IN THE APPEALS CHAMBER
Judge Mohamed Shahabuddeen, Presiding
Judge Florence Mumba
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Andrésia Vaz
Mr. Hans Holthuis
19 October 2005
Counsel for the Prosecution
Mr. Peter McCloskey
Counsel for the Accused:
Ms. Natacha Fauveau Ivanovic for Radivoje Miletic
Mr. Dragan Krgovic for Milan Gvero
3. The Prosecution sought leave to appeal those decisions.3 On 22 July 2005, the Appeals Chamber dismissed an urgent motion to stay the Impugned Decisions filed by the Prosecution on that same day.4 On 26 and 29 July 2005, the Accused filed their responses to the Prosecution’s application for leave to appeal.5 On 8 August 2005, an amendment to Rule 65 of the Rules came into effect, establishing an appeal as of right from Trial Chamber’s decisions on provisional release and thus obviating the need to apply for leave to appeal. Therefore, on 15 August 2005, a bench of five judges of the Appeals Chamber was appointed and the parties were directed to brief the appeal on the merits.6 Following the filing of the Prosecution’s Appeal, Radivoje Miletic filed a response on 29 August 2005,7 and Milan Gvero filed his response on 1 September 2005.8 No reply was field by the Prosecution.
The Appeals Chamber recalls that an interlocutory appeal from a decision of a Trial Chamber is not an appeal de novo.9 A decision on whether or not provisional release is granted is a discretionary one.10 Thus, when an appeal is brought from a discretionary decision, the issue “is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision” but “whether the Trial Chamber has correctly exercised its discretion in reaching that decision.”11The burden rests upon the party challenging a provisional release decision to demonstrate that the Trial Chamber has committed a “discernible error.”12 The party challenging a provisional release decision must show that the Trial Chamber misdirected itself either as to the principle to be applied, or as to the law which is relevant to the exercise of the discretion, or that the Trial Chamber gave weight to extraneous or irrelevant considerations, failed to give weight or sufficient weight to relevant considerations, or made an error as to the facts upon which it has exercised its discretion, or that its decision was so unreasonable and plainly unjust that the Appeals Chamber is able to infer that the Trial Chamber must have failed to exercise its discretion properly.13
5. The Prosecution submits that the Trial Chamber: (i) erred in its consideration of the guarantees provided;14 (ii) erred by giving insufficient weight to the serious nature of the charges against the Accused;15 (iii) erred by failing to consider the position held by the Accused within the Bosnian Serb Army;16 and (iv) erred by failing to consider the possibility of undermining the confidence of the international community in the administration of international justice.17 The Appeals Chamber will consider each alleged error in turn.
(1) Disproportionate weight given to the guarantees provided
6. Under this ground of appeal the Prosecution submits that the Trial Chamber attached disproportionate weight to the guarantees provided and erred in concluding that it was satisfied that the authorities of the Republic Serbia and Montenegro and the Council of Ministers of Serbia and Montenegro would ensure the return of the Accused to the International Tribunal for trial.18 According to the Prosecution, the Trial Chamber thereby failed to properly take into account the fact that “the authorities in Serbia and Montenegro have failed to fully cooperate with the International Tribunal”19 as attested in the Declarations of Robert William Reid, Chief of Investigations, proffered as Annex A to the Prosecution’s responses to the requests for the provisional release of the Accused.20
7. The Prosecution argues that the Trial Chamber erred by giving no weight to the assertions contained in the Declarations,21 and submits that the fact that Generals Mladic and Tolimir have not been arrested supports these assertions.22 The Prosecution claims that the Trial Chamber accorded value to the government guarantees without having properly assessed the following assertions made in the Declarations :
Over the past few months the Governments of Serbia and Montenegro and the Republic of Serbia have facilitated the surrender of a number of persons indicted by this Tribunal and have publicly acknowledged this fact. However, they have always been reluctant to acknowledge that they have carried out an arrest or detention of any person who the Tribunal has indicted. They have also indicated that they would not feel comfortable publicising the arrest of an indicted individual to the general public in Serbia and/or Montenegro.23
8. In response, Radivoje Miletic submits that in assessing the cooperation of the authorities of Serbia and Montenegro the Trial Chamber properly weighed Declaration B. 24 Relying upon statements made by the Prosecutor and the President of the International Tribunal, Radivoje Miletic further states that recent information “points to an improvement in the cooperation of Serbia and Montenegro.”25 Milan Gvero submits that the Prosecution’s allegation concerning the weight attached to Declaration B in Radivoje Miletic’s Decision “does not apply to General Gvero and should not be considered by the Appeals Chamber in deciding the appeal in his case.”26
9. Rule 65 of the Rules places no obligation upon an accused applying for provisional release to provide guarantees from a State as a prerequisite to obtaining provisional release.27 Nonetheless, such a guarantee, if deemed credible, may carry considerable weight in support of such an application.28 Rule 65(C) permits a Chamber to impose conditions upon the release of an accused “to ensure the presence of the accused for trial and the protection of others,” and frequently the production of a guarantee from the relevant governmental body is imposed as such a condition.29 In the instant case, the Accused provided guarantees by the Government of the Republic of Serbia and the Council of Ministers of Serbia and Montenegro.30
10. The Appeals Chamber in the Mrksic case held that the reliability of a government guarantee must be determined in relation to the circumstances which arise in the particular case.31 Following that precedent, the Trial Chamber properly considered that the reliability of the guarantees provided was to be assessed “in relation to the circumstances of the present case, including any governmental position which the Accused may have held prior to [their] arrest and, as far as foreseeable, anticipating the circumstances when the case is due for trial and the Accused [are] called on to return.”32 The Trial Chamber considered the positions held by the Accused during the time period relevant to the events described in the Indictment and the effect of those positions on the willingness of the government authorities to arrest them. The Trial Chamber further noted that none of the Accused held positions in the Federal Government.33 In view of the fact that both Accused are retired, the Trial Chamber found no evidence that the Accused might possess any information of such importance as to make the authorities of Serbia and Montenegro reluctant to hand them over to the International Tribunal, should they fail to comply with the conditions of their provisional release.34 In addition, the Trial Chamber also considered that “current indicators of future co-operation by the Federal Government, as manifested inter alia within the framework of negotiations on the Stabilisation and Association Agreement with the European Union” provided a basis for anticipating that the authorities of Serbia and Montenegro would ensure the return of the Accused to the International Tribunal for trial.35
11. The Appeals Chamber notes that the Declarations explicitly acknowledge the cooperation provided by the authorities of Serbia and Montenegro by means of facilitating the surrender of a number of indictees. The Prosecution has not shown that the Trial Chamber erred in its assessment of the reliability of the guarantees provided. The Trial Chamber properly considered the reliability of the guarantees in light of the individual circumstances of the Accused. Based on this, it was reasonable for the Trial Chamber to conclude that the authorities of Serbia and Montenegro are willing to cooperate with the International Tribunal in the present case.
(2) Insufficient weight given to the failure of the Government of Serbia and Montenegro to arrest Zdravko Tolimir
12. The Prosecution alleges that the Trial Chamber failed to give any weight to its “well-founded allegations based on reliable evidence that Serbia and Montenegro [is aware] of the whereabouts of Zdravko Tolimir.”36 The evidence relied upon in support of these allegations is the following statement made by Mr. Reid in Declaration B:
I also believe that the Government of Serbia and Montenegro is aware of the whereabouts of General Tolimir, who has been indicted by the ICTY. The Government is not currently cooperating with the Tribunal to effect his arrest and transfer to the Hague.37
Relying upon Australian and Canadian case law, the Prosecution submits that a “solemn declaration” by a police officer should be accepted as a fact,38 and states that the Trial Chamber in the Pandurevic case “accepted such a ‘belief’ as a statement of fact.”39 The Prosecution contends that if the Trial Chamber had doubts as to the veracity of the statement made in Declaration B, “it could as a minimum have granted the Prosecution an opportunity to provide the Chamber with evidence as a basis for the statement of fact […] and not simply have disregarded it.”40
13. Milan Gvero responds that the failure of the Government of Serbia and Montenegro to arrest Zdravko Tolimir should not be a decisive factor in determining whether to rely on the guarantees, and submits that the argument advanced by the Prosecution in this respect has been rejected on at least three occasions.41 Radivoje Miletic submits that the Trial Chamber correctly assessed Declaration B : (i) in accordance with the Rule 89 of the Rules, which provides that a Trial Chamber is not bound by national rules of evidence, and (ii) by interpreting it literally.42 Furthermore, he points out that the statement in Declaration B regarding General Tolimir concerns only the Federal Government of Serbia and Montenegro, while he submitted guarantees from both the Federal Government and the Government of the Republic of Serbia.43
14. The Appeals Chamber has held that even though the reliability of a governmental guarantee must not be exclusively determined by reference to any assessment of the level of cooperation by the authority providing it, the general level of cooperation by that authority with the International Tribunal does have some relevance in determining whether it would arrest the accused in question.44 Accordingly, the Trial Chamber noted the “parties’ concordant view that the level of cooperation given by the authorities of Serbia and Montenegro has recently increased.”45 Considering the date of the Indictment against Zdravko Tolimir as well as the evidence presented, it concluded that it had not been established that the Federal Government is aware of the whereabouts of Zdravko Tolimir. Thus, the Trial Chamber was unwilling to draw any conclusions about the Serbian authorities’ cooperation on the basis of their failure to arrest Mr. Tolimir.46
15. The Appeals Chamber considers that, while having due regard to any “solemn declaration ” by a police officer, it is for the Trial Chamber to consider the credibility of all evidence presented. As noted by Radivoje Miletic, Declaration B does not state unambiguously that the Government of Serbia and Montenegro knew the whereabouts of Zdravko Tolimir. 47 Apart from this Declaration, the Prosecution presented no evidence in support of this assertion. It was thus reasonable for the Trial Chamber to conclude that the assertion was insufficiently supported by the evidence. The Appeals Chamber is not satisfied that the Prosecution has shown that the Trial Chamber erred in its consideration of the guarantees provided by placing insufficient weight on the Declarations. The Trial Chamber did not disregard Declaration B; it was entitled to reach a conclusion contrary to that urged by the Prosecution after having taken into account the information which had been presented to it.
16. Even though the failure to arrest Zdravko Tolimir is still a matter of grave concern,48 this cannot be the decisive factor in the determination as to whether the guarantees offered are sufficiently reliable to satisfy the International Tribunal that the Accused will appear for trial. The Appeals Chamber recalls that the circumstances of each accused must be evaluated individually as they weigh upon the likelihood that he will appear for trial. The weight to be attributed to guarantees by a government may depend upon the personal circumstances of the applicant.49
(3) Discrepancies in the decisions rendered by the two panels in Trial Chamber II
17. The Prosecution alleges that the two panels in Trial Chamber II have reached contradictory decisions concerning the statement made in Declaration B to the effect that the Government of Serbia and Montenegro is aware of the whereabouts of Zdravko Tolimir.50 The Prosecution refers to the Pandurevic case, in which the Trial Chamber expressed concern about the same allegations made in the declaration of investigator Bruce Bursik dated 14 June 2005, and concluded that there was only some likelihood that the authorities in question would be willing to arrest Vinko Pandurevic if required.51 The Prosecution stresses that the Trial Chamber in this case treated Declaration B as a mere statement of the officer’s belief, in contrast with the Trial Chamber in the Pandurevic case, which “accepted such a ‘belief’ as a statement of fact.”52
18. Relying upon the jurisprudence of the International Tribunal, the Accused submit that the two Trial Chamber decisions are not contradictory. Rather, the weight to be attached to the guarantees by a government may depend upon the personal circumstances of each accused.53 The Accused point out the differences between the case at hand and the Pandurevic case, emphasizing that Vinko Pandurevic was a fugitive from December 2001 until March 2005, and that his surrender was conditional.54 Consequently, the Accused conclude that there are no discrepancies or inconsistencies between the two decisions as they were rendered on the basis of different facts.55
19. The Appeals Chamber considers that the Prosecution’s reliance on the Pandurevic Decision is of limited value. The Pandurevic Decision was the subject of an appeal in which the Appeals Chamber said with regard to that particular finding :
The Trial Chamber acted within its discretion when it took note of this trend [the improvement in the cooperation of Serbia and Montenegro with the International Tribunal] yet did not conclude that authorities in Serbia and Montenegro have cooperated with the Tribunal to the “utmost.” Though the Trial Chamber should not have relied on a mere “allegation... that the Government of Serbia and Montenegro” is aware of one fugitive’s whereabouts, yet has failed to arrest him, this did not prejudice the Appellant.56
Thus, the Appeals Chamber considers that, even if it were to rely on the approach adopted in the Pandurevic case, it would not advance the Prosecution’s argument since it is consistent with the approach taken by the Trial Chamber in the Impugned Decisions.
20. The Appeals Chamber emphasizes that the reliability of a guarantee given by the relevant authority must be determined in relation to the circumstances which arise in the particular case. In the instant case, the Trial Chamber correctly appraised the personal circumstances of the Accused and undertook to ascertain what would occur if the relevant authorities were obliged under the guarantees they have provided to arrest the Accused. As personal circumstances differ, a Trial Chamber may be justified in accepting a government guarantee as reliable in relation to one accused while rejecting it in relation to another accused.57
21. In order to ascertain that the guarantees provided were likely to be fulfilled by the authorities of Serbia and Montenegro, the Trial Chamber took into account the fact that the Accused held no positions of authority within the government as well as the indicators of Serbia and Montenegro’s preparedness to negotiate an agreement with the European Union.58
22. Accordingly, the Appeals Chamber rejects this ground of appeal.
23. The Prosecution submits that the Trial Chamber erred by giving insufficient weight to the gravity of the crimes with which the Accused are charged.59 It argues that these charges include the forced removal and deportation of thousands of individuals from the populations of Srebrenica and Zepa, and states that “the ultimate consequence of their actions […] consisted of mass killings of thousands of able-bodied Muslim men, which must be taken into account even if the Accused are not specifically charged with the mass killings themselves.”60
24. Radivoje Miletic responds that the mass killings cannot constitute evidence of the seriousness of the crimes with which he has been charged, since no criminal charges have been brought against him in connection with those killings.61 He further submits that under the jurisprudence of the International Tribunal and the European Court of Human Rights, the seriousness of a crime and the potential length of the sentences incurred are not factors which, by themselves, justify detention.62 He contends that the Trial Chamber correctly took into consideration not only the seriousness of the crimes he is charged with, and the long sentence to be expected if convicted, but also all the other factors relevant to a determination as to whether he might abscond.63 Milan Gvero responds that the Trial Chamber expressly noted the lengthy sentences which had been imposed on other accused in related cases, as well as Mr. Gvero’s advanced age, but that nonetheless, it correctly balanced the seriousness of the offences he is charged with against his timely voluntary surrender, the assurances by the Government of Serbia and Montenegro, and his personal undertakings.64
25. The Appeals Chamber has held that the seriousness of the charges against an accused cannot be the sole factor determining the outcome of an application for provisional release,65 and emphasized that a Trial Chamber must take into account the seriousness of the charges in addition to several other factors.66 The Impugned Decisions are consistent with these findings of the Appeals Chamber. Thus, the Trial Chamber held:
[I]n the present context, the seriousness of offences is not to be assessed in the abstract and having regard only to the nature of the offences charged, but rather in the light of the actual circumstances in which the alleged offences occurred and in the light of the requirements imposed by Rule 65 (B). The gravity of the offences charged is of particular relevance, in this context, to whether the prospect of a lengthy sentence is so real that it would constitute an incentive for an accused to flee.67
The Impugned Decisions expressly state that the Accused are charged with serious offences and that if convicted, they will likely face a long prison sentence. Thus, the Trial Chamber said:
[I]t is to be anticipated that even if the Defence argument that the alleged role of the Accused was “peripheral” is valid, he may face a long sentence if the offences charged in the Indictment are proven. In addition, the age of the [Milan Gvero] is, as noted by the Prosecution, a factor that, combined with the risk of a long prison term, could affect his readiness to return for trial. It follows that the seriousness of the offences charged and the likelihood of a long sentence militate to some extent against the provisional release of [Milan Gvero].68
... [I]t is to be anticipated that, regardless of the role [Radivoje Miletic] played in the perpetration of the crimes, he may face a long sentence if the offences charged in the Indictment are proven. It follows that the seriousness of the offences charged and the likelihood of a long sentence militate to some extent against the provisional release of [Radivoje Miletic].69
26. In light of the foregoing, the Appeals Chamber is not satisfied that the Prosecution has shown that the Trial Chamber erred by failing to attach sufficient weight to the seriousness of the offences charged against the Accused. The Appeals Chamber does not accept that the Trial Chamber was compelled or even entitled to consider the seriousness of other crimes not covered by the Indictment against the Accused in reaching a determination concerning their provisional release. In this context, the Appeals Chamber notes the Prosecution’s submission to the effect that: “a Trial Chamber must look to the severity of a likely sentence in the context of the crimes charged.”70 The Trial Chamber’s concern was to ensure that the Accused had satisfied the burden placed upon them to show that they would appear for trial if released and would not interfere with the administration of justice. The seriousness of the crimes charged was one factor considered by the Trial Chamber when assessing the evidence adduced by the Accused in satisfaction of this burden, including evidence of their voluntary surrender, the guarantees provided by the Government of the Republic of Serbia and the Council of Ministers of Serbia and Montenegro, and the personal guarantees offered by the Accused. In this context, the Prosecution has not shown that the Trial Chamber gave the seriousness of the crimes too little weight.
27. The Prosecution argues that the Trial Chamber failed to consider “the seniority of the Accused […] in assessing whether the prospect of a lengthy sentence would be an incentive […] to flee.”71 In support of this argument, the Prosecution asserts that instead of “look[ing] to the severity of a likely sentence in the context of the crimes charged”, the Trial Chamber merely compared the sentence imposed on other accused convicted of the same crimes as those charged against the Accused, but who did not have the same rank.72 Milan Gvero responds that this ground of appeal is without merit since the Trial Chamber explicitly took into account his position within the Bosnian Serb Army when deciding his provisional release.73 Radivoje Miletic argues that “the likely length of a sentence depends primarily on the nature of the crime and the accused’s responsibility.”74
28. The Trial Chamber considered the positions held by the Accused during the time period relevant to the events described in the Indictment and the effect of those positions on the willingness of the government authorities to arrest them. The Impugned Decisions thus state:
The Trial Chamber notes that during the time period relevant to the events described in the Indictment [Milan Gvero] was allegedly an Assistant Commander of the Main Staff of the Bosnian Serb Army and held no position in the Federal Government. In view of the fact that he retired 9 years ago, it is unlikely that he might possess any information of such importance as to make the Government concerned reluctant to hand him over to the Tribunal, should he fail to comply with the conditions of his provisional release.75
The Trial Chamber notes that during the time period relevant to the events described in the Indictment the Accused was allegedly a Chief of Operations and Training and Deputy Chief of Staff, or was Standing in for the Chief of Staff, of the Main Staff of the Bosnian Serb Army. It is not alleged that he held any position in the Federal Government. He is retired and there is nothing to suggest that he might possess any information of such importance as to make the Government concerned reluctant to hand him over to the Tribunal, should he fail to comply with the conditions of his provisional release.76
29. In light of the foregoing, the Appeals Chamber is not satisfied that the Prosecution has shown that the Trial Chamber erred by failing to consider the positions held by the Accused within the Bosnian Serb Army. Moreover, the reference in the Impugned Decisions to the fact that the Accused may face “long sentences” if convicted may be understood to incorporate consideration of the positions occupied by the Accused at the time the alleged crimes were committed, which would likely have an impact on the sentences they would face. It is clear from the Impugned Decisions that the Trial Chamber took into account all the considerations relevant to its taking an informed and reasonable decision as to whether the Accused would appear for trial if provisionally released, including the positions held by the Accused within the Bosnian Serb Army insofar as they were relevant to the weight to be attached to the guarantees.
30. The Prosecution submits that the Trial Chamber failed to “take into account the possible effects of undermining public confidence in the administration of international justice.”77 Under this ground of appeal the Prosecution also states that the Trial Chamber compares the crimes charged against the Accused with other cases which concern the crime of genocide and submits that “the absence of a charge of genocide does not diminish the severity of the acts alleged to have been committed by the Accused as members of a joint criminal enterprise.” 78
31. Milan Gvero responds that (i) public confidence in the administration of justice has never been a factor a Trial Chamber should consider when deciding issues on provisional release; (ii) the Prosecution did not ask the Trial Chamber to consider this factor; and (iii) no public outcry followed the decision to grant his provisional release.79 Radivoje Miletic points out that the circumstances in the Sainovic and Ojdanic case and those in the instant case, differ completely. For instance, in the Sainovic and Ojdanic case, the accused had made public statements to the media to the effect that they would not surrender voluntarily, and they only surrendered three years after having learned of the indictments against them. Radivoje Miletic adds that the fact that many accused have been granted provisional release since the Sainovic and Ojdanic Decision was rendered in 2002 has had no negative effect on the International Tribunal’s standing in the international community.80
32. The Appeals Chamber notes that the Prosecution did not advance this argument in its responses to the applications for provisional release; it has raised this argument for the first time on appeal. A Trial Chamber is generally not required to deal with matters which the parties have not raised before it, unless it considers those matters to be vital to the issues it has to decide upon. The Appeals Chamber emphasizes that the appeal’s process is not meant to offer the parties a remedy to their previous failings at trial.81 Therefore, the Appeals Chamber will not deal with the Prosecution’s complaint. However, obiter dictum, the Appeals Chamber notes that the Prosecution has not sufficiently demonstrated that the Trial Chamber’s decision would affect the confidence of the international community in the administration of justice by the International Tribunal.
On the basis of the foregoing, the Prosecution’s Appeal is DISMISSED.
Done in English and French, the English text being authoritative.
Done this nineteenth day of October 2005
At The Hague,
Judge Mohamed Shahabuddeen
[Seal of the International Tribunal]