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Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

189. The ultimate question under this ground of appeal is whether Hadžihasanović exercised effective control over the El Mujahedin detachment. Since de jure authority is only one factor that helps to establish effective control, and because the present question is resolvable on the basis of effective control alone, the Appeals Chamber declines to address whether Hadžihasanović had de jure authority over the El Mujahedin detachment.

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Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

199. The Appeals Chamber recognises that the power to give orders and have them executed can serve as an indicium of effective control.[1] […].

203. At the outset, the Appeals Chamber points out that, if taken literally, there is little basis in the jurisprudence of this International Tribunal for considering what the Trial Chamber termed as the “conduct of combat operations involving the forces in question”[2] as an indicium of effective control.[3] A reading of the relevant sections of the Trial Judgement suggests that what the Trial Chamber sought to demonstrate by defining this criterion was the degree of subordination of the El Mujahedin detachment to the OG Bosanska Krajina during combat operations.[4] Accordingly, the Appeals Chamber will discuss the Trial Chamber’s findings within this latter context.

209. These findings confirm that the El Mujahedin detachment took part in several combat operations in September and October 1993 and that this occurred within the framework established by the OG Bosanska Krajina and the 3rd Corps. This, however, does not in itself necessarily provide sufficient support for the conclusion that Hadžihasanović had effective control over the El Mujahedin detachment in the sense of having the material ability to prevent or punish its members should they commit crimes.[5] […].

210. The Appeals Chamber notes that the El Mujahedin detachment took part in combat operations alongside 3rd Corps formations, including the OG Bosanska Krajina, as of the second half of 1992.[6] The Appeals Chamber stresses that, with respect to the period before 13 August 1993, the Trial Chamber found that the relationship between the El Mujahedin detachment and the 3rd Corps was one of cooperation, not effective control. The Trial Chamber found that “frequent cooperation in itself [did] not allow the conclusion that the mujahedin were subordinated to the 3rd Corps […] and were under [its] effective control”.[7] Neither the 6 September Order nor the conduct of combat operations demonstrate that the relationship between the 3rd Corps and the mujahedin, later officially renamed the El Mujahedin detachment, evolved from cooperation to effective control.

213. In its concluding remarks on the issue of Hadžihasanović’s effective control, the Trial Chamber stated the following:

It must be noted, however, that this exceptional position was in fact accepted by the 3rd Corps, insofar as it did not in effect prevent the 3rd Corps and its units from using the detachment in combat and benefiting militarily from its existence. It should also be noted that nothing forced the 3rd Corps commanders to use the detachment in combat. In so doing, they accepted all the consequences of their decisions and inevitably assumed full responsibility for them.[8]

The Appeals Chamber does not dispute that the 3rd Corps may have benefited from the El Mujahedin detachment, and that a circumstance of this kind may entail some form of responsibility, if the particulars of such responsibility are adequately pleaded in an Indictment.[9] The Appeals Chamber nevertheless questions the relevance of that consideration for demonstrating the existence of Hadžihasanović’s effective control over the El Mujahedin detachment. The Appeals Chamber clarifies, however, given that the expression “full responsibility” adopted by the Trial Chamber may be somewhat misleading, that the responsibility of a superior under Article 7(3) of the Statute is only triggered by a superior’s failure to prevent and punish the crimes of his subordinates of which he has the requisite knowledge. Thus, even if Hadžihasanović benefited militarily from the El Mujahedin detachment, his responsibility as a superior under Article 7(3) of the Statute would be, eventually, triggered only upon a showing that the members of the El Mujahedin detachment were his subordinates. As the Trial Chamber made its remark in the context of its discussion on effective control, it presumably used the remark as an argument to justify attributing Hadžihasanović with effective control. This argument, however, does not provide support for the existence of effective control.

214.  Thus, while these Trial Chamber’s findings indicate that the 3rd Corps cooperated with the El Mujahedin detachment, they are insufficient to establish the existence of effective control. The Appeals Chamber will examine whether any of the Trial Chamber’s additional findings provide a proper basis for its conclusion that Hadžihasanović exercised effective control over the El Mujahedin detachment.

217. Assuming that the Trial Chamber’s conclusion that there was no other authority over the El Mujahedin detachment is correct, the Appeals Chamber disputes the relevance of the criterion identified by the Trial Chamber as an indicator of the existence of effective control. Hadžihasanović’s effective control cannot be established by process of elimination. The absence of any other authority over the El Mujahedin detachment in no way implies that Hadžihasanović exercised effective control in this case.

[1] Blaškić Appeal Judgement, para. 69.

[2] Trial Judgement, paras 83, 851.

[3] See Blaškić Appeal Judgement, para. 69 (“[the indicators of effective control] are limited to showing that the accused had the power to prevent, punish, or initiate measures leading to proceedings against the alleged perpetrators where appropriate”). In a footnote appended to justify this criterion, the Trial Chamber referred to paragraph 398 of the Strugar Trial Judgement. Upon review of that judgement, the Appeals Chamber considers that the Trial Chamber in the Strugar case did not devise a new indicator of effective control, but simply analysed the effect of certain orders in the context of combat operations.

[4] See Trial Judgement, paras 825-827, 848, 851-852.

[5] See Čelebići Appeal Judgement, para. 256.

[6] See Trial Judgement, para. 537 (the El Mujahedin detachment expressed their readiness to conduct combat operations in the zone of responsibility of the 333rd Brigade). See also Trial Judgement, para. 530 (T. 17233, Closed Session). The El Mujahedin detachment took part in combat operations alongside the 7th and the 17th units during the combat operations in April 1993 on Mt Zmajevac, south of Zenica (Trial Judgement, para. 532); in the Bijelo Bučje and Mravinjac sectors in June 1993 (Trial Judgement, paras 534-535); and at Kaćuni south-east of Busovača in July 1993 (Trial Judgement, para. 537).

[7] Trial Judgement, para. 795.

[8] Trial Judgement, para. 850.

[9] Trial Judgement, para. 1483.

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Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

260. The failure to prevent and the failure to punish are not only legally distinct, but are factually distinct in terms of the type of knowledge that is involved for each basis of superior responsibility.[1] The duty to prevent arises for a superior from the moment he knows or has reason to know that a crime is about to be committed, while the duty to punish only arises after the commission of the crime. Thus, knowledge which is relevant to a superior’s duty to punish may or may not be relevant to his duty to prevent depending on when the superior acquired actual knowledge or had reason to know about it. […].

[1] See Prosecutor v. Sefer Halilović, Case No. IT 01-48-PT, Trial Chamber Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment, 17 December 2004, para. 32.

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ICTR Statute Article 6(3) ICTY Statute Article 7(3)
Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

264. […] The Appeals Chamber recalls that the Trial Chamber considered the duty to suppress to be part and parcel of a superior’s duty to prevent,[1] such that knowledge acquired by Kubura while his subordinates had begun and were still engaged in committing the acts of plunder in Vareš would be relevant to his duty to prevent those crimes.[2]

[1] Trial Judgement, para. 127: “The duty to suppress should be considered part of the superior’s duty to prevent, as its aim is to prevent further unlawful acts”.

[2] See Limaj Trial Judgement, para. 527: “The duty to prevent arises from the time a superior acquires knowledge, or has reasons to know that a crime is being or is about to be committed, while the duty to punish arises after the superior acquires knowledge of the commission of the crime”.

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Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

313. The Appeals Chamber reiterates that, when assessing the gravity of a crime in the context of a conviction under Article 7(3) of the Statute, two matters must be taken into account:

(1) the gravity of the underlying crime committed by the convicted person’s subordinate; and

(2) the gravity of the convicted person’s own conduct in failing to prevent or punish the underlying crimes.[1]

Thus, in the context of a conviction under Article 7(3) of the Statute, the gravity of a subordinate’s crime remains, contrary to Hadžihasanović’s assertion, an “essential consideration” in assessing the gravity of the superior’s own conduct at sentencing.[2]

[1] Čelebići Appeal Judgement, para. 732 (emphasis added). See also para. 741 (“a consideration of the gravity of offences committed under Article 7(3) of the Statute involves, in addition to a consideration of the gravity of the conduct of the superior, a consideration of the seriousness of the underlying crimes” (emphasis added).

[2] Čelebići Appeal Judgement, para. 741.

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Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

320. The Appeals Chamber recalls that a position of authority does not in and of itself attract a harsher sentence.[1] Further, in the context of a conviction under Article 7(3) of the Statute, use of the superior’s position of authority as an aggravating circumstance would be inappropriate since it is itself an element of criminal liability.[2] Nor would a high level of authority, to echo the Prosecution’s distinction, necessarily attract greater responsibility were it to be considered. Rather, it is the superior’s abuse of that level of authority which could be taken into consideration at sentencing.[3] […].

321. In any event, the principle of graduation upon which the Prosecution relies is not absolute. Indeed, the ICTR Appeals Chamber in Musema qualified its statement that sentences should be graduated by noting that this principle “is, however, always subject to the proviso that the gravity of the offence is the primary consideration for a Trial Chamber in imposing sentence”.[4] The Prosecution’s contention that Hadžihasanović must receive a harsher sentence based on his high level of authority is not substantiated by the practice of the International Tribunal.

[1] Stakić Appeal Judgement, para. 411; Babić Judgement on Sentencing Appeal, para. 80.

[2] See Naletilić and Martinović Appeal Judgement, para. 626; Miodrag Jokić Judgement on Sentencing Appeal, para. 30.

[3]  See Galić Appeal Judgement, para. 412 (discussing the abuse of a high level of authority in the context of the mode of liability of ordering).

[4] Musema Appeal Judgement, para. 382.

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ICTR Rule Rule 101(B)(i) ICTY Rule Rule 101(B)(i)
Notion(s) Filing Case
Appeal Judgement - 22.04.2008 HADŽIHASANOVIĆ & KUBURA
(IT-01-47-A)

328. The Appeals Chamber recognises that intelligence and good education have been considered to be possible aggravating factors.[1] This does not mean, however, that these factors should only be considered aggravating factors. The Appeals Chamber reiterates that whether certain factors going to a convicted person’s character constitute mitigating or aggravating factors depends largely on the particular circumstances of each case.[2] The Appeals Chamber previously underlined that “[c]aution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different”.[3] […].

[1] Brđanin Trial Judgement, para. 1114; Milan Simić Sentencing Judgement, paras 103-105.

[2] Babić Judgement on Sentencing Appeal, para. 49.

[3] Stakić Appeal Judgement, para. 416 (as to Milomir Stakić’s professional background). See also Babić Judgement on Sentencing Appeal, para. 49 (as to Milan Babić’s good character).

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ICTR Rule Rule 101(B) ICTY Rule Rule 101(B)
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
Notion(s) Filing Case
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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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Admission of Exhibits - 15.04.2008 DELIĆ Rasim
(IT-04-83-AR73.1)

The Prosecution sought to confront a Defence witness, during cross-examination, with two documents. Delić objected on the basis that these documents were not included in the list of exhibits the Prosecution intended to offer under Rule 65 ter(E)(iii) of the Rules of Procedure and Evidence. Following the cross-examination of the witness on the content of the two documents, the Trial Chamber proceeded to admit them into evidence. Delić appealed the admission because it was done during the Defence case. The Appeals Chamber found:

20. According to Rule 89(C) of the Rules, a “Chamber may admit any relevant evidence which it deems to have probative value”. More specifically, Rule 90(F)(i) of the Rules states that a “Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”.  Within the discretion afforded to it, a Trial Chamber may admit any evidence which it deems relevant and of probative value, provided that the right of the accused to a fair trial is ensured in the process.[1]

21. In the present case, the Prosecution contends that it could not have ascertained the importance of the Exhibits until Delić had disclosed its own list of witnesses pursuant to Rule 65 ter (G)(i). However, the Prosecution did not proceed to disclose the Exhibits immediately after this list was filed, but just prior to the beginning of the testimony of [the] witness […]

22. In these circumstances, the Appeals Chamber notes that the Impugned Decision does not clarify whether the Exhibits were admitted as evidence probative of guilt or only for impeachment purposes of the witness in question. This may cause confusion, prejudicing Delić in the organization of his case. According to the principles enshrined in the Statute – in particular in Article 21(4)(b) and (e) – on the rights of the accused, when evidence is tendered by the Prosecution there must be a fair opportunity for the accused to challenge it; this is all the more true if evidence is tendered after the close of the Prosecution case. In situations where the accused opposes the admission of evidence during cross-examination due to alleged breach of his right to a fair trial, a Trial Chamber must consider how it intends to strike the appropriate balance between the need to ensure the rights of the accused and its decision to admit such evidence.

23. The Trial Chamber therefore erred in not specifying the purpose for which the Exhibits were admitted despite the request by Delić and, consequently, in not addressing how the prejudice caused by the admission of the Exhibits, if any, could be redressed. Only after having considered the mode of disclosure of the documents in question, the purpose of their admission, the time elapsed between disclosure and examination of the witness, the languages known to Counsel and the accused, as well as any other relevant factual considerations, the Trial Chamber will be able to provide a reasoned opinion on the prejudice, if any, caused by the admission of the Exhibits and on the measures to address such prejudice – for example providing more time for cross-examination, adjourning the session, or granting the possibility of re-calling the witness if Delić shows it is necessary. Having failed to give sufficient weight to relevant considerations in reaching its decision, the Trial Chamber committed a discernible error.

[1] Rule 89(D) of the Rules.

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ICTR Rule Rule 89(C);
Rule 90(F)
ICTY Rule Rule 89(C);
Rule 90(F)
Notion(s) Filing Case
Decision on Barayagwiza's Motion - 11.04.2008 BARAYAGWIZA Jean-Bosco
(ICTR-99-52A-R)

Following the issuance of the Appeal Judgement in this case, Barayagwiza requested that the Appeals Chamber order the Registrar to assign, pursuant to Rule 45 of the Rules, his former Lead Counsel on appeal as his counsel to assist him in the preparation of a motion for review and/or reconsideration of the Appeal Judgement. While the Registrar did not object to the assistance of the Counsel as pro bono counsel (provided that the counsel files a power of attorney pursuant to Rule 44 of the Rule[1]), he objected to the assignment under the legal aide scheme (Rule 45), in the absence of judicial determination on the admissibility of the request for review and/or reconsideration. The Appeals Chamber ruled that the request for assignment of counsel for the purpose of preparing a motion for reconsideration was without merit considering that a final judgement cannot be reconsidered. As for the preparation of a motion for review, the Appeals Chamber held:

pp. 3-4: RECALLING that review of a final judgement is an exceptional remedy and that an indigent applicant is only entitled to assigned counsel, at the Tribunal’s expense, if the Appeals Chamber authorizes the review or if it deems it necessary in order to ensure the fairness of the proceedings  at the preliminary examination stage;[2]

CONSIDERING that the Motion fails to provide any information on the basis for a potential request for review;[3]

CONSIDERING further that in the absence of information as to the potential grounds for review, the Appeals Chamber cannot conclude that it would be necessary in order to ensure the fairness of the proceedings to authorize assignment of counsel to the Applicant under the Tribunal’s legal aid scheme;

FINDING therefore, that the Applicant has not shown that he should receive the assistance of counsel at the expense of the Tribunal;

NOTING that in any event the Applicant may be assisted by counsel in connection with a request for review at his own expense, at the expense of a third party or on a pro bono basis, provided that counsel files a power of attorney with the Registrar and satisfies the requirements to appear before the Tribunal;

Subsequently, on 9 September 2008, the Appeals Chamber rendered its decision on Barayagwiza’s motion for reconsideration of the present Decision,[4] holding inter alia that:

p. 4: CONSIDERING that the Impugned Decision is not premised on the understanding that Mr. Herbert would assist the Applicant in the preparation of a motion for review on a pro bono basis, but merely informs the Applicant that, while he failed to demonstrate that assignment of a counsel under the Tribunal’s legal aid scheme was justified in the present circumstances, he may still, subject to certain conditions, be assisted by counsel in connection with a request for review at his own expense, at the expense of a third party or on a pro bono basis, and;[5]

CONSIDERING that the Applicant merely reiterates his request for a blanket assignment of counsel under the Tribunal’s legal aid scheme;

CONSIDERING that the Applicant has failed to demonstrate a clear error of reasoning in the Impugned Decision or that reconsideration is necessary to prevent an injustice;

[1] See fn. 7 and p. 4 of the present Decision.

[2] See Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-03-R, Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and Clarification, 8 December 2006 (“Rutaganda Decision of 8 December 2006”) para. 41; Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-R, Decision on Niyitegeka’s Urgent Request for Legal Assistance, 20 June 2005, p. 4; Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-R, Decision On Hassan Ngeze’s Motion To Obtain Assistance From Counsel, 28 February 2008, p. 2.

[3] In this respect, the Appeals Chamber recalls that review of a final judgement is not meant to provide an additional opportunity for a party to remedy its failings at trial or on appeal. Review may only be granted when the moving party satisfies the following cumulative criteria: (i) there is a new fact; (ii) the new fact was not known to the moving party at the time of the original proceedings; (iii) the lack of discovery of that new fact was not the result of lack of due diligence by the moving party; and (iv) the new fact could have been a decisive factor in reaching the original decisions, Rutaganda Decision of 8 December 2006, para. 8.

[4] Decision on Jean-Bosco Barayagwiza’s Motion of 2 May 2008, 9 September 2008.

[5] Impugned Decision, p. 4.

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ICTR Rule Rule 45 ICTY Rule Rule 45
Notion(s) Filing Case
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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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision on Provisional Release on Compassionate Grounds - 02.04.2008 STRUGAR Pavle
(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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ICTR Rule Rule 65 ICTY Rule Rule 65
Notion(s) Filing Case
Decision Regarding Use of Languages - 28.03.2008 TOLIMIR Zdravko
(IT-05-88/2-AR73.1)

14.     The Appeals Chamber notes at the outset that the Appellant’s right to the use of his mother tongue in his written or oral communications with the International Tribunal’s organs is not in dispute here. Rather, the contentious issue on appeal is limited to the question of whether the delivery to the Appellant, who is representing himself, of materials in B/C/S[1] and in Latin script satisfies the guarantees provided by Article 21(4)(a) of the Statute and Rule 66(A) of the Rules in this case. The Appeals Chamber considers that it does.

15.     The Appeals Chamber finds that the Impugned Decision correctly interprets the governing law in finding that the

right to receive relevant material in this Tribunal in a language [the accused] can understand, […] does not translate into a right for an accused, regardless of his or her background, education, experience, to come before this Tribunal and demand the production of documents in any language or script that he or she chooses.[2]

This is consistent with the plain language of Article 21(4)(a) of the Statute and Rule 66(A) of the Rules which, as the Pre-Trial Judge aptly points out, hinges on understanding and not preference.[3] These provisions, when read with the other minimum guarantees provided in Article 21(4) of the Statute, create an obligation to provide relevant material in a language which the accused understands sufficiently in order to allow for the effective exercise of his right to conduct his defence.[4] Article 21 of the Statute provides that the accused has the right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him and to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal. This language reproduces the relevant provisions of Article 14(3)(a) and (f) of the International Covenant on Civil and Political Rights.[5] Whether an accused possesses the sufficient level of understanding is of course a question of fact to be decided on a case-by-case basis.

[1] In coming to terms with disputes on the proper qualification of the languages used in the region of the former Yugoslavia, and in particular in the Republics of Bosnia-Herzegovina, Croatia, and Serbia, the International Tribunal has often adopted the acronym “B/C/S” to identify the Bosnian, Croatian, and Serbian languages (see, among others, Kordić and Čerkez Appeal Judgement, List of Abbreviations). In the region of the former Yugoslavia, the terms “hrvatskosrpski” and “srpskohrvatski” were used, with the Cyrillic script prevalent in Serbia, the Latin script in Croatia and both used in Bosnia-Herzegovina. Cf., for example, Article 4 of the Bosnia-Herzegovina Constitution of 1974 with Article 8 of the Constitutions of the Republic of Serbia (1990 and 2001) and Article 12 of that of the Republic of Croatia (1990, with amendments).

[2] [Prosecutor v. Zdravko Tolimir, IT-05-88/2-PT, T. 114 (“Impugned Decision”)]

[3] Impugned Decision, T. 114.

[4] See, for example, Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Defence Application for Forwarding the Documents in the Language of the Accused, 25 September 1996 (filed on 27 September 1996), paras. 6-10; Prosecutor v. Paško Ljubičić, Case No. IT-00-41-PT, Decision on the Defence Counsel’s Request for Translation of All Documents, 20 November 2002, pp. 2-3.

[5] See also the explanations provided by the Human Rights Committee in this respect: “The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based” and “Subparagraph 3 (f) provides that if the accused cannot understand or speak the language used in court he is entitled to the assistance of an interpreter free of any charge. This right is independent of the outcome of the proceedings and applies to aliens as well as to nationals. It is of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence.” (General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14)).

 

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ICTR Statute Article 20(4)(a);
Article 20(4)(d)
ICTY Statute Article 21(4)(a);
Article 21(4)(d)
ICTR Rule Rule 3(B);
Rule 66(A)
ICTY Rule Rule 3(B);
Rule 66(A)
Notion(s) Filing Case
Appeal Judgement - 12.03.2008 SEROMBA Athanase
(ICTR-2001-66-A)

189. The Appeals Chamber recalls that extermination as a crime against humanity under Article 3(b) of the Statute is the act of killing on a large scale.[1] The Appeals Chamber stresses that in the jurisprudence of both ad hoc Tribunals, the necessary actus reus underlying the crime of extermination consists of any act, omission, or combination thereof which contributes directly or indirectly to the killing of a large number of individuals.[2] Therefore, as the Appeals Chamber has previously considered in the Ndindabahizi Appeal Judgement, for the actus reus of extermination to be fulfilled, it is sufficient that the accused participated in measures indirectly causing death.[3] The Appeals Chamber will therefore now turn to assess whether Athanase Seromba’s acts as established by the Trial Chamber amount to acts underlying the commission of extermination.

190. Notwithstanding the confinement of the Gacumbitsi dictum regarding committing to genocide, the Appeals Chamber, Judge Liu dissenting, can find no reason why its reasoning should not be equally applicable to the crime of extermination. The key question raised by the Gacumbitsi dictum is what other acts can constitute direct participation in the actus reus of the crime. As noted above, the Appeals Chamber is satisfied that the acts of Athanase Seromba set out in the Judgement were sufficient to constitute direct participation in the actus reus of the crime of genocide, and is equally satisfied that the same acts are sufficient to constitute direct participation in the crime of extermination, in line with the Ndindabahizi Appeal Judgement, as discussed above. With respect to Athanase Seromba’s mens rea, the Appeals Chamber is satisfied that the role he played in the events that led to the destruction of the church, his knowledge that such destruction would inevitably result in the death of a large number of Tutsi civilians,[4] as well as his awareness of the widespread and systematic attack against the Tutsi population[5] occurring at the time, all demonstrate that he possessed the required intent to commit extermination. The Appeals Chamber, therefore, finds, Judge Liu dissenting, that the Trial Chamber erred in concluding that Athanase Seromba had not committed extermination as a crime against humanity.[6]

Also see infra on Judge Liu’s Dissenting Opinion.

[1] Ntakirutimana Appeal Judgement, para. 516. The Appeals Chamber recalls that the act of killing must occur within the context of a widespread or systematic attack against the civilian population for national, political, ethnic, racial or religious grounds.

[2] See, inter alia, Brđanin Trial Judgement, para. 389; Blagojević and Jokić Trial Judgement, para. 573. See also Ndindabahizi Trial Judgement, para. 479.

[3] Ndindabahizi Appeal Judgement, para. 123 and fn. 268.

[4] Trial Judgement, para. 367.

[5] Trial Judgement, para. 370.

[6] See Stakić Appeal Judgement at paragraph 59, where the ICTY Appeals Chamber stated the following:

To avoid such uncertainty and ensure respect for the values of consistency and coherence in the application of the law, the Appeals Chamber must intervene to assess whether the mode of liability applied by the Trial Chamber is consistent with the jurisprudence of this Tribunal. If it is not consistent, the Appeals Chamber must then determine whether the Trial Chamber’s factual findings support liability under another, established mode of liability […].

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ICTR Statute Article 3(b) ICTY Statute Article 5(b)
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Appeal Judgement - 12.03.2008 SEROMBA Athanase
(ICTR-2001-66-A)

161. The Appeals Chamber recalls that

[i]n the context of genocide, however, “direct and physical perpetration” need not mean physical killing; other acts can constitute direct participation in the actus reus of the crime.

The jurisprudence makes clear that “committing” is not limited to direct and physical perpetration and that other acts can constitute direct participation in the actus reus of the crime.  The question of whether an accused acts with his own hands, e.g. when killing people, is not the only relevant criterion.  The Appeals Chamber therefore finds, Judge Liu dissenting, that the Trial Chamber erred in law by holding that “committing” requires direct and physical perpetration of the crime by the offender. To remedy this error, the Appeals Chamber will apply the correct legal standard—i.e., whether Athanase Seromba’s actions were “as much an integral part of the genocide as were the killings which [they] enabled.”  In so doing, it will determine whether, as the Prosecution has argued on appeal, the Trial Chamber’s factual conclusions and the evidence contained in the trial record support the conclusion that Athanase Seromba became a principal perpetrator of the crime itself by approving and embracing as his own the decision to commit the crime and thus should be convicted for committing genocide.

162. The Appeals Chamber considers that the law should be applied to the factual findings of the Trial Chamber, taken as a whole. It is on this basis that the Appeals Chamber will determine the proper mode of liability under Article 6(1) of the Statute. In cases of ambiguity reference may be made, pursuant to Rules 109 and 118(A) of the Rules, to the record on appeal.

171. On the basis of these underlying factual findings, the Appeals Chamber finds that Athanase Seromba approved and embraced as his own the decision of Kayishema, Ndahimana, Kanyarukiga, Habarugira, and other persons to destroy the church in order to kill the Tutsi refugees. It is irrelevant that Athanase Seromba did not personally drive the bulldozer that destroyed the church. What is important is that Athanase Seromba fully exercised his influence over the bulldozer driver who, as the Trial Chamber’s findings demonstrate, accepted Athanase Seromba as the only authority, and whose directions he followed. The Appeals Chamber finds, Judge Liu dissenting, that Athanase Seromba’s acts, which cannot be adequately described by any other mode of liability pursuant to Article 6(1) of the Statute than “committing”, indeed were as much as an integral part of the crime of genocide as the killings of the Tutsi refugees.[1] Athanase Seromba was not merely an aider and abetter but became a principal perpetrator in the crime itself.

172. The Appeals Chamber observes, Judge Liu dissenting, that Athanase Seromba’s conduct was not limited to giving practical assistance, encouragement or moral support to the principal perpetrators of the crime, which would merely constitute the actus reus of aiding and abetting.[2] Quite the contrary, the findings of the Trial Chamber allow for only one conclusion, namely, that Athanase Seromba was a principal perpetrator in the killing of the refugees in Nyange church. The Appeals Chamber therefore finds that Athanase Seromba’s conduct can only be characterized as “committing” these crimes.

173. The Appeals Chamber recalls that an accused evinces the requisite mens rea for committing a crime when he acts with an intent to commit that crime.[3] This stands in contrast to the mens rea for aiding and abetting, which “is indicated by the requirement that the act of participation be performed with knowledge that it will assist the principal in the commission of the criminal act.”[4]

Also see infra on Judge Liu’s Dissenting Opinion.

[1] Cf. Gacumbitsi Appeal Judgement, para. 60.

[2] Blaškić Appeal Judgement, para. 46.

[3] Blagoje Simić et al. Trial Judgement, para. 137.

[4] Kayishema and Ruzindana Appeal Judgement, para. 186.

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Appeal Judgement - 12.03.2008 SEROMBA Athanase
(ICTR-2001-66-A)

46. The Appeals Chamber recalls that “serious bodily or mental harm” is not defined in the Statute,[1] and that the Appeals Chamber has not squarely addressed the definition of such harm. The quintessential examples of serious bodily harm are torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs.[2] Relatedly, serious mental harm includes “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.[3] Indeed, nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings.[4] To support a conviction for genocide, the bodily harm or the mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.[5]

47. The Appeals Chamber notes that the Trial Chamber did not clearly differentiate the actus reus of the underlying crime and the actus reus for aiding and abetting that crime. The Trial Chamber suggested that “[Athanase] Seromba’s refusal to allow the refugees to get food from the banana plantation substantially contributed to their physical weakening”[6] and that “[Athanase] Seromba’s order prohibiting refugees from getting food from the banana plantation, his refusal to celebrate mass in Nyange church, and his decision to expel employees and Tutsi refugees” facilitated their “living in a constant state of anxiety”.[7] Beyond these vague statements, the only other reference in the Trial Judgement to the underlying acts that caused serious bodily or mental harm is the conclusory statement that “it is beyond dispute that during the events of April 1994 in Nyange church, the attackers and other Interahamwe militiamen [...] caused serious bodily or mental harm to [the Tutsi refugees] on ethnic grounds, with the intent to destroy them, in whole or in part, as an ethnic group.”[8]

48. The Trial Chamber failed to define the underlying crime to which Athanase Seromba’s actions supposedly contributed. It also had a duty to marshal evidence regarding the existence of the underlying crime that caused serious bodily or mental harm, and its parsimonious statements fail to do so. In the absence of such evidence, the Appeals Chamber cannot equate nebulous invocations of “weakening” and “anxiety” with the heinous crimes that obviously constitute serious bodily or mental harm, such as rape and torture.

49. The Appeals Chamber finds that the Trial Chamber failed to establish with sufficient precision the crime of “causing serious bodily or mental harm”; therefore, Athanase Seromba’s conviction for aiding and abetting such a crime cannot stand. Accordingly, the Appeals Chamber grants this sub-ground of appeal and reverses the finding of the Trial Chamber that Athanase Seromba aided and abetted the causing of serious bodily or mental harm.

[1] Semanza Trial Judgement, para. 320.

[2] Semanza Trial Judgement, para. 320, referring to Kayishema and Ruzindana Trial Judgement, para. 109; Ntagerura et al. Trial Judgement, para. 664.

[3] Kajelijeli Trial Judgement, para. 815, referring to Kayishema and Ruzindana Trial Judgement, para. 110; Semanza Trial Judgement, para. 321.

[4] See, e.g., Muhimana Trial Judgement, paras. 512, 513, 519; Gacumbitsi Trial Judgement, paras. 292, 293; Ntakirutimana Trial Judgement, paras. 788-790; Musema Trial Judgement, paras. 889, 890.

[5] Kajelijeli Trial Judgement, para. 184; Krajišnik Trial Judgement, para. 862; Report of the International Law Commission on the Work of its Forty-Eighth Session 6 May - 26 July 1996, UN GAOR International Law Commission, 51st Sess., Supp. No. 10, p. 91, UN Doc. A/51/10 (1996). In relation to crimes against humanity, a Trial Chamber has refused to find that the removal of a church roof, which deprived Tutsis of an effective hiding place from those who sought to kill them, constituted the causing of serious bodily or mental harm because “the Chamber [was] not satisfied that this act amount[ed] to an act of similar seriousness to other enumerated acts in the Article”. Ntakirutimana Trial Judgement, para. 855.

[6] Trial Judgement, para. 327.

[7] Trial Judgement, para. 326.

[8] Trial Judgement, para. 340.

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ICTR Statute Article 2(2)(b) ICTY Statute Article 4(2)(b)
Notion(s) Filing Case
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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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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