"Order of the Appeals Chamber on the Motion of the Appelant for a Provisional and Temporal Release"

19 February 1999
Judges Nieto-Navia [Presiding], Wang, Rodrigues, Hunt and Bennouna

Introduction

Zdravko Mucic has appealed the Judgement of the Trial Chamber of 16 November 1998. On 17 February 1999, the Appellant through his Counsel submitted to the Appeals Chamber a Motion requesting temporary provisional release so that he might attend the funeral of his uncle in Bosnia & Herzegovina on 20 February 1999. The basis for the Motion was Rule 65 of the Rules of Procedure and Evidence.

The Majority Decision

On 19 February 1999, the Appeals Chamber by a majority of four to one with Judge Bennouna dissenting denied the Motion because in its view the requirements for provisional release specified in Sub-rule 65(B) had not been met.

The Dissenting Opinion

Judge Bennouna did not rule on the merits of the Motion since he dissented with the majority finding that the Appeals Chamber had jurisdiction in the matter. In his Dissenting Opinion of 22nd February 1999, Judge Bennouna explained that, in his view, the Appeals Chamber erred when it based its Decision on Rules 65 and 107.

Rule 107 states that "[t]he rules of procedure and evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber." Judge Bennouna, however, considered that the distinct and exclusive functions and jurisdictions of the Trial Chambers and Appeals Chamber should be borne in mind. Article 23 of the Statute gives to the Trial Chambers responsibility for rendering judgements and imposing sentences. The Appeals Chamber’s powers do not include all those of the Trial Chambers since Article 25 specifically tasks the Appeals Chamber only with rectifying errors of law or fact or sending matters back to a Trial Chamber for that purpose. Sub-rule 65(B) also confers upon the Trial Chamber the exclusive right to decide on the issue of provisional release, whereas Sub-rule 65(D) permits an appeal, on the basis of an alleged error of fact or law, to be lodged with the Appeals Chamber.

Judge Bennouna gave reasons for his decision and stressed that, in his view, the freedom of Judges to adapt the applicable Rules to take into account the circumstances of a particular case is limited by the principle of "textual clarity" which was also found by the Permanent Court of Justice in the Acquisition of Polish Nationality case (1923, Series B, Number 7). In the opinion of the dissenting Judge, the Tribunal’s credibility will ultimately be guaranteed by respect for its own Rules. Nothing can justify their being violated, not even the urgency involved in this matter.

As an alternative to the majority Decision of the Appeals Chamber, Judge Bennouna opined that the Appellant should have been referred back before a Trial Chamber for a decision on the Motion.