KRAJISNIK and PLAVSIC - IT-00-39 & 40-AR73

The Prosecutor v. Momcilo Krajisnik - Case No. IT-00-39 & 40-AR73.3

"Decision on Interlocutory Appeal by Momcilo Krajisnik"

14 February 2002
 Judges Gunawardana (Presiding), Shahabuddeen, Güney, Pocar and Meron

Article 21(4) of the Statute - Rules 48 and 82(A) of the Rules of Procedure and Evidence - Right to be present at a hearing - Rule 54 of the Rules - Exercise of the discretionary power by a Trial Chamber.

Article 21(4) of the Statute and Rules 48 and 82(A) of the Rules of Procedure and Evidence do not provide an accused and his Defence counsel with a right to be present at a hearing on an application of a co-accused for provisional release.

Procedural Background

· On 16 August 2001, Trial Chamber III issued a Decision on the Motion of Momcilo Krajisnik to attend an Open Hearing on the Plavsic Motion for Provisional Release which it denied.

· On 17 August 2001, Momcilo Krajisnik filed a Notice of Motion for Leave to Appeal pursuant to Rule 73(D) of the Rules of Procedure and Evidence1 to which the Prosecution responded on 24 August 2001.

· On 18 October 2001, a bench of the Appeals Chamber granted leave to appeal. It ruled that the issue at stake "gives rise to the general question whether the co-accused and his counsel are entitled to be present at a hearing of an application for provisional release of the other co-accused, and is an issue of general importance to proceedings" before the Tribunal.

· On 25 October 2001, Momcilo Krajisnik filed a Brief on Appeal in which he sought (1) a declaratory order that the impugned Decision contravenes Rules 482, 793 and 824 of the Rules and (2) an order directing that Defence counsel for Momcilo Krajisnik be granted the right to attend all future hearings in the case. The Prosecution responded on 5 November 2001.

The Decision

The Appeals Chamber dismissed the appeal.

The Reasoning

· The Appeals Chamber stated that Article 21(4) of the Statute5 "does not provide an accused and his counsel with a right to be present at a hearing of an application for provisional release of his co-accused" since such an application cannot "be construed as constituting proceedings in the determination of charges against the accused". It considered that Momcilo Krajisnik had "failed to show that, in law, a co-accused and his counsel are entitled to be present at a hearing of an application for provisional release of the other co-accused". The Appeals Chamber found that "there was no breach of Rules 48 and 82(A) of the Rules, as the said Rules do not provide […] with a right to attend" such a hearing.

· It noted that the issue before the Appeals Chamber was not whether the Trial Chamber had "erred in ordering that the press and the public be excluded" from the hearing "pursuant to Rule 79(A) of the Rules, but rather, whether in excluding" Momcilo Krajisnik from the hearing, the Trial Chamber had "correctly exercised its discretion under Rule 54 of the Rules"6. The Appeals Chamber found that "the hearing of the application […] for provisional release was a matter between Biljana Plavsic and the Prosecution and had no connection" to the trial of Momcilo Krajisnik. It considered that the decision of the Trial Chamber to exclude him from the hearing had been "a proper exercise of the Trial Chamber's discretionary power to control its proceedings, as contemplated under Rule 54". The Appeals Chamber also found that Momcilo Krajisnik had "not suffered any prejudice since he had full access" to the case-law of the Tribunal on provisional release.

Declaration of Judge Shahabuddeen

Judge Shahabuddeen expressed his agreement with the finding of the Appeals Chamber on the issue of the non-entitlement to be present at a hearing of an application for provisional release of the other co-accused. The Judge understood that the argument was (1) that an interpretation of the Rules "to the effect that a Trial Chamber has a power to exclude an accused and his counsel from the hearing of a bail application by a co-accused is inconsistent with internationally recognised human rights norms", (2) these norms have superior judicial force" and (3) "that accordingly such an interpretation is not permissible." He added that the question was whether human rights norms "guarantee the entitlement in issue so as to lead to the suggested inconsistency."

Judge Shahabuddeen underscored that Momcilo Krajisnik had admitted in paragraph 15 of his Brief on Appeal filed on 25 October 2001 that he had no standing on the Motion. The Judge emphasised that applying human rights "in circumstances foreign to their nature is to substitute inflationary illegality for legitimate protection." He expressed his agreement with the answer of the Appeals Chamber that the accused and his Defence counsel "had no human right to be present at the hearing of the application of his co-accused for provisional release."

Separate Opinion of Judge Pocar

Judge Pocar expressed his agreement that the appeal should be dismissed because Momcilo Krajisnik had not shown that he had "been prejudiced by the Trial Chamber's decision to exclude him and his counsel from the hearing" and the view that "the appeal should have been dismissed on the basis of this ground alone, though without any finding […] as to whether a prejudice may have in fact occurred." However, the Judge stressed that he could not "agree with the reasoning of this decision."

Judge Pocar considered that "from the moment that the co-accused are joined in a single prosecution (bearing a single case number), all the rights of each co-accused attach and each co-accused should have the right to attend all of the proceedings in the case." He emphasised that "[t]his would include hearings relating to the provisional release of a co-accused." The Judge interpreted the decision of the Appeals Chamber as making the operation of the rights set forth in Article 21(4) of the Statute "dependent on whether the proceedings involve the determination of charges against the accused." He considered that, as far as the right to be present set forth in Article 21(4)(d) of the Statute is concerned "such a determination would take place at trial."

Judge Pocar referred to Article 33 of the Vienna Convention on the Law of Treaties7 and stated that "the object and purpose of Article 21 of the Statute is to establish the minimum guarantees for the accused." He held that "when two versions of the text may allow for different standards of protection, the higher must apply, in accordance with the purpose and object of the treaty." Therefore, the English text of Article 21(4) of the Statute "must be interpreted as incorporating the French text." In sum, the Judge considered that "the higher guarantees allowed by the French text should have been taken into account in determining whether a co-accused has the right to attend a hearing on the provisional release of another co-accused." He concluded that failure to do so was "legally incorrect."

Judge Pocar noted that while Rules 48 and 82(A) "do not grant a particular right to the accused, they do not prevent the granting of additional rights" and in light of the wording of Article 21(4) of the Statute "could not do so." However, he emphasised that "the application for provisional release had no connection" to the case of Momcilo Krajsnik.

Judge Pocar considered that the Trial Chamber had erred in excluding Momcilo Krajisnik and his Defence counsel from the hearing on the motion for provisional release filed by Biljana Plavsic. The Judge concluded that "[f]inding otherwise runs the danger of providing a Trial Chamber with the discretion to select, in cases of joinder of the accused, certain proceedings in which it will allow all accused to be present, and other proceedings in which it will exclude one or more co-accused, in contradiction with its own decision to join their cases and to deal with them as a single one."

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1. "Decisions on all other motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave

(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal;
(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally."

2. "Persons accused of the same or different crimes committed in the course of the same transaction may be jointly charged and tried."
3. "(A) The Trial Chamber may order that the press and the public be excluded from all or part of the proceedings for reasons of:

(i) public order or morality;
(ii) safety, security or non-disclosure of the identity of a victim or witness as provided in Rule 75; or
(iii) the protection of the interests of justice.

(B) The Trial Chamber shall make public the reasons for its order."
4. "(A) In joint trials, each accused shall be accorded the same rights as if such accused were being tried separately.
(B) The Trial Chamber may order that persons accused jointly under Rule 48 be tried separately if it considers it necessary in order to avoid a conflict of interests that might cause serious prejudice to an accused, or to protect the interests of justice."
5. "In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt."

6. "At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial."
7. "When a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted."
Regarding the references to the Vienna Convention in the case-law of both International Criminal Tribunals, see the text-box below.

Both International Criminal Tribunals have on several occasions had recourse to the Vienna Convention for the purpose of interpreting their Statutes.

See The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-T, Trial Chamber II, Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, 10 August 1995, in which the Judges conceded that the Statute of the ICTY is a sui generis legal instrument and not a treaty but considered that the rules of treaty interpretation contained in the Vienna Convention appear relevant in interpreting its provisions and the drafters' conception of the applicability of the case-law of other courts (para. 18).

See also The Prosecutor v. Drazen Erdemovic ("Pilica Farm"), Case No. IT-96-22-A, Appeals Chamber, Judgement, 7 October 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 3.

See also The Prosecutor v. Théoneste Bagosora and 28 Others, Case No. ICTR-98-37-A, Appeals Chamber, Decision on the Admissibility of the Prosecutor’s Appeal from the Decision of a Confirming Judge dismissing an Indictment against Théoneste Bagosora and 28 Others, 8 June 1998, para. 28.

See also The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-T, Trial Chamber II quater, Judgement, 16 November 1998, in which the Judges considered that it was "well settled that an interpretation of the Articles of the Statute and provisions of the Rules should begin with resort to the general principles of interpretation as codified in Article 31 of the Vienna Convention on the Law of Treaties" (para. 1161).

See also Joseph Kanyabashi v. The Prosecutor, Case No. ICTR-96-15-A, Appeals Chamber, 3 June 1999, Joint and Separate Opinion of Judge McDonald and Judge Vohrah, in which the Judges considered that "[a]lthough the Statute is not a treaty, it is a sui generis international legal instrument resembling a treaty. […] Because the Vienna Convention codifies logical and practical norms that are consistent with domestic law, it is applicable under customary international law to international instruments which are not treaties. Thus, recourse by analogy is appropriate to Article 31(1) of the Vienna Convention in interpreting the provisions of the Statute" (para. 15); Joint Separate and Concurring Opinion of Judge Wang Tieya and Judge Rafael Nieto-Navia, in which the Judges also conceded that the Rules "are not a treaty in the traditional sense of that term" but considered that Article 31 of the Vienna Convention reflects "customary rules of interpretation" (para. 11).

See also The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Judgement, 15 July 1999, para. 300; The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-T, Trial Chamber I, Judgement, 14 December 1999, para. 61; The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-A, Appeals Chamber, Judgement, 21 July 2000, Declaration of Judge Patrick Robinson, page 93, paras. 6 to 8 (summarised in Judicial Supplement No. 18); The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000, para. 98; The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-AR73.6, Appeals Chamber, Decision on Appeal Regarding the Admission into Evidence of Seven Affidavits and One Formal Statement, 18 September 2000 (summarised in Judicial Supplement No. 18); The Prosecutor v. Blagoje Simic et al. ("Bosanski Samac"), Case No. IT-95-9-PT, Decision on Motion for Judicial Assistance to be provided by SFOR and Others, 18 October 2000, Separate Opinion of Judge Patrick Robinson (summarised in Judicial Supplement No. 19).

See also The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), in which the Judges held that "it is generally accepted that these provisions reflect customary rules" (para. 67).

See also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Judgement, 1 June 2001, Dissenting Opinion of Judge Nieto-Navia, para. 5; The Prosecutor v. Goran Jelisic ("Brcko"), Case No. IT-95-10-A, Appeals Chamber, Judgement, 5 July 2001 (summarised in Judicial Supplement No. 26), para. 35; The Prosecutor v. Radislav Krstic ("Srebrenica"), Case No. IT-98-33-T, Trial Chamber I, Judgement, 2 August 2001 (summarised in Judicial Supplement No. 27), para. 541; The Prosecutor v. Dusko Sikirica et al. ("Keraterm Camp"), Case No. IT-95-8-T, Trial Chamber III, Judgement on Defence Motions to Acquit, 3 September 2001 (summarised in Judicial Supplement No. 27), paras. 60 and 63.

See also The Prosecutor v. Momcilo Krajisnik & Biljana Plavsic ("Bosnia and Herzegovina"), Case No. IT-00-39 & 40-PT, Trial Chamber III, Decision on Momcilo Krajisnik's Notice of Motion for Provisional Release, 8 October 2001, Dissenting Opinion of Judge Patrick Robinson, paras. 10 and 15, in which the Judge used the accepted Article 31(1) of the Vienna Convention to interpret one of the ICTY Rules of Procedure and Evidence.

See also The Prosecutor v. Slobodan Milosevic ("Kosovo", "Croatia" and "Bosnia & Herzegovina"), Case No. IT-02-54-T, Trial Chamber III, Decision on Prosecution's Request to Have Written Statements Admitted Under Rule 92 bis, 21 March 2002, Separate Opinion of Judge Patrick Robinson, para. 7.

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The Prosecutor v. Momcilo Krajisnik and Biljana Plavsic - Cases No. IT-00-39 & 40-AR73.2

"Decision on Interlocutory Appeal by Momcilo Krajisnik"

26 February 2002
 Judges Jorda (Presiding), Hunt, Güney, Pocar and Meron

Rule 28 of the Rules of Procedure and Evidence - Authority and powers of the duty Judge - Determination as to the urgency of the examination of the Motion.

(1) Power of the duty Judge: Rule 28(D) of the Rules of Procedure and Evidence (hereinafter the "Rules") must be interpreted consistently with what is clearly intended by Rule 28(B) of the Rules which contemplates that the duty Judge will have power, during the normal Registry hours, to deal with applications in cases that have already been assigned to a Trial Chamber.

(2) Power to refuse to deal with a non urgent Motion pursuant to Rule 28(B) of the Rules: depending on whether the application is of such a nature that it is appropriate that it be dealt with by the duty Judge rather than by the Trial Chamber to which the case was assigned, he or she will exercise this power. In considering whether it is appropriate for to deal with any particular matter, it is important to keep in mind that the Trial Chamber will usually be in a better position to deal with the issue which requires detailed knowledge of the case.

(3) Determination as to the urgency of the examination of the Motion: where a case has already been assigned to a Trial Chamber, urgency would usually be established under two cumulative conditions, i.e. (1) whether the relief sought can only be granted if the application is determined at a time before the Trial Chamber is available to determine it; (2) whether the applicant would suffer significant prejudice if the application is not determined within that time.

(4) Decision of the duty Judge: where an application in a case already assigned to a Trial Chamber can not be dealt with by the Trial Chamber and if the duty Judge seized of the matter refuses to deal with it since it failed to satisfy him as to its urgency, the only ruling the Judge should or could make is refusal to examine the issue. The Trial Chamber would then have to deal with the application when available to do so. This would be the case whether the application is addressed to the Trial Chamber or to the duty Judge directly.

Procedural Background

· On 6 August 2001, Momcilo Krajisnik filed an application for provisional release which was transmitted to the duty Judge pursuant to Rule 28 of the Rules1.

· That same day, the duty Judge dismissed the application without examining its merits on the ground that the accused had failed to satisfy him of its urgency2.

· Also on that same day, Momcilo Krajisnik applied for leave to appeal in order to establish, as a matter of general importance to proceedings before the Tribunal3 that the proper exercise of the discretion afforded to the duty Judge by Rule 28 would have been to make a finding of urgency and then to rule on the merits of the issue.

· On 10 August 2001, a bench of three Judges of the Appeals Chamber granted leave to appeal to Momcilo Krajisnik.

· On 16 August 2001, the Prosecution responded to the accused's submission.

The Decision

The Appeals Chamber dismissed the appeal.

The Reasoning

Jurisdiction of the duty Judge to deal with an application for provisional release submitted during court recess

The Appeals Chamber noted that neither of the two matters set out in Rule 28(E) "is, strictly, an 'application'." The Appeals Chamber added that interpreting Rule 28(E) as limiting the nature of the application with which the duty Judge may deal pursuant to Rule 28(E) during court recess would almost negate the purpose for which duty Judges are designated.

Powers of the duty Judge

The Appeals Chamber considered that the absence in Rule 28(D) of "any express reference […] to the circumstances in which the duty Judge may deal with an application during normal Registry hours" seems to have induced Momcilo Krajisnik to claim that the duty Judge "has no jurisdiction to deal with the matter". The Appeals Chamber found that Rule 28(D) necessarily contemplates the power of the duty Judge "during normal Registry hours to deal with applications in cases which have already been assigned to the Trial Chamber." The Appeals Chamber ruled that Rule 28(D) must be interpreted consistently with what is clearly intended by Rule 28(B). The Appeals Chamber concluded that Rule 28(D) implicitly states that "the duty Judge will deal during the normal Registry hours with applications which have already been assigned to a Trial Chamber."

The Appeals Chamber noted that Rule 28(B) gives to the duty Judge the discretion to refuse to deal with a non-urgent application. It considered that "the exercise of that discretion will depend upon whether the application is of such a nature that it is appropriate that it be dealt with by the duty Judge rather than by the Trial Chamber to which the case has been assigned."4 The Appeals Chamber specified that this situation "would usually arise during the official court recesses, but it would also arise where the Trial Chamber is, for reasons other than a court recess, not available to deal with the application." The Appeals Chamber considered that the obvious example of the appropriate exercise of the discretion of the duty Judge is the case where an application is submitted pursuant to Rule 1275 and where the time for doing so expires at a time the Trial Chamber is unavailable or very shortly thereafter. In considering whether it is appropriate for the duty Judge to deal with a particular matter, the Appeals Chamber pointed out that it is important to keep in mind that "the Trial Chamber will usually be in a better position to deal with a matter which requires detailed knowledge of the case."

Decision of the duty Judge

The Appeals Chamber reiterated that the finding of fact as to whether the matter is urgent is the same as for other findings of fact and that it "cannot be reversed on appeal unless it is one which no reasonable tribunal of fact could have reached."6 The Appeals Chamber found that where a case has already been assigned to a Trial Chamber, urgency would usually be established under two cumulative conditions, i.e. (1) where the subject matter of the application is of such a nature that "the relief sought can only be granted if the application is determined at a time before that Trial Chamber is available to determine it"; (2) "where the Applicant would suffer significant prejudice if the application is not determined within that time".

Given the significant nature of the specific circumstances of the case, the Appeals Chamber considered that the application for provisional release was one which had to be dealt with. Therefore it was necessarily an "urgent application to be determined by the duty Judge." The Appeals Chamber was satisfied that the "decision of the duty Judge in the present case that [Momcilo Krajisnik] had failed to satisfy him as to the urgency of the matter was one which no reasonable tribunal of fact could have reached." It referred to the Decision on Motion by Radoslav Brdjanin for Provisional Release issued on 25 July 2000 by Trial Chamber II in the case The Prosecutor v. Radoslav Brdjanin and Momir Talic7 and interpreted Rule 65(B)8 as requiring the Trial Chamber (here, the duty Judge) to exercise a discretion "to grant or not grant provisional release, even if satisfied that the detainee in question, if released, would appear for trial and would not pose a danger to any victim, witness, or other person."9 The Appeals Chamber specified that "the lack of opposition by the prosecution does not necessarily dictate the exercise of that discretion in favour of the applicant."10 In this case, the Appeals Chamber stated that, "having determined that there was no urgency, the duty Judge never reached the stage where it became necessary for him to exercise that discretion" and concluded that the duty Judge had not abused his discretion.

In addition, the Appeals Chamber underscored that "the order which the Judge made dismissing the Motion was also erroneous." It explained that "where an application is made in a case assigned to a Trial Chamber, but the Trial Chamber is not available to deal with it so that it comes before the duty Judge, and where the duty Judge correctly refuses to deal with that application because she or he has not been satisfied that it was urgent, the only ruling which should or could be made by that Judge is to refuse to deal with that application as the duty Judge."11 The Appeals Chamber added that it would then be left to "the Trial Chamber to deal with the application" when it could. According to the Appeals Chamber, "this would appear to be so where the application is addressed to the Trial Chamber or to the duty Judge directly." The Appeals Chamber concluded that "if the application is dismissed by the duty Judge, the Trial Chamber would necessarily be prevented from dealing with it in the ordinary course" which "is not the intention of Rule 28."

Consequences of the Appeals Chamber's determination

The Appeals Chamber stated that the finding that the application for provisional release was not urgent, undoubtedly, grossly unfair but that the main question was "whether the duty Judge, had he not made the erroneous finding in relation to urgency, would have proceeded to grant" the application to determine whether its dismissal was in the result grossly unfair. In determining this issue, the Appeals Chamber noted that it "is entitled to have regard to the events which have occurred following the duty Judge's decision" and noted that the two other applications for provisional release submitted by Momcilo Krajisnik were dismissed.

The Appeals Chamber inferred "from these facts that, had the duty Judge proceeded to consider the requirements of Rule 65(B), he would have rejected the application on the basis that the Appellant was unable to establish that he would return and appear for trial if he were released."12

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1. Rule 28 in its version in force in August 2001 (IT/32/Rev.21):

"(A) On receipt of an indictment for review from the Prosecutor, the Registrar shall consult with the President who shall designate one of the permanent Trial Chamber Judges for the review.
(B) The President, in consultation with the Judges, shall maintain a roster designating one permanent Judge as duty Judge for the assigned period of seven days. The duty Judge shall be available at all times, including out of normal Registry hours, for dealing with applications pursuant to paragraphs (C) and (D) but may refuse to deal with any application out of normal Registry hours if not satisfied as to its urgency. The roster of duty Judges shall be published by the Registrar.
(C) All applications in a case not otherwise assigned to a Chamber, other than the review of indictments, shall be transmitted to the duty Judge. Where accused are jointly indicted, a submission relating only to an accused who is not in the custody of the Tribunal shall be transmitted to the duty Judge, notwithstanding that the case has already been assigned to a Chamber in respect of some or all of the co-accused of that accused. The duty Judge shall act pursuant to Rule 54 in dealing with applications under this Rule.
(D) The duty Judge may, in his or her discretion, if satisfied as to the urgency of the matter, deal with an application in a case already assigned to a Chamber out of normal Registry hours as an emergency application. In such case, the Registry shall also serve copies of the application and of any order or decision issued by the duty Judge in connection therewith on the Chamber to which the matter is assigned.
(E) During periods of court recess, regardless of the Chamber to which he or she is assigned, the duty Judge may:

(i) take decisions on provisional detention pursuant to Rule 40 bis;
(ii) conduct the initial appearance of an accused pursuant to Rule 62.

The Registry shall serve a copy of all orders or decisions issued by the duty Judge in connection therewith on the Chamber to which the matter is assigned."
2. Regarding the power of the duty Judge to examine Motions for provisional release, see The Prosecutor v. Miodrag Jokic ("Dubrovnik"), Case No. IT-01-42-PT and The Prosecutor v. Rahim Ademi ("Medak Pocket"), Case No. IT-01-46-PT, Judge Alphons Orie, Decisions on Defence Motion for Provisional Release, 21 December 2001 (hereinafter the "Jokic & Ademi Decisions", summarised in Judicial Supplement No. 30).
3. Rule 73(D)(ii) of the Rules provides that "[the] decisions on all other motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave […] if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally" (emphasis added).
4. See the Jokic and Ademi Decisions.
5. "(A) Save as provided by paragraph (C), a Trial Chamber may, on good cause being shown by motion,

(i) enlarge or reduce any time prescribed by or under these Rules;
(ii) recognize as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired.

(B) In relation to any step falling to be taken in connection with an appeal or application for leave to appeal, the Appeals Chamber or a bench of three Judges of that Chamber may exercise the like power as is conferred by paragraph (A) and in like manner and subject to the same conditions as are therein set out.
(C) This Rule shall not apply to the times prescribed in Rules 40 bis and 90 bis."
6. The Prosecutor v. Dusko Tadic ("Prijedor"), Case No IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6) para. 64. See also the Separate Opinion of Judge Shahabuddeen, para. 30; The Prosecutor v. Zlatko Aleksovski ("Lasva River Valley"), Case No. IT-95-14/1-A, Appeals Chamber, Judgement, 24 March 2000 (summarised in Judicial Supplement No. 13, pages 2 to 5), paras. 63 and 64; The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-A, Appeals Chamber, Judgement, 21 July 2000 (summarised in Judicial Supplement No. 18), paras. 37 and 123; The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Judgement, 20 February 2001 (summarised in Judicial Supplement No. 23), paras. 202 to 203, 435 and 459; The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-A, Appeals Chamber, Judgement, 23 October 2001 (summarised in Judicial Supplement No. 28), para. 30. See also Omar Serushago v. The Prosecutor, Case No. 98-39-A, Appeals Chamber, Judgement, 6 April 2000, para. 22.
7. The Prosecutor v. Radoslav Brdjanin & Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Radoslav Brdjanin for Provisional Release, 25 July 2000 (hereinafter "Brdjanin Decision", summarised in Judicial Supplement No. 18), para. 22.
8. Rule 65(B) in its version in force in August 2001 (IT/32/Rev.21):
"Release may be ordered by a Trial Chamber only after hearing the host country and only if it is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person."
9. See also The Prosecutor v. Miodrag Jokic ("Dubrovnik"), Case No. IT-01-42-T, and The Prosecutor v. Rahim Ademi ("Medak Pocket"), Case No. IT-01-46-PT, Trial Chamber I Section A, Orders on Motions for Provisional Release, 20 February 2002 (hereinafter the "Jokic and Ademi Decisions on Provisional Release", summarised in this issue of the Judicial Supplement), paras. 22.
10. Idem.
11. See the Jokic and Ademi Decisions.
12. Regarding the accused's burden of proof, see the Brdjanin Decision, para. 13. See also the Jokic and Ademi Decisions for provisional release, paras. 19.

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