Case No. IT-04-82-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Registrar:
Mr. Hans Holthuis

Decision of:
18 July 2005

PROSECUTOR

v.

Ljube BOSKOSKI
Johan TARCULOVSKI

___________________________________________

DECISION ON DEFENCE MOTION OF LJUBE BOSKOSKI FOR PROVISIONAL RELEASE

___________________________________________

The Office of the Prosecutor:

Mr. Kenneth Scott
Mr. William Smith

Counsel for the Accused:

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

I. BACKGROUND

1. Trial Chamber II (“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 (“Tribunal”) is seised of a “Defence Motion of Ljube Boskoski for Provisional Release” (“Motion”), pursuant to Rule 65 of the Rules of Procedure and Evidence (“Rules”). The Motion was filed on 25 May 2005 by counsel for Ljube Boskoski (“Accused”) and requests foremost the provisional release of the Accused to the Former Yugoslav Republic of Macedonia (“FYROM”) or alternatively the provisional release of the Accused to the Republic of Croatia (“Croatia”). On 7 June 2005, the Prosecution filed the “Prosecution’s Response to Ljube Boskoski’s Application for Provisional Release”, requesting that the provisional release of the Accused be denied (“Response”). Host country submissions from the Kingdom of the Netherlands (“Netherlands”) and government guarantees from the government of the FYROM were filed on 9 June 2005. No government guarantees were filed by the Croatian government. On 20 June 2005, the Defence was granted leave to reply to the Response,1 and on 27 June 2005, the Defence filed the “Defence’s Reply to Prosecution’s Response to Ljube Boskoski’s Motion for Provisional Release” (“Reply”). An oral hearing was held on 4 July 2005, at which time both parties and the Minister of Justice from the FYROM government addressed the Trial Chamber. The Croatian government, although invited, elected not to send any representatives to attend the oral hearing.

2. The Accused, who holds citizenship in both the FYROM and Croatia, has been jointly charged with Johan Tarculovski in an indictment confirmed on 9 March 2005 (“Indictment ”) for violations of the laws or customs of war under Article 3 of the Statute of the Tribunal (“Statute”). The crimes are alleged to have been committed in connection with a 10-12 August 2001 attack on the village of Ljuboten by the FYROM police forces under the command and control of the Accused. At the time of the attack, the Accused was the Minister of Interior in the FYROM government. The Accused is charged with criminal responsibility under Article 7(3) of the Statute, for the murder of seven individuals,2 the wanton destruction of houses in the Ljuboten village,3 and the cruel treatment of civilians.4

3. On 24 March 2005, the Accused was transferred to the United Nations Detention Unit in The Hague. At the time of his transfer to The Hague, the Accused was in the custody of the County Court in Pula, Croatia, where he was detained awaiting trial on separate criminal charges arising out of the “Rastanski Lozja” case.5

II. SUBMISSIONS

A. Written submissions

Defence Motion

4. In support of his Motion requesting provisional release, the Accused offers personal guarantees that he will obey all orders to appear for trial issued by the Tribunal and abide by all conditions imposed by the Trial Chamber for his provisional release.6 In addition, the Accused submits that he has fully cooperated with the Tribunal,7 obeyed all the rules and regulations governing his detention,8 and has not posed a threat to any victims or witnesses.9 The Defence also notes that the governments of both the FYROM and Croatia have expressed their willingness to provide government guarantees on behalf of the Accused.10

Prosecution Response

5. In response, the Prosecution requests the Trial Chamber to dismiss the Motion and deny the Accused’s request for provisional release.11 In the event that the Trial Chamber does grant provisional release, the Prosecution requests the Trial Chamber to order the Accused to be provisionally released back into the custody of the Croatian authorities to stand trial for the separate criminal charges arising out of the Rastanski Lozja case.12 The Prosecution states that in May 2004, a judge in the FYROM had ordered the arrest of the Accused for his alleged participation in a separate incident involving the killing of seven Pakistani and Indian citizens in the FYROM on 2 March 2002 (i.e., the “Rastanski Lozja” case).13 The Prosecution alleges that when the Accused became aware that criminal proceedings could be initiated against him, he “urgently” left the FYROM to Croatia in order to avoid criminal prosecution.14 The Prosecution states that on 31 August 2004, the Accused was arrested by Croatian authorities and was subsequently charged in the County Court in Pula, Croatia with seven counts of aggravated murder in the Rastanski Lozja case.15

6. The Prosecution submits that if the Accused were provisionally released, there would be a strong likelihood that the Accused would not voluntarily submit himself to the Tribunal for trial. The Prosecution argues that the Accused cannot be expected to cooperate with the FYROM authorities given his previous public statements to the contrary.16 The Prosecution also notes that the Accused is facing serious criminal charges in two separate cases and that, if convicted in either of these cases, he will likely face a lengthy prison sentence.17 The Prosecution argues that the Accused has already once fled the FYROM in order to avoid criminal prosecution in the Rastanski Lozja case and that prior to his transfer to The Hague, the Croatian authorities had held the Accused in detention “on the very basis that he may flee and on the seriousness of the charges he was facing”.18

7. The Prosecution states that the FYROM government guarantees should be subjected to close scrutiny due to the fact that the FYROM government has already demonstrated its inability to keep the Accused in its territory to face prosecution on criminal charges.19 Furthermore, according to the Prosecution, the current geopolitical conditions in the FYROM – including the “prevalent law-and-order situation”, “problems specifically encountered in victim and witness protection”, and the “hostile terrain and geography” – make it difficult, at best, to implement the FYROM guarantees.20 The Prosecution also notes that the FYROM has no law of cooperation with the Tribunal.21

8. The Prosecution submits that if the Accused were provisionally released to the FYROM, the danger to victims and witnesses would increase. The Prosecution contends that the geographic proximity to witnesses and victims would “inevitably increase ” the opportunities for the Accused to pose a danger to the victims and witnesses, “bearing in mind a predisposition for violent behaviour”.22 The Prosecution states that the Accused still holds considerable influence among his supporters in the FYROM and with individuals in the FYROM police force. In support of this submission, the Prosecution states that members of the FYROM police force helped the Accused flee the FYROM in order to avoid criminal prosecution.23

Defence Reply

9. The Defence rebuts the Prosecution’s assertion that the Accused fled the FYROM in order to avoid criminal prosecution. The Defence submits that the Accused legally left the FYROM to his family home in Croatia on 30 April 2004, before any legal proceedings had been initiated against him.24 The Defence argues that after leaving the FYROM he registered his place of residence in Croatia on 7 May 2004 and that his whereabouts were available at all times to the FYROM and Croatian authorities.25

10. The Defence submits that although there are no insignificant charges before the Tribunal, the charges against the Accused are not particularly grave when considered in the context of the jurisprudence of the Tribunal. The Defence argues that even if the Accused were convicted, he is unlikely to face a prison sentence of a length which would constitute an incentive for the Accused to flee.26 Furthermore, the Defence submits that the legal situation of the Accused in the Rastanski Lozja case has significantly improved following the May 2005 acquittals in the FYROM of the other accused in that case.27 The Defence notes the personal opinion of the presiding judge in the County Court in Pula, Croatia, who observed that the grounds for detaining the Accused due to the risk of flight “probably no longer exist”.28

11. The Defence states that the Accused was unable to voluntarily surrender to the Tribunal because he was in the custody of the Croatian authorities when the Indictment was issued.29 The Defence notes, however, that the Accused did not challenge, delay, or legally object in any way to his extradition from Croatia to The Hague.30 The Defence also submits that during his time as the Minister of Interior, the Accused fully cooperated with the Tribunal. The Defence states that the Accused provided information to the Office of the Prosecutor regarding crimes allegedly committed by the National Liberation Army (NLA) against FYROM security forces. The Defence further contends that the Accused requested the assistance of the Office of the Prosecutor in the investigation of the 10-12 August 2001 incident at Ljuboten village, and that the Accused fully cooperated with the investigators by providing them with “full and detailed” information.31

12. The Defence submits that the FYROM government guarantees should be accepted by the Tribunal. The Defence argues that despite the lack of a law of cooperation with the Tribunal, the FYROM government has clearly demonstrated a genuine effort of cooperation with the Tribunal. The Defence notes that the FYROM government promptly responded to the request of the Tribunal for the extradition of the co-accused Johan Tarculovski, and that the FYROM government has established a coordinating body, presided over by the Minister of Justice, with the “sole purpose of cooperating with the Tribunal”.32 The Defence also argues that the allegedly “hostile terrain and geography” is no different than the terrain in other territories of the former Yugoslavia, and that as of April 2005, the FYROM has “integrated border security” as prescribed by the European Union, which significantly improves border security.33

13. In further support of the Motion, the Defence provides letters of support from prominent political leaders in the FYROM34 and additional personal guarantees by the Accused.35 The Defence also submits that the Prosecution has failed to provide any evidence to support its allegation that the Accused would pose a danger to victims and witnesses. The Defence further notes that a lengthy pre-trial period is likely required before the trial of the Accused can begin.36

B. Oral submissions

14. In addition to the arguments presented in its written submissions, the Defence notes that the Accused has not been charged as a direct perpetrator but only for his alleged failure to punish the perpetrators of the alleged crimes. The Defence argues, therefore, that the charges against the Accused are on the “bottom end of the scale” and do not justify long periods of detention.37 Furthermore, the Defence argues that the evidence necessary to prove that the Accused failed to punish the alleged perpetrators consists primarily of documentary evidence and not witness testimony. The Defence argues, therefore, that the Accused would have no incentive to intimidate witnesses or victims since such intimidation would not improve his case.38

15. The Defence also submits that at the time the Accused left the FYROM he had not been indicted or served with a summons.39 The Defence states that the Accused left the FYROM for fear of his life and for fear of political persecution due to “animosities” that existed between the Accused and the Interior Minister in office at the time.40 The Defence further submits that the Accused feared that evidence would be fabricated against him and that he would not receive a fair trial.41 The Defence states that after the Accused left the FYROM, he reported to the Croatian authorities, had “day-to-day” contact with them, and later voluntarily surrendered to the Croatian authorities “in relation to the charges” in the Rastanski Lozja case.42 The Defence submits that after the Minister of Interior resigned in November 2004, the Accused wrote to the Croatian authorities on three occasions requesting to be transferred back to the FYROM.43 The Defence submits that the Accused never wanted to escape facing charges in the Rastanski Lozja case but merely wanted to ensure that he would face a fair trial.44

16. On behalf of the FYROM government, the Minister of Justice, Meri Mladenovska-Gjorgjiveska, reiterated her government’s commitment and capacity to fully cooperate with the Tribunal.45 The Minister of Justice submits that the FYROM government has acted in a timely manner to all requests for assistance from the Tribunal and will continue to do so in the future.46 The Minister of Justice states that if the Accused is provisionally released, the FYROM government guarantees that it will undertake all measures to ensure the appearance of the Accused at trial and ensure that the Accused will not pose a threat to victims or witnesses.47 The Minister of Justice further notes that a law on witness protection was passed by Parliament in May 2005 and will be implemented on 1 January 2006.48

17. The Prosecution tendered additional evidence provided to the Prosecution by the FYROM government supporting the Prosecution’s claim that the Accused fled the FYROM in order to avoid criminal prosecution in the Rastanski Lozja case.49 Based on this evidence, the Prosecution submits that the Accused fled the FYROM not because his life was in danger but in order to avoid criminal prosecution.50

18. The Prosecution concedes in its oral submissions that the FYROM government guarantees have been issued in good faith but questions the ability of the FYROM government to execute these guarantees due to the power and influence of the Accused.51

19. With regard to witness intimidation in the FYROM, The Prosecution submits that intelligence reports provide evidence that the Accused still holds influence among fanatical supporters in the FYROM, including former members of the Lions formation, a special police unit allegedly formed by the Accused.52 The Prosecution notes that in the trial of the four other accused in the Rastanski Lozja case, the statements of the main witnesses were withdrawn due to threats and intimidation, leading to the acquittal of the other accused.53

III. THE LAW

20. Rule 65(B) of the Rules provides the basis on which a Trial Chamber may order provisional release of the accused, as a discretionary matter notwithstanding the general rule of pre-trial detention stated in Rule 65(A) of the Rules.54 Rule 65(B) provides that:

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.

21. Rule 65 is to be read in conjunction with Article 21(3) of the Statute, which provides that “the accused shall be presumed innocent until proven guilty according to the provisions of the present Statute”.55 The Accused bears the burden of proof in satisfying the Trial Chamber that, if released, he will appear for trial and pose no danger to victims, witnesses or other persons.56 A 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.57 It must deliver a reasoned opinion, however, and indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision.58

Among the factors which are considered relevant to the provisional release inquiry are:

a) the fact that the accused is charged with serious criminal offences;

b) the fact that, if convicted, the accused is likely to face a long prison term ;

c) the circumstances in which the accused surrendered;

d) the degree of cooperation given by the authorities of the State to which the accused seeks to be released;

e) the guarantees offered by those authorities, and any personal guarantees offered by the accused;

f) the likelihood that, in the case of breach of the conditions of provisional release, the relevant authorities will re-arrest the accused if he declines to surrender ;

g) the accused’s degree of cooperation with the Prosecution.59

23. The Trial Chamber is to consider all of these factors when it decides to grant provisional release, but all of them need not be considered when the Trial Chamber decides to refuse provisional release.60 For example, if one factor is sufficient to satisfy the Trial Chamber that the accused would not appear for trial if released, provisional release may be refused.61

24. In consideration of the seriousness of the offences with which an accused is charged, a Trial Chamber must make specific reference to the length of the sentence the accused can expect if convicted, and the incentive this may give the accused to flee.62 The expectation of a lengthy sentence cannot be held against the accused in abstracto, however, because all accused before the Tribunal face lengthy sentences if convicted.63 The Trial Chamber also 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.”64

25. In making a decision regarding provisional release, the Trial Chamber must consider the particular circumstances of each case. Thus, the weight given to government guarantees depends on the personal circumstances of the accused, including such factors as the position of the accused in relation to the willingness of the State to arrest him if he refuses to surrender himself.65

26. The cooperation of the accused with the Tribunal is also a relevant factor. A general attitude of cooperation toward the Tribunal is relevant to the issue that the accused will appear at trial.66 However, while cooperation may weigh in favour of the accused when seeking provisional release, an accused in the custody of the Tribunal who fails to cooperate with the Prosecution should not be penalised for declining to cooperate.67

27. A Trial Chamber must also review whether there is any danger posed by an accused, if released, to victims, witnesses, or other persons. The Trial Chamber may consider 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.68 Such assessments under Rule 65 cannot be done in abstracto; a concrete danger must be identified.69 If the influence of the accused over victims or witnesses is at issue, the Trial Chamber must rely on the information before it to determine whether the accused would exercise such influence unlawfully.70

28. The Trial Chamber retains its discretion not to grant provisional release in cases where it is satisfied that the accused complies with the two requirements of Rule 65 of the Rules.71 Consequently, the express requirements within Rule 65(B) of the Rules should not be construed as intending to exhaustively list the reasons why release should be refused in a given case.72

IV. DISCUSSION

A. The Provisional Release of the Accused to the FYROM

1. Opportunity to be Heard

29. The Trial Chamber notes that on 9 June 2005 host country submissions were filed by the government of the Netherlands regarding the provisional release of the Accused. The Trial Chamber considers that the requirement that the host country be given the opportunity to be heard, set forth in Rule 65(B) of the Rules, has been satisfied.

30. The Trial Chamber also notes that on 9 June 2005, the government of the FYROM submitted government guarantees with regard to the provisional release of the Accused. Furthermore, the government of the FYROM was invited by the Registrar to send representatives of the FYROM government to an oral hearing held on 4 July 2005. At the oral hearing, the Minister of Justice of the FYROM addressed the Tribunal. The Trial Chamber therefore considers that the requirement of giving “the State to which the accused seeks to be released” the opportunity to be heard, set forth in Rule 65(B) of the Rules, has been satisfied.

2. The Appearance of the Accused at Trial

Seriousness of the Charges

31. The Accused has been charged with criminal responsibility under Article 7(3) of the Statute, resulting from his alleged failure to punish subordinates under his command and control for the murder of seven individuals, the wanton destruction of houses in the Ljuboten village, and the cruel treatment of over one hundred civilians. The Defence contends that the severity of these charges is at the “bottom end ” of the scale vis-à-vis other accused before the Tribunal.73 The Trial Chamber finds, however, that even if it were to accept the Defence’s submission, the charges against the Accused remain very serious and, if convicted, the Accused could face a lengthy prison sentence.

32. The Trial Chamber also notes that the Accused has not only been charged for the crimes in this Indictment but also for his alleged role in the murder of seven other individuals in the FYROM (i.e., the Rastanski Lozja case).74 The Trial Chamber merely observes here that the guilt or innocence of the Accused is an issue of fact that must be determined by a national court. The Trial Chamber need only find that if the Accused were to be convicted in either of these two cases, the Accused would likely face a lengthy prison sentence. It is therefore the view of the Trial Chamber that the potential for a lengthy prison sentence resulting from either of these two cases may constitute an incentive for the Accused to flee and is an aggravating factor in determining whether the Accused will appear for trial.

The Accused’s Previous Attempts to Avoid Criminal Prosecution in the FYROM

33. The Trial Chamber notes the Prosecution’s claim that the Accused fled the FYROM to Croatia in order to avoid criminal prosecution in the Rastanski Lozja case. The Prosecution’s position is supported by documentary evidence provided to the Prosecution by the FYROM government.75 This documentary evidence provides that on 30 April 2004 a parliamentary committee in the FYROM voted to remove the Accused’s parliamentary immunity in the Rastanski Lozja case. On that same day, the Accused held a press conference at the Ambassador Hotel to discuss the removal of his immunity. According to the investigative judge in the FYROM, while at the hotel the Accused was served with a summons to appear before the investigative judge on the following day. The investigative judge states that the Accused was informed of the reasons he had been summoned, his rights, and the possible consequences should he fail to appear.76 The Trial Chamber notes that based on the Defence’s own submissions, the Accused left the FYROM that same day.77

34. The Defence claims, however, that the Accused never received the summons.78 According to the written submissions of the Defence, the Defence would have the Trial Chamber believe that the Accused merely left the FYROM to his family home in Croatia at a time when no legal proceedings had been initiated against him.79 However, the Defence then submits in its oral submissions that the Accused left the FYROM for the very reason that he feared that the trial against him would not be fair.80

35. The Trial Chamber finds that the evidence supports the conclusion that the Accused knew that the parliamentary committee had decided to lift his immunity against criminal prosecution and that the Accused knew that he had been summoned to appear before the investigative judge. The evidence also establishes that immediately after these two events the Accused left the FYROM. The Trial Chamber therefore finds that sufficient evidence exists to support the conclusion that the Accused left the FYROM in order to avoid criminal prosecution. The Trial Chamber also takes note of the Defence’s claim that the Accused feared for his life and feared that the trial would not be fair. However, the Trial Chamber finds that the conflicting written and oral submissions by the Defence undermine the strength of this claim. It is therefore the view of the Trial Chamber that the evidence that the Accused fled the FYROM in order to avoid criminal prosecution is a factor that should be weighed against the Accused in determining whether he will appear for trial.

Circumstances of the Accused’s Surrender to the Tribunal

36. The Defence submits that the Accused was already in custody at the time of his transfer to The Hague and therefore was not in a position to voluntarily surrender to the Tribunal.81 Given these circumstances, the Trial Chamber is not in a position to give much weight to the circumstances surrounding the surrender of the Accused to the Tribunal.

Cooperation with the Tribunal

37. The Defence submits that the Accused has provided assistance to the Prosecution and has fully cooperated with the Tribunal.82 The Trial Chamber notes that these submissions have not been challenged by the Prosecution. The Trial Chamber therefore finds that the cooperation of the Accused is a positive factor, albeit of only modest weight, in determining whether the Accused will appear for trial.

Character of the Accused

38. The Defence provides letters of support from leading politicians in the FYROM attesting to the good character of the Accused.83 The Trial Chamber has taken note of these letters in determining whether the Accused will appear for trial.

Personal Guarantees

39. The Trial Chamber notes that the Accused has provided personal guarantees that he will appear for trial and abide by all conditions imposed by the Trial Chamber.84 The Trial Chamber has taken these personal guarantees into account in its determination of whether the Accused will appear for trial.

Government Guarantees from the FYROM

40. In addition to the government guarantees submitted by the government of the FYROM, the Trial Chamber heard oral submissions from the Minister of Justice of the FYROM regarding the capacity of the FYROM government to guarantee the appearance of the Accused at trial and ensure the protection of victims, witnesses, and other persons.85 The Trial Chamber notes that the Prosecution conceded in its oral submissions that the FYROM government has been cooperative and has acted in “good faith in relation to this investigation and others ”.86 The Prosecution, however, reiterated its concerns regarding the practical ability of the FYROM government to control “what actually happens on the ground”.87

41. The Trial Chamber finds that despite the lack of a law of cooperation between the FYROM government and the Tribunal, the FYROM government has exhibited a cooperative attitude towards the Tribunal. The government has been willing to provide support in the form of investigative and law enforcement assistance, and in creating government liaisons to assist the Tribunal with its work. The Trial Chamber notes, however, that the guarantees must be balanced against other practical considerations and the personal circumstances of the Accused.88 The Trial Chamber observes the influence that the Accused still retains among the public and members of the police force. The Trial Chamber also notes that members of the police force are alleged to have assisted the Accused in fleeing the FYROM in order to avoid criminal prosecution. The Trial Chamber finds that the failure of the FYROM to prevent the Accused from fleeing to avoid prosecution in the Rastanski Lozja case is a factor that should be weighed in determining whether the Accused will appear for trial.

3. The Danger Posed by the Accused to Victims, Witnesses or Other Persons

42. The Defence submits that the Prosecution has failed to identify a single incident in which the Accused is alleged to have interfered with any victim, witness, or other person involved in the proceedings.89 Furthermore, the Defence claims that no incentive for witness intimidation exists in this case because documentary evidence, and not witness testimony, is primarily required to prove criminal responsibility under Article 7(3) of the Statue.90 The Accused, nevertheless, provides personal guarantees that if provisionally released, he will abide by all conditions imposed by the Trial Chamber and will make no contact with any victims, witnesses, or other persons involved in the proceedings.91 The Trial Chamber finds that the Defence’s submissions regarding the role of witness testimony in Article 7(3 ) cases, is unsupported by the jurisprudence of the Tribunal.92 The Trial Chamber, however, has taken the personal guarantees of the Accused into account in determining whether the Accused, if released, would pose a danger to victims and witnesses.

43. The Trial Chamber also finds that, if provisionally released, the close proximity of the Accused to the victims and witnesses, and the lack of an operative witness protection law in the FYROM are factors that should be considered in determining the potential danger to victims and witnesses. The Trial Chamber takes note of the evidence of witness intimidation in the Rastanski Lozja case and of the threats of violence from former members of the Lions formation, a special police unit allegedly formed by the Accused. The Trial Chamber agrees with the Prosecution that the influence that the Accused has over radical members of the former Lions formation may present a concrete danger of harm to victims and witnesses, and the interference with the administration of justice. The Trial Chamber recognizes that the mere fact that the Accused enjoys this influence does not necessarily mean that he will exercise it illegally. The Trial Chamber notes, however, that the Accused is alleged to have illegally used this influence by accepting the assistance of the police to flee the FYROM in order to avoid criminal prosecution. Based on the totality of the evidence, the Trial Chamber is not persuaded that the release of the Accused would not pose a danger to victims, witnesses, or other persons.

4. Other Considerations

Duration of Pre-Trial Detention

44. The Defence submits that the lengthy pre-trial detention supports the finding that the Accused should be provisionally released.93 In its oral submissions, the Prosecution also raises the issue of the expected trial date.94 The Prosecution states that there are indications that the trial could begin as soon as next year.95 Although the Trial Chamber takes into account the potential length of pre-trial detention, the Trial Chamber finds that given the findings of the Trial Chamber on the other factors, this factor does not change the overall decision of the Trial Chamber.

State Sovereignty and International Comity

45. The Trial Chamber notes that the Accused was transferred to The Hague from the custody of the Croatian authorities. At the time of his transfer to The Hague, the Accused was awaiting trial in the Rastanski Lozja case. The Trial Chamber observes that if the Accused were to be provisionally released to the FYROM, the Accused could potentially be tried in the FYROM for the alleged crimes in the Rastanski Lozja case. If the Accused were tried in the FYROM, the trial could prevent the Croatian authorities from completing their ongoing criminal proceedings in the Rastanski Lozja case.

46. The Trial Chamber notes that both Croatia and the FYROM are parties to the European Convention on Extradition (“Convention”). Article 15 of the Convention provides that:

Except as provided for in Article 14, paragraph 1.b, the requesting Party shall not, without the consent of the requested Party, surrender to another Party or to a third State a person surrendered to the requesting Party and sought by the said other Party or third State in respect of offences committed before his surrender. The requested Party may request the production of the documents mentioned in Article 12, paragraph 2.

The Trial Chamber notes the unique jurisdictional position of the Tribunal with respect to national jurisdictions, and observes that the Trial Chamber is not bound by this prohibition against re-extradition. However, the Trial Chamber also notes that the Rastanski Lozja case is purely a matter of national jurisdiction over which the Tribunal has no claim to jurisdiction. Therefore, based on the principles of international comity, the Trial Chamber would not wish to provisionally release the Accused to the FYROM without first having been provided with the consent of the Croatian government.

B. The Provisional Release of the Accused to Croatia

1. Opportunity to be Heard

47. The Trial Chamber notes that on 9 June 2005, the Croatian government was invited by the Registrar to send representatives of their governments to attend an oral hearing held on 4 July 2005. The Croatian government, however, chose not to send a representative to attend the oral hearing.96 The Trial Chamber therefore considers that the requirement of giving “the State to which the accused seeks to be released” the opportunity to be heard, set forth in Rule 65(B) of the Rules, has been satisfied.

2. The Appearance of the Accused at Trial

48. In evaluating whether the Accused, if provisionally released to Croatia, will appear for trial, the Trial Chamber has weighed the factors discussed above in paragraphs 31-39, of which it does not need to repeat, but simply observes that many of them equally apply to the consideration of the provisional release of the Accused to Croatia.

Government Guarantees from Croatia

49. The Defence submits that the Croatian government has expressed its willingness to provide government guarantees on behalf of the Accused.97 The submissions of the Prosecution also support the willingness of the Croatian government to respect the decision of the Tribunal in regard to the provisional release of the Accused to Croatia.98 The Trial Chamber notes, however, that the Croatian government has failed to issue the government guarantees on behalf of the Accused. Furthermore, the Croatian government chose not to send a representative of the Croatian government to attend the oral hearing held on 4 July 2005. The Trial Chamber is therefore unable to make a determination on the current position of the Croatian government with respect to the provisional release of the Accused. Given the Trial Chamber’s reservations regarding whether the Accused would appear for trial, the lack of government guarantees from the Croatian government weighs heavily against the Accused.

3. The Danger Posed by the Accused to Victims, Witnesses or Other Persons

50. The Trial Chamber notes that the Prosecution has made no claim that the Accused, if provisionally released to Croatia, would pose a danger to victims or witnesses. The Trial Chamber also observes that the victims and witnesses of the alleged crimes reside in the FYROM and not in Croatia. Therefore, the Trial Chamber is satisfied that if the Accused were provisionally released to Croatia, the Accused would not likely pose a danger to victims, witnesses or any other persons.

4. Other Considerations

51. Although the Trial Chamber has taken into account the potential length of pre-trial detention, as discussed in paragraph 44 above, the Trial Chamber finds that, in light of the Trial Chamber’s findings on the other factors, this factor does not change the overall decision of the Trial Chamber.

V. CONCLUSION

52. The Trial Chamber has the discretion to order the provisional release of the Accused pursuant to Rule 65 of the Rules if it is satisfied that the Accused will appear for trial and that, if released, the Accused will not pose a danger to victims, witnesses, or other persons. After taking into account the submissions of the parties and weighing the relevant factors, the Trial Chamber is not satisfied that, if released to the FYROM, the Accused would appear for trial and not pose a danger to victims, witnesses, or other persons. On the basis of the foregoing submissions, the Trial Chamber is also not satisfied that the Accused would appear for trial if he were provisionally released to Croatia.

VI. DISPOSITION

53. For the foregoing reasons and pursuant to Rule 65 of the Rules, the Trial Chamber DENIES the Motion.

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

Dated this 18th day of July 2005,
At The Hague,
The Netherlands.

_______________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Decision on Motions for Leave to Reply and for Extension of Time to Reply, 20 June 2005.
2. Indictment, Count 1.
3. Ibid., Count 2.
4. Ibid., Count 3.
5. For further reference to the Rastanski Lozja case, see para. 5 below.
6. Motion, paras. 3-6.
7. Ibid., para. 2.
8. Ibid., para. 3.
9. Ibid., para. 7.
10. Ibid., paras. 11-15. The Trial Chamber observes that subsequent to the filing of the Motion, government guarantees on behalf of the Accused were provided by the FYROM government. No government guarantees, however, have been provided by the Croatian government for the Accused.
11. Response, para. 24.
12. Ibid.
13. Ibid., paras. 3-5.
14. Ibid., para. 6.
15. Ibid., paras. 8-10.
16. Ibid., para. 18. The Prosecution quotes a statement allegedly made by the Accused in August 2004 that: “In the totalitarian regime that now exists in Macedonia, even the innocent can die. Therefore, I have nothing to defend myself for and I have nothing to prove”.
17. Ibid., para. 16.
18. Ibid., paras. 17, 22.
19. Ibid.
20. Ibid., para. 20.
21. Ibid., para. 21.
22. Ibid.
23. Ibid., para. 23.
24. Reply, paras. 7-8.
25. Ibid., para. 7.
26. Ibid., para. 15.
27. Ibid., para. 25.
28. Ibid., para. 28.
29. Ibid., para. 13.
30. Ibid., paras. 9, 14.
31. Ibid., Confidential Annex A.
32. Ibid., para. 22.
33. Ibid., para. 24.
34. Ibid., Confidential Annex C, D and E.
35. Ibid., Confidential Annex A. The Accused states that if the Trial Chamber grants his request, he would prefer to be provisionally released to Skopje, the FYROM. The Accused guarantees that he has never been to Ljuboten village and has “no intention of going in the future ”. The Accused offers as a bail bond his entire property in the FYROM and Croatia, including a house in Skopje, land in Celopek-Tetovo, and a house in Bale. The Accused also states that if the Trial Chamber decides to grant his provisional release to Croatia, he is prepared to return to detention in Pula in order to complete the criminal proceedings in the Rastanski Lozja case and prove his innocence.
36. Ibid., para. 16.
37. Transcript page (“T.”) 52.
38. T. 54.
39. T. 76.
40. T. 75-76.
41. T. 75.
42. T. 75-76.
43. T. 76-77. See also “Additional Supplements to Oral Submissions by the Defence of Ljube Boskoski”, 6 July 2005.
44. T. 77.
45. T. 58-60.
46. T. 58-59.
47. T. 57-58.
48. T. 101-102. See also “Law on Witness Protection”, 8 July 2005.
49. See Prosecution Exhibit P1.
50. T. 68.
51. T. 73-74.
52. T. 91, 100.
53. T. 85-86.
54. Rule 65(A) of the Rules provides that: “Once detained, an accused may not be released except upon order of a Chamber ”.
55. Prosecutor v. Prlic et al ., Case No. IT-04-74-PT, Order on Provisional Release of Jadranko Prlic (“Prlic Trial Chamber Decision”), 30 July 2004, para. 13.
56. Prosecutor v. Prlic et al ., Case No. IT-04-74-AR65, Decision on Motions for Re-Consideration, Clarification, Request for Release and Applications for Leave to Appeal (“Prlic Appeals Chamber Decision”), 8 September 2004, para. 28.
57. Prosecutor v. Sainovic and Odjanic, Case No. IT-99-37-AR65. Decision on Provisional Release (“Sainovic Appeals Chamber Decision”), 30 October 2002, para. 6.
58. Ibid.
59. Ibid.
60. Prosecutor v. Sainovic and Odjanic, Case No. IT-99-37-AR65.2, “Decision Refusing Ojdanic Leave to Appeal, 27 June 2003, p. 4.
61. Ibid.
62. Prlic Appeals Chamber Decision, para. 30.
63. Ibid., para. 29.
64. Ilijkov v. Bulgaria, European Court of Human Rights, Judgement of 26 July 2001, para. 81 as referred to in Prosecutor v. Stanisic, Case No. IT-03-69-PT, Decision on Provisional Release, 28 July 2004, para. 22.
65. Prosecutor v. Simatovic, Case No. IT-03-69-AR65.2, Decision on Prosecution's Appeal Against Decision on Provisional Release, 3 December 2004, para. 25.
66. Ibid.
67. Prosecutor v. Milutinovic, Case No. 99-37-AR65.3, Decision Refusing Milutinovic Leave to Appeal, 3 July 2003, para. 12.
68. Sainovic Trial Chamber Decision, para 16; Prosecutor v. Lazarevic, Case No., IT-03-70-PT, Decision on Defence Request for Provisional Release, 14 April 2005, p. 3.
69. Prlic Trial Chamber Decision, para. 28.
70. Ibid.
71. Prosecutor v. Haradinaj, Case No. IT-04-84-PT, Decision on Ramush Haradinaj's Motion for Provisional Release , 6 June 2005, para 27. See also Prosecutor v. Kovacevic, Case No. IT-97 -24-PT, Decision on Defence Motion for Provisional Release, 21 January 1998, Prosecutor v. Brdjanin and Talic, Case No. IT-99-36-PT, Decision on Motion by Momir Talic for Provisional Release, 28 March 2001.
72. Prlic Trial Chamber Decision , para. 18.
73. T. 52.
74. See the parties' submissions above in paras. 10, 19.
75. See Prosecution Exhibit P1.
76. Ibid.
77. Reply, para. 8.
78. T. 76.
79. See Reply, paras. 7-8.
80. See the Defence's oral submissions above in para. 15.
81. Reply paras. 9, and 13-14.
82. See the Defence's submissions above on paras. 4, 11.
83. Reply, Confidential Annex C, D and E.
84. See the Defence's submissions above on paras. 4, 13.
85. T. 57-62.
86. T. 73.
87. Ibid.
88. Sainovic Appeals Chamber Decision, para. 7.
89. T. 53-54.
90. T. 54.
91. Motion, para. 7; Reply, Confidential Annex A.
92. The Trial Chamber observes, for example, that in the case of Had`ihasanovic, which involved charges solely under Article 7(3) of the Statute, the Prosecution called no less than 99 viva voce witnesses.
93. Reply, para. 16.
94. T. 82, 85.
95. T. 85.
96. T. 50.
97. Motion, para. 14.
98. Response, Confidential Annex C .