The Prosecutor v. Blagojevic et al. - Case No. IT-02-60-AR65 & IT-02-60-AR65.2

"Decision on Provisional Release of Vidoje Blagojevic and Dragan Obrenovic"

3 October 2002
Appeals Chamber (Judges Shahabuddeen [Presiding], Hunt, Güney, Pocar and Meron)

Procedural Background

· On 22 July 2002 the Trial Chamber denied provisional release to the co-accused Dragan Obrenovic and Vidoje Blagojevic.¹

· On 2 September 2002, following the decision of a Bench of the Appeals Chamber to grant them leave to appeal,² they appealed against the impugned decision denying their provisional release.

The Decision

The Appeals Chamber found that the Trial Chamber erred in law by finding that guarantees from the Republika Srpska were not admissible. It therefore quashed the Decisions on provisional release and returned the matter to the Trial Chamber for reconsideration directing it to take into account those guarantees when determining whether the accused would appear for trial if provisionally released.

The Reasoning

Obrenovic and Blagojevic both submitted that the Trial Chamber had erred in concluding that the guarantees or undertakings provided by the Republika Srpska on their behalf were inadmissible and that in so doing it did not respect the Decision on Application by Dragan Jokic for Leave to Appeal.³ They also claimed that the Trial Chamber had erred in its conclusions that they presented a risk of flight solely because of the serious nature of the offences with which they are charged and the sentences which could be imposed if they are convicted.

In accordance with the Aleksovski Judgement of the Appeals Chamber,⁴ the Appeals Chamber held that the Trial Chamber was bound to accept and to apply the Jokic decision which provides that, as a matter of law and for the purpose of the International Tribunal, an undertaking by Republika Srpska qualifies for acceptance whether or not it is a sovereign state as defined under public international law.⁵

The Appeals Chamber stated that "there is nothing in either the Tribunal’s Statute or the Rules of Procedure and Evidence which limits the identity of the body giving an undertaking to a state as recognised by public international law, and therefore sees no cogent reason to depart from its previous jurisprudence".⁶ It clearly stated that "an a priori exclusion of such undertakings on the basis that they emanate from an entity not recognised as a state by public international law amounts to an error of law".⁷

The Appeals Chamber did not consider whether the Trial Chamber had erred when it concluded that the accused presented a risk of flight solely because of the serious nature of the offences with which they are charged and the sentences which could be imposed if they are convicted.

Declaration of Judge Shahabuddeen

Judge Shahabuddeen agreed with the decision but declared that the Decision on Application by Dragan Jokic for Provisional Release⁸ drew a distinction between local and international responsibility, assigning the former to the entity and the latter to the state. In his opinion a close reading of the latter Decision allows a Trial Chamber to consider whether the entity alone had the competence to take custody of the accused from the Dutch authorities in the Netherlands and to hand him back to the Dutch authorities in the Netherlands.

Separate opinion of Judge David Hunt⁹

While agreeing with the Decision, Judge Hunt expressed the opinion that "except in relation to the most formal matters, the Appeals Chamber is required, just as any other court is required, to provide a reasoned opinion for the decisions which have been given". In his view, the revelation of those reasons is "necessary to assist not only the parties and the Trial Chamber from which the appeal came but also others - the parties in other cases, other Trial Chambers, academic and opinion writers and the interested public- to understand how a particular decision was reached". According to him, as the Decisions are the result of a consensus, they reveal only the "lowest common denominator" of the Judges’ reasons for the Decision given, which is "not always a good thing, particularly in the Appeals Chamber, because it means that many of its decisions are of less assistance than they could ideally be". Judge Hunt expressed the view that the Jokic decision the Trial Chamber was obliged to follow was "unfortunately" of a formal nature only and "provided no reasons beyond agreeing with the views of the Bench of three judges to give the assistance which the full Bench of the Appeals Chamber itself could have given". He regretted to say that, in his view, the Decision of the Appeals Chamber in the present case did not repair that omission.

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1. Blagojevic et al., IT-02-60-PT, Decision on Dragan Obrenovic's Application for Provisional Release & Decision on Vidoje Blagojevic's Application for Provisional Release, 22 July 2002, Judicial Supplement No. 35.
2. Blagojevic et al., IT-02-60-AR65 & IT-02-60-AR65.2, Decision on Application by Blagojevic for Leave to Appeal and Decision on Application by Obrenovic for Leave to Appeal, 27 August 2002.
3. Jokic, IT-02-53-AR65, Decision on Application by Dragan Jokic for Leave to Appeal (hereinafter "Jokic Decision"), 18 April 2002.
4. Aleksovski, IT-95-14/1-A, Judgement, 24 March 2000, para. 113, Judicial Supplement No. 13.
5. Jokic, IT-02-53-AR65, Decision on Application by Dragan Jokic for Provisional Release, 28 May 2002 and Jokic Decision, paras. 7-8.
6. Para. 6.
7. Para. 7.
8. See supra note 5.
9. Blagojevic et al., IT-02-60-AR65 & IT-02-60-AR65.2, Separate Opinion of Judge David Hunt on Provisional Release.