Case No. IT-01-42-A

IN THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding
Judge Mehmet Güney
Judge Andrésia Vaz
Judge Theodor Meron
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
16 December 2005

PROSECUTOR

v.

PAVLE STRUGAR

________________________________________________

DECISION ON "DEFENCE MOTION: DEFENCE REQUEST FOR PROVISIONAL RELEASE FOR PROVIDING MEDICAL AID IN THE REPUBLIC OF MONTENEGRO"

The Office of the Prosecutor:

Ms. Carla del Ponte
Ms. Helen Brady

Counsel for Pavle Strugar:

Mr. Goran Rodic
Mr. Vladimir Petrovic

THE APPEALS CHAMBER of the International Criminal 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" and "Appeals Chamber", respectively);

BEING SEIZED OF the "Defence Motion: Defence Request for Provisional Release for Providing Medical Aid in the Republic of Montenegro", filed publicly by Pavle Strugar ("Appellant") on 12 December 2005 ("Defence Motion"), in which the Appellant requests that the Appeals Chamber

1. allows the Appellant to be provisionally released in order to receive surgery placement of a total hip prosthesis in the Clinical Center in Podgorica, Montenegro,

2. allows the Appellant’s transfer to, and stay in, Montenegro during up to four months, for the purpose of receiving the necessary medical aid,

3. allows the Appellant’s transfer to, and stay in, Montenegro under the conditions envisaged and prescribed by the Resolution of the Government of Montenegro reached on 3 November 2005 and the Decision of Counsels of Ministers of Serbia and Montenegro of 15 November 2005;

NOTING the "Addendum to the Defence Motion: Defence Request for Provisional Release", filed publicly by the Appellant on 15 December 2005 ("Addendum to Defence Motion");

NOTING the "Prosecution Response to Defence Request for Provisional Release For Providing Aid in the Republic of Montenegro", filed publicly by the Office of the Prosecutor ("Prosecution") on 13 December 2005 ("Prosecution Response");

NOTING that the Appellant did not file a reply;

NOTING the "Decision on ‘Defence Motion: Request for Providing Medical Aid in the Republic of Montenegro in Detention Conditions’", publicly rendered by the Appeals Chamber on 8 December 2005 ("8 December 2005 Decision"), in which the Appeals Chamber dismissed the "Defence Motion: Request for Providing Medical Aid in the Republic of Montenegro in Detention Conditions" ("Defence First Motion");

CONSIDERING that the Appeals Chamber stated in its 8 December 2005 Decision that the fact that the Appellant needs a total hip prosthesis implantation is undisputed;

CONSIDERING that the Appellant submits that all arguments on his overall medical situation as set out in the Defence First Motion are included in the Defence Motion;

CONSIDERING that the Appellant submits that it is necessary for a successful surgery and rehabilitation that the surgery be undertaken in the Clinical Center in Podgorica/Montenegro and the rehabilitation in the specialized rehabilitation center "Dr. Simo Miloševic" in Igalo/Montenegro;¹

CONSIDERING that pursuant to the established jurisprudence of the Tribunal, provisional release may be granted to an accused who may remain temporarily outside of The Netherlands for the purpose of receiving medical treatment, provided that the prerequisites of Rule 65 of the Rules are fulfilled;²

CONSIDERING that Rule 65(B) and Rule 107 of the Rules require an applicant for provisional release to satisfy the Chamber that he will appear for the appellate proceedings and, if released, will not pose a danger to any victim, witness or other person;

CONSIDERING that the Appellant submits that if provisional release is granted, time spent on provisional release "will be limited only by requirements of medical treatment and rehabilitation and will not exceed in any way four months";³

CONSIDERING that the Prosecution stated in the Prosecution Response that in light of the "special humanitarian aspects pertaining to the Appellant’s medical condition", it would not oppose the Defence Motion, "pending the Court’s receipt of new guarantees from the appropriate authorities of the Government of Serbia and Montenegro";

CONSIDERING the guarantees given by the Government of Montenegro as annexed to the Defence Motion and the Addendum to Defence Motion, and the guarantees given by the Council of Ministers of Serbia and Montenegro as annexed to the "Addendum to Defence Motion: Request for Providing Medical Aid in the Republic of Montenegro in Detention Conditions", filed publicly by the Appellant on 16 November 2005;

CONSIDERING that the Appellant submits that he will comply with all "decisions and conditions which the Appeals Chamber should deem fit to issue" if his request for provisional release is granted,⁴ including the order not to have any contacts whatsoever or in any way interfere with victims or potential witnesses or otherwise interfere in any way with the proceedings or the administration of justice;

CONSIDERING that the Appellant has satisfied the Appeals Chamber that he will appear for his appellate proceedings after his provisional release, and that he will not pose a danger to any victim, witness, or other person;

CONSIDERING that the Appellant has informed the Appeals Chamber that the surgical treatment can be performed in the Clinical Center in Podgorica/Montenegro in December 2005;⁵

PURSUANT TO RULES 65 AND 107 OF THE RULES

FOR THE FOREGOING REASONS,

GRANTS the Defence Motion and ORDERS the provisional release of the Appellant for a period of no longer than four months, subject to the following conditions:

1. The Appellant shall inform the Registrar of the International Tribunal and the Appeals Chamber about the date on which the placement of the total hip prosthesis will take place in the Clinical Center in Podgorica/Montenegro;

2. The Appellant shall be transported to Schiphol airport in The Netherlands by Dutch authorities;

3. At Schiphol airport, the Appellant shall be provisionally released into the custody of a representative of the Government of Montenegro who will accompany the Appellant for the remainder of his travel to the Clinical Center in Podgorica/Montenegro;

4. On his return, the Appellant shall be accompanied by a representative of the Government of Montenegro who shall transfer the Appellant into the custody of the Dutch authorities at Schiphol airport; Dutch authorities shall then transport the Appellant back to the United Nations Detention Unit;

5. During the period of his provisional release, the Appellant shall abide by the following conditions, and the authorities of the Government of Montenegro shall ensure compliance with such conditions:

   1. upon arrival, to submit to surveillance by the authorities of the Government of Montenegro under the following conditions;

   2. within three days following his arrival, to provide the exact address of the Clinical Center in Podgorica, Montenegro, and the rehabilitation center "Dr. Simo Milosevic" in Igalo, Montenegro, at which he will be staying to the Registrar of the International Tribunal and to advise the Registrar of any travel between these two institutions within one day of such move;

   3. to surrender his passport to the authorities of the Government of Montenegro;

   4. to remain within the confines of the Clinical Center in Podgorica/Montenegro and the rehabilitation center "Dr. Simo Miloševic" in Igalo/Montenegro, except for the necessary travel between these two institutions;

   5. to consent to having a representative of the Government of Montenegro verify his presence at either the Clinical Center in Podgorica/Montenegro and the rehabilitation center "Dr. Simo Milosevic" in Igalo/Montenegro with the local police and to occasional, unannounced visits to the Appellant by this representative or by a person designated by the Registrar of the International Tribunal;

   6. not to have any contacts whatsoever or in any way interfere with victims or potential witnesses or otherwise interfere in any way with the proceedings or the administration of justice;

   7. not to discuss his case with any person whatsoever, including the media, except his counsel;

   8. to comply strictly with any requirements of the authorities of the Government of Montenegro necessary to enable them to comply with their obligations under this order and their guarantees;

   9. to return to the International Tribunal after four months, the four month time period to commence on the first day of his provisional release;

   10. to comply strictly with any further order of the Appeals Chamber varying the terms of, or terminating, the provisional release;

   REQUIRES the Government of Montenegro to assume responsibility as follows:

6. for designating a representative of the Government of Montenegro into whose custody the Appellant shall be provisionally released who shall accompany the Appellant from Schiphol airport to the Clinical Center in Podgorica/Montenegro, and for notifying, as soon as practicable, the Registrar of the International Tribunal and the Appeals Chamber of the name of the designated representative;

7. for the costs of transporting the Appellant from Schiphol airport to the Clinical Center in Podgorica/Montenegro and the rehabilitation center "Dr. Simo Milosevic" in Igalo/Montenegro where he undergoes his medical treatment and back;

8. for all expenses concerning the placement of a total hip prosthesis in the Clinical Center in Podgorica/Montenegro and the ensuing rehabilitation treatment in Igalo/Podgorica, accommodation and security of the Appellant while on provisional release;

9. for the physical surveillance of the Appellant during his travel to and from, and during his stay in, Montenegro;

10. for the personal security and safety of the Appellant while on provisional release;

11. for reporting immediately to the Registrar of the International Tribunal the substance of any threats to the security and safety of the Appellant, including full reports and investigations related to such threats;

12. for facilitating, at the request of the Appeals Chamber or of the parties, all means of co-operation and communication between the parties and ensuring the confidentiality of any such communication;

13. for submitting a written report to the Registrar of the International Tribunal and the Appeals Chamber every month as to the presence of the accused and his compliance with the terms of this decision, the first report to be submitted no later than 3 January 2006;

14. for immediately detaining the Appellant should he breach any of the conditions of the provisional release and immediately reporting any such breach to the Appeals Chamber;

15. for respecting the primacy of the International Tribunal in relation to any existing or future proceedings in the Republic of Montenegro concerning the Appellant;

1. to hold the Appellant in custody for any time he will spend in transit at the airport;

2. to arrest and detain the Appellant pending his return to the United Nations Detention Unit, should he attempt to escape;

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

Dated this sixteenth day of December 2005,
At The Hague,
The Netherlands.

__________________
Fausto Pocar
Presiding Judge

[Seal of the International Tribunal]