38. Under Sub-rule 101(D)[1] the Appellant is entitled to credit for the time spent in custody in the Federal Republic of Germany only for the period pending his surrender to the International Tribunal.  However, the Appeals Chamber recognises that the criminal proceedings against the Appellant in the Federal Republic of Germany emanated from substantially the same criminal conduct as that for which he now stands convicted at the International Tribunal.  Hence, fairness requires that account be taken of the period the Appellant spent in custody in the Federal Republic of Germany prior to the issuance of the Tribunal’s formal request for deferral.

3328. The Appeals Chamber understands Stojić, Petković,  Ćorić, and Pušić to argue that the Trial Chamber misinterpreted Rule 101(C) of the Rules, to the extent that they contend that provisional release periods – under, allegedly, restrictive conditions amounting to a deprivation of liberty, including home confinement – should be included in calculations of time spent in detention.[…].

[…]

3332. With regard to ICTY case-law, the Appeals Chamber notes that Stojić, Petković,  Ćorić, and Pušić rely on, inter alia, the Blaškić Decision on Rule 64 [Prosecutor v. Tihomir Blaškić , Case No. IT-95-14-T, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, 3 April 1996].[1] The Appeals Chamber, Judge Liu dissenting, observes that the Blaškić case is distinguishable from the situations of Stojić, Petković, Ćorić, and Pušić, in that Blaškić was not provisionally released pursuant to Rule 65 of the Rules, but detained at a place other than the UNDU in accordance with Rule 64 of the Rules.[2] In this context, the President of the Tribunal stated that house arrest – within the meaning of Rule 64 of the Rules – is a form of detention “for all purposes including […] the right to have the period spent under house arrest taken into account for determining the penalty”.[3] The Appeals Chamber considers that it is clear that such form of detention amounts to “detention in custody”, thus credit was given pursuant to Rule 101(C) of the Rules.[4]

3333. The Appeals Chamber observes that in the Miroslav Tadić case, the President stated that the “conditions of provisional release, however restrictive, ₣…ğ cannot give rise to an expectation that the time spent on provisional release would be later considered as time served”.[5] In the Milan Simić case, the trial chamber also found that no credit should be given for time spent on provisional release in light of the fact that Simić’s provisional release did not amount to “detention in custody” given that, albeit with certain limitations, he was allowed to leave his house.[6]

3334. The Appeals Chamber further observes that in the Popović et al. case, the trial chamber stated that, pursuant to Rule 101(C) of the Rules, Drago Nikolić, Ljubomir Borovčanin, and Vinko Pandurević were entitled to credit for the period, including the days when they were on “custodial release”,[7] and were subject to stringent conditions – i.e. the accused remained in constant custody of a designated state authority and were required to, inter alia, spend all nights at a detention facility.[8] That trial chamber’s approach indicates that such release amounted to “detention in custody” pursuant to Rule 101(C) of the Rules.[9] Conversely, but in the same case, when it came to Radivoje Miletić and Milan Gvero who were granted provisional release several times under such conditions as confinement in a designated geographic area, surrender of their passports, regular reporting to designated police stations, and prohibition of contact with individuals or the media,[10] the trial chamber did not give credit for the period of provisional release.[11]

3335. The Appeals Chamber, Judge Liu dissenting, thus considers that the Tribunal’s practice shows that when an accused has been provisionally released, no credit will be given for the time spent on provisional release and that custodial release ordered in the Popović et al. case is distinct from provisional release. Taking into account the Tribunal’s practice, the Appeals Chamber now turns to Stojić’s, Petković’s, Ćorić’s, and Pušić’s arguments on restrictions, including home confinement, during their provisional releases.

3336. The Appeals Chamber observes that the conditions imposed upon Stojić, Petković, Ćorić, and Pušić included permanent or partial surveillance by the Croatian authorities, confinement in a designated geographic area, surrender of their passports, regular reporting to designated police stations, prohibition of contact with individuals or the media, and situation reporting.[12] It further observes that in some instances, in view of the circumstances of the case and the advanced stage of the proceedings, the Trial Chamber: (1) imposed on Stojić and Petković home confinement;[13] and (2) imposed on Ćorić and Pušić such conditions as home confinement or confinement in designated places when they were provisionally released for medical treatment or confidential reasons that justified Pušić’s release.[14] It observes that the Trial Chamber deemed that all of these conditions were necessary in order to ensure their compliance with the requirements under Rule 65 of the Rules, including their appearance at trial.[15] Taking into account these particular circumstances and bearing in mind the Tribunal’s practice discussed above, the Appeals Chamber, Judge Liu dissenting in part, considers that the conditions imposed on Stojić, Petković, Ćorić, and Pušić fall short of being tantamount to detention in custody. […]