Separate opinion of Judge David Hunt and Judge Fausto Pocar on challenge by Croatia to Decision and orders of confirming Judge

Case: IT-02-62-AR54bis

& IT-02-62-AR108bis

IN THE APPEALS CHAMBER

Before: Judge Claude Jorda, Presiding

Judge Mohamed Shahabuddeen
Judge David Hunt
Judge Mehmet Güney
Judge Fausto Pocar

Registrar: Mr Hans Holthuis

Decision of: 29 November 2002

PROSECUTOR

JANKO BOBETKO

SEPARATE OPINION OF JUDGE DAVID HUNT AND JUDGE FAUSTO POCAR

ON CHALLENGE BY CROATIA TO DECISION AND ORDERS

OF CONFIRMING JUDGE

Counsel for the Prosecutor:
Ms Carla del Ponte, Prosecutor

Counsel for the Croatia:
Mr Goran Mikulicic

SEPARATE OPINION OF JUDGE DAVID HUNT AND JUDGE FAUSTO POCAR

1. We agree with the decision of the Appeals Chamber, so far as it goes. That decision does not, however, deal with one of the issues raised by the Republic of Croatia ("Croatia") as being fundamental to the merits of its applications and which, in our opinion, should have been determined for the purposes of dismissing these applications.

2. We hold that opinion notwithstanding the rulings by the Appeals Chamber (with which we agree) that:

(i) the Tribunal will not entertain submissions made by an accused person or by counsel who seeks to speak on behalf of an accused prior to that accused person’s appearance before the Tribunal; and

(ii) Croatia does not have standing to make the present application.

We do so because, in the light of those rulings, it was open to the Appeals Chamber to have dismissed the applications upon that basis alone and without dealing with the merits of those applications. But that is not the approach which the Appeals Chamber took. It said that it would consider the merits of the applications, and it proceeded to deal with one of the issues raised as to the merits – whether there was an obligation to interview a proposed accused person before seeking confirmation of an indictment against him. It has held that there was no such obligation, again a ruling with which we agree.

3. The Appeals Chamber took that approach, as we understand it, because of the obvious importance which Croatia placed upon the merits of its applications, so that Croatia would not feel that its applications were being dismissed upon some mere technicality. In our view, it was appropriate to do so in the circumstances of this case. The lack of standing on the part of an applicant does not prevent the Appeals Chamber from dealing with the merits of the matter if it considers that it is appropriate to do so in the particular case.

4. However, the Appeals Chamber having ventured into the merits of the applications made by Croatia, it should also, in our view, have dealt with what is clearly regarded by Croatia as one of the most important bases for those applications. This was the claim by Croatia that a warrant of arrest is inappropriate in this case because, as the accused Janko Bobetko ("Bobetko") satisfies all the requirements for provisional release, he need not be arrested because he would at once be granted provisional release. That claim is without foundation. Provisional release will be granted only if the accused person establishes that he will appear for trial. The onus of proof in relation to this issue is placed upon the applicant. Relevant to that issue is the intention of the accused himself to appear and both the intention and the capacity of the relevant State to comply with any undertaking which it may give to the Tribunal to arrest the accused if he does not appear.

5. Following the issue of the indictment against him, Bobetko has publicly stated on a number of occasions that he will not surrender voluntarily to the Tribunal. Moreover, Croatia has still not served Bobetko with the indictment, contrary to its obligation to do so in accordance with Article 29 of the Tribunal’s Statute. Based upon the material which has been placed before the Appeals Chamber by Croatia, we do not accept the claim by it that Bobetko would appear for trial so as to satisfy the requirements for provisional release. It must be emphasised, of course, that Bobetko himself has not sought provisional release, as he has not yet been transferred into the custody of the Tribunal, and (as has now been determined by the Appeals Chamber) no such application for provisional release would be entertained until he does appear before the Tribunal. Any Trial Chamber from which he may seek provisional release after he has appeared must determine the application upon the material which is placed before it by the parties in relation to that application, and any conclusion which may be stated in the Appeals Chamber upon the material which Croatia has put forward in support of its applications should not influence the Trial Chamber in that determination. In any event, the two bodies of material are certain to be different.

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

Dated this 29^th day of November 2002,

At The Hague,

The Netherlands.

_________________________ ___________________________

Judge David Hunt Judge Fausto Pocar

[Seal of the Tribunal]