Case No.: IT-02-57-AR65.1

Before:
Judge Theodor Meron, Presiding
Judge Mohamed Shahabuddeen
Judge Florence Mumba
Judge Andrésia Vaz
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
28 October 2005

Office of the Prosecutor

Mr. Peter McCloskey

Counsel for the Appellant:

Mr. Zoran Zivanovic

On 22 July 2005, Trial Chamber III (“the Trial Chamber”) of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 (“the Tribunal”) denied Vujadin Popovic’s application for provisional release on the grounds that the Chamber was not satisfied Popovic would appear for trial.¹ Popovic (“the Appellant”) filed a timely application for leave to appeal the Trial Chamber’s decision,² and the Prosecution filed a response opposing the application for leave to appeal.³ Following a subsequent amendment to the Rules of Procedure and Evidence, which granted leave as of right to appeal Trial Chamber decisions on applications for provisional release,⁴ the President of the Tribunal assigned a bench of the Appeals Chamber to hear the instant Appeal.⁵

The Appeals Chamber will reverse a Trial Chamber’s denial of provisional release only if the Trial Chamber committed a specific error invalidating the decision or weighed relevant considerations in an unreasonable manner.⁶ In this case, while the Appellant alleges that the Trial Chamber committed numerous errors in the course of determining that it was not satisfied he would appear for trial, the Appeals Chamber sees none that would invalidate the Trial Chamber’s decision. In the Appeals Chamber’s view, moreover, the Trial Chamber reasonably considered the factors on which it based its decision. The Appeals Chamber therefore defers to the Trial Chamber’s consideration of those factors and dismisses the appeal.⁷

A Trial Chamber may grant provisional release only “if it is satisfied that the accused will appear for trial.”⁸ In deciding whether the accused will appear, the Trial Chamber must consider “all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before reaching a decision.”⁹ Here, in concluding that the Appellant had not satisfied it that he would appear for trial, the Trial Chamber considered the fact that the Appellant remained at large for over two years after his indictment was made public.¹⁰ The Trial Chamber also considered the fact that in its view, the Appellant’s explanation for why he remained at large proves conclusory: the Trial Chamber noted that the Appellant had claimed he needed to obtain “guarantees for his security and that of his family” before surrendering,¹¹ yet had explained neither “why [he] needed such guarantees” nor why “he had difficulty obtaining them.”¹² Moreover, after noting both the Prosecution’s allegation – supported by an investigator’s declaration – that the Appellant had sought refuge in the Russian Federation¹³ and the Appellant’s assertion that the information in the investigator’s declaration is “completely doubtful,”¹⁴ the Trial Chamber “consider[ed]... that the [Appellant] does not explain why [he] asserts that [the investigator’s] information is ‘completely doubtful’, and [he] gives no other information as to [his] whereabouts prior to his transfer to the International Tribunal.”¹⁵ The Trial Chamber noted, in addition, that the Appellant presented guarantees of his return offered by the Government of the Republic of Serbia and the Council of Ministers of Serbia and Montenegro.¹⁶ Though the Trial Chamber never explicitly stated the amount of weight it was placing on these guarantees, it noted that it was “not satisfied that [the Appellant] would not... thwart the efforts of the authorities of the Republic of Serbia and Serbia and Montenegro to implement their guarantee.”¹⁷

Challenging the Trial Chamber’s decision, the Appellant asserts, first, that his “whereabouts... before his surrender [are] not relevant” to the question of whether he will appear for trial.¹⁸ Second, he asserts that the Trial Chamber’s decision is inconsistent with other cases where provisional release was granted though the applicant had been at large for longer than the Appellant.¹⁹ Third, he notes that the Trial Chamber made no explicit finding about whether he entered into custody due to voluntary surrender or apprehension by government authorities and argues that the Trial Chamber erred by failing to do so.²⁰ Fourth, he alleges that the Trial Chamber erroneously held him responsible for failing to rebut conclusory allegations in the investigator’s declaration.²¹ Fifth, he alleges that in light of the fact that the Government of the Republic of Serbia and the Council of Ministers of Serbia and Montenegro guaranteed that authorities would re-arrest him if necessary, the Trial Chamber erred in placing reliance on his previous failure to surrender.²² The Appellant elaborates that the Trial Chamber “had to rely on the legal and factual power of a State... to ensure [the] appearance of the accused for trial even against the will of the accused if necessary,”²³ adding that the Governments guaranteeing his release have never failed to fulfil their guarantees in the past.²⁴ According to the Appellant, moreover, “Chambers of the Tribunal have,” in the past, “given credibility to... Guarantees with [the] same content issued by the same State authorities,”²⁵ and therefore “the position of the Tribunal must be the same toward” the guarantees offered in this case.²⁶ Sixth, the Appellant argues that “the Trial Chamber... erred [by] not giving the State to which the accused seeks to be released the opportunity to be heard pursuant to Rule 65(B) of the Rules.”²⁷ He adds that if given the opportunity, “Serbia and Montenegro... would clarify the accuracy of” statements it made “regarding the voluntary surrender of Vujadin Popovic and... all contradictory submissions in this regard.”²⁸

In response, the Prosecution reiterates that the Appellant remained a fugitive for a considerable period of time after his indictment became public and notes the Trial Chamber’s observation that the Appellant neither offered a clear explanation for why he remained at large nor explained to the Trial Chamber where he was during that time.²⁹ The Prosecution also repeats that it “appear[s the Appellant] sought refuge in the Russian Federation.”³⁰ Consequently, the Prosecution submits, the Appellant has not proven that “he will not go back to being a fugitive once released.”³¹ Noting that the relevance of time at large must always be evaluated in light of the totality of the circumstances surrounding an accused’s application for provisional release, the Prosecution rejects the Appellant’s assertion of inconsistency with cases where accused who remained at large for longer than the Appellant were released.³² With regard to the contention that the Trial Chamber should have concluded that the Appellant voluntarily surrendered, the Prosecution observes that “no evidence can be found in the record to this effect,” and that therefore “the Defence has not proven that [the Appellant’s] surrender was voluntary.”³³ According to the Prosecution, moreover, the Appellant never “provideSsC any evidence or proof to substantiate [his] assertion that the ‘legal and factual power of a State... to ensure [the] appearance of the accused’” obliges the Tribunal to trust that the State can successfully comply with a guarantee to present him for trial.³⁴ The Prosecution adds that the Trial Chamber did not treat the government guarantees in this case inconsistently from the way the Tribunal has treated other guarantees, as “guarantees need to be analyzed in the context of the individual circumstances of each case.”³⁵ Additionally, the Prosecution asserts that “cooperation [by the Governments of Serbia and Montenegro and the Republic of Serbia] has not reached a level in which a guarantee offered by these governments would be sufficient to ensure that the Accused will appear before the Tribunal at trial.”³⁶

The Appellant’s first argument – his argument concerning his whereabouts while at large – is misplaced. In certain circumstances, an applicant’s decision to remain a fugitive and his whereabouts prior to surrender can shed significant light on whether he would appear for trial if granted provisional release. Here, the Appellant spent a considerable period of time at large after publication of his indictment. Moreover, the Prosecution provided evidence, in the form of an investigator’s affidavit, that the Appellant had sought refuge during that time in Russia. The Appellant neither provided evidence to the contrary nor explained his whereabouts while at large. It was not unreasonable for the Trial Chamber to consider the Appellant’s apparent history of fleeing across national boundaries in order to escape prosecution and to conclude that he had not met his burden of demonstrating that he would appear for trial.

The Appellant’s second argument, alleging inconsistency with decisions granting provisional release to accused who remained at large longer than he did, fails because of the individualized nature of provisional release inquiries. The weight attached to an accused’s decision to remain at large depends on the circumstances of the case, and here, as already explained, the Trial Chamber acted reasonably in concluding that these circumstances did not illustrate a likelihood of returning for trial. Denial of provisional release in this case therefore poses no inconsistency with decisions granting provisional release to other accused, even those who remained at large for longer than the Appellant.

The Appellant’s third assertion – that the Trial Chamber needed to determine whether he entered custody due to surrender or arrest – also lacks merit. In any given case, the Trial Chamber only needs to examine those factors that a reasonable Trial Chamber would take into account.³⁷ Based on the circumstances of the present case, the Trial Chamber could reasonably have found that the manner in which the Appellant eventually entered custody – be it by surrender or by arrest – would have no affect on the outcome of its decision. Consequently, it was reasonable for the Trial Chamber to disregard the issue of how the Appellant entered into custody.

The Appellant’s argument about reliance on the investigator’s declaration likewise proves unavailing. As the declaration constitutes admissible evidence even though the investigator’s operative statements are both conclusory and hearsay,³⁸ and as the Appellant offered no evidence in response to the investigator’s sworn statement that his sources told him the Appellant had fled to the Russian Federation, it would be reasonable for the Trial Chamber to conclude that the Appellant had in fact fled there, and to rely on this fact in determining whether the Appellant would appear for trial. Concededly, the Impugned Decision’s findings of fact are less than crystalline; it is not clear whether the Trial Chamber treated the Accused’s flight to Russia as having been conclusively established on the basis of the investigator’s affidavit, or instead merely found that the defendant failed to show that he had not fled there. But this difference is immaterial, for an accused has the burden of demonstrating that he satisfies the criteria of Rule 65(B), and here the defendant provided no evidence (apart from the government guarantees discussed below) in support of his likelihood of returning for trial.

The Trial Chamber likewise committed no error in its consideration of the government guarantees. Contrary to the Appellant’s assertion, the Trial Chamber did not fail to “examine the impact” of the guarantees on the question of whether he would appear for trial. The Trial Chamber’s observation that the Appellant failed to show he would not “thwart the efforts of the authorities of the Republic of Serbia and Montenegro ” demonstrates that the Trial Chamber considered those guarantees and found them insufficient given the absence of evidence that the Appellant would surrender voluntarily. The Trial Chamber, moreover, did not have to rely on the guarantees just because they had been offered by Governments with power to arrest the Appellant. A Trial Chamber must evaluate government guarantees in light of the circumstances surrounding each individual applicant,³⁹ and in some circumstances, it may be reasonable to place little weight on a government guarantee. Indeed, here the Trial Chamber did not err by failing to find the government guarantees determinative notwithstanding the issuing authorities’ track record regarding compliance. As the Trial Chamber identified no consideration suggesting that the Appellant will surrender voluntarily, and as the Appellant has successfully remained at large in the past, the Trial Chamber could reasonably conclude that even guarantees issued by governments that have not failed to fulfil past guarantees do not satisfy it that the Appellant will return for trial before the Tribunal. The Appellant, moreover, is wrong to suggest that, just because other decisions of this Tribunal have relied on guarantees by “the same State authorities” when granting provisional release, the decision to find the guarantees in this case insufficient departed from the Tribunal’s existing jurisprudence. Again, government guarantees must be evaluated in context, and in this case the context made it reasonable to conclude that, notwithstanding the government guarantees that he submitted, the Appellant had not adequately proven that he would appear for trial.

With regard to the Appellant’s argument that the Trial Chamber failed to give the authorities of Serbia and Montenegro the opportunity to be heard, the Appeals Chamber recalls that “Rule 65(B) provides that the State to which an accused seeks to be released must have an opportunity to be heard before the Trial Chamber grants his application. The Rule does not provide that this State must have the opportunity to be heard before the Trial Chamber denies provisional release.”⁴⁰ Considering that provisional release was denied in the present case, it is not necessary to consider this submission.

For the foregoing reasons, the appeal is DISMISSED.

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

Done this 28th day of October 2005,
At The Hague,
The Netherlands.

________________________
Judge Theodor Meron
Presiding

[Seal of the Tribunal]