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The Hague, 15 October 1996
CC/PIO/117-E
Delalic case (Celebici) : three Judges reject the application by
the accused for leave to appeal the decision on joint trials.
In a decision delivered on 14 October 1996, a bench of three Judges of the Appeals Chamber, Judge CASSESE (President), Judge LI and Judge DESCHÊNES, rejected the application of the accused DELALIC to appeal the decision of Trial Chamber II of 25 September 1995.
The decision rejected the preliminary motion presented by the accused for leave to be tried separately from his co-accused.
The application for leave to appeal was presented on 4 October 1996 pursuant to Sub-rule 72(B)(ii) of the Rules of Procedure and Evidence which states:
(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.
Since Sub-rule 72 (B)(ii) is being cited for the first time, the Judges considered it
"'advisable to issue guidelines for the future application of this Rule".
The Scope of Sub-rule 72(B)(ii)
The Judges first established that paragraph (ii) of Sub-rule 72 (B) "is intended to create a Ôfilter' for appeals relating to matters other than jurisdiction" in order to avoid "the Appeals Chamber from being flooded with unimportant or unnecessary appeals which unduly prolong pre-trial proceedings.".
According to the text of this provision, only appeals justified by "serious cause" may be granted. Nonetheless, the Judges did raise the issue as to "what is meant by the Ôserious cause' to be shown by the appellant?"
In respect of this, the Judges defined three concurrent criteria:
1. The Bench should consider whether the application is within the Tribunal's appellate jurisdiction.
For preliminary motions, the rule of the International Tribunal is:
the possibilities for the accused to present the motions are limited to five cases which are listed in Rule 73: lack of jurisdiction, defects in the form of the indictment, exclusion of certain evidence, severance of crimes joined in one indictment, and the denial of request for assignment of counsel;
except for the dismissal of a motion on lack of jurisdiction, the decisions of the Trial Chamber on preliminary motions must be disposed of "without interlocutory appeal".
Paragraph (ii) of Sub-rule 72 (B) is, however, construed as an exception to that principle. Considering that it must be interpreted "restrictively", the Judges consider:
that "only if the application for leave to appeal relates" to one of the preliminary motions enumerated in Rule 73 may leave to appeal be granted; and that "such leave may be granted whether the application is made by the Defence or by the Prosecutor". It is clear that Rule 73 covers only the preliminary motions raised by the accused but, pursuant to the "principle of equality of arms", the Prosecutor is also entitled to appeal.
2. The request must not be "frivolous, vexatious, manifestly ill-founded, an abuse of the process of court or (...) vague and imprecise."
3. The request must demonstrate "serious cause".
Clearly, the application for leave to appear must demonstrate "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 material to the future development of trial proceedings".
The application of Sub-rule 72 (B)(ii) in the present case
Applying the above defined criteria to the request of the accused DELALIC, the Judges concluded:
1. that it did relate to one of the preliminary motion which the accused is entitled to file, namely, separate trials,
2. that it was neither frivolous, vexatious, manifestly ill-founded, an abuse of the process of court or vague and imprecise,
3. but that it did not demonstrate the existence of a grave error which would cause prejudice to the accused or the justice.
For the foregoing reasons they dismissed the application for leave to appeal.
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International Criminal Tribunal for the former Yugoslavia
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