Before:
Judge Daqun Liu, presiding
Judge Amin El Mahdi
Judge Alphons Orie

Registrar:
Mr Hans Holthuis

Decision of:
21 September 2005

Counsel for the Prosecutor:

Ms Hildegard Uertz-Retzlaff

Counsel for the accused:

Mr Aleksandar Lazarevic

TRIAL CHAMBER I (“Trial 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 (“Tribunal”);

NOTING the “Defence Application for Provisional Release of the Accused Gojko Jankovic with Annexes I to III”¹ (“ Application”) filed on 30 June 2005 by the Defence for the accused Jankovic (“Defence”, “Accused”), whereby the Defence requests the Trial Chamber to enter an order for the provisional release of the Accused on the grounds that the Accused meets the conditions set forth in Rule 65(B) of the Rules of Procedure and Evidence (“ Rules”) to be granted provisional release;

NOTING the “Prosecution’s Response to the Defence Application for Provisional Release of the Accused Gojko Jankovic with Annexes I to III” filed on 8 July 2005, whereby the Prosecution opposes the Application on the grounds that the Accused has not discharged his burden pursuant to Rule 65(B) and proved that if released, he would appear for trial and not pose a danger to victims and witnesses;

NOTING that Rule 65(B) provides a two-prong test for the provisional release of the Accused: release may be ordered by a Trial Chamber if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person; that the Chamber may impose such conditions on release “as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others”;

BEARING IN MIND the settled case-law of the Tribunal concerning Rule 65(B ), in particular the fact that applications for provisional release must be decided based on the particular facts of each case;

CONSIDERING that the Defence argues in support of the Application that:

a) there is no evidence to suggest that, if released, the Accused will not appear for trial, and the Accused gave his personal guarantees (Annex I) that he will submit himself to any terms or conditions set by the Chamber;²

b) the Accused voluntarily surrendered to the Tribunal in March 2005; ³

c) the authorities of the Republika Srpska provided guarantees that the Accused will appear for trial (Annexes II and III); ⁴

d) there is no indication to show that the Accused, if released, would pose a threat to any victims or witnesses the identities and whereabouts of which the Accused is not aware;⁵

e) there are various factors which play for the assumption that the Accused should be provisional released such as the fact that the Accused is a low-ranking accused, the preparation of the Defence would be facilitated by the presence of the Accused in Bosnia and Herzegovina and the trial in this case is not expected to start before many months;⁶

CONSIDERING that the Prosecution opposes the Application as follows:

a) the Accused’s surrender in March 2005 to the Tribunal, namely almost nine years after an indictment against the Accused was confirmed, was not voluntary but the consequence of internal and international pressure on the authorities of the Republika Srpska to arrest war criminals at large; ⁷

b) the guarantee offered by the authorities of the Republika Srpska that the Accused will appear for trial and not flee do not carry sufficient weight in view of the facts that Serbia and Montenegro intends to imminently grant its citizenship to the Accused and this may increase the risk of him fleeing in Serbia and Montenegro,⁸ and that should the Accused absconds once released, it is questionable that the authorities of the Republika Srpska would be in a position and willing to arrest the Accused;⁹

c) the Accused’s strong opposition to the transfer of his case under Rule 11bis of the Rules is an incentive for the Accused to try to abscond;¹⁰

d) the guarantees offered, including the personal guarantees of the Accused, do not explicitly guarantee that should the Accused’s case be transferred to national authorities (hence the Accused would not be under the Tribunal’s jurisdiction), the Accused would surrender to those authorities;¹¹

e) if the Accused were released, there would still exist a danger to victims and witnesses which are particularly sensitive in this case;¹²

f) there can be no suggestion that the preparation of the defence is jeopardised by the pre-trial detention of the Accused, which it must be recalled is not relatively very long;¹³

CONSIDERING that the Chamber is satisfied that the arguments presented by the parties sufficiently inform the Chamber on this issue and that accordingly a hearing is not necessary;

CONSIDERING that in relation to the issue of whether the Accused will appear for trial, the Chamber notes that there is no clear indication before the Chamber that the Accused’s surrender to the Tribunal was, as asserted, voluntary; that the Accused surrendered at the time of internal and international pressure on the authorities of the Republika Srpska to arrest war criminals at large;

CONSIDERING furthermore that the facts that the Accused has shown that he is capable of evading arrest for almost nine years, that there is a risk that the Accused’s flight is facilitated by a second citizenship to be imminently granted to the Accused by the authorities of Serbia and Montenegro, which have not provided guarantees for the arrest of the Accused should he abscond, could facilitate his flight and further, mean that it is more likely to be successful;

CONSIDERING furthermore that should the Accused be released and his case subsequently be transferred to national authorities, there are no express indications arising from the position of the Accused who has strongly opposed the transfer of his case to authorities in Bosnia and Herzegovina nor from the guarantees offered by the authorities of the Republika Srpska¹⁴ that the Accused would appear before a national court to stand trial;

CONSIDERING finally that there is no clear indication that, if provisionally released, the Accused will be willing to make himself available for a trial before national authorities, if his case were to be transferred in Bosnia and Herzegovina ;

CONSIDERING that the Chamber, balancing all the relevant factors, is not satisfied that the Accused, if released, will appear for trial;

FINDING that the Accused has not discharged his burden under Rule 65(B),

PURSUANT TO Rule 65 of the Rules;

REJECTS the Application.

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

Dated this Twenty-first Day of September 2005,
At The Hague
The Netherlands

__________________________
Judge Daqun Liu
Presiding Judge, Trial Chamber 1

[Seal of the Tribunal]