Length of provisional release
| Notion(s) | Filing | Case |
|---|---|---|
| Consolidated Decision on Provisional Release - 15.05.2008 |
POPOVIĆ et al. (IT-05-88-AR65.4, IT-05-88-AR65.5, IT-05-88-AR65.6) |
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18. The Appeals Chamber recalls, however, that even when provisional release is found to be justified on humanitarian grounds, the length of the release should be proportional to the circumstances – for example, the need to visit a seriously ill family member in the hospital would justify provisional release for a sufficient time to visit the family member.[1] Accordingly, a Trial Chamber must address the proportionality between the nature and weight of the circumstances of a particular case and the duration of provisional release requested.[2] The Appeals Chamber considers that the Trial Chamber engaged in such an evaluation when it held that “[t]aking into account the relevant factors, the Trial Chamber decides to allow provisional release for a limited duration of seven days only (including travel time)”.[3] However, the Appeals Chamber notes that the Trial Chamber’s conclusion erroneously included time to allow Borovčanin to “attend to his personal matters”.[4] The Trial Chamber thus failed to limit the length of the visit to the humanitarian circumstances justifying the visit. In light of the above, the Appeals Chamber holds, Judge Güney dissenting, that a Trial Chamber properly exercising its discretion would have granted the custodial visit for a shorter period – namely, for a period no longer than the time necessary for Borovčanin to visit his ailing father. See also, para. 32. [1] See Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.9, Decision on “Prosecution’s Appeal from Decision relative à la Demande de mise en liberté proviso ire de l’Accusé Stojić Dated 8 April 2008”, 29 April 2008 (“Stojić Decision”), para. 16. See also Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.8, Decision on “Prosecution’s Appeal from Décision relative à la Demande de mise en liberté proviso ire de l’Accusé Prlić Dated 7 April 2008”, 25 April 2008 (“Prlić Decision”), para. 16; Petković Decision [Prosecutor v. Prlić et al., Case No. IT-04-74-AR65.8, Decision on “Prosecution’s Appeal from Décision relative à la Demande de mise en liberté provisoire de l’Accusé Petković Dated 31 March 2008”, 21 April 2008], para. 17; Prosecutor v. Hadžihasanović and Amir Kubura, Case No. IT-01-47-T, Decision on Motions by Enver Hadžihasanović and Amir Kubura for Provisional Release, 19 July 2005, pp. 7-9. In this decision, which was rendered between the close of the Defence case and the delivery of the judgement, Trial Chamber II considered that: “at this stage of the trial there is an increased risk of flight, particularly after the Proseuction requested a finding of guilt on all charges”; “the Prosecution’s final arguments and the sentences requested therein […] may exert considerable psychological pressure on the Accused”; “other Chambers of the Tribunal held that the proximity of a prospective judgement date may weigh against a decision to release”; “the Chamber shares this view and holds that release for the entire period preceding the entry of judgement would be inappropriate and would create too great a risk of flight”; ad “a period of 12 days for each of the Accused significantly reduces the risk of flight as opposed to a longer period”; Prosecutor v. Milutinovic et al., Case No. IT-07-85-T, Decision on Lazarević Motion for Temporary Provisional Release, 15 April 2008, paras 16 and 18, in which Trial Chamber II considered that “[b]ased upon the compelling humanitarian considerations set forth in the Motion […] it would be appropriate for the Accused to be provisionally released for a limited duration,” specifically, seven days. [2] See Stojić Decision, para. 20. See also Prlić Decision, para. 18; Petković Decision, para. 17. [3] Impugned Borovčanin Decision, para. 31. [4] Impugned Borovčanin Decision, para. 31. Specifically, the Trial Chamber instructed that “during his stay in Republika Sprska he must spend every night in the local detention facility, while being allowed to visit his father or attend to personal matters during the day-time.” |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 25.04.2008 |
PRLIĆ et al. (IT-04-74-AR65.8) |
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18. […] The Appeals Chamber reiterates that decisions on motions for provisional release are fact intensive; cases are considered on an individual basis in light of the particular circumstances of the individual accused. The number of factors that a Trial Chamber is to consider does not only influence the decision of whether to grant or deny a motion for provisional release, but also impacts on the assessment of the duration of the period of provisional release, if any. Thus, inter alia, a Trial Chamber is to address the proportionality between the nature and weight of the circumstances justifying provisional release on humanitarian grounds, and the duration of provisional release.[1] 19. The Appeals Chamber notes that the Trial Chamber did not engage in such an evaluation. Absent such an evaluation, the Appeals Chamber is not satisfied that the justifications offered by the Accused warrant the length of provisional release granted by the Trial Chamber. Rather, a Trial Chamber properly exercising its discretion would have granted provisional release for a period no longer than the time necessary for the Accused to visit his ailing family members. [1] Petković Decision, para. 17. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |
| Notion(s) | Filing | Case |
| Decision on Provisional Release - 15.12.2011 |
PRLIĆ et al. (IT-04-74-AR65.26) |
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Regarding the Prosecution’s allegation that the possibility to apply for an extension of Prlić’s provisional release provided by the Impugned Decision would grant him effectively an indefinite release and would therefore be a disproportionate measure, the Appeals Chamber held that: 16. [It] fails to discern how the procedure set up by the Trial Chamber can be considered an indefinite release of Prlić, who is required to submit a new motion for provisional release in the event that he wished to extend his release beyond the three-month period.[1] […] [T]he Trial Chamber […] will assess once more, depending upon the documentation presented by Prlić and the arguments of the Prosecution, whether the criteria of Rule 65 (B) of the Rules have been fulfilled and whether provisional release should be extended for Prlić and on what conditions.[2] [1] Impugned Decision, para. 43. [2] Impugned Decision, para. 43. |
ICTR Rule Rule 65 ICTY Rule Rule 65 | |