Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Decision of:
9 June 2005
PROSECUTOR
v.
MOMCILO PERISIC
The Office of the Prosecutor
Mr. Chester Stamp
Mr. Karim Agha
Counsel for the Accused
Mr. James Castle
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 “Momcilo Perisic’s Motion for Provisional Release”, filed by the Defence of Momcilo Perisic (“the Accused”) on 11 May 2005 (“Motion”), in which the Accused submits that an examination of the individual circumstances of his case in light of the practice of the Tribunal1 supports a grant of provisional release,
CONSIDERING that Rule 65(B) (“Provisional Release”) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”) requires an applicant for provisional release to satisfy the Trial Chamber of two matters: (1) that he will appear for trial, and (2) that, if released, he will not pose a danger to any victim, witness or other person,2
NOTING the “Prosecution’s Response to Defence Motion for Provisional Release ”, filed on 25 May 2005 (“Response”), in which the Prosecution requests that the Motion be denied on the basis that (a) the gravity of the charges against the Accused and his senior position are likely to result in a significant sentence following conviction, (b) the authorities of the Republic of Serbia and the Republic of Serbia and Montenegro providing guarantees3 for the Accused have yet to arrest and transfer “an accused” to the Tribunal, and (c) while acknowledging that the time before trial may be unavoidably long, the Prosecution seeks that the pre-trial trial process be expedited and that the case be scheduled for trial on an expedited basis,
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,4
CONSIDERING the following list of factors previously identified as relevant to the provisional release inquiry:5
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,6
CONSIDERING that although the Accused is charged with serious criminal offences and faces a lengthy prison sentence if convicted, this Trial Chamber has previously emphasised that “the gravity of the charges cannot by itself serve to justify long periods of detention on remand”,7 an approach which has been upheld by the Appeals Chamber,8
CONSIDERING that the Accused surrendered to the Tribunal on 7 March 2005, three days after being formally notified of the indictment,
CONSIDERING the increased co-operation given by the authorities of Serbia and Montenegro and the Republic of Serbia to the International Tribunal in recent months,9
CONSIDERING that these authorities have undertaken to “[…] comply with all the requests of the Chambers to ensure the appearance of Momcilo Perisic before the International Criminal Tribunal at any time on the request of the Tribunal”, and, in particular, have acknowledged their obligation to arrest the Accused should he violate any condition of his provisional release,10
CONSIDERING that while the Accused held a senior position, the Trial Chamber recently granted provisional release to other accused of similar status on the strength attributed to the guarantees of Serbia and Montenegro and the Republic of Serbia,11
CONSIDERING that the Accused has co-operated with the Prosecution by participating in an interview with the Prosecution and providing lengthy statements that are contained on 35 compact discs,12
CONSIDERING the Personal Guarantee attached to the Motion in which the Accused undertakes, if released, to obey all the conditions of release imposed by the Trial Chamber and, in particular, not to have any contact with victims or witnesses in his case and not to interfere in any way with the administration of justice,13
CONSIDERING FURTHER that there is no indication that the Accused has interfered with the administration of justice since the confirmation of the indictment against him, and there is no evidence that he may pose a danger to others if released,
CONSIDERING that while the failure to arrest any fugitive is a matter of concern, the weight to be attributed to government guarantees must be assessed in light of the personal circumstances of the Accused;14 in the circumstances of this case, the Trial Chamber considers it appropriate to take account of the guarantees offered by the authorities of the Republic of Serbia and Serbia and Montenegro,
CONSIDERING that it is the duty of the Trial Chamber to ensure that the pre -trial procedure is conducted without undue delay, and this case will be scheduled for trial consistent with the right of all accused to a trial within a reasonable time,15 and that the Prosecution has indicated neither the basis on which the Trial Chamber would have jurisdiction to schedule the trial on an expedited basis nor any legal basis on which a decision could be made to give precedence to this case over others,
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, if any, that no response has been received in the four weeks since the Motion’s filing, and that Rule 65(B)’s requirement that the host country be offered an opportunity to be heard has therefore been fulfilled,
CONSIDERING that the guarantees provided by the Council of Ministers of Serbia and Montenegro and the Government of the Republic of Serbia16 indicate that “the State to which the accused seeks to be released” has been given an opportunity to be heard,
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 Rule 65(C) 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”,
CONSIDERING that, pursuant to Rule 65(E), the Prosecution requests a stay of any decision granting provisional release pending appeal,
PURSUANT TO Rule 65 of the Rules,
HEREBY GRANTS the Motion and GRANTS the Prosecution application for a stay and
(1) ORDERS the provisional release of Momcilo Perisic subject to the following terms and conditions:
(2) REQUIRES the governments of the Serbia and Montenegro and the Republic of Serbia to assume responsibility as follows:
(3) 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 Serbia and Montenegro into whose custody the Accused is to be provisionally released;
(4) REQUESTS the authorities of all States through whose territory the Accused will travel,
(5) STAYS the provisional release of Momcilo Perisic pending an appeal by the Prosecution pursuant to Rule 65(D), (E), (F) and (G) of the Rules.
Done in English and French, the English text being authoritative.
____________________
Judge Patrick Robinson
Presiding
Dated this ninth day of June 2005
At The Hague
The Netherlands
[Seal of the Tribunal]
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