Judge Claude Jorda, Presiding
Judge Elizabeth Odio Benito
Judge Fouad Riad

Mr. Dominique Marro, Deputy Registrar

Order of:
20 December 1996







The Office of the Prosecutor:

Mr. Mark Harmon
Mr. Gregory Kehoe

Counsel for the Accused

Mr. Anto Nobilo
Mr. Russel Hayman



NOTING the indictment presented by the Prosecutor against General Tihofil Blaskic, (hereinafter "the accused"), as confirmed on 10 November 1995 and amended on 22 November 1996,

NOTING the decisions of the President of the International Criminal Tribunal (hereinafter "the Tribunal") of 3 and 17 April 1996 in respect of the accused’s conditions of preventive detention,

NOTING the order of Trial Chamber I of 25 April 1996 rejecting a request for provisional release of the accused,

NOTING the invitation extended to the host country (the Netherlands) pursuant to Rule 65 of the Rules of Procedure and Evidence of the Tribunal (hereinafter "the Rules") and the written comments therefore submitted by the representatives of the authorities of the host country on 19 December 1996;

HAVING HEARD the arguments of the parties at the hearing of 19 December 1996;

CONSIDERING that, pursuant to Rule 64 of the Rules, the accused is currently being held under modified conditions of detention; that a further application for modification of the conditions of detention has been submitted to the President of the Tribunal; that the decision relating to that application is under review;

CONSIDERING that in the motion dated 11 December 1996 presented to Trial Chamber I the accused requests that he be released provisionally and that the request is accompanied by several proposals for guaranteeing his appearance at trial;

CONSIDERING that the submissions concerning facts and law presented by the accused in support of his request and the response of the Prosecutor filed with the Registry on 16 December 1996 and argued at the hearing of 19 December 1996 should be noted;

CONSIDERING that, in support of its request, the Defence put forth the following arguments:

1) the accused surrendered himself voluntarily to the Tribunal which "makes the circumstances of this case exceptional";

2) the Prosecutor is not prepared to go to trial and has not met her obligation to disclose evidence as required by the provisions of Sub-rule 66(A) of the Rules, whereas the Defence has spared no effort to move the case forward;

3) the accused is prepared to agree to any conditions to which the Trial Chamber would make his provisional release subject including inter alia: an order to remain in Zagreb, surrender of his passport to the Tribunal, the posting of a bail bond in the amount of DM 1 million;

4) the Government of Croatia is prepared to offer any guarantee in order to ensure the appearance of the accused should he not wish to surrender himself voluntarily to the Tribunal for trial;

5) the accused would pose no danger to any victim or witness;

6) the current family situation of the accused;

7) the presence in Zagreb of the accused would permit him to prepare his defence more effectively;

CONSIDERING that in reply the Prosecutor emphasises:

1) that there are reasonable grounds for believing that the accused has committed the crimes of which he has been accused and that he played a leading part in such crimes;

2) that the length of the detention is not unreasonable and does not violate international standards in such matters;

3) that the measures proposed by the accused to ensure his presence at trial are insufficient;

4) that provisional release of the accused might pose a danger to victims and witnesses;

5) that the family situation of the accused is not unique, that it is common to many detainees, and that the modified conditions of detention which he enjoys are in excess of those of the other detainees;

6) that provisional release of the accused might discourage many witnesses from appearing;

CONSIDERING that the Trial Chamber will first review the legal argument based on the analysis of Rule 65 of the Rules and on the principles governing preventive detention in light of the facts of the case in point; that it will then review the other arguments invoked by the Defence;

Regarding Rule 65 and the system of preventive detention at the Tribunal

CONSIDERING that a reading of Rule 65 of the Rules demonstrates that provisional release may be ordered by a Trial Chamber only "in exceptional circumstances";

CONSIDERING that both the letter of this text and the spirit of the Statute of the International Tribunal require that the legal principle is detention of the accused and that release is the exception; that, in fact, the gravity of the crimes being prosecuted by the International Tribunal leaves no place for an other interpretation even if it is based on the general principles of law governing the applicable provisions in respect of national laws which in principle may not be transposed to international criminal law;

CONSIDERING further that Rule 65 provides that the Trial Chamber may not order provisional release unless 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";

CONSIDERING that the three above-mentioned criteria must be satisfied concurrently;

CONSIDERING that the proof of the existence of exceptional circumstances which this same Trial Chamber found in a previous case in "the extreme gravity of the current medical condition of General Djukic S...C not compatible with any form of detention" (Decision supporting the indictment and rejecting a request for provisional release, IT-96-20-T, dated 24 April 1996) has in no manner been shown in the case in point; that although it justified the modification of his conditions of detention (cf. Decision of the President of the Tribunal of 3 April 1996), the fact that the accused surrendered voluntarily

does not in and of itself invalidate the principle invoked above; that other conditions must also be present;

CONSIDERING the guarantees that the accused will reappear which might be offered by the Government of the Republic of Croatia, as proposed by the Defence, are in no manner sufficient to ensure that, should he be released, the accused would appear before this Tribunal at any moment;

CONSIDERING that, in fact, the Trial Chamber notes that, despite its international obligations, as expressly recognised by its having signed the Peace Agreements in Paris on 14 December 1996 which had been reached in Dayton, Croatia has already failed to satisfy its obligation to co-operate with the Tribunal; that it notes that Trial Chamber II of the Tribunal has taken note of the refusal of this State to co-operate in the Rajic case (Decision pursuant to Rule 61 of the Rules, dated 13 September 1996, IT-95-12-R61); and that in this case, to date, Croatia has not transferred the accused Zlatko Aleksovski whom it is holding in detention nor has it co-operated in the transfer of General Blaskic’s co-accused whose names appear in the original indictment;

CONSIDERING that the other guarantees which the accused proposes, including the posting of a bail bond, even one which is very high, are not sufficient to satisfy that the accused will appear at his trial because of the gravity of the criminal acts of which he stands accused; of the severity of the penalties to which he is liable, and last of his sole offer to reside in his country in Zagreb;

CONSIDERING that the Defence has not provided the proof which would permit the Trial Chamber to believe that, should he be released provisionally, he would not constitute a danger for the witnesses; that, furthermore, the Trial Chamber, as it noted in the order denying an initial motion for provisional release dated 25 April 1996, considers that the very fact of his provisional release "might discourage witnesses from appearing and thus hindering the proper administration of justice."

Regarding the length of the preventive detention

CONSIDERING that the Trial Chamber notes that neither the Statute of the Tribunal nor the Rules provide a specific time period beyond which provisional release would be a right, and that it does not appear appropriate to make a comparison between the various national systems given the very particular context in which the Tribunal finds itself;

CONSIDERING that the Judges, who are the guarantors of individual liberties, must examine the consequences of a period of preventive detention which would appear excessive to them in light of the general principles of law, including the right of the accused to be tried without excessive delay, that is, within a reasonable time period (cf. Article 21.4(c) of the Statute and Article 5.3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, (hereinafter "European Convention");

CONSIDERING that the reasonable nature of the length of the preventive detention must "be evaluated in the light of the circumstances of each case" (Sanchez-Reisse v. Switzerland, 21 October 1986, Series A, no. 107, para. 55, European Court of Human Rights, hereinafter "European Court") and that the following criteria should be examined when considering this question:

1) the effective length of the detention;

2) the length of the detention in relation to the nature of the crime;

3) the physical and psychological consequences of the detention on the detainee;

4) the complexity of the case and the investigations;

5) the conduct of the entire procedure;

CONSIDERING that in the case in point the detention of the accused to date is less than nine months, having begun on 1 April 1996, whereas the crimes of which is accused are extremely serious; and that, in respect of Article 5.3 of the European Convention, the Commission of Human Rights (hereinafter "the Commission"), as well as the European Court, could consider reasonable, in the cases in which the criteria which it has identified were satisfied, time periods of 19 months to 5 years (cf. European Court, Case W v. Switzerland, 26 January 1993, Series A. no. 254, and Commission, Ventura v. Italy, App. n. 7438/76, report of 15 December 1980 and Commission, X v. Germany, App. no.. 6946/75, report of 6 July 1976);

CONSIDERING that the modification of the conditions of detention granted to the accused in part relieve the usual effects of incarceration;

CONSIDERING further that the real complexity of the case which led the Prosecutor to draft an amended indictment containing nineteen counts and the great difficulties encountered in the conduct of the on-site investigations should be noted (cf. European Court, Case Neumeister v. Austria, 27 June 1968, series A no. 8 and Commission, Schertenleib v. Switzerland, App. n. 8339/78, report of 11 December 1980;

CONSIDERING finally that the Trial Chamber, in respect of the conduct of the proceedings, deplores the delays with which the Prosecutor has satisfied her obligation to disclose materials to the Defence, pursuant to the provisions of Sub-rule 66(A) of the Rules but recalls, however, that the new schedule for the proceedings set by the Trial Chamber at the hearing of 4 December 1996, also is the result of the many preliminary motions filed by the Defence;

CONSIDERING, therefore, that the preventive detention of the accused does not exceed the reasonable time period pursuant to international principles and particularly those of the European Convention as interpreted by the Commission and the European Court;

In respect of the other arguments raised by the Defence

CONSIDERING that the accused already enjoys a privileged condition of detention, the Trial Chamber finds that the arguments raised by the Defence concerning the beneficial effect which his presence in Zagreb would have both to prepare his defence and to meet his family obligations are not relevant to the case in point;

CONSIDERING that the conditions to which Rule 65 of the Rules subjects the provisional release of an accused have not been satisfied in the case in point;


REJECTS the request for provisional release filed with the Registry by General Blaskic on 11 December 1996.


Done in French and English with the French version being authoritative.

Done this twentieth day of December 1996
The Hague, The Netherlands

Judge Claude Jorda, Presiding
Trial Chamber I