Case: IT-97-25-A

IN THE APPEALS CHAMBER

 

Before:
Judge Mohamed Shahabuddeen, Presiding

Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana
Judge Fausto Pocar
Judge Theodor Meron

Registrar:
Mr. Hans Holthuis

Decision of: 12 December 2002

 

PROSECUTOR

v.

MILORAD KRNOJELAC

 

DECISION ON APPLICATION FOR PROVISIONAL RELEASE

 

 

 

 

 

 

Counsel for the Prosecutor:

Mr. Christopher Staker

Counsel for the Appellant:

Mr. Mihajlo Bakrač

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 ("International Tribunal"),

BEING SEISED of a request for provisional release filed personally by Milorad Krnojelac ("Appellant") on 14 November 2002 ("Request") in which the Appellant seeks provisional release in order to travel to his hometown of Foca to visit his brother, who is terminally ill;

NOTING the "Prosecution Response to Request by Appellant for Provisional Release" filed on 15 November 2002, and the "Defence Additional Arguments to the Accused’s Request for Provisional Release" filed in reply by the Appellant on 27 November 2002, to which he annexes medical evidence of his brother’s condition, along with a personal guarantee that he will abide by a number of conditions during his release, such as refraining from contact with victims and witnesses, and that he will unconditionally return to the United Nations Detention Unit on the expiry of his provisional release, which he asks to be ordered for a period of no more than 15 days;

NOTING the "Order" issued by the Appeals Chamber on 28 November 2002 by which the Appellant was ordered to submit guarantees from the Government of the Republika Srpska to the Appeals Chamber within ten days;

NOTING the "Defence Submission pursuant to the Order of the Appeals Chamber from the 28th of November 2002", filed by the Appellant on 6 December 2002, to which he annexes a guarantee from the Government of the Republika Srpska proposing that the Appellant be provisionally released, binding itself to respect all directives of the International Tribunal in respect of this matter, and including several specific undertakings with regard to his travel and supervision in the Republika Srpska;

NOTING the "Prosecution Response to the ‘Defence Additional Arguments to the Accused’s Request for Provisional Release’", filed confidentially on 6 December 2002 ("First Prosecution Response"), in which the Prosecution submits that, if the Appellant were granted provisional release, this should be limited to a period of two or three days, and in which the Prosecution sets out a number of conditions which should attach to a grant of provisional release with what it considers to be consistent with the practice of the International Tribunal;

NOTING the "Prosecution Response to the Guarantees Provided by Republika Srpska", filed on 9 December 2002, in which the Prosecution states that it does not oppose the grant of provisional release provided that this is subject to the conditions set out in the First Prosecution Response;

NOTING the "Defense Reply to ‘Prosecution’s Response to the Defence Additional Arguments to the Accused’s Request for Provisional Release’ and to ‘Prosecution’s Response to the Guarantees Provided by Reublika Srpska’", filed on 11 December 2002;

NOTING that, under Rule 65(I) of the Rules of Procedure and Evidence of the International Tribunal, the Appeals Chamber may grant provisional release for a fixed period to convicted persons with regard to whom an appeal is pending if it is satisfied that the convicted person will surrender into detention at the conclusion of the fixed period; that he or she will not pose a danger to any victim, witness or other person; and that special circumstances exist warranting such release;

BEING satisfied on the material presented that the fatal condition of the Appellant’s brother constitutes a special circumstance warranting in this case his provisional release for a fixed period, that the Appellant will surrender into custody at the conclusion of that fixed period, and that he will not pose a danger to any victim, witness or other person during the period of his release;

 

HEREBY GRANTS the Request and ORDERS that the Appellant be provisionally released for a period of five days under the following terms and conditions:

  1. The Appellant shall be transported to Schiphol airport in the Netherlands by the Dutch authorities as soon as practicable;
  2. At Schiphol airport, the Appellant shall be provisionally released into the custody of Mr. Trivun Jovicic of the Presidency of Bosnia Herzegovina, who shall accompany the Appellant for the remainder of his travel to Republika Srpska and to his respective place of residence;
  3. The period of provisional release shall commence when the Appellant is released into the custody of the designated official and shall terminate upon his return to the Dutch authorities, which shall be no later than the fourth day after the day on which provisional release commences;
  4. On his return flight, the accused shall be accompanied by Mr. Trivun Jovicic of the Presidency of Bosnia Herzegovina 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 United Nations Detention Unit;
  5. 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 Foca, shall ensure compliance with such conditions:

  1. The Appellant shall remain within the confines of the municipality of Foca;
  2. The Appellant shall be under the surveillance of the Foca police;
  3. The Appellant shall surrender his passport to the police in Foca;
  4. The Appellant shall report once a day to the local police who will maintain a log and file a written report with the Tribunal confirming his presence each day;
  5. The Appellant shall not have any contact whatsoever or in any way interfere with any persons who testified at his trial;
  6. The Appellant shall not have any contact in any manner whatsoever with persons other than his relatives and close friends;
  7. The Appellant shall not discuss his case with anyone other than his counsel;
  8. The Republika Srpska shall assume responsibility for all expenses in connection with the transport from Schipol airport to Foca and back;
  9. The Appellant shall comply strictly with any order of the Appeals Chamber varying the terms of or terminating his provisional release;
  10. The Republika Srpska shall immediately detain the Appellant should he attempt to escape from Foca, or should he in any other way breach the terms and conditions of his provisional release as set out in this Decision;

REQUIRES the Government of the Republika Srpska to assume responsibility for:

  1. The personal security and safety of the Appellant while on provisional release;
  2. Reporting immediately to the Registrar of the Tribunal the substance of any threats to the security of the Appellant, including full reports of investigations related to such threats;
  3. 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 such communication;
  4. Immediately detaining the Appellant should he breach any of the terms and conditions of his provisional release and reporting immediately any such breach to the Registry and the Appeals Chamber; and
  5. Respecting the primacy of the Tribunal in relation to any existing or future proceedings in Republika Srpska concerning the Appellant;

AND INSTRUCTS the Registrar of the Tribunal to:

  1. Consult with the Dutch authorities and the authorities of the Republika Srpska or Bosnia and Herzegovina, 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:

  1. Hold him in custody for any time he will spend in transit at the airport, and
  2. Arrest and detain the Appellant pending his return to the United Nations Detention Unit should he attempt to escape.

 

 

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

Dated this twelfth day of December 2002,

At The Hague,

The Netherlands.

______________________

Mohamed Shahabuddeen

Presiding Judge

 

 

[Seal of the Tribunal]