Case No.: IT-99-37-AR65

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge David Hunt
Judge Mehmet Güney
Judge Fausto Pocar
Judge Theodor Meron

Registrar:
Mr. Hans Holthuis

Decision of:
30 October 2002

Counsel for the Prosecutor

Mrs. Carla Del Ponte
Mr. Geoffrey Nice

Counsel for the Accused

Mr. Toma Fila and Mr. Zoran Jovanovic for Nikola Sainovic
Mr. Tomislav Visnjic, Mr. Vojislav Selezan and Mr. Peter Robinson for Dragoljub Ojdanic

1. Pursuant to leave granted by a Bench of the Appeals Chamber,¹ the Prosecution appealed against Trial Chamber III’s “Decision on Application of Nikola Sainovic and Dragoljub Ojdanic for Provisional Release” (“Impugned Decision ”) whereby the Trial Chamber granted provisional release to co-accused Nikola Sainovic and Dragoljub Ojdanic (“Sainovic” and “Ojdanic”, the “Applicants”).² On 2 August 2002, Sainovic filed his “Defence Response to the Prosecution’s Appeal Against the Trial Chamber’s Decision to Grant Provisional Release” and Ojdanic his “General Dragoljub Ojdanic’s Brief on Appeal”. On 7 August 2002, the Appellant filed its “Prosecution’s Joint Reply” (the “Reply”).

2. In its Appellant’s Brief, the Prosecution submits that the Trial Chamber committed an error of fact when it concluded that the two requirements of Rule 65(B) of the Rules of Procedure and Evidence (“Rules”) had been met, and that it abused its discretion when deciding whether or not to release the accused. In relation to its first contention , the Prosecution submits that the Trial Chamber erred by omitting to consider the failure of the authorities of the Federal Republic of Yugoslavia (“FRY”) to arrest co-accused Milan Milutinovic (“Milutinovic”), insisting instead on the FRY’s “general level of co-operation”. The Prosecution also submits that the Trial Chamber erred by giving unreasonable weight to the guarantees provided by the Applicants and by not giving sufficient weight to the fact that they could have surrendered earlier . In relation to the second contention, the Prosecution claims that the Trial Chamber abused its discretion when suggesting that the foreseeable length of pre-trial detention militated in favour of provisional release, because that delay was due only to the Defence and also because, in any case, the delay would not have been “exceptionally long” or “unreasonable”. The Prosecution further submits that the Defence’s estimate as to pre-trial delay should not have been accepted by the Trial Chamber at face value, but should instead have been properly assessed by the Trial Chamber. The Prosecution finally submits that the Trial Chamber abused its discretion when it failed to address other relevant factors inherent to a proper exercise of discretion such as the senior position of the accused, the serious nature of the crimes, the likelihood of a long sentence if convicted, as well as the absence of co-operation on the part of the relevant authorities.
3. In his Response, Sainovic submits that the Prosecution is incorrect to claim that the FRY’s and Serbia’s guarantees are unreliable and points to the fact that , as soon as the Law on Co-operation with the Tribunal was passed, he surrendered to the Tribunal. Concerning the Trial Chamber’s exercise of discretion, Sainovic says that the Prosecution failed to establish that the Chamber acted beyond the realm of its discretionary power. He finally submits that the factors which the Trial Chamber allegedly failed to consider would not in any case have prevented his release. Ojdanic submits that the Prosecution failed to demonstrate that there was a miscarriage of justice resulting from an error of fact or that the Trial Chamber abused its discretion. According to him, the failure of the FRY to transfer co- accused Milutinovic does not amount to a lack of co-operation on the FRY’s part which would bear consequences upon the weight of the guarantees which it provided concerning the present accused’s provisional release. The Trial Chamber also properly took into account the likelihood of a lengthy sentence when coming to its decision . In relation to its exercise of discretion, Ojdanic points out that the Prosecution did not dispute at trial the Defence’s estimate of the time needed before the trial may start and that the Trial Chamber did not abuse its discretion by taking the period of pre-trial detention into account to decide whether to release him. Finally , Ojdanic argues that the Trial Chamber took into account all the factors relevant to a proper exercise of its discretion.
4. In Reply, the Prosecution submitted, inter alia, that the reliability of the guarantees given by the FRY and Serbia is not an independent matter, and that the true issue should be whether the Trial Chamber is satisfied that the accused will appear at trial. The Prosecution suggests that provisional release is premised upon the assumption that the Tribunal will not need to have resort to Article 29 of the Statute and Rule 56 of the Rules for the arrest and transfer of accused persons and that, in case of doubt as to whether, if released, an accused will need to be re-arrested to appear for trial, provisional release should be rejected. The Prosecution contends that such a guarantee is a “secondary consideration” and that its absence would merely constitute an additional “negative factor” whereas its existence could not be regarded as a “positive factor” speaking in favour of provisional release . The same may be said, the Prosecution argues, of the Law on Co-operation with the Tribunal. Further, the Prosecution claims that, in view of the circumstances , the surrender of the co-accused may not legitimately be regarded as “voluntary ” and that the Trial Chamber gave “no real consideration, or insufficient consideration ” to the likely length of the sentence if they were convicted. Concerning the length of pre-trial detention, the Prosecution submits that it is for the Trial Chamber , not the parties, to set out the basis for its conclusion that there would be “ considerable time” before the trial begins. It also points out that the Defence’s assessment in that respect was grossly inflated. In addition, in the exercise of its discretion, the Trial Chamber should have once again taken into account those factors which it assessed to decide whether or not the conditions had been met pursuant to Rule 65(B). Finally, the Prosecution submits that public interest considerations weighed heavily against exercising its discretion in favour of provisional release .
5. On 12 August 2002, Sainovic filed his “Defence Response to Prosecution’s Joint Reply” (“response to the reply”). On 19 August 2002, the Appellant filed his “Prosecution’s objection to ‘Defence Response to Prosecution’s Joint Reply’”, in which the Prosecution argues that Sainovic was not entitled to file such a response. Neither the Rules nor the practice of the Tribunal provide a party with a right to respond to a reply , although leave will usually be granted to file a further response where the reply raises a new issue. That is not the case here. Sainovic did not seek leave with the Appeals Chamber to respond to the reply. His response to the reply is therefore disregarded for the purpose of the present appeal.
6. A Trial Chamber is not obliged to deal with all possible factors which a Trial Chamber can take into account when deciding whether it is satisfied that, if released , an accused will appear for trial. It must, however, render a reasoned opinion.³ This obliges it to indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision . In relation to the present application for provisional release, a reasonable Trial Chamber would have been expected to consider, and thus to list, inter alia , the following factors: the fact that the applicants are charged with serious criminal offences; the fact that, if convicted, they are likely to face long prison terms; the circumstances in which they surrendered; the degree of co-operation given by the authorities of the FRY and Serbia; the fact that the government of the FRY and the government of the Republic of Serbia gave guarantees that they would ensure the presence of the accused for trial and guaranteed the observance of the conditions set by the Trial Chamber upon their provisional release;⁴ the fact that both accused held very senior positions, so far as it is relevant to the weight of governmental guarantees; the fact that the FRY recently passed a Law on Co-operation with the International Tribunal; the fact that the Applicants gave personal guarantees in which they undertook to abide by the conditions set by the Trial Chamber should they be released; the likelihood that, in light of the circumstances prevailing at the time of the decision and, as far as foreseeable , the circumstances as they may turn out to be at the time when the accused will be expected to return for trial, the relevant authorities will re-arrest the accused should he decline to surrender; and the fact that the accused provisionally accepted to be interviewed by the Office of the Prosecutor, thereby showing some degree of co-operation with the Prosecution.
7. The circumstances of each accused who applies for provisional release must be evaluated individually as they weigh upon the likelihood that he will appear for trial. The weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position which he held prior to his arrest. The Trial Chamber must assess these circumstances at the time when the decision on provisional release is being taken , but must also, as far as foreseeable, make an assessment as at the time when the case is due for trial and when the accused will be expected to return.
8. The Appeals Chamber is of the view that the Prosecution’s argument that, as a matter of discretion, an accused person should not be released until the Prosecution has been able to interview him fully is misconceived.⁵ An accused person is not, while in the custody of the International Tribunal, at the disposal of the Prosecution. An accused person may, if he decides to do so, co-operate with the Office of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his giving such an interview while still in custody.
9. The Impugned Decision does not demonstrate that the Trial Chamber took into account all the factors which were relevant to its taking a fully informed and reasonable decision as to whether, pursuant to Rule 65(B), the accused will appear for trial if provisionally released. In particular, the Trial Chamber failed to consider the effect of the senior position of the two co-accused so far as it relied upon the guarantees. The position of an accused in the hierarchy and the consequence thereof upon the weight of governmental guarantees are indeed significant factors which the Trial Chamber is expected to address as they could have an important bearing upon a State’s willingness and readiness to arrest that person if he refuses to surrender himself; those factors therefore reduce the likelihood of his appearing at trial. In failing to address these factors, the Trial Chamber committed an error of law.
10. The Appeals Chamber notes that the Trial Chamber emphasised the fact that the applicants surrendered voluntarily. It seems, however, that a question was raised as to whether their surrender was truly voluntary. The applicants’ case was that , prior to the adoption on 11 April 2002 of the Law on Co-operation with the Tribunal , it would not have been possible for them to surrender, but that, thereafter, it was.⁶ The Prosecution submitted that , for approximately three years prior to the adoption of the Law on Co-operation , the applicants did not surrender and that the true interpretation of the facts is that they eventually surrendered only after it became clear from the Law on Co -operation that they would no longer find a reliable refuge in the FRY.⁷ It also pointed out in its submissions to the Trial Chamber that both accused made public statements to the media earlier this year to the effect that they would not surrender voluntarily.⁸ In the Trial Chamber, the Defence did not dispute those statements.

At the appellate level, the Prosecution elaborated its position by citing particular statements that the accused or their counsel made. These statements were set out both in footnote 19 to the Prosecution’s Response to Applications for Provisional Release and at p.79 of the Prosecution’s Book of Authorities. The accused did not react to these statements. However, in respect of these statements, the Prosecution did not observe the usual procedure for the admission of additional evidence. Consequently , the Appeals Chamber would disregard these statements and the accused’s lack of reaction to them.

In respect of the public statements made by the accused to the media and which were mentioned to the Trial Chamber, the Trial Chamber did not refer to them or to the Prosecution’s submission concerning the voluntariness of the surrender. On appeal , the Prosecution did not complain about the failure of the Trial Chamber to refer to these statements. The Appeals Chamber gives no weight to this lack of complaint . The Prosecution continues to rely on those statements. These statements were highly relevant. In view of the Appeals Chamber, the Trial Chamber committed an error of law in not referring to them. Further, the Appeals Chamber notes that, although they were publicly indicted in May 1999, both accused “surrendered” only in April 2002, and then only in the circumstances mentioned above. As a result, the Appeals Chamber disagrees with the finding of the Trial Chamber that the surrenders were voluntary.

11. The Trial Chamber thus erred in fact and in law, and misdirected itself. The Impugned Decision must therefore be quashed.
12. When it comes to decide upon the provisional release of both accused, the Appeals Chamber is in the circumstances of this case in the same position as the Trial Chamber . In the exercise of its power to revise the Impugned Decision, it may decide upon the matter itself rather than sending it back to the Trial Chamber for reconsideration . Having taken into account all the relevant factors mentioned by the Trial Chamber as well as the additional factors mentioned in its decision, the Appeals Chamber is not satisfied that, if released, the two co-accused would appear for trial as required by Rule 65(B). The remaining arguments of the Prosecution need not be addressed in the present appeal.
13. Accordingly, the Appeals Chamber [Judge Shahabuddeen appending a separate opinion and Judge Hunt dissenting]

a) Allows the Prosecution’s appeal and quashes the Impugned Decision; and
b) Revises the Impugned Decision by denying the provisional releases of Sainovic and Ojdanic.

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

_____________________
Mohamed Shahabuddeen
Presiding

Dated 30 October 2002
At The Hague,
The Netherlands.

Judge Shahabuddeen appends a separate opinion to this decision.

Judge Hunt appends a dissenting opinion to this decision.

[Seal of the Tribunal]