20. The Appeals Chamber finds that the Trial Chamber committed a discernible error of fact in concluding that sufficiently compelling humanitarian reasons for Praljak’s provisional release existed on the basis that his mental health was affected by the long time spent in detention and the foreseeable length of the trial. The Appeals Chamber considers that, in the absence of any precise medical information or evidence provided with respect to Praljak’s state of health, it was unreasonable for the Trial Chamber to come to such conclusion. Whereas the Appeals Chamber has held that “under certain circumstances, written expert reports and other relevant personal conditions might not necessarily be required”,[1] in the present situation, no reasonable trier of fact could conclude that factors like prolonged detention during the trial proceedings and the foreseeable length of the trial – common to most of the accused appearing before the Tribunal – amounted to compelling humanitarian circumstances. In order to conclude what precise impact, if any, those factors have had on Praljak’s mental health, the Trial Chamber should have assessed objective medical evidence. The Appeals Chamber thus finds that this error constitutes an abuse of discretion.

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]

16. Concerning whether the humanitarian reasons identified by the Accused were sufficient to justify provisional release, the Appeals Chamber reiterates that provisional release should only be granted at a late stage of the proceedings, and in particular after the close of the Prosecution case, when sufficiently compelling humanitarian reasons exist to justify the release and, 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- 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.[1]

17. […] The Appeals Chamber […] finds that the Trial Chamber did not abuse its discretion in considering that the gravity of the illness suffered by the Accused’s family members justify the provisional release of the Accused for a short period of time.

12. […] Rule 65(B) of the Rules does not mandate humanitarian justification for provisional release. Unlike for convicted persons seeking provisional release under Rule 65(I), there is no requirement of additional “special circumstances”[1] justifying release under Rule 65(B) because the burden borne by a duly convicted person after full evaluation and adjudication is necessarily distinct from the burden borne by an individual who is still presumed innocent. Of course, if the two requirements of Rule 65(B) are met, the existence of humanitarian reasons warranting release can be a salient and relevant factor in assessing whether to exercise discretion to grant provisional release. In this respect, “the weight attached to humanitarian reasons as justification for provisional release will differ from one defendant to another depending upon all the circumstances of a particular case”.[2]

15. Because Rule 65(B) of the Rules does not require “sufficiently compelling” humanitarian reasons for provisional release, this Bench understands the Prlić Decision of 11 March 2008[3] to have ruled that it is only when a Trial Chamber, having considered all the circumstances of the case and the impact of the significant change of circumstances constituted by the 98bis decision, cannot exclude the existence of flight risk or danger, that “sufficiently compelling” humanitarian reasons, coupled with necessary and sufficient measures to alleviate any flight risk or danger, can constitute a basis for resolving uncertainty and doubt in favour of provisional release. Indeed, in the Prlić Decision of 11 March 2008, the Appeals Chamber asked for the existence of sufficiently compelling humanitarian reasons after having found that the Trial Chamber did not evaluate the impact of its 98bis Decision pursuant to the two requirements of Rule 65(B) of the Rules, thus amounting to a lack of clarity as to the existence of a flight risk or danger. Only then did the Appeals Chamber, faced with a situation in which such a risk or danger could not be excluded, require sufficiently compelling humanitarian reasons. This is not the situation in the present instance. As mentioned above, the Trial Chamber stated that its 98bis Decision “may not be considered as a 'pre-judgement' increasing the flight risk of the Accused”[4] and seriously tightened the conditions of Pušić’s provisional release,[5] thus alleviating any risk of flight or danger to victims, witnesses or other persons. “Sufficiently compelling” humanitarian reasons are thus not required here. […]