During the course of a trial (Incl. pending / after a Rule 98bis Decision)

Notion(s) Filing Case
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
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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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
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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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
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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ICTR Rule Rule 65 ICTY Rule Rule 65
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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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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
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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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
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