Case No.: IT-04-83-PT
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Decision of:
6 May 2005
PROSECUTOR
v.
RASIM DELIC
_____________________________________________________________________
The Office of the Prosecutor
Mr. Daryl Mundis
Counsel for the Accused
Mr. Stéphane Bourgon, Duty/Temporary Counsel
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 Seeking the Provisional Release of Rasim Delic Until the Beginning of the Trial Phase of the Proceedings”, filed confidentially and partly ex parte on 1 April 2005 (“Motion”) by the Defence of Rasim Delic (“Accused”), in which the Defence asserts that the criteria established in Rule 65(B) of the Rules of Procedure and Evidence of the International Tribunal (“Rules ”) have been met for the Trial Chamber to order the provisional release of the Accused until the beginning of trial proceedings,
NOTING that, in support of its assertion, the Defence argues, inter alia , that the following factors militate in favour of his provisional release: (i) the voluntary surrender of the Accused; (ii) the cooperation of the Accused with the Office of the Prosecutor (“Prosecution”); (iii) the personal guarantee of the Accused dated 29 March 2005; (iv) the guarantee of the Government of the Federation of Bosnia and Herzegovina dated 3 March 2005; and (v) the remote distance between the Accused and the victims of the alleged crimes in the indictment against the Accused,
NOTING the “Prosecution Response to the Accused Rasim Delic’s Motion for Provisional Release”, filed by the Prosecution on 14 April 2005 (“Response”), in which the Prosecution opposed the Motion in light of “(a) the senior position of the Accused; (b) the period of time that is likely to elapse prior to trial; and (c) the serious nature of the charges faced by the Accused, with the likelihood of a substantial period of confinement upon conviction”, and noted that the “Accused has not provided any co-operation of value to the Prosecution”,1
NOTING the “Defence Reply to the Prosecution Response to the Accused Rasim Delic’s Motion for Provisional Release”, filed confidentially on 18 April 2005, without leave,
CONSIDERING that Rule 65(B) of the Rules provides:
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.
CONSIDERING that the Registry provided a certified copy of the Motion to the relevant authorities in the Netherlands along with an invitation to present the host country’s comments on the Motion, that no response has since been received, and that the requirement of Rule 65(B) of the Rules that the host country be offered an opportunity to be heard has therefore been fulfilled,
CONSIDERING that, at the hearing in this matter held on 26 April 2005, the Trial Chamber heard oral submissions from Ms. Borjana Kristo, the Minister of Justice of the Federation of Bosnia and Herzegovina (“Minister of Justice”), as a representative of the Government of the Federation of Bosnia and Herzegovina,2
CONSIDERING that there are two prongs to the provisional release inquiry, which must both be satisfied before a Chamber may grant release pursuant to Rule 65(B) of the Rules: (1) will the Accused appear for trial and (2) if released, will he pose a danger to victims, witnesses, or others,
CONSIDERING that a Trial Chamber must identify all the factors that it has taken into account in reaching its decision, with particular attention paid to the circumstances of the case before it,3
CONSIDERING that this Chamber has previously considered the following factors as especially relevant to the provisional release inquiry:
CONSIDERING that the burden of proof on the balance of probabilities is placed upon the Accused with respect to both prongs of the provisional release inquiry,5
CONSIDERING that, although the Accused is charged with serious criminal offences and faces a lengthy prison sentence if convicted, this Chamber has previously emphasised that “the gravity of the charges cannot by itself serve to justify long periods of detention on remand”, an approach which has been upheld by the Appeals Chamber,6
CONSIDERING that the Accused surrendered immediately after being made aware of the indictment against him, which was confirmed on 16 February 2005, and that he was transferred to the International Tribunal on 28 February 2005,7
CONSIDERING the personal guarantee of the Accused dated 29 March 2005, in which the Accused submitted that he shall (i) “respond at any time to the Hague Tribunal”; and (ii) “obey all the procedure presented” to him, “including avoidance of any contact whatsoever with the persons engaged in the trial proceedings against ” him,8
CONSIDERING that the senior position held by an accused and the consequences thereof upon the weight of a governmental guarantee are significant factors that inform the Trial Chamber’s assessment in relation to the willingness of the State to arrest the Accused should he refuse to appear for trial,9
CONSIDERING that the Accused was the former Commander of the Army of Bosnia and Herzegovina, and that the Government of the Federation of Bosnia and Herzegovina has undertaken to adhere to any and all orders by the Trial Chamber so as to ensure the Accused’s presence at the Tribunal, and, in particular, has acknowledged its obligation to arrest the Accused should he violate any condition of provisional release,10
CONSIDERING that the Minister of Justice, on behalf of the Federation of Bosnia and Herzegovina, orally reiterated these guarantees at the hearing held on 26 April 2005,11
CONSIDERING that the Accused has co-operated with the Prosecution by participating in an interview prior to his indictment and that the lack of value of the information, by itself, “does not disprove cooperation by the Accused”,12
CONSIDERING that there is no indication that the Accused has interfered with the administration of justice since the confirmation of the indictment against him, for example by attempting to influence or intimidate victims or potential witnesses or that he will do so, and that there is no suggestion that he may pose a danger to others if released,
CONSIDERING that the Accused has satisfied the Chamber that, if released, he will return for trial and will not pose a danger to anyone,
CONSIDERING that the trial in this case is not yet scheduled and that the Prosecution submitted that it may not commence before the second half of 2007,13 thereby raising the possibility of an extended period of pretrial detention,
CONSIDERING that Rule 65(C) of the Rules provides that “[t]he Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others”,
NOTING that the Defence requested that, if released, the Accused be “authorised to remain within the confines of the territory of the Federation of BiH” so that he may (i) use his apartment in Sarajevo for the purpose of continuing his research activity at the University of Sarajevo in order to complete his fourth book, while residing in Visoko with his family; (ii) visit his invalid brothers who are living in the municipalities of Brcko and Srebrenik; and (iii) “participate in the promotion tour which will be organised when his fourth book will be published”,14
NOTING that the Defence submitted that the distance between the apartment of the Accused in Sarajevo and his residence in Visoko is less than 25 kilometres,15
NOTING that Brcko and Srebrenik are adjacent municipalities in Bosnia and Herzegovina,
CONSIDERING that, although a standard condition of provisional release is that an accused shall remain within the confines of the municipality in which he resides, the circumstances of this Accused give rise to the need of an alternative condition so that the Accused is able to utilise his apartment in Sarajevo for purposes of his research, while residing in Visoko,
CONSIDERING that, in order for the Trial Chamber to assess whether the provisional release condition of the Accused can also include travel to Brcko and Srebrenik for the sole purpose of visiting his invalid brothers, further information is needed from the Federation of Bosnia and Herzegovina with respect to the travel arrangements for the Accused to Brcko and Srebrenik, and the guarantee that the conditions of provisional release will be enforced while the Accused is in Brcko and Srebrenik,
CONSIDERING HOWEVER that the request by the Accused to participate in the promotion of his book around the territory of the Federation of Bosnia and Herzegovina is not a valid basis to justify an exception to the conditions of his release,
PURSUANT TO Rule 65 of the Rules,
HEREBY GRANTS the Motion, and
ORDERS as follows:
REQUIRES the Government of the Federation of Bosnia and Herzegovina to assume responsibility as follows:
REQUESTS the Government of the Federation of Bosnia and Herzegovina to provide information on the following matters:
INSTRUCTS the Registrar of the International Tribunal to consult with the Ministry of Justice in the Netherlands as to the practical arrangements for his release and to continue to detain the Accused at the United Nations Detention Unit in The Hague until such time as the Trial Chamber and the Registrar have been notified of the name of the designated official of the Government of the Federation of Bosnia and Herzegovina into whose custody the Accused is to be provisionally released.
REQUESTS the authorities of all States through whose territory the Accused will travel,
Done in English and French, the English text being authoritative.
_______________________
Judge Patrick Robinson
Presiding
Dated this sixth day of May 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
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