Case: IT-02-60-AR65

BEFORE A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER

Before:
Judge David Hunt, Presiding
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana

Registrar:
Mr Hans Holthuis

Decision of:
27 August 2002

PROSECUTOR

v

Vidoje BLAGOJEVIC, Dragan OBRENOVIC, Dragan JOKIC and Momir NIKOLIC 

_______________________________________________

DECISION ON APPLICATION BY BLAGOJEVIC FOR LEAVE TO APPEAL

_______________________________________________

Counsel for the Prosecutor:

Mr Peter McCloskey

Counsel for the Accused:

Mr Micheal Karnavas for Vidoje Blagojevic
Mr David Wilson & Mr Dusan Slijepcevic for Dragan Obrenovic
Mr Miodrag Stojanovic & Ms Cynthia Sinatra for Dragan Jokic
Mr Veselin Londrovic & Mr Stephan Kirsch for Momir Nikolic

 

THE APPEALS 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;

NOTING the "Application for Leave to Appeal the Trial Chamberís Decision on Vidoje Blagojevicís Application for Provisional Release & Request for Expedited Consideration" filed by Vidoje Blagojevic (the "Applicant") on 24 July 2002, and the "Addendum to Application for Leave to Appeal the Trial Chamberís Decision on Vidoje Blagojevicís Application for Provisional Release & Request for Expedited Consideration" filed by the Applicant on 9 August 2002, by which the Applicant seeks leave to appeal against the "Decision on Vidoje Blagojevicís Application for Provisional Release" issued by the Trial Chamber on 22 July 2002 ("Impugned Decision");

NOTING the "Prosecution Response to Accused Blagojevicís Application for Leave to Appeal Decision on Provisional Release" filed by the prosecution on 2 August 2002, by which the prosecution opposes the application for leave to appeal;

NOTING that a reply has not been filed by the Applicant and that the time for the filing of any reply lapsed on 6 August 20021;

NOTING that, in the "Decision on Application by Dragan Jokic for Leave to Appeal" issued by the Appeals Chamber on 18 April 2002, a Bench of the Appeals Chamber held, as part of its ratio decidendi, that a guarantee from the entity of the Republika Srpska was a matter capable of being recognised by a Trial Chamber in determining, pursuant to Rule 65 of the Rules of Procedure and Evidence ("Rules"), whether it is satisfied that the accused will appear for trial ("fact in issue")2;

NOTING FURTHER that, in the "Decision on Application by Dragan Jokic for Provisional Release" issued by the Appeals Chamber on 28 May 2002, the full Bench of the Appeals Chamber expressly endorsed this holding3;

CONSIDERING that a Trial Chamber is bound by such a ruling by the Appeals Chamber4;

CONSIDERING that, in the Impugned Decision, the Trial Chamber disagreed with these decisions of the Appeals Chamber, and held that it was not possible for this Tribunal to accept guarantees given by the government of Republika Srpska supporting the claim of the applicant that he will appear for trial5, and that it would be acting ultra vires should it base its decision upon such guarantees6;

CONSIDERING that neither the Statute of the Tribunal nor the Rules impose any requirement that an undertaking in support of an application for provisional release must be given by a sovereign state as recognised under public international law;

CONSIDERING that, having accordingly excluded the guarantees given by the government of Republika Srpska from its consideration of the fact in issue, the Trial Chamber may have erred in determining the fact in issue against the Applicant;

HEREBY GRANT leave to appeal from the Impugned Decision, and direct the parties to comply with the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal7, pars 7-9.

 

Done in English and French, the English text being authoritative.

Dated this 27th day of August 2002,
At The Hague,
The Netherlands.

______________________
Judge David Hunt
Presiding Judge

[Seal of the Tribunal]


1. Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal, 7 Mar 2002 (IT/155 Rev 1), par 6.
2. IT-02-53-AR65, par 9.
3. IT-02-53-AR65, p 2.
4. Prosecutor v Aleksovski, IT-95-14/1-A, Judgment, 24 Mar 2000, par 113.
5. Paragraphs 34, 36.
6. Paragraph 50.
7. 7 Mar 2002 (IT/155 Rev 1).