Case No.: IT-03-69-AR65.1

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, Presiding

Judge Fausto Pocar
Judge Florence Mumba
Judge Mehmet Güney
Judge Inés Weinberg de Roca Registrar:
Mr. Hans Holthuis

Decision of:
3 December 2004

PROSECUTOR

v.

JOVICA STANISIC

_______________________________________

DECISION ON PROSECUTION’S APPEAL AGAINST DECISION GRANTING PROVISIONAL RELEASE

_______________________________________

Counsel for the Prosecution

Mr. Dermot Groome
Mr. David Re

Counsel for the Accused:

Mr. Geert-Jan Alexander Knoops and Mr. Wayne Jordash for Jovica Stanisic

 

I. Background

1. On 30 September 2004,1 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 Former Yugoslavia since 1991 (“International Tribunal”) granted the Prosecution’s application for leave to appeal the decision of Trial Chamber III issued on 28 July 2004 granting the accused Jovica Stanisic’s application for provisional release (“Impugned Decision”).2 The Prosecution appeals the Impugned Decision pursuant to Rule 65(D) of the Rules of Procedure and Evidence (“Rules”).3

2. Before addressing the merits of the Prosecution Appeal, the Appeals Chamber will first address a procedural matter. Stanisic filed a response to the Prosecution’s Appeal and requested in the filing that he be granted an extension of the page limit so that his response would be received as validly filed.4 The Response filed by Stanisic is 21 pages long, the word average per page is 364, an approximate total of 7644 words. The Practice Direction on the Length of Briefs and Motions5 provides that a response not exceed 30 pages or 9,000, whichever is greater.6 Accordingly, Stanisic has not exceeded the permissable limits and no extension of the page limit is required.

3. In this Appeal, the Prosecution argues that the Trial Chamber erred in its consideration of whether Stanisic, if released will appear for trial, and in its findings on whether, if released, Stanisic will not pose a danger to any victims, witnesses or other persons. The Prosecution claims that the Trial Chamber erred in its consideration of the cooperation of Stanisic with the Office of the Prosecutor (“OTP”), the seriousness of the charges and the length of likely pre-trial detention, and the strength of the Government Guarantees obtained by the Accused.7

II. Submissions of the Parties

Cooperation of the Accused

4. The Prosecution claims that the Trial Chamber erred in finding that Stanisic showed some degree of cooperation with the Prosecution. The Prosecution says that the Trial Chamber’s consideration of the evidence in support of this finding was “wholly erroneous, leading it into legal error”.8 It argues that the Trial Chamber gave excessive weight to the fact that Stanisic was voluntarily interviewed prior to the passing of the law on cooperation with the International Tribunal by Serbia and Montenegro. It argues that this was not a valid consideration in circumstances where the Prosecution had interpreted the information provided by Stanisic as having little value.9

5. The Prosecution argues that it tendered a declaration of its Investigator, Bernard O’Donnell, who interviewed Stanisic in November 2001. In that declaration, he stated that:

“…the information given by Mr Stanisic about the activities of the Serbian DB was considerably different, and inconsistent, with information obtained by other witnesses associated with the DB…Mr Stanisic denied that the State Security Service was involved in any way in military action or with military groups in Bosnia. He claimed that the Serbian DB did not have armed formations at any time during the war in Bosnia and that no DB members were active in the war. Despite evidence put to Mr Stanisic from other members of the DB which contradicted his assertions, he maintained this stance throughout the interview…Mr Stanisic stated that…the Serbian DB were not present in Bosnia because it was a separate country. Mr Stanisic claimed that Arkan had no connection with the Serbian DB, contrary to the extensive evidence received from a number of sources”.10

The Prosecution argues that Investigator O’Donnell, in response to questioning from the Trial Chamber, told the Chamber that some of the points of inconsistency related to formation of the units. Stanisic gave information that they were formed in 1996, and that the Serbia State Security (DB) had no formed units prior to 1996; that is, the Serbia DB had no units operating in Bosnia and Herzegovina during the war. However, the Investigator had information from a number of witnesses that the DB units were operative during the war.11

6. The Prosecution argues that in taking into account the fact of the interviews, the Trial Chamber gave excessive weight to the mere fact of the interviews rather than the quality of the information Stanisic provided to the Prosecution. It claims that the information given “was essentially self-serving and of no value and, basically misleading” and that the Trial Chamber should have discounted it.12

7. The Prosecution also claims that the Trial Chamber erred in finding that cooperation was not disproved by the lack of value attributed to the information provided. It says that Stanisic was head of the Serbian DB and had access to vital information that he could have provided to the Prosecution. It claims that the Trial Chamber erred in failing to consider the position of the accused, and his access to relevant information that he could have provided.13 It says that the information that he did provide “severely conflicted with evidence ” the Prosecution had presented in other cases, as to the role of the Serbian DB in the crimes committed in the Republic of Croatia and Bosnia and Herzegovina.14

8. The Prosecution claims further that Stanisic himself stated to Dr Offerman that he still had vital information at his disposal, even though he no longer held any political power, and that Stanisic’s own assessment runs contrary to the Trial Chamber’s finding that “there is no evidence that the Accused possesses information, which would provide a substantial disincentive for the State authorities to enforce the guarantee in support of his provisional release.”15 The Prosecution argues that, as Stanisic himself has said that he possesses information, whether this is a “substantial disincentive” will depend upon who is in power at any given time.16 It says that each of the three Government Guarantees presented by Stanisic are from Governments who have failed in their obligations to cooperate with the International Tribunal. As such, the Trial Chamber’s evaluation of this evidence “was wholly erroneous causing it to fall into legal error.”17

9. In Response, Stanisic argues that no error was committed by the Trial Chamber in its consideration of the evidence. He claims that the fact that he agreed to be voluntarily interviewed at a time when the law on cooperation with the International Tribunal had not yet been passed, “may have determinative value as to the sincerity of the cooperation of the Accused.”18 He says that, at this stage of the proceedings, it is not decisive “whether the information provided... in the realm of this cooperation... can be qualified as ‘inconsistent’ or ‘contrary to the extensive evidence received from a number of sources’.”19 Stanisic further argues that the evidentiary value of the evidence he gave is a matter for trial, and that in the context of provisional release, where it is not suitable to deal extensively with such issues, such an assessment is “premature and presumptous.”20 Stanisic claims that another view “would lead to an unjustifiable shift of evidentiary determination of information from the trial proceedings to the provisional release proceedings.”21

10. Stanisic further claims that it is not possible to evaluate the subjective statements of Investigator O’Donnell within the realm of provisional release applications, and that the Prosecution has not done so.22 He says that he filed numerous documents with the provisional release motion, “which may at least indicate the fact that his denial that the State Security Service was involved in military action or with military groups in Bosnia, bears merit.”23 Therefore, he claims that it is “presumptous and far from justified to qualify the information of the Accused, already at this stage as ‘basically misleading’.”24 He says that the only thing relevant at this stage, is that he agreed voluntarily and without legal counsel to be interviewed by the prosecution at a time when there was no Serbian law on cooperation with the International Tribunal.25 The interviews were extensive, conducted over several days and he provided the prosecution with 19 documents. He also put the Prosecution in contact with several important officials, to enable the Prosecution to obtain witness statements from those individuals.26 Further, a defence counsel of another International Tribunal indictee, Mr. Robert Pavich, gave evidence before the Trial Chamber that Stanisic provided him with important information that he conveyed to the Prosecution. Mr. Robert Pavich stated that the documents provided to him “contained information about certain crimes committed in Croatia in 1991 and Bosnia and Herzegovina in 1992, and it indicated involvement of a high political figure, who currently also awaits trial before the ICTY.”27 Stanisic draws the Appeals Chamber’s attention to an observation made by Mr. Pavich that, “at a meeting subsequent to the submission of the documents, high OTP officials described their preparation and content as ‘professional’.”28

11. With respect to the reliance of the Prosecution upon the report of Dr. Offermans as showing that the Trial Chamber erred in holding that no evidence existed establishing a substantial disincentive for the State authorities to enforce the guarantees, Stanisic argues that the Prosecution disregards the fact that the nature of his work was intelligence, and also claims that he never said that he was in possession of information that may act as a disincentive to state enforcement.29 He says that the fact that the State authorities gave Government Guarantees “already indicates that the ‘information’ the Accused still has based upon his expertise, in no way qualifies as a ‘disincentive’ to enforce the guarantees. When this were to be so, the State authorities would never have filed guarantees at all.”30

12. Finally, Stanisic argues that at the time he gave an interview to the Prosecution he was a suspect and entitled to a right against self-incrimination.31

13. In reply, the Prosecution argues that Stanisic bore the evidentiary burden in his application for provisional release and the function of the Trial Chamber was to evaluate his cooperation with the Prosecution for the purpose of his application. Any assessment of the information provided for the purposes of evaluating his cooperation has no bearing on what might happen at trial.32 Further, it says, with respect to Stanisic’s claim to the privilege against self -incrimination, this privilege was not at issue, but “rather the degree and extent of cooperation with the Prosecution for the purposes of determining an application for provisional release” was the issue.33

Analysis

14. The Appeals Chamber is not satisfied that the Prosecution has identified any possibility that the Trial Chamber erred in its consideration of the cooperation of Stanisic with the Prosecution. It is well within the discretion of the Trial Chamber to take into account the voluntariness of Stanisic in his interviews, at a time when the law on cooperation with the International Tribunal had not yet been passed in Serbia and Montenegro. The Appeals Chamber does not accept the assertion of the Prosecution that the cooperation of an accused is to be assessed solely by reference to the value of the information the accused provides, or that the Trial Chamber should accept the Prosecution assertions that the information provided was not as useful as it might have been. An accused before this International Tribunal is not obliged to assist the Prosecution in proving its case, and any evidence of willingness on the part of an accused to be voluntarily interviewed by the Prosecution is evidence of a degree of cooperation that an accused is entitled to withhold, without adverse inference being drawn. As such, there was no error on the part of the Trial Chamber in considering the fact of Stanisic’s voluntary interviews to be evidence of cooperation on his part with the Prosecution.34

Seriousness of the crimes charged

15. The Prosecution argues that the Trial Chamber erred by failing to give proper consideration to the seriousness of the crimes with which the Accused is charged, and in considering this factor by reference to a possible period of pre-trial detention only.35 It says that Stanisic is charged with participating in committing some of the most serious crimes against humanity, including participation in ordering a number of massacres of civilians in Bosnia and Herzegovina and Croatia.36 It argues that the jurisdiction of the International Tribunal is limited to the most serious of crimes, each of which carries a maximum penalty of a life sentence, and that in noting the jurisprudence of the European Court of Human Rights, that “the gravity of the charges cannot of itself serve to justify long periods of detention of remand”, the Trial Chamber failed to give any consideration to whether the “period was excessive in the circumstances”, and how this relates to the crimes of which Stanisic is charged.37 In support of this argument, the Prosecution refers to the decision of the Trial Chamber in Brdanin & Talic, where the Trial Chamber stated, “what is a reasonable length of pre-trial detention must be interpreted, so far as the International Tribunal is concerned, against the circumstances in which it has to operate.”38 The Prosecution claims that in the Impugned Decision the Trial Chamber, while appearing to consider that the period of remand would be long, did not consider the length or context of that remand. It says that the anticipated pre-trial detention of Stanisic cannot be excessive in light of his individual circumstances, “namely the gravity of the charges, the seniority of the accused, and the unique position of the International Tribunal”.39

16. The Prosecution also argues that the Trial Chamber erred in law in failing to give due regard to the difference between accused facing trial at the International Tribunal, and those facing trial in a domestic jurisdiction. It claims that the Trial Chamber failed to consider the material difference between national jurisdictions and that of the International Tribunal, by attributing insufficient weight to the gravity of the crimes alleged against Stanisic.40

17. The Prosecution refers to the jurisprudence of the International Tribunal and claims that there are conflicting approaches by the Appeals Chamber on the scope of the applicability of the provisions of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) and the International Convenant on Civil and Political Rights (“ICCPR”), as they apply to the provisional release of the accused indicted before the International Tribunal.41 The Prosecution identifies the conflict as centering on the “implication of the differences between domestic and international courts.”42

18. In the case of Prosecutor v Limaj et al, a three member bench of the Appeals Chamber stated that “no distinction can be drawn between persons facing criminal procedures in their home country or at the international level” and therefore the International Tribunal’s Rules on provisional release must be read in light of the ICCPR and ECHR and its jurisprudence.43 In the decision of Prosecutor v Brdanin & Talic, a three member bench of the Appeals Chamber noted that in applying internationally recognised standards, “account has to be taken of the different circumstances and situations envisaged by those standards which did not visualise the nature and character of the International Tribunal and that the International Tribunal does not have the same facilities as are available to national courts to enforce appearance.”44 The Prosecution says that the the Tadic Appeal Judgement supports the approach taken in Brdanin & Talic. In that Appeal, the Appeals Chamber “distinguished between the procedural rights to parties mandated in the ECHR case law and the conditions actually pertaining in international tribunals, which have no enforcement mechansims of their orders.”45 The Prosecution claims that applying this reasoning to Rule 65(B), it would be disadvantaged in presenting its case if it was unable to secure the attendance of an accused person for trial.46

19. The Prosecution argues further, that there are fundamental differences between international tribunals and domestic courts because the International Tribunal is dependent upon the cooperation of States. It says that the provisional release of high-ranking officials charged with the most serious violations of international humanitarian law poses potentially greater risks for victims, witnesses and the administration of justice than at a national level.47 It says that an accused facing the possibility of conviction for even one offence, “generally has a greater incentive to flee than a person facing charges in a domestic situation.”48 The Prosecution also submits that the Trial Chamber “erred in failing to place any weight on the fact that provisional release in the circumstances of this particular case – the seriousness of the crime alleged and the seniority of the Accused – could weaken the confidence of the international community in the Tribunal’s administration of justice.”49

20. In Response, Stanisic argues that the Trial Chamber rightly considered the seriousness of the allegations against him, which are reduced with the removal of the counts relating to Vukovar.50 Further, he says that the allegations made in the indictment are “mere accusations and in no way can they justify the conclusion that the Accused will face a long prison sentence.”51

21. Stanisic also challenges the Prosecution argument that his provisional release “could weaken the confidence of the international community in the Tribunal’s administration of justice.”52 He argues that this argument should be viewed from a rule of law perspective.53 “In the event an Accused meets all the criteria for provisional release, a just application of the rule of law and the principle of equity should lead to provisional release and by applying this system based on these fundamental principles of morality and justice, the confidence of the international community in the Tribunal’s administration of justice may be endorsed instead of weakened.”54

22. Stanisic also challenges the distinction drawn by the Prosecution between persons facing trial in a domestic jurisdiction and before the International Tribunal. He argues that no such distinction follows from the jurisprudence of the ECHR or the case law of the ICTY. In support of this argument, Stanisic says that the ICTY has, in several of its decisions, relied on the case law of the ECHR55 and points to the Limaj decision referred to by the Prosecution above.56 Stanisic says that the lack of distinction found in the jurisprudence of the ECHR and ICTY negates the Prosecution’s argument that “there are fundamental differences between international tribunals and domestic courts,” or that any procedural difficulty that an international tribunal may have in apprehending an accused is to accrue to the detriment of the accused facing prosecution before the International Tribunal.57

23. Stanisic refers to the Prosecution’s reliance upon the Tadic Appeals Judgment consideration of the principle of equality of arms as remarkable.58 He says that that principle does not have the legal connotations that the Prosecution places upon it, “it intends to secure that both parties can prepare and present their case in an equal way whereby they have equal access to evidence and resources to present its case.”59 As such, it is inapplicable to provisional release.60

24. Stanisic argues further that his grant of provisional release could have a positive effect on public opinion in Serbia, and therefore the Prosecution’s allegation of a negative effect is further weakened.61 He further claims, that his seniority, which the Prosecution says should inhibit his provisional release, ignores the Rule 70 material of two governments which show how many have benefited from his seniority. “Especially the qualification by the US Government of the Accused as being a ‘reliable mediator’ throughout a very complicated crisis.”62 This material, he claims, supports his commitment to the rule of law and the proceedings of the International Tribunal.63

25. In Reply, the Prosecution says that the removal of the charges relating to Vukovar would not significantly reduce any sentence that may be imposed upon the accused.64 It says that with or without these charges the expected length of sentence would provide a disincentive for Stanisic to appear for trial. It emphasises that every crime in the International Tribunal’s Statute carries a possible life sentence, and that this is in complete distinction to domestic crimes.65 It argues that for reason of the potential punishment, there is greater reason not to appear for trial before the International Tribunal than a domestic court.66

26. The Prosecution further argues that it ignored the Rule 70 material in its submissions because this material is irrelevant to the question of whether Stanisic “facing a potential sentence of life imprisonment if convicted, will appear for trial.”67

Analysis

27. The Appeals Chamber is not satisfied that the Prosecution has established that the Trial Chamber erred by failing to give proper consideration to the seriousness of the crimes charged. The Trial Chamber expressly stated that Stanisic is charged with serious criminal offences, including persecutions as a crime against humanity, and that if convicted he will likely face a long prison sentence.68 The Trial Chamber disregarded the evidence adduced by Stanisic to reduce the likelihood of conviction on the basis that, for the purpose of provisional release, the Trial Chamber was only concerned with the possibility of a long prison sentence being imposed.69 Although the Trial Chamber did not dwell on the seriousness of the crimes charged, it is not required to do so. The Trial Chamber correctly reasoned that it was one of the factors that it was required to take into account, and observed that the gravity of the charges is not considered by the European Court of Human Rights of itself to provide justification for long periods of detention on remand.70 The Trial Chamber also considered its dependence on the authorities of Serbia, finding itself satisfied that those authorities would re-arrest Stanisic and transfer him to the International Tribunal should the need arise.71

Government Guarantees

28. The Prosecution argues that the authorities in Serbia and Montenegro have persistently failed to cooperate with the International Tribunal for many years. It says that at the hearing it tendered evidence of this non-cooperation in the form of a letter of the President of the International Tribunal to the Security Council, notifying it of the Prosecutor’s complaint of “a consistent failure on the part of Serbia and Montenegro to comply with the obligations under Article 29 of the Statute and Rule 39.”72 The Prosecution claims that the Trial Chamber noted, but failed to consider the President’s letter in its deliberations on the reliability of the Government Guarantees. It argues that in so doing, the Trial Chamber erred by placing no weight on the President’s letter and in giving any weight to the statement of the Serbian Minister of Justice that it would be “perfectly simple” to arrest the Accused.73

29. The Prosecution also argues that the Trial Chamber erred by refusing to admit the Prosecutor’s report as further evidence after the hearing,74 and that the Trial Chamber erred in law in failing to admit into evidence a video and transcript of an interview with the Serbian Prime Minister, Vojislav Kostunica.75

30. The Prosecution also argues that the Trial Chamber erred by placing excessive weight on the fact of transfer of Stanisic to the International Tribunal by the authorities in Belgrade after his arrest following the assassination of Prime Minister Zoran Ðindic. It claims that the Trial Chamber also erred in failing to consider not only the circumstances prevailing at this time, but how the situation may be at the time in which Stanisic is to be returned for trial.76 It argues that the Trial Chamber failed to consider the decreasing willingness of the authorities in Belgrade to cooperate with the International Tribunal, and that the circumstances in Belgrade have changed since the arrest of Stanisic.77 It claims that the Trial Chamber failed to consider that the reliability of the guarantees can be thwarted by circumstances out of the control of the government official that gives the guarantee.78 It says that experience has shown that it is not “perfectly simple” to arrest an indictee.79 It claims that a number of persons indicted by the International Tribunal are living openly in Serbia and that although their details have been passed to the Serbian authorities they have not been apprehended and remain at large.80

31. The Prosecution says that during cross-examination, the Serbian Minister for Justice’s response to questioning about the non-apprehension of indictees Lazarevic and Ðordevic, was to say that as far as he is aware there are a number of problems. There had been a change in government and a council for cooperation with the International Tribunal had not yet been appointed and that council would be responsible for future action. Currently they were in an interim situation as the body responsible for cooperation with the International Tribunal was yet to be fully formed. However, they were aware of the existence of the indictments and their obligations thereto and “will certainly act in accordance with our obligations.”81 The Prosecution argues that, irrespective of the Minister’s awareness of the public indictees the fact that the indictees remain at large illustrates the depth of the Trial Chamber’s error in placing reliance on the Minister’s claim that it would be “perfectly simple” to re-arrest the Accused if provisionally released.82

32. The Prosecution claims further that one changed circumstance relates to the murder of Prime Minister Zoran Ðindic in March 2003. It refers to a report made by Dr. Offerman that Stanisic told him that his arrest and transfer to the International Tribunal came as a surprise, which he attributed to events after the murder of Prime Minister Zoran Ðindic.83 Stanisic attributed his arrest to the jealously of others, and mafia connections of high government officials who wanted him out of the way.84 The Prosecution argues that the Trial Chamber’s evaluation of the evidence was wholly erroneous in that it failed to consider Stanisic’s understanding as to the reasons for his arrest, and to place this within the context of the changed polticial circumstances in Belgrade.85

33. In response, Stanisic argues that the Trial Chamber committed no error in its consideration of the Government Guarantees. He says that guarantees given by the “SCG” Government have always been fulfilled in the past, and the International Tribunal has recognised such guarantees in the cases of Plavsic, Jokic and Strugar.86 Further, he argues that such guarantees are to be assessed in relation to the circumstances of the individual and that the report of the President of the International Tribunal has no relevance to the specific guarantees provided in his case.87 Stanisic says that the Minister of Justice stated that the guarantees were enforceable against him, and that the Governments will comply with them. As such the Prosecution’s argument of general non-cooperation is irrelevant to his case.88

34. Stanisic claims further that the Prosecution overlooks the observation of the Trial Chamber that he intended to surrender voluntarily, and the fact that the Government has already demonstrated its willingness to arrest and surrender him to the International Tribunal.89 He says further that a potential change in political circumstances does not affect the legitimacy and reliability of the guarantees given in relation to him.90 He argues that changes in political circumstances show an increased willingness of cooperation with the International Tribunal by the Serbian authorities and not the increased unwillingness claimed by the Prosecution.91

35. In Reply, the Prosecution argues that it does not dispute that guarantees given by the “SCG government” in the cases of Biljana Plavsic, Miodrag Jokic and Pavle Strugar were respected. However, it says that both Biljana Plavsic and Miodrag Jokic pleaded guilty and entered into plea agreements with the Prosecution, and that the Prosecution is seeking a far lesser sentence for Pavle Strugar than it would for Stanisic if he is convicted. It also argues that there is a material difference in the seniority of Stanisic and these other accused. Biljana Plavsic was a non-citizen, and Miodrag Jokic and Pavle Strugar both long-retired military officers of the Federal armed forces.

36. The Prosecution further states that, in general, “it does not disagree that there has been some recent improvements in relations between the International Tribunal and the State Union of Serbia and Montenegro,” but says that the police and special services, who are under the control of the Republic of Serbia, has to date failed to locate and arrest any indictee.92

Analysis

37. The Appeals Chamber is not satisfied that the Prosecution has identified error on the part of the Trial Chamber in its consideration of the Government Guarantees. In the Impugned Decision, the Trial Chamber stated quite clearly that the weight to be attributed to the Government Guarantees depended on the personal circumstances of the accused, which must be assessed at the time when the decision on provisional release is being taken, and also, as far as is forseeable, the time when he will be expected to return for trial.93 The Trial Chamber carefully considered the Appeals Chamber decision in Mrksic, and the statement of the Appeals Chamber that “the weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position which he held prior to his arrest.”94

38. Applying the reasoning of the Appeals Chamber in Mrksic, the Trial Chamber properly considered the senior position Stanisic had held in the Serbian State Security and found that there was no evidence to suggest that he held information, which would act as a discentive for the State authorities to enforce the guarantees they had given in support of his provisional release.95 It also considered that the fact that the authorities had arrested Stanisic in Belgrade and then transferred him to the International Tribunal meant that even if Stanisic did possess valuable information, the government had already shown its willingness to cooperate with the International Tribunal in relation to him. The Trial Chamber’s conclusion that the authorities would re-arrest the accused if necessary, was entirely proper. In conjunction with this evidence, was evidence that Stanisic himself had shown a willingness to voluntarily surrender to the International Tribunal,96 and the statement of the Minister of Justice that re-arrest of the accused would be “perfectly simple.”97

39. Accordingly, the Appeals Chamber is not satisfied that the Prosecution has identified that the Trial Chamber may have erred in its consideration of the Government Guarantees by placing insufficient weight upon the failure of the authorities to co-operate with the International Tribunal. The Trial Chamber did considered this factor, as it was entitled to, in light of the evidence that, in relation to the accused Stanisic, the authorities had shown a willingness to co-operate.

Will not pose a danger to victims and witnesses

40. The Prosecution argues that the Trial Chamber erred in finding that the fear “of the witnesses reflects more a “generalised concern,” rather than an apprehension linked to any specific acts or conduct of the Accused. It argues that the Trial Chamber failed to give weight or consideration to the position of Stanisic within the Serbian State Security heirarchy over a signficant period of time, or the fact that the “generalised concern” of the witnesses arises from the position occupied by Stanisic in the Serbian State Security during the period of the ethnic cleansing in Bosnia and Herzegovina and Croatia.98 The Prosecution claims that it adduced “very specific evidence of interference in fact.”99 A Prosecution investigator, who testified at the hearing, referred to a witness who had told him that “all former members of the Special Unit(s) who were summoned by the OTP for an interview, were obliged to meet with the Accused prior to and after the interview. The witness gave the names of two former Special Unit members who met the Accused and it appeared to the investigator that the Accused “wanted to screen the interviews.”100 The Prosecution argues that the Trial Chamber “wrongly failed to place any or sufficient weight on this evidence and its wholly erroneous evaluation of the evidence caused it to err in law.”101

41. In response, Stanisic argues that the Trial Chamber was correct in finding that if released he would not pose a danger to victims, witnesses or other persons. He argues that the Trial Chamber properly considered the evidence as a whole and that the Prosecution investigator did not come up with any concrete evidence of his purported meeting with witnesses, and failed to indicate any connection between this meeting and the alleged fear of witnesses claimed by the Prosecution.102

42. The Prosecution makes no reply to this argument in its Reply.

Analysis

43. The Appeals Chamber is not satisfied that the Prosecution has identified any error in the Trial Chamber’s finding that if released Stanisic would not pose a danger to any victims or witnesses or other persons. The Trial Chamber considered the evidence of the Prosecution investigator that a large number of potential witnesses refused to be interviewed for fear of their safety,103 and the Investigator’s evidence that certain witnesses expressed their particular fear of Stanisic and his co-accused Simatovic.104 It also considered the evidence of the Investigator that a witness had told him that “all former members of the Special Unit[s] who were summoned by the OTP for an interview, were obliged to meet” Stanisic before and after the interview. The Trial Chamber noted that there was no evidence that that witness had himself met with Stanisic.105 The Trial Chamber then considered Stanisic’s response to these allegations: (1) that “the investigator did not verify the nature of the meetings with two former Special Unit members, and based his conclusion that the Accused wanted to screen the interviews solely on the similiarities of the statements and dates”;106 and (2) that the “investigator did not further verify the statements of the witneses, and testified that he never received any concrete evidence that the Accused himself had tried to influence any witness.”107 There is nothing to suggest that the Trial Chamber did not properly consider all the circumstances. The Appeals Chamber is satisfied that those circumstances allowed it to properly conclude that there was in fact no evidence that Stanisic had interfered or would interfere with the administration of justice.108

III. Disposition

44. On the basis of the foregoing, the Appeals Chamber is not satisfied that the Trial Chamber erred in granting Stanisic’s application for provisional release. The Prosecution Appeal is dismissed.

 

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

Done this 3rd day of December 2004,
At The Hague,
The Netherlands.

______________________
Judge Meron
Presiding Judge

[Seal of the Tribunal]


1. Decision on Prosecution’s Application for Leave to Appeal Decision on Provisional Release, 30 September 2004.
2. Prosecutor v. Stanisic and Simatovic, Case No.: IT-03-69-PT, Defence Motion for Provisional Release, Confidential and ex parte, 30 January 2004.
3. Prosecution’s Appeal Against “Decision on Provisional Release”, 8 October 2004 (“Prosecution Appeal”).
4. Defense Response to “Prosecution’s Appeal Against “Decision on Provisional Release” and Request for Extension of Page Limit, 13 October 2004 (“Response”).
5. (IT/184/Rev.1), 5 March 2002.
6. Ibid, par 2.
7. Prosecution Appeal, par 7.
8. Ibid, par 10.
9. Ibid, par 10.
10. Ibid.
11. Ibid, par 12.
12. Ibid, par 13.
13. Ibid, par 14.
14. Ibid, par 15.
15. Ibid, par 17
16. Prosecution Appeal, par 17.
17. Ibid.
18. Response, par 7.
19. Ibid, par 7.
20. Ibid, par 8.
21. Ibid.
22. Ibid, par 9.
23. Ibid, par 9.
24. Ibid, par 9.
25. Ibid, par 10.
26. Ibid.
27. Ibid, par 11.
28. Ibid.
29. Ibid, par 14.
30. Ibid, par 15.
31. Ibid, par 17.
32. Prosecution’s Reply to Stanišic’s Response to its Appeal Against “Decision on Provisional Release”, 15 October 2004 (“Reply”).
33. Reply, par 7.
34. Impugned Decision, pars 16-18.
35. Prosecution Appeal, par 19.
36. Ibid, par 20.
37. Ibid, par 21.
38. Ibid, par 22.
39. Ibid.
40. Ibid, par 23.
41. Ibid, par 24.
42. Ibid.
43. Ibid, par 25.
44. Ibid, par 26.
45. Ibid, par 28.
46. Ibid, par 29.
47. Ibid, par 30.
48. Ibid.
49. Ibid, par 32.
50. Response, par 19.
51. Ibid.
52. Ibid, par 20.
53. Ibid.
54. Ibid.
55. Ibid, par 22.
56. Ibid, par 23.
57. Ibid, par 24.
58. Ibid, par 27.
59. Ibid.
60. Ibid.
61. Ibid, par 29.
62. Ibid.
63. Ibid.
64. Reply, pars 8-9.
65. Ibid, par 10.
66. Ibid.
67. Ibid, par 11.
68. Impugned Decision, par 21.
69. Ibid, par 21.
70. Ibid, par 21.
71. Ibid, par 27.
72. Prosecution Appeal, par 33.
73. Ibid, par 36-37.
74. Ibid, pars 34-35.
75. Ibid, par 38.
76. Ibid, par 39.
77. Ibid, par 40.
78. Ibid, par 41.
79. Ibid.
80. Ibid.
81. Ibid, par 43.
82. Ibid, par 44.
83. Ibid, par 45.
84. Ibid.
85. Ibid, par 46.
86. Response, par 32.
87. Ibid.
88. Ibid, pars 34-35.
89. Ibid, par 36
90. Ibid, par 37.
91. Ibid, pars 38-39.
92. Ibid, par 14.
93. Impugned Decision, pars 11-12.
94. Ibid, par 25.
95. Ibid, par 26.
96. Ibid, pars 19-20.
97. Ibid, par 27.
98. Prosecution Appeal, par 47.
99. Ibid, par 48.
100. Ibid.
101. Ibid.
102. Response, par  44.
103. Impugned Decision, par 30.
104. Ibid, pars 30-31.
105. Ibid, par 32.
106. Ibid, par 33.
107. Ibid, par 34.
108. Ibid,par 35.