Medical treatment outside The Netherlands

Notion(s) Filing Case
Decision on Provisional Release - 11.02.2010 PRLIĆ et al.
(IT-04-74-AR65.19)

14. The Appeals Chamber recalls that in the context of an application for provisional release on medical grounds, the availability of medical care in The Netherlands is a relevant factor in establishing whether sufficiently compelling humanitarian grounds exist for the release.[1] At issue is not simply the availability of treatment, but of appropriate treatment.[2] In the present circumstances, the Trial Chamber did not incorrectly interpret governing law when it considered a variety of factors in order to determine the most appropriate treatment; namely, the availability of testing in The Netherlands as well as the opinion of two doctors from the UNDU. The Appeals Chamber notes that the Medical Officer of the UNDU opined that [REDACTED].[3] In light of this opinion, it was well within the Trial Chamber’s discretion to determine that the most appropriate treatment was available in Zagreb.

[1] See Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.8, Decision on Prosecution’s Appeal Against Decision on Gvero’s Motion for Provisional Release, 20 July 2009 (“Popović 20 July Decision”), para. 11.

[2] Stanišić Appeal Decision [Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR65.4, Decision on Prosecution Appeal of Decision on Provisional Release and Motions to Present Additional Evidence Pursuant to Rule 115, 26 June 2008 (confidential)], para. 68; Popović 20 July Decision, para. 13.

[3] Medical Report [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Registry Submission Pursuant to Rule 33 (B) Concerning Medical Report, filed confidentially on 12 November 2009], items 4 and 5.

Download full document
ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Provisional Release - 22.05.2009 MILUTINOVIĆ et al.
(IT-05-87-A)

11. Regarding the Prosecution’s objection, the Appeals Chamber notes that, indeed, the medical evidence does not show that the required medical treatment cannot be performed in The Netherlands. While this is not a requirement explicitly provided for in Rule 65(I) of the Rules, the Appeals Chamber agrees with the Prosecution that it is a relevant factor in establishing whether “special circumstances” exist. Nonetheless, the Appeals Chamber emphasizes that the assessment of such circumstances must be made on a case-by-case basis and reflect the totality of relevant considerations. Lazarević’s situation is different from those described in the decisions cited by the Prosecution.[1] The Appeals Chamber finds that Lazarević’s past medical history[2] together with the undisputed “prolonged uncomfortable recovery” expected after the said surgeries as well as the psychological factors highlighted in the UNDU Medical report[3] constitute, in these particular circumstances, sufficient grounds to conclude that the required treatment and subsequent therapy have greater chances to succeed if performed in the Niš Hospital as requested by Lazarević. Consequently, the Appeals Chamber finds that special circumstances exist warranting provisional release of Lazarević.

[1] First, the Prosecution refers to Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on “Defence Motion: Request for Providing Medical Aid in the Republic of Montenegro in Detention Conditions”, 8 December 2005, pp. 3-4, in which the Appeals Chamber dismissed Pavle Strugar’s request to be provisionally released on the grounds that, although his need for knee surgery was undisputed, he did not show why the required treatment could not be adduced in The Netherlands. The Prosecution omits to mention, however, that Pavle Strugar’s renewed request was granted some days later in light of his “overall medical situation” and rehabilitation needs (Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on “Defence Motion: Request for Provisional Release for Providing Medical Aid in the Republic of Montenegro”, 16 December 2005, p. 3).

Second, the Prosecution refers to Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Assigned Counsel Request for Provisional Release, 23 February 2006, para. 17, which only mentions the “preferred location” indicated by Slobodan Milošević but not any of the other arguments comparable to those advanced in the Second Motion. The Appeals Chamber further recalls that it did not have the chance to decide on the appeal against the said decision in the Slobodan Milošević case due to the termination of the proceedings against him following his death (see Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR65.1, Decision on Assigned Counsel Motion for Expedited Appeal Against the Trial Chamber’s “Decision on Assigned Counsel Request for Provisional Release”, 17 March 2006).

[2] [REDACTED] The Appeals Chamber considers that some of these claims are based on Lazarević’s perception of the situation rather than on objective medical evidence. However, the Appeals Chamber acknowledges that the overall negative psychological impact of these circumstances is reflected in the UNDU Medical Report (Annex B to the Second Motion).

[3] In particular, the UNDU Medical Report states that the treatment and further medical examination in Serbia should be considered for the following “social and psychological reasons”: [REDACTED] (Annex B to the Second Motion).

Download full document
ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Provisional Release - 23.02.2016 TOLIMIR Zdravko
(MICT-15-95-ES)

10.     The Appeals Chamber recalls that an applicant for provisional release on medical grounds bears the burden of establishing that appropriate medical treatment is unavailable or cannot be performed in the Netherlands.[1] An applicant’s preference to obtain medical care in a hospital where he had been formerly treated does not satisfy this requirement.[2] […]

[1] See Šainović et al. Decision of 13 May 2013 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release, 13 May 2013], p. 2; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Motion for Provisional Release, 3 April 2013 (“Šainović et al. Decision of 3 April 2013”), p. 2; Prosecutor v. Vujadin Popović et al., Case No. IT-88-AR65.8, Decision on Prosecution’s Appeal Against Decision on Gvero’s Motion for Provisional Release, 20 July 2009 (public redacted version), para. 13.

[2] See, e.g., Šainović et al. Decision of 3 April 2013, p. 2. 

Download full document
MICT Rule Rule 68(I)
Notion(s) Filing Case
Decision on Medical Aid in Montenegro - 08.12.2005 STRUGAR Pavle
(IT-01-42-A)

CONSIDERING that pursuant to the established jurisprudence of the Tribunal, provisional release may be granted to an accused who may remain temporarily outside of the host country for the purpose of receiving medical treatment, provided that the prerequisites of Rule 65 of the Rules are fulfilled;[1]

[1] Cf. Prosecutor v. Ojdanić, IT-99-37-PT, Confidential Order on General Ojdanić’s Urgent Motion for Modification of Conditions of Provisional Release, 30 June 2005; Prosecutor v. Kovačević, IT-01-42/2-I, Decision on Provisional Release, 2 June 2004.

Download full document
ICTR Rule Rule 65 ICTY Rule Rule 65