Case No.IT-03-69-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Bert Swart

Registrar:
Mr. Hans Holthuis

Decision:
28 July 2004

PROSECUTOR

v.

FRANKO SIMATOVIC

_________________________________

DECISION ON PROVISIONAL RELEASE

_________________________________

The Office of the Prosecutor:
Mr. Dermot Groome
Mr. David Re
Ms. Melissa Pack

Counsel for the Accused:
Mr. Zoran Jovanovic

    I. BACKGROUND

  1. 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 (“International Tribunal”) is seized of a confidential “Defence Motion for Provisional Release”1 filed by the defence of Franko Simatovic (“Accused”) on 30 January 2004 (“Motion ”) pursuant to Rule 65 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”).
  2. The Office of the Prosecutor (“Prosecution”) filed a “Prosecution’s Response to Simatovic’s Defence Motion for Provisional Release” on 13 February 2004, opposing the Motion. With leave of the Trial Chamber, the Defence subsequently filed a “ Defence Reply to Prosecution’s Response to Simatovic’s Defence Motion for Provisional Release” on 24 February 2004.2 A hearing, at which the parties made oral submissions, was held on 10 May 2004.
  3. The Accused, who worked in the State Security Service (“DB”) of the Ministry of the Internal Affairs of the Republic of Serbia (“MUP”), is alleged to have been responsible for the special units of the DB, and to have directed their involvement, in particular, in operations in both Croatia and Bosnia and Herzegovina. Along with his co-accused, Jovica Stanisic, the Accused is charged under Article 7, paragraph 1 of the Statute of the International Tribunal with five counts: persecutions (as a crime against humanity), murder (as a crime against humanity and a violation of the laws or customs of war), deportation (as a crime against humanity) and forcible transfer (inhumane act as a crime against humanity) committed in Croatia and Bosnia and Herzegovina between 1 August 1991 and 31 December 1995.3
  4. The Accused was arrested by Belgrade authorities on 13 March 2003 on suspicion of “endangering the security of other citizens and the security of the Republic” under the laws of the Republic of Serbia.4 Although arrested, his Motion states that he was never charged with any offence.5 That this is so was not challenged by the Prosecution. While he was detained in Belgrade, the Prosecution indictment against the Accused was confirmed on 1 May 20036 and the Accused received the Indictment on 8 May 2003.7 Thereafter he was transferred to the United Nations Detention Unit (“UNDU”), in The Hague, on 30 May 2003. At his initial appearance on 2 June 2003, the Accused pleaded not guilty to all five counts.

    II. SUBMISSIONS
  5. In summary, the Defence submitted, inter alia, the following factors in support of its application for provisional release: the past cooperation of the Accused with the International Tribunal; that the Accused should be accorded the rights of an accused who surrendered voluntarily to the International Tribunal; his retirement from civil service; and his signed personal statement to abide by the conditions for provisional release. In addition the Defence submitted guarantees for the Accused from the governments of the Republic of Serbia and Serbia and Montenegro.
  6. In response, the Prosecution submitted that the sheer magnitude of the crimes charged, which carry a possibility of life sentence, is reason for the Accused not to appear for trial; his past cooperation with the Prosecution is questionable; his personal guarantee and government guarantees provide no weight; and the Accused should not be treated as though he surrendered voluntarily. Further, the Prosecution submitted that, by virtue of the very position that the Accused held in the DB and his length of employment, he had the necessary contacts and means to locate witnesses and their families, and potentially to utilise a variety of means of intimidation. Finally, the Prosecution argued that, provisional release if granted will be widely publicized within the former Yugoslavia and will have the effect of making potential witnesses and informants more reluctant to assist the Prosecution.

    III. LAW
  7. Rule 65 of the Rules, governing provisional release, provides:

    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.8

  8. In determining whether to grant provisional release to an accused, it is for the Trial Chamber to consider the particular circumstances of each case and for an accused to satisfy the Trial Chamber of two matters: (i) that he will appear for trial, and (ii) that, if released, he will not pose a danger to any victim, witness or other person.9
  9. The Trial Chamber is “not obliged to deal with all possible factors which a Trial Chamber can take into account when deciding whether it is satisfied that, if released, an accused will appear for trial.”10 It is sufficient for the Trial Chamber to indicate all the relevant factors that it has taken into account in reaching its decision. In other words, the Trial Chamber must render a reasoned opinion.11
  10. In an application for provisional release the Appeals Chamber held that, in determining whether the Accused, if released, will appear for trial, a Trial Chamber is expected to consider, inter alia, the following factors:

    the fact that the applicants are charged with serious criminal offences; the fact that, if convicted, they are likely to face long prison terms; the circumstances in which they surrendered; the degree of co-operation given by the authorities of the FRY and Serbia; the fact that the government of the FRY and the government of the Republic of Serbia gave guarantees that they would ensure the presence of the accused for trial and guaranteed the observance of conditions set by the Trial Chamber upon their provisional release; the fact that both accused held very senior positions, so far as it is relevant to the weight of governmental guarantees; the fact that the FRY recently passed a Law on Co-operation with the International Tribunal; the fact that the Applicants gave personal guarantees in which they undertook to abide by the conditions set by the Trial Chamber should they be released; the likelihood that, in light of the circumstances prevailing at the time of the decision, and as far as foreseeable, the circumstances as they may turn out to be at the time when the accused will be expected to return for trial, the relevant authorities will re-arrest the accused should he decline to surrender; and the fact that the accused provisionally accepted to be interviewed by the Office of the Prosecutor, thereby showing some degree of co-operation with the Prosecution.12

  11. With respect to government guarantees, the Appeals Chamber held 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.”13 According to the Appeals Chamber, these circumstances must not only be assessed at the time when the decision on provisional release is being taken, but also, as far as foreseeable, at the time when the case is due for trial and the accused will be expected to return.14 Further, in so far as the Trial Chamber relies upon the guarantees, “the position of an accused in the hierarchy and the consequence thereof upon the weight of governmental guarantees are indeed significant factors which the Trial Chamber is expected to address as they could have an important bearing upon a State’s willingness and readiness to arrest that person if he refuses to surrender himself; those factors therefore reduce the likelihood of his appearing at trial.”15
  12. In terms of reviewing whether there is any danger posed by an accused, if released, to victims, witnesses or any other person, one of the factors this Trial Chamber previously considered was whether there was any suggestion that an accused had interfered with the administration of justice in any way since the date when an indictment was confirmed against him.16 However, the Trial Chamber emphasises that it will examine all relevant factors in reviewing this question.
  13. With respect to applications for provisional release, the burden of proof is upon the Accused to satisfy the Trial Chamber that, if released, he will appear for trial and will not pose any danger to victims, witnesses or other persons. However, that burden is discharged not on proof beyond reasonable doubt, but on a lower standard.17

    IV. DISCUSSION
  14. The following paragraphs contain brief discussions of the factors considered relevant by the Trial Chamber.

    A. Whether the Accused, if released, will appear for trial.

    Cooperation of the Accused

  15. Prior to the confirmation of the Indictment on 1 May 2003, the Prosecution interviewed the Accused seven times in February 2002. According to the investigator who conducted the interviews, the Accused voluntarily agreed to be interviewed; the interviews took place in a friendly atmosphere and the Accused gave the “impression that he respected the work of the ICTY and was willing to answer our questions truthfully.”18 However, after the interviews, the investigator concluded that the Accused was not forthright and candid, and that none of the information provided could be used to advance any of the investigations being conducted by the Prosecution.19
  16. Certainly, the more valuable the information provided by the Accused to the Prosecution, the more valuable is his cooperation. However, in the Trial Chamber’s view, if the information lacks value that, by itself, does not disprove cooperation by the Accused. The Trial Chamber takes note of and accords due weight to the voluntariness of the Accused in his interviews at a time when the law on cooperation with the International Tribunal had not yet been passed in Serbia and Montenegro; in the words of the Appeals Chamber, the willingness to be interviewed by the Prosecution shows “some degree of co-operation with the Prosecution.”20

    Voluntary surrender

  17. The Accused was already in the custody of Belgrade authorities prior to the confirmation of the Indictment against him in May 2003. He was arrested by the Belgrade authorities on 13 March 2003 on grounds of “suspicion that he is endangering the security of other citizens and the security of the Republic.” 21 Therefore, he was not in a position to surrender voluntarily to the International Tribunal. However, in support of its argument that the Accused be accorded all the rights of an accused who surrendered voluntarily, the Defence submitted documents showing the efforts of the Accused to surrender voluntarily.22 These included Belgrade court minutes drawn up on 8 May 2003 in which the Accused indicated his wish to surrender voluntarily.23 The Prosecution acknowledged the statement of the Accused made in the Belgrade court, but argued that there was no way of knowing whether he would actually have done so.24
  18. The Trial Chamber notes that the Accused was already held in detention for suspicion under Serbian law when the Indictment against him was confirmed on 1 May 2003. A week later, on 8 May 2003, the Accused made a statement in the Belgrade court indicating his wish to surrender voluntarily.25 On 30 May 2003, the Accused, who was still held in detention by the Serbian authorities, was transferred to the International Tribunal. In the circumstances of this case, there is clear evidence of the intent of the Accused to surrender voluntarily.
  19. In reviewing the statement from the Accused concerning his wish to surrender voluntarily, the Trial Chamber also takes note of the other statements made in the Belgrade court by the Accused. In particular, the Accused explicitly stated before the investigating judge that he “accepts the jurisdiction” of the International Tribunal.26 In addition, the Defence submitted documents indicating that the National Council for Cooperation with the International Criminal Tribunal for the former Yugoslavia found that the Accused should be accorded the rights of a person who voluntarily surrendered to the International Tribunal.27 In Sainovic, the Appeals Chamber took into consideration the fact that the accused in that case had earlier made public statements to the media that they would not surrender voluntarily.28 There is no allegation that the Accused in this case made any such statements.

    Personal Guarantee

  20. The Accused provided a signed statement, dated 27 January 2004, stating his willingness, inter alia, to appear for trial, not to contact victims or witnesses, not to attempt to influence them in any way, and to abide by the conditions of his provisional release.29 Personal guarantee is a factor listed by the Appeals Chamber30 and the Trial Chamber will accord it due weight.

    Seriousness of the crimes charged

  21. The Accused is charged with serious criminal offences, including persecutions as a crime against humanity. If convicted, the Accused will likely face a long prison sentence. The Trial Chamber has taken this factor into consideration, but observes that this is merely one of the factors the Trial Chamber takes into account in evaluating whether the Accused will appear for trial, if released. In this regard, the Trial Chamber observes that the European Court of Human Rights has “repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand.”31

    Government Guarantees

  22. The governments of Serbia and Montenegro and the Republic of Serbia have given their guarantees with respect to the Accused.32 In addition, the Trial Chamber heard from a representative of the Embassy of Serbia and Montenegro and from the Minister of Justice of the Republic of Serbia. During the hearing, the Minister of Justice stated that it would be “perfectly simple” to arrest the Accused should the necessity arise.33
  23. In response, the Prosecution pointed to the general lack of cooperation, particularly with respect to indictees remaining at large. In this regard, the Prosecution submitted a letter from the President of the International Tribunal to the Security Council, bringing to its attention a report from the Prosecutor of the International Tribunal complaining of “a consistent failure on the part of Serbia and Montenegro to comply with its obligations under Article 29 of the Statute and Rule 39 of the Rules of Procedure and Evidence.”34 The Defence stated that the government guarantees for provisional release of indictees should not be taken out of context and should not be linked exclusively to the general level of cooperation of a particular state, recalling that all persons provisionally released thus far have returned to the International Tribunal when summoned.35
  24. The Trial Chamber is of the view that the reliability of a government guarantee must be determined in relation to the circumstances which arise in the particular case. As stated by the Appeals Chamber, “the issue in each particular case is what would occur if the relevant authority were obliged under its guarantee to arrest the accused person seeking provisional release in that case.”36 In Mrksic, the Appeals Chamber gave an example of a trial of two accused in which a Trial Chamber could accept a guarantee in relation to one accused, whereas the same or another Trial Chamber could decline to accept the same authority’s guarantee as reliable in relation to another accused, without there being an inconsistency :

    Accused A may have surrendered voluntarily as soon as he learnt that he had been indicted and may have cooperated with the Office of the Prosecutor in a way which demonstrated his bona fide intention to appear for trial. The reliability of the guarantee provided by the relevant authority is of less importance in such a case, and may more easily be accepted as sufficiently reliable in relation to this particular accused person. On the other hand, Accused B may have been a high level government official at the time he is alleged to have committed the crimes charged, and he may have since then lost political influence but yet possess very valuable information which he could disclose to the Tribunal if minded to cooperate should he be kept in custody. There would be a substantial disincentive for that authority to enforce its guarantee to arrest that particular accused if he did not comply with the conditions of his provisional release. A finding that the guarantee is not sufficiently reliable in the case of Accused B would be completely reasonable, despite the finding that it was reliable in relation to Accused A37

    The Trial Chamber also notes the dictum 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.”38

  25. The Accused commenced his service in the DB, a part of the MUP, in 1978. After moving to a position in the newly formed Intelligence Administration within the DB, he is said to have been responsible for the special units of the DB which operated in Bosnia and Herzegovina and in Croatia.39 The Accused retired in 2001.40 By virtue of his seniority, the position of the Accused appears to be more analogous to that of Accused B, as described by the Appeals Chamber in Mrksic. However, there is no evidence that the Accused possesses information which would provide a substantial disincentive for the state authorities to enforce the guarantee given in support of his provisional release. In that respect, the position of the Accused differs from that of Accused B in Mrksic.
  26. In any event, given that the Accused, who retired in 2001, was arrested by Belgrade authorities on 13 March 2003 on grounds of suspicion of “endangering the security of other citizens and the security of the Republic,”41 and was subsequently transferred to the International Tribunal on 30 May 2003, the Trial Chamber is satisfied that the Accused would indeed be re-arrested and transferred to the International Tribunal, should the necessity arise. This is another feature which distinguishes this Accused from the case of Accused B: even if this Accused does possess valuable information, the government has already demonstrated its willingness to arrest and surrender the Accused. In the view of the Trial Chamber, the government guarantees (including the statement given by the Minister of Justice that it would be “perfectly simple” to arrest the Accused,42) should be accorded due weight.
  27. In light of the foregoing, the Trial Chamber is satisfied that, if released, the Accused will appear for trial.

    B. Whether the Accused, if released, will not pose a danger to victims, witnesses or other persons.

  28. The Prosecution argued that the Accused, whose former subordinates are still employed in the DB, retains influence in the organisation, and this would enable him to locate Prosecution witnesses and their families, and potentially utilise a variety of means of intimidation.43 It submitted a statement from a Prosecution investigator that “a large number of potential witnesses,” both in the present case and in the Milosevic case, refused to be interviewed for fear of their safety.44 When the involvement of local authorities and employment of waiver and summons procedures were proposed, many witnesses still refused, stating that the real power lay with the Accused and his co-accused, Jovica Stanisic. According to the Prosecution investigator, “they made it clear that as long as these men were at liberty they would not feel safe speaking to me.”45
  29. A Prosecution investigator gave evidence that, during the course of questioning a suspect who participated in the conflict in Croatia and Bosnia and Herzegovina, the suspect answered questions about paramilitary activities in which he participated in Croatia, but was reluctant to answer questions relating to Bosnia and Herzegovina.46 When the investigator asked the suspect why he was not willing to answer questions about Bosnia and Herzegovina, the suspect responded that he was a “member of the Special Unit of the Serbian State Security,” and that he considered the Accused and his co-accused, Jovica Stanisic, “to be the most powerful persons in the country and he did not want to annoy them as that could have dangerous consequences for him.”47 With respect to this Accused, the Prosecution investigator referred to witness Dragan Vasiljkovic, a.k.a Captain Dragan, who testified in the Milosevic trial for two days and whose “testimony and attitude,” according to the Prosecution investigator, changed on the second day.48 It was revealed that the witness had spoken to the Accused during the overnight break in his testimony and the investigator attributed “the [alleged] change in his testimony and demeanour to something that Simatovic said to him on the phone.”49
  30. In response, the Defence argued that the DB was one of two departments of the MUP and, considering that it was the MUP who arrested and detained the Accused without charges, it was not logical to expect the Accused to utilise the MUP to gather information about witnesses.50 The Trial Chamber notes the Defence argument that none of the witnesses who testified in the Milosevic trial and with whom the Accused was familiar, ever said that they were threatened by the Accused.51 As for Dragan Vasiljkovic, the Defence contended that there was nothing to suggest that his testimony was in any way influenced by the Accused.52
  31. In the opinion of the Trial Chamber, the incident in which Dragan Vasiljkovic contacted the Accused during the testimony in the Milosevic trial does not, by itself, demonstrate that the Accused would pose a danger to victims, witnesses or other persons.53 The Trial Chamber is bound to observe that the witness did not appear to be calling the Accused to “report back” to him, as alleged by the Prosecution. According to the public transcript, the witness, in answer to the Prosecution, stated that he had been a friend of the Accused for 12 years, and that he had called the Accused but did not discuss his testimony.54
  32. In the opinion of the Trial Chamber, the fear of the witnesses, to which the Prosecution investigator referred, reflects more a generalised concern rather than an apprehension linked to any specific acts or conduct of the Accused. There is nothing in the evidence to suggest that the Accused interfered or would interfere with the administration of justice. Bearing in mind the personal guarantee given by the Accused, the condition to be imposed on him not to interfere with any victims or witnesses, should he be granted provisional release, and the guarantees from Serbia and Montenegro and the Republic of Serbia to arrest the Accused for breach of any conditions of the provisional release, the Trial Chamber is satisfied that, on the basis of the evidence as a whole, the Accused will not pose a danger to any victims or witnesses, if released.

    V. CONCLUSION
  33. The Trial Chamber is satisfied that, if released, the Accused will appear for trial and that he will not pose any danger to victims, witnesses or other persons.

    VI. DISPOSITION
  34. For these reasons, pursuant to Rule 65 of the Rules, the MOTION is hereby GRANTED and the Trial Chamber

    (1) ORDERS as follows:

    a) the Accused shall be transported to Schiphol airport in the Netherlands by the Dutch authorities;

    b) 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;

    c) 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;

    d) 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:

    (i) to remain within the confines of the municipality of Belgrade;

    (ii) to surrender his passport to the Ministry of Justice;

    (iii) to report each day to the police in Belgrade at a local police station to be designated by the Ministry of Justice;

    (iv) 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;

    (v) 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;

    (vi) not to have any contact with the co-accused in the case;

    (vii) 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;

    (viii) not to discuss his case with anyone, including the media, other than with his counsel ;

    (ix) to continue to cooperate with the International Tribunal;

    (x) 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;

    (xi) to return to the International Tribunal at such time and on such date as the Trial Chamber may order; and

    (xii) to comply strictly with any further Order of the Trial Chamber varying the terms of or terminating his provisional release; and

    (2) REQUIRES the governments of the Serbia and Montenegro and the Republic of Serbia to assume responsibility as follows:

    a) 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;

    b) for the personal security and safety of the Accused while on provisional release ;

    c) for all expenses concerning transport of the Accused from Schiphol airport to Belgrade and back;

    d) for all expenses concerning accommodation and security of the Accused while on provisional release;

    e) 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;

    f) to submit a written report to the Trial Chamber every two weeks as to the compliance of the Accused with the terms of this Order;

    g) to arrest and detain the Accused immediately if he should breach any of the conditions of this Order; and

    h) to report immediately to the Trial Chamber any breach of the conditions set out above; and

    (3) 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

    (4) REQUESTS the authorities of all States through which the Accused will travel;

    a) to hold the Accused in custody for any time that he will spend in transit at the airport;

    b) 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.

__________________
Patrick Robinson
Presiding

Dated this twenty-eighth day of July 2004
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - A confidential Addendum submitting a Guarantee of the Council of Ministers of Serbia and Montenegro was filed on 18 February 2004.
2 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT “Order Granting Defence Motion to File Reply and for Extension of Time,” 20 Feb. 2004.
3 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, “Amended Indictment,” 9 Dec. 2003.
4 - Defence Exh. 1.
5 - Motion, para. 13.
6 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-03-69-PT, “Indictment,” 1 May 2003.
7 - Defence Exh. 3.
8 - Rule 65 (B) of the Rules.
9 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-99-37-PT, “Decision on Application of Nikola Sainovic and Dragoljub Ojdanic for Provisional Release,” 26 June 2002 (“Sainovic Trial Chamber Decision”), para. 11, citing Prosecutor v. Blagojevic et al., Case No. IT-02-53-AR65, “Decision on Application by Dragan Jokic for Leave to Appeal,” 18 Apr. 2002, para. 7.
10 - Prosecutor v. Jovica Stanisic and Franko Simatovic, Case No. IT-99-37-AR65, “Decision on Provisional Release” (“Sainovic Appeals Chamber Decision”), 30 Oct. 2002, para. 6.
11 - Ibid.
12 - Ibid ( omitted).
13 - Ibid, para. 7.
14 - Ibid.
15 - Ibid, para. 9.
16 - Sainovic Trial Chamber Decision, para. 16.
17 - See Prosecutor v. Krajisnik and Plavsic, Case No. IT-00-39&40-PT, “Dissenting Opinion of Judge Patrick Robinson on ‘Decision on Momcilo Krajisnik’s Notice of Motion for Provisional Release,’” para. 30, in which Judge Robinson expressed the view that “the burden, whether it be on the Prosecution or the accused, in an application under Rule 65 is discharged not on the standard of proof beyond reasonable doubt, but on the standard of the balance of probabilities.” Also Judge David Hunt, in his dissenting opinion to the Sainovic Appeals Chamber Decision stated that the Prosecution argument “that there exists a heavier burden in relation to proof that an accused person will appear for trial and will not pose a danger to victims, witnesses and other persons when seeking provisional release than that which is required for proof of any other fact in any other application for relief” lacks support. He wrote: Contrary to the prosecution’s submission, there does not exist any standard of persuasion fixed at an intermediate point between the satisfaction beyond reasonable doubt required to establish guilt of a criminal charge and satisfaction that more probably than not what any applicant for relief asserts is true (sometimes referred to as the balance of probabilities). Satisfaction that what such an applicant asserts is more probably true than not depends upon the nature and consequences of the matter to be proved. The more serious the matter asserted, or the more serious the consequences flowing from a particular finding, the greater the difficulty there will be in satisfying the relevant tribunal that what is asserted is more probably true than not. That is only common sense ( omitted). The nature of the issue necessarily affects the process by which such satisfaction is attained, but the burden of proof is the same: that more probably than not what is asserted by the applicant is true. “Dissenting Opinion of Judge David Hunt on Provisional Release,”Sainovic Appeals Chamber Decision, para. 29.
18 - Prosecution Exh. 1, Tab 8; Provisional Release Hearing, T. 130.
19 - Prosecution Exh. 1, Tab 8; Provisional Release Hearing, T. 125-126.
20 - See paragraph 10 and supra note 10.
21 - Defence Exh. 1.
22 - Defence Exh. 3-5.
23 - Defence Exh. 3.
24 - Provisional Release Hearing, T. 145.
25 - In the minutes of the Belgrade court, the Accused stated that he had “told the representatives of The Hague Tribunal” that he would “surrender voluntarily” and that he would “go to The Hague.” Defence Exh. 3.
26 - Defence Exh. 3.
27 - See Defence Exh. 5. The guarantee from Serbia and Montenegro also mentions the finding of the Council.
28 - Sainovic Appeals Chamber Decision, para 10.
29 - Defence Exh. 6.
30 - See paragraph 10.
31 - Ilijkov v. Bulgaria, European Court of Human Rights, Judgement of 26 July 2001, para. 81.
32 - Defence Exh. 7.
33 - Provisional Release Hearing, T. 80.
34 - Prosecution Exh. 1, Tab 3.
35 - Provisional Release Hearing, T. 68.
36 - Prosecutor v. Mrksic, “Decision on Appeal Against Refusal to Grant Provisional Release,” Case No. IT-95-13/1-AR65, 8 Oct. 2002, para. 9.
37 - Ibid.
38 - Sainovic Appeals Chamber Decision, para. 7.
39 - See supra note 3.
40 - Motion, para. 24.
41 - Defence Exh. 1.
42 - Provisional Release Hearing, T. 80.
43 - Response, para. 9.
44 - Prosecution Exh. 1, Tab 7.
45 - Ibid.
46 - Ibid.
47 - Ibid.
48 - Ibid.
49 - Ibid.
50 - Reply, para. 15 and Provisional Release Hearing, T. 71.
51 - Provisional Release Hearing, T. 72-73.
52 - Reply, para. 20 and Provisional Release Hearing, T. 135-136.
53 - See transcripts from Prosecutor v. Milosevic, Case No. IT-02-54-T, 21 Feb. 2003, T. 16746-16748.
54 - Ibid.