Case: IT-01-47-AR65
IT-01-47-AR65.2

BEFORE A BENCH OF THREE JUDGES OF THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding
Judge Mehmet Güney
Judge Asoka de Zoysa Gunawardana

Registrar:
Mr. Hans Holthuis

Decision of:
5 September 2002

PROSECUTOR
v
ENVER HADZIHASANOVIC
MEHMED ALAGIC
AMIR KUBURA

_____________________________________

DECISION ON APPLICATION FOR LEAVE TO APPEAL

_____________________________________

Counsel for the Prosecutor:

Mr. Ekkehard Withopf
Mr. Norman Farrell

Counsel for the Defence:

Ms. Edina Residovic and Mr. Stéphane Bourgon for Enver Hadzihasanovic
Ms. Vasvija Vidovic and Mr. John Jones for Mehmed Alagic
Mr. Fahrudin Ibrisimovic and Mr. Rodney Dixon for Amir Kubura

 

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 Tribunal"),

SEISED OF the "Rule 65(D) Application for Leave to Appeal the Decision on Motion of Amir Kubura to Vary the Conditions of his Provisional Release” filed by Amir KUBURA on 2 August 2002 and the “Rule 65(D) Application for Leave to Appeal the Decision on Motion for Change of Provisional Release Conditions” filed by Enver HADZIHASANOVIC on 2 August 2002 (together "the Applications" and "the Applicants");

NOTING the "Prosecution’s Response to ‘Rule 65(D) Application for Leave to Appeal the Decision on Motion of Amir Kubura to Vary the Conditions of his Provisional Release’" and the "Prosecution’s Response to ‘Rule 65(D) Application for Leave to Appeal the Decision on Motion for Change of Provisional Release Conditions’", both filed by the Prosecutor on 8 August 2002;

NOTING the "Decision on Motion of Amir Kubura to Vary the Conditions of his Provisional Release" and the "Decision on Motion for Change of Provisional Release Conditions", both issued by Trial Chamber II on 25 July 2002 (together "the Impugned Decisions");

CONSIDERING that the Impugned Decisions are rendered under Rule 65 of the Rules of Procedure and Evidence of the Tribunal ("the Rules");

NOTING that, pursuant to Rule 65(D) of the Rules, applications for leave to appeal decisions rendered under Rule 65 shall be filed within seven days of filing of the impugned decision;

NOTING that the Applications were filed eight days after the filing of the Impugned Decisions and are therefore out of time, but DECIDING nonetheless to consider the Applications;

NOTING that the Impugned Decisions deal with the motions of the Applicants to vary the terms of their provisional release to permit them to leave the confines of Sarajevo for the preparation of their defence and to visit family members, and that these motions are denied apart from the request of Amir Kubura to visit his mother who is unable to travel herself which is granted;

NOTING the arguments of the Applicants that the Trial Chamber’s concern that the Applicants’ request to leave Sarajevo for the preparation of their defence might violate the terms of their provisional release was groundless; that the Trial Chamber failed to give reasons for its failure to grant Mr. Hadzihasanovic’s request to visit relatives in contrast with its grant of Mr. Kubura’s request to visit his mother; that the Trial Chamber should have afforded the Applicants the opportunity to offer additional guarantees to meet its concerns if it was minded to deny the motions, and that the Trial Chamber failed to explain how the integrity of the proceedings would be compromised by granting the modifications sought;

NOTING that, pursuant to Rule 65 (A) and (B) of the Rules, once detained, an accused may not be released except upon an order of a Chamber and that such order may only be made after hearing the host country and only if the Trial Chamber is satisfied that the accused will appear for trial and, if released, will not pose a danger to any victim, witness or other person;

NOTING that, pursuant to Rule 65 (C) of the Rules, the Trial Chamber may impose such conditions upon the release of the accused as it may determine appropriate, including the observance of such conditions as are necessary to ensure the presence of the accused for trial and the protection of others;

NOTING that, pursuant to Rule 65(D) of the Rules, leave to appeal a decision rendered under that Rule may be granted upon good cause being shown;

CONSIDERING that "good cause" within the meaning of Rule 65(D) of the Rules 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 its decision;

CONSIDERING that the Applications do not demonstrate that the Trial Chamber may have erred in the exercise of its powers under Rule 65 (C);

HEREBY REJECTS the Applications.

 

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

Dated this fifth day of September 2002,
At The Hague,
The Netherlands.

________________________
Judge Fausto Pocar
Presiding

[Seal of the Tribunal]