Top Serbian Security Service Officials Granted Pretrial Release
Top Serbian Security Service Officials Granted Pretrial Release
A Trial Chamber of the ICTY ordered the provisional release of the former head of the Serbian State Security Service and his second in command until their trial on five counts of crimes against humanity and war crimes, including persecutions, murders, deportation and inhumane acts. In doing so, the Court found Jovica Stanisic and Franko Simatovic, aka “Frenki”, posed no danger to victims or witnesses and could be relied upon to return for trial or, in the alternative, the Government of Serbia and Montenegro (SCG) could be relied upon to arrest and return them to the Tribunal. To those familiar with the role of the Serbian State Security Service in the 1990’s and SCG’s more recent lack of cooperation with the Tribunal, the decision appears divorced from reality.
To determine whether an accused will return for trial, a court must consider the degree of his cooperation with the Tribunal, whether he voluntarily surrendered, his personal guarantee, the seriousness of the crimes with which he has been charged and government guarantees to assure his return. Giving little weight to the seriousness of the crimes charged against them, the Court relied on their personal guarantees and the voluntariness of their surrender (though they were being held by Serbian authorities at the time). In addition, the Court found they had cooperated with the Tribunal despite the fact the prosecution reported that neither had been forthright or candid in interviews, while providing little evidence of value. Without addressing their lack of candor, the Court concluded that their cooperation with the Tribunal is not disproved because the information they gave lacks value.
According weight to the SCG Government’s guarantee is also puzzling given the Tribunal President’s May 4, 2004 letter to the UN Security Council reporting that SCG has failed in its duty of cooperation, a position he reiterated on June 29, 2004, specifically pointing out that the Government 'appears to have taken little or no action with regard to four high-ranking fugitives' who have been at large for 6 months. While the Court seemed impressed by the fact that the Government turned Simatovic and Stanisic over to the Tribunal in the first place (a turnover which the court found voluntary on the part of the accused), it made no distinction between the circumstances as they existed at that time shortly after Prime Minister Zoran Djindjic’s assassination when thousands of people, including Stanisic and Simatovic, were rounded up and detained, and circumstances that obtained last week when Goran Hadzic disappeared shortly after the ICTY served its indictment of him on the SCG Government. After Hadzic's 'escape,' the Prosecutor called a press conference to express her outrage, threatening to report SCG to the Security Council once again for its noncooperation.
Despite the fact that the Accused were the most powerful men in the Serbian State Security Service (SDB), the Court also found there was no indication that either had information that might disincline the Government of SCG to assure their arrest and transfer should that be necessary. The SDB's job was to gather and use information on anyone who might be considered a threat to the then-existing regime, headed by Slobodan Milosevic. It would be naïve in the extreme to assume Stanisic and Simatovic have no more access to files and the clandestine network that permeated Serbian society for nearly a decade. Again without reference to recent evidence of noncooperation, the court relied on the fact that the Government had turned the two men over once, so could be counted on to do so again. If it is so, it is unclear whySCG has not handed over the generals or any of the more than a dozen indictees who are claimed to be in Serbia or Montenegro.
To grant provisional release, the Court also had to find that the accused would not be a danger to victims or potential witnesses. It did so with little trouble. In Simatovic’s case, the Court’s conclusion is particularly troubling. At the time he was transferred to the Tribunal, he was being held following the assassination of Zoran Djindjic by Serbian authorities “on suspicion that he is endangering the security of other citizens and the security of the Republic.” More significantly, the Prosecution reminded two of the judges who also sit on the Milosevic case (Patrick Robinson and O-Gon Kwon) of Simatovic’s involvement with a witness during that trial.
Dragan Vasiljkovic, aka “Captain Dragan”, admitted under questioning by the Prosecutor, that he had talked with Simatovic between his first and second days of testimony. Judges Robinson and Kwon apparently believed Captain Dragan when he testified they did not discuss his testimony, despite the fact that his testimony changed dramatically from one day to the next to the extent that on the second day he categorically denied the truth of much of his testimony from the prior day. [See CIJ Reports: 'Captain Dragan Implicates Serbia in Croatian War,' February 19, 2003; 'The Trouble With Insiders III: Captain Dragan,' February 20, 2003; 'Attempts to Undermine Milosevic Trial Fail,' February 21, 2003] While there is no proof that Simatovic attempted to subvert the Milosevic trial, at least a reasonable suspicion was raised. In nevertheless granting provisional release, the Court curiously held, “There is nothing in the evidence to suggest that the Accused [Simatovic] interfered or would interfere with the administration of justice.”
To reach its conclusion, the Court was either naïve or woefully ignorant of the role state security services played in former communist states. Again, two of the judges have heard substantial evidence of Serbian State Security Service efforts to subvert the legal order in the former Yugoslavia in the Milosevic case. While they haven't made a decision on the credibility of that evidence and it is in a different proceeding, it should at least have raised a reasonable suspicion. The public record does not disclose whether the prosecution provided the Trial Chamber with evidence of SDB activity and the Accused's role, since the hearings on the Accused's motion for provisional release were held in closed session.
Stanisic also asked for provisional release for health reasons, claiming he would either die or be unable to participate effectively in trial if he were not treated in Belgrade. The Court found against the Accused, relying in part on a defence witness who 'stated unequivocally that 'treatment can be done with appropriate medical facilities available in The Hague and Amsterdam better.''
The ICTY liberalized its rule on provisional release in 1999 by removing the requirement that 'exceptional circumstances' have to be shown before it will be granted to an accused while awaiting trial. This follows the more progressive view in domestic courts where pretrial detention is reserved for the most serious cases, such as murder and treason, or where there is a danger of flight or to potential witnesses. The ICTY, however, is an exceptional court, established for the sole purpose of trying the gravest crimes committed, most often against massive numbers of people. In such a situation, the preference for pretrial release should generally be overcome by the seriousness of the crimes. The ICTY's 1999 rule amendment flies in the face of that reality. This fact may have informed many of the decisions denying pretrial release to the vast majority of accused, even after the rule was liberalized. Presently, only four of the twenty-nine accused awaiting trial have been provisionally released.
The decision to release the two top members of Serbia's Security Service stands against this trend. Instead, it appears to reflect the views of certain judges, notably Judge O-Gon Kwon and Judge Patrick Robinson (joined here by Judge Bert Swart) who also granted provisional release to Dragoljub Ojdanic and Nikola Sainovic, a decision later overturned by the Appeals Chamber, which found they posed a flight risk by virtue of their superior positions. Unfortunately, the Appeals Chamber's decision provided little guidance for subsequent trial courts grappling with the issue of pretrial release.
The Stanisic & Simatovic Trial Chamber granted the Prosecution's motion to stay (hold) implementation of the provisional release order pending the Prosecution's appeal. It provides an opportunity for the Appeals Chamber to revisit and deal with the issue more concretely. Specifically, it should address whether in fact there is a preference for pretrial release in ICTY rules and, if there is, whether it is appropriate in light of the seriousness of the crimes that fall within ICTY jurisdiction.
-------------------------------
See CIJ Other Reports on Pretrial Release: 'Court Orders Pretrial Release of Top Serbs,' June 27, 2002; 'Appeals Panel Grapples with Pretrial Release,' November 7, 2002.
To determine whether an accused will return for trial, a court must consider the degree of his cooperation with the Tribunal, whether he voluntarily surrendered, his personal guarantee, the seriousness of the crimes with which he has been charged and government guarantees to assure his return. Giving little weight to the seriousness of the crimes charged against them, the Court relied on their personal guarantees and the voluntariness of their surrender (though they were being held by Serbian authorities at the time). In addition, the Court found they had cooperated with the Tribunal despite the fact the prosecution reported that neither had been forthright or candid in interviews, while providing little evidence of value. Without addressing their lack of candor, the Court concluded that their cooperation with the Tribunal is not disproved because the information they gave lacks value.
According weight to the SCG Government’s guarantee is also puzzling given the Tribunal President’s May 4, 2004 letter to the UN Security Council reporting that SCG has failed in its duty of cooperation, a position he reiterated on June 29, 2004, specifically pointing out that the Government 'appears to have taken little or no action with regard to four high-ranking fugitives' who have been at large for 6 months. While the Court seemed impressed by the fact that the Government turned Simatovic and Stanisic over to the Tribunal in the first place (a turnover which the court found voluntary on the part of the accused), it made no distinction between the circumstances as they existed at that time shortly after Prime Minister Zoran Djindjic’s assassination when thousands of people, including Stanisic and Simatovic, were rounded up and detained, and circumstances that obtained last week when Goran Hadzic disappeared shortly after the ICTY served its indictment of him on the SCG Government. After Hadzic's 'escape,' the Prosecutor called a press conference to express her outrage, threatening to report SCG to the Security Council once again for its noncooperation.
Despite the fact that the Accused were the most powerful men in the Serbian State Security Service (SDB), the Court also found there was no indication that either had information that might disincline the Government of SCG to assure their arrest and transfer should that be necessary. The SDB's job was to gather and use information on anyone who might be considered a threat to the then-existing regime, headed by Slobodan Milosevic. It would be naïve in the extreme to assume Stanisic and Simatovic have no more access to files and the clandestine network that permeated Serbian society for nearly a decade. Again without reference to recent evidence of noncooperation, the court relied on the fact that the Government had turned the two men over once, so could be counted on to do so again. If it is so, it is unclear whySCG has not handed over the generals or any of the more than a dozen indictees who are claimed to be in Serbia or Montenegro.
To grant provisional release, the Court also had to find that the accused would not be a danger to victims or potential witnesses. It did so with little trouble. In Simatovic’s case, the Court’s conclusion is particularly troubling. At the time he was transferred to the Tribunal, he was being held following the assassination of Zoran Djindjic by Serbian authorities “on suspicion that he is endangering the security of other citizens and the security of the Republic.” More significantly, the Prosecution reminded two of the judges who also sit on the Milosevic case (Patrick Robinson and O-Gon Kwon) of Simatovic’s involvement with a witness during that trial.
Dragan Vasiljkovic, aka “Captain Dragan”, admitted under questioning by the Prosecutor, that he had talked with Simatovic between his first and second days of testimony. Judges Robinson and Kwon apparently believed Captain Dragan when he testified they did not discuss his testimony, despite the fact that his testimony changed dramatically from one day to the next to the extent that on the second day he categorically denied the truth of much of his testimony from the prior day. [See CIJ Reports: 'Captain Dragan Implicates Serbia in Croatian War,' February 19, 2003; 'The Trouble With Insiders III: Captain Dragan,' February 20, 2003; 'Attempts to Undermine Milosevic Trial Fail,' February 21, 2003] While there is no proof that Simatovic attempted to subvert the Milosevic trial, at least a reasonable suspicion was raised. In nevertheless granting provisional release, the Court curiously held, “There is nothing in the evidence to suggest that the Accused [Simatovic] interfered or would interfere with the administration of justice.”
To reach its conclusion, the Court was either naïve or woefully ignorant of the role state security services played in former communist states. Again, two of the judges have heard substantial evidence of Serbian State Security Service efforts to subvert the legal order in the former Yugoslavia in the Milosevic case. While they haven't made a decision on the credibility of that evidence and it is in a different proceeding, it should at least have raised a reasonable suspicion. The public record does not disclose whether the prosecution provided the Trial Chamber with evidence of SDB activity and the Accused's role, since the hearings on the Accused's motion for provisional release were held in closed session.
Stanisic also asked for provisional release for health reasons, claiming he would either die or be unable to participate effectively in trial if he were not treated in Belgrade. The Court found against the Accused, relying in part on a defence witness who 'stated unequivocally that 'treatment can be done with appropriate medical facilities available in The Hague and Amsterdam better.''
The ICTY liberalized its rule on provisional release in 1999 by removing the requirement that 'exceptional circumstances' have to be shown before it will be granted to an accused while awaiting trial. This follows the more progressive view in domestic courts where pretrial detention is reserved for the most serious cases, such as murder and treason, or where there is a danger of flight or to potential witnesses. The ICTY, however, is an exceptional court, established for the sole purpose of trying the gravest crimes committed, most often against massive numbers of people. In such a situation, the preference for pretrial release should generally be overcome by the seriousness of the crimes. The ICTY's 1999 rule amendment flies in the face of that reality. This fact may have informed many of the decisions denying pretrial release to the vast majority of accused, even after the rule was liberalized. Presently, only four of the twenty-nine accused awaiting trial have been provisionally released.
The decision to release the two top members of Serbia's Security Service stands against this trend. Instead, it appears to reflect the views of certain judges, notably Judge O-Gon Kwon and Judge Patrick Robinson (joined here by Judge Bert Swart) who also granted provisional release to Dragoljub Ojdanic and Nikola Sainovic, a decision later overturned by the Appeals Chamber, which found they posed a flight risk by virtue of their superior positions. Unfortunately, the Appeals Chamber's decision provided little guidance for subsequent trial courts grappling with the issue of pretrial release.
The Stanisic & Simatovic Trial Chamber granted the Prosecution's motion to stay (hold) implementation of the provisional release order pending the Prosecution's appeal. It provides an opportunity for the Appeals Chamber to revisit and deal with the issue more concretely. Specifically, it should address whether in fact there is a preference for pretrial release in ICTY rules and, if there is, whether it is appropriate in light of the seriousness of the crimes that fall within ICTY jurisdiction.
-------------------------------
See CIJ Other Reports on Pretrial Release: 'Court Orders Pretrial Release of Top Serbs,' June 27, 2002; 'Appeals Panel Grapples with Pretrial Release,' November 7, 2002.
