Prosecutor v. Stanišić and Simatović (Decision on Urgent Stanišić Defence Motion For Provisional Release)

The accused Jovica Stanišić was standing trial and sought provisional release during the summer recess to be with his family. However, he had an unpredictable health condition with a constant risk of deterioration.  He suffered from two periods of kidney stone difficulties, with one of the medications causing a severe allergic reaction and increasing symptoms of colitis. Stanišić missed part of the court proceedings due to his health condition. Stanišić stated that his health had improved and was stable and that it no longer prevented him from attending court proceedings. He also waived his right to be present for the proceedings. Serbia provided a guarantee to provide medical services. The Prosecution requested that the Motion be denied as he would not receive the same medical care back home or that Stanišić be required to return long before the continuation of proceedings. If his status had deteriorated, the appropriate response would not have been a waiver of his right to attend the trial, but a delay in proceedings until his status improved.

The Chamber denied the motion for provisional release because Stanišić’s medical condition continued to pose an unpredictable risk because of the recent kidney stone problems and colitis.

The Chamber’s duty when reviewing a request for provisional release is to avoid unnecessary interruptions in the trial proceedings. If Stanišić’s health deteriorated outside of the UNDU, it could have disrupted the trial. Furthermore, even with comparable treatment in Belgrade, a sudden deterioration of Stanišić’s health may have affected his return to The Hague. Although Stanišić waived his right to be present at the trial, a serious deterioration in health outside of The Hague could prevent him from being at the trial for a long period, where he would have limited ability to participate in the proceedings and his waiver would be legally unsatisfactory.  Finally, the Chamber noted that some of the family problems of Stanišić can be resolved through facet-to-face meetings in The Hague.

The Chamber also held that there was no reason to think Stanišić would not return to trial, especially after noting Serbia’s guarantees. But these were not enough to grant the motion. The Chamber also held that Stanišić was not a risk to others.

“In examining whether provisional release is appropriate in this case, the Chamber remains mindful of its obligation to avoid unnecessary interruptions in the trial proceedings.” (¶ 8)

“The Chamber appreciates that in waiving his right to be tried in his presence, of Article 21 (4)(d) of the Statute of the Tribunal, the Accused expresses his cooperative attitude towards the continuation of the trial. A free and unequivocal waiver of the right to be present at trial, done with full knowledge, need not, depending on the circumstances, violate the Accused's right to be present at trial. However, a significant deterioration in the Accused's condition during provisional release could prevent his return to The Hague for an extended period of time. The Chamber considers that the Accused's anticipatory waiver would be a legally unsatisfactory resolution of the present situation, in which the Accused is objectively at risk of being unable to attend trial for a significant period of time. The Chamber further notes in this respect that during such period the Accused would be in Belgrade, where he may have only a limited ability to effectively participate in the proceedings or instruct counsel. In the longer term, the genuinely voluntary nature of such a waiver, induced by a continuing medical condition of the Accused, could be called into question.” ( ¶ 9).