The Appeals Chamber considered whether there was discernible error in the Trial Chamber’s conclusion that the progress of the trial constituted changed circumstances that made flight risk more likely than it had been at the pre-trial stage (where the Defendants were granted release).  It held in paragraph 15:

The Trial Chamber is the body best positioned to assess whether circumstances at trial have materially affected the possibility that accused will not return from provisional release.  The Appeals Chamber finds it reasonable for the Trial Chamber to have concluded that the Defendants’ incentives to flee increased over the course of a trial as they heard first-hand the evidence against them.[1]  This is not to say this is the only reasonable conclusion.  In some cases, the incentives to flee might decrease over time;[2] in other cases, these incentives might stay the same; and in still other cases these incentives might not shift enough to affect materially the approach taken in earlier provisional release decisions regarding the same accused.   These are matters that are best assessed by the Trial Chamber that is hearing the case, and the Appeals Chamber will not reverse the Trial Chamber’s considered judgement or decision absent a discernible error.  Here, while the Trial Chamber could have done a more complete job in explaining how the proceedings thus far have increased the Defendants’ incentives to flee, it provided enough reasoning to justify its conclusion.

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. […]

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.