The Prosecutor v. Vidoje Blagojevic - Case No. IT-02-60-AR65.4

“Decision on provisional release application by Blagojevic”

17 February 2003
Judges Hunt (Presiding), Güney, Gunawardana, Pocar and Meron

Procedural Background

· Trial Chamber II refused an application for provisional release by Vidoje Blagojevic,¹ in which Decision it disagreed with a ruling of the Appeals Chamber in an associated case that a guarantee provided by Republika Srpska is valid although not necessarily sufficient in every case.² The Trial Chamber asserted that it would be acting ultra vires should it base its decision upon such a guarantee.³ The Trial Chamber stated that it was not satisfied that Blagojevic would appear for trial, and accordingly refused provisional release.⁴

· 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.⁵ The Appeals Chamber returned the matter to the Trial Chamber for reconsideration, together with a specific direction to the Trial Chamber to take the Republika Srpska guarantee into account when determining that issue.⁶

· In its second decision, the Trial Chamber made clear that, despite the ambiguity in its original decision, it had not taken the Republika Srpska guarantee into account in that decision. It once more refused Blagojevic provisional release,⁷ holding that it “remains not satisfied that if released, [Blagojevic] would appear for trial”.⁸ Although the Trial Chamber formally noted the direction by the Appeals Chamber that it was to take the Republika Srpska guarantee into account when determining whether Blagojevic would appear for trial,⁹ it made no further reference to the guarantee, stating that Blagojevic had not put forward any “real new facts” for its consideration.¹⁰

· When granting leave to appeal from the Trial Chamber’s second decision, a Bench of the Appeals Chamber invited the Trial Chamber to clarify the issue as to whether it had taken the guarantee into account notwithstanding the absence of any indication that it had done so.¹¹ The Trial Chamber did not respond to that invitation.¹²

The Decision

The Appeals Chamber held that the Trial Chamber had again failed to take the Republika Srpska guarantee into account, and then determined for itself that, notwithstanding the validity of that guarantee, it was not satisfied that Blagojevic would appear for trial if provisionally released.¹³ The appeal was dismissed.¹⁴

The Reasoning

The Appeals Chamber noted (1) that the only issue remitted to the Trial Chamber was a reconsideration of its original decision with the direction that it was to take the Republika Srpska guarantee into account when determining whether Blagojevic would appear for trial¹⁵ and (2) that, without reference to the guarantee, the Trial Chamber’s original finding that it was not satisfied that Blagojevic would appear for trial was not intended to be in issue in the reconsideration ordered.¹⁶ The only questions which arose in the appeal were the following:¹⁷

(a) Did the Trial Chamber comply with the direction by the Appeals Chamber to take the Republika Srpska guarantee into account when determining whether Blagojevic would appear for trial if granted provisional release?

(b) If the Trial Chamber did not do so, what order should now be made by the Appeals Chamber?

Regarding the first issue, the Appeals Chamber stated that 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 strongly suggested that it did not take those guarantees into consideration as directed.¹⁸ From the fact that the Trial Chamber had not responded to the invitation to clarify why it was unable to give any confirmation that it had taken the guarantee into account and from all the circumstances, the Appeals Chamber concluded that the Trial Chamber had not complied with the direction given.¹⁹ It then stated:²⁰

“Notwithstanding the submission made by Blagojevic that the Impugned Decision ‘seems to suggest a reluctance by the Trial Chamber to accept and apply the decision of the Appeals Chamber in Jokic’,²¹ it is unnecessary for the purposes of this appeal to determine why the Trial Chamber failed to comply with that direction. It is sufficient to say that the failure of the Trial Chamber to comply with the direction has led to an unfortunate and wholly unnecessary delay in reaching a proper conclusion in relation to the liberty of Blagojevic.”

As to the second issue, the Appeals Chamber found that no purpose would be served by returning the matter to the Trial Chamber to consider the issue it had twice failed to consider, as the Appeals Chamber was now in the same position as the Trial Chamber to determine that one issue.²² It held that if Blagojevic’s own personal undertaking was insufficient to produce that satisfaction, the reliability of the guarantee must be substantial before provisional release could be granted.²³ As to the probable attitude of Republika Srpska in respect of the arrest of this particular accused if he failed to comply with his personal undertaking,²⁴ the Appeals Chamber pointed out that (i) Blagojevic is charged, inter alia, with genocide arising out of the events at the Srebrenica “safe area” in Bosnia which are well known,²⁵ and (ii) is alleged to be at a high level in the hierarchy of responsibility for the crimes charged.²⁶ The Appeals Chamber concluded:²⁷

“Republika Srpska has so far failed to arrest any persons indicted by the Tribunal , and there is a substantial disincentive for it to arrest this particular accused , who must have substantially valuable information which he could disclose to the Tribunal if minded to cooperate should he be returned to custody. In the light of the finding already made that Blagojevic’s own personal undertaking is not sufficient to demonstrate that he will appear for trial, the Appeals Chamber is not satisfied that he will do so even when the valid guarantee from Republika Srpska is taken into account.”

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1. Decision on Vidoje Blagojevic’s Application for Provisional Release (hereinafter “Original Trial Chamber Decision”), 22 July 2002, Judicial Supplement No. 35.
2. Decision on Request for Provisional Release of Accused Jokic, 28 March 2002 (hereinafter “Jokic Appeal Decision”), paras. 25, 32.
3. Original Trial Chamber Decision, paras. 34, 36 and 50.
4. Ibid., paras. 54-55.
5. Decision on Provisional Release of Vidoje Blagojevic and Dragan Obrenovic (hereinafter “Original Blagojevic Appeal Decision”), 3 October 2002, para. 6, Judicial Supplement No. 37.
6. Ibid., para. 8.
7. Decision on Vidoje Blagojevic’s Application for Provisional Release, 19 November 2002 (hereinafter “Impugned Decision”).
8. Impugned Decision, page 3.
9. Ibid., page 2.
10. Ibid., page 3.
11. Decision on Applications by Blagojevic and Obrenovic for Leave to Appeal, 16 January 2003, para. 16.
12. Decision on Provisional Release Application by Blagojevic, 17 February 2003 (hereinafter “Decision”), para. 14.
13. Decision, para. 18.
14. Ibid., para. 19.
15. Ibid., para. 10.
16. Ibid., para. 15.
17. Ibid., para. 11.
18. Ibid., para. 13.
19. Ibid., para. 14.
20. Ibid.
21. Second Appeal from the Trial Chamber’s Impugned Decision on Vidoje Blagojevic’s Application for Provisional Release, 24 January 2003, para. 50.
22. Decision, para. 15.
23. Ibid., para. 16.
24. Mrksic, IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002, paras. 9 and 11, Judicial Supplement No. 37.
25. Decision, para. 17.
26. Ibid., para. 18.
27. Ibid.