PARTIALLY DISSENTING OPINION OF JUDGE LIU DAQUN

The issue presented to the Trial Chamber is whether the Trial Chamber should grant certification for an interlocutory appeal of the Joinder Decision of 21 September 2005 for two of the accused, namely Vinko Pandurevic and Radivoje Miletic. The majority of the Trial Chamber has decided that the motions for certification of both accused should be granted. In respect of Radivoje Miletic, I fully agree with the majority of the Trial Chamber that certification should be granted. As regards the accused Vinko Pandurevic, however, I respectfully dissent from the majority opinion, for the following reasons.

In my opinion, the Defence for Vinko Pandurevic ("Defence") has failed to meet the standard set out in Rule 73(B) of the Rules of Procedure and Evidence ("Rules"), in particular the first criterion of that Rule.

Rule 73(B) establishes, as its starting point, that Decisions on all Motions are without interlocutory appeal, but the Rule then goes on to say that leave to appeal may be granted if the Trial Chamber finds that the Decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial. The relation between the first and the second part of this provision would seem to imply that leave to appeal should only be granted if there is a risk that the Decision, if it were allowed to stand, would significantly impair the fairness (or expediousness) of the trial. This is the test that the Applicant must pass.

4. For an Applicant to do so, in my view, it is not enough to merely refer to the fact that the Decision somehow "involves an issue that would significantly affect" the fairness of the trial; he also has to demonstrate just how the Trial Chamber’s Decision, if it were allowed to stand, would have a significant negative impact on the fairness of the trial. The obvious way of illustrating this is to show that the Trial Chamber erred in its application of the law or misinterpreted the facts laid out in the Parties’ submissions .
5. Pandurevic, however, has done neither. Although he is charged with crimes that are related to the crimes for which the potential co-Accused have been indicted, he claims that his case differs substantially from their cases, but he does not explain why or how. Nor does he point to any error in law or fact which the Trial Chamber may have made. In my view, therefore, Vinko Pandurević has failed to show that the fairness of his trial will be affected by joining his case with the potential co-Accused persons.

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Judge Daqun Liu

Dated this sixth day of October 2005,
At The Hague,
The Netherlands

[Seal of the Tribunal]