Case No.: IT-05-87-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
3 October 2005

PROSECUTOR

v.

MILAN MILUTINOVIC
NIKOLA SAINOVIC
DRAGOLJUB OJDANIC
NEBOJSA PAVKOVIC
VLADIMIR LAZAREVIC
VLASTIMIR DJORDJEVIC
SRETEN LUKIC

PUBLIC REDACTED VERSION

_________________________________

DECISION ON SRETEN LUKIC’S PROVISIONAL RELEASE

_________________________________

The Office of the Prosecutor
Mr. Thomas Hannis
Ms. Christina Moeller
Ms. Carolyn Edgerton
Mr. Chester Stamp

Counsel for the Accused
Mr. Eugine O’Sullivan and Mr. Slobodan Ze~evic for Milan Milutinovic
Mr. Tomislav Visnjic and Mr. Peter Robinson for Dragoljub Ojdanic
Mr. Toma Fila and Mr. Vladimir Petrovic for Nikola Sainovic
Mr. John Ackerman and Mr. Aleksander Aleksic for Mr. Nebojsa Pavkovic
Mr. Mihaljo Bakrac for Mr. Vladimir Lazarevic
Mr. Theodore Scudder for Mr. Sreten Lukic

THIS 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 (“the International Tribunal”),

BEING SEIZED of “Sreten Lukic’s Supplemental Submission in Support of Provisional Release, in accordance with the Trial Chamber’s Order of 19 July 2005”, filed confidentially by the Defence for Lukic on 16 August 2005 (“Supplemental Submission”), and “Sreten Lukic’s Addendum to the Supplemental Submissions of 15 August 2005”, filed confidentially on 23 August 2005 (“Addendum”), which aim to assist the Trial Chamber regarding the circumstances of Sreten Lukic’s (“the Accused”) surrender to the International Tribunal, as ordered in the Trial Chamber’s “Preliminary Order on Sreten Lukic’s Emergency Motion Seeking Provisional Release” (“Preliminary Order”),1

NOTING that no response has been received from the Prosecution with respect to the Supplemental Submission or Addendum and that the time for the filing of which has now expired,

NOTING also the Prosecution response to the original “Defendant, Sreten Luki c’s Emergency Motion Seeking Provisional Release” (“Motion”),2 in which the Prosecution opposed the Motion, inter alia, on the basis that there is no evidence that the Accused cannot receive adequate treatment while in detention at the United Nations Detention Unit,3 and that the Trial Chamber cannot be satisfied that the Accused, if released, will appear for trial, based on the circumstances of his surrender as detailed in local press articles,4

NOTING further that in its Response to the Motion, the Prosecution also requests a stay of the Trial Chamber’s decision pending an appeal by the Prosecution pursuant to Rule 65(E), should the Trial Chamber grant the Motion,5

NOTING that the Trial Chamber issued its Preliminary Order in response to the Motion, staying its decision on the Motion, having satisfied itself that provisional release is not warranted on medical grounds in this case, the Accused can receive adequate treatment while in detention at the United Nations Detention Unit, and that the Motion was not an emergency application,6

NOTING that Rule 65(B) (“Provisional Release”) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) requires an applicant for provisional release to satisfy the Trial Chamber of two matters: (1) that he will appear for trial, and (2) that, if released, he will not pose a danger to any victim, witness or other person,7

CONSIDERING that there is nothing to suggest that, if released, the Accused will pose a danger to any victim, witness, or other person and so the Trial Chamber thereby identifies the first limb of Rule 65(B) as being in issue,

NOTING the Accused relies on two principal reasons in the Supplemental Submission for his failure to surrender to the International Tribunal prior to 4 April 2005 , those being:

  1. a directive from the Serbian Government issued on 23 October 2003 (“Directive ”),8 preventing the Accused from surrendering due to national security interests of the Republic of Serbia since the Accused was the “head of the anti-crime activities of the government aimed at those suspected of taking part in the assassination of Prime Minister Djindjic” and “the Accused was one of the lead figures in Operation “Sablja”, the name given to police operations carried out to apprehend and shut down the organised crime elements who were behind the assassination; and,
  2. the Health of the Accused in that, [redacted],9

NOTING also that the Defence provides a copy of the Directive in the Addendum which is signed by the Vice-President of the Government of the Republic of Serbia and states, inter alia, that:

“Pursuant to Article 29, Rules of the Government and Article 4, paragraph 3,10 Rules of the Cooperation with 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,

[…]

2. The Government of the Republic of Serbia appraises that the surrender of the General Colonel Sreten Lukic, deputy Minister of the Interior – the head of the National Security, will be detrimental for the national security interests of Serbia and Montenegro.

[…]”

NOTING that Articles 18 to 31 of the Law on Co-operation of Serbia and Montenegro with the International Tribunal (“Law on Co-operation”) refer to the procedure for the surrender of accused persons, and in particular, Article 18 (2) states that:

“The competent organs of the Member States shall decide on the surrender of the accused to the International Criminal Tribunal”

and Article 19 states that:

“A Request for surrender along with a confirmed indictment and the arrest warrant shall be submitted to the Ministry of Foreign Affairs, which shall forward them to the competent court for processing”

CONSIDERING that the above-stated Articles of the Law on Co-operation envisage the procedure for surrender of accused persons as being conducted through the competent organs of the Member States i.e. the Republic of Serbia or the Republic of Montenegro , and that the Directive issued by the Government of the Republic of Serbia thereby prevented the procedure as prescribed being carried out,

NOTING that Article 29 of the Statute of the International Tribunal, relating to co-operation and judicial assistance, states:

  1. States shall co-operate with the International Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law.
  2. States shall comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including but not limited to:
    1. the identification and location of persons;
    2. the taking of testimony and the production of evidence;
    3. the service of documents;
    4. the arrest or detention of persons;
    5. the surrender or the transfer of the accused to the International Tribunal;

CONSIDERING therefore that, regardless of any national law on co-operation with the International Tribunal, Member States of the United Nations have a duty to co-operate with the International Tribunal by virtue of Article 29 of the Statute and the issuance of the Directive by the Government of the Republic of Serbia, as a Member State of the United Nations, could thereby be viewed as a breach of Article 29 and reported to the United Nations Security Council,

CONSIDERING further that, while the Trial Chamber in no way condones the actions of the Government of the Republic of Serbia in issuing the Directive, it recognises that the Directive effectively prevented the Accused from surrendering to the International Tribunal, and that this should not prejudice his application for provisional release insofar as the Directive remained in force,

CONSIDERING however, that no dates are given as to how long the Directive remained in force, or the date on which Operation “Sablja” was concluded, and therefore the Trial Chamber is not able to determine the exact date on which the Accused may have been in able to surrender,

NOTING that from 29 September 2004, the date on which the Accused was served with the Indictment, the Belgrade District Court which effected service of the Indictment was informed of the Accused’s state of health and [redacted],11

NOTING further the Defence submissions that the relevant legal authorities in Serbia were kept in constant update of the Accused’s medical condition, and that such updates, along with medical records [redacted] were sent to the International Tribunal,12

NOTING also that the International Tribunal did receive medical documentation relating to the Accused from the Embassy of Serbia and Montenegro on 6 November 2004, and 13 January 2005,

NOTING the Guarantees provided by the Government of the Republic of Serbia and the Council of Ministers of Serbia and Montenegro, pursuant to Article 36 of the Law on Co-operation, submitted in support of the Accused’s request for provisional release, which guarantee, in particular:

[…]

“(c) The obligation of officials from Serbia and Montenegro to have accused Sreten Lukic under their supervision while travelling from Serbia and Montenegro and the obligation to surrender accused to the Government of Netherlands at the time and the place ordered by Trial Chamber,”13

and state that:

[…]

“The Government of Republic of Serbia issues guarantees to the International Tribunal in case that the Trial Chamber grants the accused, Sreten Lukic’s Motion for Provisional Release and guarantees related to accused appearance before the International Tribunal at any time ordered by the Trial Chamber”,14

NOTING that the Trial Chamber requested further submissions from the Governments of Serbia and Montenegro and the Republic of Serbia regarding the relationship between Article 36 of the Law on Co-operation, and the guarantees provided pursuant to this Article, on the one hand, and the exercise of the provisions of Article 4(3) of the Law on Co-operation, on the other hand,15

NOTING the response received from Serbia and Montenegro in that:

  1. the State Security Concerns that were in place in 2003, when the Conclusion (Directive ) of the Government of Serbia was issued, were the result of the assassination of Prime Minister Zoran Đindic and the overall security situation that followed the assassination and that those concerns are no longer in effect;
  2. the Accused is no longer in active duty as a high level official of the Ministry of Internal Affairs of Serbia and Montenegro;
  3. the conditions preventing the Accused’s transfer to the International Tribunal therefore no longer exist;16
  4. the Government of the Republic of Serbia issued a new Conclusion on 15 September 2005,17 confirming, in paragraph 1 , its previous Conclusion of 7 April 2005, providing guarantees for provisional release of the Accused and stating, inter alia, that “The Government additionally guarantees, in response to the Request of the International Tribunal […], No. IT -05-87-PT of 7 September 2005, that no change of circumstances in the country shall have an effect on the Government’s obligation in accordance with paragraph 1 of this Conclusion”;
  5. Serbia and Montenegro fully stands behind the guarantees of both Serbia and Montenegro and the Republic of Serbia, for the Accused, and submits that it foresees no hindrances preventing compliance with any orders of the Trial Chamber regarding the return of the Accused to the custody of the International Tribunal;18

NOTING further the response received from the Republic of Serbia19 in that it states that: (1) the State Security concerns that were in place in 2003 -2004 are no longer in effect; (2) the Accused is no longer in a high level position within the Ministry of Interior; (3) therefore the conditions preventing the Accused’s transfer to the International Tribunal no longer exist; (4) the Governments of Serbia and Serbia and Montenegro foresee no hindrances preventing them from complying with any orders of the Trial Chamber regarding the transfer of the Accused to the jurisdiction of the International Tribunal,

CONSIDERING that the Trial Chamber does not find that the current health condition of the Accused is a reason to provisionally release him,

CONSIDERING however, that in light of: (1) the explanations now given by the Accused as to why he did not surrender between 2 October 2003, when the Indictment became public, until 4 April 2005 when he did in fact surrender; and (2) the explanation provided by the Government of Serbia and Montenegro and the Republic of Serbia as regards the guarantees provided for the Accused, the Trial Chamber is persuaded that if released, the Accused will appear for trial,

PURSUANT TO Rules 54 and 65 of the Rules,

HEREBY GRANTS the provisional release of Sreten Lukic and ORDERS:

    1. the provisional release of Sreten Lukic subject to the terms and conditions set out in the Order for Provisional Release appended to this Decision; and
    2. the provisional release of Sreten Lukic is stayed pending an appeal by the Prosecution pursuant to Rule 65(D), (E), (F) and (G) of the Rules.

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

__________________________
Judge Patrick Robinson
Presiding

Dated this third day of October 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

ORDER FOR PROVISIONAL RELEASE OF SRETEN LUKIC

  1. Sreten Lukic (“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 an official of the government of Serbia and Montenegro to be designated prior to release in accordance with operative paragraph (2)(a) hereof, who shall accompany the Accused for the remainder of his travel to Serbia and Montenegro and to his place of residence;
  3. On his return, the Accused shall be accompanied by the same designated official of the government of Serbia and Montenegro, who shall deliver the Accused to the custody of the Dutch authorities at Schiphol airport at a date and time to be determined by Order of the Trial Chamber, and the Dutch authorities shall then transport the Accused back to the United Nations Detention Unit in The Hague;
  4. During the period of his provisional release, the Accused shall abide by the following conditions, and the authorities of the governments of Serbia and Montenegro and the Republic of Serbia, including the local police, shall ensure compliance with such conditions:
    1. to remain within the confines of the municipality of Belgrade;
    2. to surrender his passport to the Ministry of Justice;
    3. to report each day to the police in Belgrade at a local police station to be designated by the Ministry of Justice;
    4. to provide the address at which he will be staying to the Ministry of Justice and the Registrar of the International Tribunal before leaving the United Nations Detention Unit in The Hague;
    5. to consent to having the Ministry of Justice check with the local police about his presence and to the making of occasional, unannounced visits upon the Accused by the Ministry of Justice or by a person designated by the Registrar of the International Tribunal;
    6. not to have any contact with the co-accused in the case;
    7. not to have any contact whatsoever or in any way interfere with any victim or potential witness or otherwise interfere in any way with the proceedings or the administration of justice;
    8. not to discuss his case with anyone, including the media, other than with his counsel ;
    9. to continue to cooperate with the International Tribunal;
    10. to comply strictly with any requirements of the authorities of Serbia and Montenegro and the Republic of Serbia necessary to enable them to comply with their obligations under this Order and their guarantees;
    11. to return to the International Tribunal at such time and on such date as the Trial Chamber may order; and
    12. to comply strictly with any further Order of the Trial Chamber varying the terms of or terminating his provisional release; and

REQUIRES The Governments of the State Union of Serbia and Montenegro and the Republic of Serbia to assume responsibility as follows:

  1. by designating an official of the government of Serbia and Montenegro into whose custody the Accused shall be provisionally released and who shall accompany the Accused from Schiphol airport to Serbia and Montenegro and to his place of residence , and notifying, as soon as practicable, the Trial Chamber and the Registrar of the International Tribunal of the name of the designated official;
  2. for the personal security and safety of the Accused while on provisional release ;
  3. for all expenses concerning transport of the Accused from Schiphol airport to Belgrade and back;
  4. for all expenses concerning accommodation and security of the Accused while on provisional release;
  5. at the request of the Trial Chamber or the parties to facilitate all means of cooperation and communication between the parties and to ensure the confidentiality of any such communication;
  6. to submit a written report to the Trial Chamber every month as to the compliance of the Accused with the terms of this Order;
  7. to arrest and detain the Accused immediately if he should breach any of the conditions of this Order; and
  8. to report immediately to the Trial Chamber any breach of the conditions set out above; and

INSTRUCTS the Registrar of the International Tribunal to consult with the Ministry of Justice in the Netherlands as to the practical arrangements for his release and to continue to detain the Accused at the United Nations Detention Unit in The Hague until such time as the Trial Chamber and the Registrar have been notified of the name of the designated official of the government of Serbia and Montenegro into whose custody the Accused is to be provisionally released; and

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

  1. to hold the Accused in custody for any time that he will spend in transit at the airport;
  2. to arrest and detain the Accused pending his return to the United Nations Detention Unit in The Hague, should he attempt to escape.

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

___________________________
Judge Patrick Robinson
Presiding

Dated this third day of October 2005
At The Hague
The Netherlands

1 - “Preliminary Order on Sreten Lukic’s Emergency Motion Seeking Provisional Release”, 19 July 2005.
2 - “Defendant, Sreten Lukic’s Emergency Motion Seeking Provisional Release”, 20 May 2005.
3 - Prosecution’s Response to “Defendant, Sreten Lukic’s Emergency Motion Seeking Provisional Release” with Annexes A and B” (“Response”), 1 June 2005, paras 12-21.
4 - Response, paras 23 – 28.
5 - Response, para.30.
6 - Preliminary Order, p. 3 – 4.
7 - Prosecutor v. Milutinovic, “Decision on Second Application for Provisional Release”, Case No. IT-99-37-PT, 14 April 2005, para. 4; Prosecutor v. Ojdanic, “Decision on General Ojdanic’s Fourth Application for Provisional Release”, Case No. IT-99-37-PT, 14 April 2005, para. 6; Prosecutor v. Sainovic, “Decision on Third Defence Request for Provisional Release”, Case No. IT-99-37-PT, 14 April 2005, para. 5.
8 - Supplemental Submission, paras 7 – 13, and Addendum.
9 - Supplemental Submission, paras. 14 – 22.
10 - Article 4 (3) of the Law on Co-operation between the International Tribunal and Serbia and Montenegro (“Law on Co-operation”) states, inter alia, that, “If the Council of Ministers or the Government of the Republic assesses that the fulfilment of the request would prejudice the sovereignty or the security interests of the State Union, it shall order the Ministry of Foreign Affairs, or the ministry responsible for justice matters of a member state, to communicate this to the International Criminal Tribunal and file a notice of objection in accordance with the Rules of Procedure and Evidence”.
11 - Supplemental Submission, paras 14 – 17.
12 - Supplemental Submission, para. 19 and Group Exhibit F.
13 - “Defendant, Sreten Lukic’s Submission of Guarantees from Serbia-Montenegro in Support of Request for Provisional Release”, 15 June 2005, p.7.
14 - Ibid, p.10.
15 - “Request to the Governments of Serbia and Montenegro and the Republic of Serbia to Provide Written Submissions relating to the Guarantees provided in support of Sreten Lukic’s Request for Provisional Release”, 7 September 2005.
16 - “Serbia and Montenegro’s Submission Relating to the Guarantees provided in support of Sreten Lukic’s Request for Provisional Release” (“Serbia and Montenegro’s Submission”), 16 September 2005, p. 3.
17 - Serbia and Montenegro’s Submission, p.3; Conclusion of the Government of the Republic of Serbia 05 No. 713-2191/2005-1, 15 September 2005, as attached as an annex to Serbia and Montenegro’s Submission.
18 - Serbia and Montenegro’s Submission, p. 4.
19 - Fax from the Ministry of Justice of the Republic of Serbia to the International Tribunal, dated 12 September 2005, filed 21 September 2005.