Judge Richard May, Presiding
Judge Mohamed Bennouna
Judge Patrick Robinson

Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
22 March 1999







The Office of the Prosecutor

Mr. Geoffrey Nice
Ms. Susan Somers
Mr. Patrick Lopez-Terres
Mr. Kenneth Scott

Defence Counsel

Mr. Mitko Naumovski, Mr. Leo Andreis, Mr. David F. Geneson, Mr. Turner T. Smith, Jr., and Ms. Ksenija Turkovic, for Dario Kordic
Mr. Bozidar Kovacic, for Mario Cerkez


THIS 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 ("the International Tribunal"),

BEING SEISED of the "Joint Defence Motion for Release ("the Motion")", filed by Defence counsel for the accused Dario Kordic and Mario Cerkez ("the Defence") on 9 February 1999, and the "Prosecutor’s Response to the Joint Defence Motion for Release" filed by the Office of the Prosecutor ("the Prosecution") on 22 February 1999,

NOTING the written submissions of the parties and their arguments heard during the Pre-Trial Conference held on 11 March 1999,

NOTING that, pursuant to Rule 65 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), provisional release may only be ordered in exceptional circumstances,

NOTING, inter alia, the arguments of the Defence that (a) Rule 65 imposes a "virtually irrebuttable presumption" in favour of the accused remaining in detention before and during trial; this Rule violates international legal standards reflected in various international instruments and the language of the Statute of the International Tribunal does not support the adoption of such a Rule; (b) if the accused were released, there would be no risk that they would not appear for trial, nor would they pose a threat to any victim, witness, or any other person; (c) the accused have been in pre-trial detention for 15 months, and it is likely that this period will expand to three years before an initial judgement is handed down; (d) the continued detention of the accused will materially hamper their ability to prepare for the trial, especially in the light of the recent disclosure by the Prosecution of a large volume of material,

NOTING ALSO the arguments of the Prosecution that (a) the accused have not demonstrated exceptional circumstances; (b) the other conditions under Rule 65 have not been satisfied; (c) discovery in this case has been thorough and does not give rise to an exceptional circumstance,

CONSIDERING that the practice of the International Tribunal on this point, including the fact that it is for the accused to demonstrate exceptional circumstances, is well established (see, for example, the decisions of Trial Chamber I in Prosecutor v. Tihomir Blaskic, and of Trial Chamber II in Prosecutor v. Delalic et al., Prosecutor v. Kupreskic et al., and Prosecutor v. Milan Kovacevic),

CONSIDERING that Rule 65 does not violate international legal standards,

CONSIDERING that the length of pre-trial detention in this case does not amount to an exceptional circumstance,

CONSIDERING that although the Trial Chamber bears in mind the practical difficulties faced by the Defence in the preparation of this case due to the large amount of recently disclosed materials, this does not constitute an exceptional circumstance,

CONSIDERING that the accused have failed to establish that any exceptional circumstances exist to justify release in this case,

CONSIDERING FURTHER that the trial is due to commence on 12 April 1999, and that the trial must proceed fairly and expeditiously,

PURSUANT TO Rule 65 of the Rules

HEREBY DENIES the request for provisional release of the accused contained in the Motion.


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


Richard May
Presiding Judge

Dated this twenty-second day of March 1999
At The Hague
The Netherlands

[Seal of the Tribunal]