BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Lal Chand Vohrah
Judge Rafael Nieto-Navia

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
27 October 2000

PROSECUTOR

v.

MIROSLAV KVOCKA
MILOJICA KOS a/k/a "KRLE"
MLA–O RADIC a/k/a "KRKAN"
ZORAN ŽIGIC a/k/a “ŽIGA”
DRAGOLJUB PRCAC

____________________________________________________________

DECISION ON MOTION OF THE ACCUSED ZORAN ŽIGIC
FOR LEAVE TO APPEAL

____________________________________________________________

Counsel for the Prosecutor:

Ms. Brenda Hollis

Counsel for the Accused:

Mr. Krstan Simic for Miroslav Kvocka
Mr. Žarko Nikolic for Milojica Kos
Mr. Toma Fila for Mlado Radic
Mr. Slobodan Stojanovic for Zoran Žigic
Mr. Jovan Simic for Dragoljub Prcac

 

THIS BENCH of the Appeals 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 ("the Bench" and "the International Tribunal", respectively),

BEING SEIZED OF the "Motion of the Accused Zoran Žigic for Leave to Appeal the Oral Decision of Trial Chamber I of 6 September 2000 on the Defence Motion to Exclude a SsicC New Accusatory Events from the Witness Testimony", filed confidentially on 13 September 2000 pursuant to Rule 73 (B) (i) and (ii) of the Rules of Procedure and Evidence ("the Motion" and "the Rules", respectively);

NOTING the "Prosecution’s Response to the Motion of the Accused Zoran Žigic for Leave to Appeal the Oral Decision of Trial Chamber I of 6 September 2000 on the Defence Motion to Exclude New Accusatory Events from the Witness Testimony", filed confidentially on 25 September 2000;

NOTING that the Accused Zoran Žigic has not filed any reply within the time-limit set by the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal (IT/155);

NOTING that the Motion alleges that in the course of examination-in-chief by the Prosecutor, a protected witness provided information about three events involving the Accused Zoran Žigic which was not included in either the Indictment or the previously disclosed witness’s statement, and which it considers to contain "new accusatory events" of which the Defence was not informed before the testimony;

NOTING that the Motion further alleges that, as a result of the testimony, the Defence suffers incurable prejudice and that the hearing of such testimony by the Trial Chamber, in spite of the objection of the Defence, raises an issue of general importance to the proceedings before the International Tribunal;

CONSIDERING that the Motion is filed pursuant to Rule 73 (B) which provides that decisions on motions other than preliminary motions are without interlocutory appeal, save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave:

(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal;

(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally;

CONSIDERING that it is for the Defence to show the Bench either that such prejudice has arisen to its case by the testimony given that could not be cured by the final disposal of the trial including post-judgement appeal, or that the impugned decision of the Trial Chamber raises an issue of general importance to proceedings before the International Tribunal or in international law generally;

CONSIDERING that there has been no showing of such prejudice, given that the Defence has a number of options prior to the close of the trial to remedy the situation, including the cross-examination of the witness in question;

CONSIDERING also that the issue in the proposed appeal is not of general importance to proceedings before the International Tribunal or in international law generally;

HEREBY DECIDES to dismiss the Motion.

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

 

_____________________
Judge Shahabuddeen
Presiding

Dated this twenty-seventh day of October 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]