Guarantees of compliance with conditions of provisional release
| Notion(s) | Filing | Case |
|---|---|---|
| Decision on Provisional Release - 17.10.2005 |
STANIŠIĆ Mićo (IT-04-79-AR65.1) |
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17. The Appeals Chamber first considers the Prosecution’s arguments with regard to the Accused’s senior position in Republika Srpska in 1992. The Appeals Chamber recalls its previous holding that “the weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position he held prior to his arrest.”[1] The rationale behind taking into consideration an accused’s prior position is that he or she may possess very valuable information on a government providing a guarantee that could be disclosed to the International Tribunal.[2] This would serve as a disincentive for a government to enforce its guarantee to arrest an accused after provisional release, if needed, to stand trial.[3] 19. The Appeals Chamber finds that the Trial Chamber erred in its conclusion that it need not weigh the Accused’s senior position prior to his transfer because there was no information before it suggesting that the Accused held a position in the Republic of Serbia, the government providing the guarantee and the country to which he was to be provisionally released. The fundamental question before the Trial Chamber is not whether the Accused held a position in the same government as that providing the guarantee.[4] Rather, it is to consider “what would occur if the relevant authority were obliged under its guarantee to arrest the accused person seeking provisional release”[5] in light of the Accused’s former position, regardless of where it was held. Thus, the Trial Chamber is simply to consider whether the evidence suggests that an accused, by virtue of a prior senior position, may have any information that would provide a disincentive for the State authority providing a guarantee on behalf of the accused to enforce that guarantee.[6] [1] Šainović & Odjanić Decision [Prosecutor v. Šainović & Odjanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002], para. 7. [2] Mrkšić Decision [Prosecutor v. Mrkšić, Case No. IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002], para. 9. [3] Ibid [Prosecutor v. Mrkšić, Case No. IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002, para. 9]. [4] The International Tribunal has, in previous cases, considered an accused’s prior senior position in assessing the weight of government guarantees regardless of whether that senior position was held in the government providing the guarantee. See, e.g., Pandurević Trial Decision [Prosecutor v. Pandurević, Case No. IT-05-86-PT, Decision on Vinko Pandurević’s Application for Provisional Release, 18 July 2005], para. 19; Pandurević Appeal Decision [Prosecutor v. Pandurević, Case No. IT-05-86-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Vinko Pandurević’s Application for Provisional Release, 3 October 2005], para. 13; Prosecutor v. Prlić et al., Case Nos. IT-04-74-AR65.1, AR 65.2, AR 65.3, Decisions on Motions for Re-Consideration, Clarification, Request for Release and Applications for Appeal, 8 September 2004, para. 41; Prosecutor v. Prlić et al., Case No. IT-04-74, Order on Provisional Release of Jadranko Prlić, Order on Provisional Release of Slobodan Praljak, Order on Provisional Release of Bruno Stojić, Order on Provisional Release of Valentin Ćorić, Order on Provisional Release of Milivoj Petković, Order on Provisional Release of Verislav Pušić, 30 July 2004. [5] Mrškić Decision, para. 9. [6] Prosecutor v. Jovica Stanišić, Case No. IT-03-69-AR65.1, Decision on Prosecution Appeal Against Decision Granting Provisional Release, filed confidentially on 3 December 2004 (“Stanišić Decision”), para. 38. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Refusal to Grant Provisional Release - 08.10.2002 |
MRKŠIĆ Mile (IT-95-13/1-AR65) |
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9. The reliability of a guarantee given by the relevant authority must be determined in relation to the circumstances which arise in the particular case. The issue in each particular case is what would occur if the relevant authority were obliged under its guarantee to arrest the accused person seeking provisional release in that case. A Trial Chamber may accept such a guarantee as reliable in relation to Accused A, whereas the same or another Trial Chamber may decline to accept that the same authority’s guarantee as reliable in relation to Accused B, without there being any inconsistency (or “double standards”) involved in those two decisions. […] […] 11. There are many factors which are relevant to a Trial Chamber’s determination of the reliability of the guarantee provided by the authority in question. Such reliability must be determined not by reference to any assessment of the level of cooperation by that authority with the Tribunal generally, but in relation to what would happen if that authority were obliged under its guarantee to arrest the particular accused in question. What would happen in the circumstances of that particular accused in question is a fact in issue to be decided when determining whether that accused will appear for trial. The general level of cooperation by the authority with the Tribunal does have some relevance in determining whether it would arrest the particular accused in question, but it is not itself a fact in issue. […] 12. The reliability of guarantees by any particular authority necessarily depends to some extent upon the vagaries of politics and of personal power alliances within the relevant authority as well as upon the impact of any international pressure (including financial pressure) upon the authority at any time, and indeed even the likelihood in the future of a change of government in any particular case. A difference in cooperation as a result of a change of government is a fact of life (even though a political one) which must be taken into account in determining whether a guarantee will be enforced by an authority in relation to the accused person in question. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 25.05.2009 |
HARADINAJ et al. (IT-04-84-A) |
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In the previous practice of the Tribunal, guarantees for an accused provisionally released in Kosovo/Kosova have usually been provided by UNMIK. In the present case, after having inquired with both UNMIK and the EULEX-Kosovo Mission, the Appeals Chamber concluded that the latter was best placed to provide the necessary guarantees of compliance with the prescribed conditions of provisional release (see para. 11). |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 08.04.2009 |
HARAQIJA & MORINA (IT-04-84-R77.4-A) |
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8. The Appeals Chamber notes that Haraqija has not submitted any State guarantees in support of his Motion and requests the Appeals Chamber to direct the Registry to enquire about the willingness and ability of the United Nations Interim Administration in Kosovo (“UNMIK”) to ensure compliance with any conditions imposed on release.[1] While the submission of State guarantees is not a pre-requisite for provisional release, it is generally advisable for an applicant seeking provisional release to submit guarantees in order to satisfy the International Tribunal that he will appear when required.[2] In the instant case, the Appeals Chamber understands that UNMIK has indicated in consultations with the Registry that it would be prepared to provide similar guarantees for Haraqija as imposed on his co-accused Bajrush Morina and to honour any directions provided by the Appeals Chamber in the event of provisional release. The Appeals Chamber accepts this as a sufficient guarantee of compliance. 14. The Appeals Chamber notes that, although at the time of his release, Haraqija would have already served the entire sentence imposed by the Trial Chamber, he still maintains the status of a convicted person pursuant to Rule 102 of the Rules. As such, he is not in the same position as a person who has finished serving his sentence after completion of criminal proceedings against him. Further, an appeal against his sentence is still pending which may result in an increase in his sentence. Given these circumstances, the Appeals Chamber finds that there is a need to have in place conditions restricting his movement so as to ensure that Haraqija will be available to surrender into detention when required to do so by the Appeals Chamber. Thus, the Appeals Chamber denies Haraqija’s requests relating to his conditions of provisional release. Instead, the Appeals Chamber considers it appropriate to impose on Haraqija the same conditions of provisional release in force during the trial.[3] [1] Motion[Motion for Release on Expiration of Sentence or, in the Alternative, Release Pending Appeal, 1 April 2009], para. 25(ii). [2] Morina Provisional Release Decision, para. 6; Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002, paras 7-8. See also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-PT, Order on Provisional Release of Berislav Pusić, 30 July 2004, para. 32. [3] Second Decision on Haraqija’s Provisional Release, pp. 6-8; Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-0484-R77.4, Decision on Astit Haraqija’s Request to Vary Condition of Provisional Release, 7 October 2008, p. 3. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 07.04.2009 |
KAREMERA et al. (ICTR-98-44-AR65) |
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12. The Appeals Chamber understands from the Impugned Decision that, in the absence of a State’s guarantees, the Trial Chamber considered that it could not be satisfied that, if released, Ngirumpatse would appear for trial. The Appeals Chamber considers that, in concluding that it was not satisfied that Ngirumpatse would not flee if released on this sole basis, the Trial Chamber regarded the production of guarantees as a prerequisite to obtaining provisional release. The Appeals Chamber finds that the Trial Chamber erred in the exercise of its discretion in doing so. 13. The Appeals Chamber has repeatedly held that Rule 65 of the Rules places no obligation upon an accused applying for provisional release to provide guarantees from a State as a prerequisite to obtaining provisional release.[1] Whilst a State’s guarantees may carry considerable weight in support of an application for provisional release, a Trial Chamber is under the obligation to consider all relevant factors which a reasonable Trial Chamber would be expected to take into account before deciding whether the requirements of Rule 65(B) of the Rules have been met.[2] It must also provide a reasoned opinion indicating its view on those relevant factors.[3] In the present case, the Trial Chamber should have primarily considered whether, even in the absence of a State’s guarantees, Ngirumpatse’s personal circumstances could satisfy the Trial Chamber that he would appear for trial if released. Although it is within a Trial Chamber’s discretion to impose the condition of production of guarantees from the potential host State to ensure the presence of the accused at trial pursuant to Rule 65(C) of the Rules,[4] it should not be the threshold consideration. This becomes most relevant where a Trial Chamber has concerns about the applicant’s personal guarantees and considers that assurances from the host State would alter the balance in favour of provisional release. [1] Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR65.4, Decision on Prosecution Appeal of Decision on Provisional Release and Motions to Present Additional Evidence Pursuant to Rule 115, 26 June 2008 (“Stanišić Decision”), para. 48; Prosecutor v. Hormisdas Nsengimana, Case No. ICTR-01-69-AR65, Decision on Application by Hormisdas Nsengimana for Leave to Appeal the Trial Chamber’s Decision on Provisional Release, 23 August 2005 (“Nsengimana Decision”), p. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-01-70-AR65D).2, Décision relative à la Demande d’autorisation d’interjeter appel (Mise en liberté provisoire), 28 April 2004, p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR65.1, Decision on Interlocutory Appeal against Trial Chamber’s Decisions Granting Provisional Release, 19 October 2005 (“Tolimir Decision”), para. 9; Prosecutor v. Ivan Čermak and Mladen Markač, Case No. IT-03-73-AR65.1, Decision on Interlocutory Appeal against Trial Chamber’s Decision Denying Provisional Release, 2 December 2004 (“Čermak Decision”), para. 30. See also Prosecutor v. Astrid Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Motion on Bajrush Morina for Provisional Release, 9 February 2009, para. 6; Prosecutor v. Vidoje Blagojević et al., Case No IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002 (“Blagojević Decision”), para. 7. [2] See, e.g., Prlić 16 December 2008 Decision [Prosecutor v. Jadranko Prlić et al., Case No IT-04-74-AR65.11, Decision on Praljak’s Appeal of the Trial Chamber’s 2 December 2008 Decision on Provisional Release, 16 December 2008], para. 7; Popović Decision [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.7, Decision on Vujadin Popović’s Interlocutory Appeal Against the Decision on Popović’s Motion for Provisional Release], 1 July 2008, paras. 8, 24; Stanišić Decision, para. 35; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.6, Reasons for Decision on Prosecution’s Urgent Appeal Against “Décision relative à la demande de mise en liberté provisoire de l’accusé Pušić” Issued on 14 April 2008, 23 April 2008 (“Prlić 23 April 2008 Decision”), para. 7; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR65.1, Decision on Ante Gotovina’s Appeal Against Denial of Provisional Release, 17 January 2008, para. 8; Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-AR65.4, Decision on Johan Tarčulovski’s Interlocutory Appeal on Provisional Release, 27 July 2007 (“Boškoski Decision”), para. 6; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying his Provisional Release, 9 March 2006, para. 10. [3] Ibid. [footnote 2]. [4] Stanišić Decision, para. 48; Nsengimana Decision, p. 3; Tolimir Decision, para. 9; Čermak Decision, para. 30. See also Blagojević Decision, para. 8 and Impugned Decision[The Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Decision on the Various Motions Relating to Matthieu Ngirumpatse’s Health, 6 February 2009], para. 15. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 30.10.2002 |
ŠAINOVIĆ & OJDANIĆ (IT-99-37-AR65) |
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7. The circumstances of each accused who applies for provisional release must be evaluated individually as they weigh upon the likelihood that he will appear for trial. The weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position which he held prior to his arrest. The Trial Chamber must assess these circumstances at the time when the decision on provisional release is being taken, but must also, as far as foreseeable, make an assessment as at the time when the case is due for trial and when the accused will be expected to return. [...] 9. [...] The position of an accused in the hierarchy and the consequence thereof upon the weight of governmental guarantees are indeed significant factors which the Trial Chamber is expected to address as they could have an important bearing upon a State’s willingness and readiness to arrest that person if he refuses to surrender himself; those factors therefore reduce the likelihood of his appearing at trial. [...] |
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| Notion(s) | Filing | Case |
| Decision on Provisional Release - 02.12.2004 |
ČERMAK & MARKAČ (IT-03-73-AR65.1) |
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30. Rule 65 of the Rules places no obligation upon an accused applying for provisional release to provide guarantees from a State, as a prerequisite to obtaining provisional release.[1] Nonetheless, the presentation of a guarantee from a governmental body has been regarded as advisable by the Appeals Chamber.[2] Rule 65(C) permits a Chamber to impose conditions upon the release of an accused “to ensure the presence of the accused for trial and the protection of others,” and frequently the production of a guarantee from the relevant governmental body is imposed as such a condition.[3] 31. In the Mrkšić case the Appeals Chamber held that the reliability of a government guarantee must be determined in relation to the circumstances which arise in the particular case.[4] A distinction can be drawn with the instant case where the Appellants have shown a general attitude of cooperation towards the International Tribunal before and after their surrender, and have already provided the Office of the Prosecutor with relevant information. 32. The Appeals Chamber notes that even though the reliability of a guarantee must not be exclusively determined by reference to any assessment of the level of cooperation by the authority providing it, the general level of cooperation by that authority with the International Tribunal does have some relevance in determining whether it would arrest the accused in question.[5] […] 33. […] The Appeals Chamber recalls that the circumstances of each accused must be evaluated individually as they weigh upon the likelihood that he will appear for trial. The weight to be attributed to guarantees by a government may depend upon the personal circumstances of the applicant.[6] [1] Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002, para. 8. [2] Prosecutor v.Vidoje Blagojević et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002, paras 7, 8; Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokić for Provisional Release, 28 May 2002, p. 2. [3] Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002, para. 8. [4] Prosecutor v. Mile Mrkšić, Case No.: IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002, para. 9. Where the Appeals Chamber reasoned that it would be reasonable for a Trial Chamber to find that in the case of an accused who occupied a high level position in the government at the time the crimes with which he was charged were committed (regardless of whether he had lost political influence), there could be a “substantial disincentive” for the government authorities to arrest that accused in light of the fact that he still possessed valuable information he could disclose to the Tribunal “if minded to cooperate should he be kept in custody.” [5] Ibid, para. 11. See also Prosecutor v. Vidoje Blagovejić et al, Case No.: IT-02-60-AR65.4, Decision on Provisional Release Application by Blagojević, 17 February 2003. [6] Šainović and Ojdanić Appeals Chamber Decision, para. 7. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 31.10.2003 |
LIMAJ et al. (IT-03-66-AR65) |
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25. 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. […] |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |