The Prosecutor v. Nikola Sainovic and Dragoljub Ojdanic - Case No. IT-99-37-PT

"Decision on Applications of Nikola Sainovic and Dragoljub Ojdanic for Provisional Release"

26 June 2002
Trial Chamber III (Judges May [Presiding], Robinson and Kwon)

Procedural Background

· On 5 and 10 June 2002 respectively, Nikola Sainovic and Dragoljub Ojdanic3 filed motions requesting provisional release pursuant to Rule 65 of the Rules of Procedure and Evidence.

· The Prosecutor responded on 19 June 2002 and opposed the Applications.

· On 21 June 2002 she filed a corrigendum to seek a stay of the decision in order to appeal, should the Trial Chamber grant provisional release.

· During the hearing on the application, on 24 June 2002, oral arguments were advanced by both parties and by representatives of the Federal Government of FRY.

The Decision

On 26 June 2002 the Trial Chamber granted the Applications for Provisional Release subject to the terms and condition set out in the Orders for Provisional Release appended to the Decision and stayed the Decision pending an appeal by the Prosecution.

The Reasoning

The Trial Chamber referred to the criteria set out in the case law of the Tribunal, according to which a determination as to whether provisional release is to be granted must be made "in the light of the particular circumstances of each case" and may be granted only it is satisfied that the accused "will appear for trial and, if released, will not pose a danger to any victim, witness or other person".4

In assessing whether the accused will appear for trial, the Trial Chamber first attached a "significant weight" to the fact that they have surrendered as an indication of their willingness to co-operate with the Tribunal. It considered that, in the present case, the fact that the accused could have surrendered earlier is to be noted, but it pointed out that "it is the fact of surrender which is of significance".5

The Trial Chamber then referred to the legislation regulating the cooperation of the FRY with the Tribunal which sets out in articles 18 to 31 the procedure for the surrender of accused persons.6 Noting that "procedures of this nature" did not previously exist and that it remains to be seen how the procedures will "operate in practice", the Trial Chamber considered the law as a step towards co-operation and deduced from the steps taken by the Government of the FRY that the "proposed level of co-operation" was satisfactory.

While reiterating that guarantees are not a requirement for granting provisional release,7 but only provide "further assistance", the Trial Chamber nevertheless took into account the guarantees given by the Federal Government of the FRY and the Republic of Serbia as regards each accused, according to which they undertake to ensure, inter alia, that the accused report to a police station, keep a record of attendance at the same time, forward monthly reports to confirm compliance, and immediately arrest the accused if they try to escape or violate any condition of the provisional release.

The Trial Chamber refused to consider the Prosecution's argument that the likelihood that the accused will face long prison sentences would prevent them from appearing for trial. It rejected the assertion that such an eventuality should lead to a presumption that they will not. Referring to the European Court of Human Rights in the Ilijkov case,8 it attached importance to the will of the accused to make themselves available for trial.

With regard to the argument of the Prosecutor that Applications were premature since she has not had the time to question the accused under Rule 63 of the Rules of Procedure and Evidence (Questioning of the Accused), the Trial Chamber affirmed that the fact that the Rule 63 procedure has or has not been concluded "plays no role in the determination of this issue" and that, in any event, there is still a possibility to interview the accused while on provisional release.

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1. Rule 65 (Provisional Release) (A) and (B):
Once detained, an accused may not be released except upon an order of a Chamber.
Release may be ordered by a Trial Chamber only after giving the host country and the State to which the accused seeks to be released the opportunity to be heard and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.
2. Rule 63 (Questioning of Accused):
Questioning by the Prosecutor of an accused, including after the initial appearance, shall not proceed without the presence of counsel unless the accused has voluntarily and expressly agreed to proceed without counsel present. If the accused subsequently expresses a desire to have counsel, questioning shall thereupon cease, and shall only resume when the accused's counsel is present.
The questioning, including any waiver of the right to counsel, shall be audio-recorded or video-recorded in accordance with the procedure provided for in Rule 43. The Prosecutor shall at the beginning of the questioning caution the accused in accordance with Rule 42 (A)(iii).
3. Dragoljub Ojdanic surrendered to the International Criminal Tribunal for the former Yugoslavia on 25 April 2002 and has been detained since his initial appearance on 26 April 2002. Nikola Sainovic surrendered on 2 May 2002 and has been in detention since his initial appearance on 3 May 2002. They are both charged with four counts of crimes against humanity, namely deportation, other inhuman acts (forcible transfer), murder and persecution, and also with one count of violation of the laws and customs and war.
4. See The Prosecutor v. Blagojevic et al., Decision on Application by Dragan Jokic for Leave to Appeal, IT-02-53-AR65, 18 April 2002. See also The Prosecutor v. Miroslav Kvocka et al., Trial Chamber III, Decision on Motion for Provisional Release of Miroslav Kvocka, Case No. IT-98-30-PT, 2 February 2000. See also The Prosecutor v. Blagoje Simic et al. Case No. IT-95-9-PT, Decisions on Simo Zaric 's and Miroslav Tadic 's applications for provisional release, 4 April 2000 (summarised in Judicial Supplement No.14).
5. Para. 12.
6. See the Law on Cooperation of the Federal Republic of Yugoslavia with the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, adopted by the Federal Assembly at the session of the Chamber of Citizen of 11 April 2002 and the session of the Chamber of Republics of 10 April 2002, proclaimed by decree on 11 April 2002, reprinted in the Official Gazette of the Federal Republic of Yugoslavia, Number 18, Year IX. See for example article 23, which sets forth the obligation of the "organs of internal affairs" to arrest the accused when requested by the Tribunal.
7. See The Prosecutor v. Blagojevic et al., Trial Chamber II, Decision on Application by Dragan Jokic for Leave to Appeal, IT-02-53-AR65, 18 April 2002, paras. 7-8.
8. European Court of Human Rights, Ilijkov v. Bulgaria, Judgement, 26 July 2001. Decision also referred to in The Prosecutor v. Enver Hadzihasanovic et al., Case No. IT-01-47-PT, Decisions granting Provisional Release to Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura, 19 December 2001 (summarised in Judicial Supplement No. 30).