Case No.: IT-02-57-PT


Judge Patrick Robinson, Presiding

Judge O-Gon Kwon
Judge Iain Bonomy

Mr. Hans Holthuis

Decision of:
22 July 2005







The Office of the Prosecutor

Mr. Peter McCloskey

Counsel for the Accused

Mr. Zoran Zivanovic

THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“International Tribunal”),

BEING SEISED of “Vujadin Popovic’s Motion for Provisional Release”, filed by counsel for Vujadin Popovic (“Accused”) on 22 June 2005 (“Motion”), requesting the Accused be granted provisional release pursuant to Rule 65, and the “Prosecution Response to Request for Provisional Release”, filed by the Office of the Prosecution (“Prosecution”) on 6 July 2005 (“Response”), opposing the Motion,

NOTING also the Defence Motion Requesting Leave to Reply,1 and the subsequent Defence Reply to the Prosecution’s Response2 (“Reply”), filed on 11 and 12 July 2005 respectively,

NOTING the following Defence arguments in support of the Motion:

(i) the Accused’s rank as Lieutenant-Colonel in the Bosnian-Serb Army at the relevant time should not be regarded as an obstacle to his provisional release as provisional release has been granted to many accused with higher ranks in the military or security hierarchy;3

(ii) the Accused voluntarily surrendered to the ICTY on 14 April 2005, which was the earliest he could have surrendered since he needed to obtain guarantees for his security and that of his family;4

(iii) the Accused had an operation in May 2005 although no details as to the reasons for the procedure are currently available;5

NOTING further the guarantees provided for the Accused by the Government of the Republic of Serbia6 and the Council of Ministers of Serbia and Montenegro,7 and the personal guarantee provided by the Accused himself,8

NOTING the following submissions in the Prosecution Response:

(i) there is considerable doubt as to the voluntary nature of the Accused’s surrender in that the first Warrant for Arrest and Order for Surrender was issued against the Accused on 26 March 2002; an additional Warrant for Arrest and Order for Surrender, directed to the authorities of the Federal Republic of Yugoslavia, was issued on 7 August 2002; on 21 October 2002, the Indictment and related warrants and orders were disclosed to the public, and on 12 January 2004 another Order for Surrender was issued, directed to any member state of the United Nations, for the capture of Popovic; the Accused’s brother was mistakenly apprehended in early November 2004, brought into the custody of the authorities of the International Tribunal before being released, yet still the Accused did not surrender, having sought refuge in the Russian Federation prior to his transfer to the Tribunal by the authorities of the Government of Serbia and Montenegro on 14 April 2005, although nothing is known about the circumstances surrounding his transfer to The Hague;9

(ii) the guarantees provided by the authorities of the Republic of Serbia and Serbia and Montenegro should be given little weight in light of the reluctance of the authorities to co-operate fully with the International Tribunal, the serious nature of the charges faced by the Accused, with the likelihood of a substantial period of confinement upon conviction, and the Tribunal’s completion strategy which provides a disincentive for the Accused to appear for trial;10

NOTING that the Defence submits in its Reply that:

(i) the Accused could not have surrendered after the indictment was made public because he had to obtain some guarantees for his security and that of his family, and that he was unable to obtain these until April 2005 when he voluntarily surrendered,11

(ii) that the allegation by investigator Robert Reid, contained in Annex A to the Prosecution’s Response, that the Accused sought refuge in the Russian Federation is completely unfounded, and the information in Mr. Reid’s possession is “completely doubtful”,12

NOTING that, according to Rule 65 (B) of the Rules, in determining whether to grant provisional release to an accused, it is for the accused to satisfy the Trial Chamber of two matters: (i) that he will appear for trial, and (ii) that, if released, he will not pose a danger to any victim, witness or other person,

CONSIDERING that the Defence does not state why the Accused needed such guarantees, or the nature of these guarantees, or the circumstances in which he had difficulty obtaining them,

CONSIDERING also that the Defence does not explain why it asserts that Mr. Reid’s information is “completely doubtful”, and it gives no other information as to the Accused’s whereabouts prior to his transfer to the International Tribunal, a matter peculiarly within the knowledge of the Defence,

CONSIDERING that the Accused would have known that there was an indictment against him by at least 21 October 2002 when the indictment was made public, and that he took no steps to surrender when his brother was mistaken for him and arrested,

CONSIDERING further the length of time during which the Accused failed to surrender to the International Tribunal following the Indictment being made public, and the absence of any clear explanation for that or any indication of the whereabouts and movements of the Accused during that period, the Trial Chamber is not prepared to give any weight to the Accused’s personal guarantee and is not satisfied that he would not try to deliberately evade justice, and thwart the efforts of the authorities of the Republic of Serbia and Serbia and Montenegro to implement their guarantee,

CONSIDERING therefore that the Trial Chamber is not satisfied that, if released, the Accused will appear for trial,

PURSUANT TO Rule 65 of the Rules,

HEREBY GRANTS leave to the Defence to file a reply and ACCEPTS the Reply as filed;

and, DENIES the Motion for Provisional Release for the foregoing reasons.

Done in English and French, the English text being authoritative.

Judge Patrick Robinson

Dated this twenty-second day of July 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1 - “Defence Motion Requesting Leave to Reply to the “Prosecution’s Response to Request for Provisional Release for Accused Vujadin Popovic”, 11 July 2005.
2 - “Defence Reply to the Prosecution’s Response to Request for Provisional Release for Accused Vujadin Popovic”, 12 July 2005.
3 - Motion, para. 9.
4 - Motion, para. 10.
5 - Motion, para. 11.
6 - Motion, para. 5 and Annex A.
7 - Motion, para. 5 and Annex B.
8 - Motion, para. 6 and Annex C.
9 - Response, paras. 2 – 5 and Annex A.
10 - Response, para. 9 – 15 and Annex A.
11 - Reply, para. 12.
12 - Reply, para. 14.