IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge
Ninian Stephen
Judge
Lal C. Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 25 September 1996
PROSECUTOR
v.
ZEJNIL DELALI
C
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"
___________________________________________________________
DECISION ON MOTION FOR PROVISIONAL RELEASE
FILED BY THE ACCUSED ZEJNIL DELALI
C
_________________________________________________________
The Office of the Prosecutor:
Mr. Eric Ostberg
Ms. Teresa McHenry
Counsel for the Accused:
Ms. Edina Residovic, for Zejnil Delalic
I. INTRODUCTION AND PROCEDURAL BACKGROUND
The accused Zejnil Delalic is currently
being detained pursuant to an Order for Detention on Remand dated 9 May 1996. Pending
before this 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 ("International Tribunal") is the
Motion for Provisional Release ("Motion") filed on behalf of the accused on 29
May 1996. The Office of the Prosecutor ("Prosecution") filed its response on 28
June 1996. Oral arguments on the Motion were heard on 23 July 1996 and additional
arguments were presented on 20 August 1996 during a hearing on the accuseds motion
on the form of the indictment. The Defence filed an addendum to the Motion
("Addendum") on 25 July 1996 containing additional arguments in support of
provisional release. The Prosecution responded to the Addendum on 31 July 1996, and
submitted a supplemental response on 30 August 1996.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and
the oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
II. DISCUSSION
A. Applicable Provisions
- This Decision addresses the Motion pursuant to Rule 65 of the Rules of Procedure and
Evidence of the International Tribunal ("Rules"). This Rule provides:
Rule 65
(A) Once detained, an accused may not be released except upon an order
of a Trial Chamber.
(B) Release may be ordered by a Trial Chamber only in exceptional
circumstances, after hearing the host country 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.
(C) The Trial Chamber may impose such conditions upon the release of
the accused as it may determine appropriate, including the execution of a bail bond and
the observance of such conditions as are necessary to ensure his presence for trial and
the protection of others.
(D) If necessary, the Trial Chamber may issue a warrant of arrest to
secure the presence of an accused who has been released or is for any other reason at
liberty.
Sub-rule 65(B) establishes the criteria which must be satisfied before
a Trial Chamber can authorise the release of an accused pending trial. These criteria are
fourfold, three of which are substantive and one procedural. They are conjunctive in
nature, and the burden of proof rests on the Defence. Thus, the Defence must establish
that there are exceptional circumstances, that the accused will appear for trial, and that
if released the accused will not pose a danger to any victim, witness or other person.
Additionally, the host country must be heard. If any of these requirements are not met,
the Trial Chamber is not authorised to grant provisional release and the accused must
remain detained.
- The Defence has supplied evidence of the Registrars notification to the host
country and the host country has responded. In its response dated 18 July 1996 the host
country stated that it is for the International Tribunal to decide when provisional
release is appropriate, and therefore limited itself to commenting on the practical
consequences relating to the accuseds release. It did not give assurances that, if
released, the accused could remain in the Netherlands to await trial. Although not
providing a definitive position on the possibility for the accused to remain in the
Netherlands, the host country has been heard, thereby fulfilling the one procedural
requirement contained in Sub-rule 65(B). The Defence in its Motion and Addendum presents
arguments and supporting materials which it contends fulfil the substantive requirements.
The Prosecution in turn has responded to the Defences arguments and material and has
presented additional material of its own.
B. Pleadings
1. The Defence
(a) Exceptional Circumstances
- The Defence submits evidence that it asserts shows that the accused did not possess
superior authority over the Celibici camp. Because the accused
is charged in the indictment with command responsibility for the listed offences, the
Defence contends that evidence disputing his position of authority nullifies the
Prosecutions case and should be considered as an exceptional circumstance within the
meaning of Sub-rule 65(B).
- The Defence includes a number of documents and witness statements in support of its
argument that the accused did not occupy a position of superior authority. Several
propositions are made and evidence presented in their support. Specifically, the Defence
offers documents relating to the following arguments.
(1) On 2 May 1992 the accused was authorised to perform logistical
activities for a period of six months. Registry page ("RP") D844-D843. On that
basis the Defence concludes that before that date the accused had no official authority or
position.
(2) On 9 May 1992 the accused was authorised to make contracts for the
exchange of military equipment for defence purposes. RP D842. The Defence argues that this
fact further supports its proposition that before that date the accused was a common
soldier.
(3) On 18 May 1992 the accused was appointed Coordinator, responsible
for information and mediation, co-ordination between the defence forces and the War
Presidency. RP D840. The Defence submits documentation to indicate that the position of
Coordinator is not a command position. RP D833. The Defence offers a certificate issued by
the Command of the IV Corps dated 22 May 1996 to show that the accused had not been
appointed commander of the Territorial Defence or any other commanding position in the
Territorial Defence in 1992 (RP D834), and a certificate issued by the Konjic municipality
dated 2 July 1996 to establish that he had not been elected or appointed to any position
in the legal authorities or political bodies in 1992. RP 826.
(4) To refute the proposition that the accused was competent for the Celebici camp both as Coordinator and as Commander of the First
Tactical Group the Defence offers evidence that on 27 July 1992 he was appointed Commander
of the First Tactical Group (RP D839), whose only combat task was to lift the blockade of
Sarajevo. The Defence thus asserts that the accused was 50 kilometres from Konjic. The
Defence also includes a document showing that one of the Prosecutions Croatian
witnesses is accused of shelling Konjic. RP D829-D827.
- In addition to the above evidence relating to the accuseds alleged command
responsibility, the Defence offers the following additional reasons for his release: the
severe difficulties, both financial and personal, which his family faces as a result of
his absence; the risk because of his indictment to his children living in Serbia; and the
serious business problems resulting from his absence.
(b) Risk of flight
- The Defence in the Motion and Addendum presents a number of arguments as to why there is
no risk of flight. The first point raised is that the accused has no criminal record.
Second, the Defence notes the substantial ties that exist between the accused and several
countries which cooperate with the International Tribunal. In this regard it is asserted
that for the past twenty-six years, minus the time he was in Bosnia and Herzegovina, the
accused has lived and worked in Austria and Germany. He manages his own business in
Germany and has a valid German visa. He also has a house in Bosnia and Herzegovina. The
accused would thus be willing to await trial in any of these jurisdictions or the
Netherlands, all of which cooperate with the International Tribunal and therefore his
availability to the International Tribunal would be ensured. It is proffered that escape
to Serbia is impossible because the accused is charged with crimes committed against
Serbs, while escape to Croatia is impossible because an attempt on the accuseds life
was made by individuals from the Croatian Community of Herzeg-Bosna.
- As further evidence that the accused will not flee, the Defence presents a guarantee
from the Ministry of Justice of the Republic of Bosnia and Herzegovina, in which that
government undertakes the obligation to ensure that the accused, if released, would be
available to the International Tribunal. RP D831-D830. This guarantee was made subject to
the accuseds promise to remain in his home in the Konjic region of Bosnia and
Herzegovina and the countrys extradition laws. During the hearing on 20 August 1996
the accused duly promised to stay in his house in Konjic pending trial, although free
movement within 50 kilometres in order to accommodate business trips to Sarajevo was
requested. Based on the above, as well as the accuseds weakened financial condition,
the Defence concludes that there is no risk of flight.
- In response to the identity card and travel document issued to the accused under a false
name, the Defence asserts that the use of such documents is unavoidable during war. In
support, the Defence submits a document from the Ministry of Internal Affairs of the
Republic of Bosnia and Herzegovina, certifying that the use of false identity cards was
not uncommon and that the government itself had issued the identity card to the accused.
RP D822-D820. The Defence also submits the statement of an individual who used personal
documents made out to another name and the statement of the person who helped acquire the
documents for the accused. RP D813-D812. As a final argument the Defence submits the
accuseds own strong sense of innocence: because he is convinced of his innocence the
accused has no reason to flee or fail to respond to the International Tribunals
summons.
(c) Danger to victims, witnesses or any other person
- To support the proposition that if released the accused would pose no danger to victims,
witnesses or any other person, the Defence stresses the fact that all of the witnesses
live in places which are, for various reasons, inaccessible to the accused. Moreover, the
Defence points out that most of the witnesses fail to mention the accused. The accused
himself promised during the hearing on 20 August 1996 not to seek contact with any of the
witnesses, nor to interfere with any of the evidence. He also stressed that he would not
be in a position to interfere with the Prosecutions evidence.
2. The Prosecution
- The Prosecution asserts that no exceptional circumstances have been shown, that the
guarantees given against the risk of flight are not sufficient and that the victims or
witnesses might be in danger after the provisional release of the accused. Further, the
Prosecution asserts that the fact that all defendants before the Tribunal are charged with
serious violations of international humanitarian law and the fact that the International
Tribunal operates in an international setting without the normal police resources of a
State has resulted in the presumption than an accused will be detained. The Prosecution
concludes that the accused in this case falls within that presumption as he has failed to
prove exceptional circumstances; he is in the same position as all the other accused.
(a) Exceptional circumstances
- The Prosecution argues that the accused is charged with responsibility for multiple acts
of murder, torture, sexual assault and other crimes, and that the seriousness of the
charges alone, for which life imprisonment may be imposed, justify continued detention.
With regard to the additional evidence submitted by the Defence concerning the
accuseds alleged superior position, the Prosecution contends that many of the
documents improperly go to the merits of the indictment. According to the Prosecution, the
indictment has already been confirmed by a Judge who found sufficient evidence to support
the charges in the indictment. At trial, evidence will be presented as to the superior
position of the accused and the Defence will have an opportunity to challenge it. Thus,
according to the Prosecution, the Defence has improperly attempted to go into the merits
of the case, the proper resolution of which must await trial. In its Supplementary
Response the Prosecution attempts to bolster this argument by stating that international
conventions and the practice of many States do not require a review of the merits of the
Prosecutors case in order to determine whether the detention of the accused is
justified.
- Additionally, the Prosecution asserts that many of the documents submitted by the
Defence in the Addendum are either erroneous, present incomplete or misleading information
or are of questionable relevance in regard to this Motion. Although refusing to go through
each document, the Prosecution supplies a few examples supporting these accusations. As an
example of an incorrect document the Prosecution points to the witness statement submitted
by the Defence reporting that the accused had no elected or appointed positions in
governmental or political bodies in 1992. In contradiction, the Prosecution points to the
concession by the accused that in 1992 he was appointed Coordinator of the Bosnian
Territorial Defence ("Bosnian TO") and the Armed Forces of the Croation Defence
Council of the Croatian Community of Herceg-Bosna ("Bosnian Croat HVO forces")
and was appointed Commander of the First Tactical Group. The Prosecution thus contends
that either position must be considered an appointment to a military position, and thus a
governmental body, during 1992. As for incomplete documents, the Prosecution asserts that
the documents regarding the accuseds appointment as Coordinator and as Commander may
be considered incomplete as far as resolving the ultimate issues raised in this case,
since the documents do not indicate whether in either role the accused had responsibility
for subordinates at Celebici camp. Finally, regarding
documents of questionable relevance, the Prosecution points to the document attesting to
the charges brought against one of the Prosecution witnesses for the shelling of Konjic.
The Prosecution contends that the only relevance of this document is for impeachment
purposes, which can only be accomplished at trial.
- In the Prosecutions Response to the Materials filed by Delalic
in Support of the Motion for Provisional Release as far as they Relate to his Motion on
Defects in the Form of the Indictment, the Prosecution points to additional defects in the
evidence submitted by the Defence and provides supplemental evidence supporting its case,
particularly in relation to the accuseds command responsibility. Specifically, the
Prosecution provides witness statements which report that the accused was in charge of the
camp, including during the period of time he was Coordinator, and that as Coordinator the
accused received a copy of the Investigative Commissions report indicating abuses in
the Celibici camp. The Prosecution
also asserts that it has information, including both statements and documentation,
indicating that the accused became Commander of the First Tactical Group earlier than
suggested by the Defence (June or early July), and that during this time he had command
over Celibici camp. Additionally,
the Prosecution submits documentation signed by the accused concerning camp prisoners and
asserts that the Defence itself has documents showing that the accused, in his capacity as
Commander of the First Tactical Group, gave orders in August 1992 to the co-accused
Zdravko Mucic, the camp commander, and thus the Defence cannot
maintain that no evidence exists that the accused had authority over the camp. The
Prosecution also notes that it has evidence, including witness statements, indicating that
the accused participated, in a commanding role, in the attack which resulted in the
imprisonment of many of the detainees; that the accused acted as the head of the armed
forces in the area; that the accused ordered that the camp be created; that he selected
the co-accused Zdravko Mucic as the
commander of the camp; that he had authority to release prisoners; and that he had authority
over who entered and did not enter the camp.
- The Prosecution then reiterates its previously stated position that the Defence is
improperly attempting to address the merits of the case against the accused. As evidence
of the inappropriateness of deciding the merits at this point the Prosecution points to
the fact that the information offered by the Defence is given only in "conclusory
terms" by way of documents or brief statements, without the opportunity for
explanation by the witness or cross-examination. For support the Prosecution relies on the
Decision of Trial Chamber I denying provisional release in the case of Prosecutor v.
Tihomir Blaskic. Prosecutor v.
Tihomir Blaskic, Decision
Rejecting A Request for Provisional Release No. IT-95-14-T, T. Ch. I, 25 Apr. 1996 (Blaskic Decision).
(b) Risk of flight
- The Prosecution asserts that a serious risk of flight exists as the Defence failed to
supply a concrete proposal as to where the accused would live or what specific measures
would be taken to secure his availability to the International Tribunal upon his release.
This objection was maintained despite the Defences submission of the Addendum. Other
issues which the Prosecution contends are relevant in this regard are the accuseds
prosperous financial situation and his connections in many countries, in some of which he
has access to influential people who could help him evade arrest, as well as the fact
that, at the time of his arrest, forged travel and identification documents were found in
his house. The Prosecution finds unpersuasive the submission by the Government of the
Republic of Bosnia and Herzegovina indicating that it authorised the identity card as,
according to the Prosecution, it is the fact that the accused has access to such documents
that is important because it facilitates his ability to flee. Additionally, the false
travel authorisation was not sanctioned by the government but rather was obtained by the
co-accused Zdravko Mucic. A confidential witness statement is
attached testifying to this fact. RP 874-873. Thus, according to the Prosecution, these
factors show that the accused cannot be released without a great risk that he may never
return.
- The Prosecution argues that the guarantee given by the Republic of Bosnia and
Herzegovina does not suffice to undo this danger, as it only amounts to a promise to hand
the accused over if and when the accused is found in the territory of Bosnia and
Herzegovina, not that he will be kept there. Further, the guarantee appears to be
conditioned on the accused staying at his home in Konjic. The Prosecution contends that
the ability of the accused to evade the authorities of the Republic of Bosnia and
Herzegovina is evident from his fleeing the country while there was an arrest warrant
outstanding for him in the autumn of 1992. The Prosecution supplies additional
confidential witness statements in regard to the allegation that the accused was under
investigation. RP 1083, 1079. Finally, the Prosecution points to the accuseds
connection with certain countries, including Croatia where the accused has many business
and social contacts and Serbia where the accuseds children live, which have so far
refused to surrender suspects to the International Tribunal.
(c) Danger to victims, witnesses or any other person
- Regarding the risk to victims and witnesses, the Prosecution notes that some of the
witnesses live in Bosnia and Herzegovina, particularly in the Konjic region, and would,
therefore, be accessible to the accused if he were released. The Prosecution thus
concludes that the possibility that the accused might pose a danger to these individuals
would persist. Additionally, this danger would be perceived by the witnesses themselves
and could influence their decision to testify.
C. Findings
- The Trial Chamber finds that the Defence has failed to fulfil the requirements for the
provisional release of the accused. Each of the three substantive provisions will be
addressed, although the failure to fulfil any one requirement is sufficient to deny the
Trial Chambers authority to grant provisional release.
1. Exceptional circumstances
- Sub-rule 65(B) requires that in order to qualify for provisional release the accused
must show exceptional circumstances. The Trial Chamber is cognisant that international
standards view pre-trial detention, in general, as the exception rather than the rule. See
International Covenant on Civil and Political Rights ("ICCPR") Art. 9.3, Human
Rights Committee General Comment 8, Committee of Ministers of the Council of Europe
Resolution 65(11). However, both the shifting of the burden to the accused and the
requirement that he show exceptional circumstances to qualify for provisional release are
justified by the extreme gravity of the offences with which persons accused before the
International Tribunal are charged and the unique circumstances under which the
International Tribunal operates.
- The gravity of the offences with which persons accused before the International Tribunal
are charged is self-evident. The International Tribunal only has subject-matter
jurisdiction over serious violations of international humanitarian law, including, inter
alia, murder, rape, torture and genocide. The unique circumstances in which the
International Tribunal must operate are also readily apparent. It is not in possession of
any form of mechanism, such as a police force, that could exercise control over the
accused, nor does it have any control over the area in which the accused would reside if
released. Should the State or entity in whose territory an accused resides upon his
release, or to which he relocates himself if he is released to a State that is willing to
cooperate with the International Tribunal such as the Republic of Bosnia and Herzegovina,
choose not to comply with an order by the International Tribunal to turn over the accused,
the sole avenue of recourse available to the International Tribunal would be to lodge a
complaint with the Security Council. Thus the opportunity to bring the accused to justice,
thereby fulfilling the mandate of the International Tribunal to facilitate and strengthen
peace in the former Yugoslavia, would at best be delayed. This concern, that once released
an accused could escape the International Tribunals grasp, does not derive from mere
imagination. As noted above, the International Tribunal is forced to rely on the
cooperation of national governments or entities, some of which have so far failed to
surrender suspects upon request. As such, both the gravity of the offences charged and the
unique circumstances in which the International Tribunal operates justify the shifting of
the burden to the accused and the requirement that he show exceptional circumstances to
qualify for provisional release.
- In determining whether an accused has established exceptional circumstances the Trial
Chamber looks to determine whether there is reasonable suspicion that he committed the
crime or crimes as charged, his alleged role in the said crime or crimes, and the length
of the accuseds detention. Detention of an accused on the basis of a reasonable
suspicion that the accused committed the crime or crimes charged is in accordance with
jurisprudence under the European Convention for the Protection of Human Rights and
Fundamental Freedoms ("ECHR") despite its presumption against detention. In this
regard it is well established that detention on the basis of reasonable suspicion alone is
lawful. See Stögmüller v. Austria, 9 Eur. Ct. H.R. (ser. A) at 39-40
(1969) ("Stögmüller v. Austria"); see also Commission Report in De
Jong, Baljet and Van den Brink Case, 77 Eur. Commn 34 (1984); and see the
Court decision in the above case, 77 Eur. Ct. H.R. (ser. A) at 21-22 (1984). This is
particularly so for serious offences. See Recommendation R(80) of the Committee of
Ministers of the Council of Europe, 27 June 1980, at Art. 4. Thus, as long as reasonable
suspicion can be established, detention is lawful according to the jurisprudence of the
ECHR.
- In regard to what constitutes reasonable suspicion, the European Court of Human Rights
has held that "having a reasonable suspicion presupposes the existence of
facts or information which would satisfy an objective observer that the person concerned
may have committed the offence". Fox, Campbell and Hartley v. U.K., 182 Eur.
Ct. H.R. (ser. A) at 16 (1990). The Court continued to note that "[w]hat may be
regarded as reasonable will however depend upon all the circumstances". Id.
Specifically, in relation to terrorist-type offences, the Court stated that "the
reasonableness of a suspicion justifying arrests cannot always be judged
according to the same standards as are applied in dealing with conventional crimes". Id.
The European Commission of Human Rights has supplemented this definition by stating that
"[i]n order to justify arrest and detention on remand it cannot be required that the
existence and nature of the offence of which the person concerned is suspected be
established since that is the aim of the investigation, the proper conduct of which is
facilitated by detention". Eur. Commn H.R, Omkaranda v. Switzerland,
decision 8118/77 (19 Mar. 1981); see also Ferrari-Bravo v. Italy, decision
9627/81 (14 Mar. 1984).
- This
analysis is equally applicable to the serious crimes which are within the
subject-matter jurisdiction of the International Tribunal. As was stated in the Decision
on the Prosecutors Motion Requesting Protective Measures for Victims and Witnesses
in the Tadic case, interpretations given by other judicial
bodies of rights protected in international conventions are relevant to the interpretation
of the International Tribunals Rules, although the International Tribunal must
interpret its Rules "within its own unique legal framework". Prosecutor v. Dusko Tadic, Decision on the
Prosecutors Motion Requesting Protective Measures for Victims and Witnesses, No.
IT-94-1-T, T. Ch.II., 10 Aug. 1995, at 14, 15. Relevant in this regard is the fact that
the definition of "reasonable suspicion" is substantially similar to the
terminology used by the International Tribunal. Sub-rule 47(A) requires that the
Prosecutor be satisfied that there is "sufficient evidence to provide reasonable
grounds for believing that a suspect has committed a crime within the jurisdiction of the
[International] Tribunal" before submitting an indictment for confirmation. Judge
Sidhwa, in his review of the indictment against Ivica Rajic,
noted that "[t]o constitute reasonable grounds, facts must be such which are within
the possession of the Prosecutor which raise a clear suspicion of the suspect being guilty
of the crime". He continued to conclude that "[t]he evidence, therefore, need
not be overly convincing or conclusive; it should be adequate or satisfactory to warrant
the belief that the suspect has committed the crime". Prosecutor v. Ivica Rajic, Review of the Indictment, No. IT-95-12-I, Judge Sidhwa,
29 Aug. 1995, at 8. This definition is comparable to the definition of reasonable
suspicion discussed above.
- Reasonable suspicion at the time of arrest is not, however, enough. To remain lawful the
detention of the accused must be reviewed so that the Trial Chamber can assure itself that
the reasons justifying detention remain. See ECHR Arts. 5.3, 5.4, ICCPR Arts. 9.3,
9.4, and the United Nations Body of Principles for the Protection of all Persons under Any
Form of Detention or Imprisonment Principle 39. Whether there is reasonable suspicion and
whether the detention could reasonably be deemed necessary should, according to the
European Commission of Human Rights, be judged by the circumstances at the moment the
decision was taken to detain the person in question, and not by the facts that are known
at the moment the complaint is examined. Stögmüller v. Austria, Y.B. VII, 168,
188 (1964), citing Nielsen v. Denmark, unpublished partial decision 343/5 at 22.
However, "the necessity also has to exist subsequently, and will then have to be
judged by the circumstances and facts at the moment of the judicial review in order to
permit a decision on whether . . . the person is to be provisionally released". P.
van Dijk & G.J.H. van Hoof, Theory and Practice of the European Convention on Human
Rights 263 (1990). As the Court stated, "the persistence of such [reasonable]
suspicions is a condition sine qua non for the validity of the continued detention
of the person concerned . . . ." Stögmüller v. Austria, at 40; see also
Fox, Campbell and Hartley v. U.K., 182 Eur. Ct. H.R. (ser. A) at 16 (1990). Thus, the
review of the continued necessity to detain should be judged according to the
circumstances and facts as known at the time of review. Included in these reviewable facts
and circumstances are the "non-refuted facts" submitted by the accused. Stögmüller
v. Austria, at 40; see also Neumeister Case, 8 Eur. Ct. H.R. (ser. A) at 37
(1968). In this regard the Trial Chamber rejects the Prosecutions proposition that
additional evidence is not admissible as it goes to the merits of the case. The Trial
Chamber will review in a cursory manner, keeping in mind that this is not the proper time
to consider the merits of the case, the strength of the Prosecutions case in
determining whether the accused has shown an absence of reasonable suspicion. Included in
this determination will be additional evidence as to "irrefutable facts"
submitted by the accused.
- In addition to looking at whether the accused has established that there is no
reasonable suspicion that he committed the crime or crimes charged, the Trial Chamber also
looks at the accuseds alleged role in said crime or crimes in determining whether
exceptional circumstances justifying his release are established. As a general principle,
the greater the accuseds role in an alleged crime, the more difficult it will be to
prove his entitlement to release.
- Finally, the third factor the Trial Chamber looks to in determining if exceptional
circumstances have been proven sufficient to justify the accuseds release is the
duration of the accuseds detention. Pre-trial detention cannot extend beyond a
reasonable period of time. See Stögmüller v. Austria, at 40. The exact length of
time after which detention is no longer lawful depends on the individual circumstances of
the case concerned, although the European Commission of Human Rights has enumerated seven
factors which should be used in examining cases brought under the ECHR. These factors are:
(1) the actual length of detention; (2) the length of detention in relation to the nature
of the offence, the penalty prescribed and to be expected in the event of conviction and
national legislation on the deduction of the period of detention from any sentence passed;
(3) the material, moral or other effects of detention upon the detained person beyond the
normal consequences of detention; (4) the conduct of the accused relating to his role in
delaying the proceedings and his request for release; (5) the difficulties in the
investigation of the case, such as its complexity in respect of the facts or the number of
witnesses or accused and the need to obtain evidence abroad; (6) the manner in which the
investigation was conducted; and (7) the conduct of the judicial authorities. Neumeister
Case, 8 Eur. Ct. H.R. (ser. A) at 23-24 (1968). Although not every factor will be
relevant for every case, these are issues which, according to the European Commission of
Human Rights, are to be considered when determining whether the duration of detention is
no longer reasonable. In this regard, the detention of an accused for more than two and a
half years has been held lawful by the European Commission. See Schertenleib Case,
23 Eur. Commn H.R. 137 (1981). The Trial Chamber considers that these factors are
applicable in determining whether the duration of the detention of the accused constitutes
an exceptional circumstance sufficient to justify his release.
- The issue of provisional release has been addressed on two occasions by the
International Tribunal, both times by Trial Chamber I. In its decision in the Djukic case Trial Chamber I, finding that the accused was suffering from
an incurable illness which was in its terminal phase, ordered provisional release
"solely for humanitarian reasons". Prosecutor v. Djordje Djukic, Decision Rejecting the Application to Withdraw the Indictment
and Order for Provisional Release, No. IT-96-20-T, T. Ch.I., 24 Apr. 1996, at 4. In the
Blaskic case Trial Chamber I
denied the accuseds motion for provisional release as no exceptional circumstances
were shown to exist. Blaskic
Decision, at 4. It appears that Blaskics
Defence did not offer evidence which it contended demonstrated the absence of reasonable
suspicion, rather it based its claim for release on its assertion that "the evidence
presented by the Prosecutor was not relevant and that no meaningful progress in the
production of evidence had occurred". Id. at 3. On that basis Trial Chamber I
found that the accused had failed to demonstrate exceptional circumstances.
- Here, to the contrary, the Defence has offered new evidence which it contends negates
the reasonable suspicion - i.e., the "reasonable grounds for believing" that the
accused committed a crime within the jurisdiction of the International Tribunal - found by
the confirming Judge. This evidence offered by the Defence was duly considered in the
review of the reasonableness of the continued detention of the accused. Although the
evidence does illustrate vulnerable aspects of the Prosecutions case, it is not
sufficient to overcome the Prosecutions showing that there exists a reasonable
suspicion (i.e. reasonable grounds for believing) that the accused committed the offences
charged. In this regard the strength of the Prosecutions response is relevant, in
which it supplied significant evidence, including witness statements, addressing the
superior position of the accused. Also relevant is the inability of the Defences
evidence fully to support the propositions for which it is offered (for example, the
document the Defence offers to show that the accused had logistical authority also
includes authorisation for the accused to conclude "all kinds of agreements regarding
exchange of detainees"), as well as the inability to verify witness testimony and
reliability outside of a hearing on the merits. Thus, after reviewing the evidence in
light of all of the above, the Trial Chamber finds that the accused has failed to
demonstrate an absence of reasonable suspicion.
- The second element which must be considered in determining whether the accused has
proven exceptional circumstances sufficient to justify his provisional release is the
accuseds role in the crime or crimes alleged. As noted earlier, the greater the role
of the accused, the more difficult it will be for him to justify his provisional release.
As noted by the Prosecution, the indictment against the accused details numerous counts of
murder, torture, rape, beatings and inhuman treatment, and for these offences the accused
is charged with command responsibility. Thus, the alleged role of the accused is
significant, for if he did have command responsibility for the camp, he would have been
the ultimate authority and would face enormous responsibility for allowing the alleged
perpetration of these horrific offences. In light of the role which the accused is charged
with having in these crimes, this element does not support a finding of exceptional
circumstances sufficient to justify the release of the accused.
- The third element which must be considered in relation to exceptional circumstances is
the length of the accuseds detention. The accused arrived at the International
Tribunals detention facilities on 8 May 1996, and the Order for Detention on Remand
was signed the following day. Given the difficulties inherent in investigating a case
thousands of kilometres away, and the length of detention in relation to the nature of the
offence and the possible penalty, among other considerations, the Trial Chamber does not
consider a detention period of four months to constitute an exceptional circumstance
sufficient to justify the release of the accused. Finally, in relation to the additional
arguments proffered by the Defence, such as the accuseds responsibilities toward his
family and business, the Trial Chamber does not consider these to be exceptional. As such,
these arguments also fail to fulfil the requirement of Sub-rule 65(B) for exceptional
circumstances.
- Thus, in finding that the Defence has failed to meet the substantial burden of proving
exceptional circumstances, the Trial Chamber has considered whether there is a reasonable
suspicion that the accused committed the said crime or crimes as charged, the alleged role
of the accused in said crime or crimes, and the length of the accuseds detention.
Additional evidence offered by the parties in relation to these issues was included in the
Trial Chambers consideration.
2. Risk of flight
- Despite the evidence submitted by the Defence, the Trial Chamber is not satisfied that
if released the accused will appear for trial. Although the Trial Chamber does not doubt
that the Government of the Republic of Bosnia and Herzegovina would do its utmost to
ensure the availability of the accused upon request to the International Tribunal, as
provided in its guarantee, the difficulties in actually implementing this guarantee are,
for these purposes, overwhelming.
- The ability of the accused to evade the authorities of the Republic of Bosnia and
Herzegovina is illustrated by his ability to leave the territory of that Republic in the
autumn of 1992, after a period of six months, despite the alleged existence of an arrest
warrant. This is particularly troubling because of the proximity of his proposed location
to certain entities and States which have proven themselves havens for individuals
indicted by this Tribunal. Also relevant in this regard is the accuseds proven
ability to acquire false identification and travel documents, despite the former having
been authorised by the government. Thus, taking into consideration all of the evidence
available at this stage, the Trial Chamber is not satisfied that the accused would appear
for trial if released.
3. Danger to victims, witnesses or any other person
- Although Sub-rule 65(B), to the extent that it requires that the Trial Chamber be
satisfied that if released the accused "would not pose a danger to any victim,
witness or other person", incorporates the principle of preventive detention, this
Trial Chamber does not assume that everyone charged with a crime under the Statute will,
if released, present a danger to victims or witnesses or others. Nevertheless, Sub-rule
65(B) places the burden of showing the absence of these factors on the Defence.
- From the evidence submitted it is clear that a great deal of hostility exists between
the accused and various victims and witnesses. Although the Trial Chamber is not convinced
that the accused would prove a danger to any such victim or witness or other person, it is
not necessarily satisfied that he would not. Suffice it to say that the failure of the
Defence to prove exceptional circumstances and no risk of flight relieves the Trial
Chamber of the obligation to make a final determination on this issue. As noted above, the
requirements of Sub-rule 65(B) are conjunctive in nature and the failure to fulfil any one
of them is sufficient to deny provisional release. In conclusion, the Trial Chamber finds
that the accused has failed to justify his provisional release in accordance with Sub-rule
65(B).
III. DISPOSITION
For the foregoing reasons, THE TRIAL CHAMBER, being seized of
the Motion filed by the Defence, and
PURSUANT TO RULE 65,
HEREBY DENIES the Motion for provisional release.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Presiding Judge
Dated this twenty-fifth day of September 1996
At The Hague
The Netherlands
[Seal of the Tribunal]