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]

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.