Judge Rafael Nieto-Navia, Presiding
Judge Wang Tieya
Judge Almiro Simões Rodrigues
Judge David Anthony Hunt
Judge Mohamed Bennouna

Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
22 February 1999





The Office of the Prosecutor:

Mr. Yapa Upawansa

Defence Counsel :

Mr. John Ackerman for Zejnil Delalic
Ms. Nihada Butorovic, Mr. Howard Morrison for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran for Hazim Delic
Ms. Cynthia Sinatra, Mr. Peter Murphy for Esad Landzo


On 19 February 1999, the Appeals Chamber issued a decision rejecting the Motion submitted by Zdravko Mucic for provisional and temporary release on the basis of Rules 65 and 107 of the Rules of Procedure and Evidence (hereinafter "the Rules") of the Tribunal. I did not rule on the merits of this Motion since I believe that the Appeals Chamber does not have the jurisdiction to decide that matter, as I explain further in this dissenting opinion. Nothing, not even the urgency invoked here, would justify violating the rules governing the Tribunal, the respect of which is the ultimate guarantee of the credibility of this international institution.

In his request for provisional release dated 17 February 1999, Zdravko Mucic bases his arguments on the "general equitable principles and the rules of natural justice in the nature of ius naturale and/or ius gentium", after having recognised that "there may be nothing in the Rules that exactly covers the Appellant’s instant requests". I believe that the Appeals Chamber erred in basing its decision on Rules 65 and 107 of the Rules of the Tribunal.

According to Sub-rule 65(A) concerning provisional release, "once detained, the accused may not be released except upon an order of a Trial Chamber". This provision thus determines one of the functions or powers of the Trial Chambers while specifying that they have an exclusive right to exercise such powers, that is, they alone may do so. Therefore, it may not be deduced from Rule 107 that the Appeals Chamber is also empowered to rule on provisional release matters. According to that Rule, "the rules of procedure and evidence that govern proceedings in the Trial Chambers shall apply mutatis mutandis to proceedings in the Appeals Chamber". As is often the case in procedural and evidentiary matters, that provision is designed to avoid revisiting on the Appeals Chamber all the technical functions of the Trial Chamber and the evidence it may receive, with the understanding that the two Chambers have very distinct functions and jurisdictions. The Trial Chamber "shall pronounce judgements and impose sentences and penalties on persons convicted of serious violations of international humanitarian law" (Article 23(1) of the Statute of the Tribunal), whereas the Appeals Chamber hears appeals of the Trial Chamber decisions and on specific grounds ("an error of fact which has occasioned a miscarriage of justice", Article 25 of the Statute). The Appeals Chamber does not re-try an entire case, as an appeals chamber in some legal systems would do. It does not supplant the Trial Chamber in all areas falling within the unfettered discretion of the Trial Chamber. The Appeals Chamber intervenes to rectify the errors of fact or law or sends the matter back to the Trial Chamber in order to do so. Therefore we should not be content with summarising the relationship between the Appeals Chamber and the Trial Chambers by the phrase "he who can do more can do less". Otherwise the Appeals Chamber might replace the Trial Chamber at any given moment and in all of its functions which, in fact, it may only do in the specific cases provided by the Statute and the Rules. Hence, provisional release matters fall within the jurisdiction of the Trial Chamber which renders the judgement, subject (in the case of an error of fact or law) to an appeal before the Appeals Chamber (Sub-rule 65(D) of the Rules).

The intended meaning of the expression "mutatis mutandis" in Rule 107 is the transposition to the Appeals Chamber of the provisions in the Rules provided for the Trial Chambers, while taking into account the specificity of the Trial Chambers and, inter alia, the functions which are exclusively reserved to them, as it is specified clearly in Rule 65 of the Rules.

The Judge’s freedom of interpretation to take into account the "realities" and thereby to adapt the Rules is limited by the principle of textual clarity, that is, by the need to adhere to the "ordinary meaning" of the words (Vienna Convention on the Law of Treaties of 23 May 1969).

The Permanent Court of Justice had made that assertion as early as 1923 in the following terms: "The duty of the Court is clearly defined. When faced with a text whose clarity leaves nothing to be desired, the Court is obliged to apply it as it stands..."* (Acquisition of Polish Nationality, 1923, Series B, Number 7, p. 20). It appears to me that the Appeals Chamber, when faced with Rule 65 which gives a Trial Chamber the exclusive right to decide provisional release matters, should apply that rule as it stands, find that it has no jurisdiction, and send the appellant back before a Trial Chamber, even though the time may come for the Appeals Chamber to exercise its functions in respect of an appeal as provided by Sub-rule 65(D) of the Rules.


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

Done this twenty-second day of February 1999
At The Hague
The Netherlands

Judge Mohamed Bennouna

(Seal of the Tribunal)

* Unofficial translation