P. 4: FINDING also that, had the procedure of the Detention Rules been followed, the Appeals Chamber would only have jurisdiction to review a Registrar’s or President’s decision if the issues in question were closely related to the fairness of the proceedings on appeal;[1]

P. 3: NOTING that, according to Rules 82 and 83 of the Detention Rules, where a detainee is not satisfied with the conditions of his or her detention, he or she is entitled to “make a complaint to the Commanding Officer or his representative at any time” and, in case of an unsatisfactory response, to “make a written complaint, without censorship, to the Registrar, who shall forward it to the President”;

P. 4: FINDING that the complaint procedure for the detention conditions has not been duly followed by the Appellant and that he has not yet exhausted the remedies made available to him by the Detention Rules;

Pp. 4-5: CONSIDERING that medical, psychological, and psychiatric examinations pursuant to Rule 74bis are typically ordered to establish the accused’s fitness to stay in custody, his ability to stand trial,[1] his mental state at the time of the acts charged, as well as sentencing considerations such as ability to be reintegrated in society;[2]

P. 5: FINDING that the Appellant has not demonstrated that any of these concerns are implicated, and specifically has not demonstrated any threat to the fairness of the proceedings on appeal;

P. 5: FINDING therefore, that the Appellant has not demonstrated the need for an independent psychological examination under Rule 74bis;

P. 5: FINDING that, in these circumstances and at this stage, the Appeals Chamber sees no reason to order a psychological or psychiatric examination of the Appellant pursuant to Rule 74bis of the Rules

21.  Rule 6(D) of the Rules provides that amendments to the Rules “shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case”.  The Appeal Chamber considers that the same principle applies to changes in the procedural requirements set out by the Tribunal’s practice directions.  […]

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.

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]

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]  

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]  [….]

On 20 June 2005 the Appeals Chamber instructed the Applicant, should he deem it necessary, to file additional submissions no later than twenty days after the date of assignment of Ms. Geraghty as Counsel (p. 2).[1] Counsel was assigned on 20 July 2005 (p. 2). On 17 August 2005 the Applicant acting pro se requested the admission of new evidence in order to allege a new fact (p. 3).[2] On 18 August 2005 the Defence requested an extension of time, inter alia, to file additional submissions (p. 3).[3] The Appeals Chamber found that in accordance with the Rules and the Decision of 20 June 2005, the final date for filing the additional submissions was 10 August 2005 and that, contrary to the Decision of 20 June 2005, Counsel failed to file the additional submissions relating to the new facts alleged by the Applicant within the prescribed time-frame (p. 7). The Appeals Chamber nevertheless held as follows (pp. 8, 9):

CONSIDERING that the arguments raised by the Defence in its belated request for extension of time[4] in the Defence Motion for filing additional submissions do not constitute good cause pursuant to Rule 116 of the Rules;

CONSIDERING, however, that Counsel’s failure to file the additional submissions within the time limit, ought not to be imputed to the Applicant, and that under the present circumstances it is in the interests of justice, that additional time be granted to file any additional submissions;

[…]

CONSIDERING […] that Applicant’s pro se filing on 17 August 2005 identifying a “new fact” should in the interest of justice be treated as timely filed, since the Applicant is not at fault for his Counsel’s failure to assist him properly in his filing or Counsel’s misunderstanding of the proper deadlines and because the Applicant has stated that he was unable to establish the existence of this new fact when filing his original Requests for Review;[5]

167. The Trial Chamber correctly[1] stated that an alibi “does not constitute a defence in its proper sense”.[2] In general, a defence comprises grounds excluding criminal responsibility although the accused has fulfilled the legal elements of a criminal offence. An alibi, however, is nothing more than the denial of the accused’s presence during the commission of a criminal act. In that sense, an alibi differs from a defence in the above-mentioned sense in one crucial aspect. In the case of a defence, the criminal conduct has already been established and is not necessarily disputed by the accused who argues that due to specific circumstances he or she is not criminally responsible, e.g. due to a situation of duress or intoxication. In an alibi situation, however, the accused “is denying that he was in a position to commit the crimes with which he is charged because he was elsewhere than at the scene of the crime at the time of its commission”.[3] An alibi, in contrast to a defence, is intended to raise reasonable doubt about the presence of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution