|(Exclusively for the use of the media. Not an official document)||
The Hague, 16 October 1996
Delalic case : three Judges dismiss the last two applications by the accused for leave to appeal.
In two decisions delivered on 15 October 1996, a bench of three Judges of the Appeals Chamber, Judge CASSESE (Presiding); Judge LI and Judge DECHÊNES refused to grant leave to the accused DELALIC to appeal the Decisions of Trial Chamber II dated 25 September 1996 and 2 October 1996.
The first Decision dismissed the application for the provisional release of the accused. The second Decision denied the preliminary motion of the accused on grounds of defects in the form of the indictment.
On 8 October 1996, and then on 10 October 1996, the accused, pursuant to Sub-rule 72 (B)(ii) of the Rules of Procedure and Evidence, had presented two applications for leave to appeal.
The Scope of Sub-rule 72(B)(ii)
In their two decisions of 15 October 1996, the Judges noted that this Rule was applied for the very first time further to the request of the same accused in respect of the Decision denying his request for separate trials (cf. Press Release 117).
The Judges recalled that the interpretation of Rule 72 (B)(ii) which was made on that occasion means that "a three-fold test of cumulative conditions is to be applied whenever an application for leave to appeal" under that Rule is concerned:
1. The application must concern one of the four matters (other than lack of jurisdiction, for which the appeal is as of right) stipulated in the Rule on preliminary motions (defects in the form of the indictment, exclusion of evidence, applications for severance of crimes joined in one indictment for separate trials, denial of request for assignment of counsel);
2. The application must satisfy a "negative" condition: it may not be frivolous, vexatious, manifestly ill-founded, an abuse of the process of court, or vague and imprecise;
3. The application must show "serious cause" stated otherwise, it must "show a grave error (...) which would cause substantial prejudice to the accused or is detrimental to the interests of justice" or must "raise issues which are not only of general importance but are also directly relevant to the future development of trial proceedings."
The application of Sub-rule 73 (B)(ii) to the present case
Applying the above cited criteria to the two applications of the accused which they were to consider, the Judges reached the following conclusions:
1. The application in respect of the denial of provisional release:
Since the provisional release cannot be the subject of a preliminary motion, the Decision of the Trial Chamber which was challenged does not fall within the jurisdiction of the Appeals Chamber. The application for leave to appeal is therefore inadmissible. The Judges also indicated that even if had been admissible under the above mentioned condition on jurisdiction, "had it been necessary to reach the third test, the Decision would have gone against the Accused". In fact, the accused, who has justified his application for leave to appeal on reasons "which are essentially the same as those he had put forward"to the Trial Chamber did not show "serious cause."
2. The application in respect of the denial of the motion on the indictment:
The Judges noted that the application of the accused does "relate to one of the issues covered" by the Rule on preliminary motions. But they did not "consider that serious cause has been shown. The application addressed itself exclusively to factual and legal issues which arise solely in respect of this accused and this indictment, the proper consideration of which falls to the Trial Chamber." It is the Trial Chamber which must decide "whether the indictment is in proper form for the conduct of a fair and expeditious trial (...) Only if the Decision by the Trial chamber appears to be vitiated by a grave error (...) will the Bench grant leave to appeal. Such is not the case here".
International Criminal Tribunal for the former Yugoslavia
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