BEFORE A BENCH OF THE APPEALS CHAMBER
Before: Judge Lal Chand Vohrah, Presiding
Judge Wang Tieya
Judge Rafael Nieto-Navia
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 3 March 1998
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON APPLICATION OF DEFENDANT ZEJNIL DELALIC
FOR LEAVE TO APPEAL AGAINST THE ORAL DECISION
OF THE TRIAL CHAMBER OF 12 JANUARY 1998 REQUIRING ADVANCE DISCLOSURE OF WITNESSES BY THE DEFENCE
The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Teresa McHenry
Mr. Giuliano Turone
Counsel for the Accused:
Ms. Edina Residovic and Mr. Eugene OSullivan, for Zejnil Delalic
Mr. Zeljko Olujic and Mr. Michael Greaves, for Zdravko Mucic
Mr. Salih Karabdic and Mr. Thomas Moran, for Hazim Delic
Mr John Ackerman and Ms. Cynthia McMurrey, for Esad Landzo
1. On 30 January 1998, this Bench of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (respectively, "the Bench" and "the International Tribunal") was assigned by the President of the International Tribunal to examine an application for leave to appeal from Zejnil Delalic, one of the defendants in Prosecutor v. Delalic et al.1 (respectively, "the Delalic Application" and "the Celebici case") pursuant to Rule 73 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"). The Delalic Application2 was filed on 28 January 1998 challenging an oral decision of 12 January 1998 of the Trial Chamber currently conducting the trial in the Celebici case ("the oral Decision")3.
2. In the oral Decision, the Trial Chamber granted a motion by the Office of the Prosecutor ("Prosecution") requesting disclosure by the Defence of lists of witnesses it intends to call seven days prior to the hearing of those witnesses. The reasons for the oral Decision were reserved to a later date.
3. The Delalic Application was filed on the grounds that: (1) the oral Decision ran counter to a previous ruling by the Trial Chamber on this matter dated 21 February 1997 and to the Rules and the Statute of the International Tribunal; (2) this matter could not be satisfactorily resolved by an appeal at the close of the case; and (3) "this appeal" would not cause any real prejudice to the Prosecution.
4. The Trial Chamber rendered its written Decision on 4 February 1998 setting out the reasons behind the oral Decision and that written Decision was filed on 9 February 19984 ("the written Decision").
5. The Prosecution submitted its Response to the Delalic Application on 9 February 1998 ("Response")5.
II. ISSUES IN CONTENTION
6. The dispute pending before the Bench is in substance concerned with whether the Defence may be ordered by the Trial Chamber to disclose its lists of witnesses to the Prosecution seven days prior to the calling of the witnesses during the trial. Procedurally, the question is whether leave to appeal may be granted by the Bench in accordance with Rule 73. Thus it is the application of the provisions of Rule 73 that is for consideration first; only if the requirements of Rule 73 are met may the full Appeals Chamber consider the merits of the Delalic Application.
A. Rule 73
7. Rule 73, entitled "Other Motions", provides:
(A) After a case is assigned to a Trial Chamber, either party may at any time move before the Chamber by way of motion, not being a preliminary motion, for appropriate ruling or relief. Such motions may be written or oral, at the discretion of the Trial Chamber.
(B) Decisions on such 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.
(C) Applications for leave to appeal shall be filed within seven days of the filing of the impugned decision.
8. It is clear that the provisions of Sub-rules 73 (B) and (C) are those which govern the Delalic Application. Sub-rule 73 (B) consists of two exceptions to a general bar on interlocutory appeal of all Rule 73 motions. Either the impugned decision must have prejudiced the case of the moving party to the extent that the consequences may not be cured by the final disposal of the trial; or the issue in the motion must be of general importance to the proceedings before the International Tribunal or in international law generally. Sub-rule 73 (C) provides the time-limit for filing applications under Rule 73.
B. Submissions Of The Applicant
9. The Defence submitted in the Delalic Application that the oral Decision of the Trial Chamber fell under both exceptions contained in Sub-rule 73 (B), and that the issues the Delalic Application raised "are central to fairness to the accused and the proper conduct of international criminal proceedings, namely the proper construction of the Rule 67 and the obligation of the defence to disclose to the prosecution the names of its witnesses other than those specifically mentioned in Sub-rule 67 (A)(ii)"6.
10. By way of explanation of the preceding submissions, the Defence argued that the central issues had been decided by the Trial Chamber in its Decision of 21 February 19977, and that the Chamber itself declared, in another Decision of 25 September 19978, that it was functus officio once a matter had been decided. Further, it was pointed out that a proper interpretation of the Rules and the Statute of the International Tribunal would not warrant the conclusion that the Defence was obliged to disclose witness lists to the Prosecution in the course of trial.
C. Response of the Prosecution
11. In its Response, the Prosecution submitted that, by filing the Delalic Application out of time, the Defence failed to comply with the jurisdictional time-limit set by Sub-rule 73 (C). Furthermore, it was suggested by the Prosecution that the Appeals Chamber "should be slow to interfere with the way in which a Trial Court elects to conduct the trial before it", as "[t]he Trial Chamber is best placed to determine how the Trial should be conducted with respect to its own proceedings"9. Moreover, it was stated briefly that the Delalic Application failed to show how the issues it raised could be of general importance to the proceedings before the International Tribunal or in international law generally, as required by Sub-rule 73 (B)(ii). In the conclusion of the Response, it was noted that, contrary to the assertions in the Delalic Application, the Trial Chamber Decision of 21 February 1997 was confined to the pre-trial stage of the proceedings.
III. THE FINDINGS OF THE BENCH
12. Sub-rule 73 (C) requires that application for leave to appeal be filed within seven days of the filing of the impugned decision. The oral Decision challenged in the Delalic Application was given by the Trial Chamber on 12 January 1998 and the Delalic Application was filed on 28 January 1998. Therefore the Bench finds that the Delalic Application was filed out of time.
13. Notwithstanding the above finding, the Bench notes that no substantial reason has been offered in the Delalic Application to establish that the impugned oral Decision of the Trial Chamber would cause such prejudice to the Defence case as could not be cured by the final disposal of the trial including post-judgement appeal. Therefore the Bench finds that the Delalic Application fails to meet the requirements of Sub-rule 73 (B)(i).
14. Although the substantive issues raised by the Delalic Application, namely the scope of Rule 54 and Sub-rule 67 (A), and the alleged obligation on the Defence to disclose lists of witnesses to the Prosecution in the course of trial, are indeed of general importance for the proceedings before the International Tribunal, the Bench is of the view that the written Decision is well-reasoned. The Bench, without wanting to repeat the reasons of the Decision, would like to emphasise that, as regards Sub-rule 67 (A), no particular problems arise. The controlling words in interpreting the scope of that Rule are "in any event prior to the commencement of the trial". Further, the Rule is concerned with "Reciprocal Disclosure" at the pre-trial stage. There is no restriction as to disclosure after the commencement of the trial. Rule 54 is intended to be a general rule concerning various types of orders a Judge or a Trial Chamber may issue proprio motu or upon request of either the Prosecutor or the accused. Those orders may regulate the conduct of the trial. This general power is to be exercised in conjunction with the more specific powers provided for elsewhere in the Rules. The scope of Rule 54 is therefore not ambiguous in this regard. The Bench finds that the interpretation of these two Rules has achieved sufficient consistency in the practice of the International Tribunal, to the extent that no further question arises as to the interpretation of the scope of Rule 54 and Sub-rule 67 (A) or the obligation of the Defence to disclose witness lists during trial, and that the Delalic Application has therefore failed to meet the conditions of Sub-rule 73 (B)(ii).
15. The Bench notes in passing that Sub-rule 73 (A) provides for the right of either party in a case to move, at any time after the assignment of the case, before a Trial Chamber "for appropriate ruling or relief", and that Sub-rule 73 (B) commences: "Decisions on such motions are without interlocutory appeal save . . . ." It follows that there is no restriction as to the content of such motions, and that the Trial Chamber has the power under both Rule 54 and Sub-rule 73 (A) to make orders or decisions, as appropriate, to dispose of the motions.
16. The Bench is fully conscious of the purpose of Articles 20 and 21 of the Statute of the International Tribunbal. A fair and expeditious trial in accordance with the Rules, as required under Article 20, shall be ensured by every Trial Chamber in the cases that come before it. Given that trial hearings in the Celebici case have been ongoing for almost a year, there is every reason to consider the adoption of useful but legitimate ways of making the trial expeditious, taking full account of the guarantees of the accused laid down in Article 21. The disclosure of the lists of the names of the Defence witnesses, in the absence of any protective measures having been granted, does not infringe such guarantees. If anything, it will make the trial more effective and expeditious.
17. For the foregoing reasons, pursuant to Sub-rule 73 (C) of the Rules, THE BENCH OF THE APPEALS CHAMBER UNANIMOUSLY REJECTS the Application by Zejnil Delalic for leave to appeal against the oral Decision of the Trial Chamber of 12 January 1998.
Done in both English and French, the English text being authoritative.
Lal Chand Vohrah
Dated this third day of March 1998
At The Hague
[Seal of the Tribunal]
1. Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as "Pavo", Hazim Delic, Esad Landzo also known as "Zenga", Case No. IT-96-21-T, T. Ch. II ("Prosecutor v. Delalic et al").
2.Application of the Defendant Zejnil Delalic for Leave to Appeal the Oral Decision of the Trial Chamber of 12 January 1998 pursuant to Rule 73, ibid., 28 Jan. 1998 ("the Delalic Application").
3.Transcript, ibid., 12 Jan. 1998, pp. 9684-85.
4. Decision on the Prosecutions Motion for an Order Requiring Advance Disclosure of Witnesses by the Defence, ibid., 9 Feb. 1998 ("the Decision").
5. Prosecution Response to the Application of Defendant Zejnil Delalic for Leave to Appeal the Oral Decision of the Trial Chamber of 12 January Pursuant to Rule 73, ibid., 9 Feb. 1998 ("Response").
6. Delalic Application, supra, n.2, p.3.
7. Decision on the Applications Filed by the Defence for the Accused Zejnil Delalic and Esad Landzo on 14 February 1997 and 18 February 1997 Respectively, ibid., 21 Feb. 1997, paras. 9-11.
8. Decision on the Motion for Exclusion of Evidence by the Accused, Delalic, ibid., 25 Sept. 1997, para.43.
9. Response, supra, n.5, p.3.