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IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge David Hunt
Judge Mohamed Bennouna

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
29 May 2000

PROSECUTOR

v.

BLAGOJE SIMIC
MILAN SIMIC
MIROSLAV TADIC
STEVAN TODOROVIC
SIMO ZARIC

_____________________________________________________

DECISION ON MILAN SIMIC’S APPLICATION FOR
PROVISIONAL RELEASE

_____________________________________________________

The Office of the Prosecutor

Mr. Grant Niemann
Ms. Nancy Paterson
Ms. Suzanne Hayden

Counsel for the accused

Mr. Slobodan Zecevic, for Milan Simic
Mr. Igor Pantelic and Mr. Novak Lukic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic and Mr. Aleksander Lazarevic, for Simo Zaric

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 "Motion for Provisional Release of Milan Simic" filed on behalf of the accused Milan Simic ("the Accused") on 16 December 1999 ("the Motion"), requesting provisional release from detention on humanitarian grounds relating to his health, subject to certain terms and conditions as set out in the Motion,

NOTING the "Prosecution’s Response to Milan Simic’s Request for Provisional Release", filed by the Office of the Prosecutor ("Prosecution") on 22 December 1999 ("the Response"),

NOTING the "Reply to the Prosecutor’s Response to Milan Simic’s Request for Provisional Release" filed by the Accused on 10 January 2000 ("the Reply"),

NOTING the "Scheduling Order" issued by the Trial Chamber on 19 April 2000,

NOTING the "Prosecution’s Further Observations in Connection with the Simic Motion for Provisional Release" ("Prosecution’s Further Observations"), filed by the Prosecution on 26 April 2000,

NOTING the "Order on Request for Provisional Release by Milan Simic" issued by the Trial Chamber on 16 May 2000, in which the Trial Chamber sought certain guarantees from Republika Srpska and undertakings from the Accused before it would issue its decision on the Motion,

NOTING the "Defence Submission Regarding Trial Chamber’s Order of 16 May 2000 in the Matter of Provisional Release of Milan Simic" filed by the Accused on 25 May 2000,

NOTING the arguments of the Accused, as set forth in the Motion and the Reply, inter alia, that

(ii) at the Accused’s initial appearance on 17 February 1998, the Prosecution states that it did not oppose his provisional release,

(iii) on 26 March 1998 the Accused was granted provisional release on the basis that he satisfied the requirements of Rule 65 (B), including exceptional circumstances relating to his health,

(iv) during the period of his release, the Accused was twice permitted by Order of the International Tribunal to leave his residence in Bosanski Samac for medical treatment, and he complied with the requirements of these Orders,

(vi) he complied with an Order of this Trial Chamber dated 10 May 1999¹ to surrender himself to the United Nations Detention Unit ("UNDU") not less than two weeks prior to the commencement of trial, initially scheduled for 22 June 1999,

(vii) since surrendering himself to the UNDU on 7 June 1999, he has remained in provisional detention without a fixed trial date²,

(viii) the removal of the requirement for "exceptional circumstances" in Rule 65 (B) of the Rules of the International Tribunal ("Rules") marks an important change in the law applicable to provisional release, but one which is insignificant in the particular circumstances of the Accused’s application,

(ix) the medical condition of the Accused is known to the Trial Chamber and is incorporated into his application,

(x) the medical needs of the Accused are not satisfactorily met at the UNDU,

(xi) there is no danger that the Accused will not reappear for trial,

(xii) if released, he will not pose a danger to victims, witnesses or other persons³,

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

NOTING the arguments of the Prosecution as set forth in the Prosecution’s Response and Further Observations, inter alia, that

(ii) Rule 65 (B) requires three criteria to be fulfilled; that of hearing the host country, being satisfied that the Accused will appear for trial and being satisfied that if released, the Accused will not pose a danger to any victim, witness or other person,

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

(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, and its assurances are therefore unreliable,

(v) the conduct of the Accused during the previous period of his pre-trial release threatened the integrity of the proceedings, and the finding of not guilty in contempt proceedings against the Accused does not establish that the Accused did not in fact commit the offences alleged,

(vi) 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,

(vii) the release of the Accused would have a "chilling effect" on the cooperation of potential witnesses in the region,

(viii) the Trial Chamber, when considering the period of detention, should be guided by the standards enunciated by the European Court of Human Rights and that such standards allow for extensive periods of pre-trial detention,

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

(x) the medical needs of the Accused are satisfactorily met at the UNDU,

NOTING the Prosecution’s request for a stay of a decision by the Trial Chamber to grant the Motion pursuant to Paragraph (E) of Rule 65,

NOTING further the Declaration of Yves Roy, an Investigator with the Office of the Prosecutor, 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,

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 to be ignored since it is said to be inconsistent with the Statute, and finds that the amendment is wholly consistent with the Statute and the internationally recognised standards regarding the rights of the accused which the International Tribunal is obliged to respect⁴,

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 has been acquitted of allegations of interference with a witness and that nothing in the Prosecution’s submissions raises any credible apprehension that the Accused has or will interfere with any victim or witness if released,

CONSIDERING the physical condition of the Accused,

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 twice voluntarily surrendered to the custody of the International Tribunal, has once returned for hearings and that he has previously been provisionally released by the International Tribunal and complied with all Orders concerning his release,

CONSIDERING that the Accused has provided the guarantees and undertakings sought by the Trial Chamber in its Order of 16 May 2000,

PURSUANT TO Rule 65 of the Rules,

HEREBY GRANTS the Motion AND ORDERS the provisional release of Milan Simic under the following terms and conditions:

1. the Accused shall be transported to Schiphol airport in the Netherlands by the Dutch authorities;

2. at Schiphol airport, the Accused shall be provisionally released into the custody of the designated official of Bosnia and Herzegovina, Trivun Jovicic, 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 (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 UNDU;

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:

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

c) meet once a day with the local police who will maintain a log and periodically file a written report confirming his presence each day,

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 DENIES 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 Rules⁵, on the ground that, in the light of refusal of leave for Appeal by the Appeals Chamber in other cases⁶, the Trial Chamber can see no reason for so ordering, and ORDERS that the Accused be released as soon as the necessary arrangements can be made,

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:

(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.

____________________
Judge David Anthony Hunt

Dated this twenty-ninth day of May 2000
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Prosecutor v. Milan Simic & Ors., "Order Requiring Attendance of Accused", Case No. IT-95-9-PT.
2. This trial date was vacated due to allegations of contempt raised by the Prosecution concerning the accused and his counsel, Mr. Branislav Avramovic, both of whom were found not guilty of allegations of contempt.
3. The Accused notes that he has been found not guilty of allegations of interference with a witness under Rule 77. Oral Decision rendered on 29 March 2000.
4. See Prosecutor v. Blagoje Simic & Ors, "Decision on Application for Leave to Appeal", Case No. IT-95-9-AR65, 19 April 2000.
5. Prosecution’s Further Observations, para. 6-7.
6. Above note 4.

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