"They didn't let them go mainly because of Gotovina," Florence Hartmann told Hina over the telephone on Wednesday.
She said the judges decided today the crimes were as grave as before, that the reasons for which the initial provisional release request was turned down on April 29 still existed, and that the prosecution failed to present arguments that were different than those which prompted it to object to provisional release in April.
Hartmann said the prosecution was surprised by the trial chamber's latest decision, adding, however, that she could not comment on trial chamber decisions.
"The prosecution supported the provisional release, and since both sides were in agreement we thought there would be no problems."
The trial chamber said today the reasons for rejecting the second provisional release request included the unsatisfactory and ambiguous position of the prosecution, which said it did not object to provisional release but did not advocate it either.
The trial chamber's decision contains a criticism of the prosecution's policy towards provisional release which, guided by pragmatic interests, is liable to being contradictory. The decision referred to the prosecution's assessment that the two indictees need not be kept in custody after being interviewed by the prosecution, while simultaneously voicing understanding for the reasons for which the first provisional release request was rejected.
Hartmann declined to comment on such assessments, mentioning the judges' discretionary right. She said the prosecution would continue to support the request for the provisional release of Cermak and Markac pending trial.
Given that the trial chamber's decision cannot be appealed in regular fashion, it is expected defence counsel will ask permission from the tribunal to lodge an interlocutory appeal as an extraordinary measure for intervening in proceedings.
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. Gotovina is accused of the same crimes.