An Introduction To The International Criminal Court - Institute for ...

trial and appeal 159
‘[a]ny other ground that affects the fairness or reliability of the proceedings
or decision’. The Prosecutor is also entitled to appeal a conviction on
behalf of the defendant. 91 Sentences may be appealed by both Prosecutor
and convicted person ‘on the ground of disproportion between the crime
and the sentence’. If, during an appeal against sentence, the Court considers
there are grounds to set aside a conviction, it may intervene to quash the
judgment. Similarly, it may also intervene on sentence during an appeal
taken against the conviction only.
In addition to final judgments of the Trial Chamber on questions of
guilt or innocence, and on the sentence, appeals regarding specific or interlocutory
issues that are decided in the course of prosecution are allowed
in certain cases. 92 Appeal is also permitted regarding decisions dealing with
admissibility and jurisdiction, those granting or denying release of a person
being investigated or prosecuted, certain decisions of the Pre-Trial Chamber,
and any ruling ‘that would significantly affect the fair and expeditious conduct
of the proceedings or the outcome of the trial’. An example of such an
appeal, drawn from the case law of the International Criminal Tribunal for
the Former Yugoslavia, is the jurisdictional appeal raised by Dusko Tadic.
It resulted in a seminal ruling of the Appeals Chamber issued prior to the
beginning of the trial itself that pronounced on such matters as the legality
of the creation of the Tribunal by decision of the Security Council and the
scope of its subject-matter jurisdiction, especially with respect to war crimes
committed in non-international armed conflict. 93
During an appeal of a conviction or sentence, the execution of the decision
or sentence is suspended, although the convicted person should remain
in custody. Given the conviction, it can no longer be said that the person
benefits from the presumption of innocence and as a result the same entitlement
to provisional release does not exist. However, if an appellant is
detained during the appeal and if the full sentence is served during that
time, he or she must be released. In the event of acquittal, an accused is
normally to be released immediately, although the Prosecution may apply
to the Trial Chamber for an order imposing continued detention pending its
appeal of the verdict. Interlocutory appeals are potentially disruptive of the
normal course of trial, and afford the defence an opportunity to generate
91 Rome Statute, Art. 81. 92 Ibid., Art. 82.
93 Prosecutor v. Tadic (Case No. IT-94-1-AR72), Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, 2 October 1995, (1997) 105 ILR 453, (1997) 35 ILM 32.