represent
a difficulty as the Tribunal has already granted this
measure for similar periods of time.23
- The Prosecution argues that the gravity of
the offences of which the Appellant was convicted,
his sentence to 20 years’ imprisonment, and the possibility
that this sentence could be increased to a life
sentence as a result of the Prosecution’s
appeal, considered altogether, create a strong incentive
for flight.24
It adds that the Trial Chamber in this case considered
the gravity of the crimes charged in the indictment
and the severe penalties that could be imposed after
a finding of guilt as factors leading to the conclusion
that there was a risk that the Appellant would not
appear for trial if provisionally released, which risk
is more pronounced now that a guilty verdict has been
entered.25
The Prosecution points out that while the Appellant
has served approximately 5¾
years of his sentence, the remaining 14¼ years of his
sentence is still considerable , particularly since
the Prosecution has appealed the Appellant’s sentence.26
- The Prosecution further argues that the Appellant
has already demonstrated his readiness to evade
arrest and detention since he did not voluntarily
surrender to the Tribunal but had to be arrested
in a “non-peaceful manner”.27
The Prosecution argues that the documents seised from
the Appellant upon his arrest by SFOR indicate that
he was at that time attempting to seek refuge in the
former Federal Republic of Yugoslavia (“FRY”) in order
to evade arrest. The Prosecution submits that the
Trial Chamber relied on this letter in denying the
Appellant provisional release pending trial.28
- The Prosecution contends that its concerns
about a potential flight risk are not alleviated
by the Appellant’s submissions because the fact that
he has behaved well in detention does not show that
he is not a flight risk.29
Additionally, the Prosecution submits that his recent
release to attend his late sister’s memorial service
also fails to show that he will return after a longer
release since the strict conditions imposed during
his recent short temporary release are qualitatively
different than the scrutiny which may be expected in
relation to more lengthy releases.30
- The Prosecution argues that the Appellant’s argument
that absconding would be contrary to his interest
is entirely unconvincing, as the potential for a
more severe sentence arising from the Prosecution
appeal increases the Appellant’s incentive
to flee.31 Finally,
the Prosecution submits that the guarantees provided
by the Government of Republika Srpska and the proposed
personal statement of the Appellant are insufficient
to address the risk of flight because the Appellant
has already demonstrated a willingness to relocate
in order to avoid arrest.32 Therefore,
the Prosecution submits, the guarantee of a single
State cannot address the question of what might happen
if the Appellant absconds and moves to a State that
is unwilling or unable to secure his arrest.33
- In reply, the Appellant submits that the Prosecution’s
argument that he might move to a State that is unwilling
or unable to secure his arrest is unacceptable since
Article 29 of the Tribunal’s Statute obliges States
to cooperate with the Tribunal.34 He adds that the Prosecution
omits to mention that it recently expressed its
satisfaction with the active and effective cooperation
of Serbia and Montenegro, which, the Appellant points
out, have established a policy of strongly encouraging
suspects to surrender.35
The Appellant contends that the fact that he returned
from his previous release is significant because the
period of four days for which he was released would
have been enough for him to plan his flight should
he have so intended.36
In relation to the Prosecution’s argument that the
Appellant had previously demonstrated his readiness
to evade arrest by relocating, the Appellant submits
that that argument is unfounded and was in fact rejected
by the Appeals Chamber in the First Provisional Release
Decision.37
Discussion
- The Appeals Chamber recalls that whether an
applicant should be granted provisional release
is to be determined on a balance of probabilities.38
Factors tilting the scales in favour of granting the
Appellant provisional release include the letter of
guarantee from the Government of Republika Srpska indicating
the government’s intention to ensure the Appellant’s
compliance with the conditions set by the Appeals
Chamber.39 The
Appeals Chamber also notes that the Appellant is
willing to give a personal statement to the effect
that he will comply with his obligations under Rule 65,
but that such statement has not been submitted alongside
the Request for the Appeals Chamber’s
scrutiny.40
- The Appeals Chamber further recalls that the
Appellant was previously granted provisional release,
and that he surrendered into detention at the conclusion
of the period fixed by the Appeals Chamber. While
this is a factor that would generally militate in
favour of granting provisional release, it is of
limited utility in the present case. Unlike the
situation envisaged by the Request, the previous
provisional release was brief, based on exceptional
grounds of compassion, and subject to stringent
conditions. The provisional release now requested
would not be for a fixed and pre -determined period,
and thus would be very different from the four days
granted in the First Provisional Release Decision.41
As shown below, the conditions that can be set by the
Appeals Chamber would of necessity also be different.42
- Regarding the Prosecution’s submission that in
failing to surrender into the custody of the Tribunal
the Appellant has demonstrated his readiness to evade
arrest, the Appeals Chamber notes that the Appellant
was arrested pursuant to a sealed indictment and
there is no indication that he had actual notice
of its existence .43 Therefore,
the Appeals Chamber cannot take the fact that the
Appellant did not voluntarily surrender into account
.44 This has not been
done in the present case. This being said, documents
seised from the Appellant at the time of his arrest
contained information that he had requested to be
allocated an apartment in the area of the Belgrade
or the Novi Sad garrisons.45
The following excerpt of a letter written by the Appellant
to then FRY Federal Minister of Defence indicates
that the Appellant was attempting to relocate to the
former FRY in order to evade a possible arrest:
The current political situation in Republika
Srpska further complicates the situation , in view of
information that I am on the list of accused for
the so-called war crimes during the war in BH, from
1991-1995. For this reason, and at the suggestion
of the President of Republika Srpska and the person
in charge in Republika Srpska , it has been suggested
to me that I move out of the territory of Republika
Srpska because it is suspected that I am one
of the first persons that the Hague Tribunal is
planning to arrest.
With a view to protecting all of us who have
taken part in the establishment of Republika Srpska,
and my personal safety and my family’s, I appeal
to you to provide me with an official apartment,
or to allow me to purchase an apartment in the
area of the Belgrade or Novi Sad garrison.46
Contrary to the Appellant’s submission, therefore,
the Appeals Chamber is satisfied that he was prepared
to evade arrest. Furthermore, the Appeals Chamber recalls
that in the First Provisional Release Decision, the
Appeals Chamber did not reject the submission that
the Appellant had previously demonstrated his readiness
to evade arrest by relocating. In fact, the Appeals
Chamber did not make any specific finding on this
issue, but proceeded to grant the request because the
special circumstances prevailing at the time required
that it be granted.47
- Under the present circumstances, and even if
it is for the Appeals Chamber to impose such conditions
upon the release of the Appellant as it may determine
appropriate,48 the
Appeals Chamber is of the view that, considering
the length of the release requested, it would not
be feasible nor appropriate to request that the
Appellant be under constant escort while on provisional
release as it did in the First Provisional Release
Decision.49 Failing
the observance of such strict conditions as were imposed
on him last time, the Appeals Chamber is not satisfied
, for the aforementioned reasons and for the reasons
that follow, that the Appellant would appear at the
appeals hearing. Similarly, since the Appellant has
already demonstrated an inclination to relocate in
order to evade arrest, the government guarantee submitted
would be of limited use if the Appellant was successful
in leaving the territory of Republika Srpska.
- The Appeals Chamber disagrees with the Appellant’s
contention that his position is similar to that
of an accused before trial. Unlike an accused person
awaiting trial, the Appellant has been convicted
of serious crimes, which crimes have to be taken
into account when assessing whether an appellant,
if released, would appear at the hearing of the
appeal.50 The
Appeals Chamber also recalls that the more severe
the sentence, the greater the incentive to flee.51 These are some
of the factors that distinguish the Appellant’s situation
from that of accused persons . While the Appellant
has already served more than 5 years of his sentence
the remainder is still considerable. He was sentenced
to 20 years of imprisonment, and considering that
he has not even served half of his sentence, the remaining
years create a strong incentive to flee. Furthermore,
the outcome of the appeal is unforeseeable and thus
is not a factor that can be relied upon in determining
whether provisional release should be granted.52 While there is
a possibility that as a result of the Appellant’s appeal
there may be a reduction in sentence, it is equally
true that as a result of the Prosecution’s appeal there
may be an increase in sentence. Taking these factors
into account, the Appeals Chamber is similarly not
persuaded by the Appellant’s argument that because
he was convicted he has a particular interest in attending
the hearing to prove that he is not guilty of the
crimes for which he was convicted.
- Having weighed the relevant factors on a balance
of probabilities, the Appeals Chamber is not satisfied
that, if released, the Appellant will appear at the
hearing of the appeal and therefore finds that the
Request does not meet the first of the requirements
set out in Rule 65(I)(i).
- The Appeals Chamber further notes that matters
beyond the Tribunal’s control
have extended the proceedings to a considerable length.53
As a result, as noted by the Pre-Appeal Judge at the
Status Conference, the hearing on appeal may not take
place for some time.54
However, the Appellant’s detention serves the aim of
ensuring that he is present at the appeals hearing
when it does take place, and, considering all the circumstances
of this case, complies with the principle of proportionality.55
- Because the Appeals Chamber is not satisfied
with regard to the first requirement under Rule
65 (I), it is not necessary for the Appeals Chamber
to discuss the further arguments presented by the
parties relating to the remaining criteria.56
- The Appeals Chamber notes that, according to
the Prosecution, paragraphs 15 -30, 38(a) in part,
38(b), and 38(c) of the Request impermissibly plead
the merits of the Appellant’s grounds of appeal
and do not relate to his request for provisional
release. The Prosecution requests that these paragraphs
be struck out.57
The Prosecution adds that many of these paragraphs
contain additional citations or arguments not included
in the Defence Appellant’s Brief or Brief in Reply.58
In light of the Appellant’s assurances that any reference
in the Request to arguments concerning the main appeal
is of no significance to the appeal proceedings and
will not form part of the record of the appeal on
the merits,59
the Appeals Chamber does not consider it necessary
to address the Prosecution’s
request.
Disposition
- For the foregoing reasons and pursuant to Rule
65(I) of the Rules, the Request is DISMISSED.
Done in English and French, the English text being
authoritative.
Dated this 31 day of October 2005
At The Hague,
The Netherlands.
_______________________
Theodor
Meron
Presiding Judge
[Seal of the Tribunal]
1 - Rules
of Procedure and Evidence, IT/32/Rev. 36, 8 August
2005.
2 - Prosecution’s
Response to Galic’s Request for Provisional Release
on Appeal, 15 September 2005 (“Response”).
3 - Appellant’s
Reply to Prosecution’s Response to Appellant’s
Request for Provisional Release on Appeal, 19 September
2005 (“Reply”).
4 - Prosecutor
v. Stanislav Galic, Case No. IT-98-29-T, Judgement
and Opinion, 5 December 2003 (“Galic Trial Judgement”),
para. 770.
5 - Galic Trial Judgement, para. 769.
6 - Decision
on Defence Request for Provisional Release of Stanislav
Galic, 23 March 2005 (“First Provisional Release
Decision”),
paras 21 and 22. The Appellant was provisionally
released from 31 March 2005 to 3 April 2005.
7 - 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.
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 - Request,
paras 32-35, 43-44, 46-48.
10 - Request,
para. 36.
11 - Request,
paras 15-30, 38(a) in part, (b) and (c).
12 - Request,
paras 2, 8, 13, 39, and 42.
13 - Request,
paras 3 and 5.
14 - Response,
para. 2.
15 - Request,
paras 9, 10, 11, 12, 13 and 35. The Appellant’s
statement relating to the date his appeal will
be heard is based on information provided by the
Pre-Appeal Judge at the Status Conference held
on 7 July 2005 during which she stated, in response
to a question by counsel for the Appellant: “[a]s
soon as the other appeals have come off the list,
this particular appeal will be scheduled for hearing.
If not towards the end of this year but at least
early next year.” See Transcript of Status
Conference of 7 July 2005 (“T.”), at T. 35.
16 - Request,
Annex I, Guarantee Provided by the Government of
Republika Srpska (Translation), para. IV.
17 - Request,
paras 33 and 43.
18 - Request,
para. 45.
19 - Request,
para. 46.
20 - Request,
paras 47 and 48.
21 - Request,
para. 42.
22 - Request,
para. 8.
23 - Request,
para. 44, referring to Prosecution v. Miroslav
Kvocka et al., Case No. IT-98-30/1-A, Decision on
the Request for Provisional Release of Miroslav Kvo~ka,
17 December 2003.
24 - Response,
paras 8, 9 and 10, referring to Prosecutor v.
Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-A,
Decision on Dario Kordic’s Request for Provisional
Release, 20 April 2004 (“Kordic Decision”),
para. 8.
25 - Response,
para. 9.
26 - Response,
para. 10.
27 - Response,
para. 11, quoting the Request, para. 3.
28 - Response,
para. 11; 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, pp. 4-5.
29 - Response,
para. 12, referring to Prosecutor v. Momir Nikolic,
Case No. IT-02-60/l-S, Sentencing Judgement, 2
December 2003, para. 168; Prosecutor v. Miroslav
Deronjic, Case No. IT-02-61-S, Sentencing Judgement,
30 March 2004, para. 273; Prosecutor v. Ranko
Cesic,
Case No. IT-95-10/l-S, Sentencing Judgement, 11 March
2004, para. 86.
30 - Response,
para. 13.
31 - Response,
para. 14.
32 - Response,
para. 15.
33 - Response,
para. 15.
34 - Reply,
para. 22.
35 - Reply,
para. 23.
36 - Reply,
para. 26.
37 - Reply,
para. 32, referring to First Provisional Release
Decision, para. 11.
38 - Simic
Decision, para. 14.
39 - Request,
Annex I, Guarantee Provided by the Government of
Republika Srpska (Translation), p. 2.
40 - In
Prosecutor v. Ljube Boskoski and Johan Tarculovski,
Case No. IT-04-82-AR65.2, Decision on Ljube Boskoski’s
Interlocutory Appeal on Provisional Release, 28
September 2005, paras 7 and 8, the Appeals Chamber
held that the weight to be attached to such factors
as personal guarantees must be evaluated in light
of the circumstances of each particular case. In
addition, whereas the Appeals Chamber notes the
Appellant’s argument that his behaviour
has been beyond reproach while in the UNDU, he
has failed to explain how his good behaviour advances
his argument that he be granted provisional release,
and for this reason this argument will not be considered
by the Appeals Chamber.
41 - See
also Prosecutor v. Mile Mrksic, Miroslav Radic,
Veselin Sljivancanin,
Case No. IT-95-13/1-AR65.2, Decision on Application
for Leave to Appeal, 19 April 2005, pp. 3-4.
42 - See
infra., para. 16.
43 - Prosecutor
v. Stanislav Galic and Dragomir Milosevic, Case
No. IT-98-29-I, Review of the Indictment, 24 April
1998, p. 3; see also Prosecutor v. Stanislav Galic
and Dragomir Milosevic, Case No. IT-98-29-I, Decision
on Application to Vacate in Part an Order for Non-Disclosure
(Confidential), 17 March 1999, p. 2.
44 - See
Prosecutor v. Radoslav Brdjanin and Momir Talic,
Case No. IT-99-36-PT, Decision on Motion By Radoslav
Brdjanin for Provisional Release, 25 July 2000, para.
17; Prosecutor v. Fatmir Limaj, Haradin Bala and
Isak Musliu, Case No. IT-03-66-PT, Decision on Provisional
Release of Haradin Bala, 17 September 2003, p. 8.
45 - Prosecutor
v. Stanislav Galic, Case No. IT-98-29-PT, Prosecutor’s
Further Response to Defence Reply and Documents
on Motion for Provisional Release, 30 June 2000
(“Prosecutor’s
Further Response”), pp. 5 and 7; see also Galic Provisional Release Pending Trial Decision, pp.
4-5.
46 - Prosecutor’s
Further Response, p. 7 (emphasis added).
47 - See First Provisional Release Decision, paras 11 and
18.
48 - Rule
65(C) as read with Rule 65 (I) which applies it
mutatis mutandis to the Appeals Chamber.
49 - In
the First Provisional Release Decision, para. 19,
the Appeals Chamber held that “[i]n the opinion
of the Appeals Chamber, the fact that the Appellant
was convicted at trial necessitates a condition of
constant supervision while on release.”
50 - First
Provisional Release Decision, para. 6.
51 - Simic
Decision, para. 15; First Provisional Release Decision,
para. 6; Cerkez Decision, para. 8.
52 - Cerkez
Decision, para. 8.
53 - At
the Status Conference, the Pre-Appeal Judge informed
the parties that it was as a result of the backlog
of cases from the Tribunal and the International
Criminal Tribunal for Rwanda awaiting appeal that
it was not yet possible for the Appeals Chamber to
determine the date of hearing: T. 34.
54 - T.
34.
55 - In
Prosecutor v. Fatmir Limaj, Haradin Bala and
Isak Musliu, Case No. IT-03-66-AR65, Decision
on Fatmir Limaj’s
Request for Provisional Release, 31 October 2003,
para. 13, a Bench of the Appeals Chamber stated that: “…A
measure in public international law is proportional
only when it is (1) suitable, (2) necessary and
when (3) its degree and scope remain in a reasonable
relationship to the envisaged target. Procedural
measures should never be capricious or excessive.
If it is sufficient to use a more lenient measure
than mandatory detention, it must be applied”. See
also Kordic Decision, para. 9.
56 - Kordic Decision, para. 10.
57 - Request,
paras 4 and 21.
58 - Request,
paras 4 and 21.
59 - Reply,
paras 7 and 8.