The Appeals Chamber will not consider the new personal guarantee submitted with this Appeal. Such a guarantee constitutes additional evidence which – as Rule 115 applies mutatis mutandis to Rule 65 appeals – an appellant may only offer through a Rule 115 motion, 62 and the Appellant here has failed to move for admission of his new guarantee pursuant to Rule 115.
(...) Similarly, nothing in Rule 65 – or in any other rule – requires a Trial Chamber to hear oral argument from an applicant before denying provisional release, 86 and indeed, no rule requires the Trial Chamber to hold a hearing before deciding that government or personal guarantees offered by the applicant merit little weight , even if the applicant has requested a hearing and seeks to supplement these guarantees with oral assurances. (...) In this assertion, the Trial Chamber indicated only that the parties filed those submissions permitted by the Rules. The assertion expresses no opinion on the merits of the arguments contained in those submissions or on the value of the guarantees submitted with them – guarantees the Trial Chamber examined and found lacking elsewhere in its decision.
Data Source: un
The Accused seeks provisional release to Belgrade in Serbia and Montenegro.18 The
Council of Ministers of Serbia and Montenegro, and the Government of the Republic of Serbia
offered guarantees in relation to the provisional release of the Accused on 25 and 26 May 2005,
respectively (“Governmental Guarantees”).19 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.
10. (...) Secondly, the Prosecution argued that the Governmental
Guarantees must be assessed in light of the Rule 11 bis proceedings. (...) Personal Guarantee
34. The Accused has signed a personal guarantee dated 20 June 2005 which is appended to the
Motion (“Personal Guarantee”) in which he undertakes and agrees to fully comply with enumerated
terms and conditions including, inter alia:
63 Motion, Annex IV. 64 The Referral Bench considered the Accused was a national of both Serbia and Montenegro and Bosnia and Herzegovina: Rule 11 bis Decision, para. 14.
Data Source: un
DECISION ON JANKOVIC’S MOTION FOR PROVISIONAL RELEASE
Counsel for the Prosecutor :
Ms Hildegard Uertz-Retzlaff
Counsel for the accused :
Mr Aleksandar Lazarevic
TRIAL CHAMBER I (“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”);
NOTING the “Defence Application for Provisional Release of the Accused Gojko Jankovic with Annexes I to III” 1 (“ Application”) filed on 30 June 2005 by the Defence for the accused Jankovic (“Defence”, “Accused”), whereby the Defence requests the Trial Chamber to enter an order for the provisional release of the Accused on the grounds that the Accused meets the conditions set forth in Rule 65(B) of the Rules of Procedure and Evidence (“ Rules”) to be granted provisional release;
NOTING the “Prosecution’s Response to the Defence Application for Provisional Release of the Accused Gojko Jankovic with Annexes I to III” filed on 8 July 2005, whereby the Prosecution opposes the Application on the grounds that the Accused has not discharged his burden pursuant to Rule 65(B) and proved that if released, he would appear for trial and not pose a danger to victims and witnesses;
NOTING that Rule 65(B) provides a two-prong test for the provisional release of the Accused: release may be ordered by a Trial Chamber 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; that the Chamber may impose such conditions on release “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”;
BEARING IN MIND the settled case-law of the Tribunal concerning Rule 65(B ), in particular the fact that applications for provisional release must be decided based on the particular facts of each case;
CONSIDERING that the Defence argues in support of the Application that:
a) there is no evidence to suggest that, if released, the Accused will not appear for trial, and the Accused gave his personal guarantees (Annex I) that he will submit himself to any terms or conditions set by the Chamber; 2
b) the Accused voluntarily surrendered to the Tribunal in March 2005; 3
c) the authorities of the Republika Srpska provided guarantees that the Accused will appear for trial (Annexes II and III); 4
d) there is no indication to show that the Accused, if released, would pose a threat to any victims or witnesses the identities and whereabouts of which the Accused is not aware; 5
e) there are various factors which play for the assumption that the Accused should be provisional released such as the fact that the Accused is a low-ranking accused, the preparation of the Defence would be facilitated by the presence of the Accused in Bosnia and Herzegovina and the trial in this case is not expected to start before many months; 6
CONSIDERING that the Prosecution opposes the Application as follows:
a) the Accused’s surrender in March 2005 to the Tribunal, namely almost nine years after an indictment against the Accused was confirmed, was not voluntary but the consequence of internal and international pressure on the authorities of the Republika Srpska to arrest war criminals at large; 7
b) the guarantee offered by the authorities of the Republika Srpska that the Accused will appear for trial and not flee do not carry sufficient weight in view of the facts that Serbia and Montenegro intends to imminently grant its citizenship to the Accused and this may increase the risk of him fleeing in Serbia and Montenegro, 8 and that should the Accused absconds once released, it is questionable that the authorities of the Republika Srpska would be in a position and willing to arrest the Accused; 9
c) the Accused’s strong opposition to the transfer of his case under Rule 11bis of the Rules is an incentive for the Accused to try to abscond; 10
d) the guarantees offered, including the personal guarantees of the Accused, do not explicitly guarantee that should the Accused’s case be transferred to national authorities (hence the Accused would not be under the Tribunal’s jurisdiction), the Accused would surrender to those authorities; 11
e) if the Accused were released, there would still exist a danger to victims and witnesses which are particularly sensitive in this case; 12
f) there can be no suggestion that the preparation of the defence is jeopardised by the pre-trial detention of the Accused, which it must be recalled is not relatively very long; 13
CONSIDERING that the Chamber is satisfied that the arguments presented by the parties sufficiently inform the Chamber on this issue and that accordingly a hearing is not necessary;
CONSIDERING that in relation to the issue of whether the Accused will appear for trial, the Chamber notes that there is no clear indication before the Chamber that the Accused’s surrender to the Tribunal was, as asserted, voluntary; that the Accused surrendered at the time of internal and international pressure on the authorities of the Republika Srpska to arrest war criminals at large;
CONSIDERING furthermore that the facts that the Accused has shown that he is capable of evading arrest for almost nine years, that there is a risk that the Accused’s flight is facilitated by a second citizenship to be imminently granted to the Accused by the authorities of Serbia and Montenegro, which have not provided guarantees for the arrest of the Accused should he abscond, could facilitate his flight and further, mean that it is more likely to be successful;
CONSIDERING furthermore that should the Accused be released and his case subsequently be transferred to national authorities, there are no express indications arising from the position of the Accused who has strongly opposed the transfer of his case to authorities in Bosnia and Herzegovina nor from the guarantees offered by the authorities of the Republika Srpska 14 that the Accused would appear before a national court to stand trial;
CONSIDERING finally that there is no clear indication that, if provisionally released, the Accused will be willing to make himself available for a trial before national authorities, if his case were to be transferred in Bosnia and Herzegovina ;
CONSIDERING that the Chamber, balancing all the relevant factors, is not satisfied that the Accused, if released, will appear for trial;
FINDING that the Accused has not discharged his burden under Rule 65(B),
PURSUANT TO Rule 65 of the Rules;
REJECTS the Application.
(...) Dated this Twenty-first Day of September 2005, At The Hague The Netherlands
__________________________ Judge Daqun Liu Presiding Judge, Trial Chamber 1
[Seal of the Tribunal]
1 - The three annexes attached are: Annex I: personal guarantee of Jankovi} dated 20 June 2005, Annex II: decision authorizing the issuance of guarantees by the authorities of Republika Srpska dated 31 March 2005, and Annex III: guarantees by the authorities of Republika Srpska dated 31 March 2005.
2 - Motion, paras 6-8.
3 - Motion, para. 9.
4 - Motion, paras 9-11.
5 - Motion, paras. 12-14.
6 - Motion, paras 16-21.
7 - Response, para. 13.
8 - Response, paras 14-16.
9 - Response, para. 18.
10 - Response, para. 17.
11 - Response, para. 19.
12 - Response, para. 22.
13 - Response, paras 23-24.
14 - The authorities submit in page 8 of Annex III that “the Government shall obey the priorities of the International Tribunal in the Hague concerning any pending or future legal proceedings in Bosnia and Herzegovina against the defendant”.
Data Source: un
TRIAL CHAMBER II ("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"),
BEING SEISED OF the " Urgent Request by the Accused Radic for Provisional Release in Lieu of Previously Filed Request for Provisional Release of 18 June 2003", filed on 13 May 2004 ("Motion") by Counsel for the Accused Miroslav Radic ("Radic");
NOTING that, in the Motion, Radic requests provisional release for a period of five days to attend a traditional memorial service in commemoration of the anniversary of his father’s death, which is scheduled to take place in Belgrade on 22 May 2004; 1
NOTING further the " Addendum to the Request of the Accused Radic for Provisional Release filed on 13 May 2004" filed by Radic on 14 May 2004 ("Addendum");
NOTING that, in the Motion and the Addendum , Radic submits the following guarantees in regard to his release:
(1) a guarantee issued by the Council of Ministers of the Republic of Serbia and Montenegro dated 2 October 2003; 2
(4) a guarantee from the government of the Republic of Serbia and Montenegro, dated 4 September 2003; 3 and
(5) a guarantee of the new government of the Republic of Serbia and Montenegro confirming the guarantees issued on 4 September 2003, dated 13 May 2004; 4
NOTING the "Prosecution’s Response to the Request and Addendum of Accused Radic for Provisional Release filed on 13 and 14 May 2004", filed by the Office of the Prosecutor ("Prosecution") on 18 May 2004 ("Response");
NOTING that, in its Response, the Prosecution opposes the Motion arguing, inter alia , the following:
(a) Radic has failed to meet the standard of Rule 64 of the Rules of Procedure and Evidence of this Tribunal ("Rules"); 5
(b) Radic has not met the burden of proof under Rule 65 of the Rules, as the guarantees provided by the government of the Republic of Serbia and Montenegro on 4 September 2003 and 13 May 2004 to the Trial Chamber are insufficient on their face. In particular, the guarantees do not specify: (a) what steps the government or the Ministry of the Interior, will undertake to ensure that Radic is under a controlled release; (b) whether the government will officially receive Radic from the Dutch authorities; (c) whether the government will provide for a "controlled visit" of Radic at all times while on the territory of the Republic of Serbia and Montenegro; and (d) whether the government will officially return Radic to the Dutch authorities; 6 and
(c) the lack of co-operation of the Republic of Serbia and Montenegro with the Tribunal; 7
NOTING the "Request by the Accused Radic for a Leave to File a Reply to the OTP’s Response to the Urgent Request by the Accused Radic for Provisional Release in Lieu of Previously Filed Request for Provisional Release of 18 June 2003", filed by Radic on 19 May 2004 ("Reply"), requesting (a) leave to file the Reply; (b) confirmation of the Motion;
NOTING that in the Reply, Radic argues, inter alia , that lack of co-operation of the bodies of the authorities of Serbia and Montenegro with the Tribunal should not be the main criterion that a Trial Chamber takes into account when deciding on a provisional release; 8
CONSIDERING that in the Motion, Radic requests the Trial Chamber to grant him provisional release pursuant to Rule 65 of the Rules;
CONSIDERING that pursuant to Rule 65(B) of the Rules, provisional release may only be granted if the Trial Chamber "is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person";
CONSIDERING that a Trial Chamber retains the discretion not to grant provisional release even if it is satisfied that the requirements laid down in Rule 65 (B) of the Rules are met; 9
CONSIDERING that, although the Prosecution raises serious concerns about the guarantees provided by the Republic of Serbia and Montenegro and the lack of cooperation with the Tribunal, the Chamber does not have to pronounce on this issue, in light of the following paragraph;
FINDING that the reason for seeking the provisional release, i.e. the attendance of a memorial service, does not in itself justify the provisional release of Radic for the five day period requested;
FOR THE FOREGOING REASONS
PURSUANT TO Rule 65 (B) of the Rules,
HEREBY DENIES THE MOTION.
Data Source: un
The reliable orchestration capability enables the reliable service platform, the reliable end-user devices and the reliable IoT gateways to guarantee correct ways of coordinating service provisioning based on the requirements of the IoT applications and predefined rules [C-3-4]. The reliable user management capability enables the reliable service platform to guarantee correct ways of creating, querying, updating and deleting IoT user profiles and of authenticating, authorizing, registering and auditing IoT users based on predefined rules [C-3-5]. (...) The reliable data processing capability enables the reliable IoT data server to guarantee trustable results of data fusion and mining based on the IoT application requirements and predefined rules [C-4-1].
Data Source: un
On 14 September 2004, Trial Chamber II (“Trial Chamber”) denied the motions of Ivan Cermak and Mladen Markac (“Accused”) for provisional release (“Impugned Decision ”). 1 The Accused now seek leave to appeal from that decision pursuant to Rule 65 of the Rules of Procedure and Evidence (“Rules”).
3. Under Rule 65(A) and (B), once detained, the accused may not be released except upon an order of a Trial Chamber. (...) Moreover , this Bench notes that the Prosecutor has joined in the Accused’s motion for leave to appeal the Trial Chamber’s decision on grounds that it appears to be in direct conflict with the Prlic rulings. 12 Therefore, this Bench finds that the Accused have established good cause such that leave to appeal may be granted under Rule 65(D) of the Rules.
Data Source: un
The system of guarantees used will require agreement with the relevant national central bank(s). Where interoperability involves more than one payment infrastructure, interoperability agreements should include rules for settlement finality. Guaranteed finality should apply to each step in the chain, i.e., where a payment flows from one payment infrastructure to another, the payment will be guaranteed in the first system before being passed to the second system. There are a variety of strategies for guaranteeing settlement. All such strategies require the remitting provider in some way guaranteeing payment to the beneficiary provider in a way that would not be affected by insolvency or provider failure.
Data Source: un
et al. , in which the Accused is indicted, has been referred under Rule 11 bis to the courts of Bosnia and Herzegovina and this aggravates the risk that he will not appear for trial; and (e) the Accused’s citizenship of the Republic of Serbia heightens the risk that he will not appear for trial,
CONSIDERING that provisional release may only be granted if the Trial Chamber is satisfied that the Accused will appear for trial, and that he will not, if released, pose a danger to any victim, witness or other person,
CONSIDERING that, in determining whether an accused will appear for trial, should he be provisionally released, a Trial Chamber must consider (1) the gravity of the charges against the accused and if he is likely to serve a long prison sentence if convicted, (2) the circumstances surrounding the accused’s surrender, (3) the degree of co-operation given by the State to which the accused seeks to be released, (4) the guarantees given by that State, and any personal guarantees offered by the accused, (5) the likelihood that, in case of breach of the conditions of provisional release, the relevant State will re-arrest the accused if he declines to surrender, and (6) the accused’s degree of co-operation with the Prosecution, 1 and that these factors have been taken into account by the Trial Chamber in its determination of the Motion,
CONSIDERING that that the Accused resisted the referral of his trial to the domestic courts of Bosnia and Herzegovina under Rule 11 bis of the Rules, but that such referral was granted by a decision of the Referral Bench, which has been appealed by the Accused and his co-accused, 2
CONSIDERING that the Accused has provided no personal assurance that he would return to The Hague following any period of temporary provisional release,
CONSIDERING that the pending appeal of the Rule 11 bis referral of this case may aggravate the risk that the Accused would not appear for trial should he be provisionally released, 3
CONSIDERING ALSO that the guarantees provided by the Republika Srpska do not sufficiently assure the Trial Chamber that the Accused would be returned to the custody of the International Tribunal, or to the relevant authorities for trial in Bosnia and Herzegovina should his case be referred back to that jurisdiction during the period of his provisional release,
PURSUANT TO Rules 54 and 65 of the Rules of Procedure and Evidence of the International Tribunal,
HEREBY DENIES the MOTION .
(...) IT-02-65-PT, Decision on Prosecutor’s Motion for Referral of Case Pursuant to Rule 11 bis , 20 July 2005; Prosecutor v. Mejakic et al , Case No. (...) IT-95-13/1-PT, Decision on Defence Motion for Provisional Release, 9 March 2005, wherein the Trial Chamber noted that a pending request for referral under Rule 11 bis may aggravate the risk that an accused would not appear for trial, if released, and denied an application for provisional release.
Data Source: un
Preventive punishments are compulsory measures that are applied towards either suspect or defendant in the course of criminal procedures in order to prevent them from inappropriate behavior or to provide for the enforcement of court ruling.
2. Preventive punishments are 1) custody 2) collateral 3) written guarantee not to leave 4) personal guarantee 5) corporate guarantee 6) submission under the control 7) submission under the control of commanders
3. (...) The preventive punishment is applied by the ruling of the court, prosecutor, inspector or
bodies of investigation. (...) Article 265 The corporate guarantee
1. The corporate guarantee is written guarantee provided by legal person in good reputation
which states that it by its reputation and monetary allocations guarantees the appropriate behavior, service of subpoena and realization of other liabilities by suspect or defendant.
Data Source: un
But the parties should be aware that, in the Bureau’s view, the provisions of Rule 46(C) of the Rules apply to proceedings before the Bureau. (...) He suggests that such consultations are required by Rule 15(B) of the Rules of Procedure and Evidence (“Rules”) and that their occurrence would be part of a record necessary for possible further appeal. 7 The Bureau finds that the plain terms of Rule 15 of the Rules indicate that such consultations are not required.
(...) Neither Rule 15 of the Rules, pursuant to which Blagojevic’s motion was filed, nor Rule 73 of the Rules supplies a basis for such appeals.
Data Source: un