Case No. IT-05-88-PT

Before:
Judge Carmel Agius, Presiding
Judge Jean-Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
9 November 2005

______________________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Zoran Zivanovic for Vujadin Popovic
John Ostojic for Ljubiša Beara
Jelena Nikolic and Stéphane Bourgon for Drago Nikolic
Alan Newman and Miodrag Stojanovic for Ljubomir Borovcanin
Natacha Fauveau Ivanovic for Radivoje Miletic
Dragan Krgovic for Milan Gvero
Djordje Sarapa for Vinko Pandurevic
Colleen Rohan for Milorad Trbic

I. INTRODUCTION
1. Trial Chamber II 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 the “Motion seeking the provisional release of Drago Nikolic until the beginning of the trial phase of the proceedings” filed by Counsel for Drago Nikolic (respectively “Defence” and “Accused”) on 7 October 2005 (“Motion”) in which the Defence requests the provisional release of the Accused pursuant to Rules 65(B) of the Rules of Procedure and Evidence (“Rules”).¹ On 21 October 2005, the Office of the Prosecutor (“Prosecution”) filed its “Prosecution Response to Motion seeking provisional release of Accused Drago Nikolic” (“Response”).

2. On 26 October 2005, the Defence filed a “Defence Motion Seeking Leave to Reply to the Prosecution Response to the Defence Motion Seeking Provisional Release of Drago Nikolic” and an appended proposed Reply (“Reply”) on the grounds that

   [t]he Prosecution Response contains erroneous legal assertions which render a Reply necessary with a view to facilitating the adjudication of the Defence Motion on a sound legal basis. More importantly, the Prosecution Motion includes factual information - in the form inter alia of a declaration by the Deputy Chief of Investigations within the OTP-which was not known to the Defence at the time the Defence Motion was filed and to which a Reply is necessary.²

   Rule 126bis provides that “[a] reply to the response, if any, shall be filed within seven days of the filing of the response, with the leave of the relevant Chamber”. The Trial Chamber hereby grants the Defence leave to reply and will thus consider the Reply in deciding upon the Motion.

3. On 6 September 2002, an “Order Confirming the Indictment Pursuant to Article 19” along with an “Order concerning Non-Disclosure” and an “Order Issuing an Arrest Warrant” were issued ex parte and under seal by Judge Schomburg.³ An additional warrant for arrest and an order for surrender directed to the authorities of the Federal Republic of Yugoslavia were issued on 11 October 2002, both under seal.⁴ The confidentiality of the warrant for arrest and of the order for surrender was lifted on 21 October 2002.⁵

4. The Accused was detained and transferred to the seat of the Tribunal on 17 March 2005. His initial appearance was held on 20 March 2005 and he reserved his right to enter a plea within thirty days pursuant to Rule 62(iii) of the Rules. A further appearance was thus held on 20 April 2005, during the course of which the Accused pleaded not guilty to all charges against him.

5. On 21 September 2005, Trial Chamber III rendered its “Decision on the Prosecution’s Joinder Motion” filed on 10 June 2005 in which it granted the motion and joined the case against the Accused to five other cases against eight other accused.⁶ The joined case, Prosecutor v. Vujadin Popovic, Ljubisa Beara, Drago Nikolic, Ljubomir Borovcanin, Zdravko Tolimir, Radivoje Miletic, Milan Gvero, Vinko Pandurevic and Milorad Trbic, Case No. IT-05-88-PT, was assigned to Trial Chamber II on 26 September 2005.⁷
   II. SUBMISSIONS

6. The Defence first submits that the Accused has sufficiently demonstrated that he will appear for trial as he surrendered voluntarily and unconditionally and provided reasons for not surrendering at the earliest period as well as information related to his whereabouts during that period.⁸ Moreover, the Defence calls on the Trial Chamber to give full weight to the guarantees given by the Government of the Republic of Serbia and the Council of Ministers of Serbia and Montenegro (“Governmental Guarantees”) as well as the personal guarantees provided by the Accused.⁹ The Defence further notes the degree of co-operation of the Accused with the Prosecution.¹⁰ In addition, the Defence submits that the Accused has never posed a danger to any victim, witness or person related to these proceedings.¹¹ Finally, the Defence generally submits that “no specific and objective reason which outweighs the need to ensure respect for the right to liberty of the Accused” exists, that the presence of the Accused is not necessary during the pre-trial proceedings and that the general principle of proportionality in international law militates in favour of the Accused being granted provisional release.¹²

7. In its Response, the Prosecution opposes the Motion and submits that the requirements necessary for provisional release to be granted have not been met. In particular, the Prosecution submits that the Accused has not established that he will appear for trial, since neither his personal guarantees nor the Governmental Guarantees can be given substantial weight.¹³ More particularly, the Prosecution alleges that the Accused has not given an adequate explanation for not surrendering at the earliest opportunity.¹⁴ The Prosecution further submits that neither the Governmental Guarantees nor the personal guarantees are sufficient to establish that the Accused will appear for trial if provisionally released in so far that the Governments of Serbia and Montenegro and of the Republic of Serbia have been unwilling or unable to arrest General Zdravko Tolimir, a co-accused in the present case, and General Ratko Mladic, that the Accused is residing purposely outside the jurisdiction of international forces led by NATO, that the Accused has been charged with exceptionally grave crimes and that the completion strategy of the Tribunal would be a disincentive for the Accused to appear for trial.¹⁵

8. In its Reply, the Defence reiterates that the Accused did surrender voluntarily and has provided reasons as to why his surrender did not occur at the earliest opportunity.¹⁶ Secondly, the Defence underscores the personal circumstances of the Accused which should be taken into account by the Trial Chamber.¹⁷ Thirdly, the Defence argues that the guarantees provided by the authorities of the Republic of Serbia and Serbia and Montenegro should be considered sufficient as well as reliable and given the adequate weight by the Trial Chamber.¹⁸ Finally, the Defence submits that the place of residence of the Accused in Serbia and Montenegro, the severity of the charges against him and the completion strategy should not be factors taken into account by the Trial Chamber in reaching its decision on the Motion.¹⁹
   III. DISCUSSION
   A. APPLICABLE LAW

9. Articles 20 and 21 of the Statute of the Tribunal (“Statute”) bestow upon the Trial Chamber the responsibility to ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.²⁰

10. Rules 64 and 65 of the Rules organise the law applicable to detention on remand, making detention on remand the principle and provisional release the exception, the latter to be granted at the discretion of the trial chamber when three conditions, laid down below, are fulfilled.²¹

11. Rule 65 of the Rules sets out the basis upon which a Trial Chamber may order provisional release of the Accused and reads, in relevant parts

    (A) Once detained, an accused may not be released except upon an order of a Chamber.

    (B) 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 (…)

12. The Trial Chamber will thus examine, in turn, whether it is satisfied that, if provisionally released, the Accused will appear for trial and not pose a danger to any victim, witness or other person.
    B. APPLICATION OF THE LAW TO THE FACTS OF THE CASE
    1. Whether the Accused will appear for trial

13. The Defence submits that several factors indicate that, if provisionally released, the Accused would appear for trial. Firstly, the Defence alleges that the surrender of the Accused on 17 March 2005 was both voluntary and unconditional. Secondly, the Defence underlines the adequate weight to be given to the Governmental Guarantees. Thirdly, the Defence submits that the Accused has personally undertaken to make himself immediately available if required to do so and to abide by any condition the Trial Chamber may impose. Finally, the Defence submits that the Trial Chamber should not draw any adverse conclusion from the fact that the Accused has not yet started discussing co-operation with the Prosecution, even though he has expressed his intention to do so.

14. In its Response, the Prosecution submits that the Accused has not established in a satisfactory manner that he will appear for trial since neither his personal undertaking nor the Governmental Guarantees can be given adequate weight, because i) the Accused has not provided a satisfactory explanation for not surrendering at the earliest opportunity; ii) the authorities of Serbia and Montenegro and of the Republic of Serbia have not sufficiently co-operated with the Tribunal in light of the fact that Generals Zdravko Tolimir and Ratko Mladic still remain at large ; iii) the Accused currently resides in Serbia and Montenegro, outside the jurisdiction of international forces led by NATO, despite having lived in Bratunac municipality, Republic of Bosnia and Herzegovina (“BiH”); iv) the charges which the Accused is facing are of an extremely serious nature; and v) the completion strategy of the Tribunal provides a disincentive for the Accused to surrender.

15. In its Reply, the Defence reiterates the voluntary nature of the Accused’s surrender. The Defence further submits that the personal undertaking of the Accused should be read in accordance with his personal circumstances. Additionally, the Defence submits that it is difficult to see how the guarantees provided by the Republic of Serbia and Serbia and Montenegro could not be given the necessary weight so as to grant provisional release to the Accused. Finally, the Defence submits that the completion strategy should not be taken into account when assessing and attributing weight to State guarantees.

16. The Trial Chamber will thus consider all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to its decision as to whether the Accused will appear for trial if provisionally released. The Appeals Chamber has provided guidance and indicated the following non-exhaustive list of factors:

    - whether the accused is charged with serious criminal offences;

    - whether the accused is likely to face a long prison term, if convicted;

    - the circumstances of the accused’s surrender;

    - the degree of co-operation by the authorities of the State to which the accused seeks to be released;

    - the guarantees offered by these authorities, and any personal guarantees offered by the accused;

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

    - the accused’s degree of co-operation with the Prosecution.²²

    (a) Gravity of the crimes charged and likelihood of the Accused facing a long prison term, if convicted

17. The Trial Chamber notes the gravity of the crimes with which the Accused is charged in the Consolidated Amended Indictment (“Indictment”). The Indictment charges the Accused with individual criminal responsibility pursuant to Article 7(1) of the Statute of the Tribunal (“Statute”) for genocide pursuant to Article 4 of the Statute, conspiracy to commit genocide pursuant to Article 4(3)(b) of the Statute, extermination as a crime against humanity pursuant to Article 5(b) of the Statute, murder both as a crime against humanity pursuant to Article 5(a) of the Statute and as a violation of the laws or customs of war pursuant to Article 3 of the Statute, persecution as a crime against humanity pursuant to Article 5(h) of the Statute including murder, cruel and inhumane treatment, terrorising of the civilian population, destruction of personal property and forcible transfer, and both inhumane acts (forcible transfer) and deportation as a crime against humanity respectively pursuant to Articles 5(d) and 5(i) of the Statute. The charges relate to alleged crimes committed in the Srebrenica and Zepa areas between 11 July and 11 November 1995, during which time the Accused was allegedly the Chief of Security of the 1st Zvornik Light Infantry Brigade.²³

18. The crimes charged in the Indictment are of a particularly grave nature and the Accused, if convicted, would face a lengthy prison sentence. While this might be a strong incentive for the Accused not to re-appear for trial,²⁴ the Trial Chamber cannot consider this factor alone and must assess it in light of the other circumstances surrounding the Motion.

    (b) Surrender of the Accused

19. The Trial Chamber considers that the voluntary surrender of an accused is an important factor in determining whether an accused will appear for trial if provisionally released. In the Motion and the statement of the Accused appended at Confidential Annex A, the Accused alleges that he surrendered voluntarily and unconditionally on 17 March 2005. In its Response, the Prosecution casts doubt as to the voluntary nature of the Accused’s surrender.²⁵ While no evidence has been adduced which clearly establishes that the Accused did not surrender voluntarily on 17 March 2005, the Trial Chamber wishes to consider the timeliness of the eventual surrender in order to attribute it adequate weight. The first indictment against the Accused was made public on 21 October 2002, date at which the Accused acknowledges that he came to know of it. It is also undisputed that the Accused remained at large until 17 March 2005, when he was transferred to the Tribunal. Thus, for approximately 2 years and 5 months, the Accused was a fugitive from international justice.

20. The Trial Chamber considers that the reasons provided in the Motion, the statement of the Accused appended in Confidential Annex A and the Reply are entirely unconvincing in so far that they do not explain in a satisfactory manner why the Accused took no step to appear before the trial during the course of these two years and five months. In these circumstances, the Trial Chamber will attribute very little weight to the surrender of the Accused and it reiterates its reasoning as set out in the Pandurevic Provisional Release Decision, in which it held that

    [t]he Trial Chamber is more concerned that the demonstrated prior ability of the Accused to successfully avoid compliance with his legal obligations for substantial periods of time, until the moment of his choosing, makes his strong incentive to flee all the more potent.²⁶

    (c) Governmental Guarantees and co-operation of the authorities of Serbia-Montenegro and of the Republic of Serbia with the Tribunal

21. The Trial Chamber notes that Governmental Guarantees, similar to those presented in support of the Motion, have been assessed differently in a number of recent decisions, in light of the specific circumstances of each case.²⁷ The Trial Chamber agrees that the general trend towards increased co-operation by the authorities of the Republic of Serbia and Serbia and Montenegro in the recent past should be acknowledged.²⁸ As in the Pandurevic case, the Trial Chamber is however concerned with the Prosecution’s allegations that the Government of Serbia and Montenegro is aware of the whereabouts of General Zdravko Tolimir, co-accused in the present case, and is not doing its utmost to facilitate his transfer to the Tribunal. Similarly, the Trial Chamber agrees that Article 36 of the Law on Cooperation of Serbia and Montenegro with the Tribunal provides for the obligation of the Council of Ministers of Serbia and Montenegro and the governments of the republics of which the accused is a citizen to give a guarantee to the Tribunal for persons who have voluntarily surrendered for their provisional release. Further, the Trial Chamber notes that the Governmental Guarantees are dated 17 and 24 March 2005, immediately after the transfer of the Accused to the Tribunal, and that they were not, therefore, provided in light of the specific circumstances of the Motion. Moreover, the Appeals Chamber in the Pandurevic case held that

    The Trial Chamber acted within its discretion when it took note of this trend yet did not conclude that authorities in Serbia and Montenegro have cooperated with the Tribunal to the “utmost”.²⁹

22. The Trial Chamber acknowledges that, as 2nd Lieutenant and Chief of Security of the 1st Light Infantry Zvornik Brigade, the rank and position of the Accused may have been lower than the majority of his co-accused. However, the Trial Chamber does not consider this sufficient to give substantial weight to the Governmental Guarantees. Indeed

    The Trial Chamber, moreover, did not have to rely on the guarantees just because they had been offered by Governments with power to arrest the Appellant. A Trial Chamber must evaluate government guarantees in light of the circumstances surrounding each individual applicant, and in some circumstances, it may be reasonable to place little weight on a government guarantee.³⁰

23. For the aforementioned reasons, the Trial Chamber finds that the Governmental Guarantees are not sufficient to establish that, if provisionally released, the Accused will appear for trial.

    (d) Personal guarantees

24. The Accused provides a statement appended to the Motion at Confidential Annex A and a personal undertaking at Annex C that he will abide by any condition for provisional release imposed by the Trial Chamber, including immediate surrender if requested to do so. The Trial Chamber reiterates its reasoning pertaining to the weight to be given to the surrender of the Accused³¹ and finds that the reasons provided by the Accused in his statement appended at confidential Annex A as to why he did not surrender in the two years and five months after he came to know of the indictment against him, are largely unsubstantiated and do not provide the Trial Chamber with a satisfactory basis to give substantial weight to the Accused’s personal undertaking that he will appear for trial.

25. Moreover, the Trial Chamber is concerned with the allegation made by the Prosecution that the Accused has elected a village in Serbia and Montenegro, a few kilometres away from the Republika Srpska in BiH, as his place of residence while he is originally from the municipality of Bratunac, BiH, and that his wife and daughter work, or have worked, in the municipality of Zvornik (BiH). The Accused thus keeps strong links with BiH while choosing to reside in the neighbouring State of Serbia and Montenegro, outside the jurisdiction of the international forces competent in BiH to arrest persons indicted by the Tribunal.³²

26. Considering all the above, the Trial Chamber is not satisfied that, if provisionally released, the Accused would appear for trial. While it is sufficient that the first requirement set out in Rule 65(B) of the Rules is not fulfilled for provisional release to be denied, for sake of completeness, the Trial Chamber will examine the second requirement.
    2. Whether the Accused will pose a danger to any victim, witness or any person

27. The Defence submits that the Accused, if provisionally released, would not pose a danger to any victim, witness or other person. The Prosecution does not challenge this part of the Motion. Not having received any information from the Prosecution that would substantiate an opposite conclusion, the Trial Chamber does not see any reason to doubt that the Accused has never posed a danger to any victim, witness or any other person who may appear before the Tribunal, or that he would not do so if he were to be provisionally released.
    3. Proportionality of the pre-trial detention

28. The Defence submits that Rule 65 of the Rules should be examined in light of the principle of proportionality as interpreted by the European Convention or the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the International Covenant on Civil and Political Rights of 19 December 1966. In its Response, the Prosecution submits that the length of pre-trial detention in this particular case is neither unreasonable nor offensive.

29. The length of pre-trial detention must be assessed in light of the specific circumstances of this case. The Accused was transferred to the Tribunal on 17 March 2005. On 10 June 2005, the Prosecution filed its Motion for Joinder, upon which Trial Chamber III decided on 21 September 2005. In the past seven months of detention on remand, the investigation into the crimes has been ongoing and the usual preparations for trial conducted in a reasonable manner. The Trial Chamber thus considers that the length of pre-trial detention of the Accused at present is proportional to the circumstances of the case brought against him in the Indictment.
    IV. DISPOSITION

    For the foregoing reasons

    Pursuant to Articles 20 and 21 of the Statute of the Tribunal and Rule 65 and 126bis of the Rules

    HEREBY DENIES the Motion.

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

Dated this ninth day of November 2005
At The Hague
The Netherlands

_____________________
Judge Carmel Agius
Presiding

[Seal of the Tribunal]