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The Hague, 11 October 1996
Delalic case (Celebici) : defendant seeks leave to
appeal against three decisions of Trial Chamber II.
Defendant Zejnil DELALIC has recently filed three applications for leave to appeal against the three latest decisions of Trial Chamber II in this case.
The impugned decisions are: decision of 25 September denying the accused's motion to be tried separately decision of 25 September denying the accused's motion for provisional release decision of 2 October denying the accused's motion on the form of the indictment.
The applications for leave to appeal against the above-mentioned decisions were filed on 4 October, 8 October and 10 October respectively. They are all based on Rule 72 (B)(ii) of the Rules of Procedure and evidence.
The procedure under Rule 72 (B)
The Rule 72 (B) of the Rules of Procedure and Evidence (RPE) was amended by the Judges during their last Plenary Session in June 1996. The new sub-paragraph (ii) extends the possibility of appeal against decisions on preliminary motions, which was so far restricted to the dismissal of objections based on lack of jurisdiction.
Paragraph (B) of the Rule 72 (General Provisions on Preliminary motions) reads in full:
(B) The Trial Chamber shall dispose of preliminary motions in limine litis and without interlocutory appeal, save
(i) in the case of dismissal of an objection based on lack of jurisdiction, where an appeal will lie as of right;
(ii) in other cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon serious cause being shown, within seven days following the impugned decision.
The above-mentioned application for leave to appeal must be filed within 7 days after the decision and the applicant must show "serious cause".
The seriousness of the grounds for the application, and its admissibility, are then determined by three Judges of the Appeals Chamber assigned on a case-by-case basis by the President of the International Tribunal, Judge Antonio Cassese.
Only if the leave to appeal is granted by this Bench will the merits of the case be considered by the full Appeals Chamber.
The implementation of the Rule in this case
The President of the International Tribunal has assigned the following Judges to the bench called upon to consider the admissibility of the Defendant's applications:
Judge Antonio CASSESE (Presiding), Judge Haopei LI and Judge Jules DESCHENES..
The Prosecutor has been invited to respond to the Defendant's applications.
The decisions of the Appeals bench are expected before the end of the week of 14 to 18 October 1996.
The Defendant's applications
On the issue of separate trial
The Defendant contends mainly that he should have been indicted separately, that he is entitled to "a prejudicial trial"on his alleged position as a commanding person, and that the Decision ordering a joint trial is given "for several accused persons although the motions were different [with] completely different facts and legal argumentation".
In its response, the Prosecutor submits that "the accused has not been able to demonstrate serious cause justifying the granting of leave to appeal" and notes "in particular" that the accused has not demonstrated "a significant risk that his defence will be seriously prejudiced by an erroneous ruling by Trial Chamber".
On the issue of provisional release.
The Defendant contends that the "right to freedom" is the rule, that the right to appeal is "a right of every individual whose rights have been violated by a particular decision", and that, according to the Code on Criminal Proceedings "in force in the Republic of Bosnia and Herzegovina", the "length of detention must be limited to the shortest required time" and the "major offenses do not necessarily require determination of detention".
By the time of this press-release, the Prosecutor had not filed his response yet.
On the issue of the form of the indictment.
The Defendant contends mainly that the indictment "does not contain facts on acts of the accused which would constitute factual statement on criminal responsibility", that the indictment of the accused is "unclear and contradictory" while the accused "is entitled to a clear indictment to be able to prepare his defence", and that the Trial Chamber has partly based its decision on "evidence which cannot be used in the proceedings" since the Defence has filed "a request (on which the decision is still pending) to exclude evidence obtained from the accused or having belonged to him".
By the time of this press-release, the Prosecutor had not filed its response yet.
International Criminal Tribunal for the former Yugoslavia
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