Case No. IT-03-67-PT

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

Registrar:
Mr. Hans Holthuis

Decision:
23 July 2004

_____________________________________________________

The Office of the Prosecutor:

Hildegard Uertz-Retzlaff
Ulrich Mussemeyer
Daniel Saxon

The Accused:

Vojslav Seselj

Standby-Counsel:

Tjarda Eduard van der Spoel

Background
1. The Indictment charges Vojislav Seselj with crimes against humanity under Article 5 and violations of the laws and customs of wars under Article 3 of the Statute of the International Tribunal (“Statute”) for offences allegedly committed in the territory of Croatia (SAO Western Slavonia and SAO SBWA, Vukovar), Bosnia and Herzegovina (Bosanski Samac and Zvornik municipalities) and parts of Vojvodina in Serbia in the period from 1 August 1991 to September 1993. The Indictment was confirmed on 14 February 2003. The Accused surrendered voluntarily to the custody of the International Tribunal on 24 February 2003 and made his initial appearance on 26 February 2003. At his initial appearance the Accused stated that he would not be filing a motion for provisional release as he had come to the Tribunal of his own free will and did not believe that any government could provide guarantees on his behalf.¹

2. By a motion dated 14 June 2004 (“Defence Motion for Provisional Release”) the Accused requested his provisional release until the start of the trial against him. On 7 July 2004 the Office of the Prosecutor (“Prosecution”) responded opposing the Motion. By a letter filed on 15 July 2004 the Host Country indicated that it had no objection to the provisional release of the Accused, provided that upon release he leaves the Netherlands.
   Arguments of the parties

3. In support of his Motion for provisional release the Accused submits, in particular, that he had offered to cooperate with the Prosecution even before he was formally indicted and that he surrendered voluntarily to the custody of the International Tribunal shortly after an indictment against him was issued.² It is submitted that the Accused is self-represented in the proceedings before the International Tribunal and that his procedural right to defend himself in person has been violated by his continuing detention.³ It is alleged that the trial against him is tentatively scheduled to commence only in early 2007 and that his right to fair and expeditious trial has been violated.⁴ The Accused also submits family reasons in support of his Motion.⁵

4. The Prosecution responds, inter alia, that the Accused’s voluntary surrender should be viewed in the context of his public statements that he does not recognize the validity or the impartiality of the Tribunal and does not accept the charges against him, and accordingly was not motivated by a desire to stand trial but by a sense of self-publicity and determination to undermine the work of the Tribunal.⁶ It is further submitted that the Accused is a public figure charged with serious criminal offences and if convicted he would likely face a lengthy term of imprisonment, that the Accused has produced no guarantees from the Republic of Serbia and Montenegro for his return for trial.⁷ Further, it is submitted that in light of his well documented behaviour during press conferences and proceedings before the Tribunal, where the Accused has disclosed confidential material or has made insulting remarks with respect to Tribunal witnesses, it is likely that he would intimidate witnesses and would try to deter them from giving evidence in the proceedings against him, even more so as now he is in possession of their unredacted statements.⁸ The Prosecution further submits that many Prosecution witnesses and victims continue to live in the territory of the former Yugoslavia and may find themselves at the same place as the Accused’s supporters,⁹ that in light of his prior behaviour there are no reasons to believe that the Accused would respect any conditions imposed by the Tribunal on the terms of his provisional release,¹⁰ and that the Accused has a history of violence.¹¹

5. With respect to the Accused’s claims that the proceedings against him violate his right to expeditious trial, the Prosecution submits that there have been no improper or unreasonable delays in the proceedings. It alleges that the case against the Accused involves a number of complicated factual and legal issues and that the length of the proceedings falls within the reasonable parameters for pre-trial detention recognized by important international human rights bodies.¹² It submits that in exercising its discretion the Trial Chamber should also consider the evidence of the Accused’s attempts to interfere with the administration of justice.¹³
   Discussion

6. Pursuant to Rule 65 of the Rules of Procedure and Evidence (“Rules”) a Chamber may order a release of an accused inter alia, only if the Chamber is satisfied that:

   the accused will appear for trial, and

   if released, the accused will not pose a danger to any victim, witness or other person.

   A provisional release may only be ordered by a Chamber if the Chamber is satisfied that the above two conditions are met. However, it is not the effect of the Rule that if the Chamber is satisfied about these matters, release should necessarily be granted. In that case the question whether to release an accused provisionally becomes a matter for the exercise of the Chamber’s discretion. That discretion must be exercised in light of all the circumstances of the case. It is necessary for an accused to satisfy the Chamber that release is appropriate in a particular case. While it is accepted that detention is the most severe measure that can be imposed on an accused and is to be used only when no other measures can achieve the effect of detention, it is recognized that this does not preclude the use of detention in an appropriate case.¹⁴

7. The Trial Chamber further notes that unlike national jurisdictions where there are in existence established means to ensure the enforcement of court orders, the Tribunal has not got its own law enforcement mechanisms and is dependant on the effective cooperation and support of governments and agencies of States. An accused provisionally released by a Chamber will be under the jurisdiction of the State to which he or she is released. Therefore the questions of that State’s willingness to ensure the accused’s return to the Tribunal and his non-contact with victims and Prosecution witnesses while released, and the extent to which the Tribunal can confidently rely on the effective support of the State, are of importance in satisfying a Chamber that the requirements of Rule 65 are met.

8. In the present case, in the view of the Trial Chamber, none of the grounds put forward by the Accused provide a reason for his provisional release at the present time. The Trial Chamber further notes that the Accused’s Motion provides no basis on which the Trial Chamber could be satisfied that if released the Accused will not pose any danger to victims or Prosecution witnesses. In this respect, the Trial Chamber also notes that no undertaking from a State to ensure the Accused’s return for the commencement of his trial, and his non-interference with victims or Prosecution witnesses was presented in support of the Motion.

9. The Trial Chamber further observes that, by their nature, the charges alleged against the Accused are particularly grave. The likelihood is that in case of conviction the appropriate punishment will be severe. Although this circumstance alone is not necessarily a decisive factor for the Trial Chamber’s decision whether to allow provisional release, it remains a relevant consideration.

10. The Trial Chamber is mindful of the fact that the Accused represents himself in the proceedings. The Tribunal has held that an accused’s right to adequate time and facilities for the preparation of his defence may be adequately safeguarded by means other than provisional release.¹⁵ In the present case, it is not demonstrated that the Accused’s right to prepare his defence cannot be effectively exercised while in detention. This fact alone does not warrant his provisional release.

11. The Trial Chamber notes that the duration of the pre-trial detention is a factor relevant to its decision whether to continue detention.¹⁶ While the Accused has already spent 15 months in pre-trial detention, in light of the legal and factual complexity of the case, and in particular the number of witness statements and evidence that has to be disclosed to the Accused and the relevant procedural actions, this period is not unreasonable and does not per se constitute a ground for allowing the Motion. In any event this fact must be considered in light of all relevant factors in each case. In this respect matters advanced by the Prosecution and referred to in paragraph 4 weigh with some force against provisional release.

12. The Trial Chamber is not satisfied that, if released, the Accused will appear for trial and that he will not pose a danger to any victim or Prosecution witness. The Trial Chamber is not persuaded that the requirements of Rule 65 in these respects are met. Further, the Trial Chamber is not persuaded in any event that circumstances have been demonstrated by the Accused which would justify an exercise of discretion in favour of ordering his provisional release.

13. For these reasons the Motion is denied.

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

Dated this twenty-third day of July 2004
At The Hague
The Netherlands

_______________
Carmel Agius
Presiding

[Seal of the Tribunal]