Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Mumba
Judge Mehmet Güney

Registrar:
Mr. Hans Holthuis

Decision of:
4 October 2005

Office of the Prosecutor

Mr. Dan Saxon
Mr. William Smith
Mr. Anees Ahmed

Counsel for the Appellants:

Mr. Dragan Godzo for Ljube Boskoski
Mr. Antonio Apostolski for Johan Tarculovski

On 18 July 2005, Trial Chamber II 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 (“Tribunal”) denied Johan Tarculovski’s (“Appellant”) motion for provisional release (“Impugned Decision”)¹ pursuant to Rule 65 of the Rules of Procedure and Evidence of the Tribunal (“Rules”). The Appellant filed an application for leave to appeal the Impugned Decision on 21 July 2005.² Subsequently, an amendment to Rule 65 granted an appeal of any decision under Rule 65 as of right before a bench of five Judges of the Appeals Chamber, and the parties were notified accordingly.³ On 22 August 2005, the Appellant filed his appeal⁴ and on 1 September 2005, the Prosecution filed its response.⁵ The Appellant has not filed a reply.

An interlocutory appeal from a decision of a Trial Chamber is not an appeal de novo. For the Appeals Chamber to intervene in a Trial Chamber’s exercise of discretion, such as the decision on whether or not to grant provisional release, the Appellant must demonstrate 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.⁶

Under Rule 65 of the Rules, a Trial Chamber may grant provisional release only after two conditions are satisfied.⁷ First, the Trial Chamber must be satisfied that the accused will return for trial. Second, it must be satisfied that the accused will not pose a danger to any victim, witness or other person.⁸ In reaching its decision denying provisional release, the Trial Chamber here considered the following factors to be of significance: the fact that the Appellant is charged with serious crimes and that if convicted he would likely serve a lengthy prison sentence; the fact that authorities from the Former Yugoslav Republic of Macedonia (“FYROM”) gave assurances that the Appellant would return to trial and as to the protection of victims, witnesses, and other persons; the fact that at the present time there is no law in force in the FYROM for the purpose of protecting victims or witnesses; the circumstances surrounding the arrest of the Appellant, including demonstrations that apparently included a call for arms by some of the participants; the Appellant’s own personal guarantee; and the pre-indictment behaviour of the Appellant towards the Prosecution’s investigators.⁹

The Appellant argues that the Trial Chamber erred in its findings on both of the requirements in Rule 65(B). The Appellant disputes the Trial Chamber’s consideration of the seriousness of the charges against him, its assessment of his financial resources in relation to his practical ability to flee, its assessment of his level of cooperation with the Tribunal, its consideration of the guarantees from the government of the FYROM, and finally its consideration of the potential danger posed to victims or witnesses by a group of the Appellant’s supporters that goes by the name “Komiti ”. The Appeals Chamber will consider each of these claims in turn.

The Appellant has been charged with the three counts of violations of the laws or customs of war under Article 3 of the Tribunal’s Statute (murder; wanton destruction of cities, towns or villages; and cruel treatment).¹⁰ The Appellant notes that provisional release was granted to Ramush Haradinaj (“Haradinaj”), Jadranko Prlic, and other defendants, who were charged with “much more serious criminal charges”,¹¹ arguing that these cases should serve as precedent for the Trial Chamber.¹² The Appellant notes that Jadranko Prlic was granted provisional release while being charged with 8 counts of crimes against humanity, 9 counts of Grave Breaches of the Geneva Conventions, and 9 counts of violations of the laws or customs of war .¹³ The Appellant further notes that in Prosecutor v. Haradinaj et al. (“Haradinaj case”)¹⁴, Haradinaj was granted provisional release while having been indicted on 37 separate counts which included unlawful detention, rape and inhumane acts.¹⁵

The Prosecution responds that the Appellant fails to identify an error of fact or law in the Impugned Decision by the above arguments.¹⁶ The Prosecution further argues that “the mere number of counts in an indictment does not make a case more or less serious”,¹⁷ and that in the case at hand, the Appellant’s participation was at the “highest end of the scale” as he “led the group that committed these atrocities”.¹⁸ The Prosecution claims that the Appellant fails to identify any grounds upon which the Haradinaj case is factually similar to his case.¹⁹ Furthermore, the Prosecution submits that it is the practice of the Tribunal to evaluate the likelihood that an accused will appear at trial on an individual basis .²⁰ The Prosecution submits that in any event, the Haradinaj case should not be persuasive in the case at hand, given that there are marked differences in the situation of Haradinaj and that of the Appellant. Some of those differences indicated by the Prosecution are as follows: (1) Haradinaj immediately resigned from his position as Prime Minister in the Government of Kosovo and surrendered after publication of his indictment, and declared his intention to cooperate with the Tribunal, while the Appellant “ has a history of non-cooperation and avoidance of contact with the Tribunal”, which necessitated his arrest by FYROM authorities;²¹ (2) while Haradinaj submitted references and guarantees for his return from high ranking officials of the United Nations Mission in Kosovo, the Appellant only filed a personal guarantee to return for trial;²² and (3) in the Haradinaj case, the Trial Chamber considered his possible role in the process of reconciliation in Kosovo, while in the Appellant’s case, the Trial Chamber focused its attention on the possible danger faced by victims and witnesses involved in the case against him.²³

The Appeals Chamber is not satisfied that the Appellant has established that the Trial Chamber erred by failing to give proper consideration to other cases before the Tribunal where provisional release was granted. Decisions on motions for provisional release are fact-intensive and cases are considered on an individual basis. In light of their factual complexity, each motion for provisional release is analysed in the light of the particular circumstances of the individual accused.²⁴ The mere fact that an accused in another case was granted provisional release while being charged with more serious crimes does not, in itself, demonstrate that the Trial Chamber erred in its evaluation of the crimes charged in the present case. Here, the Trial Chamber noted the seriousness of the offences for which the Appellant is charged and that they would carry a lengthy prison sentence upon conviction, thereby providing a motive for him to flee. The Appellant has not demonstrated an error in this finding.

The Trial Chamber determined that evidence of the Appellant’s financial assets was contradictory, and concluded that it would not consider his assets in the Impugned Decision.²⁵ The Appellant argues that the Trial Chamber erred by not taking adequate account of the Appellant’s lack of financial resources, which was established in the trial stage of this proceeding . The Appellant submits that he does not possess the means to actively avoid facing justice.²⁶ The Prosecution responds that the Appellant fails to show how the Trial Chamber erred.²⁷ The Prosecution claims that the Appellant’s assets are “disproportionate to his known sources of income”,²⁸ and argues that, in light of “the contentious and inconclusive nature” of the submissions, the Trial Chamber properly viewed this as a neutral factor in the Impugned Decision .²⁹

The Appeals Chamber is not satisfied that the Appellant has established that the Trial Chamber erred by failing to give proper consideration to the Appellant’s financial circumstances. The Trial Chamber heard and considered both the Prosecution and the Appellant’s arguments pertaining to the financial resources of the Appellant, and concluded that since it could not determine the extent of the Appellant’s financial resources, it would not consider them in the Impugned Decision.³⁰ The Trial Chamber was privy to the Appellant’s oral and written submissions, and acknowledged that the Appellant rebutted claims by the Prosecution as to his assets .³¹ It is well within the Trial Chamber’s discretion to determine that this factor was not determinative, given that many other factors were involved in making a final determination on provisional release .³²

The Trial Chamber heard oral submissions from the Government of FYROM and noted the Prosecution’s concession regarding extensive FYROM cooperation with the Tribunal, but found that the government guarantees must be balanced against practical considerations, i.e., the ability of the State to give effect to its guarantees.³³ The Appellant argues that the Trial Chamber erred by underestimating the strength of the guarantee from the government of FYROM, as well as its efforts to cooperate with the Tribunal. The Appellant suggests that the Tribunal’s insistence on the use of the name “FYROM” as opposed “the Republic of Macedonia”³⁴ highlights the Tribunal’s view of FYROM as a backward country, without an adequate institutional infrastructure to back up its guarantees.³⁵ The Appellant argues that the Trial Chamber undervalued the extent of the institutional reforms and progress made by the FYROM in recent years. The Appellant submits that the country’s institutional capabilities are demonstrated by its care for 300,000 refugees during the Kosovo crisis in 1999, its ability to provide airports and roads to NATO forces without compensation, and the sending of Macedonian security units to Iraq and Afghanistan.³⁶ The Appellant further submits that the Trial Chamber did not adequately value the guarantees offered in oral evidence by the Justice Minister of FYROM.³⁷

The Prosecution responds that the Trial Chamber adequately addressed the question of guarantees from the FYROM and balanced them against other practical considerations . Other considerations addressed by the Trial Chamber included the current absence of a witness protection law in the FYROM, the Applicant’s past record of non-cooperation with the Tribunal, and reports of demonstrations and a road blockade that required police intervention; one of these demonstrations was reported to have taken place near victims and witnesses.³⁸ The Prosecution further submits that the evidence presented at the oral hearing, which indicated that the FYROM authorities were unable to prevent co-accused Ljube Boskoski from fleeing the State to neighbouring Croatia while he was being sought in order to be served a summons, is a relevant consideration when assessing the ability of the FYROM to secure the appearance of the Appellant at trial.³⁹ The Prosecution submits that the Trial Chamber properly considered the fact that the Tribunal is “fully reliant on the authority and ability of States and other agencies to arrest fugitives since it does not have its own law enforcement mechanisms ”.⁴⁰

The Appeals Chamber finds no error in the Trial Chamber’s consideration of the guarantees from the Government of FYROM. Although the Tribunal is mindful of the recent progress in institutional infrastructure development and institutional reform in the FYROM, the government guarantees must be considered in light of other practical considerations . Here, the Trial Chamber considered the guarantees given by the FYROM (both written as well as the oral submission made by the Foreign Minister), but nevertheless found that there was a risk of flight by the Appellant based on his ability to obstruct justice on prior occasions.⁴¹ The Trial Chamber considered, among other things, that evidence of a violent roadblock in the village of Ljubanci that kept police and public from entering the village ⁴², as well as a demonstration of supporters of the Appellant calling for an armed response to the arrest of the Appellant ⁴³, indicated that the Appellant may be able to obstruct FYROM authorities from fulfilling the guarantees, and also that his release may pose a concrete threat to victims and witnesses given that the FYROM is still in the process of implementing a witness protection law.⁴⁴

The Trial Chamber found that before his arrest, the Appellant engaged in a “pattern of active avoidance” of contact with Tribunal authorities, including by missing scheduled meetings and selling the SIM card associated with his mobile telephone number at a time when he knew the Prosecution was attempting to reach him at that number. The Appellant argues that the Trial Chamber erred by finding that this pre-indictment behaviour is highly significant in assessing the likelihood of his appearance at trial. Furthermore, the Appellant submits that the Trial Chamber’s inferences from a failure to cooperate with the Prosecution are unfounded and undermine the Appellant’s “personal rights contained and guaranteed by the national legislation and Macedonian Constitution”.⁴⁵ In particular, the Appellant argues that no negative inference should be drawn from his failure to answer summons for questioning because he was not properly summoned or ordered to appear under FYROM law.⁴⁶ In addition, the Appellant submits that any failure to cooperate with the Prosecution while in the custody of the Tribunal should not be a factor in determining whether or not a provisional release order should be granted.⁴⁷

The Prosecution responds that, while Trial Chamber properly considered “the right of the Appellant to remain silent”⁴⁸, the extent to which the Appellant avoided contact with the Tribunal warranted caution on the part of the Trial Chamber, and was properly considered as an indication that the Appellant will again try to “obstruct the judicial process”.⁴⁹ The Prosecution further argues that this pattern of avoidance demonstrates a “lack of good faith towards the Prosecution”⁵⁰ on the part of the Appellant, and that the Trial Chamber was justified in finding that the pre-indictment “behaviour of the Appellant was a highly significant factor in assessing the likelihood of appearance of the Appellant at trial”.⁵¹

The Appeals Chamber has made it abundantly clear that “an accused before this International Tribunal is not obliged to assist the Prosecution in proving its case”.⁵² In this case, the Trial Chamber’s references to cooperation with the Prosecution, taken in the context of its discussion of the Appellant’s evasive tactics, did not reflect a disregard for this principle. Indeed, the Trial Chamber expressly acknowledged the Appellant’s right to silence. Here, however, the Appellant did more than merely refuse to incriminate himself; he actively tried to make it impossible for the Prosecution and FYROM authorities even to contact him, including through steps like selling his mobile phone number and failing to register a valid address .⁵³ One could reasonably imagine similar steps being taken by an individual on provisional release who wished to avoid returning for trial. It is certainly relevant to the question of provisional release whether an accused has shown a proclivity to take affirmative steps to evade detection by Tribunal authorities. The Trial Chamber was not unreasonable in characterizing the Appellant’s actions as an attempt to “obstruct the judicial process”⁵⁴ and in taking them into account in deciding whether he was likely to appear for trial.

The Appellant argues that the Trial Chamber overestimated the ability of the football fan group “Komiti” and others to pose a danger to victims or witnesses. The Appellant submits that the Trial Chamber erred in fact by misinterpreting the significance of the name “Komiti”.⁵⁵ The Appellant claims that while the term “Komiti” may carry a historical connotation denoting political activism, in this case it serves as a football fan club name and reflects no political motivation.⁵⁶ The Appellant further argues that while some supporters did indeed participate in a protest calling for the release of the Appellant, this only happened on one occasion and in large part because local people did not know who had arrested the Appellant.⁵⁷ The Appellant argues that fears that harm will result to victims and witnesses as a result of “active supporters” are “abstract and not supported by any concrete fact”,⁵⁸ as can be seen from the fact that no one has been harmed in the six months following the arrest of the Appellant.⁵⁹ The Appellant therefore submits that the Trial Chamber did not apply the proper case law, which requires that a “concrete danger must be identified”.⁶⁰

The Prosecution argues that the Trial Chamber reviewed factual material concerning the activities of the group “Komiti”, and made a finding of fact supported by material of sufficient reliability against the Appellant on this issue, which it was fully entitled to do.⁶¹ The Prosecution further submits that the Trial Chamber was fully apprised of the situation through factual material provided to the Chamber ex parte and confidentially from reputable organisations operating in the FYROM, and that it made its conclusions on the matter accordingly.⁶² The Prosecution further argues that the Trial Chamber made note of “a general atmosphere of demonstrations after the arrest of the accused where there were calls to arms by members of [Komiti]”.⁶³ Furthermore, the Prosecution notes that apprehension about the possibility of harm to victims and witnesses is well founded, given that “identities, occupations, etc. of protected witnesses in the present cases and contents of their statements to the OTP were published.”⁶⁴

The Appeals Chamber is not satisfied that the Appellant has established that the Trial Chamber erred by overestimating the ability of the football fan group “Komiti ” and others to pose a danger to victims or witnesses. The Trial Chamber noted that the Appellant claimed “to have distanced himself from the Komiti football formation, a group of which he was allegedly the head and which has been described as violent”.⁶⁵ The Trial Chamber, however, found that manifestations of support by the Komiti group for the Appellant, including the successful blockade of the FYROM authorities and the call to arms on behalf of the Appellant, “present concrete evidence of potential harm to victims and witnesses, and of interference with the administration of justice”.⁶⁶ Although the Trial Chamber did not specifically find that the Komiti group presents a greater risk with the Appellant released, it can reasonably be inferred that the Trial Chamber considered the evidence of the Komiti group’s specific support for the Appellant to indicate that the group could, with the Appellant, pose potential harm to victims and witnesses, and interfere with the administration of justice.⁶⁷ The Appellant does not show how the Trial Chamber has erred in associating the Appellant with the Komiti fan group, nor how the Impugned Decision overestimated the ability of the group to threaten victims or witnesses, and therefore has failed to show how the Appeals Chamber could overturn this aspect of the decision.

For the foregoing reasons, the Defence Appeal is DISMISSED.

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

Done this 4th day of October 2005,
At The Hague,
The Netherlands.

________________________
Judge Theodor Meron
President

[Seal of the Tribunal]