Case No. IT-98-29/1-PT
IN TRIAL CHAMBER II
Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker
Registrar:
Mr. Hans Holthuis
Order of:
13 July 2005
PROSECUTOR
v.
DRAGOMIR MILOSEVIC
________________________________________
DECISION ON DEFENCE MOTION FOR PROVISIONAL
RELEASE
________________________________________
Counsel for the Prosecutor:
Mr. Chester Stamp
Counsel for the Accused:
Mr. Branislav Tapuskovic
INTRODUCTION
- 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 (“Tribunal”) is seized of “Defence’s
Motion for Provisional Release” (“Motion”) filed on 26 April 2005 by Dragomir Milosevic
(“Accused”), whereby the Accused requests the Trial Chamber to order his provisional
release until the beginning of the trial, pursuant to Rule 65 of the Rules of Procedure
and Evidence (“Rules”). On 10 May 2005, the Prosecution filed a “Prosecution’s
Response to the Accused’s Motion for Provisional Release” (“Response”).
- The Accused was initially charged jointly with Stanislav Galic in an indictment
confirmed on 24 April 1998 and made public on 2 November 2001.1
Following the arrest of Stanislav Galic, an ex parte and confidential order
of 19 March 1999 authorised the Prosecutor to file an indictment of those charges
solely related to Dragomir Milosevic,2
and this indictment was filed on 26 March 1999 (“Indictment”). An order of 24 February
2005 held that the Initial Indictment and Indictment dated 26 March 1999 were “essentially
identical”3 and made the latter public.
THE LAW
- Rule 65 of the Rules provides in the relevant parts:
(A) Once detained, an accused may not be released except upon an order of a Chamber.
(B) 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.
- The Accused has the burden of proof on both elements which are pre-requisites
for provisional release, set out in Rule 65(B), and must satisfy the Chamber on
a balance of probabilities.4 This
Trial Chamber considers that even if the Accused fully discharges his burden in
relation to each element, he must then satisfy the Chamber having regard to all
the circumstances that it should exercise its discretion to order provisional release.5
DISCUSSION
Opportunity to be heard
- Guarantees have been provided in respect of the Accused by the Government of
the Republic of Serbia on 9 December 2004 and the Council of Ministers of Serbia
and Montenegro on 24 December 2004. The Trial Chamber therefore considers that
the requirement of giving “the State to which the accused seeks to be released”
the opportunity to be heard, set forth in Rule 65(B) of the Rules, is satisfied.
The Trial Chamber notes that the Government of The Netherlands, the host country, has not filed any submissions but considering that the Motion was communicated
to The Netherlands and that sufficient time has elapsed, the Trial Chamber considers
that the host country has been given the opportunity to be heard.
Whether the Accused will appear for trial
- The Trial Chamber notes that the Statute of the Tribunal6
and the Rules7 provide for the pre-
trial detention of accused, subject to Rule 65(B) of the Rules, but that a decision
on provisional release must observe the relevant human rights standards that
de jure pre-trial detention should be the exception and not the rule.8
The Appeals Chamber has indicated a non-exhaustive set of factors which a Trial
Chamber should take into consideration while assessing whether an accused will appear
for trial.9
The gravity of the crimes charged
- The Trial Chamber notes that the Accused is charged in the Indictment with
crimes related to the campaign of shelling and sniping by Bosnian Serb forces against
the civilian population of Sarajevo in which thousands of civilians were allegedly
killed or injured - one count of unlawfully inflicting terror upon civilians10
and two counts of attacks on civilians11
as violations of the laws or customs of war; as well as two counts of murder12
and two counts of inhumane acts13
as crimes against humanity. The Accused is allegedly responsible for these crimes
both individually under Article 7(1) of the Statute and as a superior under Article
7(3) of the Statute as Corps Commander of the Sarajevo Romanija Corps, where he
was in a position of superior authority to approximately 18,000 military personnel.14
- The Trial Chamber observes that the Tribunal was established for the prosecution
of serious violations of international humanitarian law15
and therefore cases before it involve allegations of serious offences. It considers
that the seriousness of offences should not be assessed in the abstract, but rather
in the light or the requirements imposed by Rule 65 (B). The seriousness of the
crimes charged is one of the factors that a Trial Chamber is required to take into
account in assessing whether the accused will appear for trial if released.16
In Cermak, the Appeals Chamber held that it is “reasonable for a Trial Chamber
to take into account the gravity of the offences charged in order to determine whether
facing the possibility of a lengthy sentence would constitute an incentive for an
accused to flee. It is evident that the more severe the possible sentence which
an accused (…( is facing, the greater is his incentive to flee.”17
However, the seriousness of the charges cannot be the sole factor in denying provisional
release – it must be considered in addition to the other factors.18
- First, the Defence Motion cites the Prosecution’s Rule 11bis Motion
of 31 January 2005 as stating “as a matter of fact, neither the gravity of crimes
alleged nor the rank of the accused demand that this case be brought to trial before
the International Tribunal.”19 The
Prosecution’s Response rejects the assertion that the crimes alleged are not grave, relying on the introductory wording of the above cited passage which begins: “
Although these crimes are very grave”.20
The Appeals Chamber has already dealt with the issue of provisional release while
referral under Rule 11bis is being considered in its Third Decision on Provisional
Release in Mrksic, stating:
it does not follow that the effect of a request pursuant
to Rule 11bis of
the Rules is that the cumulative requirements set out
in Rule 65(B) of the Rules would be automatically satisfied
[…] it cannot be inferred from the wording of
the Request for Referral that the charges against
the Applicant are not of a grave nature.21
Therefore, the Trial Chamber rejects the claim of the Accused that the crimes alleged
in the Indictment against him are any less serious simply because of the Rule
11bis proceedings.
- As to the second issue related to the seriousness of the offences, the Accused
submits that the Galic sentence “should not in any respect affect deciding
upon this Motion” because Galic is under appeal and, at any rate, it cannot
be a basis to conclude “with absolute certainty” that the Accused will be sentenced
to a long term of imprisonment if he is convicted.22
The Prosecution disagrees and argues that the seriousness of the offences may be
assessed with reference to the Indictment as well as the Trial Chamber Judgment
in Galic.23 The Trial Chamber
recognizes that “(t(he circumstances of each accused who applies for provisional
release must be evaluated individually”.24
Therefore, when the Trial Chamber is evaluating the request for provisional release
of an accused person, it would generally be improper to consider the outcome of
the case against a co-accused unless their circumstances are distinguished
so that any such comparison is reasonable.25
The Trial Chamber decides, with this cautious approach, that it is entitled to consider
the sentence delivered in Galic given that this case involved similar charges
and similar events as those involving the Accused. The fact that the Galic
decision is on appeal has no relevance for the purpose of gaining insight into the
seriousness of the crimes alleged against the Accused.26
Furthermore, the standard applied in evaluating the seriousness of the offences
is a balance of probabilities – not “absolute certainty” as invoked in the Motion.
- The Trial Chamber also finds that on an assessment of the Indictment dated
26 March 1999, the offences alleged are of a very serious nature and that, if convicted, the Accused would likely face a long term of imprisonment that enhances the risk
he would flee if provisionally released. With respect to the Indictment, the Trial
Chamber notes that it alleges the Accused held a “senior position of Major General
in the Bosnian Serb Army”27 and “(
t(he alleged crimes involve a pervasive and continuous campaign of shelling and
sniping conducted on a large scale on an almost daily basis over approximately 16
months and were part of a widespread and systematic attack against a civilian population
which resulted in thousands of civilian casualties.”28
In particular, the alleged death and injury caused to extremely young children (
as young as two years old), women and other civilians brings added weight to the
seriousness of the charges against this Accused.29
- The Trial Chamber, considering the very serious nature of the crimes alleged
in the Indictment, in conjunction with limited reference to the 20 year term of
imprisonment in Galic, finds that the seriousness of the offences allegedly
committed by the Accused would result in a substantial term of imprisonment, if
he is convicted.30 As stated earlier, this factor alone is insufficient to deny his request for provisional release,
so it must be considered along with other relevant factors.
Circumstances of surrender
- As regards the circumstances of his surrender, the Accused submits that he
“surrendered to the Tribunal even before the indictment against him was made public.”31 The Trial Chamber considers
the voluntary surrender of an accused to be an important factor in determining
whether he will appear at trial if provisionally released. Article 36 of the Law
on Co-operation of Serbia and Montenegro with the Tribunal “prescribes the obligation
of Ministries’ Council of Serbia and Montenegro and (the( Government of the
Republic of which the Accused is the citizen, to give guarantee for persons which
voluntarily give himself up to the International Criminal Tribunal”.32
- First, the Trial Chamber must determine whether, as a matter of fact, the accused
voluntarily surrendered. Second, the Trial Chamber must evaluate whether the circumstances
of the particular case afford more or less weight to this factor.33
- The Defence has consistently maintained that the Accused voluntarily surrendered, including at the Status Conference of 22 February 2005 where Defence Counsel stated
“I think it is beyond dispute that he surrendered of his own free will and appeared
here”. 34 The Prosecution did not
see fit to challenge this assertion at the time that it was made. In the Motion, it is more fully stated that the Accused voluntarily surrendered to the authorities
of Serbia and Montenegro and was subsequently transferred to the United Nations
Detention Unit (“UNDU”) on 3 December 2004.35
- The Prosecution’s Response implies that the Accused did not, in fact, voluntarily
surrender.36 However, the Trial Chamber
observes that nowhere in the Response does the Prosecution actually state that the
Accused did not voluntarily surrender. Furthermore, the Trial Chamber notes that
the Prosecution has adduced no evidence whatsoever disputing the Accused’s version
of events that he voluntarily surrendered. The Trial Chamber finds the Declaration
of Robert William Reid, an investigator in the Office of the Prosecutor, which was
appended to the Prosecution’s Response, of no help in determining whether the Accused
actually voluntarily surrendered.37
This document alleges that the Governments of Serbia and Montenegro and the Republic
of Serbia have been conducting arrests of “a number of persons”38
indicted by the Tribunal only to later claim these persons had voluntarily surrendered. The Trial Chamber finds the declaration of Mr. Reid to be of no help in this
regard because it does not identify a single accused person alleged to have engaged
in this scheme and, most notably, nowhere does Mr. Reid or the Prosecution in its
Response allege that the Accused was actually arrested. Therefore, faced with no
contrary evidence, the Trial Chamber accepts the evidence of the Accused that he
surrendered voluntarily.
- The Trial Chamber must now assess the circumstances of his surrender in order
to determine how much weight should be given to this factor. The Accused submits
that he “surrendered to the Tribunal even before the indictment against him was
made public.”39 The Trial Chamber
finds that the procedural record in this case does not support his claim. The Indictment
against the Accused was made public by an Order of 2 November 200140
and the Accused was not transferred to the United Nations Detention Unit (“UNDU”)
until 3 December 2004.41 The Trial
Chamber finds that a period of over three years elapsed from the time at which the
Accused would have know that he was indicted and subsequently voluntarily surrendered. This is significant because the weight to be given to the voluntary surrender
of an accused person diminishes with the passage of time during which he or she
has failed to do so.42 On only one
occasion has the Accused sought to justify the tardiness of his voluntary surrender. Defence Counsel asserted at the Status Conference of 22 February 2005 that the
Accused would have voluntarily surrendered earlier if he had been given the chance, stating: “There is no shadow of a doubt that he would have been prepared to surrender
even earlier, but no one was interested. I will not be explaining this now.”43
The Trial Chamber notes that this claim is conspicuously absent in the Motion.
- The Prosecution characterizes the Accused as “a fugitive from international
justice for over three years”44 and
that he has a “proven ability to avoid arrest”.45
The Trial Chamber finds evidence in the Prosecution’s Response that contradicts
the assertion of the Accused that he would have surrendered earlier if he could.
In particular, the Prosecution states that “the relevant authorities could not locate
the accused at his registered address”.46
A report dated 15 September 2003 from the Anti-Organized Crime Unit of the Ministry
of Internal Affairs, Republic of Serbia stated that “(o(perative action has been
intensified to trace the indictee (the Accused( or any persons in touch with him.”47 Despite these attempts to apprehend
him, the Accused remained at-large until his voluntary surrender over fourteen months
later.
- While the Trial Chamber has found that the Accused voluntarily surrendered,
it is not satisfied with his explanation for the three year delay during which he
failed to surrender himself voluntarily to the Tribunal. Therefore, while the voluntary
surrender of the Accused is a factor that suggests he will appear for trial, it
is entitled to little weight in this particular case.
Governmental guarantees
- Concerning the general level of co-operation given by the Serbian Government
and the Federal Government, the Trial Chamber reiterates that this factor has relevance
in determining whether these authorities would arrest the Accused, but it is not
in itself a fact in issue and it is unnecessary to include in the Trial Chamber’s
decision a separate finding concerning that general level of co-operation.48
As regards the Prosecution assertion that those authorities have been reluctant
to acknowledge that they arrested certain indictees, claiming that they have voluntarily
surrendered, the Trial Chamber observes that this claim is only supported by a declaration
by one of its own staff members and not by any convincing evidence. The Chamber
takes note of the governmental guarantees provided by the Accused. The Serbian
Government, in its decision of 24 February 2005, undertook to observe all orders
of the Trial Chamber so that the Accused appear at any time before the Tribunal.49
The Council of Ministers of Serbia and Montenegro guarantees, inter alia,
to ensure that the Accused, if released, reports to the nearest police station,
to arrest him should he violate any of the conditions for provisional release and
to hand him over to the Dutch authorities at the time set by the Trial Chamber.
Following the rulings of the Appeals Chamber, the Chamber is obliged to determine
the reliability of these guarantees in relation to the circumstances which arise
in the present case,50 including the
position which the Accused held prior to his arrest and, as far as foreseeable,
circumstances as at the time when the case is due for trial and when he will be
expected to return.51 The Trial Chamber
notes that during the time period relevant to the events described in the Indictment
the Accused was allegedly an Assistant Commander of the Main Staff of the Bosnian
Serb Army and held no position in the Federal Government.52
In view of the fact that he retired nine years ago,53
it is unlikely that he might possess any information of such importance as to make
the Government concerned reluctant to hand him over to the Tribunal, in case of
his failure to comply with the conditions of his provisional release.54
- As regards the circumstances as of the moment of the expected return of the
Accused, if released, the Trial Chamber is not in a position to foresee whether
the political situation and anticipated level of co-operation of the Federal Government
will have changed by then, especially in view of the fact that the trial is not
likely to commence in the imminent future. Therefore, the Trial Chamber is satisfied
that personal circumstances concerning the Accused, as well as both current and
future indicators of the co-operation offered by the Federal Government, provide
sufficient guarantees that the authorities in charge will ensure the return of the
Accused to the Tribunal, if released.
Personal guarantees
- The Trial Chamber notes that the Accused has appended his personal guarantee
that, if released, he will, inter alia, remain in the confines of the Belgrade
municipality, report once a week to the local police, have no contact with any victims
or witness in his case and return to the Tribunal when ordered.55
11bis- referral motion
- Submissions were made concerning the Prosecution motion for referral of this
case under Rule 11 bis of the Rules to another country.56
The Trial Chamber notes the decision refusing this motion filed 8 July 2005, and
need not consider these submissions further.
Cooperation of the Accused
- The Accused has also declared his willingness to be interviewed by the Prosecution
if this is a condition of his provisional release.57
The Prosecution submits that the Accused has not provided any cooperation of value
to the Prosecution.58 The Trial Chamber
observes that the Prosecution has not supplied any additional information as to
whether the Accused has been invited to give an interview, but only comments that
the cooperation has not be valuable, but does not state the reasons for it not being
valuable. In view of the clear declaration given by the Accused and the early stage
of the proceedings, it is premature to assess the level of his cooperation with
the Prosecution. The Appeals Chamber has held that an accused should not be penalised
because he declines to cooperate with the Prosecution59
and that an accused person may, if he decides to do so, co-operate with the Office
of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned,
all other conditions being met, upon his giving such an interview while still in
custody. As was pointed out by the Appeals Chamber, an accused person is not, while
in the custody of the International Tribunal, at the disposal of the Prosecution.60 The Trial Chamber notes that
there is no clear indication of cooperation at this stage.
Whether the Accused, if released, pose a danger to any victim, witness
or other person
- The Accused submits that he would not pose a risk to victims, witnesses or
any other person if released, mainly due to the geographic distance between the
location of these persons and the location of his proposed provisional release.
In the Motion, it is stated that most of the victims and witnesses live today in
Sarajevo, Bosnia and Herzegovina, while the Accused lives in Belgrade, Serbia, a
city where none of the victims or witnesses live.61
In addition, the Accused states that as a pensioner in Serbia he is not in a position
to directly or indirectly influence victims or witnesses.62
None of these claims have been contested by the Prosecution. Indeed, the Prosecution
has not asserted that there would be any risk to victims, witnesses or any other
person whatsoever if the Accused were provisionally released. Therefore, the Trial
Chamber accepts the uncontested evidence of the Accused on this issue and is satisfied
that he would not pose a risk to victims, witnesses or any other person if he were
provisionally released.63
CONCLUSION
- In view of the foregoing, on balance, the Accused has not persuaded the Trial
Chamber that he will appear for trial.
DISPOSITION
- Pursuant to Rule 65 of the Rules, the Trial Chamber DENIES the Motion.
Done in English and French, the English version being authoritative.
Dated this thirteenth day of July 2005,
At The Hague
The Netherlands
_________________
Judge Carmel Agius
Presiding Judge
[Seal of the Tribunal]
1. Prosecutor
v. Stanislav Galic and Dragomir Milosevic,
Case No. IT-98-29-I, Order Vacating Non-Disclosure
Order, 2 November 2001. Stanislav Galic has already
been tried and sentenced to twenty years imprisonment
in a judgment that is pending appeal: Prosecutor
v. Stanislav Galic, Case No. IT-98-29-T,
Judgement and Opinion, 5 December 2003.
2. Prosecutor v. Stanislav Galic
and Dragomir Milosevic, Case No. IT-98-29-I, Ex
Parte and Confidential Order on Prosecution Motion,
19 March 1999.
3. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Order for Service of Indictment,
24 February 2005, p. 3.
4. Prosecutor v. Stanislav Galic, Case
No. IT-98-29-A, Decision on Defence Request for Provisional
Release of Stanislav Galic, 23 March 2005, para. 5.
5. Prosecutor v. Radoslav Brdjanin
and Momir Talic, Case No. IT-99-36-PT, Decision
on Motion by Radoslav Brdjanin for Provisional Release,
25 July 2000, para. 22.
6. Article 20 of the Statute.
7. Rule 102 of the Rules.
8. See Prosecutor v. Fatir Limaj
et al, Case No. IT-03-66-AR65, Decision on Fatmir
Limaj's Request for Provisional Release, 31 October
2003, paras 8-12; Prosecutor v. Enver Hadzihasanovic
et al, Case No. IT-01-47-PT, Decision Granting
Provisional Release to Enver Hadzihasanovic, 19 December
2001, para. 7.
9. Prosecution v. Nikola Sainovic
and Dragoljub Ojdanic, Case No. IT-99-37-AR65,
Decision on Provisional Release, 30 October 2002, para 6.
Listing the fact that the applicant is charged with
serious criminal offences and, if convicted, is likely
to face a long prison term ; the circumstances in which
he surrendered; the degree of co-operation given by
the authorities concerned; the fact that the government
gave guarantees that it would ensure the presence of
the accused for trial and guaranteed the observance
of the conditions set by the Trial Chamber upon his
provisional release; the fact that the accused held
very senior positions, so far as it is relevant to
the weight of governmental guarantees; the fact that
the Federal Government passed a Law on Co-operation
with the Tribunal; the fact that the applicant gave
a personal guarantee in which he undertook to abide
by the conditions set by the Trial Chamber should he
be released; the likelihood that, in light of the circumstances
prevailing at the time of the decision and, as far
as foreseeable, the circumstances as they may turn
out to be at the time when the accused will be expected
to return for trial, the relevant authorities will
re-arrest the accused should he decline to surrender
; and the fact that the accused provisionally accepted
to be interviewed by the Office of the Prosecutor.
See also Prosecution v. Ivan Cermak and Mladen Markac, Case
No. IT-03-73-AR65.1, Decision on Interlocutory Appeal
against Trial Chamber's Decision Denying Provisional
Release, 2 December 2004, para 25; Prosecutor v.
Franko Simatovic, Case No. IT-03-69-AR65.2, Decision
on Prosecution's Appeal Against Decision on Provisional
Release, 3 December 2004, para 15.
10. Indictment, Count 1.
11. Ibid., Count 4 (sniping)
and Count 7 (shelling).
12. Ibid., Count 2 (sniping)
and Count 5 (shelling).
13. Ibid., Count 3 (sniping)
and Count 6 (shelling).
14. Ibid., para. 8.
15. Article 1 of the Statute.
16. Prosecutor v. Franko Simatovic, Case
No. IT-03-69-AR65.2, Decision on Prosecution's Appeal
Against Decision on Provisional Release, 3 December
2004, para. 15.
17. Prosecutor v. Ivan Cermak and
Mladen Markac, Case No. IT-03-73-AR65.1, Decision
on Interlocutory Appeal Against Trial Chamber's Decision
Denying Provisional Release, 2 December 2004, para.
25, footnotes omitted.
18. Prosecutor v. Ivan Cermak and
Mladen Markac, Case No. IT-03-73-AR65.1, Decision
on Interlocutory Appeal Against Trial Chamber's Decision
Denying Provisional Release, 2 December 2004, para.
26.
19. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Defence's Motion for Provisional
Release, 26 April 2005, para. 11.
20. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Prosecution's Response to the Accused's
Motion for Provisional Release, 10 May 2005, para.
19.
21. Prosecution v. Mile Mrksic
et al, Case No. IT-95-13/1-AR65.2, Decision on
Application for Leave to Appeal, 19 April 2005, p.
5, emphasis added.
22. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Defence's Motion for Provisional
Release, 26 April 2005, paras 12-13.
23. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Prosecution's Response to the Accused's
Motion for Provisional Release, 10 May 2005, para.
16.
24. Prosecutor v. Nikola Sainovic
and Dragoljub Ojdanic, Case No. IT-99-37-AR65,
Decision on Provisional Release, 30 October 2002, para.
7 cited in Prosecutor v. Milan Milutinovic,
Case No. IT-99-37-AR65.3, Decision Refusing Milutinovic
Leave to Appeal, 3 July 2003, para. 15.
25. See Prosecutor v. Milan Milutinovic, Case
No. IT-99-37-AR65.3, Decision Refusing Milutinovic
Leave to Appeal, 3 July 2003, para. 14-15.
26. See also Prosecutor v. Zejnil
Delalic et al., Case No. IT-96-21-A, Order on the
Request by Zdravko Mucic for Provisional Release, 30
December 1999, p. 3, which holds that a judgment of
the Trial Chamber must be taken to be correct until
otherwise held by the Appeals Chamber.
27. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Prosecution's Response to the Accused's
Motion for Provisional Release, 10 May 2005, para.
17.
28. Ibid., para. 16.
29. See Prosecutor v. Dragomir
Milosevic, Case No. IT-98-29-I, Indictment, 26
March 1999, Schedules I and II.
30. The Trial Chamber has only considered
the differences between Galic and the Accused
that relate to the seriousness of the offence in this
section. The Trial Chamber is aware of other distinctions
between the two accused related to other factors relevant
to the issue of provisional release. See Prosecutor
v. Stanislav Galic, Case No. IT-98-29-A, Decision
on Defence Request for Provisional Release of Stanislav
Galic, 23 March 2005, paras 11, 18.
31. Motion, para. 9.
32. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Defence's Motion for Provisional
Release, 26 April 2005 at Attachment 1, Guarantee of
Ministers' Council of Serbia and Montenegro, p. 2 (translation),
emphasis added.
33. For example, even where the accused
has not voluntarily surrendered, this factor cannot
be counted against him if the accused was arrested
on a sealed indictment and, therefore, did not have
the opportunity to voluntarily surrender: see Prosecutor
v. Radoslav Brdjanin and Momir Talic, Case No.
IT-99-36-PT, Decision on Motion By Radoslav Brdjanin
for Provisional Release, 25 July 2000, para. 17.
34. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Transcripts of Status Conference,
22 February 2005, p. 30, lines 18-20 ?unofficial, translationg.
35. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Defence's Motion for Provisional
Release, 26 April 2005, para. 9. The Trial Chamber
notes that the Defence Motion alludes to “pressure ” being
placed on unnamed persons by the State Union of Serbia
and Montenegro to voluntarily surrender but nowhere
is it stated that this was the case with the Accused
: ibid., para. 21.
36. For example, paragraph 4 of the
Response states, in part, “The Accused's motion refers
to his ?voluntary surrender' of 3 December, 2004”.
The Trial Chamber finds that the placement of the words
? voluntary surrender' in quotation marks in the Prosecution's
Response is an attempt to belittle the claim of the
Accused that he voluntarily surrendered, without the
Prosecution explicitly rejecting the version of events
of the Accused or offering any conflicting evidence.
Later, para. 25 of the Response states “if the accused
did in fact surrender voluntarily” once again implies
that perhaps he did not.
37. Response, Annex A.
38. Response, Annex A, para. 4.
39. Motion, para. 9.
40. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29-I, Order Vacating Non-Disclosure Order,
2 November 2001, p. 2.
41. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Order for Detention on Remand, 6
December 2004, p. 2.
42. Prosecutor v. Mile Mrksic et
al, Case No. IT-95-13/1-PT, Decision on Defence
Motion for Provisional Release, 9 March 2005, paras.
10-12; see also Prosecution v. Mile Mrksic et al,
Case No. IT-95-13/1-AR65.2, Decision on Application
for Leave to Appeal, 19 April 2005, p. 3 (where the
accused was at-large for six years after the indictment
was made know to him before he surrendered). See also Prosecutor
v. Milan Milutinovic, Case No. IT-99-37-AR65.3,
Decision Refusing Milutinovic Leave to Appeal, 3 July
2003, paras 6-7.
43. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Transcripts of Status Conference,
22 February 2005, p. 30, lines 16-24 [unofficial].
44. Prosecutor v. Dragomir Milosevic, Case
No. IT-98-29/1-PT, Prosecution's Response to the Accused's
Motion for Provisional Release, 10 May 2005, para.
5.
45. Ibid., para. 26.
46. Ibid., para. 25.
47. Ibid., Annex B.
48. Cf. Prosecution v. Mile Mrksic, Case
No. IT-95-13/1-AR65, Decision on Appeal Against Refusal
to Grant Provisional Release, 8 October 2002, para. 11.
49. Annex A to the Motion.
50. See Mrksic Decision, quoted
above, para. 9.
51. See Sainovic and Ojdanic Decision,
quoted above, para. 7.
52. Indictment, paras 8 and 9;
Motion, para. 14.
53. Motion, para. 15.
54. Cf. Mrksic Decision, quoted
above, para. 9.
55. Attachment II to the Motion.
56. Response, para. 27.
57. Motion, para. 21.
58. Response, para. 29.
59. Sainovic and Ojdanic Appeals
Decision, para. 8.
60. Sainovic and Ojdanic Appeals
Decision, para. 8.
61. Motion, paras 28-29.
62. Motion, para. 30. The Trial Chamber
has also considered the position previously held by
the Accused in this respect.
63. Cf. Prosecutor v. Delic, Case
No. IT-04-83-PT, Decision on Defence Request for Provisional
Release, 6 May 2005, p. 2.
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