Case: IT-01-46-PT

I, Judge Alphons Orie, Judge 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 1992 ("the Tribunal"):

BEING SEIZED of the Defence Motion For Provisional Release ("the Motion"), filed on
14 December 2001 by the counsel for the accused Rahim Ademi ("the accused"), to which is attached an "Affidavit" of the accused, a letter of guarantee of the Government of the Republic of Croatia and a "Proposal for Provisional Release Made by the President of the Republic of Croatia";

CONSIDERING that the Motion was filed immediately prior to a period of recess and was thus presented to Me, as the Duty Judge, in accordance with Rule 28 of the Rules of Procedure and Evidence of the Tribunal ("the Rules");

CONSIDERING that, according to Rule 65 (A), an accused, once detained, may not be released except upon order of a Chamber; that Rule 28 (E) empowers the Duty Judge to take decisions on provisional detention pursuant to Rule 40 bis during periods of court recess; that Rule 40 bis provides not only for the ordering of provisional detention but also deals, in paragraph (G), with the submission of applications for release of a suspect;

CONSIDERING that if, in its reference to Rule 40 bis, Rule 28 (E) only refers to decisions on provisional detention to be taken during the investigative stage of the proceedings in respect of a suspect, this is not to be interpreted as an exclusion of power of the Duty Judge in relation to decisions on detention to be taken in the later stage of the proceedings in respect of an accused;

CONSIDERING that it follows from Rule 28 (B), (D) and (E) of the Rules that the Duty Judge should refrain from interfering in a case already assigned to a Trial Chamber unless that matter is urgent; that whether the urgency of the matter requires the Duty Judge to decide on the application concerned is an issue left to the discretion of the Judge, who will take into consideration all relevant circumstances;

CONSIDERING that it is not unreasonable to find that there is some urgency in any motion for provisional release, but that it is incumbent on the Duty Judge to establish whether the degree of urgency is such that it would require him to render a decision on the merits of the application;

CONSIDERING that the Motion was filed right before the judicial recess began; that no specific reason is set forth as to why 1) the application was not filed at an earlier stage; and 2) there would be specific reasons militating in favour of an urgent situation;

CONSIDERING that in reviewing an application for provisional release, it is incumbent on the court to balance the legitimate interest of the accused to enjoy his personal freedom with criteria that may militate in favour of his detention on remand, such as the seriousness of the crimes the accused was charged with, the risks of interference with witnesses or the chances that the accused will appear for trial;

CONSIDERING that, as a rule, such careful examination of a motion for provisional release should be performed by a Trial Chamber;

CONSIDERING, however, that special circumstances may create a degree of urgency which justifies the decision to be taken by a Duty Judge, inter alia circumstances beyond the control of the accused, such as necessary medical treatment outside the control of the Detention Unit, or unforeseen events or changes within the family of the accused, which would call for the prompt release of the accused;

CONSIDERING that I find no circumstance in the application nor any other circumstance that show a degree of urgency which would require that I use my powers as a Duty Judge to decide on the merits of the Motion;

ORDER that the Motion and all related filings or relevant documents be remitted to the Trial Chamber seized of the case for it to decide on the merits of the Motion in due course.

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

Dated this twenty first day of December 2001,
At The Hague,
The Netherlands

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Judge Alphons Orie
Judge on Duty