|(Exclusively for the use of the media. Not an official document)||
The Hague, 27 November 1996
Delic case (Celebici): three Judges reject the application of the accused
seeking leave to appeal of the decision denying provisional release.
In a decision dated 22 November 1996, an Appeals Bench rejected the application of the accused Hazim DELIC seeking leave to appeal of the decision of 24 October 1996 by which Trial Chamber II rejected provisional release (see Press release 123).
This application for leave to appeal was filed on 5 November 1996 under Rule 72 (B)(ii) of the Rules of Procedure and Evidence, and was considered by the three following Judges of the Appeals Chamber: Antonio CASSESE (President), Haopei LI, and Jules DESCHENES (see Press Release 126).
Arguments of the Judges
The decision of the Judges rejecting Hazim DELIC's application is based on two main arguments:
1. The fact that this application, concerning a decision on provisional release, is not related to matters covered by the article of the Rules dealing with preliminary motions (namely lack of jurisdiction, defects in the form of the indictment, exclusion of evidence, severance of crimes joined in one indictment or for separate trials, denial of request for assignment of counsel) and "is therefore not within the interlocutory jurisdiction of Appeals Chamber".
2. Given that the application of the accused is not based on serious grounds: "(...) Trial Chamber II has quite fairly set out and analysed the various arguments advanced by Delic and has disposed of them convincingly. (...) the Applicant has not even alleged, still less established, either that the Trial Chamber misdirected itself on the law or misapprehended the factual underpinnings of his motion for release".
The right to liberty
Notwithstanding their decision to reject the application of the accused, the Judges were of the opinion that it raised, among other procedural issues, the fundamental question of the "right to liberty under international law". Their decision therefore addressed the arguments of the Defence on this point.
The Judges held, first of all, that "The right to liberty is without question a fundamental human right", and specified that "the right also entails the right to an effective remedy for deprivation or violation of that right". Regarding this point, the Judges noted that by filing an application to the Trial Chamber, the Applicant exercises "his right to challenge the lawfulness of his detention" and therefore has not been deprived of his right to an effective judicial remedy. Judges held that "the word "effective" does not mean that the Application has to succeed; this would be a nonsense". The Judges stated that the Chamber examined the situation of the accused "quite properly", "in accordance with the appropriate norms and human rights standards".
The Judges also noted that the application of Hazim DELIC refers more specifically to article 14(5) of the International Covenant on Civil and Political Rights which states that "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to the law". Regarding this provision, the Judges considered that it "applies only to conviction and sentence, not to provisional release or other interlocutory matters". They added that the guarantees contained in Article 14(5) of the Covenant "are also garanteed in the Tribunal's proceedings", namely Article 25 of the Satute and Rule 108(A) of the Rules of Procedure and Evidence.
International Criminal Tribunal for the former Yugoslavia
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