Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald

Mrs Dorothee de Sampayo Garrido-Nijgh

Order of:
27 July 2000





Office of the Prosecutor:

Mr Franck Terrier

Counsel for the Defence:

Mr Nikola Kostich


TRIAL CHAMBER I 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 ("International Tribunal");

BEING SEIZED of the Defence’s "Motion for Provisional Release" (the "Motion") and the Defence’s "Statement on Motions" in support of the Motion, both dated 7 April 2000 and filed on 13 April 2000, in which the Defence requests that the accused be provisionally released, pursuant to Rule 65 of the Rules of Procedure and Evidence (the "Rules");

NOTING the "Prosecutor’s Response to the Defence Motion for Provisional Release", dated 20 April 2000 (the "Prosecutor’s Response"), in which the Prosecution submits that the Motion should be rejected;

NOTING the Trial Chamber’s "Order on the Defence Motion for Provisional Release" of 11 May 2000, in which the Trial Chamber scheduled a hearing on the Motion on 18 May 2000, the "Defense Motion for Continuance of Provisional Release Hearing" of 11 May 2000, and the Trial Chamber’s "Decision Postponing the Hearing on a Motion for Provisional Release" of 17 May 2000, scheduling the hearing on the Motion for 8 June 2000;

NOTING that during the hearing on 8 June 2000, the Defence was not ready to argue the Motion and that the Trial Chamber orally granted the Defence an additional 15 days, that is until 23 June 2000, to complete the filing of the necessary documents in support of the Motion, and that it further granted the Prosecution the opportunity to file a response;

NOTING the "Defence Statement on Motion for Provisional Release" of 23 June 2000 (the "Defence Statement"), and the "Prosecutor’s Further Response to Defence Reply and Documents on Motion for Provisional Release" of 29 June 2000 (the "Prosecutor’s Further Response");

NOTING that in accordance with the Trial Chamber’s "Scheduling Order" of 4 July 2000, the Parties presented oral argument on the Motion during a hearing on 10 July 2000;

NOTING that neither the Motion nor the "Statement on Motions", which provides information on the "background of the accused, his circumstances at the time of the arrest and other biographical information", contain arguments on the merits of the Motion;

NOTING the Prosecution’s arguments in opposition to the Motion as set forth in the Prosecutor’s Response that:

  1. Pre-trial detention is the norm and not the exception;

  2. The accused has failed to meet any of the criteria for provisional release required by Rule 65(B), that is, that he will appear for trial and that, if released, he will not pose a danger to any victim, witness or other person; and

  3. The particular circumstances of the case weigh in favour of the rejection of the Motion;

NOTING that attached to the Defence Statement is the "Defence Reply to Prosecutor’s Response in Opposition to Motion for Provisional Release" (the "Defence Reply"), in which the Defence renews its request that the accused be provisionally released so that he may contribute to the financial support of his family and more actively assist in the preparation of his defence, submitting that:

  1. Rule 65(B) should be applied according to the individual circumstances of each case - the question to be asked is whether there is a significant probability that the accused will violate either of the requirements in Rule 65(B);

  2. The accused is able to guarantee that he will appear for trial - Republika Srpska is both competent and willing to issue guarantees for co-operation (a copy of a letter by counsel for the Defence requesting the co-operation of Republika Srpska is annexed to the Defence Statement), the accused would have voluntarily surrendered to the Tribunal had he known that he was indicted, and the accused has not attempted to evade or resist his arrest;

  3. The accused will not pose a threat to alleged victims or witnesses; and

  4. The length of time prior to trial favours provisional release - there is little chance for a speedy commencement of the trial given the Defence’s need to prepare its case;

NOTING that further attached to the Defence Statement are statements of the accused and his wife which concern the life and activities of the accused and which include the assurance that the accused will abide by any conditions set by the Trial Chamber if he were to be released;

NOTING the Prosecutor’s Further Response in which the Prosecution submits that:

  1. The potential for flight is not negated by the statements of the accused and his wife, as evidenced by a letter from the accused to the Ministry of Defence in Belgrade, dated 16 September 1999 and seized from the accused upon his arrest (annexed to the Prosecutor’s Further Response), in which the accused applies for housing in the Federal Republic of Yugoslavia;

  2. There is no indication of any formal offer of conditions or guarantees by Republika Srpska to the Trial Chamber; and

  3. The period of pre-trial detention to date is not unreasonable and it is speculative at this time to suggest that the period prior to trial will be inordinate;

NOTING that during the Motion hearing, the Defence made submissions pertaining to the correspondence between the accused and the Ministry of Defence in Belgrade, stating that the accused never intended to leave Banja Luka, that the reasons he applied for housing in the Federal Republic of Yugoslavia were of a different nature, that the accused has not appealed the rejection of his request for housing, and that the Defence further stated that the accused has been living openly in Banja Luka for a number of years up to his arrest, that the indictment against the accused was sealed and that Republika Srpska has improved its co-operation with the Tribunal, as evidenced inter alia by the success of other provisional releases;

NOTING that during the hearing, the Prosecution maintained that the conditions in Rule 65(B) have not been fulfilled, adding that the accused has failed to ascertain the position of the host country as to whether he will be readmitted into the Netherlands if released;

HAVING CONSIDERED all oral and written arguments and all supporting materials filed by the Defence and the Prosecution,

CONSIDERING that although Rule 65(B), as amended, no longer requires an accused to demonstrate exceptional circumstances before release may be ordered, this amendment does not affect the remaining requirements under that provision;

CONSIDERING that a determination as to whether release is to be granted must be made in light of the particular circumstances of each case, and may be granted by the Trial Chamber "only after hearing the host country 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";

NOTING that on 14 April 2000, the Deputy Registrar of the Tribunal invited the Kingdom of the Netherlands as the host country of the Tribunal to submit its views in writing, absent which he advised that it will be presumed that the Netherlands holds the opinion stated in a letter addressed to the Registrar of the Tribunal, dated 18 July 1996;

CONSIDERING that in the letter dated 18 July 1996, the Netherlands submitted that "it is for the Tribunal to determine whether a request for provisional release should be honoured and, if so, under what conditions", that it further limited its comments to the practical consequences of a provisional release, and that the absence of a response in the instant case therefore cannot be interpreted as an objection to the provisional release of the accused, and that the host country has been heard in accordance with Rule 65(B);

CONSIDERING that Republika Srpska has not provided any guarantees that it will co-operate with the Tribunal in ensuring that the accused complies with any conditions of release should the Trial Chamber decide to provisionally release him, in spite of declarations by the Defence that it would endeavour to obtain such guarantees;

CONSIDERING the particular gravity of the alleged offences and the alleged superior role of the accused therein;

CONSIDERING, moreover, that there is evidence that the accused has attempted to relocate to the Federal Republic of Yugoslavia in an attempt to evade a potential arrest, and that in view of the severe penalties which could be imposed in the case of a finding of guilt, the Trial Chamber is not convinced that the accused will appear for trial;

CONSIDERING that in light of the gravity of the charges in the indictment the Trial Chamber does not consider the length of the pre-trial detention to be unacceptable;

CONSIDERING, finally, that the burden rests on the Defence to satisfy the Trial Chamber that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person, and that if any of those criteria is not met, the Trial Chamber is not authorised to order the provisional release of the accused;

PURSUANT to Rule 65 of the Rules;


DENIES the Motion.


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

Almiro Rodrigues
Presiding Judge

Done this 27 July 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]