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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"),

BEING SEISED of the "Request for Provisional Release of Mr. Miroslav Tadic" filed on behalf of the accused Miroslav Tadic ("the Accused") on 19 January 1999 ("the Motion"), requesting provisional release from detention subject to certain terms and conditions as set out in the Motion,

NOTING the "Prosecutor’s Response to the Defence Request for Provisional Release of Miroslav Tadic", filed by the Office of the Prosecutor ("Prosecution") on 28 January 1999,

NOTING the decision of this Trial Chamber issued on 15 February 1999,¹ denying the Accused’s Motion for Provisional Release, which decision was then appealed,

NOTING the "Addendum to Defense Motions For Provisional Release of Mr. Miroslav Tadic and Mr. Simo Zaric", filed on 18 February 1999, in which the Defence for Miroslav Tadic and one of the co-accused, Simo Zaric, reserved the right to present oral argument on their respective applications for provisional release,

NOTING the decision of the Appeals Chamber dated 28 July 1999,² vacating the Trial Chamber’s decision denying the Accused’s application for provisional release, on the grounds that, contrary to the expectations of the Accused, the decision had been issued solely on the basis of written submissions, and directing the Trial Chamber to hold an oral hearing on the Accused’s application for provisional release,

NOTING its Scheduling Order of 22 September 1999,³ granting the Accused an oral hearing in relation to his application for provisional release,

NOTING the "Prosecution’s Brief in Opposition to Provisional Release", dated 30 November 1999,

NOTING the "Addendum to Prosecution’s Brief in Opposition to Provisional Release", filed on 1 December 1999, in which the Prosecution, pursuant to Rule 65(E) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), applies for a prospective stay of any decision granting the Accused’s motion for provisional release,

NOTING the "Response by Miroslav Tadic and Simo Zaric to the Prosecution’s Brief in Opposition to Provisional Release", filed on 7 December 1999, opposing the Prosecution’s application pursuant to Rule 65(E) of the Rules, for a stay of any decision for provisional release of the Accused,

NOTING the "Addendum to the Response by Miroslav Tadic and Simo Zaric to the Prosecution’s Brief in Opposition to Provisional Release", filed on 8 December 1999,

NOTING the arguments of the Accused, as set forth in his initial application for provisional release that,

(i) he voluntarily surrendered to the custody of the International Tribunal on 14 February 1998,

(ii) his advanced age renders life in the United Nations Detention Unit more difficult,

(iii) the period of his pre-trial detention will be extended due to the fact that one of the co-accused, Stevan Todorovic, who was arrested approximately seven months after the voluntary surrender of the Accused, must be given an opportunity to prepare his case for trial, which will inevitably delay the commencement of trial,

(iv) he is not facing charges on the most serious violations of international humanitarian law over which the International Tribunal has jurisdiction,

(v) he will provide guarantees, in addition to providing guarantees from the government of the Republika Srpska, that he will appear for trial,

(vi) if released, he will not pose a danger to victims, witnesses or other persons,

(vii) he is willing to comply with the conditions imposed on his provisional release by the Trial Chamber,

NOTING the arguments of the Prosecution as set forth in its initial submission in response to the Accused’s application for provisional release,⁴ inter alia, that,

(i) the International Tribunal lacks enforcement powers, making provisional release a risky undertaking;

(ii) the Trial Chamber, in determining an application on provisional release, must consider at least four factors, including whether there are reasonable grounds to believe that the accused committed the crimes alleged, his role therein, the length of time the accused has spent in detention and the position of the host country;

(iii) the Trial Chamber, when considering the period of detention, should be guided by the standards enunciated by the European Court of Human Rights;

(iv) in light of the Republika Srpska’s record of non-cooperation with the International Tribunal to date, there is no reason to believe that the authorities of the Republika Srpska would arrest the Accused and return him to the custody of the International Tribunal should he fail to appear for trial;

(v) the Accused has been provided with a significant number of statements from Prosecution witnesses, thereby increasing his ability to locate them and attempt to influence their testimony;

(vi) as noted in the Blaskic case, periods of pre-trial detention ranging from nineteen months to five years have been found reasonable;

(vii) the Accused has failed to ascertain the position of the host country government as to whether the Accused could be readmitted to the Netherlands, in the event that he were to be released,

NOTING the argument of the Prosecution that the amendment to Rule 65,⁵ removing the "exceptional circumstances" requirement, is ultra vires the Statute of the International Tribunal ("Statute") and, accordingly, should be deemed non-operative or, alternatively, that the Accused’s application for provisional release should be considered pursuant to Rule 65(B) as it stood before amendment,

NOTING further the arguments of the Prosecution, set forth in its submission dated 30 November 1999, that, even if Rule 65(B), as amended, is applied, provisional release should not be granted for the following reasons:

(i) the views of the government of the Netherlands, as the host country, should be sought and obtained prior to a grant of provisional release;

(ii) the fact that the Accused voluntarily surrendered to the International Tribunal is no guarantee that, if released, he would appear for trial;

(iii) due to the absence of effective enforcement measures, the International Tribunal loses all control over an accused who is released from the United Nations Detention Unit;

(iv) the Republika Srpska’s record to date of non-compliance with its obligations to the International Tribunal, suggests that assurances from the government of that entity should be accorded little weight;

(v) if released, the potential for witness harassment is heightened in this case, as the Accused has received the names of up to sixty Prosecution witnesses whose statements have been disclosed to the Defence;

(vi) provisional release of the Accused would have a chilling effect on the cooperation of other witnesses appearing before the International Tribunal;

(vii) provisional release of the Accused would undermine the threefold purpose of the International Tribunal: to do justice, to deter future crimes and to contribute to the restoration and maintenance of peace and security in the former Yugoslavia;

(viii) the Trial Chamber should take into account the extremely serious nature of the crimes with which the Accused is charged, the possible dangers to the community if the Accused is released and the genuine risk that the Accused would take flight to avoid the possibility of serving a lengthy prison sentence;

(ix) the present length of the Accused’s pre-trial detention falls within the acceptable range under international human rights standards;

(x) a court’s inability to hear a case does not justify release of an accused;

(xi) the Accused has failed to demonstrate the existence of circumstances justifying his release prior to trial,

NOTING further the Declaration of Agnes Inderhaug, appended to the Prosecution’s response, detailing the suggested detrimental impact that provisional release of the Accused would have on the victims and witnesses in this case,

NOTING the arguments of the Accused in reply to the Prosecution’s arguments in response, that:

(i) the Trial Chamber acted properly in considering the Accused’s application for release under Rule 65(B), as amended;

(ii) the amendment to Rule 65(B) constitutes an important development in the legal regime governing provisional release at the International Tribunal, bringing the Rule into conformity with international human rights standards;

(iii) while, under the pre-amended version of Rule 65(B), pre-trial detention was the norm and release the exception, under the Rule as amended, provisional release is no longer considered exceptional;

(iv) an accused must satisfy only two substantive criteria to meet the requirements under Rule 65(B), namely to demonstrate that he will appear for trial and that, if released, he will not pose a danger to others;

(v) relevant considerations in this regard should include whether the accused surrendered voluntarily, the relative gravity of the crimes alleged against the accused, and the accused’s behaviour in the United Nations Detention Unit;

(vi) the Accused surrendered voluntarily, and further, he is not charged with the most serious offence provided for in the Statute;

(vii) the Prosecution’s submissions relating to a risk of the Accused’s flight, and the potential that the Accused, if released, will pose a danger to others, are unfounded;

(viii) delays in the commencement of a trial are a relevant factor in considering an application for provisional release, and, according to a recent case of the European Court of Human Rights,⁶ the right of an accused to be tried within a reasonable time or to be released pending trial under Article 5(3) of the European Convention on Human Rights is violated where the delay is attributable to the judicial system;

(ix) in this case, the Accused has been in detention for approximately two years awaiting trial, even though the Prosecution and the four accused have expressed their readiness and have urged the Trial Chamber to set a date for the commencement of trial;

(x) the slight prospect of an early commencement to this trial mitigates in favour of releasing the Accused on a provisional basis;

(xi) in the event that his application for provisional release is granted, the Accused opposes all attempts by the Prosecution to seek a stay,

NOTING this Trial Chamber’s Order, filed on 29 February 2000,⁷ requiring the Defence for Miroslav Tadic to provide undertakings and guarantees in writing from the Accused himself, and from the "appropriate authorities", as set out therein,

NOTING the Defence submission in response to the Trial Chamber’s Order of 29 February 2000, filed 13 March 2000,⁸ in which the Accused provides guarantees from the following individuals or entities: (i) the Government of the Republika Srpska, (ii) the local police in Bosanski Samac, and (iii) himself ("Defence guarantees"), and further provides a valid open-dated air ticket on Yugoslav Airlines from Schiphol airport, in the Netherlands, through Zurich, in Switzerland, to Banja Luka in Bosnia and Herzegovina,

NOTING the Prosecution’s Motion for Dismissal of the Accused Tadic and Zaric’s Requests for Provisional Release, filed on 14 March 2000, seeking dismissal of the Accused’s application for provisional release on the grounds that the Defence guarantees do not comply with the Trial Chamber’s Order of 29 February 2000 and arguing that such guarantees are not legally valid pursuant to the Constitution of Bosnia and Herzegovina,

NOTING the Defence Response to the Prosecution’s Motion for Dismissal, filed on 17 March 2000,⁹ in which the Accused argues that the Defence guarantees comply fully with the Trial Chamber’s Order of 29 February 2000, and further that such guarantees are constitutionally valid,

HAVING HEARD the oral arguments of the parties in open session on 23 November 1999,

HAVING HEARD the host country as required by Rule 65(B) of the Rules,

HAVING CONSIDERED all of the arguments of the parties, and the supporting material filed by the Prosecution and the Defence,

CONSIDERING that, while Rule 65(B), as amended, no longer requires an accused to demonstrate exceptional circumstances before release may be ordered, this amendment does not affect the remaining requirements under that provision,

CONSIDERING that the Trial Chamber finds no merit in the contention of the Prosecution that the amendment to Rule 65(B), removing the requirement of exceptional circumstances, is ultra vires the Statute, for the reason that it is not inconsistent with any provision in the Statute and is wholly consistent with the internationally recognised standards regarding the rights of the accused which the International Tribunal is obliged to respect,¹⁰

CONSIDERING that a determination as to whether release is to be granted must be made in the light of the particular circumstances of each case, and may be granted only if the Trial Chamber is satisfied that the accused "will appear for trial and, if released, will not pose a danger to any victim, witness or other person,"

CONSIDERING that the Accused voluntarily surrendered to the custody of the International Tribunal,

CONSIDERING that the Accused has provided, both on his own behalf, and through the Government of the Republika Srpska, the guarantees required by the Trial Chamber, and further that the Government of the Republika Srpska is competent to issue such guarantees,¹¹

CONSIDERING that the Trial Chamber is satisfied that the Accused, if released, will appear for trial and further, that he will not pose a danger to victims, witnesses or other persons,

CONSIDERING that the Accused has, to date, been held in detention, awaiting trial, for more than two years,¹² and that there is no likelihood of an early date being fixed for the commencement of his trial,

PURSUANT TO Rule 65 of the Rules,

HEREBY GRANTS the motion AND ORDERS the provisional release of Miroslav Tadic under the following terms and conditions:

2. at Schiphol airport, the Accused shall be provisionally released into the custody of the designated official of Bosnia and Herzegovina, Trivun Jovicic (or such other designated official as the Trial Chamber may, by order, accept), who shall accompany the Accused for the remainder of his travel to Bosnia and Herzegovina;

3. on his return flight, the Accused shall be accompanied by the same designated official of Bosnia and Herzegovina, Trivun Jovicic (or by such other designated official as the Trial Chamber may, by order, accept), who shall deliver the Accused into the custody of the Dutch authorities at Schiphol airport at a date and time to be determined by the Trial Chamber, and the Dutch authorities shall then transport the Accused back to the United Nations Detention Unit;

4. During the period of his provisional release, the Accused shall abide by, and the authorities of the Republika Srpska, including the local police in Bosanski Samac, shall ensure compliance with, the following conditions:¹³

a) to remain within the confines of the municipality of Bosanski Samac;

b) to surrender his passport to the International Police Task Force (IPTF) in Oraska or to the Office of the Prosecutor in Sarajevo;

d) to consent to having the IPTF check with the local police about his presence and to the making of occasional, unannounced visits by the IPTF to the Accused;

e) not to have any contact with any other co-accused in the case;

f) not to have any contact whatsoever nor in any way interfere with any persons who may testify at his trial;

g) not to discuss his case with anyone other than his counsel;

h) to assume responsibility for all expenses concerning transport from Schiphol airport to Bosanski Samac and back;

i) to comply strictly with any order of this Trial Chamber varying the terms of or terminating his provisional release,

and FURTHER ORDERS that, being seised of the Prosecution’s application for a stay of any decision granting the Accused’s motion for provisional release, pursuant to Rule 65(E) of the Rules,¹⁴ the order of release of the Accused is hereby STAYED, such that the Accused shall not be released before 5 p.m. on Wednesday 5 April 2000 at the earliest (being one full day from the rendering of this decision), and, if the Prosecution has filed an application for leave to appeal this Decision within that time, then, pursuant to Rule 65(G), the Accused shall not be released until either:

(i) a bench of three Judges of the Appeals Chamber rejects the application for leave to appeal;

(ii) the Appeals Chamber dismisses the appeal; or

(iii) a bench of three Judges of the Appeals Chamber or the Appeals Chamber otherwise orders.

In the event of the Accused’s release, the Trial Chamber:

INSTRUCTS the Registrar to consult with the Ministry of Justice of the Netherlands as to the practical arrangements for his release; and

REQUESTS the authorities of all States through which he will travel:

(i) to hold the Accused in custody for any time he will spend in transit at the airport;

(ii) to arrest and detain the Accused pending his return to the United Nations Detention Unit, should he attempt to escape,

and FURTHER ORDERS that the Accused shall be immediately detained should he breach any of the foregoing terms and conditions of his provisional release.

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

____________________
Patrick Robinson
Presiding Judge

Dated this fourth day of April 2000
At The Hague
The Netherlands

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