Case No. IT-95-13/1-PT
IN TRIAL CHAMBER II
Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker
Registrar:
Mr. Hans Holthuis
Decision of:
9 March 2005
PROSECUTOR
v.
MILE MRKSIC
MIROSLAV RADIC
VESELIN SLJIVANCANIN
___________________________________________
DECISION ON DEFENCE MOTION FOR PROVISIONAL
RELEASE
___________________________________________
The Office of the Prosecutor:
Mr. Jan Wubben
Counsel for the Accused Mile Mrksic:
Mr. Miroslav Vasic
TRIAL CHAMBER II (“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”)
is seised of the “Defence Motion for Provisional Release” filed
by Counsel for Mile Mrksic (“Accused”) on 23 February
2005 (“Motion”) in which Counsel for the Accused
(“Defence”) requests the provisional release of the
Accused pursuant to Rule 65 (B) of the Rules of Procedure
and Evidence (“Rules”). On 2 March 2005, the Office
of the Prosecutor (“Prosecution”) filed its “Prosecution’s
Response to the Accused Mile Mrksic’s “Defence Motion
for Provisional Release”” (“Response”).
INTRODUCTION
- The Motion is the third request for provisional
release which the Accused has filed since coming
within the custody of the Tribunal.
- On 23 May 2002, the Accused filed a “Defence Motion
for Provisional Release
” in which he sought to be provisionally released for
health reasons to his family home in Belgrade in the
Federal Republic of Yugoslavia and which was denied
by the Trial Chamber in its “Decision on Mile Mrksic’s
Application for Provisional Release
” of 24 July 2002 (“First Decision on Provisional Release”).1
For purposes of the present decision, it is sufficient
to recall that, in the First Decision on Provisional
Release, the Trial Chamber had denied the Defence Motion
for Provisional Release on the basis that it was not
satisfied that, if provisionally released, the Accused
would appear for trial.
- On 29 January 2004, the Accused filed a “Defence
Request for Provisional Release for the Purpose
of Attending Mother’s Funeral in Lieu of Previously
Filed Defence Request for Provisional Release for
the Purpose of Visiting his Mother” in which
the Accused sought to be allowed to travel to Belgrade
to attend the funeral of his mother scheduled to
take place on 31 January 2004. On 30 January 2004,
in its
“Decision Pursuant to Rule 65 Granting Mrksic’s Request
to Attend his Mother’s Funeral
” (Second Decision on Provisional Release”), the Trial
Chamber allowed that the Accused be provisionally
released to attend his mother funeral provided he returned
no later than 2 February 2004 and abode by the stringent
conditions set out in the disposition.2
DISCUSSION
Applicable law
- Both Articles 20 and 21 of the Statute of the
Tribunal (“Statute”) bestow upon
the Trial Chamber the responsibility for ensuring that
a trial is fair and expeditious and that proceedings
are conducted in accordance with the Rules, with
full respect for the rights for the accused and
due regard for the protection of victims and witnesses.
- Rules 65 of the Rules sets out the basis upon
which a Trial Chamber may order provisional release
of the Accused and provides in relevant part that:
(A) Once detained, an accused may not released
except upon an order of a Chamber.
(B) Release may be ordered by a Trial Chamber
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 accused will appear for trial and, if
released, will not pose a danger to any victim,
witness or other person (…)
- The Trial Chamber will thus examine, in turn,
whether it is satisfied that if provisionally released,
the Accused will appear for trial and not pose a
danger to any victim, witness or other person.
Application of the law to the facts of
the case
Whether the Accused will appear for trial
- The Defence submits that several factors indicate
that the Accused, if provisionally released, would
appear for trial. Firstly, the Defence alleges that
the Accused voluntarily surrendered on 15 May 2002.
Secondly, the Defence submits that the Accused was
provisionally released between 30 January and 2 February
2004 to attend his mother’s funeral, that he fully
complied with the Second Decision on Provisional
Release and that he returned to the United Nations
Detention Unit (“Detention Unit
”) on 2 February 2004. The Defence further submits
a personal undertaking of the Accused that he will
make himself available whenever the Tribunal so demands
and that this undertaking should be read in light
of the Accused’s behaviour in the
Detention Unit. Finally, the Defence submits that the
guarantees from the Government of Serbia and Montenegro
and that from the Republic of Serbia have been reiterated
in the past, complied with when the Accused was allowed
to attend his mother’s funeral
on 30 January 2004 pursuant to the Second Decision
on Provisional Release and are still valid to support
the Motion.
- In its Response, the Prosecution submits that
the Accused has not met his burden of proving that
he will appear for trial. Indeed, the Prosecution
submits that the Accused cannot claim to have voluntarily
surrendered when he had been a fugitive for almost
seven years. Secondly, the Prosecution submits that
the attendance by the Accused at his mother’s funeral
cannot be compared with what is proposed by the
pending Motion. Thirdly, the Prosecution submits
that little weight can be attributed to the Accused’s
personal undertaking to present himself at trial.
Finally, the Prosecution submits that the documentation
referred to by the Defence in paragraphs 26 to 28
of its Motion does not qualify as evidence of current
appropriate guarantees pursuant to Rule 65 (B) of
the Rules. The Prosecution additionally submits that
the risk of flight of the Accused is enhanced by
the possibilities of a transfer of venue, if provisionally
released while a Rule 11bis request for his
case to be transferred is still pending with the
Referral Bench. The Prosecution finally raises the
fact that the Accused is charged with extremely serious
charges, thus facing lengthy prison sentences.
- The Trial Chamber will consider all those relevant
factors which a reasonable Trial Chamber would have
been expected to take into account before coming
to its decision as to whether the Accused will appear
for trial if he is provisionally released.3
- First, regarding the issue of voluntary surrender,
the Trial Chamber, in its First Decision on Provisional
Release considered that
In light of the circumstantial
evidence surrounding his presence before this
Tribunal, it seems rather doubtful whether
the Accused, having failed to voluntarily surrender
during all these years can be treated as if
he had in fact, voluntarily surrendered . (…)
Accordingly, this factor of surrender can only have
limited impact upon the Trial Chamber’s determination
of this application.4
- The Appeals Chamber held that the Trial Chamber
had “evaluated the circumstances
which it thought to be relevant and reached a conclusion
which was open to it” and
had thus not reached a decision which no other reasonable
tribunal of fact could have reached.5
- The underlying facts remain the same. Consequently
the Trial Chamber, assessing the Motion, sees no
reason to depart from the findings of the First Decision
on Provisional Release in this respect and thus
considers that the factor of surrender of the Accused
can only play a limited role in the balancing exercise
to be conducted by the Trial Chamber pursuant to
Rule 65 (B) of the Rules.
- Second, the Trial Chamber notes that the Second
Decision on Provisional Release allowed the Accused
to attend his mother’s funeral, that the Second Decision
on Provisional Release was based on exceptional
grounds of compassion and that it was subject to
stringent restrictions, namely being escorted at
all times either by an official of the Republic
of Serbia and Montenegro or of the Kingdom of the
Netherlands and returning to the Detention Unit
within three days. The Trial Chamber thus considers
that the circumstances supporting the Second Decision
on Provisional Release cannot be compared to the
present.
- Third, the Trial Chamber notes that the Defence,
rather than appending a fresh guarantee either from
the Government of Serbia and Montenegro or from the
Government of the Republic of Serbia to its Motion,
chooses to rely on the guarantees previously submitted
on 13 June 2002 and 31 January 2004 and which were
for specific periods of time. In examining the Motion,
the Trial Chamber cannot consider the guarantees
previously submitted with regard to the motions
leading to the First and Second Decisions on Provisional
Release as valid and current guarantees that the
witness will appear for trial, if provisionally
released.
- Fourth, the Trial Chamber does not consider that
a request for referral filed by the Prosecution
pursuant to Rule 11bis is a new factor changing
the situation of the Accused to such an extent that
the two Rule 65 (B) criteria would be fulfilled .
The request for referral in this case is still pending
before the Referral Bench and it is not for this
Trial Chamber to intervene in any way in that decision.6
However, its relevance may well be to aggravate the
risk that the Accused will not appear for trial.
- Finally, the Trial Chamber notes the gravity of
the crimes with which the Accused is charged in
the Second Modified Consolidated Amended Indictment7.
The Indictment charges the Accused, pursuant to Articles
7 (1) and 7 (3) of the Statute, with various offences
allegedly committed subsequent to the Serb takeover
of the city of Vukovar (Republic of Croatia), namely
with eight counts of persecutions, extermination,
inhumane acts (crimes against humanity), cruel treatment
(violation of the laws and customs of war), murder
(both a crime against humanity and a violation of
the laws and customs of war) and torture (both a
crime against humanity and a violation of the laws
and customs of war). For the crimes charged in the
Indictment, the Accused, if convicted, would face
extremely lengthy prison sentences.
- Considering all the above, the Trial Chamber is
therefore not satisfied that, if provisionally released,
the Accused would appear for trial.
Whether the Accused will pose a danger to
any victim, witness or any person
- The Defence submits that the current financial
situation of the Accused, the fact that he complied
with the Second Decision on Provisional Release and
the fact that victims from the Republic of Croatia
have been giving evidence before the Belgrade District
Court in the “Ovcara Farm” proceedings without any
problems indicate that the Accused would be in no
position to exert influence on the victims and witnesses
if he were provisionally released.
- The Prosecution submits that the Accused has not
met his burden of proving that he will not pose
a danger to any victim, witness and their family.
- The Trial Chamber agrees with the Prosecution
that the burden is on the Accused to prove that
he will not pose a danger to any victim, witness
and their family. The Trial Chamber does not consider
that invoking the current financial status of the
Accused and his compliance with the Second Decision
on Provisional Release is sufficient for the Trial
Chamber to be satisfied that the second cumulative
criterion provided for in Rule 65 (B) is fulfilled.8
- The Trial Chamber is thus not satisfied that,
if provisionally released, the Accused would not
pose a danger to any victim, witness or other person.
The proportionality of the pre-trial detention
of the Accused
- The Defence submits that the Trial Chamber is
required to asses the length of the pre-trial detention
in light of the fact that the Accused has spent almost
three years in pre-trial detention.
- The Prosecution submits further that the decisions
of the European Court of Human Rights do not purport
to impose a set time-limit for pre-trial detention
and that the reasonableness of the pre-trial detention
should be assessed on a case- by-case basis.
- The Trial Chamber recalls the reasoning of its
First Decision on Provisional Release where it acknowledged
the relevance of Rule 65 to the application of the
International Covenant on Civil and Political Rights
of 19 December 1996 (“ICCPR
”) and of the European Convention for the Protection
of Human Rights and Fundamental Freedoms of 4 November
1950 (“ECHR”), and that “the Trial Chamber must interpret
Rule 65 not in abstracto but with regard to
the factual basis of the particular case and with
respect to the concrete situation of the individual
applicant.”9
- While the Accused has been in detention since
15 May 2002, the length of the period of pre-trial
detention must be assessed in light of the specific
circumstances of this case. The Indictment charges
the Accused along with two co-accused, Miroslav
Radic and Veselin Sljivancanin (“Co-Accused”), who
were transferred to the Tribunal respectively on
17 May 2003 and 13 June 2003, for the crimes aforementioned.
The Accused is charged with the murder and extermination
of at least two hundred and sixty four Croat and
other non-Serbs. In the two years and ten months
of pre-trial detention of the Accused, the investigation
into the crimes has been ongoing and conducted in
a reasonable manner. The Trial Chamber thus considers
that the length of pre-trial detention of the Accused
is proportional to the circumstances of the case
brought against him in the Indictment.
DISPOSITION
For the foregoing reasons,
PURSUANT to Articles 20 and 21 of the Statute
of the Tribunal and Rule 65 of the Rules
TRIAL CHAMBER II HEREBY DENIES the Motion.
Done in French and English, the English version being
authoritative.
Dated this ninth day of March 2005,
At The Hague
The Netherlands
______________
Carmel Agius
Presiding Judge
[Seal of the Tribunal]
1 - See First
Decision on Provisional Release, paras 1-10 for a detailed
procedural background.
2 - See Second Decision on
Provisional Release, pp.3-4.
3 - Prosecutor
v. Nikola Sainovic & Dragoljub Ojdanic, Case No.
IT-99-37-AR65, Decision on Provisional Release, 30
October 2002 (“Sainovic
Appeal Decision on Provisional Release”), para. 6.
4 - First
Decision on Provisional Release, para. 43.
5 - Appeal
Decision on Provisional Release, paras 14-15.
6 - Motion
by the Prosecution under Rule 11bis for referral of
the Indictment, 8 February 2005; Order by the President
appointing a Trial Chamber for the purpose of determining
whether an indictment should be referred to another
court under Rule 11bis, 10 February 2005.
7 - The “Preliminary
Motion in Respect to the Third Modified Consolidated
Amended Indictment” filed by Co-Accused Veselin Sljivancanin
on 13 December 2004 is still pending and the Trial
Chamber will therefore refer to the Second Modified
Consolidated Amended Indictment of 26 August 2004 (“Indictment”)
as the operative indictment against the Accused.
8 - The
Trial Chamber notes that the “Prosecution Motion for
Protective Measures of Sensitive Witnesses” filed confidentially
on 17 December 2004 and the “Prosecution Motion for
Order of Protective Measures” filed confidentially
on 31 January 2005 are still pending before the Trial
Chamber.
9 - First
Decision on Provisional Release, paras 28-35.