Case No. IT-04-74-PT


Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge Alphons Orie

Mr. Hans Holthuis

Decision of:
9 August 2004







The Office of the Prosecutor:

Mr. Kenneth Scott

The Defence for the Accused:

Mr. Camil Salahovic and Mr. Zelimir Par for the accused Mr. Jadranko Prlic
Mr. Zeljko Olujic for the accused Mr. Bruno Stojic
Mr. Bozidar Kovacic and Ms. Nika Pinter for the accused Mr. Slobodan Praljak
Ms. Vesna Alaburic for the accused Mr. Milivoj Petkovic
Mr. Tomislav Jonjic for the accused Mr. Valentin Coric
Mr. Marinko Skobic for the accused Mr. Berislav Pusic


TRIAL CHAMBER I ("Trial Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal"),

NOTING the "Prosecutor’s Motion to Stay Orders on Provisional Release Concerning the Accused Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petkovic, Valentin Coric and Berislav Pusic Pursuant to Rules 65 and 127" filed on 3 August 2004 before the duty judge Inés Mónica Weinberg de Roca ("Duty Judge") for an order to stay the Trial Chamber’s orders on provisional release of the six accused in the present case made pursuant to Rule 65 of the Rules of Procedure and Evidence ("Rules") and filed on 2 August 2004 ("Impugned Orders");

NOTING the "Order on Prosecutor’s Motion to Stay Orders on Provisional Release" by the Duty Judge filed on 4 August 2004, whereby the Duty Judge, in accordance with Rule 28(D),1 remitted the Motion to the Trial Chamber on the ground that "it is not appropriate for the Duty Judge, acting as a single Judge, to decide this issue and it is more appropriate for the Trial Chamber to do so";

NOTING that Rule 65 (E) of the Rules provides that the Prosecutor shall make an application for a stay of a decision by the Trial Chamber to release an accused "at the time of filing his or her response to the initial application for provisional release by the accused"; that the Prosecutor did not apply for a stay of the Impugned Orders at the time of the filing of her responses to the initial applications for provisional release;2

NOTING that the Prosecutor argues that Rule 65 (E) of the Rules "does not foreclose a separate application for stay being made following a decision on an application for provisional release," and that to the extent that Rule 65 (E) of the Rules might be viewed as providing the "sole manner in which the Prosecutor may seek a stay," the Prosecutor requests that her motion for stay "be recognised as validly done, as if the Prosecutor had included such an application when it filed its original oppositions to release" pursuant to Rule 127 (A)(ii) of the Rules;3

NOTING that the accused opposed the Motion on 3 and 4 August 2004 on the grounds that the Prosecutor did not show good cause as required by Rule 127 and that Rule 65(E) is lex specialis and does not allow the Prosecutor to apply for a stay of the Impugned Orders unless she has notified the Trial Chamber in her response to the accused’s initial applications for provisional release;

CONSIDERING that the deadline set forth in Rule 65 may be varied by a Chamber in accordance to Rule 127 upon good cause being shown;

CONSIDERING that the Trial Chamber is not satisfied that good cause has been shown in accordance to Rule 127;

CONSIDERING that the Trial Chamber does not exclude that a stay could exceptionally be granted even when not applied for under Rule 65 (E) of the Rules, but finds that the Prosecution has not shown good cause for such an exception in this case;

PURSUANT TO Rules 65 and 127 of the Rules;



Done in both English and French, the English text being authoritative.

Dated this 9th day of August 2004,
At The Hague
The Netherlands

Judge Alphons Orie
Pre-trial Judge, Trial Chamber I

[Seal of the Tribunal]

1. Rule 28 (D) provides that where a case has already been assigned to a Trial Chamber, the Duty Judge may act upon an application made within normal Registry hours, only if the Trial Chamber is unavailable, and if the Duty Judge is satisfied as to its urgency or that it is otherwise appropriate to do so in the absence of the Trial Chamber.
2. Motion, para. 8.
3. Motion, paras 6-7.