Interference with witnesses

Notion(s) Filing Case
Decision on Provisional Release - 20.01.2009 PRLIĆ et al.

The Trial Chamber granted provisional release to Jadranko Prlić during the Defence case in December 2008, despite the fact that Prlić had met with a potential witness during previous releases in breach of the conditions imposed by the Trial Chamber. Such a breach, according to the Trial Chamber, warranted a sanction, but not denial of provisional release. The Prosecution requested the Appeals Chamber to quash the decision on the basis, inter alia, “that the Trial Chamber committed a discernible error in finding that Prlić’s unauthorised meeting with Witness Neven Tomić … was coincidental and that Prlić’s previous meetings with this witness did not violate the applicable terms of provisional release”.[1]  

In granting the Prosecution’s Appeal, the Appeals Chamber first reasoned that these meetings breached the conditions of the provisional release, and accordingly had bearing on his reliability.

8. Prlić met with Tomić while on provisional release despite the clear conditions imposed by the Trial Chamber not to meet with any potential witnesses.[2] […]

10. The Appeals Chamber […] finds that, considering the circumstances, including the positions of the two individuals during the indictment period[3] and their long-time acquaintance,[4] no reasonable trier of fact could have concluded that Prlić, even before [the submission of the list of witnesses by the Defence], was not aware that Tomić would be at least a potential witness […] The breach of the order puts into doubt the reliability of Prlić in abiding by the conditions of provisional release.

The Appeals Chamber further considered that the Trial Chamber is expected to take into account the influencing of witnesses under the criteria identified by Rule 65(B):

11. […] [T]he possibility that potential witnesses are unduly influenced in such circumstances […] is one of those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision under Rule 65(B) of the Rules.

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.13, Reasons for Decision on Prosecution’s Appeal of the Trial Chamber’s 10 December 2008 decision on Prlić Provisional Release during Winter Recess and Corrigendum, 20 January 2009 (“Provisional Release Reasons”), para. 3, referring to Prosecution’s Appeal of the Trial Chamber’s 10 December 2008 Decision to Provisionally Release Accused Prlić During the Winter Recess 2008-2009, filed confidentially on 11 December 2008 (“Appeal”), paras 2(b), 29-39.

[2] Appeal, paras 29-33; Response [Jadranko Prlić’s Response to Prosecution’s Appeal of the Trial Chamber’s 10 December 2008 Decision to Provisionally Release Accused Prlić During the Winter Recess 2008-2009, confidentially filed on 15 December 2008], para. 8.

[3] Compare the testimony of Tomić (for example, T. 34082-34087, 34093-34098) with Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-I, Amended Indictment, 16 November 2005, paras 2-3 and 15.

[4] Appeal, para. 35 and Response, para. 9.

Download full document
ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Provisional Release - 25.05.2009 HARADINAJ et al.

13. In assessing whether the appellant will pose a danger to any victim, witness or other person if released, the Appeals Chamber acknowledges that the Trial Chamber described in the Trial Judgement the particular circumstances of this case, including that “[t]he difficulty in obtaining evidence was a prominent feature of this trial and a few witnesses who were expected to give evidence on central aspects of the case were never heard”.[1] It further considers that, in its appeal, the Prosecution requests a retrial for Brahimaj and his two co-accused, and seeks to adduce the evidence of certain witnesses.[2] The Appeals Chamber also notes that the Prosecution opposes Brahimaj’s provisional release because the “potential risk” of witness intimidation[3] “remains a continuing concern in light of the relief being sought”.[4] 

14. Nonetheless, the Appeals Chamber considers that a number of circumstances tip the balance in favour of meeting the second requirement of Rule 65(I) of the Rules. First, the Appeals Chamber notes that, while a retrial could be ordered as a result of the Prosecution appeal, it is also the case that Brahimaj could be acquitted or his sentence could be decreased as a result of his appeal.[5] The Appeals Chamber considers that it is not likely that Brahimaj will pose a danger to potential witnesses at this stage of proceedings as the outcome of the case is unforeseeable and a retrial is only one of the possible outcomes. Second, the Appeals Chamber notes that Brahimaj points out that each of the potential Prosecution witnesses lives outside Kosovo (where he seeks permission to be provisionally released),[6] and that the Prosecution does not challenge this allegation.[7] Third, the Appeals Chamber considers that an assessment of danger posed to victims, witnesses or others cannot be made in the abstract and that there is no substantiated indication from the Prosecution that Brahimaj will seek to intimidate witnesses.[8] The Appeals Chamber is further satisfied that Brahimaj’s past period of provisional release was without incident.[9] In view of these factors, the Appeals Chamber finds that Brahimaj, if provisionally released, would not endanger victims, witnesses or other persons, as required by Rule 65(I)(ii) of the Rules.

[1] Trial Judgement [Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, Judgement, 3 April 2008], para. 28l; see also paras 22-27.

[2] See Prosecution Appeal Brief [16 July 2008 (confidential)(“Prosecution Appeal Brief”)], “Ground I: Breach of Prosecution’s Fair Trial Right under Article 20(1) of the Statute”, para. 43; see also paras 3-42.

[3] Response [Prosecution’s Response to Lahi Brahimaj’s Application for Provisional Release, 25 March 2009], para. 2.

[4] Response, para. 5.

[5] See Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Dario Kordić’s Request for Provisional Release, 19 April 2004, para. 8.

[6] Application, para. 11; see also Prosecution Appeal Brief, 16 July 2008, para. 14.

[7] In its Response, the Prosecution makes no express response to the claim in the Application that neither of its potential witnesses resides in Kosovo.

[8] See Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on the Motion of Veselin Šljivančanin for Provisional Release, 11 December 2007 (“Šljivančanin Decision”), p. 2.

[9] Trial Judgement, p. 284, para. 16. 

Download full document
ICTR Rule Rule 65 ICTY Rule Rule 65