Cases: IT-03-66-AR65.3

Before:
Judge Wolfgang Schomburg, Presiding
Judge Mehmet Güney
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision of:
31 October 2003

Counsel for the Prosecutor:

Mr. Andrew Cayley
Mr. Alex Whiting

Counsel for the Defence:

Mr. Karim A. A. Khan for Fatmir Limaj
Mr. Tome Gashi and Mr. Peter Murphy for Haradin Bala
Mr. Steven Powles for Isak Musliu

1. This Bench of the Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (respectively , “Bench” and “International Tribunal”) is seized of the “Application of Isak Musliu for Leave to Appeal Against ‘Decision on Provisional Release’”, filed by counsel for Isak Musliu (respectively, “Defence” and “Musliu”) on 24 September 2003 (“Application for Leave to Appeal”), pursuant to Rule 65(D) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”).

2. The Application for Leave to Appeal challenges a decision issued by Trial Chamber I on 17 September 2003, rejecting Musliu’s request for provisional release (“Impugned Decision”).¹ In the Impugned Decision, the Trial Chamber denied provisional release, inter alia, on the following grounds: (i) that “the Accused is charged with participating in serious crimes namely Imprisonment, Cruel Treatment, Torture and Murder” and “that if convicted, the Accused is likely to face long prison terms and that he therefore has a stong incentive to flee”; (ii) that “no evidence has been adduced which would show that UNMIK would be able to provide guarantees that the Accused, if provisionally released, would be available for trial”; and (iii) that “the Chamber is not satisfied that if released, the Accused would appear before the Tribunal”.²

3. With respect to the procedural background, the Bench granted the Office of the Prosecutor (“Prosecution”) leave to file a joint response to the Applications for Leave to Appeal by all three Accused, and an extension of time, on 30 September 2003.³ The Prosecution accordingly filed its response on 6 October 2003 (“Response”).⁴ The Defence replied on 10 October 2003 (“Reply”).⁵

4. The question before the Bench is whether “good cause” pursuant to Rule 65(D) Sentence 1 for granting leave to pursue the appeal to the full Appeals Chamber has been shown.

5. Rule 65(B) of the Rules sets out the basis upon which a Trial Chamber may order the provisional release of an accused. It states that provisional 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” (emphasis added).

6. Rule 65(D) of the Rules provides, inter alia, that leave to appeal a Trial Chamber’s decision on provisional release may be “granted by a bench of three judges of the Appeals Chamber, upon good cause being shown”. According to the settled jurisprudence of the Appeals Chamber, there is “good cause” within the meaning of Rule 65(D) for granting leave to appeal when it appears that the Trial Chamber “may have erred” in rendering the impugned decision.⁶

7. A Trial Chamber “may have erred” when it did not apply the law correctly or failed to take into account and assess all the decisive facts of a case.

8. Article 21(3) of the Statute of the Tribunal, adopted by Security Council Resolution 827 of 25 May 1993 (“Statute”), mandates that “the accused shall be presumed innocent until proved guilty”. This provision both reflects and refers to international standards as enshrined, inter alia, in Article 14(2) of the International Covenant on Civil and Political Rights (“ICCPR”) of 19 December 1966 and Article 6 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (“ECHR”).

9. Furthermore, Article 9(3) of the ICCPR emphasizes inter alia that: “it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial”. Article 5 (3) of the ECHR provides inter alia that: “everyone arrested or detained… shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial”.

10. These human rights instruments form part of public international law.

11. The ICTY is entrusted with bringing justice to the former Yugoslavia. First and foremost, this means justice for the victims, their relatives and other innocent people. Justice, however, also means respect for the alleged perpetrators’ fundamental rights. Therefore, no distinction can be drawn between persons facing criminal procedures in their home country or on an international level.

12. Rules 65 (B) and (D) of the Rules must therefore be read in the light of the ICCPR and ECHR and the relevant jurisprudence.

13. Moreover, when interpreting Rule 65(B) and (D) of the Rules, the general principle of proportionality must be taken into account. A measure in public international law is proportional only when it is (1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target. Procedural measures should never be capricious or excessive. If it is sufficient to use a more lenient measure than mandatory detention, it must be applied.⁷

III. Discussion

14. In the Application for Leave to Appeal, the Defence relies on ten grounds of appeal.⁸ They will be dealt with in the following sections, grouped together where appropriate.

(a) The Trial Chamber erred in not granting an oral hearing, in not giving reasons for such a failure, and in failing to inform the parties of its decision (Grounds 1-3)

15. According to the Defence, the Trial Chamber erred in refusing its request for an oral hearing because there are no cases in the practice of the International Tribunal in which an application for provisional release has been refused “on paper ” where such a hearing had been requested. This rejection, it is claimed, denied the Defence the opportunity to call important witnesses. The Defence also argues that the Trial Chamber erred in not giving any explanation for its denial, as it is under an obligation to provide reasons for its decisions. Lastly, the Defence contends that the Trial Chamber erred in failing to inform the Defence of its rejection of the request for an oral hearing because it deprived the Defence of the possibility to make detailed submissions in support of its request for an oral hearing, and to make fully informed decisions regarding how best to present certain evidence before the Trial Chamber.

16. The Prosecution submits that the decision whether or not to receive oral submissions in addition to written submissions is one reserved for the discretion of the Trial Chamber and that, when requesting an oral hearing, the Defence did not express its intention to call additional witnesses. The Prosecution contends that the duty to provide a reasoned opinion applies only when the Chamber is dealing with substantive aspects of an application for provisional release, and does not limit the Trial Chamber’s discretion to decide whether or not to call an oral hearing. The Prosecution argues that the alleged failure by the Trial Chamber to notify the Defence of its decision did not prejudice the preparation of the case as the Defence had ample opportunity to present its case. Thus, if the Defence did not put before the Trial Chamber all the evidence it could have submitted, this was a miscalculation on the part of the Defence and not an error of the Trial Chamber.

17. The Bench largely concurs with the Prosecution’s submissions. Another bench of the Appeals Chamber, rejecting an application for leave to appeal in Odjanic , reasoned as follows:

“CONSIDERING that the right of an accused to be heard is not similar to what the accused regards as his right to be heard personally;
CONSIDERING that the “right” of an accused, who is represented, to be heard personally is not unfettered and is subject to the discretion of the Chamber before which the accused is appearing;
CONSIDERING that Ojdanic has not put forth any cogent reason why he should have been heard personally in the present case, nor has he shown that the Trial Chamber abused its discretion when refusing to hear him personally [this Chamber refuses leave to appeal];⁹

It follows that the right to be heard personally is not absolute. The granting of an oral hearing is a matter for the discretion of a Chamber, and it may legitimately be regarded as unnecessary regard when, as in the present case, the information before the Trial Chamber is sufficient to enable the Chamber to reach an informed decision. The Defence has failed to demonstrate the added value of an oral hearing , namely the reason why if granted, such a hearing could have led the Trial Chamber to another conclusion. Contrary to what was argued by the Defence, the tendering of “detailed submissions” in support of an oral hearing (if available) has to be done when the request for a hearing is made. Finally, the Trial Chamber is not obliged to explain prior to its final decision why a hearing is unnecessary or to notify the parties of this.

18. For the foregoing reasons, the Bench finds that the Defence’s arguments under Grounds 1 to 3 do not demonstrate that the Trial Chamber may have erred in the exercise of its discretion under Rule 65(B) - see above paragraphs 5-13 - and, therefore, these grounds are dismissed.

(b) The Trial Chamber’s failed to give appropriate consideration to the issue of “guarantees” (Ground 4)

19. According to the Defence, the Trial Chamber placed excessive weight on the absence of guarantees from UNMIK and insufficient weight on the undertakings from the provisional authorities of Kosovo, including the statement by the Prime Minister of Kosovo.

20. The Prosecution responds that the Trial Chamber was correct in placing more weight on the representations from UNMIK as UNMIK, not the provisional government , remains responsible for public safety and order in Kosovo and for monitoring the borders of the province. Further, Mr. Coffey, the head of the UNMIK justice system , had stated that given the limited resources available to UNMIK, it would be relatively easy for Musliu to flee and that, the provisional authorities of Kosovo have no means to enforce their own undertakings, as the Prime Minister of Kosovo himself has publicly acknowledged.

21. According to the settled practice of the International Tribunal, it is the State into the territory of which the accused will be released, as the guarantor of public safety and order in that territory, that must provide the International Tribunal with guarantees that the accused will not flee and that if he does so, he will be arrested. As the Trial Chamber correctly noted, in the province of Kosovo, according to Security Council Resolution 1244 of 10 June 1999, UNMIK, and not the provisional institutions of Kosovo, is the authority which, in coordination with KFOR (the NATO Forces in Kosovo), is entrusted with ensuring public safety, and conducting bordering monitoring, and is given the necessary means to enforce such duties. Thus, there is no reason why the Trial Chamber should have taken into account guarantees given by other authorities.

22. For the foregoing reasons, the Bench finds that Ground 4 does not demonstrate that the Trial Chamber may have erred in the exercise of its discretion under Rule 65(B) - see above paragraphs 5-13 – and, therefore, it is dismissed.

(c) The Trial Chamber erred in not placing the burden of proof on the Prosecution to demonstrate that the accused is not entitled to provisional release (Ground 5)

23. According to the Defence, international humanitarian law and principles enshrined in the ICCPR and the ECHR impose upon the Prosecution the burden of proof in justifying detention pending trial before this International Tribunal. The Defence adds that the detention should be justified by clear and convincing evidence. In support of its view, the Defence quotes several cases from the Human Rights Committee, the ECourtHR, the United Kingdom. and the United States. It relies as well on Articles 60(2) and 58(1) of the Statute of the International Criminal Court (“ICC”).

24. The Prosecution submits that the Defence’s interpretation of international law is wrong and that the Impugned Decision is fully consistent with the settled jurisprudence of this International Tribunal, in which it is well established that the burden of proof rests on the accused. It recalls that, unlike national jurisdictions, the International Tribunal lacks a police force and has to rely on States to monitor and enforce conditions of release. It submits that the Trial Chamber’s approach is also consistent with its obligation to conduct a fair evaluation of the circumstances and interests at stake. With respect to the ICC Statute, the Prosecution observes that it is not binding on the International Tribunal and it does not support the imposition of a burden of proof on the Prosecution to justify pre-trial detention .

25. Contrary to the argument put by the Defence, the Trial Chamber did not err in not imposing the burden on the Prosecution to demonstrate that provisional release was inappropriate. First, Rule 65(B) does not place the burden of proof on the Prosecution . Pursuant to that Rule, the Trial Chamber was required to determine whether it was "satisfied" that Musliu, if released, would appear for trial. After taking into account the information submitted to it by the parties and weighing all the relevant factors, it held that it was not satisfied. Thus, there is no basis for holding that, by not placing the burden of proof on the Prosecution, the Trial Chamber erred in its application of Rule 65(B).

26. For the foregoing reasons, the Bench finds that Ground 5 does not demonstrate that the Trial Chamber may have erred in the exercise of its discretion under Rule 65(B) - see above paragraphs 5-13 – and, therefore, it is dismissed.

(d) (d) The Trial Chamber erred in denying provisional release on a ground (the alleged inability of UNMIK to control the borders of Kosovo) which would require the denial of provisional release to any accused (Ground 6)

27. The Defence claims that the Trial Chamber failed to consider appropriate conditions of release, and denied the request for provisional release on a ground that would require denial in every case, i.e. the inability of UNMIK to control Kosovo’s borders . The Defence adds that the Prosecution was unable to point to any facts relating to the accused personally.

28. The Prosecution notes that the Trial Chamber’s reliance on the representations of UNMIK as one important factor in its decision was entirely reasonable, and there is no basis for the Defence’s assertion that it was a factor that should have been overlooked. The Prosecution states that it has never advocated a policy of “blanket denial” of provisional release and argues that the specific facts of this case justified the denial.

29. Pursuant to Rule 65(B), the Trial Chamber was specifically required to determine whether Musliu, if released, will flee or not. The inability of UNMIK to control the borders of Kosovo is therefore a highly relevant fact. In contrast, the consequences of this inability in other similar applications, are irrelevant to the Trial Chamber’s determination of this particular case, and cannot prevent the Trial Chamber from taking into account a decisive factor in determining whether Musliu, if released , will flee or not. The Trial Chamber, therefore, in the Bench’s view, did not err in relying on this fact.

30. For the foregoing reasons, the Bench finds that Ground 6 does not demonstrate that the Trial Chamber may have erred in the exercise of its discretion under Rule 65(B) - see above paragraphs -5-13 – and, therefore, it is dismissed.

(g) The Trial Chamber erred in relying on the seriousness of the charges against Musliu to deny provisional release without considering his personal circumstances (Ground 7)

31. First of all, the Defence submits that the Trial Chamber erred in focusing on the seriousness of the charges against Musliu and ignoring his personal circumstances . The Defence observes that the Trial Chamber allegedly departed from the practice of the International Tribunal according to which individuals accused of more serious crimes (such as Biljana Plavsic and Dragan Jokic) were granted provisional release .

32. The Prosecution responds that the jurisprudence of the International Tribunal is fully consistent with international law, and that the Trial Chamber considered the seriousness of the charges and the possibility of a lengthy sentence in conjunction with several other factors. It observes that in the case of Plavsic, the Trial Chamber considered among the factors favoring release: her advanced age, her voluntary surrender, and her co-operation with the Prosecution. In the case of Jokic, the Trial Chamber relied on his voluntary surrender, the ill health of Jokic’s daughter, the extensive guarantees from Serbia and Montenegro, and the Prosecution’s conditional consent .

33. The Bench considers that, while under Rule 65(B) of the Rules the seriousness of the charges against an accused cannot be the sole factor determining the outcome of an application for provisional release, it is certainly one that a Trial Chamber is entitled to take into account when assessing whether an accused, if released, would appear for trial.¹⁰ It is evident that the more severe the sentence which an accused faces, the greater is the incentive to flee. As the Trial Chamber relied on the seriousness of the charges against Musliu in addition to several other factors, it did not err in taking this factor into account. There is no suggestion in the decision that the Chamber regarded this factor as determinative, or sufficient on its own to justify detention. As noted by the Prosecution, the case at hand can and has to be distinguished from others granting provisional release, and there is no reason why the Trial Chamber should have reached the same conclusion in this case as it did in other applications. The trial Chamber is best placed to assess the concrete individual circumstances of the case. No indicia have been demonstrated that the Trial Chamber has not exercised its discretion in a reasonable way.

34. For the foregoing reasons, the Bench finds that Ground 7 does not demonstrate that the Trial Chamber may have erred in the exercise of its discretion under Rule 65(B) – see above paragraphs 5-13 – and, therefore, it is dismissed.

(h) The Trial Chamber failed to consider whether appropriate terms and guarantees for the granting of provisional release had been provided (Ground 8)

35. According to the Defence, the Trial Chamber erred because, without any indication to the contrary in the Impugned Decision, it is evident that the Chamber failed to take into account the onerous and detailed conditions that the Defence was proposing for Musliu’s provisional release.

36. The Prosecution argues that the Trial Chamber took notice of Musliu’s willingness to accept all conditions imposed on him if provisionally released. It submits, however, that the Trial Chamber was correct in concluding that Musliu’s personal undertakings could not outweigh other factors militating in favor of pre-trial detention.

37. In exercising its discretion under Rule 65(B) of the Rules, the Trial Chamber must take into account all the decisive facts of a case. The Trial Chamber took notice of the submissions of the Defence in its original motion, and of Musliu’s personal undertakings. Weighing these against all the other relevant factors, it reached the reasonable conclusion that Musliu should not be released.

38. For the foregoing reasons, the Bench finds that Ground 8 does not demonstrate that the Trial Chamber may have erred in the exercise of its discretion under Rule 65(B) – see above paragraphs 5-13 – and, therefore, it is dismissed.

(i) The Trial Chamber erred in concluding that, because of the seriousness of the charges against him, if convicted, the accused is likely to face long prison terms and therefore has a strong incentive to flee (Ground 9)

39. The Defence submits that the Trial Chamber failed to give proper consideration to the fact that there was little, if any, evidence with respect to the most serious allegations brought against Musliu. The Defence argues that there is no evidence against the Accused on a particular allegation then there is no prospect of conviction and thus no incentive to flee.

40. The Prosecution replies that the Trial Chamber noted Musliu’s submissions in this regard, and thus it must be assumed that the argument was appropriately considered. According to the Prosecution, it is untrue that there is little evidence against Musliu. In addition to the evidence presented to the Trial Chamber at the confirmation of the Indictment, which showed that a prima facie case existed under each count of the Indictment, the Chamber was also provided with evidence that Musliu engaged in brutal violence while at the Llapushnik Camp, including beating a prisoner to death.

41. The assessment of the quantity and quality of the evidence against the Accused is subject to different interpretations by the parties as the above submissions reveal and it is premature at the pre-trial phase of a case to evaluate the evidence to be tendered at trial. However, the Bench considers that it was not unreasonable for the Trial Chamber to conclude that the charges against Musliu, which include Murder, Imprisonment, Torture and Cruel Treatment, are sufficiently serious, that in the event of a conviction, they would potentially warrant the imposition of a lengthy sentence, which would constitute an incentive for the Accused to flee without infringement of the fundamental principle of the presumption of innocence. Thus , the Trial Chamber has not erred in taking this factor into account as one of a number of pertinent considerations.

42. For the foregoing reasons, the Bench finds that Ground 9 does not demonstrate that the Trial Chamber may have erred in the exercise of its discretion under Rule 65(B) – see above paragraphs 5-13 – and, therefore, it is dismissed.

(l) The Trial Chamber erred in concluding that no evidence had been adduced which would show that UNMIK would be able to provide guarantees that the accused, if provisionally released, would appear for trial (Ground 10)

43. The Defence submits that the Trial Chamber itself failed to obtain the evidence which would show that UNMIK could provide guarantees that the accused, if provisionally released, would appear for trial. According to the Defence, if the Trial Chamber had sought confirmation from UNMIK of its willingness of complying with the International Tribunal’s orders, UNMIK, as a UN body, would have undoubtedly abided by any orders or instructions from the International Tribunal. As a result, the Trial Chamber would have had sufficient evidence to be satisfied that Musliu would not flee.

44. The Prosecution notes that UNMIK’s willingness to comply with the Trial Chamber’s orders was never questioned by the parties or by the Trial Chamber, but points out that Mr. Coffey [the Director of the Department of Justice of UNMIK] has clarified that UNMIK lacked the resources to comprehensively police Kosovo’s territory in his letter to the Pre-Trial Judge of 22 July 2003.

45. The Bench notes that the issue here is not, as the Defence seems to imply, whether UNMIK was willing or not to comply with the ICTY’s requests, which is not in doubt . Rather, the issue is whether UNMIK has the capability to ensure that the Accused , if released, will not flee and that if he does so that he will be re-arrested. Mr. Coffey, Director of the Department of Justice of UNMIK, clearly stated UNMIK’s position in this regard. In addition, the Trial Chamber did send a letter to Mr. Steiner, Director of UNMIK, inviting him to state his views on the application if he wished to do so. It is evident that, if Mr. Steiner had disagreed with Mr. Coffey, he would have acted on this. Given the clarity of UNMIK’s position as stated in Mr. Coffeys’s letter there is no basis for speculating about whether the Trial Chamber might have received a different answer from UNMIK, if it has been contacted again, which would have warranted Musliu’s release.

46. For the foregoing reasons, the Bench finds that Ground 10 does not demonstrate that the Trial Chamber may have erred in the exercise of its discretion under Rule 65(B) – see above paragraphs 5-13 – and, therefore, it is dismissed.

47. The Bench finds that the Application for Leave to Appeal does not demonstrate that the Trial Chamber may have erred in the exercise of its powers under Rule 65 (B) and that, therefore, there is no “good cause” within the meaning of Rule 65( D) for granting leave to appeal. Leave to appeal the Impugned Decision is, therefore, denied.

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

Dated this 31st of October 2003,
At The Hague,
The Netherlands.

______________________
Judge Wolfgang Schomburg
Presiding

[Seal of the Tribunal]

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