Case No.: IT-98-30/1-A


Judge Mohamed Shahabuddeen, Presiding
Judge Fausto Pocar
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg De Roca

Mr. Hans Holthuis

Decision of:
17 December 2003







Counsel for the Prosecutor:

Mr Norman Farrell

Counsel for the Appellants

Mr K. Simic for M. Kvocka
Mr T. Fila for M. Radic
Mr S. Stojanovic for Z. Zigic
Mr J. Simic for D. Prcac


THE APPEALS 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 ("International Tribunal"),

NOTING that Miroslav Kvocka was convicted by Trial Chamber I on 2 November 2001 and sentenced to seven years’ imprisonment, in respect of which he is currently in detention;

NOTING that Miroslav Kvocka filed a Notice of Appeal before the Appeals Chamber on 13 November 2001 and that the appeal is pending;

NOTING the "Decision on request for separation of Miroslav Kvocka’s appeal procedure and Miroslav Kvocka’s request for provisional release pending hearing of the appeal" rendered on 24 November 2003, which dismissed the request for separation of Miroslav Kvocka’s appeal procedure but gave 20 days from the date of the decision for Miroslav Kvocka to address, by motion, the conditions spelled out in Rule 65(I) of the Rules of Procedure and Evidence ("Rules");

BEING SEISED of the "Appellants Amendment to Request for Provisional Release according to ‘Decision on request for separation of Miroslav Kvockas request for provisional release pending hearing of the appeal’ " ("Request" and "Appellant" respectively) filed on 8 December 2003, in which the Appellant requests that he be provisionally released inter alia for the following reasons:

  1. the Appellant has been detained since 9 April 1998 and had served 2/3 of his sentence by 9 December 2002; as of the date of the Request, the Appellant has served approximately 81% of his sentence;
  2. the Government of Republika Srpska has given the necessary guarantees;
  3. there is no risk that the Appellant will not appear for the hearing on appeal;
  4. the Appellant will not pose any danger to any victim, witness or other person and he has not filed any motion for the presentation of additional evidence on appeal;
  5. his family has no stable income and his wife is ill;

NOTING the "Guarantee of the Government of Republika Srpska" filed on 9 December 2003 by which the Government of Republika Srpska undertakes to comply with the orders of the Appeals Chamber and provides a number of guarantees relating to the provisional release of the Appellant;

NOTING the "Prosecution Response to the ‘Appellant’s Amendment to Request for Provisional Release according to ‘Decision on Request for Separation of Miroslav Kvocka’s Request for Provisional Release pending hearing of the Appeal’ " filed on 10 December 2003, in which the Prosecution does not oppose the grant of the Appellant’s provisional release subject to the imposition of certain conditions;

NOTING the "Reply on the Prosecutor’s Answer" filed by the Appellant on 11 December 2003;

NOTING that Rule 65(I) of the Rules requires that the Appeals Chamber be satisfied that the Appellant, if released:

(i) "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) "will not pose a danger to any victim, witness or other person", and
(iii) "special circumstances exist warranting such release";

CONSIDERING that the conditions spelled out in Rule 65(I) i) and ii) have been met and that the fact that the Appellant has already served around 80% of the sentence imposed by the Trial Chamber amounts to a special circumstance warranting his release;

HEREBY GRANTS the Request and ORDERS that the Appellant be provisionally released pending the hearing of his appeal under the following terms and conditions:

  1. Miroslav Kvocka shall be transported to Schiphol airport in the Netherlands by the Dutch authorities as soon as possible.
  2. At Schiphol airport, he shall be provisionally released into the custody of the designated officials of the Government of Bosnia and Herzegovina ("BiH") (whose names shall be provided in advance to the Appeals Chamber and the Registry) and who shall accompany Miroslav Kvocka for the remainder of his travel to BiH and to his place of residence.
  3. On his return flight, Miroslav Kvocka shall be accompanied by a designated official of BiH (or by such other designated officials as the Appeals Chamber may order or accept) who shall deliver Miroslav Kvocka into the custody of the Dutch authorities at Schiphol airport at a date and time to be determined by the Appeals Chamber; the Dutch authorities shall then transport him back to the United Nations Detention Unit;
  4. During the period of his provisional release, Miroslav Kvocka shall abide by the following conditions, and the authorities of Republika Srpska shall ensure compliance with such conditions:

  1. Within 3 days of his arrival, to report the address where he will be staying to the Registrar of the Tribunal and to indicate any change of address to the Registrar within 3 days of such change;
  2. To surrender his passport to the police station of his residence;
  3. To report every month to his local police station and that the local police station will maintain a log and file a written report with the Tribunal confirming his presence each time;
  4. Not to have any direct contacts or in anyway interfere with victims or potential witnesses or otherwise interfere in any way with the proceedings or the administration of justice;
  5. Not to discuss his case with anyone, including the media, other than his counsel and immediate members of his family;
  6. To comply with any order of the Appeals Chamber varying the terms of, or terminating, his provisional release;
  7. To comply strictly with any requirements of the authorities of the BiH and Republika Srpska necessary to enable them to comply with their obligations under the present decision for provisional release;
  8. To return to the Tribunal at such time and on such date as the Appeals Chamber may order;

REQUIRES the Government of Republika Srpska to assume responsibility for:

  1. The personal security and safety of Miroslav Kvocka while on provisional release;
  2. All expenses in connection with the transport of Miroslav Kvocka from Schipol airport to his place of residence;
  3. Reporting immediately to the Registrar of the Tribunal the substance of any threats to the security of Miroslav Kvocka, including full reports of investigations related to such threats;
  4. Facilitating, at the request of the Appeals Chamber or of the parties, all means of co-operation and communication between the parties and ensuring the confidentiality of any such communication;
  5. Immediately detaining Miroslav Kvocka should he breach any of the terms and conditions of his provisional release and reporting immediately any such breach to the Registry and the Appeals Chamber;
  6. Respecting the primacy of the Tribunal in relation to any existing or future proceedings in BiH or Republika Srpska concerning Miroslav Kvocka;

INSTRUCTS the Registrar of the Tribunal to consult with the Dutch authorities and the authorities of BiH and Republika Srpska as to the practical arrangements for the provisional release of Miroslav Kvocka.


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

Mohamed Shahabuddeen
Presiding Judge

Dated this 17th December 2003,
At The Hague,
The Netherlands.

[Seal of the Tribunal]