Prerequisites for provisional release

Notion(s) Filing Case
Decision on Provisional Release - 17.10.2005 STANIŠIĆ Mićo

7. The Appeals Chamber considers that under Rule 65(A), once detained, the accused may not be released except upon an order of a Trial Chamber.  Pursuant to Rule 65(B), such an order may be issued only after the Trial Chamber: (1) gives the host country and the State to which the accused seeks to be released the opportunity to be heard;[1] and (2) is satisfied that the a) accused will appear for trial if released; and b) will not pose a danger to any victim, witness or other person. Where a Trial Chamber finds that one of these two conditions has not been met, it need not consider the other and must deny provisional release.[2]

[1] The Appeals Chamber notes that this requirement does not apply where the Trial Chamber denies provisional release. See Prosecutor v. Todović, Case No. IT-97-25/1-AR65.1, Decision on Provisional Release, 6 October 2005, para. 29; Prosecutor v. Nsengimana, Case No. ICTR-2001-69-AR65, Decision on Provisional Release, 23 August 2005, p. 4.

[2] See, e.g., Boškoski Decision, para. 24 (noting that because the Trial Chamber found that the Appellant’s release would pose a significant risk of flight, it was not necessary for the Trial Chamber to consider whether the Appellant would also pose a danger to others in denying him provisional release); cf. Prosecutor v. Kordić & Čerkez, Case No. IT-95-14/2-A, Decision on Dario Kordić’s Request for Provisional Release, 19 April 2004, para. 10.

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ICTR Rule Rule 65 ICTY Rule Rule 65