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.

The Appeals Chamber discussed for the first time whether Rule 65 applies to provisional release requests made during the course of a trial or instead only to pre-trial and pre-appeal provisional release requests.  In paragraphs 9-10, it rejected the Trial Chamber’s conclusion that Rule 65 applied only to pre-trial (and pre-appeal) proceedings:

Moreover, the Appeals Chamber disagrees with the Trial Chamber’s conclusion that the language “will appear for trial” in Rule 65(B) “ma[kes] it clear that the application of the Rule is confined to the provisional release of an accused whose trial has not yet begun”.[1]  First, the language of the Rule does not read “will appear for the beginning of trial” but rather reads “will appear for trial” – language which could refer to any stage of the trial.  Second, the purpose behind Rule 65(B) is best fulfilled if its language is read broadly.  Its goal of permitting provisional release only if the Trial Chamber is satisfied that the accused will return and will do no harm is not logically limited to the pre-trial stage.  Rather, this goal is equally important at other stages of the proceedings, as Rule 65(I) demonstrates in identifying the same criteria for the pre-appeal stage.  Finally, the Appeals Chamber notes that the practice of Trial Chambers in the past supports the view that Rule 65(B) is best read as applying to all provisional release applications before the Trial Chamber.[2]

Accordingly, the Appeals Chamber holds that Rule 65 applies to provisional release issues arising during the course of trial, just as it applies during pre-trial and pre-appeal proceedings.

The Appeals Chamber found that the presumption of innocence does not play a determinative role in provisional release decisions.  In paragraph 12, it held:

The Appeals Chamber finds no error in the Trial Chamber’s reasoning.  The Trial Chamber was correct in concluding that the presumption of innocence is not “determinative”, since otherwise, as the Trial Chamber observed, “no accused would ever be detained, as all are presumed innocent.”[1]  Contrary to the suggestion of the Defendants, this Tribunal’s consistent jurisprudence does not treat the presumption of innocence as determinative in assessing whether provisional release should be granted.  Rather, to the extent that this Tribunal has identified determinative factors, it has pointed to those specified in Rule 65(B).[2]

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.

The Prosecution was arguing that the Impugned Decision was not based on the established criterion of “compelling humanitarian reasons” but was simply a decision to grant provisional release during the judicial recess. The Appeals Chamber held:

10. The Appeals Chamber recalls its observation 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”.[1] The Appeals Chamber notes that the Trial Chamber correctly stated the applicable law, including the criterion of sufficiently compelling humanitarian reasons, and proceeded to apply it to the circumstances of the case before it.[2] The Trial Chamber noted the fact that it would adjourn for judicial recess during the period for which Praljak requested to be released only after it identified the criteria that it was required to establish in order to grant the Request.[3] While the Appeals Chamber agrees that there is no “recess leave”, it considers that the judicial activity calendar may be a relevant factor when assessing a request for provisional release, notably to avoid unwarranted disruptions or undue delays in the proceedings.[4] Consequently, the Appeals Chamber finds that the Prosecution has failed to show an error of law in the Impugned Decision in this regard.

21. The Appeals Chamber further finds that the Trial Chamber committed a discernible error in considering that the justifications for release put forth by the Accused might be regarded as humanitarian grounds capable of justifying the granting of a short period of provisional release in the cases of Ćorić,[1] Praljak[2] and Petković.[3] In the cases of Stojić and Prlić the Trial Chamber considered Prlić’s request to visit his ailing father and brother and Stojić’s request to visit his ailing spouse, brother and parents, to be requests based on humanitarian grounds without offering any indication of how much weight it ascribed thereto.[4] Nonetheless, in all cases, the Appeals Chamber finds that the various justifications for release offered by the Accused are not sufficiently compelling, particularly in light of the 98bis Ruling, to warrant the exercise of the Trial Chamber’s discretion in favour of granting the Accused provisional release. The Appeals Chamber accordingly finds that the circumstances of this case indicate that a Trial Chamber properly exercising its discretion should have denied provisional release.

Petković argued that the only avenue for the Prosecution to seek a stay of the Trial Chamber’s decisions on provisional release was under Rule 65(E) of the Rules, which required the Prosecution to file its application for a stay of those decisions at the time of its consolidated response to the initial applications for provisional release. In this case, the Prosecution had not done so, but had filed a request for a stay directly with the Appeals Chamber after the Trial Chamber’s decision had been issued. The Appeals Chamber ruled:

11. Contrary to Petković’s arguments, the case law of the International Tribunal supports the competence of the Appeals Chamber to consider the Prosecution’s request for a stay, despite its failure to comply with Rule 65(E) of the Rules.[1] Furthermore, the Appeals Chamber has also recognized in other cases that the preservation of the object of an appeal by the Prosecution against the provisional release of the accused constitutes “good cause” within the meaning of Rule 127(A)(ii) and (B) of the Rules.[2] In this case, the Appeals Chamber – by staying the Impugned Decisions – considered the need to preserve the object of the Appeal to be justified and accordingly used its inherent power to render what was an ancillary order in aid of the exercise of its appellate function.[3]

23.     […] A Chamber is required to give reasons for its finding on the facts which led to its conclusion but this does not mean that it has a duty to give a detailed analysis of each such factor.  In most applications for provisional release, it would be sufficient for a Chamber to state that the matters put forward by the applicant have not satisfied it that he will appear for trial, or that, if released, he will not pose a danger to any victim, witness or other person (as the case may be).  In the particular case, one or more of the particular matters put forward by the applicant will be of such a nature that, in the discharge of its duty to give reasons, the Chamber will be obliged to explain why it has not accepted one or more of the various matters as being sufficient to establish the relevant fact.  It is not possible to state in advance any specific test as when such an obligation will arise.  Each case will depend upon its own circumstances. […]

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]

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.

The Appeals Chamber was seized of a consolidated appeal by the Office of the Prosecutor against three decisions rendered by Trial Chamber II, in which a custodial visit was granted to Ljubomir Borovčanin and provisional release to Milan Gvero and Radivoje Miletić.[1] The Trial Chamber had ordered the Impugned Decision to be stayed in accordance with Rule 65(F) of the Rules, following the Prosecution’s submission that it intended to file an appeal should the Trial Chamber grant provisional release to the Accused. [2]

17. Turning to the sufficiency of the humanitarian grounds provided in support of Borovčanin’s motion, the Trial Chamber observed that Borovčanin requested both to see his ailing father and to address other personal matters.[3] In granting the visit, the Trial Chamber considered that Borovčanin’s father is elderly, has been sick for an extended period of time, and according to the medical report accompanying Borovčanin’s motion, is in critical condition.[4] The Trial Chamber surmised that under the circumstances, there could be few opportunities left for Borovčanin to see his father.[5] The Trial Chamber concluded that “the humanitarian grounds are sufficiently compelling” to justify “some form of provisional release.”[6] The Appeals Chamber, having considered the evidence before the Trial Chamber, finds that the Trial Chamber did not commit a discernible error in considering that the serious health condition of Borovčanin’s father justified his provisional release for a short duration.

See also, para. 31.

26. The Trial Chamber issued the Impugned Decision without giving the defence an opportunity to respond to the Prosecution’s application. The Appeals Chamber is sympathetic to the arguments of Stanišić that he was denied an opportunity to be heard by the Trial Chamber. It is not persuaded, however, that this denial caused such prejudice to him as to warrant overturning the Impugned Decision. The Appeals Chamber is not persuaded by any of the arguments he has presented on this appeal that the Trial Chamber erred in issuing the Impugned Decision.

27. The Appeals Chamber is also not convinced that the Trial Chamber erred in granting the Prosecution’s application for a stay based upon a repetition of arguments presented by the Prosecution in opposition to Stanišić’s application for provisional release. The argument of the Prosecution in its application for a stay was that the Trial Chamber erred in its consideration of the Prosecution’s arguments when granting provisional release to Stanišić and that the Prosecution intended to seek leave to appeal those alleged errors to the Appeals Chamber. The Appeals Chamber is satisfied that the intention to seek leave to appeal constitutes sufficient grounds for the Trial Chamber’s grant of the stay application.

28. The Appeals Chamber does not accept the argument of Stanišić that he had a legitimate expectation that the Prosecution would not request a stay due to its failure to indicate its intention to do so in its original response to the applications for provisional release. The Prosecution’s opposition to his provisional release was made clear to him by its response to his application, and he could have expected the Prosecution to seek, by any means necessary, to prevent his provisional release once the Trial Chamber had determined that his application should be granted.

The Appeals Chamber upheld the Trial Chamber’s finding that the humanitarian reasons identified by the Accused were sufficiently compelling to grant provisional release at a late stage of the proceedings. However, the Appeals Chamber considered that a proportion must exist between the nature and weight of the humanitarian grounds and the duration of provisional release. On this basis, the Appeals Chamber remanded the Impugned Decision to the Trial Chamber for a de novo adjudication of the duration of the provisional release granted to the Accused.

The Trial Chamber granted provisional release to Jadranko Prlić during the Defence case in December 2008, despite the fact that Prlić had met with a potential witness during previous releases in breach of the conditions imposed by the Trial Chamber. Such a breach, according to the Trial Chamber, warranted a sanction, but not denial of provisional release. The Prosecution requested the Appeals Chamber to quash the decision on the basis, inter alia, “that the Trial Chamber committed a discernible error in finding that Prlić’s unauthorised meeting with Witness Neven Tomić … was coincidental and that Prlić’s previous meetings with this witness did not violate the applicable terms of provisional release”.[1]  

In granting the Prosecution’s Appeal, the Appeals Chamber first reasoned that these meetings breached the conditions of the provisional release, and accordingly had bearing on his reliability.

8. Prlić met with Tomić while on provisional release despite the clear conditions imposed by the Trial Chamber not to meet with any potential witnesses.[2] […]

10. The Appeals Chamber […] finds that, considering the circumstances, including the positions of the two individuals during the indictment period[3] and their long-time acquaintance,[4] no reasonable trier of fact could have concluded that Prlić, even before [the submission of the list of witnesses by the Defence], was not aware that Tomić would be at least a potential witness […] The breach of the order puts into doubt the reliability of Prlić in abiding by the conditions of provisional release.

The Appeals Chamber further considered that the Trial Chamber is expected to take into account the influencing of witnesses under the criteria identified by Rule 65(B):

11. […] [T]he possibility that potential witnesses are unduly influenced in such circumstances […] is one of those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision under Rule 65(B) of the Rules.

10. […] [T]he Appeals Chamber recalls that the advanced stage of proceedings could have a prejudicial effect on victims and witnesses.[1] To this end, the Trial Chamber considered the potential effect that the release of a person accused of such serious crimes could have on victims, stating that “this is one of the reasons why it always ensured that provisional releases of the accused were accompanied by very strict security measures […]”. […] Such measures, in the opinion of the Trial Chamber, “should contribute to reducing the potential effect that the release of [Prlić] in the Republic of Croatia could have on victims and witnesses”.[2] […] [T]he Appeals Chamber cannot find in the present case that the Trial Chamber abused its discretion.

15. The Appeals Chamber does not accept the arguments of the accused that the Appeals Chamber was not competent to impose a stay. At the time of rendering its decision on the Prosecution’s application for a stay, the Prosecution’s application for leave to appeal the Trial Chamber’s grant of provisional release to the six accused was pending before the Appeals Chamber pursuant to Rule 65(D). In its decision, the Appeals Chamber clearly articulated that the decision to grant the Prosecution’s application for a stay was to preserve “the objective of the Prosecution’s appeal against the provisional release” of the accused.[1] Although the Appeals Chamber decision did not explicitly identify the Rules upon which it acted, the Rules clearly confer upon the Appeals Chamber the power to act as it did. Rule 107 confers upon the Appeals Chamber the competence to render any order or decision that could be rendered by a Trial Chamber. Read together with Rules 54, 64 and 65, Rule 107 empowers the Appeals Chamber to render a decision on an application for a stay filed before it. This is particularly so where the purpose of that decision is to preserve the objective of an appeal pending before it. The Appeals Chamber also rejects any argument that its power to render ancillary orders with respect to preserving the object of an appeal is restricted.

16. The Appeals Chamber also rejects the argument of the accused that by acting as it did it effectively denied the accused of a right to appeal. There is no basis in the Tribunal’s Statute or Rules for the accused’s contention that he has a right to appeal orders issued by the Appeals Chamber in aid of the exercise of its appellate function.

17. The Appeals Chamber first considers the Prosecution’s arguments with regard to the Accused’s senior position in Republika Srpska in 1992. The Appeals Chamber recalls its previous holding that “the weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position he held prior to his arrest.”[1] The rationale behind taking into consideration an accused’s prior position is that he or she may possess very valuable information on a government providing a guarantee that could be disclosed to the International Tribunal.[2] This would serve as a disincentive for a government to enforce its guarantee to arrest an accused after provisional release, if needed, to stand trial.[3]

19. The Appeals Chamber finds that the Trial Chamber erred in its conclusion that it need not weigh the Accused’s senior position prior to his transfer because there was no information before it suggesting that the Accused held a position in the Republic of Serbia, the government providing the guarantee and the country to which he was to be provisionally released. The fundamental question before the Trial Chamber is not whether the Accused held a position in the same government as that providing the guarantee.[4] Rather, it is to consider “what would occur if the relevant authority were obliged under its guarantee to arrest the accused person seeking provisional release”[5] in light of the Accused’s former position, regardless of where it was held. Thus, the Trial Chamber is simply to consider whether the evidence suggests that an accused, by virtue of a prior senior position, may have any information that would provide a disincentive for the State authority providing a guarantee on behalf of the accused to enforce that guarantee.[6]

8. The Appeals Chamber further considers that in rendering a decision on provisional release under the requirements of Rule 65(B), a Trial Chamber is required to provide a reasoned opinion.[1] Thereby, it is obliged “to indicate all those relevant factors which a reasonable Trial Chamber would have been expected to take into account before coming to a decision.”[2] What exactly constitute the relevant factors to be considered and the weight to be given to them depend upon the particular circumstances of each case.[3] This is due to the fact that “[d]ecisions on motions for provisional release are fact intensive and cases are considered on an individual basis . . . in light of the particular circumstances of the individual accused.”[4] The Trial Chamber is required to assess these circumstances not only as they exist at the time when it reaches its decision on provisional release but also, as much as can be foreseen, at the time the case is due for trial and the accused is expected to return to the International Tribunal.[5]  

3. Pursuant to Rule 65(I) of the Rules, a convicted person may bring an application seeking provisional release for a fixed period. By virtue of Rule 107 of the Rules, the whole of Rule 65 of the Rules applies mutatis mutandis to applications brought before the Appeals Chamber under this provision.[1] Rule 65(I) of the Rules thus provides that the Appeals Chamber may grant provisional release if it is satisfied that (i) the convicted person, if released, will either appear at the hearing of the appeal or will surrender into detention at the conclusion of the fixed period, as the case may be; (ii) the convicted person, if released, will not pose a danger to any victim, witness or other person, and; (iii) special circumstances exist warranting such release. These requirements must be considered cumulatively.[2] The Appeals Chamber recalls that “whether an applicant satisfies these requirements is to be determined on a balance of probabilities, and the fact that an individual has already been sentenced is a matter to be taken into account by the Appeals Chamber when balancing the probabilities.”[3]

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.

(i)   Being the only woman detained at the UNDU

11. The Appeals Chamber notes Rašić’s submission that, as the only female detainee at the UNDU, “[h]er detention is consequently a form of quasi-solitary confinement which, though not intended as punitive, threatens to substantially impact her well-being”, and that “[t]his is true particularly in the context of her ongoing psychological condition.”[1] The Appeals Chamber further notes that, in its Sentencing Judgement, the Trial Chamber considered that the fact that Rašić was the only female detainee at the UNDU constituted “special circumstances”.[2] However, the Trial Chamber’s findings in this respect were aimed solely at establishing mitigating factors in sentencing, and supported its decision to consider in mitigation her “good behaviour in detention”.[3] In the Appeals Chamber’s view, the fact that Rašić is the only woman detained at the UNDU does not constitute “special circumstances” pursuant to Rule 65(I)(iii) of the Rules.

(ii)   Serving the entirety of a custodial portion of a sentence

12. However, the Appeals Chamber recalls that, as of 16 March 2012, Rašić has served the entirety of the custodial portion of her sentence. She was therefore eligible for release on 16 March 2012, were it not for the pending appeal,[4] In the Appeals Chamber’s view, this constitutes a special circumstance that, when assessed in conjunction with Rašić’s fulfilment of the other requirements of Rule 65(I) of the Rules, warrants granting her provisional release. The jurisprudence of the Tribunal supports this conclusion,[5] and the fact that contempt proceedings are governed by an expedited regime does not militate against granting provisional release where circumstances warrant it. As such, the Appeals Chamber finds that special circumstances warranting Rašić’s provisional release have been established.

2.         Paras 64-76:  the Appeals Chamber recognised that the delegation of authority to non-judicial entities is a necessary function of the Tribunal (paras. 64-65).  It identified the principles allowing delegation to non-judicial authorities as based in Tribunal-related Security Council Resolutions (para. 66), the inherent power of the Tribunal (para. 67) and the Statute of the Tribunal (paras 68-75).   

3.         Paras 76-80:  noting that the Statute and the Rules only discuss delegation to States, the Appeals Chamber addressed whether the Tribunal could delegate authority to UNMIK, a              non-State entity (para. 76).  The Appeals Chamber found: “In sum, there is nothing in UNMIK’s make-up or character that would prevent the Tribunal from delegating power to it, but the lack of explicit authorization suggests that the Tribunal should be cautious in such delegation and look at each case on the merits.” (para. 80).

4.         Paras 81-92:  the Appeals Chamber then addressed whether the Tribunal could delegate to UNMIK the specific authority to vary the conditions of the Accused’s provisional release pertaining to participation in political activities.  The Appeals Chamber considered four factors and determined that such delegation is permissible:

First, the decision-making entrusted to UNMIK is not central to the judicial process. Second, UNMIK does not have absolute discretion; the Trial Chamber has established certain criteria that it must follow in making its decision. Third, the Trial Chamber retains supervisory authority over UNMIK and the Accused. Fourth, there are significant practical advantages to letting UNMIK take day-to-day decisions about the Accused’s political activities.[1]                                                      

5.         In their joint dissenting opinion, Judge Shahabuddeen and Judge Schomburg argued that delegating to UNMIK the authority to modify the conditions of the Accused’s provisional release allows UNMIK unreasonably broad discretion, exceeds the Trial Chamber’s authority and is ultra vires (paras 6-10 of the joint dissenting opinion).  They also argued that the delegation was ultra vires because it required that UNMIK make judicial decisions which cannot be delegated to a non-judicial body (paras 11-16 of the joint dissenting opinion). 

13. In assessing whether the appellant will pose a danger to any victim, witness or other person if released, the Appeals Chamber acknowledges that the Trial Chamber described in the Trial Judgement the particular circumstances of this case, including that “[t]he difficulty in obtaining evidence was a prominent feature of this trial and a few witnesses who were expected to give evidence on central aspects of the case were never heard”.[1] It further considers that, in its appeal, the Prosecution requests a retrial for Brahimaj and his two co-accused, and seeks to adduce the evidence of certain witnesses.[2] The Appeals Chamber also notes that the Prosecution opposes Brahimaj’s provisional release because the “potential risk” of witness intimidation[3] “remains a continuing concern in light of the relief being sought”.[4] 

14. Nonetheless, the Appeals Chamber considers that a number of circumstances tip the balance in favour of meeting the second requirement of Rule 65(I) of the Rules. First, the Appeals Chamber notes that, while a retrial could be ordered as a result of the Prosecution appeal, it is also the case that Brahimaj could be acquitted or his sentence could be decreased as a result of his appeal.[5] The Appeals Chamber considers that it is not likely that Brahimaj will pose a danger to potential witnesses at this stage of proceedings as the outcome of the case is unforeseeable and a retrial is only one of the possible outcomes. Second, the Appeals Chamber notes that Brahimaj points out that each of the potential Prosecution witnesses lives outside Kosovo (where he seeks permission to be provisionally released),[6] and that the Prosecution does not challenge this allegation.[7] Third, the Appeals Chamber considers that an assessment of danger posed to victims, witnesses or others cannot be made in the abstract and that there is no substantiated indication from the Prosecution that Brahimaj will seek to intimidate witnesses.[8] The Appeals Chamber is further satisfied that Brahimaj’s past period of provisional release was without incident.[9] In view of these factors, the Appeals Chamber finds that Brahimaj, if provisionally released, would not endanger victims, witnesses or other persons, as required by Rule 65(I)(ii) of the Rules.

In the previous practice of the Tribunal, guarantees for an accused provisionally released in Kosovo/Kosova have usually been provided by UNMIK. In the present case, after having inquired with both UNMIK and the EULEX-Kosovo Mission, the Appeals Chamber concluded that the latter was best placed to provide the necessary guarantees of compliance with the prescribed conditions of provisional release (see para. 11).   

12. The Appeals Chamber has already determined in this case, with respect to Haraqija’s co-accused Bajrush Morina, that the fact that an appellant would have already served the entire sentence imposed by the Trial Chamber were it not for the filing of the notices of appeal may constitute a special circumstance.[1] As Haraqija is in the same position, the Appeals Chamber also considers that special circumstances exist warranting his provisional release.

2. In order for the Application to be granted, the Prosecution is required to demonstrate good cause. The jurisprudence of the Tribunal establishes that “good cause” under Rule 65 will be established where the applicant demonstrates that the Trial Chamber may have erred in the Impugned Decision.[1] [NOTE: WITH EFFECT FROM 8 AUGUST 2005 THE RULES OF PROCEDURE AND EVIDENCE WERE AMENDED SO THAT ANY DECISION UNDER RULE 65 RENDERED BY A TRIAL CHAMBER WOULD BE SUBJECT TO APPEAL AND THE PROVISION IN RULE 65(D) REQUIRING THAT LEAVE BE GRANTED BY A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER “UPON GOOD CAUSE BEING SHOWN” WAS DELETED.] While the Prosecution is only required to show the possibility of error on the part of the Trial Chamber for good cause to be established that possibility of error must be clearly established.[2]

14. In addition, the Appeals Chamber emphasizes that the humanitarian and medical grounds advanced by Ngirumpatse in support of his application[1] were relevant factors in deciding whether he will return for trial.[2] As such, they deserved consideration in the assessment of whether Ngirumpatse is a flight risk. In limiting itself to concluding that Ngirumpatse would not receive a better medical treatment in Europe or anywhere else without considering the humanitarian and medical grounds put forward by Ngirumpatse,[3] the Trial Chamber erred in the exercise of its discretion.

15. The Appeals Chamber therefore finds that the Trial Chamber erred in failing to take into account all the factors which were relevant to its taking a fully informed and reasoned decision as to whether, pursuant to Rule 65 of the Rules, Ngirumpatse will appear for trial if provisionally released and, more generally, as to whether or not he should be granted provisional release. […]

7. The circumstances of each accused who applies for provisional release must be evaluated individually as they weigh upon the likelihood that he will appear for trial.  The weight to be attributed to guarantees given by a government may depend a great deal upon the personal circumstances of the applicant, notably because of the position which he held prior to his arrest.  The Trial Chamber must assess these circumstances at the time when the decision on provisional release is being taken, but must also, as far as foreseeable, make an assessment as at the time when the case is due for trial and when the accused will be expected to return. 

[...]

9. [...] The position of an accused in the hierarchy and the consequence thereof upon the weight of governmental guarantees are indeed significant factors which the Trial Chamber is expected to address as they could have an important bearing upon a State’s willingness and readiness to arrest that person if he refuses to surrender himself; those factors therefore reduce the likelihood of his appearing at trial. [...]

NOTING that [...] the Appeals Chamber has laid down a non-exhaustive list of factors which a Trial Chamber must take into account before granting provisional release;

CONSIDERING that all these factors need to be considered when the Trial Chamber decides to grant provisional release, not when it decides to refuse it;

CONSIDERING in particular that all factors need not to be reviewed by a Trial Chamber if, for instance, the consideration of one of them is sufficient to satisfy the Chamber that, if released, the accused would not appear for trial;

At para. 10, after recalling that Trial Chambers only need, when deciding on a provisional release, to “examine those factors that a reasonable Trial Chamber would take into account[1]”, that is “those which are relevant to its taking a fully informed and reasonable decision as to whether, pursuant to Rule 65(B), the accused will appear for trial if provisionally released[2]”, the Appeals Chamber made clear that Trial Chambers must provide a reasoned opinion:

10. […] A Trial Chamber is not obliged to deal with all possible factors when deciding whether it is satisfied that the requirements of Rule 65(B) are fulfilled, but at a minimum, must provide reasoning to support its findings regarding the substantive considerations relevant to its decision.[3] […]

At para. 16, the Appeals Chamber recalled the case-law in that respect:

16. [T]he Appeals Chamber notes that an accused may, if he decides to do so, cooperate with the OTP, inter alia, by accepting to be interviewed by the Prosecution, but he does not have to do so and his provisional release is not conditioned, all other conditions being met, upon his agreement to be interviewed.[1] Against this backdrop the Appeals Chamber recalls that it has previously held that when an accused person decides to cooperate with the Prosecution, this matter may weigh in his favour when he seeks to be provisionally released, insofar as it shows his general attitude of cooperation towards the International Tribunal which is relevant to the issue that he will appear for trial.[2] However, an accused will not be penalised because he declines to cooperate with the Prosecution.[3] 

It then recalled the law applicable to assess an accused’s cooperation:

17. The Appeals Chamber recalls that the cooperation of an accused should not be assessed solely by reference to the value of the information the accused provides.[4] This is because an accused before this International Tribunal is not obliged to assist the Prosecution in proving its case and any evidence of willingness on the part of an accused to be voluntarily interviewed by the Prosecution is evidence of a degree of cooperation that an accused is entitled to withhold without adverse inference being drawn.[5]

When examining the Trial Chamber’s finding that it was satisfied that the Accused, if released, will not pose a danger to victims, witnesses or other persons, the Appeals Chamber held:

11. The Trial Chamber “consider[ed] that there is nothing to suggest that, if released, the Accused will pose” such a danger, and “that the Trial Chamber thereby previously [only] identified the [question of whether the Accused would appear for trial] as being in issue”.[1]  The Trial Chamber is not obliged to deal with all possible factors when deciding whether it is satisfied the requirements of Rule 65(B) are fulfilled, but at a minimum, the Trial Chamber must provide reasoning to support its findings regarding the substantive considerations relevant to its decision.[2]  Here, the Trial Chamber appears, in effect, to have switched the burden to the Prosecution to show that the Accused would pose a danger if released.  In the putative absence of such information, the Trial Chamber appears to have assumed the lack of a danger posed by the Accused’s release.  If the Trial Chamber found, as it must have done so here, that the Accused upon release will pose no danger to persons, then it must provide the reasons for reaching that finding.

25. It is reasonable for a Trial Chamber to take into account the gravity of the offences charged in order to determine whether facing the possibility of a lengthy sentence would constitute an incentive for an accused to flee.[1] It is evident that the more severe the possible sentence which an accused face is facing, the greater is his incentive to flee.[2] [….]

26. The Appeals Chamber recalls, however, that the seriousness of the charges against an accused cannot be the sole factor determining the outcome of an application for provisional release,[3] and emphasizes that a Trial Chamber must take into account the seriousness of the charges in addition to several other factors.[4] 

7. In previous cases, the Appeals Chamber has found special circumstances where there is an acute justification, such as the applicant’s medical need or a memorial service for a near family member.[1] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[2] Where a convicted person simply “wishes to spend time with his family”[3] or seeks to visit a close relative in poor health,[4] the Appeals Chamber has refused the application upon the grounds that such reasons are not sufficient to establish special circumstances. In the present case, the medical evidence presented by Mr. Milošević indicates that [REDACTED].[5] The Appeals Chamber considers that even if [REDACTED], there is no suggestion of an acute crisis or of life-threatening medical condition that constitutes a “special circumstance” warranting provisional release. Further, Mr. Mi1ošević’s request to attend his son’s wedding is not a “special circumstance” within the meaning of Rule 65(I)(iii) of the Rules and under the Appeals Chamber’s jurisprudence. In light of the foregoing, the Appeals Chamber finds that Mr. Milošević fails to show the existence of “special circumstances” under Rule 65(I)(iii) of the Rules and does not therefore deem it necessary to assess whether the requirements of Rule 65(I)(i)-(ii) are satisfied.

30.    The Bench considers that, while under Rule 65(B) of the Rules the seriousness of the charges against an accused cannot be the sole factor that determines the outcome of an application for provisional release, it is certainly one that a Trial Chamber is entitled to take into account when assessing whether an accused, if released, would appear for trial.[1] It is evident that the more severe the sentence which an accused faces, the greater is the incentive to flee. […]

9. The Appeals Chamber recalls that the specificity of provisional release at the post-trial stage is reflected by Rule 65(I)(iii) of the Rules, which provides for an additional criterion, i.e. that “special circumstances exist warranting such release”.[1] For reasons described in paragraph 2 above, the Appeals Chamber will consider that, for the purposes of this decision, the appellate proceedings in this case are pending before it. In such situations, the Appeals Chamber has concluded that special circumstances related to humane and compassionate considerations exist where there is an acute justification, such as the applicant’s medical need or a memorial service for a close family member.[2] The Appeals Chamber has also granted provisional release for a visit to a close family member in “extremely poor health and whose death is believed to be imminent”.[3] The Appeals Chamber has also emphasized that “the fact that some accused have been granted provisional release for comparable reasons pending their trial cannot be automatically applied by analogy to persons who have already been convicted by a Trial Chamber and who are seeking provisional release pending the appellate proceedings.[4] Finally, because “the notion of acute justification [is] inextricably linked to the scope of special circumstances which could justify provisional release on compassionate grounds at the appellate stage”, justifications such as wanting to spend time with family have explicitly not been recognized as special circumstances under Rule 65(I)(iii) of the Rules.[5]

Lazarević’s provisional release was extended twice, on 24 June 2009 and 14 July 2009, on the ground all the requirements under Rule 65(I) of the Rules continued to be met. Lazarević’s third request for extension was dismissed on 4 August 2009 for lack of showing the existence of special circumstances under Rule 65(I)(iii), and of acute justification in particular. All three decisions have reiterated that the criteria required for granting a request for provisional release apply mutatis mutandis to a motion for its extension.

15. The Appeals Chamber notes that the Trial Chamber did explicitly address the impact of its 98bis Ruling in granting the Accused provisional release. The Trial Chamber recalled the holding of the Appeals Chamber Decision that the 98bis Ruling constituted a significant change in circumstances, which warranted a renewed and thorough evaluation of the risk of flight of each of the co-Accused in this case. The Trial Chamber expressly considered that, in order to satisfy itself that the Accused still met the requirements of Rule 65, that if released they would appear for trial and not intervene with any victims and witnesses, it was required to consider whether the Accused had offered sufficient guarantees to offset that risk of flight. In such circumstances, even if the Trial Chamber was satisfied that sufficient guarantees were offered, it should not exercise its discretion in favour of a grant of provisional release unless compelling humanitarian grounds were present which caused to tip the balance in favour of allowing provisional release.[1]

9.       The Appeals Chamber recalls that special circumstances warranting provisional release related to humane and compassionate considerations have been found to exist where there is an “acute justification”, such as a medical need, a memorial service for a close family member, or a visit to a close relative in extremely poor health whose death is believed to be imminent.[1] Requests premised solely on the combination of advanced age and poor health, for example, have not met the threshold of “acute justification” in the absence of demonstration of the existence of an acute crisis or a life threatening medical condition.[2] […]

11.     […] [T]he fact that Tolimir is away from his family in this present situation also does not constitute “special circumstances”.[3] In this respect, the Appeals Chamber recalls that, in accordance with the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal (“Rules Governing Detention”),[4]  Tolimir is entitled to communicate with his family or other persons and to receive visits from them subject to certain restrictions and conditions.[5] […]

CONSIDERING that pursuant to the established jurisprudence of the Tribunal, provisional release may be granted to an accused who may remain temporarily outside of the host country for the purpose of receiving medical treatment, provided that the prerequisites of Rule 65 of the Rules are fulfilled;[1]