Case No. IT-01-48-T


Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Mr. Hans Holthuis

Decision of:
21 April 2005







Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re


TRIAL CHAMBER I, SECTION A, ("Trial 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 ("Tribunal");

BEING SEISED of the "Motion for Provisional Release" filed by the Defence on a confidential basis on 1 April 2005 ("Motion"), in which the Defence requests the provisional release of the Accused Sefer Halilović during the suspension of the trial proceedings, which will take place from 25 April until 11 May 2005;

NOTING that during the public trial hearing of 12 April 2005 the Prosecution submitted orally that it does not object to the Motion and "will leave it entirely to the discretion" of the Trial Chamber ("Prosecution Response");1

NOTING the "Decision on Request for Pre-Trial Provisional Release" issued on 13 December 2001 by Trial Chamber III, which was seized of the case at the time;

NOTING that the Defence submits in its Motion that:

  1. the pre-trial provisional release of Mr Halilovic was subject to a number of conditions with which the accused has complied fully over a period of more than two years;

  2. all the requirements of Rule 65 of the Rules of Procedure and Evidence ("Rules") were met and the circumstances relevant to this assessment have not changed in any relevant manner; and

  3. while it acknowledges the fact that provisional release of an accused person in the middle of his trial may cause a number of practical concerns for the Tribunal, which must be regarded as relevant considerations, exceptional circumstances justify the Motion being granted:
    1. serious death threats have been made against the son of Mr Halilovic and because Mr Halilovic is indigent he cannot pay for his family to come to The Hague nor is he otherwise able, because of his detention, to ensure their security on Sarajevo;

    2. there is a real risk that his family could be ejected from the apartment which they currently occupy and Mr Halilovic would like to go back to Sarajevo to solve the matter with the authorities concerned; and

    3. as Mr Halilovic is indigent he will not be able to pay for the travel of his family to The Hague and as a result might not be able to see them until the end of the trial;

HAVING CONSIDERED all of the arguments of the Defence;

CONSIDERING that pursuant to Articles 20 and 21 of the Statute of the Tribunal ("Statute") the Trial Chamber has to ensure a fair and expeditious trial and that proceedings are conducted in accordance with the Rules, with full respect for the rights of the accused and due regard for the protection of victims and witnesses;

CONSIDERING that pursuant to Rule 65 (B) of the Rules a Chamber may order a provisional release of an accused inter alia, only if it is satisfied that the following two requirements are met: (i) the accused will appear for trial and, (ii) if released, will not pose a danger to any victim, witness or other person";2

CONSIDERING that the Trial Chamberís discretion under Rule 65 must be exercised in light of all the circumstances of the case;

CONSIDERING that, in the present case, the Accused complied with all the conditions imposed upon him while provisionally released during the pre-trial proceedings;

NOTING that the Accused submitted a guarantee from the Government of Bosnia and Herzegovina in support of his former request to be provisionally released during the pre-trial proceedings, in which the Government of Bosnia and Herzegovina guaranteed that the accused will appear for trial and will not have any contact with any Prosecution witnesses nor do anything that might influence the testimony of any Prosecution witnesses;3

NOTING HOWEVER that the guarantee from the Government of Bosnia and Herzegovina previously submitted dated back to October and December 2001 and that the Trial Chamber was not provided with a guarantee from the Government of Bosnia and Herzegovina in support of the Motion;

CONSIDERING that the Trial Chamber finds that the facts submitted by the Defence in support of the Motion do not amount to exceptional circumstances;

CONSIDERING that the request for provisional release has been made during the course of the trial while the Prosecution is still presenting its case;

CONSIDERING the advanced stage of the Prosecution case where most of the evidence in support of the Prosecution case has been presented and further Prosecution witnesses are still to be heard;

CONSIDERING that the Trial Chamber does not find it appropriate, in light of the circumstances of the present case, to grant provisional release of the Accused at the current stage of the proceedings;




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

Judge Liu Daqun
Presiding Judge

Dated this 21 April 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1. Trial Hearing, 12 April 2005, T. 61.
2. See also Prosecutor v. Ivan Cermakís and Mladen Markac, Case No. IT-03-73-PT, Decision on Ivan Cermakís and Mladen Markacís Second Motions for Provisional Release, 14 September 2004, para. 7, in which the Chamber found that "release may be granted if a Chamber is satisfied that the [two requirements] are met and if it is also satisfied that release is appropriate in a particular case."
3. Request for Provisional Release, 28 November 2001.