Appeals Chamber

The Prosecutor v. Blagoje Simic, Milan Simic, Miroslav Tadic, Stevan Todorovic and Simo Zaric - Case No. IT-95-9-AR65

"Decision on application for leave to appeal"

19 April 2000
Bench of the Trial Chamber (Judges Vohrah [Presiding], Nieto-Navia and Pocar)

Sub-rule 65(D) of the Rules of Procedure and Evidence – Requirement of "good cause"

"Good cause" within the meaning of Sub-rule 65(D) of the Rules of Procedure and Evidence requires that the party seeking leave to appeal under that provision satisfy the Bench of the Appeals Chamber that the Trial Chamber may have erred in making the impugned Decision.

Procedural Background

By the two Decisions dated 4 April 2000, Trial Chamber III granted the respective Requests for Provisional Release presented by Simo Zaric and Miroslav Tadic on 19 January 1999 and ordered the provisional release of the accused on a number of conditions (see the summary of these Decisions of 4 April 2000 in this Bulletin).

The Trial Chamber further ordered that the release of Simo Zaric and Miroslav Tadic be stayed until 5 April 2000 since the Prosecution had filed an application pursuant to Sub-rule 65(E) of the Rules of Procedure and Evidence1 for the prospective stay of any Decision granting the accused’s motions for provisional release.

On 5 April 2000, the Prosecution applied for leave to appeal the Decisions before a Bench of three Judges of the Appeals Chamber and argued that there was "good cause" under Sub-rule 65(D) of the Rules of Procedure and Evidence to grant the application for leave to appeal on the grounds that:

(i) the present matter represents one of the first interpretations and applications of amended Sub-rule 65(B) of the Rules of Procedure and Evidence and the first time that a Trial Chamber has granted a request for provisional release under this amended text. This matter therefore is a "test case" of general importance to proceedings before the Tribunal;
(ii) the Trial Chamber erred in ruling that it was satisfied that, if released, both accused would appear for trial;
(iii) the Trial Chamber erred by finding that it was satisfied that, if released, both accused would not pose a danger to victims, witnesses or other persons;
(iv) the Decisions would cause irreparable prejudice to the Prosecutor; and
(v) the Trial Chamber misapplied the legal principles governing provisional release.

On 7 April 2000, Counsel for Miroslav Tadic and Simo Zaric filed the Defence Response in Opposition to Prosecution’s Applications for Leave to Appeal the Trial Chamber’s Decision on Miroslav Tadic and Simo Zaric’s Applications for Provisional Release Dated 4 April 2000.

The Reasoning

The Bench of three Judges reiterated that Sub-rule 65(D) of the Rules of Procedure and Evidence2 provided that Decisions on provisional release were subject to appeal in cases where leave to appeal was granted upon good cause being shown.

The Bench of the Appeals Chamber interpreted that, within the meaning of the provision, "good cause" required that the party seeking leave to appeal under Sub-rule 65(D) of the Rules of Procedure and Evidence satisfy the Bench of the Appeals Chamber "that the Trial Chamber may have erred in rendering the impugned Decision".

In this specific case, the Bench considered that the Prosecution had failed to demonstrate such an error on the part of the Trial Chamber and that, therefore, the requirement of "good cause" had not been met.

The Decision

Pursuant to Rule 65 of the Rules of Procedure and Evidence, the Appeals Chamber rejected the Application for Leave to Appeal and ordered Miroslav Tadic’s and Simo Zaric’s provisional release, subject to the Registry being satisfied that the practical arrangements for their provisional release had been made in accordance with the Decisions of 4 April 2000.

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1. "The Prosecutor may apply for a stay of a decision by the Trial Chamber to release an accused on the basis that the Prosecutor intends to appeal the decision, and shall make such an application at the time of filing his or her response to the initial application for provisional release by the accused".
2. "Any decision rendered under this Rule shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown. Subject to Sub-rule (F) below, applications for leave to appeal shall be filed within seven days of the impugned decision. Where such decision is rendered orally, the application shall be filed within seven days of the oral decision, unless

(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or

(ii) the Trial Chamber has indicated that a written decision will follow, in which case, the time-limit shall run from filing of the written decision".

Since the introduction of Sub-rule 65(D) of the Rules of Procedure and Evidence at the thirteenth plenary session on 25 July 1997, provisional release is explicitly subject to appeal. Dokmanovic appealed the denial of his Motion for Provisional Release by a Trial Chamber on 22 October 1997. This appeal was denied by a Bench of three Judges of the Appeals Chamber on 11 November 1997 (The Prosecutor v. Dokmanovic, Case No. IT-95-13 A-AR72, Decision on application for leave to appeal by the accused, 11 November 1997).