Judge David Hunt, Presiding
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana
Mr Hans Holthuis
16 January 2003
Vidoje BLAGOJEVIC, Dragan OBRENOVIC, Dragan JOKIC & Momir NIKOLIC
DECISION ON APPLICATIONS BY BLAGOJEVIC AND OBRENOVIC FOR LEAVE TO APPEAL
Counsel for the Prosecutor:
Mr Norman Farrell
Mr Peter McCloskey
Counsel for the Applicants:
Mr Michael Karnavas & Ms Suzana Tomanovic for Vidoje Blagojevic
Mr David Eugene Wilson & Mr Dusan Slijepcevic for Dragan Obrenovic
Background to the applications
1. Vidoje Blagojevic (“Blagojevic”) and Dragan Obrenovic (“Obrenovic”) each seek leave to appeal against a decision of Trial Chamber II refusing to grant him provisional release.1 Those decisions have an unfortunately long history in these proceedings.
2. On 28 March 2002, Trial Chamber II refused an application for provisional release by Dragan Jokic (“Jokic”), a co-accused of Blagojevic and Obrenovic,2 upon the basis that it was “not satisfied with the guarantees provided” by the Government of Republika Srpska, as Republika Srpska was only an entity and not a State.3 Leave to appeal having been granted,4 the Appeals Chamber considered that a guarantee provided by Republika Srpska is valid although not necessarily sufficient in every case; it upheld the appeal and granted provisional release.5
3. Blagojevic and Obrenovic then sought provisional release. On 22 July 2002, Trial Chamber II refused their application.6 The Trial Chamber disagreed with the Appeals Chamber’s ruling in the Jokic Appeal Decision, and it asserted that it would be acting ultra vires should it base its decision upon such guarantees.7 The Trial Chamber stated that it was not satisfied that either Blagojevic or Obrenovic would appear for trial, and accordingly refused provisional release to both of them .8 Leave to appeal having been granted upon the basis that the Trial Chamber had excluded relevant evidence from its consideration of that issue,9 the Appeals Chamber held that the Trial Chamber was bound to accept and to apply the Jokic Appeal Decision that, as a matter of law and for the purposes of the Tribunal, an undertaking given by Republika Srpska qualifies for acceptance by the Trial Chamber, whether or not it is a sovereign State as defined in public international law.10
4. The Appeals Chamber recognized that the Trial Chamber nevertheless may well have reached the same conclusion that Blagojevic and Obrenovic would not appear for trial even if it had taken the Republika Srpska guarantees into consideration.11 For this reason, it returned the matter to the Trial Chamber for reconsideration , together with a specific direction to the Trial Chamber to take the Republika Srpska guarantees into account when determining that issue.12
5. The Appeals Chamber took that course in the light of the uncertainty created by the decisions then under appeal as to whether, despite the Trial Chamber’s view that it could not take those guarantees into consideration, it had nevertheless reached its decision that neither Blagojevic nor Obrenovic would appear for Trial even if those guarantees were taken into consideration.13 This is because the Trial Chamber had said in both decisions then under appeal that its inability to accept the Republika Srpska guarantees was not “the decisive element ” for refusing the applications,14 and not “the final basis” for its decisions,15 and that it had “reasonable doubts whether the guarantees offered can eliminate or significantly minimize the risk of flight”.16 The first two statements implicitly acknowledged that such inability as a matter of law to accept the Republika Srpska guarantees was at least one element (even though not the decisive one) in its finding that it was not satisfied that the accused would appear for trial, or at least one basis (though not the final one) upon which its findings was made. It was unclear from the third statement whether the doubts expressed related to the validity of the guarantees or to their reliability if reliance could validly be placed upon them . The Trial Chamber’s position in relation to the effect of the Republika Srpska guarantees upon the likelihood of the applicants’ appearance for trial thus remained ambiguous in both decisions.
6. The choice posed for the Trial Chamber in order to overcome that ambiguity was therefore a clear one: either
(a) it could expressly hold that, notwithstanding the validity of the Republika Srpska guarantees, it was not satisfied that either Blagojevic or Obrenovic would appear for trial if provisionally released; or
(b) it could hold that, once the validity of those guarantees was taken into account , it was satisfied that one or both of them would appear for trial if provisionally released.
7. In each of the Impugned Decisions, the Trial Chamber formally noted the direction by the Appeals Chamber that it was to take the Republika Srpska guarantees in account when determining whether Blagojevic and Obrenovic would appear for trial if provisionally released.17 It then stated, in relation to its original decisions to refuse to grant provisional release to each of them :18
CONSIDERING that the decision taken by the Trial Chamber to deny the request for provisional release was independent of the guarantees provided by the authorities which gave them,
CONSIDERING FURTHER that the decision taken by the Trial Chamber to deny the request for provisional release was de facto solely based on the fact that the Trial Chamber was “not satisfied that, if released, [Mr Blagojevic/Mr Obrenovic] would appear for trial”,
In relation to Obrenovic, the Trial Chamber added to the second matter considered :
[…] and also on the fact that the Trial Chamber was “not fully satisfied” that if released, the Accused would not pose a danger to any victim, witness or other person,19
In each case, the Trial Chamber referred to (a) the absence of any “real new facts […] put forward by the Defence to cause [it] to reconsider” its original decisions to refuse provisional release, (b) the factual material to which it had referred in its original decisions which suggested that neither Blagojevic nor Obrenovic would appear for trial if granted provisional release, and (c) the prospect that the trial would commence in May 2003. The Trial Chamber then concluded that it “remains not satisfied that if released, [Mr Blagojevic/Mr Obrenovic] would appear for trial”.20
8. Rule 65(D) of the Rules of Procedure and Evidence (“Rules”) provides that leave to appeal may be granted by a Bench of three judges of the Appeals Chamber “upon good cause being shown”. Good cause will have been shown if the applicant for leave satisfies the Bench that the Trial Chamber “may have erred” in making the impugned decision.21
9. It is submitted by both applicants for leave to appeal that, by stating that its original decisions were “independent” of the Republika Srpska guarantees, the Trial Chamber has now conceded that it had not taken the Republika Srpska guarantees into consideration in those decisions.22 It appears clearly enough that such a concession has been made. The Trial Chamber’s further statement, that the original decisions were based “solely” upon the fact that it had not been satisfied that they would appear for trial, also suggests ( in such a context) that such a conclusion had also been reached independently of those guarantees.
10. The concession made by the Trial Chamber therefore made it necessary for it on this occasion to take those guarantees into consideration and, in accordance with the Appeals Chamber’s direction, to determine whether, notwithstanding the validity of those guarantees, they were sufficiently reliable to establish that either Blagojevic or Obrenovic would appear for trial if provisionally released. However, apart from formally acknowledging the direction which the Appeals Chamber had given, the Trial Chamber made no express statement, and it gave no other clear indication, that it had complied with that direction when stating that it remained of the same view as that expressed in its original decisions.
11. The Trial Chamber’s reference to the absence of any “real new facts […] put forward by the Defence” which would cause it to “reconsider” its original decision was strictly correct, in that the Republika Srpska guarantees had been put forward by the Defence before those decisions were given, and they could not be described, strictly, as “new” facts. But the existence of those guarantees were facts which had to be considered by the Trial Chamber for the first time. They were “new” to the Trial Chamber’s consideration. The contrast between the Trial Chamber’s express reference to the absence of “new” facts and its silence concerning the presence of a fact which was “new” to its consideration may thus assume some significance in determining whether the Trial Chamber did indeed take those guarantees into consideration when concluding that it “remains” of the same view as that expressed in its original decisions.
12. Both Blagojevic and Obrenovic assert that the Trial Chamber has failed to comply with the direction which the Appeals Chamber gave to it.23 Blagojevic suggests, further, that the Trial Chamber’s failure to do so indicates a continuing reluctance on its part to accept and apply the ruling of the Appeals Chamber in the Jokic Appeal Decision, that a guarantee provided by Republika Srpska is valid although not necessarily sufficient in every case.24 The prosecution has stated that it “takes no position” regarding the applications for leave,25 although it has reserved its right to file any submissions in the event that leave to appeal is granted.26
13. The Trial Chamber did not on this occasion suggest, as it did in its original decisions, that it does not agree with the Jokic Appeal Decision. In those circumstances, it seems unlikely that the Trial Chamber would have deliberately flouted the direction which the Appeals Chamber gave to it to take the Republika Sprska guarantees into consideration, as suggested by Blagojevic. However, it is not for a Bench of the Appeals Chamber to determine whether, despite the absence of any express acknowledgement by the Trial Chamber that it had taken those guarantees into consideration, the Trial Chamber nevertheless did so sub silentio . Such a consideration was the primary function which the Trial Chamber was required to perform in its reconsideration of the provisional release applications before it, and its silence as to whether it has performed that primary function must, in the circumstances, give rise to the possibility that it erred in making the Impugned Decisions. Only the full Bench of the Appeals Chamber can determine whether such an error was made.
14. However, even if such a error were made in relation to the Impugned Decision refusing Obrenovic provisional release, such an error would not have affected that particular decision. That is because the Trial Chamber has now unequivocally made it clear that it would in any event have refused him provisional release upon the basis that it was not satisfied that he would not pose a danger to any victim, witness or other person.27 That finding is not challenged by Obrenovic in his Leave Application, and no issue has been raised by him as to the effect which the Republika Srpska guarantees would have had in relation to such finding. Accordingly, no purpose would be served by granting Obrenovic leave to appeal against the refusal of provisional release.
15. On the other hand, any error made by the Trial Chamber in relation to the Impugned Decision refusing Blagojevic provisional release may well have affected the conclusion reached. Accordingly, leave will be granted to Blagojevic to appeal from that Impugned Decision.
16. Nevertheless, in order to avoid any further unfortunate and possibly unnecessary delay in reaching a conclusion in relation to Blagojevic’s liberty, it would be appropriate, particularly in view of the approaching trial date, for any of the parties to request the Trial Chamber itself to clarify the issue raised, or even for the Trial Chamber to clarify the issue proprio motu. In the event that it is made expressly clear by the Trial Chamber that it did take the Republika Srpska guarantees into consideration in reaching the Impugned Decision refusing Blagojevic provisional release, it will be open to the full Bench of the Appeals Chamber to consider whether leave to appeal should be rescinded.
17. Vidoje Blagojevic is granted leave to appeal. Dragan Obrenovic is refused leave to appeal.
Done in English and French, the English text being authoritative.
Dated this 16th day of January 2003,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]