Case No.: IT-98-34-AR73.4

BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Lal Chand Vohrah
Judge Fausto Pocar

Registrar:
Mr. Hans Holthuis

Decision of:
12 November 2001

PROSECUTOR

v.

MLADEN NALETILIC a/k/a "TUTA"
VINKO MARTINOVIC a/k/a "STELA"

___________________________________________________________

DECISION ON APPLICATION BY VINKO MARTINOVIC FOR LEAVE TO APPEAL THE DECISION OF TRIAL CHAMBER I DATED 17 SEPTEMBER 2001

___________________________________________________________

Counsel for the Prosecutor:

Mr. Kenneth Scott

Defence Counsel:

Mr. Kresmir Krsnik, for Mladen Naletilic
Mr. Branko Seric, for Vinko Martinovic

 

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 International Tribunal"),

BEING SEISED of the "Request for Leave to Appeal" filed by Vinko Martinovic ("the Applicant") on 20 September 2001 ("the Application for Leave to Appeal");

NOTING the "Prosecutorís Response to Vinko Martinovicís Request for Leave to Appeal and Motion to Accept Late Filing" filed on 2 October 2001 ("the Prosecutionís Response");

NOTING the oral decision of Trial Chamber I of 17 September 2001 ("the Impugned Decision") which denies the Applicantís request that, following the testimony of the first ten Prosecution witnesses, a recess of 60 days be granted in order for the Defence to prepare the cross-examination;

NOTING that the Prosecution acknowledges that its Response was filed one day late according to the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT/155) ("the Practice Direction") and requests the Bench to accept the late filing;

NOTING that this Bench of the Appeals Chamber recognises the late filing as validly done pursuant to Article 14 of the Practice Direction;

CONSIDERING that the Application for Leave to Appeal is filed pursuant to Rule 73(D) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") 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:

  1. 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;
  2. if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally;

NOTING Rule 73(B) and (C) of the Rules which provide that:

  1. Subject to paragraph (C) decisions rendered during the course of the trial on motions involving evidence and procedure (including, without limiting the generality of this Rule, orders and decisions under Rule 71, Depositions, and denials under Rule 98 bis, Motion for Judgement of Acquittal) are without interlocutory appeal. Such decisions may be assigned as grounds for appeal from the final judgement;

(C) Trial Chamber may certify that an interlocutory appeal during trial from a decision involving evidence or procedure is appropriate for the continuation of the trial. If such certification is given, a party may appeal to the Appeals Chamber without leave.

CONSIDERING that it is for the Bench to determine whether a motion is one involving evidence and procedure and thus falling under Rule 73(B) of the Rules, or a motion other than a preliminary motion falling under Rule 73(D) of the Rules;

CONSIDERING that in many instances decisions rendered during the course of a trial involve issues of evidence and procedure, but that in this instance the substance of the Application for Leave to Appeal is directed to the question of the fairness of the trial;

CONSIDERING that the Application for Leave to Appeal was properly filed under Rule 73(D) of the Rules;

NOTING that the Application for Leave to Appeal submits that the manner in which the Prosecution provided the Defence with the names of its witnesses, the statements of its witnesses, and 17 binders containing potential exhibits did not leave enough time for the Defence to prepare for cross-examination of the Prosecutionís witnesses;

NOTING that the Prosecution notified the Defence before the commencement of the trial of the names of the witnesses that it intended to call, including the names of the first 10 witnesses notified about one month prior to the commencement of the trial;

CONSIDERING that the Applicant has not presented an arguable case for saying that the names of the witnesses so notified by the Prosecution were not notified "as early as reasonably practicable" within the meaning of Rule 67(A) of the Rules;

NOTING that it is not contested by the Applicant that the statements of the Prosecutionís witnesses were made available to the Defence within the applicable time and that, in particular, the majority of the witness statements were made available to the Defence prior to June 2000, that is to say, more than a year before the commencement of the trial;

CONSIDERING therefore that the Prosecution has complied with its obligations under the Rules relating to the notification of its list of witnesses and supplying copies of the statements of its witnesses;

CONSIDERING that, the Applicant not having made any request under Rule 66(B) of the Rules, the Prosecution was not required to permit the Defence to inspect any objects in the Prosecutionís custody or control, but that the Prosecution nevertheless disclosed 17 binders containing potential exhibits and that it did so one week prior to the commencement of the trial;

CONSIDERING that any possible prejudice could well be redeemed through the remedies normally available at the final disposal of the trial including post-judgement appeal;

NOTING the Applicantís submission that the Impugned Decision would not allow him to receive a fair trial if the rights afforded by Article 21(1) and 21(4)(b) of the Statute of the International Tribunal are not guaranteed,

CONSIDERING however that the circumstances in question are not sufficient to present an arguable case that the fair trial principle is attracted in this matter;

FINDING that the Applicant has not established that the issue in the proposed appeal is of general importance to proceedings before the International Tribunal or in international law generally;

FOR THE FOREGOING REASONS, HEREBY DISMISSES the Application for Leave to Appeal.

 

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

_______________________________
Mohamed Shahabuddeen
Presiding Judge

Dated this twelfth day of November 2001
At The Hague,
The Netherlands.

[Seal of the Tribunal]