IN A BENCH OF THE APPEALS CHAMBER
Judge Gabrielle Kirk McDonald, Presiding
Judge Mohamed Shahabuddeen
Judge Antonio Cassese
Mrs. Dorothee de Sampayo Garrido-Nijgh
1 July 1999
DECISION ON APPLICATION BY STEVAN TODOROVIC FOR LEAVE TO APPEAL AGAINST THE ORAL DECISION OF TRIAL CHAMBER III OF 4 MARCH 1999
The Office of the Prosecutor
Mr. Grant Niemann
Ms. Nancy Paterson
Mr. Christopher Staker
Mr. Branimir Avramovic for Milan Simic
Mr. Igor Pantelic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic, for Simo Zaric
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 ("International Tribunal");
NOTING the "Notice of Motion for Evidentiary Hearing on Arrest, Detention and Removal of Defendant Stevan Todorovic and for Extension of Time to Move to Dismiss Indictment", filed before Trial Chamber III by Counsel for the accused Stevan Todorovic ("Defence") on 11 February 1999 ("Motion");
NOTING that the Defence in the Motion, in purported reliance on Rule 55 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), sought the following orders from the Trial Chamber:
(i) an order "directing that a preliminary evidentiary hearing be had as to the facts and circumstances of the arrest, detention and delivery of the Defendant Stevan Todorovic to the jurisdiction of the Court on or about September, 1998"1;
(ii) an order "directing the Prosecutor to make available to defence all documents and things in the Prosecutors files as to manner, method and individuals who detained, arrested and delivered the Defendant Stevan Todorovic to the jurisdiction of the Court"2;
(iii) an order "directing the Prosecutor to Show Cause why an Order of dismissal of the Indictment as to Defendant Stevan Todorovic be not made and the Defendant Stevan Todorovic be not freed from custody absent proof that the arrest, detention and delivery of Defendant Stevan Todorovic was just and proper and in accordance with customary international law, practice and usage"3; and
(iv) an order "extending the time within which to move to dismiss on such grounds until twenty [ ] [days after] the completion of such hearing"4;
NOTING the oral decision denying the Motion rendered by Trial Chamber III on 4 March 1999 and affirmed in its written "Decision Stating reasons for Trial Chambers Order of 4 March 1999 on Defence Motion for Evidentiary Hearing on the Arrest of the Accused Todorovic", issued on 25 March 1999 ("Decision");
FURTHER NOTING the "Notice of Appeal and Appeal to the Appeal Chamber", filed on 30 March 1999 ("Appeal"), in which the Defence purported to seise the Appeals Chamber of an appeal against the Decision pursuant to Rules 107, 108 and 116bis and Sub-rule 72(B)(i) of the Rules;
NOTING the "Decision and Scheduling Order" issued on 18 May 1999, in which the Appeals Chamber rejected the Appeal on the basis that it was not properly seised of the matter;
NOTING MOREOVER that the Appeals Chamber in the above decision, pursuant to Rule 127 of the Rules, extended the time for the filing of a possible application for leave to appeal against the Decision under Sub-rule 73(B) of the Rules until 25 May 1999;
NOTING the "Accused Stevan Todorovics Motion for Leave to Appeal From a Certain Oral Order Dated March 4, 1999 and a Decision Dated March 25, 1999 Which Denied Motion for an Evidentiary Hearing on Abduction and Kidnapping and Thereafter for Leave to File a Motion to Repatriate the Accused to the Country of Refuge", filed by the Defence on 25 May 1999 ("Application");
NOTING the "Prosecution Response to the Motion for Leave to Bring an Interlocutory Appeal, Filed by the Accused Stevan Todorovic, Dated 24 May 1999", filed by the Office of the Prosecutor ("Prosecution") on 8 June 1999;
ACCEPTING the filing of the Application as validly done;
NOTING that the Defence in the Application seeks leave to appeal the Decision pursuant to Sub-rule 73(B) of the Rules which provides as follows:
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; or
(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally.
CONSIDERING that the Defence in the Motion sought an evidentiary hearing and an order directing the Prosecution to afford discovery as a preliminary step to an envisaged subsequent request for the dismissal of the indictment against the accused Stevan Todorovic and his release from detention;
FINDING that in these circumstances the Trial Chambers decision not to grant the Defence requests could cause such prejudice to the accused Stevan Todorovic as could not be cured by the final disposal of the trial including post-judgement appeal;
HEREBY DECIDES, unanimously, to grant leave to appeal on the issue of whether the Trial Chamber erred in denying the Defence request for an evidentiary hearing and an order directing the Prosecution to afford discovery.
Done in both English and French, the English text being authoritative.
Gabrielle Kirk McDonald Presiding
Dated this first day of July 1999
At The Hague,
[Seal of the Tribunal]
1. Notice of Motion for Evidentiary Hearing on Arrest, Detention and
Removal of Defendant Stevan Todorovic and for Extension of Time to Move to Dismiss
Indictment, filed on 11 February 1999 (Official Record at Registry Page ("RP")
D2984 D2989), at RP 2988.
3. Id. at 2987, 2988.
4. Id. at RP. 2987. See also Memorandum of Law in Further Support for an Evidentiary Hearing as to Abduction and Detention of Accused Todorovic, filed on 1 March 1999 (RP D3155 D3163), at RP D3155.