The Prosecutor v. Sainovic and Ojdanic - Case No. IT-99-37-AR65

"Decision on Provisional Release"

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

Procedural Background

· Pursuant to leave to appeal granted by a Bench of the Appeals Chamber, on 26 July 2002, the Prosecution appealed against Trial Chamber III’s "Decision on Application of Nikola Sainovic and Dragoljub Ojdanic for Provisional Release" (hereinafter the "Impugned Decision") whereby the Trial Chamber granted provisional release to the two co-accused.¹

· 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 Prosecution filed its "Prosecution’s Joint Reply".

The Decision

The Appeals Chamber allowed the Prosecution’s appeal, quashed the Impugned Decision and revised it by denying the provisional release of Sainovic and Ojdanic.

The Reasoning

The Appeals Chamber ruled that 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" but nevertheless has to render a "reasoned opinion", indicating "all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision".² The Appeals Chamber declared "in relation to the present application for provisional release, that 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; 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."³

The Appeals Chamber considered the Prosecution’s argument that, as a matter of discretion, an accused person must be released until the Prosecution has been able to interview him as "fully misconceived".⁴ The Trial Chamber had ruled in the Impugned Decision that the fact that the Rule 63 procedure (Questioning of the Accused) has or has not been concluded plays no role in the decision to grant provisional release. In this regard the Appeals Chamber made clear that "[a]n 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".⁵

The Appeals Chamber expressed the view that the Trial Chamber did not take into account all the relevant factors and in particular failed to consider the effect of the senior position of the two co-accused so far as it relied upon the guarantees. The Appeals Chamber ruled that "[t]he 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."⁶ Failing to address these factors is an error of law.

The Appeals Chamber noted that the Trial Chamber had emphasised the fact that the applicants had voluntarily surrendered, a fact in question before it. The Prosecution referred to public statements the two accused made to the media, but the Trial Chamber did not refer to them. The Appeals Chamber considered that these statements were "highly relevant" and that the Trial Chamber had committed an error of law in not doing so. In light of the circumstances of the case, The Appeals Chamber disagreed with the finding of the Trial Chamber that the surrenders were voluntary.

Having taken into account all the relevant factors, the Appeals Chamber was not satisfied that, if released, the two co-accused would appear for trial. It allowed the Prosecution’s appeal, quashed the Impugned Decision, and denied their provisional release.

Separate opinion of Judge Shahabuddeen

Judge Shahabuddeen agreed with the Appeals Chamber’s findings but commented on two points, namely the question of whether the two accused had voluntarily surrendered to the Tribunal (being relevant to the question of whether they would appear for trial), and the question of the standard of proof by which the Trial Chamber had to be satisfied that the accused would fulfil certain conditions.

Dissenting opinion of Judge David Hunt

In his dissenting opinion Judge Hunt expressed his view that the Prosecution’s appeal should have been dismissed, noting how the Prosecution is "attempting to stem the tide by having the existing jurisprudence of the Tribunal changed in order to make provisional release more difficult to obtain". He dissented with the majority decision of the Appeals Chamber’s conclusion that the Trial Chamber had erred in law by not referring to statements made by the two co-accused earlier this year that they did not intend to surrender voluntarily, and by failing to take into accounts the factors related to the senior position of the two co-accused.

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1. See Judicial Supplement No. 34.
2. Para. 6.
3. Ibid.
4. Para. 8.
5. Ibid.
6. Para. 9.