Case No. IT-98-29-A

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Ndepele Mwachande Mumba
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision:
31 October 2005

Ms. Helen Brady

Counsel for Stanislav Galic:

Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin

Background
1. 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 (“Tribunal”), is seized of the “Appellant’s Request for Provisional Release” filed on 6 September 2005 (“Request”) by Stanislav Galic (“Appellant”), in which the Appellant seeks provisional release pending his appeal hearing, to Banja Luka, Republika Srpska, pursuant to Rule 65(I) of the Rules of Procedure and Evidence (“Rules”).¹ The Office of the Prosecutor (“Prosecution”) filed its response on 15 September 2005 opposing the Request.² On 19 September 2005, the Appellant filed a reply.³

2. The Appellant was arrested by the Multinational Stabilisation Force (“SFOR”) on 20 December 1999, and has been in the United Nations Detention Unit (“UNDU”) ever since.⁴ On 5 December 2003, a Trial Chamber convicted the Appellant of crimes against humanity (murder and inhumane acts) pursuant to Article 5 of the Tribunal’s Statute and of violations of the laws or customs of war (acts of violence the primary purpose of which is to spread terror among the civilian population, as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949) pursuant to Article 3 of the Statute and sentenced the Appellant to 20 years of imprisonment.⁵ The Appeals Chamber is currently seised of the Appellant’s and Prosecution’s appeals against the Galic Trial Judgement and sentence. A date for the hearing of these appeals has not yet been scheduled. The Appeals Chamber has previously granted the Appellant provisional release for four days following his sister’s death in order to attend her requiem in Banja Luka, Republika Srpska.⁶ The Appellant returned to the UNDU at the time specified by the Appeals Chamber.
   Applicable Law

3. Pursuant to Rule 65(I), a convicted person may be granted provisional release pending an appeal if the Appeals Chamber is satisfied that the following three requirements are met: (a) if released, the appellant will return for the appeal hearing; (b) if released, the appellant will not pose a danger to any victim, witness, or other person; and (c) special circumstances exist warranting such release. These requirements are cumulative.⁷ Whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities.⁸
   Submissions

4. The Appellant submits that all the pre-conditions provided in Rule 65(I) for granting provisional release are met and provides various arguments in support of this contention, namely that: (i) if released, he would appear for the hearing of the appeal;⁹ (ii) if released, he would not pose a danger to any victim, witness or other person;¹⁰ and (iii) special circumstances exist warranting his provisional release, in the form of (a) the merits of his appeal;¹¹ (b) the length of his pre-appeal detention;¹² and (c) his poor health.¹³ The Prosecution opposes the Request and submits that the Appellant has not satisfied two of the criteria set out in Rule 65(I).¹⁴

5. Concerning his first argument, the Appellant submits that taking into account that his appeal will not be heard in the next months and considering that he fully complied with all the conditions set by the Appeals Chamber when he was granted provisional release to attend his late sister’s requiem, the Request should be granted.¹⁵ In support of the Request , the Appellant has also attached a formal letter of guarantee from the Government of Republika Srpska, which certifies, inter alia, that representatives of Republika Srpska shall arrest the Appellant in case he flees or breaches any of the conditions specified by the Tribunal.¹⁶ The Appellant further submits that he is ready to give a personal statement in writing not to contravene any of the obligations contained in Rule 65 and also to appear at the hearing or surrender to the UNDU at the conclusion of the period of his release .¹⁷ He adds that if released to Banja Luka where his family is, he will deliver his passport to the local authorities there in conformity with the usual practice.¹⁸

6. The Appellant also submits that a failure to surrender himself at the time set by the Appeals Chamber would be contrary to his best interests.¹⁹ He adds that, given that he entered a plea of not guilty, he has an interest in appearing at the hearing and in being recognised as not guilty for the crimes for which he was prosecuted.²⁰ At the same time, however, the Appellant contends that there exists no reason why a convicted person should be treated differently from one that is only accused, particularly if the convicted person has already spent a long period in detention,²¹ and submits that in his case, he has always demonstrated a perfect attitude in detention .²² He further submits that the foreseeable duration of his provisional release would not represent a difficulty as the Tribunal has already granted this measure for similar periods of time.²³

7. The Prosecution argues that the gravity of the offences of which the Appellant was convicted, his sentence to 20 years’ imprisonment, and the possibility that this sentence could be increased to a life sentence as a result of the Prosecution’s appeal, considered altogether, create a strong incentive for flight.²⁴ It adds that the Trial Chamber in this case considered the gravity of the crimes charged in the indictment and the severe penalties that could be imposed after a finding of guilt as factors leading to the conclusion that there was a risk that the Appellant would not appear for trial if provisionally released, which risk is more pronounced now that a guilty verdict has been entered.²⁵ The Prosecution points out that while the Appellant has served approximately 5¾ years of his sentence, the remaining 14¼ years of his sentence is still considerable , particularly since the Prosecution has appealed the Appellant’s sentence.²⁶

8. The Prosecution further argues that the Appellant has already demonstrated his readiness to evade arrest and detention since he did not voluntarily surrender to the Tribunal but had to be arrested in a “non-peaceful manner”.²⁷ The Prosecution argues that the documents seised from the Appellant upon his arrest by SFOR indicate that he was at that time attempting to seek refuge in the former Federal Republic of Yugoslavia (“FRY”) in order to evade arrest. The Prosecution submits that the Trial Chamber relied on this letter in denying the Appellant provisional release pending trial.²⁸

9. The Prosecution contends that its concerns about a potential flight risk are not alleviated by the Appellant’s submissions because the fact that he has behaved well in detention does not show that he is not a flight risk.²⁹ Additionally, the Prosecution submits that his recent release to attend his late sister’s memorial service also fails to show that he will return after a longer release since the strict conditions imposed during his recent short temporary release are qualitatively different than the scrutiny which may be expected in relation to more lengthy releases.³⁰

10. The Prosecution argues that the Appellant’s argument that absconding would be contrary to his interest is entirely unconvincing, as the potential for a more severe sentence arising from the Prosecution appeal increases the Appellant’s incentive to flee.³¹ Finally, the Prosecution submits that the guarantees provided by the Government of Republika Srpska and the proposed personal statement of the Appellant are insufficient to address the risk of flight because the Appellant has already demonstrated a willingness to relocate in order to avoid arrest.³² Therefore, the Prosecution submits, the guarantee of a single State cannot address the question of what might happen if the Appellant absconds and moves to a State that is unwilling or unable to secure his arrest.³³

11. In reply, the Appellant submits that the Prosecution’s argument that he might move to a State that is unwilling or unable to secure his arrest is unacceptable since Article 29 of the Tribunal’s Statute obliges States to cooperate with the Tribunal.³⁴ He adds that the Prosecution omits to mention that it recently expressed its satisfaction with the active and effective cooperation of Serbia and Montenegro, which, the Appellant points out, have established a policy of strongly encouraging suspects to surrender.³⁵ The Appellant contends that the fact that he returned from his previous release is significant because the period of four days for which he was released would have been enough for him to plan his flight should he have so intended.³⁶ In relation to the Prosecution’s argument that the Appellant had previously demonstrated his readiness to evade arrest by relocating, the Appellant submits that that argument is unfounded and was in fact rejected by the Appeals Chamber in the First Provisional Release Decision.³⁷
    Discussion

12. The Appeals Chamber recalls that whether an applicant should be granted provisional release is to be determined on a balance of probabilities.³⁸ Factors tilting the scales in favour of granting the Appellant provisional release include the letter of guarantee from the Government of Republika Srpska indicating the government’s intention to ensure the Appellant’s compliance with the conditions set by the Appeals Chamber.³⁹ The Appeals Chamber also notes that the Appellant is willing to give a personal statement to the effect that he will comply with his obligations under Rule 65, but that such statement has not been submitted alongside the Request for the Appeals Chamber’s scrutiny.⁴⁰

13. The Appeals Chamber further recalls that the Appellant was previously granted provisional release, and that he surrendered into detention at the conclusion of the period fixed by the Appeals Chamber. While this is a factor that would generally militate in favour of granting provisional release, it is of limited utility in the present case. Unlike the situation envisaged by the Request, the previous provisional release was brief, based on exceptional grounds of compassion, and subject to stringent conditions. The provisional release now requested would not be for a fixed and pre -determined period, and thus would be very different from the four days granted in the First Provisional Release Decision.⁴¹ As shown below, the conditions that can be set by the Appeals Chamber would of necessity also be different.⁴²

14. Regarding the Prosecution’s submission that in failing to surrender into the custody of the Tribunal the Appellant has demonstrated his readiness to evade arrest, the Appeals Chamber notes that the Appellant was arrested pursuant to a sealed indictment and there is no indication that he had actual notice of its existence .⁴³ Therefore, the Appeals Chamber cannot take the fact that the Appellant did not voluntarily surrender into account .⁴⁴ This has not been done in the present case. This being said, documents seised from the Appellant at the time of his arrest contained information that he had requested to be allocated an apartment in the area of the Belgrade or the Novi Sad garrisons.⁴⁵ The following excerpt of a letter written by the Appellant to then FRY Federal Minister of Defence indicates that the Appellant was attempting to relocate to the former FRY in order to evade a possible arrest:

    The current political situation in Republika Srpska further complicates the situation , in view of information that I am on the list of accused for the so-called war crimes during the war in BH, from 1991-1995. For this reason, and at the suggestion of the President of Republika Srpska and the person in charge in Republika Srpska , it has been suggested to me that I move out of the territory of Republika Srpska because it is suspected that I am one of the first persons that the Hague Tribunal is planning to arrest.

    With a view to protecting all of us who have taken part in the establishment of Republika Srpska, and my personal safety and my family’s, I appeal to you to provide me with an official apartment, or to allow me to purchase an apartment in the area of the Belgrade or Novi Sad garrison.⁴⁶

    Contrary to the Appellant’s submission, therefore, the Appeals Chamber is satisfied that he was prepared to evade arrest. Furthermore, the Appeals Chamber recalls that in the First Provisional Release Decision, the Appeals Chamber did not reject the submission that the Appellant had previously demonstrated his readiness to evade arrest by relocating. In fact, the Appeals Chamber did not make any specific finding on this issue, but proceeded to grant the request because the special circumstances prevailing at the time required that it be granted.⁴⁷

15. Under the present circumstances, and even if it is for the Appeals Chamber to impose such conditions upon the release of the Appellant as it may determine appropriate,⁴⁸ the Appeals Chamber is of the view that, considering the length of the release requested, it would not be feasible nor appropriate to request that the Appellant be under constant escort while on provisional release as it did in the First Provisional Release Decision.⁴⁹ Failing the observance of such strict conditions as were imposed on him last time, the Appeals Chamber is not satisfied , for the aforementioned reasons and for the reasons that follow, that the Appellant would appear at the appeals hearing. Similarly, since the Appellant has already demonstrated an inclination to relocate in order to evade arrest, the government guarantee submitted would be of limited use if the Appellant was successful in leaving the territory of Republika Srpska.

16. The Appeals Chamber disagrees with the Appellant’s contention that his position is similar to that of an accused before trial. Unlike an accused person awaiting trial, the Appellant has been convicted of serious crimes, which crimes have to be taken into account when assessing whether an appellant, if released, would appear at the hearing of the appeal.⁵⁰ The Appeals Chamber also recalls that the more severe the sentence, the greater the incentive to flee.⁵¹ These are some of the factors that distinguish the Appellant’s situation from that of accused persons . While the Appellant has already served more than 5 years of his sentence the remainder is still considerable. He was sentenced to 20 years of imprisonment, and considering that he has not even served half of his sentence, the remaining years create a strong incentive to flee. Furthermore, the outcome of the appeal is unforeseeable and thus is not a factor that can be relied upon in determining whether provisional release should be granted.⁵² While there is a possibility that as a result of the Appellant’s appeal there may be a reduction in sentence, it is equally true that as a result of the Prosecution’s appeal there may be an increase in sentence. Taking these factors into account, the Appeals Chamber is similarly not persuaded by the Appellant’s argument that because he was convicted he has a particular interest in attending the hearing to prove that he is not guilty of the crimes for which he was convicted.

17. Having weighed the relevant factors on a balance of probabilities, the Appeals Chamber is not satisfied that, if released, the Appellant will appear at the hearing of the appeal and therefore finds that the Request does not meet the first of the requirements set out in Rule 65(I)(i).

18. The Appeals Chamber further notes that matters beyond the Tribunal’s control have extended the proceedings to a considerable length.⁵³ As a result, as noted by the Pre-Appeal Judge at the Status Conference, the hearing on appeal may not take place for some time.⁵⁴ However, the Appellant’s detention serves the aim of ensuring that he is present at the appeals hearing when it does take place, and, considering all the circumstances of this case, complies with the principle of proportionality.⁵⁵

19. Because the Appeals Chamber is not satisfied with regard to the first requirement under Rule 65 (I), it is not necessary for the Appeals Chamber to discuss the further arguments presented by the parties relating to the remaining criteria.⁵⁶

20. The Appeals Chamber notes that, according to the Prosecution, paragraphs 15 -30, 38(a) in part, 38(b), and 38(c) of the Request impermissibly plead the merits of the Appellant’s grounds of appeal and do not relate to his request for provisional release. The Prosecution requests that these paragraphs be struck out.⁵⁷ The Prosecution adds that many of these paragraphs contain additional citations or arguments not included in the Defence Appellant’s Brief or Brief in Reply.⁵⁸ In light of the Appellant’s assurances that any reference in the Request to arguments concerning the main appeal is of no significance to the appeal proceedings and will not form part of the record of the appeal on the merits,⁵⁹ the Appeals Chamber does not consider it necessary to address the Prosecution’s request.
    Disposition

21. For the foregoing reasons and pursuant to Rule 65(I) of the Rules, the Request is DISMISSED.

Dated this 31 day of October 2005
At The Hague,
The Netherlands.

_______________________
Theodor Meron
Presiding Judge

[Seal of the Tribunal]