Supplementation to “Defence Submissions on the Scope of the Right to Appeal within the meaning of Article 82(1) (b) of the Statute”

The Supplementation to “Defence Submissions on the Scope of the Right to Appeal within the meaning of Article 82(1) (b) of the Statute”, filed 7 February 2007, was submitted on 21 May 2007. The Defence argued that the decision confirming the charges were open to appeal and the Defence made several submissions to this effect. First, the Defence argued that the decision on the confirmation of the charges was in fact a decision rejecting the request for release, and thus, could be appealed under Article 82(1)(b) which allows for appeals of decisions “granting or denying release.” Secondly, the Defence focused on the right to liberty and its pervasiveness in various international instruments and criminal law systems.

It was the Defence’s view that Article 82(1)(b) allows for appeals on decisions which deny a request for release because to deny an appeal would deny the accused his right to liberty and therefore on a broad interpretation of Article 82(1)(b) any decision granting or denying release falls under the scope of Article 82(1)(b) and can be appealed in order to ensure that the right to liberty is upheld.

The Scope of Article 82(1)(b)

The Defence next addressed the scope of Article 82(1) (b) and determined that the interpretation of its scope by the Appeals Chamber should be broad in that it allowed for appeals of any decision denying or granting release and not just those decisions denying or granting interim release. This submission was made upon consideration of the scope of Rule 185 of the Rules of Procedure and Evidence, which addresses the release of a person from the custody of the Court other than upon completion of sentence and Article 60 of the Rome Statute which sets out the parameters for the grant of interim release for a person who surrenders to the court or who is before the Court pursuant to a summons or on the basis of an arrest warrant. The Defence argued that Article 82(1)(b)’s allowance for appeals refers to the broader scope of release under Rule185 and not the narrower category of interim release under Article 60.

Right to Appeal Decision on the Confirmation of Charges

The Defence submissions also addressed the issue of the right to appeal a decision on the confirmation of the charges. The Defence asserted that although no provision allows for an appeal of a decision on the confirmation of the charges, it is not legally logical to assume that an appeal is not allowed. Under the Defence’s interpretation of Article 82(1)(b), a confirmation of charges decision may be examined at the same time as an expressly appealable issue and thus that issue was appealable even though it was part of the confirmation of charges hearing. In this case it was submitted that the confirmation of charges decision was also a decision on release and thus was appealable under Article 82(1)(b). Also, the Defence pointed to the preparatory work and drafting of Article 81 regarding interlocutory appeals to show that the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in 1998 intended to allow appeals of decision that confirmed indictments. The Defence’s final argument posited that the adversarial nature of the proceedings on the confirmation of the charges should sway the Appeals Court to set down a precedent in international law that allows for appeals of a confirmation of charges decision.

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