Court Orders Pre-Trial Release of Top Serbs: Trial Chamber says Ojdanic and Sainovic will return for trial

On June 26, 2002, a Trial Chamber of the ICTY granted provisional release (release until trial, subject to conditions) to two of Milosevic's co-accused, over the vigorous opposition of Chief Prosecutor Carla Del Ponte. Judge Richard May, writing for the same panel hearing the Milosevic case, noted that the accused, Nikola Sainovic, Milosevic's point man on Kosovo, and Dragoljub Ojdanic, head of the FRY (Federal Republic of Yugoslavia) Army during the war, met all the legal requirements for release: they would appear at trial and would not pose a danger to any victim, witness or other person. Mrs. Del Ponte had argued that release was premature because the Prosecution had not completed interrogating the accused, as permitted under ICTY Rule 63. The Court ruled that compliance with Rule 63 'plays no role in the determination of this issue [provisional release].'

This must have surprised Mrs. Del Ponte, who argued that 'detention is the rule' and that it is the policy of the OTP (Office of the Prosecutor) to oppose pretrial release until they have completed questioning the accused, even where the other conditions for release have been met. Admitting neither Sainovic nor Ojdanic posed any danger for potential witnesses, she nevertheless expressed concern that they would be subject to influence if interrogated in Belgrade rather than in The Hague. In either case, ICTY Rule 63 prohibits questioning by the prosecution unless defense counsel is present, or the accused has waived this right.

Prior to amendment in 1999, pretrial detention was the rule, absent 'exceptional circumstances,' such as ill health. When the Tribunal threw out the 'exceptional circumstances' requirement, it changed the preference from pretrial detention to pretrial release. With that change, the Tribunal brought its jurisprudence into line with the trend in international humanitarian law that favors pretrial release as a principle flowing from the presumption of innocence. The Court's ruling in the present case makes clear that detention is not the rule, but the exception, allowable only when necessary to assure the accused's presence at trial or to prevent harm to victims, witnesses or others.

Del Ponte also objected on the grounds that the Federal Republic of Yugoslavia was still not cooperating with her office in providing access to archives, arresting the last Milosevic co-accused, Milan Milutinovic, currently Serbian President, and, most importantly, arresting General Ratko Mladic, one of the Hague's 'most wanted' who is reportedly in Serbia.

The FRY Deputy Minister of Justice, Nebojsa Sarkic, traveled from Belgrade for the hearing to provide guarantees from the governments of the FRY and Serbia that they would monitor and turn over the two accused to the Tribunal in time for trial or when otherwise ordered to do so. Stating that the FRY and Serbia 'have many more needs to cooperate with the ICTY than the ICTY has with us,' Mr. Sarkic stressed that a positive decision would 'encourage some others on the list' to voluntarily turn themselves into the ICTY. Approximately 16 public indictees are believed to be at large in Serbia. According to Mr. Sarkic, the FRY has no evidence that Mladic is on its territory. He indicated that the FRY is processing the OTP's requests for documents from the archives and is working on this with the OTP representative in Belgrade on a daily basis.

In reaching its decision, the Trial Chamber said that the cooperation or non-cooperation of the FRY and Serbia in general was irrelevant to their decision on whether to grant provisional release in these two cases. 'The suggestion was made [by the prosecutor] that the Governments' level of co-operation was generally unsatisfactory. However, it is the particular level of co-operation relating to the issues of provisional release with which this application is concerned. In this connection, the Trial Chamber is satisfied that the proposed level of co-operation is satisfactory.'

Concluding that the decision to grant provisional release depends on the circumstances of each individual case in light of Rule 65 requirements, the Chamber noted that it considered 'the length of pre-trial detention to be an important consideration.' During argument, Mrs. Del Ponte suggested that OTP interrogation might take as long as six months, while defense counsel Peter Robinson estimated the trial itself would not start for two years.

The Court made the releases conditional on compliance with the following: a) to remain within the city of Belgrade; b) to surrender their passports to the Ministry of Justice; c) to report daily to the Belgrade police; d) to provide their addresses to the Ministry of Justice and the ICTY Registrar; e) to consent to unannounced visits from the Ministry of Justice or the ICTY Registrar; f) to make themselves available to the ICTY Prosecutor for interviews; g) to have no contact with other co-accused; h) to have no contact with or to in any way interfere with victims or potential witnesses; i) to not discuss the case with anyone besides their lawyers; j) to continue cooperation with the ICTY; k) to comply with other requirements of FRY and Serbian authorities that enable them to meet their obligations to the ICTY; l) to return to the ICTY when the Trial Chamber so orders; m) to comply with further Trial Chamber Orders that vary or terminate the provisional release.

The Court order imposed requirements on the governments of the FRY and Serbia, as well, including facilitating ICTY contact with the accused, providing bi-weekly reports of compliance and immediately arresting and detaining the accused for violation of any conditions of the Provisional Release Order.

In response to the OTP's request, the Trial Chamber stayed its decision pending appeal by the prosecution. Sainovic and Ojdanic remain in detention in The Hague until the Appeals Court acts.