In the decision, with the U.N. court issued on Wednesday, the trial chamber says that defence counsel repeated nearly all the arguments from their March 12 request for provisional release, which the trial chamber on that occasion assessed were unjustified.
The decision also highlights the fact that the Croatian government still has not ensured the transfer of General Ante Gotovina, who is charged with the same crimes as Markac and Cermak.
The trial chamber assessed the only new elements in the request for provisional release are that the two indictees were interviewed by the prosecution, and that tribunal president Theodor Meron and chief prosecutor Carla del Ponte reported to the U.N. Security Council that significant progress had been made in Croatia's cooperation with the tribunal.
The decision recalls that the prosecution resolutely objected to the initial provisional release request, indicating the gravity of the charges, insufficient cooperation on the Croatian government's part, notably the failure to extradite Gotovina, the strength of the evidence material, and the possibility of Cermak and Markac influencing witnesses due to their position in the Croatian society.
The decision says the trial chamber was not shown why the prosecution now is ambiguous, given that it does not object to the provisional release but does not advocate it either. According to trial chamber, nothing indicates that the things the prosecution previously relied on have changed other than the two elements mentioned above.
The charges are equally serious, the decision says, adding that despite the notable improvement in Croatia's cooperation with the tribunal, this improvement has occurred recently and the tribunal's trust in Croatia will grow only with time. The decision highlights that despite the improved cooperation, Gotovina has still not been arrested.
The trial chamber assessed the prosecution's reply to the defence's request as unsatisfying because the prosecution says it does not object to the request, while elsewhere stating that it does not advocate the provisional release either.
The decision points to contradictions in the prosecution's reply -- the prosecution stated that after interviewing the two indictees it saw no reason to keep them in custody, while simultaneously voicing understanding for the reasons which prompted the trial chamber to turn down the first provisional release request.
Cermak and Markac are charged with crimes against humanity and breaches of the laws and customs of war committed against Serb civilians during and after Operation Storm in the wider Knin area in 1995. They voluntarily surrendered to the Hague tribunal on March 11, pleading not guilty to all charges the following day.