Case No.: IT-98-30/1-A


Judge Mohamed Shahabuddeen, Presiding
Judge David Hunt
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana
Judge Theodor Meron

Mr. Hans Holthuis

Order of:
11 September 2002






Counsel for the Prosecutor:

Mr Christopher Staker

Counsel for the Appellants

Mr K. Simic for M. Kvocka
Mr T. Fila for M. Radic
Mr S. Stojanovic for Z. Zigic
Mr J. Simic for D. Prcac


THE APPEALS 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 ("the International Tribunal"),

BEING SEISED of "Motion for provisional release of Miroslav Kvocka" filed on 23 August 2002 ("the Motion"), in which Miroslav Kvocka ("the Appellant") seeks provisional release to be able to stay with his wife whose health is deteriorating;

NOTING that the Appellant was convicted by Trial Chamber I on 2 November 2001 and sentenced to seven years’ imprisonment, which he is currently serving;

NOTING that the Appellant filed a Notice of Appeal before the Appeals Chamber on 13 November 2001 and that the appeal is pending;

NOTING the submission of the Appellant that:

    1. the proceedings in the Kvocka case have entered their fifth year and are therefore one of the longest in the International Tribunal;
    2. when in detention, Kvocka has behaved well, as a civilised and responsible man;
    3. on 9 December 2002, Kvocka would have served two-thirds of his sentence and the practice of the International Tribunal is to release individuals when they have served two-thirds of their sentence;
    4. his wife’s health is deteriorating and would significantly improve if the Appellant was released from detention;
    5. at this phase of the proceedings, there is no risk that the Appellant will not appear for trial or that he will pose a danger to any victim, witness or other person;
    6. the Government of Republika Srpska has given guarantees that if released the Appellant will appear for trial;

NOTING the "Prosecution Response to the Motion entitled 'Motion for provisional release of Miroslav Kvocka'", filed on 29 August 2002 in which the Prosecution submits that the Motion should be denied;

NOTING the Prosecution’s submission that:

    1. there has been no undue delay in the length of these appeal proceedings, as less than nine months have elapsed since the Trial Chamber gave its judgement in this case;
    2. the good behaviour of an applicant while in the custody of the Tribunal cannot constitute a "special circumstance" for the purposes of Rule 65(I)(iii) of the Rules of Procedure and Evidence ("the Rules");
    3. the possibility of an appellant applying for early release in the future cannot constitute a relevant "special circumstance" and that there has never been a judicial determination by a Chamber of the Tribunal whether or not there is power to order early release of a convicted person who is still in the UN Detention Unit;
    4. there has been no affidavit or other evidence submitted by the Appellant in support of the poor health of the Appellant’s wife and the consequence that his provisional release could have on her health;
    5. no guarantee from the Government of Republika Srpska has been filed in support of the Appellant’s Motion;
    6. the Motion has not discharged the Appellant’s burden of establishing the requirements of Rule 65(I) of the Rules;

NOTING that in the present case, the Ministry of Foreign Affairs of the Netherlands indicated by letter dated 26 August 2002 that they have no objections to the provisional release of the Appellant and that they understand that, upon his provisional release, the Appellant will leave Dutch territory;

NOTING that the "Reply on Prosecution’s Response to the Motion for Provisional Release of Miroslav Kvocka" was filed on 3 September 2002 ("the Reply");

NOTING that, in accordance with paragraph 12 of the "Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal" (IT/155 Rev.1), the Reply was filed one day out of time, but nevertheless in the circumstances of this case and in furtherance of Rule 127(A) (ii) of the Rules, recognising it as validly filed;

NOTING that Rule 65 (I) of the Rules reads, inter alia, as follows:

"The Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that:

  1. the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be;
  2. the appellant, if released, will not pose a danger to any victim, witness or other person, and
  3. special circumstances exist warranting such release";

CONSIDERING that, as to sub-paragraphs (i) and (ii) of Rule 65 (I) of the Rules, the Appellant has advanced no material proof to support the contentions that he will appear for trial and will not pose a danger to any victim or witness;

CONSIDERING that, although the Appellant has promised the provision of a guarantee to appear, no such guarantee has yet been made available to the International Tribunal;

CONSIDERING that, as to sub-paragraph (iii) of Rule 65 (I) of the Rules, the Appellant has advanced no material proof to support the contentions that his wife’s health would greatly benefit from his provisional release;

CONSIDERING that, so far as the Appellant refers to his possibility of being granted early release after December 9 2002 and taking into account paragraph 7 of the Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence and Early Release of Persons Convicted by the International Tribunal, early release is not a matter for this Appeals Chamber but for the President of the International Tribunal who decides on applications for early release filed at the appropriate time;

FINDING that, even if a guarantee to appear may become available, in any event there are no special circumstances warranting release under subparagraph (iii) of sub-Rule 65 (I);



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

Mohamed Shahabuddeen
Presiding Judge

Dated this eleventh of September 2002
At The Hague
The Netherlands

[Seal of the Tribunal]