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Bosanski Samac, Prosecutor v. Simic et al., Decision on Application for Leave to Appeal, IT-95-9-A (ICTY AC, Apr. 19, 2000) " "

BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Lal Chand Vohrah, Presiding
Judge Rafael Nieto-Navia
Judge Fausto Pocar

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
19 April 2000

PROSECUTOR

v.

BLAGOJE SIMIC
MILAN SIMIC
MIROSLAV TADIC
STEVAN TODOROVIC
SIMO ZARIC

________________________________________________

DECISION ON APPLICATION FOR LEAVE TO APPEAL

_________________________________________________

Counsel for the Prosecutor:

Mr. Grant Niemann

Counsel for the Defence:

Mr. Zarko Nikolic, for Milan Simic
Mr. Igor Pantelic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic, for Simo Zaric

 

THIS BENCH of the Appeals 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 ("the International Tribunal"),

BEING SEIZED of the "Prosecution’s Application for Leave to Appeal the Trial Chamber’s ‘Decision on Miroslav Tadic’s Application for Provisional Release’, Dated 4 April 2000 and the Trial Chamber’s ‘Decision on Simo Zaric’s Application for Provisional Release’, Dated 4 April 2000", filed on 5 April 2000 ("the Application for Leave to Appeal");

NOTING Trial Chamber III’s "Decision on Mirosalv Tadic’s Application for Provisional Release" and "Decision on Simo Zaric’s Application for Provisional Release", both dated 4 April 2000 ("the Decisions"), in which the Trial Chamber granted requests for provisional release by the accused Miroslav Tadic and Simo Zaric and ordered, inter alia, their provisional release subject to certain terms and conditions;

NOTING the "Defense Response in Opposition to Prosecution’s Application for Leave to Appeal the Trial Chamber’s Decision on Miroslav Tadic and Simo Zaric’s Applications for Provisional Release, Dated April 4, 2000", filed by Counsel for accused Miroslav Tadic and Simo Zaric on 7 April 2000,

NOTING the "Opposition to Application for Leave to Appeal Against the Trial Chamber’s Interlocutory Order of April 4, 2000", filed by Counsel for accused Stevan Todorovic on 7 April 2000,

CONSIDERING that the accused Stevan Todorovic did not make submissions before the Trial Chamber in respect of Miroslav Tadic’s and Simo Zaric’s requests for provisional release;

CONSIDERING, therefore, that the accused Stevan Todorovic has no locus standi to make submissions on the Application for Leave to Appeal;

CONSIDERING that the Prosecutor argues that "good cause" under Sub-rule 65(D) of the Rules of Procedure and Evidence ("the Rules") exists for granting the Application for Leave to Appeal on the ground that i) the present matter "represents one of the first interpretations and applications of amended rule 65(B)"; 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 will cause irreparable prejudice to the Prosecutor; and v) the Trial Chamber misapplied the legal principles governing provisional release;

CONSIDERING that Sub-rules 65(A) and (B) provide that once detained, an accused may not be released except upon an order of a Trial Chamber and that a Trial Chamber may make such order only after hearing the host country and only if satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person;

CONSIDERING that Sub-rule 65(D) provides that decisions on provisional release are subject to appeal in cases where leave to appeal is granted upon good cause being shown;

CONSIDERING that "good cause" within the meaning of Sub-rule 65(D) 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;

FINDING that the Prosecutor has failed to demonstrate such an error on the part of the Trial Chamber and that, therefore, the requirement of "good cause" within the meaning of Sub-rule 65(D) has not been met;

PURSUANT TO Rule 65,

HEREBY REJECTS the Application for Leave to Appeal and ORDERS the provisional release of Miroslav Tadic and Simo Zaric, subject to the Registry being satisfied that the practical arrangements for their provisional release have been made in accordance with the Decisions.

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

____________________________
Judge Lal Chand Vohrah, Presiding

Dated this nineteenth day of April 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]

   

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