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

IN THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Fausto Pocar
Judge Florence Mumba
Judge Mehmet Güney
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Order of:
11 March 2004

PROSECUTOR

v.

Miroslav KVOCKA, Mladjo RADIC, Zoran ZIGIC and Dragoljub PRCAC

________________________________________

ORDER VARYING THE PROVISIONAL RELEASE OF MIROSLAV KVOCKA AND FOR HIS RETURN TO THE TRIBUNAL DURING THE APPEAL HEARING

________________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellants:

Mr. Kstan Simic for Miroslav Kvocka
Mr. Toma Fila for Mlado Radic
Mr. Slobodan Stojanovic for Zoran Zigic
Mr. Jovan Simic for Dragoljub 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"),

RECALLING the "Decision on the request for provisional release of Miroslav Kvocka" rendered on 17 December 2003, which ordered that Miroslav Kvocka be provisionally released pending the hearing of his appeal ("Provisional Release Decision");

NOTING that the Provisional Release Decision required Miroslav Kvocka to "comply with any order of the Appeals Chamber varying the terms of, or terminating, his provisional release" and "to return to the Tribunal at such time and on such date as the Appeals Chamber may order";

Noting the "Scheduling Order" issued on 16 February 2004, which ordered that the hearing on appeal in this case shall commence on 23 March 2004 with the hearing of the additional witnesses and any admitted rebuttal witnesses;

NOTING the "Scheduling Order" issued on 3 March 2004, which stated that the hearing on appeal will continue with the arguments of the parties in this case on 24, 25 and 26 March 2004;

NOTING that the Provisional Release Decision ordered that "on his return flight, Miroslav Kvocka shall be accompanied by a designated official of Bosnia and Herzegovina (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";

NOTING that, in the "Guarantee of the Government of Republika Srpska" filed on 9 December 2003, the Government of Republika Srpska undertook to bear all costs regarding the transfer of Miroslav Kvocka "from the moment it takes charge of him at Schiphol Airport in the Netherlands to the place in Republika Srpska where he will stay and back";

NOTING the "Request for absence of M. Kvocka from the hearing on presentation of appeal procedure" filed on 8 March 2004, in which he stated that "due to complex technical issues related to substantial financial means, the presence of M. Kvocka at the presentation is very hard and complex to achieve" and informed the Appeals Chamber that he agrees that "the explanation of appeal request of M. Kvocka to be held without his presence, which will not jeopardize his rights";

NOTING the "Prosecutionís notice of compliance with the Appeals Chamberís scheduling order and response to 'Request for absence of M. Kvocka from the hearing on presentation of appeal procedure' " filed on 9 March 2004, in which the Prosecution "opposes the request as Kvocka has offered no credible reason justifying his absence from the Appeal hearing and non-compliance with the Appeals Chamberís order. He has also provided no legitimate basis for his request of a variation of the terms of his release";

NOTING the "Response to Prosecutionís notice of compliance from 9 March 2004" filed by the Appellant Kvocka on 10 March 2004, in which the Appellant Kvocka submits inter alia that he agrees not to be present during the hearing on appeal and that there are "serious technical problems to insure Mr. Kvockaís presence on the oral exposure of the appeal", as he has no valid passport or visa;

CONSIDERING that the Provisional Release Decision ordered that Miroslav Kvocka be released provisionally pending the hearing of his appeal, which is now scheduled to start on 23 March 2004 and will end on 26 March 2004;

PURSUANT TO Rule 65 of the Rules of Procedure and Evidence,

HEREBY VARIES the terms of the provisional release of Miroslav Kvocka and ORDERS that:

  1. Miroslav Kvocka shall surrender to the custody of the International Tribunal on 19 March 2004 and shall be placed in detention for the time of the hearing on appeal;
  2. The designated official of Bosnia and Herzegovina (or such other designated officials as the Appeals Chamber may order or accept) shall make all necessary arrangements in conjunction with the Registrar of the Tribunal and the Dutch authorities for the return of Miroslav Kvocka to The Hague, Netherlands, on 19 March 2004 and his subsequent transportation to and detention in the United Nations Detention Unit;
  3. The Government of Bosnia and Herzegovina shall inform the Appeals Chamber and the Registrar of the name of any designated official by 16 March 2004;
  4. The designated official of Bosnia and Herzegovina (or such other designated officials as the Appeals Chamber may order or accept) shall accompany Miroslav Kvocka on the flight to The Hague and shall deliver him into the custody of the Dutch authorities at Schiphol airport on 19 March 2004;
  5. The Dutch authorities are requested to transport Miroslav Kvocka to the United Nations Detention Unit on 19 March 2004;
  6. All terms and conditions of the Provisional Release Decision shall continue in full force and effect until Miroslav Kvocka has surrendered to the custody of the International Tribunal; the Provisional Release Decision shall be stayed from the return of Miroslav Kvocka to the Netherlands and his delivery into the custody of the Dutch authorities at Schiphol airport on 19 March 2004, to Monday, 29 March 2004;
  7. The provisional release of Miroslav Kvocka shall resume on Monday, 29 March 2004, and be effective up to his return in custody for the delivery of the judgment on appeal; all terms and conditions of the Provisional Release Decision shall continue in full force and effect from Monday, 29 March 2004, up to his return in custody for delivery of the judgment on appeal;
  8. On 29 March 2004, Miroslav Kvocka 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) at Schiphol airport and who shall accompany Miroslav Kvocka for the remainder of his travel to BiH and to his place of residence.
  9. On his return flight to The Hague before the delivery of the judgement on appeal, Miroslav Kvocka shall be accompanied by a designated official of BiH (or 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;

REQUESTS the Registrar of the International Tribunal to make all necessary arrangements with all relevant authorities for the return of Miroslav Kvocka, for his detention in the United Nations Detention Unit between 19 March 2004 and 29 March 2004 and for his provisional release on 29 March 2004.

 

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

________________
Mohamed Shahabuddeen
Presiding Judge

Dated this 11th day of March 2004,
At The Hague,
The Netherlands

[Seal of the Tribunal]