Case No. IT-04-84-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Registrar:
Mr. Hans Holthuis

Decision of:
21 October 2005

PROSECUTOR

v.

RAMUSH HARADINAJ
IDRIZ BALAJ
LAHI BRAHIMAJ

____________________________________________________

INTERIM DECISION ON PROSECUTION MOTION TO STAY THE TRIAL CHAMBERíS DECISION OF 12 OCTOBER 2005 REGARDING CONDITIONS OF PROVISIONAL RELEASE OF RAMUSH HARADINAJ

____________________________________________________

The Office of the Prosecutor:

Ms. Carla del Ponte

Mr. Stephan Waespi
Mr. Gilles Dutertre
Mr. Philippe Vallieres-Roland

Accused / Counsel for the Accused:

Ramush Haradinaj:
Mr. Ben EmmersonMr. Rodney
DixonMr. Conor Gearty
Mr. Michael O’Reilly

Idriz Balaj
Mr. Gregor Guy-Smith

Lahi Brahimaj
Mr. Richard Harvey

 

TRIAL CHAMBER II ("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 "Decision on Defence Motion of Ramush Haradinaj to Request Re-assessment of Conditions of Provisional Release Granted 6 June 2005" ("Variation Decision"), issued by this Trial Chamber on 12 October 2005, in which it ordered, by a majority, that

Notwithstanding any other condition in the Decision on Provisional Release, the Accused may appear in public and engage in public political activities to the extent which UNMIK finds would be important for a positive development of the political and security situation in Kosovo, subject to the prior approval by UNMIK of a request by the Accused regarding each individual activity concerned.

The Trial Chamber requires UNMIK to assume responsibility to authorise or deny the Accusedís above-referred activities on a case-by-case basis, and to include any such activity in the bi-weekly reports submitted to the Trial Chamber pursuant to the Decision on Provisional Release. UNMIK is also required to indicate any such future activity of the Accused in these reports, provided that there is a pending request by the Accused before UNMIK;

NOTING the "Prosecutionís Appeal Against ĎDecision on Defence Motion of Ramush Haradinaj to Request Re-assessment of Conditions of Provisional Release Granted 6 June 2005í" ("Appeal Motion"), filed by the Office of the Prosecutor ("Prosecution") on 19 October 2005, in which it is argued that the Trial Chamber in its Variation Decision erred by allowing Ramush Haradinaj ("Accused") to appear in public and to participate in public political activities, furthermore, that the Trial Chamber improperly delegated judicial powers to the United Nations Interim Administration Mission in Kosovo ("UNMIK"), and lastly, that the regime envisaged by the Trial Chamber deprives the Prosecution of an opportunity to be heard on the Accusedís requests, and thus denies equality of arms between both parties;

BEING SEIZED of the "Prosecution Motion to Stay the Decision on Defence Motion of Ramush Haradinaj to Request Re-assessment of Conditions of Provisional Release Granted 6 June 2005" ("Motion to Stay"), filed by the Prosecution on 13 October 2005, in which the Prosecution requests that the Trial Chamber stay the Variation Decision until the conclusion of the appeal proceedings on this issue;

NOTING the Trial Chamberís "Order Relating to the Prosecution Motion to Stay the Decision on Defence Motion of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005" ("Order to Stay") of 14 October 2005, in which the Trial Chamber ordered a provisional stay of its Variation Decision until such time that the Defence has responded to the Motion to Stay, when the Trial Chamber will be in a position to take a decision on the issue;

NOTING the "Defence Response on Behalf of Ramush Haradinaj to Prosecution Motion to Stay the Decision on Defence Motion of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted on 6 June 2005" ("Response"), filed by counsel for Ramush Haradinaj ("Defence") on 17 October 2005, in which the Defence submits that the Variation Decision should not be stayed, there being no procedural or substantive basis for such a stay;

NOTING that both the arguments of the Defence contained in their Response and the grounds of appeal contained in the Prosecution Motion of Appeal go to the heart of the central considerations that lie at the basis of the Trial Chamberís Variation Decision, reached by majority, and the accompanying Dissenting Opinion of the Presiding Judge Carmel Agius;

NOTING that as from the moment of the filing of the Appeal Motion by the Prosecution on
19 October 2005, all these issues, for all intents and purposes of law, are now before the Appeals Chamber and not before this Trial Chamber which, therefore, has only before it the residues of the Prosecution Motion to stay the Variation Decision and the Defence Response thereto;

CONSIDERING it more appropriate to leave the matter whether the provisional stay of its Variation Decision should be extended in the hands of the Appeals Chamber which is in a better position to know how long the hearing and the determination of the Prosecutionís Appeal Motion will take and which has before it the partiesí submissions have filed subsequent to the Variation Decision;

PURSUANT TO Rule 54 of the Tribunalís Rules of Procedure and Evidence

DECIDES to postpone its final decision on the Motion to Stay pending a determination by the Appeals Chamber whether to be seized of and to decide the matter of staying the Variation Decision.

Done in English and French, the English version being authoritative.

Dated this twenty-first day of October 2005
At The Hague
The Netherlands

________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]