Decisions on Vidoje Blagojevic's and Dragan Obrenovic's Applications for Provisional Release1

22 July 2002
Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· On 11 June and 17 July 2002 respectively, the Counsel for Dragan Obrenovic and Vidoje Blagojevic,2 filed motions seeking their provisional release.

· On 25 June and 18 July 2002 respectively, the Prosecution filed its responses to the motions in which it requested that the Trial Chamber deny Mr. Obrenovic's and Mr. Blagojevic's applications.

The Decision

The Trial Chamber denied both applications for provisional release, as it was not satisfied that, if released, the accused will appear for trial.

The Reasoning

Applicable law

In keeping with the practice of the Tribunal a determination as to whether provisional release is to be granted must be made in light of the particular circumstances of each case and may be granted only if the Trial Chamber is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.3

Further, as stated by the Trial Chamber, since procedural measures should never be "capricious or excessive" and "[i]f it is sufficient to use a more lenient measure, that measure should be applied", the general principle of proportionality must be respected: "[a] measure in public international law is proportional only when (1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target (proportionality in the narrowest sense)".4

Appearance of the accused for trial and danger to the victims

In assessing whether the accused, if released, would appear for trial, the Trial Chamber used the two criteria set forth in the Ademi case, according to which the Tribunal must rely on the "co-operation of States" to monitor the released accused, and a significant weight must be attached to the "voluntary surrender" of an accused in assessing the risk that an accused might not appear for trial.5

Following a careful assessment of the guarantees provided by the accused in each application, and "bearing [in mind] the presumption of innocence",6 the Trial Chamber reached the conclusion that it was not satisfied that, if released, the accused would appear for trial. It found it "necessary"7 to order their ongoing detention. It agreed with the Prosecution's assertion that it was not illogical to suppose that the Defendants, relatively young men who faced the prospect of spending the remainder of their life in prison, would attempt to subvert the proceedings by failing to present themselves for trial.8

As for the second criterion set out in Rule 65 (B) that the accused, if released, must "not pose a danger to any victim, witness or person",9 the Trial Chamber was not fully satisfied that Mr. Obrenovic would not do so, and therefore ordered his ongoing detention "primarily on account of the risk of flight".10 In respect of Mr. Blagojevic's application, the Trial Chamber did not address this issue at all, mentioning that it had "not been presented with any argument suggesting that the accused, if released, may pose a concrete danger to any victim, witness or person".11

It also attached weight, in the "narrowest sense", to the proportionality principle, rejecting the Defence submission that it should take into account the fact that the accused had already been detained for fifteen months and that no trial date had as yet been set. To reach such conclusions, as to whether the time pending trial is reasonable, the sole circumstances of the given case are of relevance, such as "the complexity of the case, speed of handling, conduct of the accused, conduct of the authorities, no unjustified inertia, and no lack of adequate budgetary appropriations for the administration of criminal justice".12

Guarantees provided by the government of the Republika Srpska

The Trial Chamber expressed the opinion that it was "not possible for the United Nations Tribunal" to accept the guarantees given in support of the accused's applications for provisional release, provided by the government of the Republika Srpska. It disagreed in this sense with the Appeals Chamber's Decision on Application by Dragan Jokic for Leave to Appeal of 18 April 200213 and stated that "an Entity of Bosnia and Herzegovina cannot be equalled to a State on the basis of the Rules of Procedure and Evidence [which] can only be read in accordance with fundamental norms of public international law".14

At the issue is whether, as asserted by the Appeals Chamber in the Decision on Application by Dragan Jokic for Leave to Appeal, the Tribunal can "rely upon local authorities within that territory".15 The Trial Chamber stated that it would be acting "ultra vires" (Latin: beyond the powers) if it were to base itself on guarantees offered by the Republika Srpska. The term "State" in Rule 65 (B) "must be interpreted in such a way that the Tribunal does not refer to an Entity as being a State".16 The "subject of public international law" in Rule 65 (B), "responsible for ensuring compliance with conditions imposed by the Trial Chamber in accordance with domestic regulations" is Bosnia and Herzegovina.17 Further it affirmed that "[a]ccepting guarantees given by or through the State is therefore the sole way to strengthen the protection of all citizens in Bosnia and Herzegovina while complying with the dictates of public international law".18

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1. The Prosecutor v. Blagojevic et al. ("Srebrenica"), Case No. IT-02-60-PT, Trial Chamber II, Decision on Dragan Obrenovic's Application for Provisional Release (hereinafter "Obrenovic Decision") and Decision on Vidoje Blagojevic's Application for Provisional Release (hereinafter "Blagojevic Decision"), 22 July 2002.
2. The accused Dragan Obrenovic and Vidoje Blagojevic are jointly charged with the accused Dragan Jokic and Momir Nikolic for crimes alleged to have been committed against the Bosnian Muslim population of the Srebrenica enclave in the summer and autumn of 1995. Dragan Obrenovic was arrested on 15 April 2001 and made his initial appearance on 18 April 2001, at which time he pleaded not guilty to all the charges against him. Vidoje Blagojevic was arrested on 10 August 2001 and made his initial appearance on 16 August 2001, at which time he pleaded not guilty to all the charges against him.
3. See The Prosecutor v. Hadzihasanovic et al. ("Central Bosnia"), Case No. IT-01-47-PT, Trial Chamber II, Decisions granting provisional release to Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, 19 December 2001 (summarised in Judicial Supplement No. 30). See also The Prosecutor v. Ademi ("Medak Pocket"), Case No. IT-01-46-PT, Trial Chamber I, Order on Motion for Provisional Release, 20 February 2002; The Prosecutor v. Blagojevic et al. ("Srebrenica"), Case No. IT-02-53-AR65, Trial Chamber II, Decision on Application by Dragan Jokic for Leave to Appeal, 18 April 2002.
4. Para. 37 of the Obrenovic Decision and para. 29 of the Blagojevic Decision.
5. The Prosecutor v. Ademi ("Medak Pocket"), Case No. IT-01-46-PT, Trial Chamber I, Order on Motion for Provisional Release, 20 February 2002.
6. Para. 63 of the Obrenovic Decision and para. 53 of the Blagojevic Decision.
7. Para. 66 of the Obrenovic Decision and para. 55 of the Blagojevic Decision.
8. Para. 63 of the Obrenovic Decision and para. 53 of the Blagojevic Decision.
9. Para. 65 of the Obrenovic Decision.
10. Para. 66 of the Obrenovic Decision.
11. Para. 30 of the Blagojevic Decision.
12. Para. 69 of the Obrenovic Decision and para. 58 of the Blagojevic Decision.
13. Decision on Application by Dragan Jokic for Leave to Appeal, 18 April 2002. See supra note 3.
14. Para. 45 of the Obrenovic Decision and para. 35 of the Blagojevic Decision.
15. Para. 46 of the Obrenovic Decision and para. 36 of the Blagojevic Decision.
16. Para. 60 of the Obrenovic Decision and para. 50 of the Blagojevic Decision.
17. Ibid.
18. Para. 61 of the Obrenovic Decision and para. 51 of the Blagojevic Decision.