Request for a stay

Notion(s) Filing Case
Decision on Rule 92 bis Evidence - 01.07.2010 PRLIĆ et al.
(IT-04-74-AR73.17)

47. An order of a Trial Chamber may be stayed if the objective of an appeal against the order would be significantly impaired should the order be already given effect.[1] In determining whether to stay the enforcement of an order pending an appeal, a Chamber must balance the potential of harm to the accused by enforcement of the order with the potential of harm to a legally protected interest by suspension of the order.[2] […].

[1] Prosecutor v. Momčilo Perišić, Case No. IT-04-81-AR108bis.4, Order Suspending the Execution of the Trial Chamber’s Decision of 15 February 2010 Pursuant to Rule 108bis of the Rules, 23 March 2010, p. 1; Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.1, Order on the Prosecution’s Motion for a Stay, 10 August 2004, p. 3. 

[2] Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-R77.2-A, Decision on Urgent Motions to Remove or Redact Documents Pertaining to Protected Witnesses, 16 December 2009 (confidential), p. 4.

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