Release during judicial recess

Notion(s) Filing Case
Decision on Provisional Release - 08.07.2009 PRLIĆ et al.

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.

[1] Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-AR65.7, 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, (“Petković Decision of 21 April 2008”), para. 17. This observation was made in the context of the proportionality of the length of the release to the circumstances justifying provisional release.

[2] Impugned Decision [Prosecutor v. Jadranko Prlić et al., Case No. IT-04-74-T, Decision on Slobodan Praljak’s Motion for Provisional Release (2009 Summer Judicial Recess), filed in French on 18 May 2009 (English translation filed on 25 May 2009) (confidential with confidential annex). The public version was filed in French on 25 May 2009 (English translation filed on 28 May 2009)], paras 16, 26 et seq.

[3] Impugned Decision, para. 20.

[4] Cf. Prosecutor v. Milan Milutinović et al., Case No. IT-05-87-A, Public Redacted Version of the “Decision on Vladimir Lazarević’s Second Motion for Temporary Provisional Release on the Grounds of Compassion” Issued on 21 May 2009, 22 May 2009, para. 12.

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