Length of pre-trial detention

Notion(s) Filing Case
Decision on Provisional Release - 09.03.2006 HARADINAJ et al.

The Appellant was arguing that the Trial Chamber erred in law in taking into account the length of his pre-trial detention to determine whether, under the terms of Rule 65(B) of the Rules, he would appear for trial if released. The Appeals Chamber held the following:

23. Undisputedly, a Trial Chamber may determine whether the particular circumstances of a case[1] warrant that provisional release be granted to an accused based on the actual or likely excessive length of his pre-trial detention. However, such determination is an additional discretionary consideration which has no bearing upon the assessment as to whether an accused will appear for trial if released.[2] Therefore, the Trial Chamber erred by taking this factor into account in determining that the Appellant had not satisfied the first requirement of Rule 65(B). For the foregoing reasons this ground of appeals is allowed.

[1] See Prosecutor v. Mile Mrkšić, Case No.: IT-9513/1-PT, Decision on Mile Mrkšić’s Application for Provisional Release, 24 July 2002 (“Mrkšić Trial Chamber’s Decision”), para. 49.

[2] See Prosecutor v. Enver Hadžihasonivić, Mehmed Alagić and Amir Kubura, Case No.: IT-01-47-PT, Decision Granting Provisional Release to Enver Hadžihasonivić, 19 December 2001, para. 16; Mrkšić Trial Chamber’s Decision, para. 47; Prosecutor v. Nikola [ainović and Dragoljub Ojdanić, Case No.:IT-99-37-PT, Decision on Applications of Nikola Šainović and Dragoljub Ojdanić for Provisional Release, 26 June 2002, para. 17; Prosecutor v. Momčilo Krajišnik, Case No.: IT-00-39&40-PT, Decision on Momčilo Krajišnik’s Notice of Motion for Provisional Release, 8 October 2001, para. 22.

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ICTR Rule Rule 65 ICTY Rule Rule 65