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 ("International Tribunal"),

BEING SEISED of the "Motion for a Provisional Release of Mr. Kvocka", and the "Addition of Motion for Provisional Release of Miroslav Kvocka of the 12^th January, 2000", filed on behalf of the accused Miroslav Kvocka ("the Accused") on 12 and 14 January 2000, respectively ("the Motion"), requesting provisional release from detention subject to certain terms and conditions as set out in the Motion,

NOTING the "Prosecution’s Response to Miroslav Kvocka’s ‘Motion for a Provisional Release of Mr. Kvocka’", filed by the Office of the Prosecutor ("Prosecution") on 19 January 2000,

HAVING HEARD the oral arguments of the parties in open session on 21 January 2000,

NOTING the arguments of the Accused, inter alia, that since the Trial Chamber then seised of the case, issued its decision denying the original motion for provisional release on 20 October 1998,¹ circumstances have changed so as to warrant a fresh application,

NOTING the following particular arguments of the Accused that,

(i) the delay in bringing this case to trial raises serious concerns under Article 21, paragraph 4, of the Statute of the International Tribunal ("Statute"), the adverse consequences of which may be minimised by provisional release;

(ii) the recent amendment to Sub-rule 65 (B)² of the Rules of Procedure and Evidence ("Rules") has considerably liberalised the legal regime governing a grant of provisional release;

(iii) there is no evidence to suggest that Miroslav Kvocka was involved in any wrongdoing in connection with the allegations in the Second Amended Indictment,³ and therefore, if released, he is unlikely to pose a danger to witnesses;

(iv) the guarantees provided by the Government of the Republika Srpska and the Accused will ensure that, if released, he will continue to appear for trial;

(v) the Accused’s family has suffered on account of his prolonged detention, and Mrs. Kvocka’s health has deteriorated significantly in her husband’s absence,

NOTING the arguments of the Prosecution, inter alia, that

(i) the length of the Accused’s pre-trial detention in this case does not violate the Statute, nor does it breach standards contained in international and regional human rights instruments;

(ii) the amendment to Sub-rule 65 (B) of the Rules, removing the requirement that an accused must demonstrate exceptional circumstances, does not establish release as the norm and detention as the exception, as an accused is still obliged to meet the remaining requirements under that provision;

(iii) the submissions of the Defence relating to the lack of evidence to substantiate the charges against the Accused are not relevant here, rather, the consideration of such matters is appropriately reserved for trial;

(iv) the guarantees of the Republika Srpska should be accorded little weight on account of that entity’s failure, to date, to comply with any of its obligations to the International Tribunal, and the fact that the Accused has had an opportunity to examine much of the Prosecution’s evidence against him, gives rise to serious concerns that, if released, he would not appear for trial;

(v) while not insensitive to the hardship caused to the Accused’s family due to his lengthy detention, the Prosecution submits that such factors are not relevant here,

NOTING also the Prosecution argument that as it has, to date, released the names of 186 witnesses to the Defence, the potential for harassment is heightened, and it is likely that Miroslav Kvocka, if released, would pose a danger to victims and witnesses,

NOTING the guarantee provided by the Government of the Republika Srpska,

HAVING CONSIDERED all of the arguments of the parties, and the material filed by the Defence in support of the Motion,

CONSIDERING that, while Sub-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 therefore that the effect of the amendment is not to establish release as the norm and detention as the exception, and that a determination as to whether release is to be granted must be made in the light of the particular circumstances of each case, and only if the Trial Chamber is satisfied that the accused "will appear for trial and, if released, will not pose a danger to any victim, witness or other person,"

CONSIDERING that the accused is charged with the gravest offences under international humanitarian law,

CONSIDERING the legitimate concerns expressed by the Prosecution regarding the likelihood that the Accused may pose a danger to victims, witnesses or other persons,

CONSIDERING that the Trial Chamber is not satisfied that the Accused, if released, will appear for trial,

CONSIDERING that the Trial Chamber now anticipates that an early date will be set for the commencement of trial in this case,

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

____________________
Richard May
Presiding

Dated this second day of February 2000
At The Hague
The Netherlands

[Seal of the Tribunal]