1. Six of the accused, Zoran Kupreskic, Mirjan Kupreskic, Vladimir Santic, Drago Josipovic, Marinko Katava and Dragan Papic, against whom an indictment was confirmed by Judge McDonald on 10 November 1995 ("the Indictment"), are currently held in detention by the International Criminal Tribunal for the former Yugoslavia ("International Tribunal") pursuant to Orders issued by Judge Jan under Rules 54 and 64 for the Detention of the Accused dated 3 October 1997.

2. Pending before this Trial Chamber is a "Motion for Temporary Set at Liberty" filed by four of the accused, Zoran Kupreskic, Mirjan Kupreskic, Drago Josipovic and Dragan Papic on 14 November 1997 ("Motion"). Marinko Katava and Vladimir Santic filed a request to join the Motion on 27 November 1997 (collectively referred to as the "Applicants"). On 1 December 1997, the Office of the Prosecutor ("Prosecution") filed a Response to Defendant's Motion for Provisional Release ("Response"). Neither party requested an oral hearing on the Motion.

3. The Applicants have based their Motion upon "Article 65", clearly meaning to refer to Rule 65 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), which provides as follows:

(A) Once detained, an accused may not be released except upon an order of a Trial Chamber.

(B) Release may be ordered by a Trial Chamber only in exceptional circumstances, after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person.

(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.

(D) Any decision rendered under this Rule shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown. Applications for leave to appeal shall be filed within seven days of the impugned decision.

(E) 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 shall apply mutatis mutandis.

4. Provisional release further to Rule 65 has been requested on the grounds that:

(a) the Applicants surrendered voluntarily to the International Tribunal thus demonstrating their willingness to cooperate and defend themselves;

(b) the Applicants are "family people and this motion would mitigate their position, both to them and their families";

(c) the Indictment demonstrates that the Applicants "are subordinate persons who are according to the charges, simple executors, and not organizers or givers of orders";

(d) if provisionally released, the Applicants are prepared to "give statements" of their intention to appear before the International Tribunal when summoned to do so; and

(e) provisional release of the Applicants would not endanger victims, witnesses or other persons.

5. The Motion also requests the Trial Chamber to set bail.

6. The Prosecution's arguments against the Motion are set out in the Response:

(a) Rule 65 establishes a "presumption that all persons accused of committing war crimes in the former Yugoslavia should be detained pending trial". A decision of Trial Chamber I in Prosecutor v. Tihomir Blaskic is cited in support of this proposition. In line with this reasoning, the Prosecution argues that the Applicants have not demonstrated that there are "exceptional circumstances" justifying their provisional release;

(b) having a family is not an "exceptional circumstance" warranting the provisional release of the Applicants;

(c) the circumstances behind the coordinated surrender of the Applicants orchestrated by the Republic of Croatia are not known and an accused who has "voluntarily" surrendered may well change his mind and abscond if granted provisional release. Furthermore, the Prosecution submits that "if voluntary surrender is viewed as a sure method of obtaining provisional release, then all accused can avail themselves of a ‘free’ look at the evidence (as well as an opportunity to identify and intimidate key witnesses) before becoming permanent fugitives";

(d) the argument that the "subordinate" position of the Applicants makes them more suitable for provisional release than someone exercising command over a situation is illogical in view of the fact that some of the "most brutal criminals of the war have been the so-called low level perpetrators who actually bloodied their own hands"; and

(e) the provisional release of the Applicants would, contrary to the assertions in the Motion, expose victims, witnesses and others to great danger, given that the Applicants are now in possession of the statements of certain witnesses. It is alleged that the risks are even greater for the few and very vulnerable survivors of the massacre in the village of Ahmici in the Lasva Valley. The Response furthermore states that in the absence of substantial assurances and specific measures to protect witnesses, the Trial Chamber should not release the Applicants.

7. The Prosecution has noted that, in asking the Trial Chamber to consider a bail bond, the Motion neglects to suggest suitable conditions of release on bail, such as restrictions on contact or travel, which would reduce the risk of the Applicants absconding or interfering with the course of justice.

8. It is furthermore noted by the Prosecution that Rule 65 requires consultation with the Host Country before release can be ordered, and it suggests that the Kingdom of the Netherlands would be concerned and uncomfortable with such a proposal to release the Applicants.

A. Grounds for provisional release further to Rule 65

9. The practice of the International Tribunal in assessing applications for provisional release has been established in decisions in the cases of Prosecutor v. \ordje \ukic, Prosecutor v. Delalic et al and Prosecutor v. Tihomir Blaskic, as referred to by the Prosecution in its Response.

10. This Trial Chamber agrees with the views expressed in Prosecutor v. Tihomir Blaskic that:

the Rules have incorporated the principle of preventive detention of accused persons because of the extreme gravity of the crimes for which they are being prosecuted by the International Tribunal, and for this reason, subordinate any measure for provisional release to the existence of "exceptional circumstances".

The principle of preventive detention has been repeatedly affirmed in the practice of the International Tribunal. Where an application for provisional release has been made, Rule 65 (B) establishes the criteria which must be satisfied by the Applicants before a Trial Chamber can authorise release pending trial. The Applicants must demonstrate that:

(a) there are exceptional circumstances justifying provisional release;

(b) they will appear for trial; and

(c) if released they will not pose a danger to any victim, witness or other person.

Furthermore, the Host Country's views on the request for provisional release must be heard.

All four criteria must be satisfied if the Trial Chamber is to order the provisional release of the Applicants. The Trial Chamber considers that provisional release may only be ordered in extreme and rare circumstances, such as where the accused's state of health is incompatible with any form of detention.

B. The application of Rule 65

1. Exceptional circumstances

11. The circumstances put forward in the Motion are not of an "exceptional" nature justifying release. There are no exceptional circumstances involved in being a "family person". As the Prosecution points out, all the detainees held in the custody of the International Tribunal are "family people" in one way or another and there is nothing out of the ordinary in the circumstances of the Applicants justifying provisional release.

2. Risk of Flight

12. The suggestion that the voluntary surrender of the Applicants to the International Tribunal demonstrates their willingness to cooperate and defend themselves offers no guarantee that the Applicants will not abscond if released. The Trial Chamber is persuaded by the Prosecution's argument that if voluntary surrender were inevitably to lead to provisional release, this would then provide an opportunity for all accused to avail themselves of a "free" look at the evidence (as well as an opportunity to identify and intimidate key witnesses) before absconding and becoming permanent fugitives.

13. There is likewise no merit in the argument of the Applicants that their "subordinate" position makes them more suitable candidates for provisional release than persons in command of a situation. Without in any way prejudicing the position of the Applicants, the Trial Chamber wishes to set out the view that the persons who are found by a court of law personally to have committed the most brutal crimes are often those in a more subordinate position. Both the alleged perpetrator and the person under whose instructions he may have acted are potentially of equal danger to society if released and the distinction made in the Motion is artificial and unjustified.

14. With respect to conditions of provisional release, the Trial Chamber notes that it has the power to impose such conditions upon the release of the Applicants as it deems appropriate in the circumstances. These include the execution of a bail bond and the imposition of such conditions as are necessary to ensure the presence of the Applicants for trial and the protection of others. The fact that the Motion only asks the Trial Chamber to consider bail under Rule 65 does not preclude it from imposing any other conditions which it deems appropriate.

15. The Trial Chamber considers that neither the execution of a bail bond, nor the readiness of the Applicants to "give statements that they will appear before the Court when summoned by their free will and that they are ready to fulfill their obligation" are sufficient guarantees. This Trial Chamber is not satisfied that if released, the Applicants would appear before the International Tribunal. Furthermore, the Trial Chamber determines that the gravity of the allegations, and the severity of the sentences that might be passed if the Applicants were to be found guilty, give rise to further concerns that the Applicants might not appear for proceedings before the International Tribunal if released.

3. The danger posed by the Applicants, if released, to any victim, witness or other person

16. No satisfactory guarantees or assurances have been given to the Trial Chamber that the provisional release of the Applicants would not expose victims, witnesses and others to great danger. The Trial Chamber finds that the fact that the Applicants are now in possession of the statements of certain witnesses creates an enhanced risk of interference with the course of justice through, for example, the intimidation of witnesses, should the Applicants be provisionally released.

4. Consultation with the Host Country

17. The position of the Host Country has been clearly set out in a letter dated 18 July 1996 in connection with a motion for provisional release filed by Zejnil Delalic in Prosecutor v. Delalic et al : it is for the International Tribunal to determine whether a request for provisional release should be granted. The Host Country will only comment on the practical consequences of such a release.

C. Conclusion

18. The Trial Chamber therefore determines that the criteria of Rule 65 have not been satisfied by the Applicants.

For the foregoing reasons, the Trial Chamber

HEREBY DENIES the Motion for Provisional Release filed by the accused Zoran Kupreskic, Mirjan Kupreskic, Drago Josipovic and Dragan Papic and joined by Marinko Katava and Vladimir Santic.

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

_________________________

Antonio Cassese

Presiding Judge

Dated this fifteenth day of December 1997

At The Hague

The Netherlands

[Seal of the Tribunal]