Case: IT-02-60-AR65 & IT-02-60-AR65.2
IN THE APPEALS CHAMBER
Judge Mohamed Shahabuddeen, Presiding
Judge David Hunt
Judge Mehmet Güney
Judge Fausto Pocar
Judge Theodor Meron
Mr Hans Holthuis
3 October 2002
Vidoje BLAGOJEVIC, Dragan OBRENOVIC, Dragan JOKIC, Momir NIKOLIC
DECISION ON PROVISIONAL RELEASE OF VIDOJE BLAGOJEVIC AND DRAGAN OBRENOVIC
Counsel for the Prosecutor
Mr Peter McCloskey
Counsel for the Accused
Mr Michael Karnavas, for Vidoje Blagojevic
Mr David Eugene Wilson, for Dragan Obrenovic
- Pursuant to leave granted by a Bench of the Appeals Chamber1, co-accused
Dragan Obrenovic ("Obrenovic") and Vidoje Blagojevic ("Blagojevic")
appealed against Trial Chamber IIís "Decision on Dragan Obrenovicís
Application for Provisional Release" and "Decision on Vidoje Blagojevicís
Application for Provisional Release" ("Impugned Decisions"),
both rendered on 22 July 2002, whereby the Trial Chamber denied provisional
release to both co-accused2. On 6 September 2002, after leave to file a consolidated
response had been granted by the Appeals Chamber3, the Prosecution filed its
"Prosecution Consolidated Response to Obrenovic and Blagojevic Appeals
regarding Provisional Release" ("Prosecutionís Response").
On 9 and 10 September 2002 respectively, Blagojevic and Obrenovic filed
their replies to the Prosecutionís Response4.
- In his appeal, Obrenovic submits that the Trial Chamber erred in concluding that the guarantees or undertakings provided by the Republika Srpska on his behalf were inadmissible and should not be considered in determining whether he would appear for trial. Obrenovic says that, despite its ambiguous language, the Trial Chamberís decision in fact relied heavily upon the perceived inadmissibility of those guarantees. He further points out that, by refusing to take them into account, the Trial Chamber explicitly rejected a controlling precedent Ė the Jokic Appeals Chamber decision5 Ė which it was bound to obey. Such guarantees, he says, are in any case not a prerequisite for provisional release and the Trial Chamberís decision in fact discriminates between different accused depending on the authorities which are willing to provide guarantees for them. Obrenovic concludes on that point by saying that it is not the Tribunalís function, however desirable it may be, to bolster and stabilize the governmental machinery of Bosnia and Herzegovina. In addition, Obrenovic claims that the Trial Chamber erred when concluding that, despite the absence of any evidence to that effect, he was a flight risk solely because of the serious nature of the offences with which he is charged. He submits that the Trial Chamber merely accepted the Prosecution unsupported submissions that, if convicted, he could be sentenced to life, thereby establishing a principle of mandatory detention on remand. Instead, the Trial Chamber should have performed a case by case assessment. He submits that, as a result, the Trial Chamber erred, the decision should be overturned and he should be provisionally released.
- In his appeal, Blagojevic essentially raises the same grounds of appeal. He first submits that the Trial Chamber erred by concluding that he was a flight risk and by relying solely on the Prosecutionís assessment that this was the case because of the seriousness of the charges against him and because of the sentence which he would face if convicted. Blagojevic further points out that the position of the Prosecution in this case is inconsistent with that taken in other cases, in particular that of co-accused Dragan Jokic. In tune with Obrenovicís arguments on that point, Blagojevic submits that the Trial Chamber erred in finding that the Tribunal could not accept guarantees from the government of the Republika Srpska.
- In its Consolidated Response, the Prosecution submits that, because of the seriousness of the charges against them and the sentences which could be imposed if they are convicted, neither accused should be released as they present a substantial flight risk. This risk is heightened in the case of Obrenovic, the Prosecution says, because he may flee to Serbia where his former commander and fugitive, Vinko Pandurevic, and his brother now reside. The Prosecution further states that Obrenovic may be inclined to exert improper influence over key witnesses, as he has allegedly already been trying to exert pressure on prospective witnesses into supporting an apparently untruthful alibi.
- Blagojevic replied that the Prosecutionís argument that he represents a flight risk is improper as there is no evidence before the Trial Chamber supporting this conclusion and that the denial of provisional release therefore violated his right to be presumed innocent. He also contends that the Prosecutionís suggestion that his whereabouts were only discovered shortly prior to his arrest is misleading and irreconcilable with the Trial Chamberís finding that it would draw no adverse inference from the fact that he failed to surrender voluntarily. Finally, he points out that the Prosecution failed to refute the proposition that the Republika Srpska is able and willing to carry out the terms and conditions of his guarantees. In his Reply, Obrenovic states that the record before the Appeals Chamber does not support the argument that he may be inclined to exert undue pressure on key witnesses or that he is otherwise a flight risk.
- In accordance with the Aleksovski Judgement of the Appeals Chamber6, the Trial Chamber was bound to accept and to apply the decision of the Appeals Chamber in Jokic which provides that, as a matter of law and for the purpose of the International Tribunal, an undertaking by Republika Srpska qualifies for acceptance, whether or not it is a sovereign state as defined under public international law7. The Appeals Chamber hereby reiterates that there is nothing in either the Tribunalís Statute or the Rules of Procedure and Evidence which limits the identity of the body giving an undertaking to a state as recognised by public international law, and therefore sees no cogent reason to depart from its previous jurisprudence8.
- It was open to the Trial Chamber to assess whether the undertakings by the Republika Srpska constitute, in the cases under consideration, significant assurances that the accused will appear for trial. But an a priori exclusion of such undertakings on the basis that they emanate from an entity not recognised as a state by public international law amounts to an error of law. The Appeals Chamber is aware that the Trial Chamber might well have come to the same conclusion that the applicants would not appear for trial even if it had taken these guarantees into consideration. However, in view of the uncertainty as to whether it would have made a difference, the Appeals Chamber must come to the conclusion that this error of law invalidated the Trial Chamberís decision. The Impugned Decision is therefore quashed.
- The matter is returned to the Trial Chamber for reconsideration. The Trial Chamber is directed to take into account the guarantees of the Republika Srpska when determining whether the accused would appear for trial if provisionally released.
Done in French and English, the English text being authoritative.
Dated 3 October 2002,
At The Hague,
Judge Shahabuddeen appends a Declaration to this decision.
Judge Hunt appends a Separate Opinion to this decision.
[Seal of the Tribunal]
1 - Decision on Application by Blagojevic for
Leave to Appeal, 27 August 2002 and Decision on Application by Obrenovic for Leave
to Appeal, 27 August 2002 ("Leave Decisions").
2 - Appeal of the Trial Chamber's Decision on Dragan Obrenovic's
Application for Provisional Release ("Obrenovic Appellant's Brief"),
30 August 2002; Appeal from Trial Chamber's Impugned Decision on Vidoje Blagojevic's
Application for Provisional Release ("Blagojevic Appellant's Brief"),
2 September 2002.
3 - Decision on Prosecution's Request for Leave to File Consolidated
Response, 6 September 2002.
4 - Accused Blagojevic's Reply to Prosecution's Consolidated Response
to Obrenovic and Blagojevic Appeals Regarding Provisional Release, 9 September
2002; Accused Obrenovic's Reply Brief to Prosecution Consolidated Response to
Obrenovic and Blagojevic Appeals Regarding Provisional Release, 10 September 2002.
5 - Prosecutor v Jokic, IT-02-53-AR65, Decision on Application
by Dragan Jokic for Leave to Appeal, 18 April 2002, par 9.
6 - Prosecutor v. Aleksovski, IT-95-14/1-A, Judgment, 24
March 2000, par 113.
7 - See Prosecutor v Jokic, IT-02-53-AR65, Decision on
Application by Dragan Jokic for Provisional Release, 28 May 2002 and Prosecutor
v Jokic, IT-02-53-AR65, Decision on Application by Dragan Jokic for Leave
to Appeal, 18 April 2002, pars 7-8.
8 - Ibid. See also Leave Decisions.