Provisional release

Notion(s) Filing Case
Decision on Application for Leave to Appeal - 18.11.2002 MARTIĆ Milan
(IT-95-11-AR65)

[T]he burden does lie upon the accused in an application for provisional release to satisfy the Trial Chamber that, if released, he will appear for trial;

 

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ICTR Rule Rule 65(B) ICTY Rule Rule 65(B)
Notion(s) Filing Case
Decision on Provisional Release - 14.12.2006 MILUTINOVIĆ et al.
(IT-05-87-AR65.2)

The Appeals Chamber considered whether there was discernible error in the Trial Chamber’s conclusion that the progress of the trial constituted changed circumstances that made flight risk more likely than it had been at the pre-trial stage (where the Defendants were granted release).  It held in paragraph 15:

The Trial Chamber is the body best positioned to assess whether circumstances at trial have materially affected the possibility that accused will not return from provisional release.  The Appeals Chamber finds it reasonable for the Trial Chamber to have concluded that the Defendants’ incentives to flee increased over the course of a trial as they heard first-hand the evidence against them.[1]  This is not to say this is the only reasonable conclusion.  In some cases, the incentives to flee might decrease over time;[2] in other cases, these incentives might stay the same; and in still other cases these incentives might not shift enough to affect materially the approach taken in earlier provisional release decisions regarding the same accused.   These are matters that are best assessed by the Trial Chamber that is hearing the case, and the Appeals Chamber will not reverse the Trial Chamber’s considered judgement or decision absent a discernible error.  Here, while the Trial Chamber could have done a more complete job in explaining how the proceedings thus far have increased the Defendants’ incentives to flee, it provided enough reasoning to justify its conclusion.

[1] Cf. Prosecutor v. Limaj et al., Case No. IT-03-66-AR65, Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003, para. 30 (noting that the severity of a sentence faced can impact the extent of the incentive to flee).

[2] The Defendants suggest that their incentives to flee have indeed decreased since the trial began.  Interlocutory Appeal Reply, para. 16.  They point to an excerpt of a discussion between the Presiding Judge and the Prosecutor on 31 August 2006.  Ibid. (quoting T. 2674-2675).  In that exchange, the Prosecution notes that at the pre-trial stage the Trial Chamber had rejected the Prosecution’s proposal to allow a large number of Rule 92bis witnesses.  The Presiding Judge responds by saying that “one thing that’s absolutely clear from the way in which this case has been conducted so far is that there could have been the grossest miscarriage of justice if these witnesses had not been available for cross-examination.”  Ibid.  This exchange, however, does not provide enough of a basis for the Appeals Chamber to second-guess the Trial Chamber’s conclusion that the incentives for flight have increased rather than decreased for the Defendants in this case.  Read most favorably to the Defendants, the Presiding Judge’s statement at best suggests that there have been some successful cross-examinations.  It does not show that, on balance, the Prosecution’s case is weaker objectively than it was before the summer recess.  Moreover, several months of trial have passed since this exchange.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 14.12.2006 MILUTINOVIĆ et al.
(IT-05-87-AR65.2)

The Appeals Chamber considered whether there was discernible error in the Trial Chamber’s conclusion that the progress of the trial constituted changed circumstances that made flight risk more likely than it had been at the pre-trial stage (where the Defendants were granted release).  It held in paragraph 15:

The Trial Chamber is the body best positioned to assess whether circumstances at trial have materially affected the possibility that accused will not return from provisional release.  The Appeals Chamber finds it reasonable for the Trial Chamber to have concluded that the Defendants’ incentives to flee increased over the course of a trial as they heard first-hand the evidence against them.[1]  This is not to say this is the only reasonable conclusion.  In some cases, the incentives to flee might decrease over time;[2] in other cases, these incentives might stay the same; and in still other cases these incentives might not shift enough to affect materially the approach taken in earlier provisional release decisions regarding the same accused.   These are matters that are best assessed by the Trial Chamber that is hearing the case, and the Appeals Chamber will not reverse the Trial Chamber’s considered judgement or decision absent a discernible error.  Here, while the Trial Chamber could have done a more complete job in explaining how the proceedings thus far have increased the Defendants’ incentives to flee, it provided enough reasoning to justify its conclusion.

[1] Cf. Prosecutor v. Limaj et al., Case No. IT-03-66-AR65, Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003, para. 30 (noting that the severity of a sentence faced can impact the extent of the incentive to flee).

[2] The Defendants suggest that their incentives to flee have indeed decreased since the trial began.  Interlocutory Appeal Reply, para. 16.  They point to an excerpt of a discussion between the Presiding Judge and the Prosecutor on 31 August 2006.  Ibid. (quoting T. 2674-2675).  In that exchange, the Prosecution notes that at the pre-trial stage the Trial Chamber had rejected the Prosecution’s proposal to allow a large number of Rule 92bis witnesses.  The Presiding Judge responds by saying that “one thing that’s absolutely clear from the way in which this case has been conducted so far is that there could have been the grossest miscarriage of justice if these witnesses had not been available for cross-examination.”  Ibid.  This exchange, however, does not provide enough of a basis for the Appeals Chamber to second-guess the Trial Chamber’s conclusion that the incentives for flight have increased rather than decreased for the Defendants in this case.  Read most favorably to the Defendants, the Presiding Judge’s statement at best suggests that there have been some successful cross-examinations.  It does not show that, on balance, the Prosecution’s case is weaker objectively than it was before the summer recess.  Moreover, several months of trial have passed since this exchange.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 14.12.2006 MILUTINOVIĆ et al.
(IT-05-87-AR65.2)

The Appeals Chamber discussed for the first time whether Rule 65 applies to provisional release requests made during the course of a trial or instead only to pre-trial and pre-appeal provisional release requests.  In paragraphs 9-10, it rejected the Trial Chamber’s conclusion that Rule 65 applied only to pre-trial (and pre-appeal) proceedings:

Moreover, the Appeals Chamber disagrees with the Trial Chamber’s conclusion that the language “will appear for trial” in Rule 65(B) “ma[kes] it clear that the application of the Rule is confined to the provisional release of an accused whose trial has not yet begun”.[1]  First, the language of the Rule does not read “will appear for the beginning of trial” but rather reads “will appear for trial” – language which could refer to any stage of the trial.  Second, the purpose behind Rule 65(B) is best fulfilled if its language is read broadly.  Its goal of permitting provisional release only if the Trial Chamber is satisfied that the accused will return and will do no harm is not logically limited to the pre-trial stage.  Rather, this goal is equally important at other stages of the proceedings, as Rule 65(I) demonstrates in identifying the same criteria for the pre-appeal stage.  Finally, the Appeals Chamber notes that the practice of Trial Chambers in the past supports the view that Rule 65(B) is best read as applying to all provisional release applications before the Trial Chamber.[2]

Accordingly, the Appeals Chamber holds that Rule 65 applies to provisional release issues arising during the course of trial, just as it applies during pre-trial and pre-appeal proceedings.

[1] [Impugned Decision], para. 4.  The Appeals Chamber assumes for the purposes of this discussion that the Trial Chamber meant to speak of the application of Rule 65(B) in particular rather than of Rule 65 generally.  If the Trial Chamber meant the latter, however, then the presence of Rule 65(I) obviously refutes its claim. 

[2] See, e.g., Prosecutor v. Popović et al., Case No. IT-05-88-T, Decision on Defence Motions for Provisional Release of Radivoje Miletić and Milan Gvero, 7 December 2006 (“Popović Decision”), p. 4 (relying on Rule 65(B) in granting provisional release request for two accused for part of the winter recess); Prosecutor v. Prlić et al., Case No. IT-04-74-T, Confidential Decision on Motion for Provisional Release of the Accused Prlić, made public on 17 August 2006 (dated 26 June 2006), pp. 3-4 (granting a provisional release request for the summer recess during the course of trial pursuant to Rule 65); Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Decision on Joint Motion for Temporary Provisional Release During Summer Recess, 1 June 2006, paras 3-4 (applying Rule 65(B) in granting provisional release for the summer recess after one week of trial); Prosecutor v. Milošević, Case No. IT-02-54-T, Decision on Assigned Counsel Request for Provisional Release, 23 February 2006, paras 9-10 (treating Rule 65(B) as the standard for reviewing a provisional release request made during trial); Prosecutor v. Halilović, Case No. IT-01-48-T, Confidential Decision on Renewed Motion for Provisional Release, 22 July 2005, p. 4 (applying Rule 65(B) in granting provisional release prior to the entry of judgement); Prosecutor v. Hadžihasanović, Case No. IT-01-47-T, Confidential Decision on Motion for Provisional Release of Enver Hadžihasanović, 20 August 2004 (dated 23 July 2004), pp. 2-3 (granting a motion for provisional release during trial pursuant to Rule 65); Prosecutor v. Halilović, Case No. IT-01-48-T, Decision on Motion for Provisional Release, 21 April 2005, p. 2 (treating Rule 65(B) as the standard when considering a provisional release request made for a break of several weeks in trial proceedings).

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Provisional Release - 30.09.2004 SIMATOVIĆ Franko
(IT-03-69-AR65.2)

2. The Prosecution seeks leave to appeal the Impugned Decision pursuant to Rules 65(D) and 65 (F) of the Rules of Procedure and Evidence (“Rules”). For leave to appeal to be granted by the Appeals Chamber the Prosecution is required to demonstrate good cause. [NOTE: WITH EFFECT FROM 8 AUGUST 2005 THE RULES OF PROCEDURE AND EVIDENCE WERE AMENDED SO THAT ANY DECISION UNDER RULE 65 RENDERED BY A TRIAL CHAMBER WOULD BE SUBJECT TO APPEAL AND THE PROVISION IN RULE 65(D) REQUIRING THAT LEAVE BE GRANTED BY A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER “UPON GOOD CAUSE BEING SHOWN” WAS DELETED.] For the purposes of Rule 65, the jurisprudence of the Tribunal establishes that good cause will be shown if the applicant satisfies the Appeal Chamber that the Trial Chamber may have erred in the Impugned Decision.[1] While the Prosecution is required only to show the possibility of error on the part of the Trial Chamber for good cause to be established, the prior jurisprudence of the Tribunal shows that the Appeals Chamber will only grant leave where that possibility of error is clearly established.[2]

[1] Prosecutor v Blagoje Simić, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000, page 3.

[2] Prosecutor v Nikola [ainović & Dragoijub Ojdanić, Case No. IT-99-37 AR 65.2, Decision Refusing Leave to

Appeal, 26 June 2003; Prosecutor Blagoje Simić et.al, Case No. IT-95-9-AR65, Decision on Application for Leave

to Appeal, 19 April 2000; Prosecutor v Fatmir Limaj, et al, Case No. IT-03-66-AR65.3, Decision on Isak

Musliu’s Request for Provisional Release, 31 October 2003; Decision on Haradin Bala’s Request for Provisional

Release, 31 October 2003; Decision on Fatmir Limaj’ s Request for Provisional Release, 31 October 2003;

Prosecutor v Momčilo Krajišnik & Biljana Plašivić,  Case No. IT-00-39 & 40-AR65, Decision on Application for

Leave to Appeal, 14 December 2001; Prosecutor v Enver Hadžić, Case No. IT-01-47-AR65 & IT-0147-

AR65.2, Decision on Application for Leave to Appeal, 5 September 2002; Prosecutor v Vidoje Blagojević, Case

No. IT-02-60-AR65.3 & IT-02-60-AR65.4, Decision on Applications by Blagojević and Obrenović for Leave to

Appeal, 16 January 2003.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 14.12.2006 MILUTINOVIĆ et al.
(IT-05-87-AR65.2)

The Appeals Chamber found that the presumption of innocence does not play a determinative role in provisional release decisions.  In paragraph 12, it held:

The Appeals Chamber finds no error in the Trial Chamber’s reasoning.  The Trial Chamber was correct in concluding that the presumption of innocence is not “determinative”, since otherwise, as the Trial Chamber observed, “no accused would ever be detained, as all are presumed innocent.”[1]  Contrary to the suggestion of the Defendants, this Tribunal’s consistent jurisprudence does not treat the presumption of innocence as determinative in assessing whether provisional release should be granted.  Rather, to the extent that this Tribunal has identified determinative factors, it has pointed to those specified in Rule 65(B).[2]

[1] Impugned Decision, para. 8.

[2] See, e.g., Stanišić Decision, para. 7; Prosecutor v. Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying His Provisional Release, 9 March 2006, para. 6.

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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.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 08.07.2009 PRLIĆ et al.
(IT-04-74-AR65.15)

20. The Appeals Chamber finds that the Trial Chamber committed a discernible error of fact in concluding that sufficiently compelling humanitarian reasons for Praljak’s provisional release existed on the basis that his mental health was affected by the long time spent in detention and the foreseeable length of the trial. The Appeals Chamber considers that, in the absence of any precise medical information or evidence provided with respect to Praljak’s state of health, it was unreasonable for the Trial Chamber to come to such conclusion. Whereas the Appeals Chamber has held that “under certain circumstances, written expert reports and other relevant personal conditions might not necessarily be required”,[1] in the present situation, no reasonable trier of fact could conclude that factors like prolonged detention during the trial proceedings and the foreseeable length of the trial – common to most of the accused appearing before the Tribunal – amounted to compelling humanitarian circumstances. In order to conclude what precise impact, if any, those factors have had on Praljak’s mental health, the Trial Chamber should have assessed objective medical evidence. The Appeals Chamber thus finds that this error constitutes an abuse of discretion.

[1] Praljak Decision of 17 December 2008, para. 11.

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Decision on Provisional Release - 08.07.2009 PRLIĆ et al.
(IT-04-74-AR65.15)

16. The Appeals Chamber recalls that a Trial Chamber is required to assess the relevant factors as they exist at the time when it reaches its decision on provisional release as “factual circumstances on the basis of which [a previous] decision was made may well have changed by the time a new request for provisional release is before the Trial Chamber.”[1] The Appeals Chamber further recalls that when it has previously found analogous humanitarian grounds to be insufficient for granting provisional release, “the Trial Chamber should give explicit consideration to whether the additional humanitarian reasons are of a sufficiently different nature, present a higher degree of gravity or evince a more acute level of urgency than the humanitarian grounds which the Appeals Chamber already deemed insufficient”.[2]

17. […] In the Impugned Decision, the Trial Chamber took into account such additional factors as Praljak’s actual exhaustion caused by the intensity of the proceedings and the fact that he had been in detention for almost another year since the issuance of the Trial Chamber’s Decision of 17 July 2008.[3] Further, the Impugned Decision expressly refers to the existing impact on Praljak’s health as observed by the Trial Chamber, rather than any possible future impact on his health. Therefore, the Prosecution has failed to show that the Trial Chamber committed an error of law in not establishing humanitarian reasons additional to those rejected in the Praljak Decision of 28 July 2008. […]

[1] See Prlić Decision of 5 June 2009 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.14, Decision on Jadranko Prlić’s Appeal Against the Décision relative à la démande de mise en liberté provisoire de l’Accusé Prlić, 9 April 2009, 5 June 2009], para. 13.

[2] Petković Decision of 21 April 2008, para. 20 (emphasis added).

[3] Impugned Decision, paras 31, 34. The Appeals Chamber notes that some of these factors were not considered to constitute sufficiently compelling humanitarian grounds per se. It considers however that the Trial Chamber concluded that such humanitarian grounds existed on the basis of the combination of all relevant factors.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 08.07.2009 PRLIĆ et al.
(IT-04-74-AR65.15)

The Prosecution was arguing that the Impugned Decision was not based on the established criterion of “compelling humanitarian reasons” but was simply a decision to grant provisional release during the judicial recess. The Appeals Chamber held:

10. The Appeals Chamber recalls its observation that “there is no reason to establish a precedent pursuant to which accused are granted provisional release for the period between the Prosecution and Defence case, absent sufficiently compelling humanitarian reasons”.[1] The Appeals Chamber notes that the Trial Chamber correctly stated the applicable law, including the criterion of sufficiently compelling humanitarian reasons, and proceeded to apply it to the circumstances of the case before it.[2] The Trial Chamber noted the fact that it would adjourn for judicial recess during the period for which Praljak requested to be released only after it identified the criteria that it was required to establish in order to grant the Request.[3] While the Appeals Chamber agrees that there is no “recess leave”, it considers that the judicial activity calendar may be a relevant factor when assessing a request for provisional release, notably to avoid unwarranted disruptions or undue delays in the proceedings.[4] Consequently, the Appeals Chamber finds that the Prosecution has failed to show an error of law in the Impugned Decision in this regard.

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.7, Decision on “Prosecution’s Appeal from Décision relative à la demande de mise en liberté provisoire de l’Accusé Petković Dated 31 March 2008”, 21 April 2008, (“Petković Decision of 21 April 2008”), para. 17. This observation was made in the context of the proportionality of the length of the release to the circumstances justifying provisional release.

[2] Impugned Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Slobodan Praljak’s Motion for Provisional Release (2009 Summer Judicial Recess), filed in French on 18 May 2009 (English translation filed on 25 May 2009) (confidential with confidential annex). The public version was filed in French on 25 May 2009 (English translation filed on 28 May 2009)], paras 16, 26 et seq.

[3] Impugned Decision, para. 20.

[4] Cf. Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Public Redacted Version of the “Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion” Issued on 21 May 2009, 22 May 2009, para. 12.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Consolidated Decision on Provisional Release - 11.03.2008 PRLIĆ et al.
(IT-04-74-AR65.5)

20. The Appeals Chamber considers that the 98bis Ruling in this case constitutes a significant enough change in circumstance to warrant the renewed and explicit consideration by the Trial Chamber of the risk of flight posed by the accused pursuant to Rule 65(B) of the Rules. […]

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Consolidated Decision on Provisional Release - 11.03.2008 PRLIĆ et al.
(IT-04-74-AR65.5)

21. The Appeals Chamber further finds that the Trial Chamber committed a discernible error in considering that the justifications for release put forth by the Accused might be regarded as humanitarian grounds capable of justifying the granting of a short period of provisional release in the cases of Ćorić,[1] Praljak[2] and Petković.[3] In the cases of Stojić and Prlić the Trial Chamber considered Prlić’s request to visit his ailing father and brother and Stojić’s request to visit his ailing spouse, brother and parents, to be requests based on humanitarian grounds without offering any indication of how much weight it ascribed thereto.[4] Nonetheless, in all cases, the Appeals Chamber finds that the various justifications for release offered by the Accused are not sufficiently compelling, particularly in light of the 98bis Ruling, to warrant the exercise of the Trial Chamber’s discretion in favour of granting the Accused provisional release. The Appeals Chamber accordingly finds that the circumstances of this case indicate that a Trial Chamber properly exercising its discretion should have denied provisional release.

[1] Impugned Ćorić Decision, p. 4 (Considering that the application for provisional release submitted by the Accused Ćorić to visit his ailing daughter and close family may be considered as a request based on humanitarian grounds and may justify the granting of a short period of provisional release).

[2] Impugned Praljak Decision, p. 4 (Considering that the Accused Praljak’s request to deal with administrative matters and to undergo medical tests may justify the granting of a short period of provisional release).

[3] Impugned Petković Decision, p. 4 (Considering that the application for provisional release submitted by the Accused Petković to visit both his ailing spouse and his close family may be considered as a request based on humanitarian grounds and may justify the granting of a short period of provisional release).

[4] See, respectively, Impugned Prlić Decision, p. 4; Impugned Stojić Decision, p. 4.

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Consolidated Decision on Provisional Release - 11.03.2008 PRLIĆ et al.
(IT-04-74-AR65.5)

After the end of the Prosecution case and just before issuing its Rule 98bis Decision, the Trial Chamber granted provisional release to several accused. The Prosecution requested the Appeals Chamber to revoke the decisions to provisionally release these accused on the ground that the Trial Chamber had erred in failing to discuss or consider the heightened risk of flight given the stage of the trial and, more specifically, that the pending Rule 98bis decisions concerned the sufficiency of the evidence on joint criminal enterprise. The Appeals Chamber reasoned as follows:

19. The Appeals Chamber finds that the Trial Chamber committed a discernible error in failing to explicitly discuss the impact of its 98bis Ruling when granting provisional release. In deciding to grant the Accused provisional release the Trial Chamber essentially relied on the compliance by the Accused with the terms imposed by the Trial Chamber in prior decisions on provisional release.[1] In this regard, the Impugned Decisions fail to assess the requirements of Rule 65(B) of the Rules in the present context of the proceedings, and particularly in light of the Trial Chamber’s imminent 98bis Ruling.

[1] [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision relative à la demande de mise en liberté provisoire de l’accusé Prlić, 19 February 2008 (“Impugned Prlić Decision”); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision relative à la demande de mise en liberté provisoire de l’accusé Stojić, 19 February (“Impugned Stojić Decision”); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision relative à la demande de mise en liberté provisoire de l’accusé Praljak, 19 February 2008 (“Impugned Praljak Decision”); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision relative à la demande de mise en liberté provisoire de l’accusé Petković, 19 February 2008 (“Impugned Petković Decision”); Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision relative à la demande de mise en liberté provisoire de l’accusé Ćorić, 19 February 2008 (“Impugned Ćorić Decision”)], p. 4.

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Consolidated Decision on Provisional Release - 11.03.2008 PRLIĆ et al.
(IT-04-74-AR65.5)

Petković argued that the only avenue for the Prosecution to seek a stay of the Trial Chamber’s decisions on provisional release was under Rule 65(E) of the Rules, which required the Prosecution to file its application for a stay of those decisions at the time of its consolidated response to the initial applications for provisional release. In this case, the Prosecution had not done so, but had filed a request for a stay directly with the Appeals Chamber after the Trial Chamber’s decision had been issued. The Appeals Chamber ruled:

11. Contrary to Petković’s arguments, the case law of the International Tribunal supports the competence of the Appeals Chamber to consider the Prosecution’s request for a stay, despite its failure to comply with Rule 65(E) of the Rules.[1] Furthermore, the Appeals Chamber has also recognized in other cases that the preservation of the object of an appeal by the Prosecution against the provisional release of the accused constitutes “good cause” within the meaning of Rule 127(A)(ii) and (B) of the Rules.[2] In this case, the Appeals Chamber – by staying the Impugned Decisions – considered the need to preserve the object of the Appeal to be justified and accordingly used its inherent power to render what was an ancillary order in aid of the exercise of its appellate function.[3]

[1] See Prosecutor v. Jadranko Prlić et al., Case Nos. IT-04-74-AR65.1, IT-04-74-AR65.2, IT-04-74-AR65.3, Decision on Motions for Reconsideration, Clarification, Request for Release and Applications for Leave to Appeal, 8 September 2004, para. 15 (“Prlić Decision of 8 September 2004”); Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.1, Stay of “Decision on Defence Motion of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005, 16 December 2005 (Considering that pursuant to Rule 54 of the Rules, in conjunction with Rule 107 of the Rules, the Appeals Chamber has the power to stay the Trial Chamber’s Re-assessment Decision proprio motu in order to preserve the status quo of the Appeal). Cf. Prosecutor v. Mićo Stanišić, Case No. IT-04-79-AR65.1, Decision on Prosecution’s Motion to Stay Decision on Provisional Release Concerning the Accused Mićo Stanišić, 22 July 2005, p. 2 (Recognizing e contrario that the Prosecution motion for stay could have been granted had exceptional circumstances capable of justifying the waiving of the Rule 65(E) requirement been shown to be in the interests of justice).

[2] Prosecutor v. Jovica Stanišić et al., Case No. IT-03-69-AR73, Decision on Interlocutory Appeals from Decision of Trial Chamber to Stay Provisional Release, 29 September 2004, paras. 25, 27.

[3] In this regard see Prlić Decision of 8 September 2004, paras. 15-16.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision Refusing Leave to Appeal - 03.07.2003 MILUTINOVIĆ Milan
(IT-99-37-AR65.3)

12.     […] if an accused decides to cooperate with the Prosecution, this matter may weigh in his favour when he seeks to be provisionally released, regardless of the fact that it is not explicitly listed in Rule 65, insofar as it shows his general attitude of cooperation towards the Tribunal which is relevant to the issue that he will appear.  It is wrong to suggest, however, that an accused should be penalised because he declines to cooperate with the Prosecution.[1] […]

[1] Šainović and Ojdanić Appeals Decision, par 8: “An accused person may, if he decides to do so, co-operate with the Office of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his giving such an interview while still in custody.”

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Decision Refusing Leave to Appeal - 03.07.2003 MILUTINOVIĆ Milan
(IT-99-37-AR65.3)

23.     […] A Chamber is required to give reasons for its finding on the facts which led to its conclusion but this does not mean that it has a duty to give a detailed analysis of each such factor.  In most applications for provisional release, it would be sufficient for a Chamber to state that the matters put forward by the applicant have not satisfied it that he will appear for trial, or that, if released, he will not pose a danger to any victim, witness or other person (as the case may be).  In the particular case, one or more of the particular matters put forward by the applicant will be of such a nature that, in the discharge of its duty to give reasons, the Chamber will be obliged to explain why it has not accepted one or more of the various matters as being sufficient to establish the relevant fact.  It is not possible to state in advance any specific test as when such an obligation will arise.  Each case will depend upon its own circumstances. […]

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Decision Refusing Leave to Appeal - 03.07.2003 MILUTINOVIĆ Milan
(IT-99-37-AR65.3)

5.       […] The fact that an accused may have surrendered voluntarily to the Tribunal is relevant to […] whether he will appear for trial, to the extent that his voluntary surrender demonstrates his readiness to cooperate with the Tribunal and increases the likelihood that he will appear for trial if released.  

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Decision on Provisional Release - 21.04.2008 PRLIĆ et al.
(IT-04-74-AR65.7)

17. Concerning the humanitarian reasons sufficient to justify provisional release, the Appeals Chamber notes that the development of the Tribunal’s jurisprudence implies that an application for provisional release brought at a late stage of proceedings, and in particular after the close of the Prosecution case, will only be granted when serious and sufficiently compelling humanitarian reasons exist.[1] Before granting provisional release, a Trial Chamber should take into consideration the position of victims and witnesses living in the same region where the accused, when released, will return. The perception that persons accused of international crimes are released, for a prolonged period of time, after a decision that a reasonable trier of fact could make a finding beyond any reasonable doubt that the accused is guilty (this being the meaning of a decision dismissing a Rule 98bis motion), could have a prejudicial effect on victims and witnesses. Therefore, provisional release should only be granted at a late stage of the proceedings when sufficiently compelling humanitarian reasons exist to justify the release. Furthermore, even when provisional release is found to be justified in light of the nature of the circumstances, the length of the release should nonetheless be proportional to these circumstances[2]—for example, the need to visit a seriously ill family member in the hospital would justify provisional release of a sufficient time to visit the family member. The Appeals Chamber finds that there is no reason to establish a precedent pursuant to which accused are granted provisional release for the period between the Prosecution and Defence case, absent sufficiently compelling humanitarian reasons. The Appeals Chamber recalls that the existence of compelling humanitarian reasons will only become relevant if the accused has met the prerequisite requirements of Rule 65(B), which must be satisfied for the Trial Chamber to have the discretion to consider granting that provisional release.[3]

[1] [Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008, (“Appeals Chamber Decision”)], para. 21. See also, inter alia, Prosecutor v. Ademi, Order on Motion for Provisional Release, 20 February 2002, which considered that the proximity of a prospective judgment may weigh against a decision to release, para. 22; Prosecutor v. Halilović, Case No IT-01-48-T, Decision on Motion for Provisional Release, 21 April 2005, whereby Trial Chamber I denied provisional release to the Accused considering “that the facts submitted by the Defence in support of the Motion do not amount to exceptional circumstances”, and “the advanced stage of the Prosecution case where most of the evidence in support of the Prosecution case has been presented and further Prosecution witnesses are still to be heard”, pp. 3-4; Prosecutor v. Haradinaj et al., Case No. IT-04-84-T, Decision on Defence Motion on Behalf of Ramush Haradinaj for Urgent Provisional Release, Confidential, 3 October 2007 (“Haradinaj Decision”), p. 3;  Prosecutor v. Prlić et al., Case No. IT-04-74-T, Décision Relative à la Demande de Mise en Liberté Provisoire de l’Accusé Prlajak, with a Confidential Annex, 1 April 2008, pp. 6-8; Prosecutor v. Milutinović et al., Case No IT-07-85-T, Decision on Šainović Motion for Temporary Provisional Release, 4 April 2008, paras 7-9; Prosecutor v. Prlić et al., Case No. IT-04-74-T, Décision Relative à la Demande de Mise en Liberté Provisoire de l’Accusé Čorić, with a Confidential Annex, 8 April 2008, pp. 6-7; Prosecutor v. Milutinović et al., Case No IT-07-85-T, Decision on Lazarević Motion for Temporary Provisional Release, 15 April 2008 (“Lazarević Decision”).

[2] See, for example, Prosecutor v. Hadžihasanović and Kubura, Case No IT-01-47-T, Decision on Motions by Enver Hadžihasanović and Amir Kubura for Provisional Release, 19 July 2005, rendered between the close of the Defence case and the delivery of the judgment, whereby Trial Chamber II considered that “at this stage of the trial there is an increased risk of flight, particularly after the Prosecution requested a finding of guilt on all charges”; “the Prosecution’s final arguments and the sentences requested therein […] may exert considerable psychological pressure on the Accused”; “other Chambers of the Tribunal held that the proximity of a prospective judgment date may weigh against a decision to release”; “the Chamber shares this view and holds that release for the entire period preceding the entry of judgment would be inappropriate and would create too great a risk of  flight”; “a period of 12 days for each of the Accused significantly reduces the risk of flight as opposed to a longer period”; pp. 7-9. See also, Lazarević Decision, whereby Trial Chamber II considered that “based upon the compelling humanitarian considerations set forth in the Motion […] it would be appropriate for the Accused to be provisionally released for a limited duration”, specifically, seven days, paras 16 and 18. See, further, Haradinaj Decision, p. 3.

[3] See, for example, Prosecutor v. Boškoški and Tarčulovski, Case No. IT-04-82-AR65.4, Decision on Johan Tarčulovski’s Interlocutory Appeal on Provisional Release, 27 July 2007 (“Tarčulovski Decision”), para. 14, whereby the Appeals Chamber recalled that “a Trial Chamber may grant provisional release only if it is satisfied that the accused will return for trial and that he will not pose a danger to any victim, witness or other person. It is in this context that any humanitarian grounds have to be assessed”. In applying the above principle of law, the Appeals Chamber proceeded in considering that “[t]he Trial Chamber considered the birth of his second child in the Impugned Decision and found that 'the arrival of a baby is not a strong weight in the assessment of the likelihood of the Accused’s future attendance at the trial or of the interests of justice in this case'. Therefore, the Appeals Chamber finds that the Appellant has not established that the Trial Chamber erred in denying the Appellant’s request for provisional release despite his family situation, since in light of other relevant factors it was not satisfied that the Appellant would appear for trial, if provisional released”. 

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Consolidated Decision on Provisional Release - 15.05.2008 POPOVIĆ et al.
(IT-05-88-AR65.4, IT-05-88-AR65.5, IT-05-88-AR65.6)

22. The Appeals Chamber notes that when considering the impact of a 98bis ruling on the flight risk of an accused pursuant to Rule 65(B) of the Rules, a Trial Chamber may deem it necessary to address the arguments raised by the accused in his motion for acquittal in order to assess his perception of the strength of the case against him. However, contrary to the Prosecution’s inference, such an assessment does not constitute a fixed requirement of the Rules. The Appeals Chamber accordingly finds that the Trial Chamber did not commit a discernible error when it concluded that the 98bis Decision did not increase Gvero’s flight risk without addressing the arguments he made in his motion for acquittal.

23. […] Only after weighing all of the aforementioned factors along with the 98bis Decision did the Trial Chamber conclude that Gvero did not pose a flight risk or a threat to witnesses, victims or other persons in the case.[1] Accordingly, the Appeals Chamber is not satisfied that the Trial Chamber committed a discernible error when it concluded that the 98bis Decision did not increase Gvero’s flight risk.

24. Nevertheless, the Appeals Chamber recalls that when considering a provisional release motion at the post-98bis stage of the proceedings, even when a Trial Chamber is satisfied that sufficient guarantees exist to offset the flight risk of the accused, it should not exercise its discretion to grant provisional release unless sufficiently compelling humanitarian reasons tip the balance in favour of allowing provisional release.[2] The Appeals Chamber accordingly finds, Judges Güney and Liu dissenting, that a Trial Chamber properly exercising its discretion would have denied Gvero’s provisional release request given that he did not propose any compelling humanitarian justifications for release. Gvero points out that in the 7 December 2007 Decision, the Trial Chamber did not consider his personal circumstances relevant to its decision to grant his provisional release motion, and that in the Impugned Decision, the Trial Chamber granted him provisional release in accordance with previous Trial and Appeal Chamber decisions.[3] However, the Appeals Chamber notes that each of the decisions relied upon by Gvero were rendered before the 98bis Decision in this case.

30. The Appeals Chamber disagrees with the Prosecution’s assertion that the Trial Chamber did not conduct a clear assessment of the impact of the 98bis Decision on Miletić’s flight risk. Rather, the Trial Chamber explicitly noted that in light of the Prlić Decision of 11 Marcy 2008, it was required to conduct such an assessment.[4] […] The Trial Chamber concluded that based on all of the aforementioned factors, it was not satisfied that the 98bis Decision increased Miletić’s flight risk. It further concluded that the Miletić did not pose a flight risk or a threat to witnesses, victims or other persons in the case.

See also the Partly Dissenting Opinions of Judges Güney and Liu.

[1] Impugned Gvero Decision, para. 17.

[2] See Stojić Decision, para. 14. See also Petković Decision, para. 15 [Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.8, Decision on “Prosecution’s Appeal from Décision relative à la Demande de mise en liberté proviso ire de l’Accusé Petković Dated 31 March 2008”, 21 April 2008 (“Petković Decision”), para. 7].

[3] Gvero Response, paras 7-8.

[4] Impugned Miletić Decision, paras 30 and 32.

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Consolidated Decision on Provisional Release - 15.05.2008 POPOVIĆ et al.
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18. The Appeals Chamber recalls, however, that even when provisional release is found to be justified on humanitarian grounds, the length of the release should be proportional to the circumstances – for example, the need to visit a seriously ill family member in the hospital would justify provisional release for a sufficient time to visit the family member.[1] Accordingly, a Trial Chamber must address the proportionality between the nature and weight of the circumstances of a particular case and the duration of provisional release requested.[2] The Appeals Chamber considers that the Trial Chamber engaged in such an evaluation when it held that “[t]aking into account the relevant factors, the Trial Chamber decides to allow provisional release for a limited duration of seven days only (including travel time)”.[3] However, the Appeals Chamber notes that the Trial Chamber’s conclusion erroneously included time to allow Borovčanin to “attend to his personal matters”.[4] The Trial Chamber thus failed to limit the length of the visit to the humanitarian circumstances justifying the visit. In light of the above, the Appeals Chamber holds, Judge Güney dissenting, that a Trial Chamber properly exercising its discretion would have granted the custodial visit for a shorter period – namely, for a period no longer than the time necessary for Borovčanin to visit his ailing father.

See also, para. 32.

[1] See Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.9, Decision on “Prosecution’s Appeal from Decision relative à la Demande de mise en liberté proviso ire de l’Accusé Stojić Dated 8 April 2008”, 29 April 2008 (“Stojić Decision”), para. 16. See also Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.8, Decision on “Prosecution’s Appeal from Décision relative à la Demande de mise en liberté proviso ire de l’Accusé Prlić Dated 7 April 2008”, 25 April 2008 (“Prlić Decision”), para. 16; Petković Decision [Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.8, Decision on “Prosecution’s Appeal from Décision relative à la Demande de mise en liberté provisoire de l’Accusé Petković Dated 31 March 2008”, 21 April 2008], para. 17; Prosecutor v. Hadžihasanović and Amir Kubura, Case No.  IT-01-47-T, Decision on Motions by Enver Hadžihasanović and Amir Kubura for Provisional Release, 19 July 2005, pp. 7-9. In this decision, which was rendered between the close of the Defence case and the delivery of the judgement, Trial Chamber II considered that: “at this stage of the trial there is an increased risk of flight, particularly after the Proseuction requested a finding of guilt on all charges”; “the Prosecution’s final arguments and the sentences requested therein […] may exert considerable psychological pressure on the Accused”; “other Chambers of the Tribunal held that the proximity of a prospective judgement date may weigh against a decision to release”; “the Chamber shares this view and holds that release for the entire period preceding the entry of judgement would be inappropriate and would create too great a risk of flight”; ad “a period of 12 days for each of the Accused significantly reduces the risk of flight as opposed to a longer period”; Prosecutor v. Milutinovic et al., Case No. IT-07-85-T, Decision on Lazarević Motion for Temporary Provisional Release, 15 April 2008, paras 16 and 18, in which Trial Chamber II considered that “[b]ased upon the compelling humanitarian considerations set forth in the Motion […]  it would be appropriate for the Accused to be provisionally released for a limited duration,” specifically, seven days.

[2] See Stojić Decision, para. 20. See also Prlić Decision, para. 18; Petković Decision, para. 17.

[3] Impugned Borovčanin Decision, para. 31.

[4] Impugned Borovčanin Decision, para. 31. Specifically, the Trial Chamber instructed that “during his stay in Republika Sprska he must spend every night in the local detention facility, while being allowed to visit his father or attend to personal matters during the day-time.”

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Decision on Attendance at Memorial Services - 21.10.2004 SIMIĆ Blagoje
(IT-95-9-A)

14.     In accordance with the criteria set out in Rule 65(I) of the Rules for granting provisional release, the Appeals Chamber will first determine whether it is satisfied that, if released, the Appellant will surrender into detention at the conclusion of the fixed period. With regard to the applicable standard of proof, the Appeals Chamber recalls that Rule 65 of the Rules provides for provisional release for an accused as well as for a convicted person. The specificity of the appeal stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that “special circumstances exist warranting such release.” As to the burden of proof that an applicant must meet in order to satisfy the Appeals Chamber, there is no explicit or implicit provision in the Rules suggesting that a higher standard of proof should be applied on appeal. The Appeals Chamber deems that the inclusion of a provision on provisional release in the Rules was driven by humane and compassionate considerations together with concerns related to the principle of proportionality in international law. These concerns remain even if the applicant has been convicted at trial. The Appeals Chamber considers that the fact that the person has already been sentenced is a matter to take into account when balancing the probabilities. 

15.     The Appeals Chamber considers that the seriousness of the offences of which an appellant has been found guilty is one of the factors it has to take into account when assessing whether an appellant, if released, would return to detention. It is evident that the more severe the sentence is, the greater is the incentive to flee. The Appeals Chamber recalls, however, that this cannot be the sole factor that determines the outcome of an application for provisional release.

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Consolidated Decision on Provisional Release - 15.05.2008 POPOVIĆ et al.
(IT-05-88-AR65.4, IT-05-88-AR65.5, IT-05-88-AR65.6)

The Appeals Chamber was seized of a consolidated appeal by the Office of the Prosecutor against three decisions rendered by Trial Chamber II, in which a custodial visit was granted to Ljubomir Borovčanin and provisional release to Milan Gvero and Radivoje Miletić.[1] The Trial Chamber had ordered the Impugned Decision to be stayed in accordance with Rule 65(F) of the Rules, following the Prosecution’s submission that it intended to file an appeal should the Trial Chamber grant provisional release to the Accused. [2]

17. Turning to the sufficiency of the humanitarian grounds provided in support of Borovčanin’s motion, the Trial Chamber observed that Borovčanin requested both to see his ailing father and to address other personal matters.[3] In granting the visit, the Trial Chamber considered that Borovčanin’s father is elderly, has been sick for an extended period of time, and according to the medical report accompanying Borovčanin’s motion, is in critical condition.[4] The Trial Chamber surmised that under the circumstances, there could be few opportunities left for Borovčanin to see his father.[5] The Trial Chamber concluded that “the humanitarian grounds are sufficiently compelling” to justify “some form of provisional release.”[6] The Appeals Chamber, having considered the evidence before the Trial Chamber, finds that the Trial Chamber did not commit a discernible error in considering that the serious health condition of Borovčanin’s father justified his provisional release for a short duration.

See also, para. 31.

[1] Prosecutor v. Popović et al., Case No. IT-05-88-T, Confidential Decision on Borovčanin’s Motion for Custodial Visit, 9 April 2008 (“Impugned Borovčanin Decision”); Prosecutor v. Popović et al., Case No. IT-05-88-T, Decision on Gvero’s Motion for Provisional Release During the Break in the Proceedings, 9 April 2008 (“Impugned Gvero Decision”); Prosecutor v. Popović et al., Case No. IT-05-88-T, Decision on Miletić Request for Provisional Release During the Break in the Proceedings, 9 April 2008 (“Impugned Miletić Decision”).

[2] Impugned Borovčanin Decision, paras 14, 32(5); Impugned Gvero Decision, paras 5, 19(g); Impugned Miletić Decision, paras 9, 40(i).

[3] Impugned Borovčanin Decision, para. 29.

[4] Impugned Borovčanin Decision, para. 29.

[5] Impugned Borovčanin Decision, para. 29.

[6] Impugned Borovčanin Decision, para. 29.

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Decision on Custodial Visit - 10.11.2011 POPOVIĆ et al.
(IT-05-88-A)

In this decision, the Appeals Chamber dealt with Pandurević’s request to allow him to arrange a brief custodial visit for him to the Serbian Embassy in The Hague for the purpose of completing the formalities required to obtain a national identity card and/or passport. Serbia agreed with the temporary alteration of the conditions of Pandurević’s detention proposed in the Motion but insisted that the Ministry of the Interior of Serbia be responsible for securing Pandurević’s personal safety during his visit to the Embassy and accompany him from the entrance of the Embassy until his departure from Embassy premises, thus not allowing any armed officers of The Netherlands onto the premises of the Embassy. According to The Netherlands, a visit by Pandurević to the Embassy on the terms proposed by Serbia would create an unwarranted security risk and an unwanted precedent in relation to other detainees, including detainees of other international courts and tribunals who are nationals of other countries and detained in The Netherlands. Pandurević’s Motion was denied by the Appeals Chamber.

p. 3: NOTING FURTHER that: (a) during a visit to an embassy (as opposed to a transfer to national authorities by way of provisional release), a detainee remains under detention and hence a responsibility of the Dutch authorities due to his or her presence on the territory of The Netherlands;[1] (b) Dutch authorities remain responsible not only for the detainees, but for the Embassy itself, and under the terms proposed by Serbia, the Dutch authorities could not sufficiently effect such responsibility during a detainee’s stay within the Embassy;[2] (c) the Serbian police officers whom the Embassy proposes to have present during the requested visit cannot lawfully be armed and would not be authorized to use force under Dutch law to secure Pandurević and the Embassy;[3] and (d) for these reasons, the Ministries representing the Dutch authorities would be “extremely reluctant to execute an order granting [such a] visit”[4]

[…]

CONSIDERING that the Motion is not properly filed under Rule 65 of the Rules, as the requested alteration of the conditions of the detention of Pandurević does not involve provisional release from detention, but rather a custodial visit to an embassy[5] 

[1] Ibid. [Registry Submission Pursuant to Rule 33(B) Regarding Further Order on Vinko Pandurević’s Motion for Temporary Alteration of the Conditions of His Detention, 22 March 2011 (confidential) (“22 March 2011 Registry Submission”)], Annex II, para. 2.

[2] Ibid. [22 March 2011 Registry Submission], Annex II, para. 4.

[3] Ibid. [22 March 2011 Registry Submission].

[4] Ibid. [22 March 2011 Registry Submission], Annex II, para. 6.

[5] See Motion [Motion on Behalf of Vinko Pandurevic [sic] for a Temporary Alteration in the Conditions of His Detention to Facilitate a Visit to the Serbian Embassy in The Hague, 8 December 2010 (confidential)], paras 4-7, referring, inter alia, to Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-T, Decision on Borovčanin’s Motion for Custodial Visit, 3 June 2010. The Appeals Chamber notes that Trial Chamber granted Ljubomir Borovčanin’s request for a custodial visit to the Embassy under Rule 65 of the Rules. The Appeals Chamber considers that the Trial Chamber erred in so doing as such custodial visits do not fall within the compass of this Rule.

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Decision on Stay of Provisional Release - 29.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR73)

26. The Trial Chamber issued the Impugned Decision without giving the defence an opportunity to respond to the Prosecution’s application. The Appeals Chamber is sympathetic to the arguments of Stanišić that he was denied an opportunity to be heard by the Trial Chamber. It is not persuaded, however, that this denial caused such prejudice to him as to warrant overturning the Impugned Decision. The Appeals Chamber is not persuaded by any of the arguments he has presented on this appeal that the Trial Chamber erred in issuing the Impugned Decision.

27. The Appeals Chamber is also not convinced that the Trial Chamber erred in granting the Prosecution’s application for a stay based upon a repetition of arguments presented by the Prosecution in opposition to Stanišić’s application for provisional release. The argument of the Prosecution in its application for a stay was that the Trial Chamber erred in its consideration of the Prosecution’s arguments when granting provisional release to Stanišić and that the Prosecution intended to seek leave to appeal those alleged errors to the Appeals Chamber. The Appeals Chamber is satisfied that the intention to seek leave to appeal constitutes sufficient grounds for the Trial Chamber’s grant of the stay application.

28. The Appeals Chamber does not accept the argument of Stanišić that he had a legitimate expectation that the Prosecution would not request a stay due to its failure to indicate its intention to do so in its original response to the applications for provisional release. The Prosecution’s opposition to his provisional release was made clear to him by its response to his application, and he could have expected the Prosecution to seek, by any means necessary, to prevent his provisional release once the Trial Chamber had determined that his application should be granted.

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Decision on Provisional Release - 25.04.2008 PRLIĆ et al.
(IT-04-74-AR65.8)

16. Concerning whether the humanitarian reasons identified by the Accused were sufficient to justify provisional release, the Appeals Chamber reiterates that provisional release should only be granted at a late stage of the proceedings, and in particular after the close of the Prosecution case, when sufficiently compelling humanitarian reasons exist to justify the release and, even when provisional release is found to be justified in light of the nature of the circumstances, the length of the release should nonetheless be proportional to these circumstances- for example, the need to visit a seriously ill family member in the hospital would justify provisional release of a sufficient time to visit the family member.[1]

17. […] The Appeals Chamber […] finds that the Trial Chamber did not abuse its discretion in considering that the gravity of the illness suffered by the Accused’s family members justify the provisional release of the Accused for a short period of time.

[1] Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.7, Decision on “Prosecution’s Appeal from Décision Relative à la Demande de Mise en Liberté Provisoire de l’Accusé Petković Dated 31 March 2008” , 21 April 2008, (“Petković Decision”), para. 17; [Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008], para. 21.

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Decision on Provisional Release - 25.04.2008 PRLIĆ et al.
(IT-04-74-AR65.8)

The Appeals Chamber upheld the Trial Chamber’s finding that the humanitarian reasons identified by the Accused were sufficiently compelling to grant provisional release at a late stage of the proceedings. However, the Appeals Chamber considered that a proportion must exist between the nature and weight of the humanitarian grounds and the duration of provisional release. On this basis, the Appeals Chamber remanded the Impugned Decision to the Trial Chamber for a de novo adjudication of the duration of the provisional release granted to the Accused.

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Decision on Provisional Release - 25.04.2008 PRLIĆ et al.
(IT-04-74-AR65.8)

18. […] The Appeals Chamber reiterates that decisions on motions for provisional release are fact intensive; cases are considered on an individual basis in light of the particular circumstances of the individual accused. The number of factors that a Trial Chamber is to consider does not only influence the decision of whether to grant or deny a motion for provisional release, but also impacts on the assessment of the duration of the period of provisional release, if any. Thus, inter alia, a Trial Chamber is to address the proportionality between the nature and weight of the circumstances justifying provisional release on humanitarian grounds, and the duration of provisional release.[1]

19. The Appeals Chamber notes that the Trial Chamber did not engage in such an evaluation. Absent such an evaluation, the Appeals Chamber is not satisfied that the justifications offered by the Accused warrant the length of provisional release granted by the Trial Chamber. Rather, a Trial Chamber properly exercising its discretion would have granted provisional release for a period no longer than the time necessary for the Accused to visit his ailing family members.

[1] Petković Decision, para. 17.

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Decision on Provisional Release - 20.01.2009 PRLIĆ et al.
(IT-04-74-AR65.13)

The Trial Chamber granted provisional release to Jadranko Prlić during the Defence case in December 2008, despite the fact that Prlić had met with a potential witness during previous releases in breach of the conditions imposed by the Trial Chamber. Such a breach, according to the Trial Chamber, warranted a sanction, but not denial of provisional release. The Prosecution requested the Appeals Chamber to quash the decision on the basis, inter alia, “that the Trial Chamber committed a discernible error in finding that Prlić’s unauthorised meeting with Witness Neven Tomić … was coincidental and that Prlić’s previous meetings with this witness did not violate the applicable terms of provisional release”.[1]  

In granting the Prosecution’s Appeal, the Appeals Chamber first reasoned that these meetings breached the conditions of the provisional release, and accordingly had bearing on his reliability.

8. Prlić met with Tomić while on provisional release despite the clear conditions imposed by the Trial Chamber not to meet with any potential witnesses.[2] […]

10. The Appeals Chamber […] finds that, considering the circumstances, including the positions of the two individuals during the indictment period[3] and their long-time acquaintance,[4] no reasonable trier of fact could have concluded that Prlić, even before [the submission of the list of witnesses by the Defence], was not aware that Tomić would be at least a potential witness […] The breach of the order puts into doubt the reliability of Prlić in abiding by the conditions of provisional release.

The Appeals Chamber further considered that the Trial Chamber is expected to take into account the influencing of witnesses under the criteria identified by Rule 65(B):

11. […] [T]he possibility that potential witnesses are unduly influenced in such circumstances […] is one of those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision under Rule 65(B) of the Rules.

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.13, Reasons for Decision on Prosecution’s Appeal of the Trial Chamber’s 10 December 2008 decision on Prlić Provisional Release during Winter Recess and Corrigendum, 20 January 2009 (“Provisional Release Reasons”), para. 3, referring to Prosecution’s Appeal of the Trial Chamber’s 10 December 2008 Decision to Provisionally Release Accused Prlić During the Winter Recess 2008-2009, filed confidentially on 11 December 2008 (“Appeal”), paras 2(b), 29-39.

[2] Appeal, paras 29-33; Response [Jadranko Prlić’s Response to Prosecution’s Appeal of the Trial Chamber’s 10 December 2008 Decision to Provisionally Release Accused Prlić During the Winter Recess 2008-2009, confidentially filed on 15 December 2008], para. 8.

[3] Compare the testimony of Tomić (for example, T. 34082-34087, 34093-34098) with Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-I, Amended Indictment, 16 November 2005, paras 2-3 and 15.

[4] Appeal, para. 35 and Response, para. 9.

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Decision on Provisional Release - 15.12.2011 PRLIĆ et al.
(IT-04-74-AR65.26)

12. The Appeals Chamber notes that the newly amended Rule 65(B) of the Rules provides that a Trial Chamber, in deciding whether to grant provisional release, may consider the existence of sufficiently compelling humanitarian grounds. There is therefore no absolute requirement for a Trial Chamber to take into account the existence of such grounds before ordering a release and accordingly the Prosecution has failed to demonstrate that the Trial Chamber abused its discretion.

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Decision on Provisional Release - 15.12.2011 PRLIĆ et al.
(IT-04-74-AR65.26)

10. […] [T]he Appeals Chamber recalls that the advanced stage of proceedings could have a prejudicial effect on victims and witnesses.[1] To this end, the Trial Chamber considered the potential effect that the release of a person accused of such serious crimes could have on victims, stating that “this is one of the reasons why it always ensured that provisional releases of the accused were accompanied by very strict security measures […]”. […] Such measures, in the opinion of the Trial Chamber, “should contribute to reducing the potential effect that the release of [Prlić] in the Republic of Croatia could have on victims and witnesses”.[2] […] [T]he Appeals Chamber cannot find in the present case that the Trial Chamber abused its discretion.

[1] Petković Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.7, Décision relative à la demande de mise en liberté provisoire de l'accusé Petkovic  Dated 31 March 2008", 21 April 2008], para. 17.

[2] Impugned Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision relative à la demande de mise en liberté provisoire de l'accusé Jadranko Prlić (public with confidential annex), 24 November 2011], para. 39.

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Decision on Provisional Release - 15.12.2011 PRLIĆ et al.
(IT-04-74-AR65.26)

Regarding the Prosecution’s allegation that the possibility to apply for an extension of Prlić’s provisional release provided by the Impugned Decision would grant him effectively an indefinite release and would therefore be a disproportionate measure, the Appeals Chamber held that:

16. [It] fails to discern how the procedure set up by the Trial Chamber can be considered an indefinite release of Prlić, who is required to submit a new motion for provisional release in the event that he wished to extend his release beyond the three-month period.[1] […] [T]he Trial Chamber […] will assess once more, depending upon the documentation presented by Prlić and the arguments of the Prosecution, whether the criteria of Rule 65 (B) of the Rules have been fulfilled and whether provisional release should be extended for Prlić and on what conditions.[2]

[1] Impugned Decision, para. 43.

[2] Impugned Decision, para. 43.

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Decision on Reconsideration etc. - 08.09.2004 PRLIĆ et al.
(IT-04-74-AR65.1, IT-04-74-AR65.2, IT-04-74-AR65.3 )

15. The Appeals Chamber does not accept the arguments of the accused that the Appeals Chamber was not competent to impose a stay. At the time of rendering its decision on the Prosecution’s application for a stay, the Prosecution’s application for leave to appeal the Trial Chamber’s grant of provisional release to the six accused was pending before the Appeals Chamber pursuant to Rule 65(D). In its decision, the Appeals Chamber clearly articulated that the decision to grant the Prosecution’s application for a stay was to preserve “the objective of the Prosecution’s appeal against the provisional release” of the accused.[1] Although the Appeals Chamber decision did not explicitly identify the Rules upon which it acted, the Rules clearly confer upon the Appeals Chamber the power to act as it did. Rule 107 confers upon the Appeals Chamber the competence to render any order or decision that could be rendered by a Trial Chamber. Read together with Rules 54, 64 and 65, Rule 107 empowers the Appeals Chamber to render a decision on an application for a stay filed before it. This is particularly so where the purpose of that decision is to preserve the objective of an appeal pending before it. The Appeals Chamber also rejects any argument that its power to render ancillary orders with respect to preserving the object of an appeal is restricted.

16. The Appeals Chamber also rejects the argument of the accused that by acting as it did it effectively denied the accused of a right to appeal. There is no basis in the Tribunal’s Statute or Rules for the accused’s contention that he has a right to appeal orders issued by the Appeals Chamber in aid of the exercise of its appellate function.

[1] Order on the Prosecution’s Motion for a Stay, 10 August 2004 (“Decision”).

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24. [….] In any event, the Appeals Chamber emphasizes that even if it found that the Trial Chamber erred by failing to conclude that there was a lack of cooperation by the Accused, this error would not result in prejudice because “an accused before this International Tribunal is not obliged to assist the Prosecution in proving its case.”[1] A Trial Chamber may not penalize an accused for exercising the right not to incriminate oneself while in the custody of the International Tribunal by drawing an adverse inference from the accused’s lack of cooperation with the Prosecution or by conditioning provisional release upon such cooperation.[2]

[1] Stanišić Decision, para. 14.

[2] Ibid. See also Šainović & Odjanić Decision, para. 8.

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17. The Appeals Chamber first considers the Prosecution’s arguments with regard to the Accused’s senior position in Republika Srpska in 1992. The Appeals Chamber recalls its previous holding that “the weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position he held prior to his arrest.”[1] The rationale behind taking into consideration an accused’s prior position is that he or she may possess very valuable information on a government providing a guarantee that could be disclosed to the International Tribunal.[2] This would serve as a disincentive for a government to enforce its guarantee to arrest an accused after provisional release, if needed, to stand trial.[3]

19. The Appeals Chamber finds that the Trial Chamber erred in its conclusion that it need not weigh the Accused’s senior position prior to his transfer because there was no information before it suggesting that the Accused held a position in the Republic of Serbia, the government providing the guarantee and the country to which he was to be provisionally released. The fundamental question before the Trial Chamber is not whether the Accused held a position in the same government as that providing the guarantee.[4] Rather, it is to consider “what would occur if the relevant authority were obliged under its guarantee to arrest the accused person seeking provisional release”[5] in light of the Accused’s former position, regardless of where it was held. Thus, the Trial Chamber is simply to consider whether the evidence suggests that an accused, by virtue of a prior senior position, may have any information that would provide a disincentive for the State authority providing a guarantee on behalf of the accused to enforce that guarantee.[6]

[1] Šainović & Odjanić Decision [Prosecutor v. Šainović & Odjanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002], para. 7.

[2] Mrkšić Decision [Prosecutor v. Mrkšić, Case No. IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002], para. 9.

[3] Ibid [Prosecutor v. Mrkšić, Case No. IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002, para. 9].

[4] The International Tribunal has, in previous cases, considered an accused’s prior senior position in assessing the weight of government guarantees regardless of whether that senior position was held in the government providing the guarantee. See, e.g., Pandurević Trial Decision [Prosecutor v. Pandurević, Case No. IT-05-86-PT, Decision on Vinko Pandurević’s Application for Provisional Release, 18 July 2005], para. 19; Pandurević Appeal Decision [Prosecutor v. Pandurević, Case No. IT-05-86-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Vinko Pandurević’s Application for Provisional Release, 3 October 2005], para. 13; Prosecutor v. Prlić et al., Case Nos. IT-04-74-AR65.1, AR 65.2, AR 65.3, Decisions on Motions for Re-Consideration, Clarification, Request for Release and Applications for Appeal, 8 September 2004, para. 41; Prosecutor v. Prlić et al., Case No. IT-04-74, Order on Provisional Release of Jadranko Prlić, Order on Provisional Release of Slobodan Praljak, Order on Provisional Release of Bruno Stojić, Order on Provisional Release of Valentin Ćorić, Order on Provisional Release of Milivoj Petković, Order on Provisional Release of Verislav Pušić, 30 July 2004.

[5] Mrškić Decision, para. 9.

[6] Prosecutor v. Jovica Stanišić, Case No. IT-03-69-AR65.1, Decision on Prosecution Appeal Against Decision Granting Provisional Release, filed confidentially on 3 December 2004 (“Stanišić Decision”), para. 38.

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7. The Appeals Chamber considers that under Rule 65(A), once detained, the accused may not be released except upon an order of a Trial Chamber.  Pursuant to Rule 65(B), such an order may be issued only after the Trial Chamber: (1) gives the host country and the State to which the accused seeks to be released the opportunity to be heard;[1] and (2) is satisfied that the a) accused will appear for trial if released; and b) will not pose a danger to any victim, witness or other person. Where a Trial Chamber finds that one of these two conditions has not been met, it need not consider the other and must deny provisional release.[2]

[1] The Appeals Chamber notes that this requirement does not apply where the Trial Chamber denies provisional release. See Prosecutor v. Todović, Case No. IT-97-25/1-AR65.1, Decision on Provisional Release, 6 October 2005, para. 29; Prosecutor v. Nsengimana, Case No. ICTR-2001-69-AR65, Decision on Provisional Release, 23 August 2005, p. 4.

[2] See, e.g., Boškoski Decision, para. 24 (noting that because the Trial Chamber found that the Appellant’s release would pose a significant risk of flight, it was not necessary for the Trial Chamber to consider whether the Appellant would also pose a danger to others in denying him provisional release); cf. Prosecutor v. Kordić & Čerkez, Case No. IT-95-14/2-A, Decision on Dario Kordić’s Request for Provisional Release, 19 April 2004, para. 10.

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8. The Appeals Chamber further considers that in rendering a decision on provisional release under the requirements of Rule 65(B), a Trial Chamber is required to provide a reasoned opinion.[1] Thereby, it is obliged “to indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision.”[2] What exactly constitute the relevant factors to be considered and the weight to be given to them depend upon the particular circumstances of each case.[3] This is due to the fact that “[d]ecisions on motions for provisional release are fact intensive and cases are considered on an individual basis . . . in light of the particular circumstances of the individual accused.”[4] The Trial Chamber is required to assess these circumstances not only as they exist at the time when it reaches its decision on provisional release but also, as much as can be foreseen, at the time the case is due for trial and the accused is expected to return to the International Tribunal.[5]  

[1] Prosecutor v. Šainović & Odjanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, (“Šainović & Odjanić Decision”), para. 6.

[2] Ibid. [Prosecutor v. Šainović & Odjanić, Case No. IT-99-37-AR65, Decision on Provisional Release, 30 October 2002, para. 6]

[3] See, e.g., the non-exhaustive list of factors laid out in the Šainović & Odjanić Decision at para. 6 when assessing whether an accused will appear for trial.

[4] Prosecutor v. Boškoski & Tarčulovski, Case No. IT-04-82-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Johan Tarčulovski’s Motion for Provisional Release, 4 October 2005, para. 7; see also Šainović & Odjanić Decision, para. 7; Prosecutor v. Mrkšić, Case No. IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002 (“Mrkšić Decision”), para. 9.

[5] Šainović & Odjanić Decision, para. 7.

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Decision on Refusal to Grant Provisional Release - 08.10.2002 MRKŠIĆ Mile
(IT-95-13/1-AR65)

9. The reliability of a guarantee given by the relevant authority must be determined in relation to the circumstances which arise in the particular case. The issue in each particular case is what would occur if the relevant authority were obliged under its guarantee to arrest the accused person seeking provisional release in that case.  A Trial Chamber may accept such a guarantee as reliable in relation to Accused A, whereas the same or another Trial Chamber may decline to accept that the same authority’s guarantee as reliable in relation to Accused B, without there being any inconsistency (or “double standards”) involved in those two decisions. […]

[…]

11. There are many factors which are relevant to a Trial Chamber’s determination of the reliability of the guarantee provided by the authority in question. Such reliability must be determined not by reference to any assessment of the level of cooperation by that authority with the Tribunal generally, but in relation to what would happen if that authority were obliged under its guarantee to arrest the particular accused in question. What would happen in the circumstances of that particular accused in question is a fact in issue to be decided when determining whether that accused will appear for trial. The general level of cooperation by the authority with the Tribunal does have some relevance in determining whether it would arrest the particular accused in question, but it is not itself a fact in issue. […]

12. The reliability of guarantees by any particular authority necessarily depends to some extent upon the vagaries of politics and of personal power alliances within the relevant authority as well as upon the impact of any international pressure (including financial pressure) upon the authority at any time, and indeed even the likelihood in the future of a change of government in any particular case. A difference in cooperation as a result of a change of government is a fact of life (even though a political one) which must be taken into account in determining whether a guarantee will be enforced by an authority in relation to the accused person in question. 

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Decision on Provisional Release on Compassionate Grounds - 02.04.2008 STRUGAR Pavle
(IT-01-42-A)

3. Pursuant to Rule 65(I) of the Rules, a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 of the Rules applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities.”[3]

[1] Cf. Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Motion on Behalf of Haradin Bala for Temporary Provisional Release, 14 February 2008 ("Limaj Decision"), para. 4.

[2] Prosecutor v. Dragan Zelenović, Case No. IT-96-23/2-ES, Decision on Motion for Provisional Release, 21 February 2008, para. 3; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Radoslav Brđanin’s Motion for Provisional Release, 23 February 2007 (“Brđanin Decision”), para. 5; Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence Request for Provisional Release of Stanislav Galić, 23 March 2005 (“Galić Decision”), para. 3; Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Mario Čerkez’s Request for Provisional Release, 12 December 2003 (“Kordić and Čerkez Decision”), para. 10.

[3] Limaj Decision, para. 5; Galić Decision, para. 3; Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Motion of Blagoje Simić Pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for his Father, 21 October 2004 (“Simić Decision of 21 October 2004”), para. 14.

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(IT-01-42-A)

11. As recalled above, “[t]he specificity of the appeal stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that ‘special circumstances exist warranting such release’”.[1] In this regard, the Appeals Chamber emphasizes that the fact that some accused have been granted provisional release for comparable reasons pending their trial[2] cannot be automatically applied by analogy to persons who have already been convicted by a Trial Chamber and who are seeking provisional release pending the appellate proceedings.[3] Moreover, the Appeals Chamber has repeatedly reiterated that the discretionary assessments of the requirements under Rule 65 are made on a case-by-case basis.[4] Therefore, Strugar’s arguments concerning the comparison of his situation with that of the accused pending trial in the Prosecutor v. Milutinović et al. case (IT-05-87-T) cannot be seen as determinative.

12. In situations where an application for provisional release is made pending the appellate proceedings, the Appeals Chamber has concluded that special circumstances related to humane and compassionate considerations exist where there is an acute justification, such as the applicant’s medical need or a memorial service for a close family member.[5] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[6] While the Appeals Chamber agrees with Strugar that there is no finite list of situations which may qualify as special circumstances for the purposes of Rule 65(I)(iii) of the Rules, it considers the notion of acute justification to be inextricably linked to the scope of special circumstances which could justify provisional release on compassionate grounds at the appellate stage of the proceedings before the Tribunal. It is precisely for that reason that justifications such as wanting to spend time with family[7] or to visit a close relative in poor health condition[8] have explicitly not been recognized as special circumstances under Rule 65(I)(iii) of the Rules.

[1] Brđanin Decision citing Simić Decision of 21 October 2004.

[2] E.g. Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Decision on Šainović Motion for Temporary Provisional Release, 7 June 2007, where the Trial Chamber granted provisional release on compassionate grounds to allow the accused to visit his aged mother suffering from serious ill health while her prognosis was highly uncertain.

[3] See supra, para. 3, last sentence.

[4] E.g., Prosecutor v. Jadranko Prlić et al., case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008 para. 7.

[5] Brđanin Decision, para. 6; Limaj et al. Decision of 1 September 2006, p. 1; Simić Decision of 5 May 2006, p. 3; Limaj et al. Decision of 20 April 2006, p. 2; Galić Decision, para. 15; Simić Decision of 21 October 2004, para. 20; see also, in the present case, Decision on “Defense Motion: Defense Request for Provisional Release for Providing Medical Aid in the Republic of Montenegro”, 16 December 2005, p. 2.

[6] Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Decision on Dario Kordić’s Request for Provisional Release, 19 April 2004, para. 12 (terminal illness); Kordić and Čerkez Decision, paras 5, 11, 12, where the provisional release was refused for lack of certainty that the applicant would return in the Tribunal’s custody, subject however to the fact that in “case of exceptional circumstances such as e.g. a substantial deterioration of the health conditions of Dario Kordić’s mother the Defence may submit a detailed request for a temporary controlled visit to his mother”.

[7] Simić Decision of 21 October 2004, para. 21.

[8] See Brđanin Decision, para. 6, referring to Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Order of the Appeals Chamber on the Motion for Provisional Release by Miroslav Kvočka, 11 September 2002, p. 4.

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Decision on Provisional Release - 23.04.2008 PRLIĆ et al.
(IT-04-74-AR65.6)

In assessing the Prosecution’s contention that the Trial Chamber abused its discretion in granting Pušić provisional release, the Appeals Chamber first analysed whether the Trial Chamber considered the change of circumstances constituted by the Rule 98bis Decision. 

12. The Appeals Chamber finds that, contrary to the Prosecution’s contention,[1] the Trial Chamber did explicitly examine the impact of its 98bis Decision in analysing whether to grant Pušić provisional release,[2] in accordance with the Prlić Decision of 11 March 2008.[3] The Trial Chamber recalled that though its 98bis Decision found sufficient evidence for “all the counts of the indictment under JCE 1 and 3” it “was careful to note that it was dismissing the motions for acquittal based on the Prosecution evidence alone and that this decision was valid solely for the purposes of the procedure under Rule 98bis”.[4] The Trial Chamber explained it only considered the inculpatory evidence and not the “exculpatory evidence”, and left assessment of the probative value of the evidence to the end of trial, when it could enter a judgement of acquittal notwithstanding the 98bis Decision.[5] The Trial Chamber reasoned that its 98bis Decision therefore “may not be considered as a 'pre-judgement' increasing the flight risk of the Accused”.[6] The Trial Chamber further analysed Pušić’s risk of flight and danger to victims, witnesses or other persons, following the 98bis Decision, in light of Pušić’s compliance with the terms imposed in prior decisions on provisional release.[7]

13. Moreover, construing the Prlić Decision of 11 March 2008 to express “the Appeals Chamber’s concern for obtaining additional guarantees against the risk of flight”, the Trial Chamber imposed strict additional measures of around-the-clock surveillance and a weekly report from the authorities of the Republic of Croatia to the Trial Chamber.[8] The Trial Chamber also limited the period of provisional release to three weeks to “enable police authorities of the Republic of Croatia to carry out effective surveillance” of Pušić.[9] Therefore, the Appeals Chamber finds, Judge Schomburg dissenting, that the Prosecution failed to demonstrate any discernible error in the Trial Chamber’s evaluation of the impact of its Rule 98bis Decision on the risk of flight or danger to any victim, witness or any other person.

[1] Appeal, paras 20, 21.

[2] Impugned Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Décision Relative à la Demande de Mise en Liberté Provisoire de l’Accusé Pušić (with Confidential Annex), 19 March 2008], pp. 3, 5-8.

[3] Prlić Decision of 11 March 2008 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and ]orić, 11 March 2008], paras 19, 20.

[4] Impugned Decision, pp. 5-6.

[5] Impugned Decision, p. 6.

[6] Impugned Decision, p. 6.

[7] Impugned Decision, pp. 7, 8. Concerning the Prosecution’s allegation regarding Pušić’s contact with two witnesses while provisionally released in 2006, the Appeals Chamber already found that “it was within the discretion of the Trial Chamber to conclude that Berislav Pušić has always respected the conditions imposed upon him during his various provisional releases” (Prlić Decision of 20 July 2007 [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.4, Decision on the Prosecution Appeal of the Trial Chamber’s “Décision Relative à la Demande de Mise en Liberté Provisoire de l’Accusé Pušić”, 20 July 2007], para. 21). It is further worth noting that the Prosecution does not allege that Pušić has tried to contact any witness or has posed any danger to any victim, witness or other person, while on provisional release, after the 2006 incidents.    

[8] Impugned Decision, pp. 7-8, referring to Prlić Decision of 11 March 2008, paras 20, 21. The Appeals Chamber notes that, although not specifically acknowledged by the Trial Chamber, these measures are also significant as a deterrent to any potential danger to victims, witnesses and other persons.

[9] Impugned Decision, p. 10. 

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Decision on Provisional Release - 23.04.2008 PRLIĆ et al.
(IT-04-74-AR65.6)

12. […] Rule 65(B) of the Rules does not mandate humanitarian justification for provisional release. Unlike for convicted persons seeking provisional release under Rule 65(I), there is no requirement of additional “special circumstances”[1] justifying release under Rule 65(B) because the burden borne by a duly convicted person after full evaluation and adjudication is necessarily distinct from the burden borne by an individual who is still presumed innocent. Of course, if the two requirements of Rule 65(B) are met, the existence of humanitarian reasons warranting release can be a salient and relevant factor in assessing whether to exercise discretion to grant provisional release. In this respect, “the weight attached to humanitarian reasons as justification for provisional release will differ from one defendant to another depending upon all the circumstances of a particular case”.[2]

15. Because Rule 65(B) of the Rules does not require “sufficiently compelling” humanitarian reasons for provisional release, this Bench understands the Prlić Decision of 11 March 2008[3] to have ruled that it is only when a Trial Chamber, having considered all the circumstances of the case and the impact of the significant change of circumstances constituted by the 98bis decision, cannot exclude the existence of flight risk or danger, that “sufficiently compelling” humanitarian reasons, coupled with necessary and sufficient measures to alleviate any flight risk or danger, can constitute a basis for resolving uncertainty and doubt in favour of provisional release. Indeed, in the Prlić Decision of 11 March 2008, the Appeals Chamber asked for the existence of sufficiently compelling humanitarian reasons after having found that the Trial Chamber did not evaluate the impact of its 98bis Decision pursuant to the two requirements of Rule 65(B) of the Rules, thus amounting to a lack of clarity as to the existence of a flight risk or danger. Only then did the Appeals Chamber, faced with a situation in which such a risk or danger could not be excluded, require sufficiently compelling humanitarian reasons. This is not the situation in the present instance. As mentioned above, the Trial Chamber stated that its 98bis Decision “may not be considered as a 'pre-judgement' increasing the flight risk of the Accused”[4] and seriously tightened the conditions of Pušić’s provisional release,[5] thus alleviating any risk of flight or danger to victims, witnesses or other persons. “Sufficiently compelling” humanitarian reasons are thus not required here. […]

[1] Rule 65(I)(iii) of the Rules. See also Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the Grounds of Compassion, 2 April 2008, paras 11, 12, in which the Appeals Chamber stated that “[t]he specificity of the appeal stage is reflected by Rule 65(I)(iii) of the Rules, which provide for an additional criterion, i.e. that 'special circumstances exist warranting such release' [and that] the notion of acute justification [is] inextricably linked to the scope of special circumstances for the purposes of Rule 65(I)(iii) of the Rules”. The Appeals Chamber further recalls that the criterion of “exceptional circumstances” that used to be required by the Rules for provisional release of an accused pending trial has been abrogated by amendment of 17 November 1999 (IT/32/REV.17). Before this amendment of the Rules, Rule 65(B) stated (IT/32/REV.16, 2 July 1999 (emphasis added)):

(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.

[2] Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.3, Decision on Interlocutory Appeal of Trial Chamber’s Decision Denying Ljubomir Borovčanin Provisional Release, 1 March 2007, para. 20.

[3] Prlić Decision of 11 March 2008, para. 21.

[4] Impugned Decision, p. 6.

[5] Impugned Decision, pp. 7-8, 10.

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Decision on Provisional Release - 04.04.2012 RAŠIĆ Jelena
(IT-98-32/1-R77.2-A)
(i)   Being the only woman detained at the UNDU

11. The Appeals Chamber notes Rašić’s submission that, as the only female detainee at the UNDU, “[h]er detention is consequently a form of quasi-solitary confinement which, though not intended as punitive, threatens to substantially impact her well-being”, and that “[t]his is true particularly in the context of her ongoing psychological condition.”[1] The Appeals Chamber further notes that, in its Sentencing Judgement, the Trial Chamber considered that the fact that Rašić was the only female detainee at the UNDU constituted “special circumstances”.[2] However, the Trial Chamber’s findings in this respect were aimed solely at establishing mitigating factors in sentencing, and supported its decision to consider in mitigation her “good behaviour in detention”.[3] In the Appeals Chamber’s view, the fact that Rašić is the only woman detained at the UNDU does not constitute “special circumstances” pursuant to Rule 65(I)(iii) of the Rules.

(ii)   Serving the entirety of a custodial portion of a sentence

12. However, the Appeals Chamber recalls that, as of 16 March 2012, Rašić has served the entirety of the custodial portion of her sentence. She was therefore eligible for release on 16 March 2012, were it not for the pending appeal,[4] In the Appeals Chamber’s view, this constitutes a special circumstance that, when assessed in conjunction with Rašić’s fulfilment of the other requirements of Rule 65(I) of the Rules, warrants granting her provisional release. The jurisprudence of the Tribunal supports this conclusion,[5] and the fact that contempt proceedings are governed by an expedited regime does not militate against granting provisional release where circumstances warrant it. As such, the Appeals Chamber finds that special circumstances warranting Rašić’s provisional release have been established.

[1] Motion [Jelena Rašić’s Urgent Motion for Provisional Release Pursuant to Rule 65(I), 14 March 2012 (public with a confidential annex)], para. 7. See also Reply [ Jelena Rašić’s Reply to the Prosecution’s Response to Urgent Motion for Provisional Release Pursuant to 65(I), 20 March 2012 ], para. 4.

[2] Sentencing Judgement [Prosecutor v. Jelena Rašić, Case No. IT-98-32/1-R77.2, Written Reasons for Oral Sentencing Judgement, 6 March 2012], para. 27.

[3] Sentencing Judgement, para. 27.

[4] According to Rule 102(A) of the Rules, the sentence shall begin to run from the day it is pronounced, but as soon as notice of appeal is given, the enforcement of the judgement shall thereupon be stayed until the decision on the appeal has been delivered, the convicted person meanwhile remaining in detention.

[5] See, e.g., Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Motion of Astrit Haraqija for Provisional Release, 8 April 2009, para. 12; Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Motion of Bajrush Morina for Provisional Release, 9 February 2009, para. 10; Prosecutor v. Mile Mrkšić and Veselin [ljivančanin, Case No. IT-95-13/1-A, Decision on the Motion of Veselin [ljivančanin for Provisional Release, 11 December 2007, p. 4; Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motion on Behalf of Enver Hadžihasanović for Provisional Release, 20 June 2007, para. 13; Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on the Request for Provisional Release of Miroslav Kvočka, 17 December 2003, p. 3.

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Decision on Modified Provisional Release - 10.03.2006 HARADINAJ et al.
(IT-04-84-AR65.1)

1.  The Appeals Chamber was seized for the first time of an appeal from a decision modifying the terms of a provisional release. While the Prosecution was putting forward arguments going to the provisional release itself, the Appeals Chamber noted that the Prosecution never appealed against the original decision but was only appealing against the decision modifying the terms of release. It therefore held that, being seized of the decision modifying the conditions of the provisional release and not of the original decision granting such provisional release, “[r] egardless of the decision today, the Accused will remain on provisional release, at the very least according to the terms of the Original Provisional Release Decision.” (para. 25). See also paras 40, 42, 56. 

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Modified Provisional Release - 10.03.2006 HARADINAJ et al.
(IT-04-84-AR65.1)

2.         Paras 64-76:  the Appeals Chamber recognised that the delegation of authority to non-judicial entities is a necessary function of the Tribunal (paras. 64-65).  It identified the principles allowing delegation to non-judicial authorities as based in Tribunal-related Security Council Resolutions (para. 66), the inherent power of the Tribunal (para. 67) and the Statute of the Tribunal (paras 68-75).   

3.         Paras 76-80:  noting that the Statute and the Rules only discuss delegation to States, the Appeals Chamber addressed whether the Tribunal could delegate authority to UNMIK, a              non-State entity (para. 76).  The Appeals Chamber found: “In sum, there is nothing in UNMIK’s make-up or character that would prevent the Tribunal from delegating power to it, but the lack of explicit authorization suggests that the Tribunal should be cautious in such delegation and look at each case on the merits.” (para. 80).

4.         Paras 81-92:  the Appeals Chamber then addressed whether the Tribunal could delegate to UNMIK the specific authority to vary the conditions of the Accused’s provisional release pertaining to participation in political activities.  The Appeals Chamber considered four factors and determined that such delegation is permissible:

First, the decision-making entrusted to UNMIK is not central to the judicial process. Second, UNMIK does not have absolute discretion; the Trial Chamber has established certain criteria that it must follow in making its decision. Third, the Trial Chamber retains supervisory authority over UNMIK and the Accused. Fourth, there are significant practical advantages to letting UNMIK take day-to-day decisions about the Accused’s political activities.[1]                                                      

5.         In their joint dissenting opinion, Judge Shahabuddeen and Judge Schomburg argued that delegating to UNMIK the authority to modify the conditions of the Accused’s provisional release allows UNMIK unreasonably broad discretion, exceeds the Trial Chamber’s authority and is ultra vires (paras 6-10 of the joint dissenting opinion).  They also argued that the delegation was ultra vires because it required that UNMIK make judicial decisions which cannot be delegated to a non-judicial body (paras 11-16 of the joint dissenting opinion). 

 

[1] Decision, para. 81. All of those aspects have been dealt in detail at paras 82-92.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 25.05.2009 HARADINAJ et al.
(IT-04-84-A)

3. Pursuant to Rule 65(I) of the Rules, a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that: (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[3] Finally, the discretionary assessments of the requirements under Rule 65 of the Rules are made on a case-by-case basis.[4]

[1] Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release on the Grounds of Compassion, 2 April 2009, (confidential) (“Lazarević Decision”), para. 4; Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Decision on Johan Tarčulovski’s Motion for Provisional Release, 18 December 2008, (confidential) (“Tarčulovski Decision”), para. 3; Prosecutor v. Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Application for Provisional Release Pursuant to Rule 65(I), 29 April 2008, (confidential) (“Milošević Decision”), para. 3.

[2] Lazarević Decision, para. 4; Tarčulovski Decision, para. 3; Milošević Decision, para. 3.

[3] Lazarević Decision, para. 4; Tarčulovski Decision, para. 3; Milošević Decision, para. 3.

[4] Lazarević Decision, para. 4; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the Grounds of Compassion, 2 April 2008, Public Redacted Version (“Strugar Decision of 2 April 2008”), para. 11, referring to Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008, para. 7.

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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Provisional Release - 25.05.2009 HARADINAJ et al.
(IT-04-84-A)

13. In assessing whether the appellant will pose a danger to any victim, witness or other person if released, the Appeals Chamber acknowledges that the Trial Chamber described in the Trial Judgement the particular circumstances of this case, including that “[t]he difficulty in obtaining evidence was a prominent feature of this trial and a few witnesses who were expected to give evidence on central aspects of the case were never heard”.[1] It further considers that, in its appeal, the Prosecution requests a retrial for Brahimaj and his two co-accused, and seeks to adduce the evidence of certain witnesses.[2] The Appeals Chamber also notes that the Prosecution opposes Brahimaj’s provisional release because the “potential risk” of witness intimidation[3] “remains a continuing concern in light of the relief being sought”.[4] 

14. Nonetheless, the Appeals Chamber considers that a number of circumstances tip the balance in favour of meeting the second requirement of Rule 65(I) of the Rules. First, the Appeals Chamber notes that, while a retrial could be ordered as a result of the Prosecution appeal, it is also the case that Brahimaj could be acquitted or his sentence could be decreased as a result of his appeal.[5] The Appeals Chamber considers that it is not likely that Brahimaj will pose a danger to potential witnesses at this stage of proceedings as the outcome of the case is unforeseeable and a retrial is only one of the possible outcomes. Second, the Appeals Chamber notes that Brahimaj points out that each of the potential Prosecution witnesses lives outside Kosovo (where he seeks permission to be provisionally released),[6] and that the Prosecution does not challenge this allegation.[7] Third, the Appeals Chamber considers that an assessment of danger posed to victims, witnesses or others cannot be made in the abstract and that there is no substantiated indication from the Prosecution that Brahimaj will seek to intimidate witnesses.[8] The Appeals Chamber is further satisfied that Brahimaj’s past period of provisional release was without incident.[9] In view of these factors, the Appeals Chamber finds that Brahimaj, if provisionally released, would not endanger victims, witnesses or other persons, as required by Rule 65(I)(ii) of the Rules.

[1] Trial Judgement [Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-T, Judgement, 3 April 2008], para. 28l; see also paras 22-27.

[2] See Prosecution Appeal Brief [16 July 2008 (confidential)(“Prosecution Appeal Brief”)], “Ground I: Breach of Prosecution’s Fair Trial Right under Article 20(1) of the Statute”, para. 43; see also paras 3-42.

[3] Response [Prosecution’s Response to Lahi Brahimaj’s Application for Provisional Release, 25 March 2009], para. 2.

[4] Response, para. 5.

[5] See Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Decision on Dario Kordić’s Request for Provisional Release, 19 April 2004, para. 8.

[6] Application, para. 11; see also Prosecution Appeal Brief, 16 July 2008, para. 14.

[7] In its Response, the Prosecution makes no express response to the claim in the Application that neither of its potential witnesses resides in Kosovo.

[8] See Prosecutor v. Mile Mrkšić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on the Motion of Veselin Šljivančanin for Provisional Release, 11 December 2007 (“Šljivančanin Decision”), p. 2.

[9] Trial Judgement, p. 284, para. 16. 

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Decision on Provisional Release - 25.05.2009 HARADINAJ et al.
(IT-04-84-A)

16. […] the Appeals Chamber recalls that detention for a substantial period of time may amount to a special circumstance within the meaning of Rule 65(I)(iii) of the Rules.[1] A determination must, however, be made on a case-by-case basis.[2] In the context of this case, taking into account that a date for hearing the appeal has not yet been set, as well as the good behaviour shown by Brahimaj whilst in detention, the fact that Brahimaj’s past period of provisional release did not give rise to any concerns and the fact that he has served two-thirds of his sentence, the Appeals Chamber finds that special circumstances warranting Brahimaj’s provisional release have been established.[3]

[1] Prosecutor v. Astrit Haraquija and Bajrush Morina, Case No. IT-04-88-R77.4-A, Decision on Motion of Astrit Haraqija for Provisional Release, 8 April 2009, para. 12; Prosecutor v. Astrit Haraquija and Bajrush Morina, Case No. IT-04-88-R77.4-A, Decision on Motion of Bajrush Morina for Provisional Release, 9 February 2009 (“Morina Decision”), para. 10; [Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Decision on Motion on Behalf of Enver Hadžihasanović for Provisional Release, 20 June 2007 (“Hadžihasanović Decision”)], para. 13 (noting that the Appeals Chamber was “satisfied that detention amounting to approximately two-thirds of a term of imprisonment is sufficiently substantial to constitute a special circumstance”); Šljivančanin Decision, p. 3 (noting that the fact that Šljivančanin had served 90 percent of his sentence imposed by the Trial Chamber constituted a special circumstance); Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Kvočka’s Request for Provisional Release, 17 December 2003, pp. 3-4 (noting that the fact that Kvočka had served around 80 percent of the sentence imposed by the Trial Chamber amounted to a special circumstance).

[2] Hadžihasanović Decision, para. 13.

[3] See Morina Decision, para. 10; Hadžihasanović Decision, para. 13.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 25.05.2009 HARADINAJ et al.
(IT-04-84-A)

In the previous practice of the Tribunal, guarantees for an accused provisionally released in Kosovo/Kosova have usually been provided by UNMIK. In the present case, after having inquired with both UNMIK and the EULEX-Kosovo Mission, the Appeals Chamber concluded that the latter was best placed to provide the necessary guarantees of compliance with the prescribed conditions of provisional release (see para. 11).   

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 08.04.2009 HARAQIJA & MORINA
(IT-04-84-R77.4-A)

4. Pursuant to Rule 102(A) of the Rules, “as soon as notice of appeal is given, the enforcement of a judgement shall thereupon be stayed until the decision on the appeal has been delivered, the convicted person meanwhile remaining in detention”.[1] Haraqija and the Prosecution filed notices of appeal on 2 January 2009, respectively challenging his conviction and sentence. As a result, the remainder of the sentence imposed by the Trial Chamber against Haraqija will not have expired on 10 April 2009 since it has been stayed pending the disposition of the appeal. Therefore, contrary to Haraqija’s submissions, in these circumstances, the fact that his sentence as imposed by the Trial Chamber would have expired on 10 April 2009 does not itself provide a basis for his release.

[1] See also Morina Provisional Release Decision [Decision on Motion of Bajrush Morina for Provisional Release, 9 February 2009], para. 3.

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ICTR Rule Rule 102(A) ICTY Rule Rule 102(A)
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Decision on Provisional Release - 08.04.2009 HARAQIJA & MORINA
(IT-04-84-R77.4-A)

12. The Appeals Chamber has already determined in this case, with respect to Haraqija’s co-accused Bajrush Morina, that the fact that an appellant would have already served the entire sentence imposed by the Trial Chamber were it not for the filing of the notices of appeal may constitute a special circumstance.[1] As Haraqija is in the same position, the Appeals Chamber also considers that special circumstances exist warranting his provisional release.

[1] Morina Provisional Release Decision, para. 10. See also Prosecutor v. Mile Mrksić and Veselin Šljivančanin, Case No. IT-95-13/1-A, Decision on the Motion of Veselin Šljivančanin for Provisional Release, 11 December 2007, p. 3 (noting that the fact that Šljivančanin had served 90 percent of his sentence imposed by the Trial Chamber constituted a special circumstance); Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Kvočka’s Request for Provisional Release, 17 December 2003, pp. 3, 4 (noting that the fact that Kvočka had served around 80 percent of the sentence imposed by the Trial Chamber amounted to a special circumstance). 

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 08.04.2009 HARAQIJA & MORINA
(IT-04-84-R77.4-A)

8. The Appeals Chamber notes that Haraqija has not submitted any State guarantees in support of his Motion and requests the Appeals Chamber to direct the Registry to enquire about the willingness and ability of the United Nations Interim Administration in Kosovo (“UNMIK”) to ensure compliance with any conditions imposed on release.[1] While the submission of State guarantees is not a pre-requisite for provisional release, it is generally advisable for an applicant seeking provisional release to submit guarantees in order to satisfy the International Tribunal that he will appear when required.[2] In the instant case, the Appeals Chamber understands that UNMIK has indicated in consultations with the Registry that it would be prepared to provide similar guarantees for Haraqija as imposed on his co-accused Bajrush Morina and to honour any directions provided by the Appeals Chamber in the event of provisional release. The Appeals Chamber accepts this as a sufficient guarantee of compliance.

14. The Appeals Chamber notes that, although at the time of his release, Haraqija would have already served the entire sentence imposed by the Trial Chamber, he still maintains the status of a convicted person pursuant to Rule 102 of the Rules. As such, he is not in the same position as a person who has finished serving his sentence after completion of criminal proceedings against him. Further, an appeal against his sentence is still pending which may result in an increase in his sentence. Given these circumstances, the Appeals Chamber finds that there is a need to have in place conditions restricting his movement so as to ensure that Haraqija will be available to surrender into detention when required to do so by the Appeals Chamber. Thus, the Appeals Chamber denies Haraqija’s requests relating to his conditions of provisional release. Instead, the Appeals Chamber considers it appropriate to impose on Haraqija the same conditions of provisional release in force during the trial.[3]

[1] Motion[Motion for Release on Expiration of Sentence or, in the Alternative, Release Pending Appeal, 1 April 2009], para. 25(ii).

[2] Morina Provisional Release Decision, para. 6; Prosecutor v. Vidoje Blagojević et al., Case No. IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002, paras 7-8. See also Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-PT, Order on Provisional Release of Berislav Pusić, 30 July 2004, para. 32.

[3] Second Decision on Haraqija’s Provisional Release, pp. 6-8; Prosecutor v. Astrit Haraqija and Bajrush Morina, Case No. IT-0484-R77.4, Decision on Astit Haraqija’s Request to Vary Condition of Provisional Release, 7 October 2008, p. 3.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 30.09.2004 STANIŠIĆ & SIMATOVIĆ
(IT-03-69-AR65.1)

2. In order for the Application to be granted, the Prosecution is required to demonstrate good cause. The jurisprudence of the Tribunal establishes that “good cause” under Rule 65 will be established where the applicant demonstrates that the Trial Chamber may have erred in the Impugned Decision.[1] [NOTE: WITH EFFECT FROM 8 AUGUST 2005 THE RULES OF PROCEDURE AND EVIDENCE WERE AMENDED SO THAT ANY DECISION UNDER RULE 65 RENDERED BY A TRIAL CHAMBER WOULD BE SUBJECT TO APPEAL AND THE PROVISION IN RULE 65(D) REQUIRING THAT LEAVE BE GRANTED BY A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER “UPON GOOD CAUSE BEING SHOWN” WAS DELETED.] While the Prosecution is only required to show the possibility of error on the part of the Trial Chamber for good cause to be established that possibility of error must be clearly established.[2]

 

 

 

 

[1] Prosecutor v Blagoje Simić et. al, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000, page 3.

[2] Prosecutor v Nikola [ainović & Dragoijub Ojdanić, Case No. IT-99-37 AR 65.2, Decision Refusing Leave to Appeal, 26 June 2003; Prosecutor Blagoje Simić et.al, Case No. IT-95-9-AR65, Decision on Application for Leave to Appeal, 19 April 2000; Prosecutor v Fatmir Limaj, et al, Case No. IT-03-66-AR65.3, Decision on Isak Musliu’s Request for Provisional Release, 31 October 2003; Decision on Haradin Bala’s Request for Provisional Release, 31 October 2003; Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003; Prosecutor v Momčilo Krajišnik & Biljana Plavšić, Case No. IT-00-39 & 40-AR65, Decision on Application for Leave to Appeal, 14 December 2001; Prosecutor v Enver Hadžihasanović, Case No. IT-01-47-AR65 & IT-0147- AR65.2, Decision on Application for Leave to Appeal, 5 September 2002; Prosecutor v Vidoje Blagojević, Case No. IT-02-60-AR65.3 & IT-02-60-AR65.4, Decision on Applications by Blagojević and Obrenović for Leave to Appeal, 16 January 2003.

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 07.04.2009 KAREMERA et al.
(ICTR-98-44-AR65)

12. The Appeals Chamber understands from the Impugned Decision that, in the absence of a State’s guarantees, the Trial Chamber considered that it could not be satisfied that, if released, Ngirumpatse would appear for trial. The Appeals Chamber considers that, in concluding that it was not satisfied that Ngirumpatse would not flee if released on this sole basis, the Trial Chamber regarded the production of guarantees as a prerequisite to obtaining provisional release. The Appeals Chamber finds that the Trial Chamber erred in the exercise of its discretion in doing so.

13. The Appeals Chamber has repeatedly held that Rule 65 of the Rules places no obligation upon an accused applying for provisional release to provide guarantees from a State as a prerequisite to obtaining provisional release.[1] Whilst a State’s guarantees may carry considerable weight in support of an application for provisional release, a Trial Chamber is under the obligation to consider all relevant factors which a reasonable Trial Chamber would be expected to take into account before deciding whether the requirements of Rule 65(B) of the Rules have been met.[2] It must also provide a reasoned opinion indicating its view on those relevant factors.[3] In the present case, the Trial Chamber should have primarily considered whether, even in the absence of a State’s guarantees, Ngirumpatse’s personal circumstances could satisfy the Trial Chamber that he would appear for trial if released. Although it is within a Trial Chamber’s discretion to impose the condition of production of guarantees from the potential host State to ensure the presence of the accused at trial pursuant to Rule 65(C) of the Rules,[4] it should not be the threshold consideration. This becomes most relevant where a Trial Chamber has concerns about the applicant’s personal guarantees and considers that assurances from the host State would alter the balance in favour of provisional release.  

[1] 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 (“Stanišić Decision”), para. 48; Prosecutor v. Hormisdas Nsengimana, Case No. ICTR-01-69-AR65, Decision on Application by Hormisdas Nsengimana for Leave to Appeal the Trial Chamber’s Decision on Provisional Release, 23 August 2005 (“Nsengimana Decision”), p. 3; Emmanuel Rukundo v. The Prosecutor, Case No. ICTR-01-70-AR65D).2, Décision relative à la Demande d’autorisation d’interjeter appel (Mise en liberté provisoire), 28 April 2004, p. 3; Prosecutor v. Zdravko Tolimir et al., Case No. IT-04-80-AR65.1, Decision on Interlocutory Appeal against Trial Chamber’s Decisions Granting Provisional Release, 19 October 2005 (“Tolimir Decision”), para. 9; Prosecutor v. Ivan Čermak and Mladen Markač, Case No. IT-03-73-AR65.1, Decision on Interlocutory Appeal against Trial Chamber’s Decision Denying Provisional Release, 2 December 2004 (“Čermak Decision”), para. 30. See also Prosecutor v. Astrid Haraqija and Bajrush Morina, Case No. IT-04-84-R77.4-A, Decision on Motion on Bajrush Morina for Provisional Release, 9 February 2009, para. 6; Prosecutor v. Vidoje Blagojević et al., Case No IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002 (“Blagojević Decision”), para. 7.

[2] See, e.g., Prlić 16 December 2008 Decision [Prosecutor v. Jadranko Prlić et al., Case No IT-04-74-AR65.11, Decision on Praljak’s Appeal of the Trial Chamber’s 2 December 2008 Decision on Provisional Release, 16 December 2008], para. 7; Popović Decision [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR65.7, Decision on Vujadin Popović’s Interlocutory Appeal Against the Decision on Popović’s Motion for Provisional Release], 1 July 2008, paras. 8, 24; Stanišić Decision, para. 35; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.6, Reasons for Decision on Prosecution’s Urgent Appeal Against “Décision relative à la demande de mise en liberté provisoire de l’accusé Pušić” Issued on 14 April 2008, 23 April 2008 (“Prlić 23 April 2008 Decision”), para. 7; Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-AR65.1, Decision on Ante Gotovina’s Appeal Against Denial of Provisional Release, 17 January 2008, para. 8; Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-AR65.4, Decision on Johan Tarčulovski’s Interlocutory Appeal on Provisional Release, 27 July 2007 (“Boškoski Decision”), para. 6; Prosecutor v. Ramush Haradinaj et al., Case No. IT-04-84-AR65.2, Decision on Lahi Brahimaj’s Interlocutory Appeal Against the Trial Chamber’s Decision Denying his Provisional Release, 9 March 2006, para. 10.

[3] Ibid. [footnote 2].

[4] Stanišić Decision, para. 48; Nsengimana Decision, p. 3; Tolimir Decision, para. 9; Čermak Decision, para. 30. See also Blagojević Decision, para. 8 and Impugned Decision[The Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Decision on the Various Motions Relating to Matthieu Ngirumpatse’s Health, 6 February 2009], para. 15.

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Decision on Provisional Release - 07.04.2009 KAREMERA et al.
(ICTR-98-44-AR65)

14. In addition, the Appeals Chamber emphasizes that the humanitarian and medical grounds advanced by Ngirumpatse in support of his application[1] were relevant factors in deciding whether he will return for trial.[2] As such, they deserved consideration in the assessment of whether Ngirumpatse is a flight risk. In limiting itself to concluding that Ngirumpatse would not receive a better medical treatment in Europe or anywhere else without considering the humanitarian and medical grounds put forward by Ngirumpatse,[3] the Trial Chamber erred in the exercise of its discretion.

15. The Appeals Chamber therefore finds that the Trial Chamber erred in failing to take into account all the factors which were relevant to its taking a fully informed and reasoned decision as to whether, pursuant to Rule 65 of the Rules, Ngirumpatse will appear for trial if provisionally released and, more generally, as to whether or not he should be granted provisional release. […]

[1] See Motion [The Prosecutor v. Édouard Karemera et al., Case No. ICTR-98-44-T, Requête de M. Ngirumpatse aux fins de mise en liberté provisoire pour motif médical, et de transfert en urgence dans l’attente qu’il soit statué sur les conditions matérielles susceptibles d’assortir sa mise en liberté, 3 November 2008] , paras. 7, 18-21.

[2] Cf. Popović Decision, para. 18; Prlić 23 April 2008 Decision, para. 14; Boškoski Decision, para. 14. If the requirements of Rule 65(B) are met, the existence of humanitarian reasons can also be a salient and relevant factor in assessing whether to exercise discretion to grant provisional release: see Prlić 23 April 2008 Decision, para. 14.

[3] Impugned Decision, para. 22, referring to the testimony of the Tribunal’s Chief Medical Officer. 

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Decision on Provisional Release - 30.10.2002 ŠAINOVIĆ & OJDANIĆ
(IT-99-37-AR65)

8. The Appeals Chamber is of the view that the Prosecution’s argument that, as a matter of discretion, an accused person should not be released until the Prosecution has been able to interview him fully is misconceived.[1]  An accused person is not, while in the custody of the International Tribunal, at the disposal of the Prosecution.  An accused person may, if he decides to do so, co-operate with the Office of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his giving such an interview while still in custody.

[1]    See hearing on application for provisional release, 24 June 2002, T 424-425. 

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Decision on Provisional Release - 30.10.2002 ŠAINOVIĆ & OJDANIĆ
(IT-99-37-AR65)

7. The circumstances of each accused who applies for provisional release must be evaluated individually as they weigh upon the likelihood that he will appear for trial.  The weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position which he held prior to his arrest.  The Trial Chamber must assess these circumstances at the time when the decision on provisional release is being taken, but must also, as far as foreseeable, make an assessment as at the time when the case is due for trial and when the accused will be expected to return. 

[...]

9. [...] The position of an accused in the hierarchy and the consequence thereof upon the weight of governmental guarantees are indeed significant factors which the Trial Chamber is expected to address as they could have an important bearing upon a State’s willingness and readiness to arrest that person if he refuses to surrender himself; those factors therefore reduce the likelihood of his appearing at trial. [...]

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Decision on Provisional Release - 30.10.2002 ŠAINOVIĆ & OJDANIĆ
(IT-99-37-AR65)

6. A Trial Chamber is not obliged to deal with all possible factors which a Trial Chamber can take into account when deciding whether it is satisfied that, if released, an accused will appear for trial. It must, however, render a reasoned opinion.[1]  This obliges it to indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision. [...]

[1]    This point is conceded by the Prosecution (pars 37-38 of the Appellant’s Brief).

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Decision Refusing Leave to Appeal - 26.06.2003 ŠAINOVIĆ & OJDANIĆ
(IT-99-37-AR65.2)

NOTING that [...] the Appeals Chamber has laid down a non-exhaustive list of factors which a Trial Chamber must take into account before granting provisional release;

CONSIDERING that all these factors need to be considered when the Trial Chamber decides to grant provisional release, not when it decides to refuse it;

CONSIDERING in particular that all factors need not to be reviewed by a Trial Chamber if, for instance, the consideration of one of them is sufficient to satisfy the Chamber that, if released, the accused would not appear for trial;

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Decision on Provisional Release - 07.10.2005 TODOVIĆ & RAŠEVIĆ
(IT-97-25/1-AR65.1)

29. [….] Rule 65(B) provides that the State to which an accused seeks to be released must have an opportunity to be heard before the Trial Chamber grants his application.[1]  This rule does not provide that this State must have the opportunity to be heard before the Trial Chamber denies provisional release. [….] Similarly, nothing in Rule 65 – or in any other rule – requires a Trial Chamber to hear oral argument from an applicant before denying provisional release,[2] and indeed, no rule requires the Trial Chamber to hold a hearing before deciding that government or personal guarantees offered by the applicant merit little weight, even if the applicant has requested a hearing and seeks to supplement these guarantees with oral assurances.   Instead, the Appeals Chamber has explained, “[t]he granting of an oral hearing is a matter for the discretion of a Chamber, and it may legitimately be regarded as unnecessary when  . . . the information before the Trial Chamber is sufficient to enable the Chamber to reach an informed decision.”[3]  [….]

[1] See Rule 65(B) of the Rules of Procedure and Evidence of the Tribunal, IT/32/Rev.36, 8 August 2005.

[2] See Prosecutor v. Nikola Šainović, Dragoljub Ojdanić, Case No. IT-99-37-AR65.2, Decision Refusing Ojdanić Leave to Appeal, 27 June 2003, p. 4 (noting that “the right of an accused to be heard is not similar to what the accused regards as the right to be heard personally”).

[3] Prosecutor v. Fatmir Limaj, Haradin Bala, Isak Musliu, Case No. IT-03-66-AR65, Decision on Fatmir Limaj’s Request for Provisional Release, 31 October 2003, para. 17; Prosecutor v. Fatmir Limaj, Haradin Bala, Isak Musliu, Case No. IT-03-66-AR65.2, Decision on Haradin Bala’s Request for Provisional Release, 31 October 2003, para. 33; Prosecutor v. Fatmir Limaj, Haradin Bala, Isak Musliu, Case No. IT-03-66-AR65.3, Decision on Isak Musliu’s Request for Provisional Release, 31 October 2003, para. 17.

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At para. 10, after recalling that Trial Chambers only need, when deciding on a provisional release, to “examine those factors that a reasonable Trial Chamber would take into account[1]”, that is “those which are relevant to its taking a fully informed and reasonable decision as to whether, pursuant to Rule 65(B), the accused will appear for trial if provisionally released[2]”, the Appeals Chamber made clear that Trial Chambers must provide a reasoned opinion:

10. […] A Trial Chamber is not obliged to deal with all possible factors when deciding whether it is satisfied that the requirements of Rule 65(B) are fulfilled, but at a minimum, must provide reasoning to support its findings regarding the substantive considerations relevant to its decision.[3] […]

[1]Prosecutor v. Nikola Šainović and Dragoljub Ojdanić, Case No.: IT-99-37-AR65, Decision on Provisional Release, 30 October 2002 (“Šainović and Ojdanić Decision”), para. 6; Prosecutor v. Vujadin Popović, Case No.: IT-02-57-AR65.1, Decision on Interlocutory Appeal from Trial Chamber Decision Denying Vujadin Popović’s Application for Provisional Release, 28 October 2005, para. 8.

[2] Šainović and Ojdanić Decision, para. 9.

[3] See Prosecutor v. Slobodan Milošević, Case No.: IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, in which the Appeals Chamber examined whether the Trial Chamber considered appropriate factors in sufficient measure, and determined that the Trial Chamber had an obligation to provide reasons for its decision, although the Trial Chamber need not have provided its reasoning in detail; Prosecutor v. Dragoljub Kunarac et al., Case No.: IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002, para. 42, which stated that a Chamber has an obligation to give reasoned opinions for its decisions but this obligation does not require it to spell out every step in its reasoning; Šainović and Ojdanić Decision, para. 6.

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The Appellant was arguing that the Trial Chamber erred in law in taking into account the length of his pre-trial detention to determine whether, under the terms of Rule 65(B) of the Rules, he would appear for trial if released. The Appeals Chamber held the following:

23. Undisputedly, a Trial Chamber may determine whether the particular circumstances of a case[1] warrant that provisional release be granted to an accused based on the actual or likely excessive length of his pre-trial detention. However, such determination is an additional discretionary consideration which has no bearing upon the assessment as to whether an accused will appear for trial if released.[2] Therefore, the Trial Chamber erred by taking this factor into account in determining that the Appellant had not satisfied the first requirement of Rule 65(B). For the foregoing reasons this ground of appeals is allowed.

[1] See Prosecutor v. Mile Mrkšić, Case No.: IT-9513/1-PT, Decision on Mile Mrkšić’s Application for Provisional Release, 24 July 2002 (“Mrkšić Trial Chamber’s Decision”), para. 49.

[2] See Prosecutor v. Enver Hadžihasonivić, Mehmed Alagić and Amir Kubura, Case No.: IT-01-47-PT, Decision Granting Provisional Release to Enver Hadžihasonivić, 19 December 2001, para. 16; Mrkšić Trial Chamber’s Decision, para. 47; Prosecutor v. Nikola [ainović and Dragoljub Ojdanić, Case No.:IT-99-37-PT, Decision on Applications of Nikola Šainović and Dragoljub Ojdanić for Provisional Release, 26 June 2002, para. 17; Prosecutor v. Momčilo Krajišnik, Case No.: IT-00-39&40-PT, Decision on Momčilo Krajišnik’s Notice of Motion for Provisional Release, 8 October 2001, para. 22.

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At para. 16, the Appeals Chamber recalled the case-law in that respect:

16. [T]he Appeals Chamber notes that an accused may, if he decides to do so, cooperate with the OTP, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his agreement to be interviewed.[1] Against this backdrop the Appeals Chamber recalls that it has previously held that when an accused person decides to cooperate with the Prosecution, this matter may weigh in his favour when he seeks to be provisionally released, insofar as it shows his general attitude of cooperation towards the International Tribunal which is relevant to the issue that he will appear for trial.[2] However, an accused will not be penalised because he declines to cooperate with the Prosecution.[3] 

It then recalled the law applicable to assess an accused’s cooperation:

17. The Appeals Chamber recalls that the cooperation of an accused should not be assessed solely by reference to the value of the information the accused provides.[4] This is because an accused before this International Tribunal is not obliged to assist the Prosecution in proving its case and any evidence of willingness on the part of an accused to be voluntarily interviewed by the Prosecution is evidence of a degree of cooperation that an accused is entitled to withhold without adverse inference being drawn.[5]

[1] Šainović and Ojdanić Decision, para. 8; see also Prosecutor v. Ivan Čermak and Mladen Markač, Case No.: IT-03-73-AR65.1, Decision on Interlocutory Appeal Against Trial Chamber’s Decision Denying Provisional Release, 2 December 2004, para. 22.

[2] Prosecutor v. Milan Milutinović, Nikola [ainović and Dragoljub Ojdanić, Case No.: IT-99-37-AR65.3, Decision Refusing Milutinović Leave to Appeal, 3 July 2003 (“Milutinović Decision”), para. 12.

[3] Milutinović Decision, para. 12.

[4] Prosecutor v. Jovica Stanišić, Case No. IT-03-69.AR65.1, Confidential Decision on Prosecution’s Appeal Against Decision Granting Provisional Release, 3 December 2004 (“Jovica Stanišić Decision”), para. 14.

[5] Jovica Stanišić Decision, para. 14; Mićo Stanišić Decision [Prosecutor v. Mićo Stanišić, Case No.: IT-04-79-AR65.1, Decision on Prosecution’s Interlocutory Appeal of Mićo Stanišić’s Provisional Release, 17 October 2005], para. 24.    

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CONSIDERING that when[…] an applicant for provisional release did not raise any new issue which had not been discussed in his earlier application to the same effect, the Trial Chamber need not give its reasons anew in relation to the issues raised in the new application, if the new material before it does not impact upon its original decision;

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When examining the Trial Chamber’s finding that it was satisfied that the Accused, if released, will not pose a danger to victims, witnesses or other persons, the Appeals Chamber held:

11. The Trial Chamber “consider[ed] that there is nothing to suggest that, if released, the Accused will pose” such a danger, and “that the Trial Chamber thereby previously [only] identified the [question of whether the Accused would appear for trial] as being in issue”.[1]  The Trial Chamber is not obliged to deal with all possible factors when deciding whether it is satisfied the requirements of Rule 65(B) are fulfilled, but at a minimum, the Trial Chamber must provide reasoning to support its findings regarding the substantive considerations relevant to its decision.[2]  Here, the Trial Chamber appears, in effect, to have switched the burden to the Prosecution to show that the Accused would pose a danger if released.  In the putative absence of such information, the Trial Chamber appears to have assumed the lack of a danger posed by the Accused’s release.  If the Trial Chamber found, as it must have done so here, that the Accused upon release will pose no danger to persons, then it must provide the reasons for reaching that finding.

[1] Impugned Decision [Prosecutor v. Milutinović et al., Case No. IT-05-87-PT, Decision on Nebojša Paković’s Provisional Release, 30 September 2005], p. 2.

[2] Prosecutor v. Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae Against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004 (The Appeals Chamber examined whether the Trial Chamber considered appropriate factors in sufficient measure, and determined that the Trial Chamber had an obligation to provide reasons for its decision, although the Trial Chamber need not have provided its reasoning in detail); Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A, Appeals Chamber, Judgement, 12 June 2002, para. 42 (a Chamber has an obligation to give reasoned opinions for its decisions but this obligation does not require it to spell out every step in its reasoning ).

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22. A previous decision rendered by the Appeals Chamber in the Šainović and Ojdanić case laid down a non-exhaustive list of factors which a Trial Chamber must take into account before granting provisional release.[1] The fact that the accused had provisionally accepted to be interviewed by the Office of the Prosecutor was one of those factors.[2] The Appeals Chamber recalls that an accused person may, if he decides to do so, cooperate with the Office of the Prosecutor, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his agreement to be interviewed.[3]

23. The Appeals Chamber finds that the Appellants’ cooperation with the Prosecution may weigh in their favour insofar as it shows their general attitude of cooperation towards the International Tribunal, which is relevant to the determination as to whether they will appear for trial if released.[4]  

[1] Prosecutor v. Nikola Šainović and Dragoljub Ojdanić, Case No.: IT-99-37-AR65, Decision on Provisional Release, 30 October 2002 (“Šainović and Ojdanić Appeals Chamber Decision”), para. 6.

[2] Ibid, para. 6.

[3] Ibid, para. 8.

[4] Prosecutor v. Milan Milutinović, Nikola [ainović and Dragoljub Ojdanić, Case No.: IT-99-37AR65.3, Decision Refusing Milutinović Leave to Appeal, 3 July 2003, para. 12.

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25. It is reasonable for a Trial Chamber to take into account the gravity of the offences charged in order to determine whether facing the possibility of a lengthy sentence would constitute an incentive for an accused to flee.[1] It is evident that the more severe the possible sentence which an accused face is facing, the greater is his incentive to flee.[2] [….]

26. The Appeals Chamber recalls, however, that the seriousness of the charges against an accused cannot be the sole factor determining the outcome of an application for provisional release,[3] and emphasizes that a Trial Chamber must take into account the seriousness of the charges in addition to several other factors.[4] 

[1] Prosecutor v. Blagoje Simić, Case No.: IT-95-9-A, Decision on Motion of Blagoje Simić pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Service for his Father, 21 October 2004, para. 15.

[2] Prosecutor v. Fatmir Limaj et al, Case No.: IT-03-66-AR65.2, Decision on Haradin Bala’s Request for Provisional Release, 31 October 2003, para. 25.

[3] Šainović and Ojdanić Appeals Chamber Decision, para. 6; Prosecutor v. Blagoje Simić, Case No.: IT-95-9-A, Decision on Motion of Blagoje Simić pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Service for his Father, 21 October 2004, para. 15.

[4] See Šainović and Ojdanić Appeals Chamber Decision, para. 6.

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30. Rule 65 of the Rules places no obligation upon an accused applying for provisional release to provide guarantees from a State, as a prerequisite to obtaining provisional release.[1] Nonetheless, the presentation of a guarantee from a governmental body has been regarded as advisable by the Appeals Chamber.[2] Rule 65(C) permits a Chamber to impose conditions upon the release of an accused “to ensure the presence of the accused for trial and the protection of others,” and frequently the production of a guarantee from the relevant governmental body is imposed as such a condition.[3]

31. In the Mrkšić case the Appeals Chamber held that the reliability of a government guarantee must be determined in relation to the circumstances which arise in the particular case.[4]  A distinction can be drawn with the instant case where the Appellants have shown a general attitude of cooperation towards the International Tribunal before and after their surrender, and have already provided the Office of the Prosecutor with relevant information.

32. The Appeals Chamber notes that even though the reliability of a guarantee must not be exclusively determined by reference to any assessment of the level of cooperation by the authority providing it, the general level of cooperation by that authority with the International Tribunal does have some relevance in determining whether it would arrest the accused in question.[5]

[…]

33. […] The Appeals Chamber recalls that the circumstances of each accused must be evaluated individually as they weigh upon the likelihood that he will appear for trial. The weight to be attributed to guarantees by a government may depend upon the personal circumstances of the applicant.[6]

[1] Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002, para. 8.

[2] Prosecutor v.Vidoje Blagojević et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002, paras 7, 8; Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokić for Provisional Release, 28 May 2002, p. 2.

[3] Prosecutor v. Vidoje Blagojević et al, Case No.: IT-02-53-AR65, Decision on Application by Dragan Jokić for Leave to Appeal, 18 April 2002, para. 8.

[4] Prosecutor v. Mile Mrkšić, Case No.: IT-95-13/1-AR65, Decision on Appeal Against Refusal to Grant Provisional Release, 8 October 2002, para. 9. Where the Appeals Chamber reasoned that it would be reasonable for a Trial Chamber to find that in the case of an accused who occupied a high level position in the government at the time the crimes with which he was charged were committed (regardless of whether he had lost political influence), there could be a “substantial disincentive” for the government authorities to arrest that accused in light of the fact that he still possessed valuable information he could disclose to the Tribunal “if minded to cooperate should he be kept in custody.”

[5] Ibid, para. 11. See also Prosecutor v. Vidoje Blagovejić et al, Case No.: IT-02-60-AR65.4, Decision on Provisional Release Application by Blagojević, 17 February 2003.

[6] Šainović and Ojdanić Appeals Chamber Decision, para. 7.

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Decision on Provisional Release - 29.04.2008 MILOŠEVIĆ Dragomir
(IT-98-29/1-A)

7. In previous cases, the Appeals Chamber has found special circumstances where there is an acute justification, such as the applicant’s medical need or a memorial service for a near family member.[1] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[2] Where a convicted person simply “wishes to spend time with his family”[3] or seeks to visit a close relative in poor health,[4] the Appeals Chamber has refused the application upon the grounds that such reasons are not sufficient to establish special circumstances. In the present case, the medical evidence presented by Mr. Milošević indicates that [REDACTED].[5] The Appeals Chamber considers that even if [REDACTED], there is no suggestion of an acute crisis or of life-threatening medical condition that constitutes a “special circumstance” warranting provisional release. Further, Mr. Mi1ošević’s request to attend his son’s wedding is not a “special circumstance” within the meaning of Rule 65(I)(iii) of the Rules and under the Appeals Chamber’s jurisprudence. In light of the foregoing, the Appeals Chamber finds that Mr. Milošević fails to show the existence of “special circumstances” under Rule 65(I)(iii) of the Rules and does not therefore deem it necessary to assess whether the requirements of Rule 65(I)(i)-(ii) are satisfied.

[1] Brðanin Decision, para. 6 [Prosecutor v. Radoslav Brðanin, Case No. IT-99-36-A, Decision on Radoslav Brðanin’s Motion for Provisional Release, 23 February 2007]; Galić Decision, para. 15 [Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Decision on Defence Request for Provisional Release of Stanislav Galić, 23 March 2005]; Simić Decision, para. 20 [Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Motion of Blagoje Simić Pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for his Father, 21 October 2004].

[2] Knojelac Decision, pp. 2-3 [Prosecution v. Milorad Krnojelac, Case No. IT-97-25-A, Decision on Application for Provisional Release, 12 December 2002]; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on the Renewed Defence Request Seeking Provisional Release on Compassionate Grounds, 15 April 2008, para. 11.

[3] Simić Decision [Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the Grounds of Compassion, 2 April 2008, Public Redacted Version], para. 21.

[4] Strugar Decision, para. 13; Brðanin Decision, para. 6, referring to Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Order of the Appeals Chamber on the Motion for Provisional Release by Miroslav Kvočka, 11 September 2002.

[5] Confidential Attachment D to the Application.

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Decision on Provisional Release - 31.10.2003 LIMAJ et al.
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25.     According to the settled practice of the International Tribunal, it is the State into the territory of which the accused will be released, as the guarantor of public safety and order in that territory, that must provide the International Tribunal with guarantees that the accused will not flee and that if he does so, he will be arrested. […]  

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30.    The Bench considers that, while under Rule 65(B) of the Rules the seriousness of the charges against an accused cannot be the sole factor that determines the outcome of an application for provisional release, it is certainly one that a Trial Chamber is entitled to take into account when assessing whether an accused, if released, would appear for trial.[1] It is evident that the more severe the sentence which an accused faces, the greater is the incentive to flee. […]

[1] The Prosecutor v. Nikola Šainović and Dragoljub Ojdanić, “Decision on Provisional Release”, 30 October 2002, para 6.

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4. Pursuant to Rule 65(I) of the Rules of Procedure and Evidence of the Tribunal (“Rules”), a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities.”[3] Finally, the discretionary assessments of the requirements under Rule 65 are made on a case-by-case basis.[4]

[1] Prosecutor v. Rasim Delić, Case No. IT-04-83-A, Decision on Motion of Rasim Delić for Provisional Release, 11 May 2009 (“Delić Decision”), para. 5; Decision of 2 April 2009, para. 4, referring to Prosecutor v. Ljube Boškoski and Johan Tarčulovski, Case No. IT-04-82-A, Decision on Johan Tarčulovski’s Motion for Provisional Release, 18 December 2008, (confidential) (“Tarčulovski Decision”), para. 3; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on the Renewed Defence Request Seeking Provisional Release on Compassionate Grounds, 15 April 2008, (public redacted version) (“Strugar Decision of 15 April 2008), para. 5; and Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on the Grounds of Compassion, 2 April 2008, (public redacted version (“Strugar Decision of 2 April 2008”), para. 3.

[2] Delić Decision, para. 5; Decision of 2 April 2009 [Decision on Vladimir Lazarević’s Motion for Temporary Provisional Release on the Grounds of Compassion, 2 April 2009 (confidential)], para. 4, referring to Tarčulovski Decision, para. 3; Strugar Decision of 15 April 2008, para. 5; and Strugar Decision of 2 April 2008, para. 3.

[3] Id.

[4] Delić Decision, para. 5; Decision of 2 April 2009, para. 4, referring to Strugar Decision of 2 April 2008, para. 11, referring to Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.5, Decision on Prosecution’s Consolidated Appeal Against Decisions to Provisionally Release the Accused Prlić, Stojić, Praljak, Petković and Ćorić, 11 March 2008, para. 7.

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9. The Appeals Chamber recalls that the specificity of provisional release at the post-trial stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that “special circumstances exist warranting such release”.[1] For reasons described in paragraph 2 above, the Appeals Chamber will consider that, for the purposes of this decision, the appellate proceedings in this case are pending before it. In such situations, the Appeals Chamber has concluded that special circumstances related to humane and compassionate considerations exist where there is an acute justification, such as the applicant’s medical need or a memorial service for a close family member.[2] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[3] The Appeals Chamber has also emphasized that “the fact that some accused have been granted provisional release for comparable reasons pending their trial cannot be automatically applied by analogy to persons who have already been convicted by a Trial Chamber and who are seeking provisional release pending the appellate proceedings.[4] Finally, because “the notion of acute justification [is] inextricably linked to the scope of special circumstances which could justify provisional release on compassionate grounds at the appellate stage”, justifications such as wanting to spend time with family have explicitly not been recognized as special circumstances under Rule 65(I)(iii) of the Rules.[5]

[1] Decision of 2 April 2009, para. 8; Strugar Decision of 15 April 2008, para. 10.

[2] Decision of 2 April 2009, para. 8; Strugar Decision of 2 April 2008, para. 12 referring to, inter alia, Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Radoslav Brđanin’s Motion for Provisional Release, 23 February 2007, para. 6; and Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Decision on Motion of Blagoje Simić Pursuant to Rule 65(I) for Provisional Release for a Fixed Period to Attend Memorial Services for His Father, 21 October 2004, para. 20.

[3] Decision of 2 April 2009, para. 8; Strugar Decision of 15 April 2008, para. 10.

[4] Decision of 2 April 2009, para. 8; Strugar Decision of 2 April 2008, para. 11.

[5] Decision of 2 April 2009, para. 8; Tarčulovski Decision, para. 8; Strugar Decision of 2 April 2008, para. 12.

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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).

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Lazarević’s provisional release was extended twice, on 24 June 2009 and 14 July 2009, on the ground all the requirements under Rule 65(I) of the Rules continued to be met. Lazarević’s third request for extension was dismissed on 4 August 2009 for lack of showing the existence of special circumstances under Rule 65(I)(iii), and of acute justification in particular. All three decisions have reiterated that the criteria required for granting a request for provisional release apply mutatis mutandis to a motion for its extension.

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Decision on Modification of Provisional Release - 12.12.2002 ŠAINOVIĆ & OJDANIĆ
(IT-99-37-AR65)

[I]n matters of provisional release as in all other matters, where the Appeals Chamber finds an error in a Trial Chamber decision, and where it is sufficiently  apprised of the issues in the case, the Appeals Chamber is free to substitute its own decision for that of the Trial Chamber;

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Decision on Provisional Release - 21.04.2008 PRLIĆ et al.
(IT-04-74-AR65.7)

15. The Appeals Chamber notes that the Trial Chamber did explicitly address the impact of its 98bis Ruling in granting the Accused provisional release. The Trial Chamber recalled the holding of the Appeals Chamber Decision that the 98bis Ruling constituted a significant change in circumstances, which warranted a renewed and thorough evaluation of the risk of flight of each of the co-Accused in this case. The Trial Chamber expressly considered that, in order to satisfy itself that the Accused still met the requirements of Rule 65, that if released they would appear for trial and not intervene with any victims and witnesses, it was required to consider whether the Accused had offered sufficient guarantees to offset that risk of flight. In such circumstances, even if the Trial Chamber was satisfied that sufficient guarantees were offered, it should not exercise its discretion in favour of a grant of provisional release unless compelling humanitarian grounds were present which caused to tip the balance in favour of allowing provisional release.[1]

[1] [Prosecutor v. Prlić et al., Case No. IT-04-74-T, Décision Relative à la Demande de Mise en Liberté Provisoire de l’Accusé Petković, with a Confidential Annex, 31 March 2008, (“Impugned Decision”)], p. 5. 

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ICTR Rule Rule 65 ICTY Rule Rule 65
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Decision on Provisional Release - 23.02.2016 TOLIMIR Zdravko
(MICT-15-95-ES)

7.       Neither the Statute nor the Rules explicitly regulate the provisional release of convicted persons awaiting transfer to an enforcement State.[1] The Appeals Chamber recalls, however, that, in certain limited circumstances, the ICTY has authorized provisional release to convicted persons prior to their transfer to the State where they would serve their sentence.[2] In doing so, the ICTY Appeals Chamber has relied on Rule 65(I) of the ICTY Rules of Procedure and Evidence (“ICTY Rules”) which mirrors Rule 68(I) of the Mechanism’s Rules.[3] The Appeals Chamber recalls that it is bound to interpret the Statute and the Rules in a manner consistent with the relevant jurisprudence of the ICTY.[4] Bearing this practice in mind, the Appeals Chamber considers that Rule 68 of the Rules applies, mutatis mutandis, to convicted persons who are in the custody of the Mechanism pending transfer to an enforcement State.

8.       Accordingly, provisional release may be granted if the Appeals Chamber is satisfied that: (i) the convicted person, if released, will surrender into detention at the conclusion of the fixed period; (ii) the convicted person, if released, will not pose a danger to any victim, witness, or other person; and (iii) special circumstances exist warranting such release.[5] These requirements must be considered cumulatively and the discretionary assessment of these requirements is to be made on a case-by-case basis. [6] Furthermore, “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities”.[7]

[1] Rule 68(I) of the Rules relates to granting provisional release to appellants and provides, in relevant part, that “the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that: (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the appellant, if released, will not pose a danger to any victim, witness, or other person, and (iii) special circumstances exist warranting such release.”

[2] See, e.g., Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-ES, Decision on Krajišnik’s Application for Custodial Visit, 17 June 2009 (“Krajišnik Decision”), paras. 1, 22. See also Prosecutor v. Ljubomir Borovčanin, Case No. IT-05-88-AR65.12, Decision on Appeal from Decision on Ljubomir Borovčanin’s Request for Provisional Release, 1 March 2011 (“Borovčanin Decision”), paras. 2, 3, 9; Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-A, Decision on Motion on Behalf of Haradin Bala for Temporary Provisional Release, 14 February 2008 (“Limaj et al. Decision”), paras. 2, 4, 5. The Appeals Chamber notes that, in one case, the President of the Mechanism proprio motu provisionally released a convicted person who was in the custody of the Mechanism pending transfer to an enforcement State. See Nikolić Decision [Prosecutor v. Drago Nikolić, Case No. MICT-15-85-ES.4, Public Redacted Version of the 20 July 2015 Decision of the President on the Application for Early Release or Other Relief of Drago Nikolić, 13 October 2015], paras, 4, 39.

[3] Rule 65(I) of the ICTY Rules provides, in relevant part, that “the Appeals Chamber may grant provisional release to convicted persons pending an appeal or for a fixed period if it is satisfied that: (i) the appellant, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the appellant, if released, will not pose a danger to any victim, witness or other person, and (iii) special circumstances exist warranting such release.” See also Borovčanin Decision, para. 9; Limaj et al. Decision, paras. 4, 5.

[4] Phénéas Munyarugarama v. Prosecutor, Case No. MICT-12-09-AR14, Decision on Appeal Against the Referral of Phénéas Munyarugarama’s Case to Rwanda and Prosecution Motion to Strike, 5 October 2012, paras. 4-6.

[5] Borovčanin Decision, para. 9; Limaj et al. Decision, para. 5.

[6] Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Third Motion for Provisional Release on Compassionate Grounds, 3 September 2010 (“Šainović et al. Decision of 3 September 2010”), para. 5; Borovčanin Decision, para. 9. See also Limaj et al. Decision, para. 5.

[7] Borovčanin Decision, para. 9; Limaj et al. Decision, para. 5.

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Decision on Provisional Release - 23.02.2016 TOLIMIR Zdravko
(MICT-15-95-ES)

9.       The Appeals Chamber recalls that special circumstances warranting provisional release related to humane and compassionate considerations have been found to exist where there is an “acute justification”, such as a medical need, a memorial service for a close family member, or a visit to a close relative in extremely poor health whose death is believed to be imminent.[1] Requests premised solely on the combination of advanced age and poor health, for example, have not met the threshold of “acute justification” in the absence of demonstration of the existence of an acute crisis or a life threatening medical condition.[2] […]

11.     […] [T]he fact that Tolimir is away from his family in this present situation also does not constitute “special circumstances”.[3] In this respect, the Appeals Chamber recalls that, in accordance with the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal (“Rules Governing Detention”),[4]  Tolimir is entitled to communicate with his family or other persons and to receive visits from them subject to certain restrictions and conditions.[5] […]

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-A, Public Redacted Version of the “Decision on Valentin ]orić’s Motion Seeking Provisional Release” Issued on 12 March 2015, 14 May 2015 (“Prlić et al. Decision”), para. 12; 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 (“Šainović et al. Decision of 13 May 2013”), p. 2; Borovčanin Decision [Decision on Appeal from Decision on Ljubomir Borovčanin’s Request for Provisional Release, 1 March 201], para. 10.

[2] See, e.g., Prlić et al. Decision, para. 12. This standard has also been applied in the context of a convicted person’s request to visit a close family member with medical conditions. See Borovčanin Decision, para. 10; Prosecutor v Dragomir Milošević, Case No. IT-98-29/1-A, Decision on Application for Provisional Release pursuant to Rule 65(I), 29 April 2008 (public redacted version), paras. 5, 7; Prosecutor v. Pavle Strugar, Case No. IT-01-42-A, Decision on Defence Request Seeking Provisional Release on Grounds of Compassion, 2 April 2008 (public redacted version) (“Strugar Decision”), paras. 5, 13; Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Decision on Radoslav Brđanin’s Motion for Provisional Release, 23 February 2007, para. 6.

[3] Cf. Šainović et al. Decision of 3 September 2010 [Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Sreten Lukić’s Third Motion for Provisional Release on Compassionate Grounds, 3 September 2010], para. 11; Prosecutor v. Milan Milutinović et al., Public Redacted Version of the “Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion” Issued on 21 May 2009, 22 May 2009, para. 9; Strugar Decision, para. 12.

[4] IT38/Rev.9, 21 July 2005. The Rules Governing Detention of the ICTY apply mutatis mutandis to individuals subject to the jurisdiction of the Mechanism.

[5] Rules 58, 61 of the Rules Governing Detention.

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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. 

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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.

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ICTR Rule Rule 65 ICTY Rule Rule 65