Case No. IT-01-48-T

Before:
Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi

Registrar:
Mr. Hans Holthuis

Decision of:
1 September 2005

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

TRIAL CHAMBER I, SECTION A, (“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 (“Tribunal”);

BEING SEISED of the “Motion for Provisional Release”, filed by the Defence on 22 August 2005 (“Motion”), in which the Defence requests the provisional release of Sefer Halilovic (“Accused”) from the moment the closing arguments are over until the rendering of the judgement in this case;

NOTING the Prosecution’s oral response, presented on 30 August 2005, by which the Prosecution submits that the Motion should be denied;

NOTING the decision of the Trial Chamber of 22 July 2005,¹ granting the “Renewed Motion for Provisional Release”, filed by the Defence on 6 July 2005;

NOTING the “Prosecution’s Application for Leave to Appeal Decision Concerning Provisional Release of Sefer Halilovic”, filed on 29 July 2005, and the “Response to Prosecution Motion for Leave to Appeal Decision of Provisional Release”, filed by the Defence on 5 August 2005;

NOTING the President’s “Order Assigning Judges to a case before the Appeals Chamber”, issued on 15 August 2005 (“President’s Order”), whereby the President, noting the Amendments of the Rules of Procedure and Evidence (“Rules”), dated 1 August 2005 and entered into force on 8 August 2005, “which no longer require application for leave to appeal of a decision rendered under Rule 65 from a bench of three Judges of the Appeals Chamber, but grant leave as a right to a bench of five Judges of the Appeals Chamber”, ordered that in the present case “the timing for parties to brief the appeal shall run from the filing of this assignment order”;

NOTING that the Prosecution did not brief the appeal;

NOTING the “Decision on Request for Pre-Trial Provisional Release”, issued on 13 December 2001 by Trial Chamber III, seized of the case at that time, granting the request for provisional release;

NOTING the decision of the Trial Chamber of 21 April 2005 denying the “Motion for Provisional Release”, filed confidentially by the Defence on 1 April 2005, on the basis that it was not considered appropriate, in light of the circumstances of the present case, to grant provisional release at that stage of the proceedings, i.e. before the end of the Prosecution case;²

NOTING that on 9 May 2005 the Red Cross, following a request from the Defence, responded that it was not in a position to assist Mr Halilovic financially, in order for his children and wife to travel to The Hague; and that the Registry had earlier informed the Defence that it could not provide financial support to the Accused for this purpose either;³

NOTING that the main Defence arguments in support of the Motion are that:

1. all requirements for provisional release are met in this case and the granting of this motion would not in any way impact upon the proceedings;⁴

2. the requirements set out in Rule 65 of the Rules were met at the time the pre-trial provisional release was granted and the circumstances relevant to this assessment have not changed in any relevant manner;⁵ and

3. the pre-trial provisional release of the Accused was subject to a number of conditions with which the Accused has complied fully over a period of more than two years; ⁶

NOTING that the Defence also submits that exceptional circumstances, even though they are not a condition of provisional release, strongly support the present application, such as:

(i) a member of Mr Halilovic’s close family was subjected to very serious threats; ⁷

(ii) as Mr Halilovic is indigent and receives no financial assistance from the authorities or from the Red Cross, he is not in a position to pay for the travel of his family to The Hague; and his family cannot bear the financial cost of travel and stay in The Hague. Thus, to the extent that Mr Halilovic has a right to personal contacts with his family, to be presumed innocent and to be released unless absolutely necessary that he be kept in detention, he should be permitted, all other conditions being met, to travel back to Sarajevo to be reunited with his family;⁸

(iii) Mr Halilovic asks to be permitted to go back to Sarajevo so as to be in a position to contribute to the financial well-being of his family;⁹

(iv) Mr Halilovic’s attitude towards the Tribunal both prior and during his trial has been exemplary, and he has sought at all times to cooperate with the Tribunal and to abide by any ruling, restriction or condition set by the Tribunal; he has also shown dignity and respect for the Court and the witnesses;¹⁰

(v) From the time the Defence final brief is filed to the rendering of the judgement, the members of the Defence team will go back to their respective homelands and Mr Halilovic will not receive any visits to the Detention Unit; this would be not only “unjust”, but also “un-necessary and disproportionate”;¹¹

NOTING that the main Prosecution arguments in support of its Response are that:

1. It is the policy of the Office of the Prosecutor to oppose all requests for provisional release “after a case has been completed but prior to a judgement being issued”, as “it is at that time […] that a defendant would most likely […] flee from the jurisdiction [of the Tribunal] or flee and go into hiding;¹²

2. It is the view of the Office of the Prosecutor that “it is not the right choice that is being taken to allow […] defendants to leave prior to the judgement”, as “the world is watching the type of justice [that is being done at the Tribunal]” and “the public sees [that] people charged with very serious crimes […] are just being released”. The result of this is that “the Tribunal loses the confidence of the public with such action”;¹³

HAVING CONSIDERED all of the arguments of the parties;

CONSIDERING that pursuant to Articles 20 and 21 of the Statute of the Tribunal (“Statute”) the Trial Chamber has to ensure a fair and expeditious trial and that proceedings are conducted in accordance with the Rules, with full respect for the rights of the accused and due regard for the protection of victims and witnesses ;

NOTING that pursuant to Rule 65 (B) of the Rules a Chamber may order a provisional release of an accused 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 following two requirements are met: (i) the accused will appear for trial and, (ii) if released, will not pose a danger to any victim, witness or other person ”;¹⁴

NOTING further 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”;

CONSIDERING that the Trial Chamber’s discretion under Rule 65 must be exercised in light of all the circumstances of the case;

CONSIDERING that the Accused voluntarily surrendered to the custody of the Tribunal on 25 September 2001;

CONSIDERING that the Accused complied with all the conditions imposed upon him while provisionally released during the pre-trial and trial proceedings;

CONSIDERING that the Accused has conducted himself with due respect towards the Tribunal during all the proceedings;

NOTING that the Registry provided a certified copy of the Motion to the relevant authorities in the Netherlands who have not opposed the provisional release of the Accused;

NOTING the written guarantee provided by the Government of the Federation of Bosnia and Herzegovina, dated 25 August 2005, and filed by the Defence on 29 August 2005, in which it is stated that “the competent organs of the Federation of Bosnia and Herzegovina will ensure that Sefer Halilovic responds to every call by the Court to The Hague or any other place which the Trial Chamber determines, and will execute all the orders of the Court which the Trial Chamber orders by its decision”;¹⁵

CONSIDERING that the jurisprudence of the Tribunal gives due weight to the personal circumstances of the Accused in deciding whether to grant provisional release, and furthermore the Trial Chamber finds that such considerations should not be limited to the pre-trial stage of the proceedings;¹⁶

CONSIDERING that until the rendering of a judgement, an accused is presumed to be innocent;

CONSIDERING the circumstances submitted by the Defence in support of the Motion, in particular the impossibility for the Accused’s family to pay for a visit to The Hague;

CONSIDERING that the final trial briefs were filed on 25 August 2005 and the closing arguments took place on 30 and 31 August 2005, in the presence of the Accused;

CONSIDERING that the presence of the Accused at the seat of the Tribunal is no longer necessary until the rendering of the judgement;

CONSIDERING that the final trial briefs and the closing arguments do not in any way affect the presumption of innocence of the Accused, as they do not provide an indication of the outcome of the case, which will only materialise at the end of the deliberations;

CONSIDERING that it is normal to expect the Prosecution’s case evolving throughout the presentation of the evidence, and culminating in the final trial briefs and closing arguments; however, the issue of provisional release remains governed by the criteria provided for in Rule 65 of the Rules: the Trial Chamber’s discretion, upon a balance of probabilities, to determine whether the Accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person;

CONSIDERING that, in the circumstances of the present case, in particular the personal situation of the Accused, the Trial Chamber is satisfied that the Accused, if released, will appear for the rendering of the judgement, and that the Trial Chamber is further satisfied that he will not pose any danger to any victim, witness or other person;

CONSIDERING that, in relation to the serious threats which have been made against a member of the Accused’s close family, the Trial Chamber expressly entrusts the Government of the Federation of Bosnia and Herzegovina to assume responsibility for, and to take the appropriate measures to ensure, the personal security and safety of the Accused while he is on provisional release,

FOR THE FOREGOING REASONS,

HEREBY GRANTS the Motion and ORDERS the provisional release of Sefer Halilovic as soon as possible, at the latest from 5 September until 7 November 2005, unless the Trial Chamber notifies a prior date for his return, on the following terms and conditions:

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 the designated official of the Government of the Federation of Bosnia and Herzegovina who shall accompany the Accused for the remainder of his travel to the Federation of Bosnia and Herzegovina (“Bosnia and Herzegovina”) and to his place of residence in Sarajevo.

3) On his return, the Accused shall be accompanied by the designated official of the Government of Bosnia and Herzegovina who shall deliver the Accused into the custody of the Dutch authorities at Schiphol airport on 7 November 2005 and the Dutch authorities shall then transport the Accused back to the United Nations Detention Unit.

4) During his release, the Accused shall abide by the following conditions and the Bosnia and Herzegovina’s authorities shall ensure compliance with such conditions :

a) within one day of his arrival, to report the address where the Accused will be staying to the local police and the Registrar of the Tribunal, and to indicate any changes of address to the Registrar within one day of such change,

b) to surrender his passport to the Government of Bosnia and Herzegovina,

c) to remain within the confines of Sarajevo,

d) to report once a week to the local police in Sarajevo,

e) to consent to having officials of Bosnia and Herzegovina verify his presence with the local police and to occasional unannounced visits to the Accused by these officials or by a person designated by the Registrar,

f) not to have any contacts whatsoever or in any way interfere with victims or potential witnesses in any case before the Tribunal or otherwise interfere in any way with the proceedings or the administration of justice,

g) not to discuss his case publicly, including with the media,

h) to comply strictly with any requirements of the authorities of Bosnia and Herzegovina necessary to enable them to comply with their obligations under the order for provisional release and their guarantees,

i) to return to the United Nations Detention Unit on 7 November 2005,

j) to comply strictly with any order of the Trial Chamber varying the terms of, or terminating, the provisional release of the Accused,

REQUIRES the Government of Bosnia and Herzegovina to assume responsibility for:

1) Transport expenses of the Accused from Schiphol airport to his place of residence and back,

2) The personal security and safety of the Accused while on provisional release,

3) Reporting immediately to the Registrar of the Tribunal the substance of any threats to the security of the Accused, including full reports of investigations related to such threats,

4) Immediately detaining the Accused should he breach any of the terms or conditions of his provisional release and reporting immediately any such breach to the Trial Chamber,

5) Respecting the primacy of the Tribunal in relation to any existing or future proceedings in Bosnia and Herzegovina concerning the Accused,

INSTRUCTS the Registrar of the Tribunal to consult the Ministry of Justice of The Netherlands and the authorities of Bosnia and Herzegovina as to the practical arrangements for the release of the Accused,

REQUESTS the authorities of all States through which the Accused will travel :

1) to hold the Accused in custody for any time he will spend in transit at the airport,

2) to arrest and detain the Accused pending his return to the United Nations Detention Unit, should he attempt to escape.

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

____________________________
Judge Liu Daqun
Presiding Judge

Dated this first day of September 2005
At The Hague
The Netherlands

[Seal of the Tribunal]