The ICTY trial chamber on Friday suspended its decision on provisional release to Cermak and Markac, and ordered that they return to the tribunal's detention unit on February 8 so that they could take part in the status conference in the case the following day.
Explaining its decision to return to custody Cermak and Markac, who were indicted together with General Ante Gotovina, the trial chamber said it wished to hear from the accused Cermak an explanation regarding his compliance with those conditions.
The lawyers for Cermak and Markac said that an agreement between the ICTY and the Netherlands on the treatment of ICTY indictees rules out a possibility for the tribunal's suspects and indictees to move freely throughout the Netherlands and therefore, their temporary release has to be suspended so that Markac and Cermak can be taken to the detention centre while staying on the Dutch territory.
The Dutch authorities are bound to accept indictees coming from other countries at Dutch airports and to transfer them to the Scheveningen detention centre of the tribunal.
Markac's defence counsel, lawyer Goran Mikulicic, said his client had complied with the terms and conditions of the provisional release all the time, and he could see no reason for the ICTY trial chamber not to release Markac again after the status conference.
The lawyers for Cermak said they were intending to clarify at the status conference that their client had not violated terms and conditions of his provisional release. They also hope that he will be free until the commencement of the trial, scheduled for early May, lawyer Jadranka Slokovic said.
The trial chamber said in its explanation that it would like to be acquainted with the opinion of Cermak's defence team on the matter.
On 24 January, the trial chamber made a decision to convene the status conference for 9 February on the potential conflict of interest of some defence lawyers and said that it would like the indictees to be present at the conference in order to be able to give their opinion on that issue.
On 26 January the trial chamber made another decision on suspending the provisional release for the two generals. It said, among other things, that the Croatian Government failed to provide until the time term, i.e. 23 January, additional information on Cermak's compliance with conditions of his provisional release and on its actions and measures taken to ensure such compliance.
On the same day, the Croatian Justice Ministry responded to the ICTY's criticism, dismissing the trial chamber's claims that Zagreb failed to deliver the required information on time.
The Justice Ministry stated that "the Government of the Republic of Croatia issued a statement on the ICTY's request through the Justice Ministry's Department for Cooperation with International Criminal Courts".
The statement was sent to the ICTY Liaison Office in Zagreb, which forwarded it to the ICTY Registrar, the ministry said.
The ministry also said that receipt of the statement and its forwarding to the ICTY in The Hague had been confirmed by the ICTY Liaison Office, and that it was now investigating why the tribunal was claiming that it had not received the government statement.
ICTY spokesman Refik Hodzic told Hina on the phone on Saturday that the tribunal's Registry would on Monday try to establish what had happened with Zagreb's document.
Sources in the Hague-based tribunal on Saturday did not rule out technical omissions in the receipt of the documents from Croatia.
The trial of Gotovina, Cermak and Markac is scheduled to start in May, after the joinder of their proceedings was ordered last year.
General Gotovina was indicted in June 2001, and Generals Cermak and Markac in March 2004 for crimes against humanity committed against Serb civilians in the course and after the military and police operation "Storm" in the summer and autumn of 1995.
Cermak and Markac surrendered voluntarily to the ICTY immediately after their indictment was made public in March 2004 and in December 2004 were granted provisional release.
After hiding for four and a half years, Gotovina was arrested in Tenerife on 7 December 2005, and has been in the ICTY's detention unit since 10 December 2005.
All three generals pleaded not guilty at their initial appearance.
Globus weekly recently reported that Cermak had violated the tribunal's rules by leaving his home three times and that therefore he should be put back in custody. Between December 29, 2006 and January 4, 2007, Cermak attended a birthday party and a New Year's Eve party in Zagreb and a FIS skiing race on Mount Sljeme overlooking Zagreb, Globus wrote.
Earlier this month the Croatian government received a request from the Hague tribunal to check whether the indicted Cermak was fully complying with the provisional release conditions.