Case No. IT-01-48-PT
Judge Theodor Meron, President of the International Tribunal
Mr. Hans Holthuis
24 January 2005
ORDER OF THE PRESIDENT ON THE RENEWED DEFENCE MOTION CONCERNING CONDITIONS OF DETENTION DURING TRIAL
The Office of the Prosecutor:
Ms. Sureta Chana
Mr. Philip Weiner
Mr. David Re
Mr. Manoj Sachdeva
Counsel for the Accused:
Mr. Peter Morrisey
Mr. Guénaël Mettraux
1. I, Theodor Meron, President of the International Criminal Tribunal for the Prosecution of Persons responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia since 1991 (“President” and “International Tribunal,” respectively) am seised of the “Renewed Defence Motion Concerning Conditions of Detention during Trial” filed on 30 December 2004 (“Renewed Defence Motion”).
2. Defence counsel (“Defence”) for Sefer Halilovic (“Accused”) filed a renewed motion requesting that the conditions of detention be modified during trial to permit the Accused to reside in a “safe-house” or apartment in The Hague under conditions set by the President of the International Tribunal.1 The Defence had previously filed a similar motion on 15 December 2003, which I dismissed as premature because the Accused was not in detention, and the time and condition of his detention were not yet fixed.2
3. The Accused has been on provisional release awaiting trial since December 2001.3 One of the conditions of the Accused’s provisional release was that upon return to The Netherlands, he is to be delivered to Dutch authorities, who “shall then transport the Accused back to the United Nations Detention Unit” (“Detention Unit”).4 The Accused is scheduled to return to the Detention Unit on 20 January 2005.5
4. Rule 64 of the Rules of Procedure and Evidence of the International Tribunal (“Tribunal’s Rules”) is titled “Detention on Remand” and provides as follows:
Upon being transferred to the seat of the Tribunal, the accused shall be detained in facilities provided by the host country, or by another country. In exceptional circumstances, the accused may be held in facilities outside the host country. The President may, on the application of a party, request modification of the conditions of detention of an accused.
5. The Defence submits that detention of the Accused at the Detention Unit contravenes the Accused’s fundamental human rights, including the right embodied in Article 21(3) of the Statute of the International Tribunal (“Statute”), which states that “[t]he accused shall be presumed innocent until proven guilty.” The Defence claims this right includes the “right to remain at liberty unless exceptional circumstances require otherwise,”6 which must be respected “at all stages of [the International Tribunal’s] proceedings.”7
6. The Defence claims that the exceptional circumstances under which the International Tribunal can limit the Accused’s liberty interests are provided in Rule 65 of the Tribunal’s Rules. Rule 65 provides that a Trial Chamber, before granting provisional release, must first determine that the Accused “will appear for trial and, if released, will not pose a danger to any victim, witnesses or other person.” The Defence submits that the Trial Chamber found that the Accused “did not pose any threats to victims and witnesses, ?nor was there ag risk of flight,”8 when it granted the Defence “Request for Provisional Pre-Trial Release”9 and that the same conditions currently apply.10
7. The Prosecutor argues that it is not entirely apposite to compare pre-trial provisional release under Rule 65 to modification of conditions of detention during trial under Rule 64.11 The Prosecution submits that in the former the Accused is within a “developed functioning and sovereign judicial and administrative system[ ]” with an integrated judicial, police and immigration system which is more capable of preventing flight, ensuring the safety of the accused, and preventing interference with the Prosecution’s case.12
8. The Defence submits that any measure taken by the International Tribunal that infringes the right of the Accused to remain at liberty must be proportional to the perceived harms from his detention outside the Detention Unit,13 and the Defence requests that I modify the conditions of detention, in unspecified ways, to take account of this principle.
9. The Defence claims several factors support modification of the conditions of detention of the Accused during trial: the Accused voluntarily surrendered to the International Tribunal; he has fully complied with the conditions of his provisional release; and he has stated his intention to comply with any conditions that I may make upon his detention outside the Detention Unit.14
10. The Prosecution argues that the Accused’s compliance with the terms of his provisional pre-trial release, his voluntary return to the International Tribunal, and his undertaking to comply with any modified conditions of detention during trial do not weigh in his favour because each of those conditions have been or would be mandatory: i.e., since the heavy sanction of re-imprisonment loomed over the Accused’s head in the event of his non-compliance during the pre-trial period, his choice to comply at that time does not have much meaning.15
11. The Defence submits two practical considerations for modifying the conditions of detention of the Accused. The Defence claims that allowing the Accused to live in a safe house or similar arrangement will facilitate his ability to prepare his defence16 – presumably on the assumption that Defence counsel would be permitted to meet with the Accused at the “safe house ” – and will provide him greater access to his two children, for whom he is the only surviving parent.17
12. The Prosecution submits that Rule 67 of the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal, as amended on 29 November 1999 (“Rules of Detention”), “provides adequate guarantees pertaining to access to counsel by an accused” that serve “most other detainees” in accordance with applicable human rights law.18
13. The Defence claims that the Accused should be granted modified conditions of detention during trial, such as being held at a safe house in The Hague, largely because the Accused was granted a provisional pre-trial release and no relevant factors have changed since that decision.19 However, this assertion is largely based on a misunderstanding. The factors for determining whether to grant provisional pre-trial release pursuant to Rule 65 of the Tribunal’s Rules are different from the factors used under Rule 64 of the Tribunal’s Rules to determine whether to modify conditions of detention during trial.
14. Rule 65 is designed specifically to protect the liberty interest of indictees in balance with the considerations of public welfare. Rule 65 states:
(A) Once detained, an accused may not be released except upon an order of a Trial Chamber. (B) 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, witnesses or other person.
Although Rule 65 places the burden on the Accused to demonstrate that he fulfils the Rule 65(B) criteria, the Trial Chamber in Prosecutor v. Hadzihasanovic et al. interpreted relevant international human rights standards to require that “de jure pre-trial detention should be the exception and not the rule as regards prosecution before an international court,”20 and the International Tribunal has accordingly established a practice of favouring provisional pre-trial release, although the burden still remains with the Accused to demonstrate that he fulfils the Rule 65(B) criteria.21 In Prosecutor v. Jokic, the Trial Chamber applied the reasoning from a decision issued by the European Court of Human Rights (“ECHR”) to develop a balancing test for determining when continued detention may be justified.22 The ECHR decision stated that,
... continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. Any system of mandatory detention on remand is per se incompatible with Article 5 § 3 of the ?European Convention on Human Rightsg.... Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention... the existence of the concrete facts outweighing the rule of respect for individual liberty must be nevertheless convincingly demonstrated.23
15. The Jokic Trial Chamber held that, as a general rule, the 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 respect for an accused’s right to liberty of person. This balancing exercise is carried out by first examining whether the Rule 65(B) preconditions are met, to determine whether the Accused is eligible for provisional pre-trial release. Then, if the Accused is eligible for release, the following non-exclusive list of factors may be considered before a decision to release is reached:
- the seriousness of the charges against the Accused;
- the health of the accused;
- the proximity of the start of trial;
- the effect on public order caused by release of the Accused;
- the security of the Accused;
- the availability and effectiveness of monitoring of the Accused by the Host State ; and
- the length of detention.24
16. The Halilovic Trial Chamber analysed a subset of these factors, notably, that the Accused voluntarily surrendered; that the trial would not start immediately ; that the Accused was only charged with a single count under Article 7, paragraph 3 of the Statute of the International Tribunal; that the Government of the Federation of Bosnia and Herzegovina guaranteed specific measures to ensure the Accused, witnesses and victims would be safeguarded; and the Accused would be able to support his ailing son.25
17. Two factors distinguish considerations pursuant to Rule 64 from Rule 65. First, Rule 64 is not necessarily employed to safeguard the liberty interests of the Accused. Rule 64 permits the President to modify the conditions of detention to meet specific needs of the Accused or Prosecution, but the presumption – based on consideration of costs to the International Tribunal, costs to The Netherlands, safety of the Accused, and the desire to maintain standard conditions of detention for indictees – is for detainees to be held at the Detention Unit. This presumption is only overcome in exceptional circumstances. Second, the detainee will be in The Netherlands for the sole purpose of the proceedings before the International Tribunal, which sits in The Hague without being fully and automatically integrated into a State government administration with the capabilities to monitor and ensure the safety of the Accused at large.
18. The Office of the President has only twice previously considered requests for modified conditions during trial. In the first instance, the President granted a request for detention in a safe house in Prosecutor v. Blaskic,26 on the grounds that the Accused met the preconditions for provisional release,27 that the Accused voluntarily surrendered to the International Tribunal at a time when Croatia could not legally have arrested and extradited him,28 and that the Accused volunteered to cover all the costs of his detention in a safe house.29
19. Notably, the Blaskic Decision examined three types of detention during trial which represent a range of intrusion on the Accused’s liberty interests. Blaskic distinguished between “house arrest”, other forms of “detention in premises outside the Detention Unit,” and detention at the Detention Unit.30 According to Blaskic, house arrest provides more protection to the Accused’s liberty interests by allowing him to live with his family and to see counsel in his place of detention,31 whereas detention at a safe house does not necessarily allow these conditions, but allows the Accused to live in the dwelling of his choice.32
20. In Blaskic, the President surveyed state practice regarding house arrest and found several common “negative” and “positive” preconditions.33 Negative preconditions are those that must not be present, while positive preconditions were those that were sometimes, but not always, required to be present. A survey of State practice indicated that common negative preconditions include: “the risk that the detainee might escape; the likelihood that he might tamper with or destroy evidence or endanger possible witnesses; the likelihood that he might continue his criminal behaviour; potential danger to public order and peace.”34 In the “practice of national judges and courts,” modified conditions of detention may be used
“when the accused is seriously mentally or physically ill, when he is aged, or else when prison conditions are likely seriously to jeopardize his life or mental health; or when there are special circumstances warranting [modified conditions of detention] as a measure rewarding particular behaviour of the accused (e.g., he has voluntarily offered evidence going beyond what had been requested by the prosecutor or investigating judge).”35
21. House arrest was denied in Blaskic for reasons that are equally applicable in the present case: the Accused’s “presence on Dutch territory is likely to pose a danger to public order and peace, if only because of the presence in the Netherlands of thousands of refugees from the former Yugoslavia,” and he is neither ill nor aged.36
22. Safe house detention, on the other hand, was granted in Blaskic– albeit for reasons that do not apply to the present case. First, safe house detention was approved on the condition that Blaskic would only be permitted to visit with family and counsel at the Detention Unit according to the Rules of Detention;37 these conditions would entirely moot the declared purposes for Halilovic’s request (easier access to his lawyers and to his children). Second, Blaskic volunteered to pay for his detention in a safe house, whereas Mr. Halilovic is not able to defray the substantial additional costs that would be incurred from a safe house detention.38
23. In the other case, Biljana Plavsic requested to be held at a safe house because she claimed that the Detention Unit was inadequately designed and maintained to receive women detainees.39 The Accused subsequently withdrew her request to be detained outside the Detention Unit in lieu of a request for modified conditions within the Detention Unit.40 The President granted Plavsic’s request for private use of an additional room to prepare her defence.41
24. Unlike Plavsic, the Defence in the present case has not presented any specific reasons why detention at the Detention Unit fails to meet the minimum standards of detention or recognized special needs of the Accused. Accordingly, no modification to the condition of detention at the Detention Unit is granted, and the Accused shall be held according to the Rules of Detention.
25. For the above reasons the Renewed Motion of the Defence is DENIED.
Done in English and French, the English text being authoritative.
Dated this 24th day of January 2005,
At The Hague
Judge Theodor Meron
[Seal of the Tribunal]