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The Hague, 17 December 1997
Kupreskic & others Case: Provisional release denied
On Monday 15 December 1997, Trial Chamber II (consisting of Judge Antonio Cassese, presiding, Judge Richard May and Judge Florence Mumba) denied the Motions for provisional release filed on 14 November and 27 November 1997 by the six accused (see Press Release 262-E and ICTY Weekly update-7)
The principle of preventive detention
Recalling that the Rules of Procedure and Evidence of the ICTY poses that this principle “has been repeatedly affirmed in the practice of the International Tribunal” the Trial Chamber considered that “provisional release may only be ordered in extreme and rare circumstances such as where the accused’s state of health is incompatible with any form of detention”.
Pursuant to the practice of the ICTY in assessing applications for provisional release, “four criteria must be satisfied if a Trial Chamber is to order the provisional release of the accused”.
The latter must demonstrate that:
a) there are exceptional circumstances
b) they will appear for trial
c) if released they will not pose a danger to any victim, witness or other person
Furthermore, the host country must be heard
Applying these criteria to the six accused, the Judges determined:
a) “There are no exceptional circumstances involved in being a “family person” “.
b) The voluntary surrender of the accused and their “subordinate” position (as
opposed to persons in command of a situation) does not guarantee that they
will appear for trial
c) The fact that the accused are now in possession of statements of certain witnesses “creates an enhanced risk of interference with the course of justice”
The Trial Chamber concluded that the criteria have not been satisfied by the applicants, and denied the request for provisional release.
The full text of the above mentioned decision can be obtained
from the Press and Information Office upon request
International Criminal Tribunal for the former Yugoslavia
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