Case: IT-95-14/2-A


Judge Wolfgang Schomburg, Presiding
Judge Fausto Pocar
Judge Florence Mumba
Judge Mehmet Güney
Judge Weinberg de Roca

Mr. Hans Holthuis

Decision of:
12 December 2003







Counsel for the Prosecutor:

Mr. Norman Farrell
Ms. Helen Brady

Counsel for the Defence:

Mr. Mitko Naumovski, Mr. Turner T. Smith and Mr. Stephen M. Sayers for Dario Kordic
Mr. Bozidar Kovacic and Mr. Goran Mikulicic for Mario Cerkez


I. Background

1. The Appeals Chamber of the International Criminal 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”) is seized of “Mario Cerkez’s Motion for Provisional Release”, filed on 13 November 2003 (“Request”), pursuant to Rule 65(I) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”). The Prosecution responded on 24 November 2003.1 The Defence replied on 27 November 2003 without providing new substantive arguments.2

2. The question before the Appeals Chamber is whether the Request meets the requirements set out in Rule 65(I) of the Rules for granting provisional release or not.

3. On 26 February 2001, Mario Cerkez was sentenced to 15 years’ imprisonment by Trial Chamber III. The Appeals Chamber is currently seized of the appeals of the Defence and the Prosecution against the Trial Chamber’s judgment. A date for the hearing of the appeals has not yet been scheduled. However, this hearing is likely to commence no later than May 2004.

II. Applicable Law

4. Rule 65 (I) provides that:

(I) Without prejudice to the provisions of Rule 107, the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that:

(i) 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;

(ii) the appellant, if released, will not pose a danger to any victim, witness or other person, and

(iii) special circumstances exist warranting such release.


The provisions of paragraphs (C) and (H) shall apply mutatis mutandis.

The aforementioned Rules 65(C) and (H) provide, respectively, as follows:

(C) The Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the execution of a bail bond and the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others.

(H) If necessary, the Trial Chamber may issue a warrant of arrest to secure the presence of an accused who has been released or is for any other reason at liberty . The provisions of Section 2 of Part Five SRules 54-61C shall apply mutatis mutandis.

III. Discussion

5. In the Request, the Defence, in accordance with the criteria set out in Rule 65(I), submits that: (i) if released, Mario Cerkez would either appear for the hearing of the appeal or would surrender into detention at the conclusion of the period fixed by the Appeals Chamber (“First Argument”); (ii) if released, he would not pose a danger to any victim, witness or other person (“Second Argument”); and (iii) exceptional circumstances exist warranting his provisional release (“Third Argument”).

6. With regard to the First Argument, the Defence submits that, given his previous co-operative behavior towards the Tribunal and the likelihood that his sentence would be reduced, it would be illogical to assume that, if released, Mario Cerkez would not return for the hearing of the appeal or at the expiry of the period determined by the Appeals Chamber. The Defence remarks that Mario Cerkez’s willingness to appear before the Tribunal in compliance with its orders has been demonstrated by the fact that he voluntarily surrendered into the custody of the Tribunal on 6 October 1997 and that, when he was provisionally released on the eve of his trial by the Trial Chamber, he returned and attended trial. The Defence further argues that Mario Cerkez has an incentive to appear because his appeal should be at least partly successful and his sentence should be reduced accordingly. In support of this contention, Mario Cerkez submits that it is apparent, as the Prosecution concedes, that the Trial Chamber erred in convicting Mario Cerkez under Count 44 of the Indictment. He also submits that the additional 160 exhibits, which the Defence seeks to have admitted into evidence under Rule 115, will show, when considered with the evidence already available at trial, that his sentence should be reduced. Lastly, the Defence proposes a set of guarantees to ensure Mario Cerkez’s return to the Tribunal and expresses its willingness to accept any other condition the Appeals Chamber may wish to impose .

7. The Prosecution objects, submitting that there is a risk of flight because Mario Cerkez has a strong incentive to flee. According to the Prosecution, even acknowledging that Mario Cerkez has already spent six years in detention and that he surrendered into the custody of the Tribunal voluntarily, he is now faced with the possibility that he will have to serve either the remainder of his 15 year-sentence or an even longer sentence if the Prosecution’s appeal is successful. As to the guarantees proposed by the Defence, the Prosecution, while conceding their utility, responds that they are still not sufficient to ensure Mario Cerkez’s return for the appeal proceedings.

8. Although his voluntary surrender and his timely return into the custody of the Tribunal when provisionally released by the Trial Chamber reveal Mario Cerkez’s past compliance with the Tribunal’s orders, there are other factors before the Appeals Chamber that must be taken into account in deciding whether provisional release should be granted. In particular, the Appeals Chamber notes that Mario Cerkez has been convicted and sentenced to 15 years’ imprisonment. This factor creates a strong incentive to flee because, even though he has already been in detention for six years, the remainder of his sentence is still considerable. Further, while it is true, as the Defence notes, that the sentence could be reduced as result of its appeal, it is equally true that the sentence could be increased as a result of the Prosecution’s appeal. The outcome of the case is unforeseeable, and thus is not a factor that can be relied upon in determining whether provisional release should be granted. In these circumstances, especially considering the length of the sentence imposed by the Trial Chamber, the Appeals Chamber is not persuaded, as required under Rule 65(I), that, if released, Mario Cerkez will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period of time, as the case may be. Based on this, there is no need for the Appeals Chamber to consider whether the set of guarantees proposed are sufficient or should be supplemented .3

9. Furthermore, the Appeals Chambers notes that, despite the fact that matters beyond the Tribunal’s control have extended the proceedings in this case to a considerable length,4 Mario Cerkez’s detention remains proportionate.5 Continued detention is necessary because of the seriousness of the crimes for which he has been convicted ; the continued deprivation of liberty is also proportionate in the narrow sense . It serves the target, in accordance with Rule 65(I), of avoiding the possibility that, if released, Mario Cerkez would not return into the custody of the Tribunal and thereby either cause further delay in the appeal proceedings or fail to be in detention in the event his conviction is upheld in whole or in part, pursuant to Rule 118(B). No more lenient measure would suffice.

10. In light of the above, the Appeals Chamber finds that the Request does not meet the first of the requirements set out in Rule 65(I)(i). Because the requirements mentioned in this Rule are cumulative, if not satisfied with regard to the first requirement under Rule 65(I), it is not necessary for the Appeals Chamber to discuss the further arguments presented by the Defence.

IV. Disposition

11. For the foregoing reasons and pursuant to Rule 65(I) of the Rules, the Request is, therefore, dismissed.

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

Dated this 12th day of December 2003,
At The Hague,
The Netherlands.

Judge Wolfgang Schomburg

1 - Prosecutor v. Dario Kordic & Mario Cerkez, “Prosecution’s Response to Mario Cerkez’s Motion for Provisional Release”, 24 November 2003.
2 - Prosecutor v. Dario Kordic & Mario Cerkez, “Mario Cerkez’s Reply to the Prosecution’s Response to Mario Cerkez’s Motion for Provisional Release. 27 November 2003.
3 - Cf. Prosecutor v. Kvocka, Mlado Radic, Zoran Zigic and Dragoljub Prcac, IT-98-30/1-A, “Decision on Request for Separation of Miroslav Kvocka’s Appeal Procedure and Kvocka’s Request for Provisional Release Pending Hearing of the Appeal”, 24 November 2003, pp.4-5.
4 - On the right to be tried without undue delay, see Bottazzi v. Italy, Application n. 7975/77, European Commission of Human Rights, Decision of 13 December 1978 and, in the same case, the Judgement of 28 July 1999 by the European Court of Human Rights.
5 - In Limaj, a Bench of the Appeals Chamber stated that: “…A measure in public international law is proportional only when it is (1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target. Procedural measures should never be capricious or excessive. If it is sufficient to use a more lenient measure than mandatory detention, it must be applied”. See e.g. Prosecutor v. Fatmir Limaj, Haradin Bala and Isak Musliu, IT-03-66-AR65,“Decision on Fatmir Limaj’s Request for Provisional Release”, IT-03-66-AR65, 31 October 2003, para. 13, Prosecutor v. Darko Mrda, Case No.: IT-02-59-PT, “Decision on Darko Mdra on Request for Provisional Release”, 15 April 2002, paras 41-43, and Prosecutor v. Enver Hadzihasonivic, Mehmed Alagic and Amir Kubura, Case No. IT-01-47-PT, “Decision Granting Provisional Release to Enver Hadzihasonivic”, 19 December 2001.