Case No. IT-95-9-A

IN THE APPEALS CHAMBER

Before:
Judge Mehmet Güney, Presiding
Judge Mohamed Shahabuddeen
Judge Liu Daqun
Judge Andrésia Vaz
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
5 May 2006

PROSECUTOR

v.

BLAGOJE SIMIC

__________________________________________

DECISION ON MOTION OF BLAGOJE SIMIC FOR PROVISIONAL RELEASE FOR A FIXED PERIOD TO ATTEND MEMORIAL SERVICES FOR HIS MOTHER

__________________________________________

Office of the Prosecutor:

Mr. Peter Kremer

Counsel for the Appellant:

Mr. Igor Pantelic
Mr. Peter Murphy

 

THE APPEALS 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"),

BEING SEISED OF the "Motion of Blagoje Simic for Short Fixed Period of Provisional Release to Attend Memorial Services for his Mother", filed urgently on 2 May 2006 ("Motion") by Blagoje Simic ("Appellant") pursuant to Rule 65(I) of the Rules of Procedure and Evidence of the International Tribunal ("Rules");

NOTING the "Corrigendum to Motion of Blagoje Simic for Short Fixed Period of Provisional Release to Attend Memorial Services for his Mother", filed by the Appellant on 3 May 2006;

NOTING that the Appellant requests provisional release from 10 to 25 May 2006 in order to attend memorial services for his late mother in the Municipality of Samac, Republika Srpska, to organize a number of Orthodox religious services and to deal with certain legal formalities relating to his parents’ estates;1

NOTING the "Prosecution’s Response to Blagoje Simic’s Urgent Motion for Provisional Release to Attend Memorial Service for his Mother", filed on 3 May 2006 ("Response"), in which the Prosecution does not oppose the Appellant’s provisional release for the necessary period to attend the memorial service "to take place on 13 May 2006"2 but "opposes the Motion to the extent that additional time is requested to ‘erect a marble monument on the tombs of his parents’ and to deal with ‘certain legal formalities’";3

NOTING the "Decision on Motion of Blagoje Simic pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for his Father" rendered on 21 October 2004 ("First Decision on Provisional Release"), in which the Appeals Chamber granted the Appellant’s provisional release for a fixed period from 4 November 2004 to 7 November 2004 to attend memorial services for his late father in the Municipality of Samac;

CONSIDERING the Appellant’s full compliance with the terms and conditions of the First Decision on Provisional Release;

CONSIDERING the "Decision on Giving a Guarantee by the Government of the Republika Srpska" issued pursuant to Article 24, paragraph 2 of the Law on the Government of Republika Srpska and the "Guarantee of the Government of the Republika Srpska" signed by the Prime Minister of the Republika Srpska, Mr. Milorad Dodik, on 27 April 2006, appended to the Motion as Appendix 2 and 3;

FINDING that the Appeals Chamber is satisfied that, if released and subject to specific conditions, the Appellant will surrender into detention at the conclusion of the fixed period and that he will not pose a danger to any victim, witness or other person;

FINDING that the memorial services for the Appellant’s late mother and the organization of a number of Orthodox religious services invoked by the Appellant constitute special circumstances within the meaning of Rule 65(I)(iii) of the Rules;

FINDING further that, under the particular circumstances of the case, the period requested by the Appellant is reasonable;

RECALLING that the inclusion of a provision on provisional release in the Rules was driven by humane and compassionate considerations together with concerns related to the principle of proportionality in international law;4

CONSIDERING that the Appellant is not prejudiced by the issuance of this decision before the expiration of the time-limit prescribed for filing his reply to the Prosecution’s Response;

HEREBY,

GRANTS the Motion and ORDERS that the Appellant be provisionally released for a fixed period from 10 May 2006 to 25 May 2006 under the following terms and conditions:

  1. The Appellant shall be transported to Schiphol airport in The Netherlands by the Dutch authorities on 10 May 2006;

  2. At Schiphol airport, the Appellant shall be provisionally delivered into the custody of the representatives of the Government of the Republika Srpska — pursuant to paragraph VI of the "Guarantee of the Government of the Republika Srpska" dated 27 April 2006 — who shall accompany the Appellant for the remainder of his travel to the Republika Srpska and during the course of his stay in the Republika Srpska;

  3. The period of provisional release shall commence when the Appellant is delivered into the custody of the authorised representatives of the Government of the Republika Srpska and shall terminate upon his return to the Dutch authorities, which shall be no later than 25 May 2006;

  4. On his return flight, the Appellant shall be accompanied by the authorised representatives of the Government of the Republika Srpska, who shall deliver the Appellant into the custody of the Dutch authorities at Schiphol airport; the Dutch authorities shall then transport the Appellant back to the United Nations Detention Unit ("UNDU") in The Hague, The Netherlands;

  5. During the period of his provisional release, the Appellant shall abide by the following conditions, and the authorities of the Government of the Republika Srpska, including the local police in the Municipality of Samac, shall ensure compliance with such conditions:

    1. The Appellant shall remain within the confines of the Municipality of Samac;

    2. The Appellant shall be under the surveillance of the police in the Municipality of Samac;

    3. The Appellant shall surrender his passport to the police in the Municipality of Samac;

    4. The Appellant shall report once a day to the local police who will maintain a log and file a written report with the International Tribunal confirming his presence each day;

    5. The Appellant shall not in any way interfere with any persons who testified at his trial;

    6. The Appellant shall not discuss his case with anyone other than his counsel;

    7. The Appellant shall comply strictly with any order of the Appeals Chamber varying the terms of or terminating his provisional release;

REQUIRES the Government of the Republika Srpska, on the basis of the guarantees it provided, to assume responsibility for:

  1. All expenses in connection with the transport from Schiphol airport to the Municipality of Samac and back;

  2. Ensuring the personal security and safety of the Appellant while on provisional release;

  3. Reporting immediately to the Registrar of the International Tribunal as to the substance of any threats to the security of the Appellant, including full reports of investigations related to such threats;

  4. Facilitating, at the request of the Appeals Chamber or of the parties, all means of co-operation and communication between the parties and ensuring the confidentiality of any such communication;

  5. Detaining the Appellant immediately should he attempt to escape from the Municipality of Samac, or should he in any other way breach the terms and conditions of his provisional release as set out in this Decision and reporting immediately any such breach to the Registry and the Appeals Chamber; and

  6. Respecting the primacy of the International Tribunal in relation to any existing or future proceedings in the Republika Srpska concerning the Appellant; and

INSTRUCTS the Registrar of the International Tribunal to:

  1. Consult with the Dutch authorities and the authorities of the Republika Srpska, as to the practical arrangements for the provisional release of the Appellant;

  2. Request the authorities of the State(s) through whose territory the Appellant may travel to:

    1. Hold him in custody for any time he will spend in transit at the airport of the State(s) in question; and

    2. Arrest and detain the Appellant pending his return to the UNDU should he attempt to escape during travel.

 

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

Dated this fifth day of May 2006
At The Hague,
The Netherlands.

___________________
Judge Mehmet Güney
Presiding Judge

[Seal of the International Tribunal]

1. Motion, paras 2-3.
2. Response, paras 2-3.
3. Response, para. 8.
4. First Decision on Provisional Release, para. 14.