Judge O-Gon Kwon, Presiding
Judge Patrick Robinson
Judge Iain Bonomy

Mr. Hans Holthuis

Order of:
25 October 2005







The Office of the Prosecutor:

Mr. David Akerson

Counsel for Ivica Marijacic:

Mr. Marin Ivanovic

Counsel for Markica Rebic:

Mr. Krešmir Krsnik


THIS TRIAL CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal"),

BEING SEIZED OF a "Prosecution’s Motion to Request for Certification of Interlocutory Appeal pursuant to Rules 72(B)(ii) and (C) of the Rules of Procedure and Evidence" filed on 14 October 2005 by the Office of the Prosecutor (the "Motion") seeking certification to challenge the "Decision on Prosecution Motions to Amend the Indictment," issued by the Trial Chamber on 7 October 2005 ("Decision"),

CONSIDERING that Rule 72(B) of the Rules of Procedure and Evidence of the International Tribunal ("Rules") requires two criteria be satisfied before a Trial Chamber may certify a decision for interlocutory appeal: (1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and (2) an immediate resolution of the issue by the Appeals Chamber may, in the opinion of the Trial Chamber, materially advance the proceedings,

NOTING that the arguments in favour of certification put forward by the Prosecution are that: (1) a possible consequence of the Decision could be an acquittal of Ivica Marijacic and Markica Rebic (“the Accused”), which would be a wrong outcome, (2) alternatively, should the Trial Chamber accept at trial that reference to the inherent power of the Tribunal to hold a person in contempt enables the Chamber to convict the Accused for conduct other than disclosure of information in knowing violation of an order, the refusal to allow the amendments to the indictment would cause unfairness to the Accused, (3) when an impugned decision involved the definition of the crime charged in the indictment, the same decision "cannot be reasonably considered but as "significantly" affecting the outcome of the trial," and (4) resolving the matter of whether the Accused could be found liable for conduct amounting to contempt other than disclosure of information in knowing violation of an order now is likely to expedite trial proceedings,

CONSIDERING that the other arguments put forward by the Prosecution in the Motion go to the substance of the Decision, rather than to the criteria to be satisfied for certification to be granted,

CONSIDERING that certification will only be granted if both of the criteria set out in Rule 72(B) are met,

CONSIDERING ALSO that the present case concerns allegations of contempt, that it is ready to go to trial, and that the trial proceedings should be concluded swiftly, and that an appeal to the Appeals Chamber would serve to delay the proceedings for several months,

CONSIDERING that the Prosecution has not sufficiently demonstrated how a decision by the Appeals Chamber on its challenge to the Decision would materially advance the proceedings,

PURSUANT TO Rules 72 and 54 of the Rules,

HEREBY DENIES the Request.


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

O-Gon Kwon

Dated this twenty-fifth day of October 2005
At The Hague
The Netherlands

[Seal of the Tribunal]