Case No.: IT-03-69-PT
IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Decision of:
8 February 2006

PROSECUTOR

v.

JOVICA STANISIC
FRANKO SIMATOVIC

______________________________________________________________

DECISION ON DEFENCE REQUESTS FOR CERTIFICATION TO APPEAL DECISION GRANTING PROSECUTION LEAVE TO AMEND THE AMENDED INDICTMENT

_______________________________________________________________

Office of the Prosecutor

Ms. Hildegard Uertz-Retzlaff
Mr. Alex Whiting
Mr. David Re
Mr. Marek Michon

Counsel for Jovica Stanisic

Mr. Geert-Jan Alexander Knoops
Mr. Wayne Jordash

Counsel for Franko Simatovic

Mr. Zoran Zovanovic

THIS TRIAL 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”),

BEING SEIZED of the (1) partly confidential “Defence Request for Certification for Appeal of Trial Chamber’s Decision of 16 December 2005 and Confidential Annex ” filed on 21 December 2005 (“Stanisic Motion”) by the Defence of Jovica Stanisic (“Stanisic Defence”) and (2) confidential “Defence Request for Certification of Interlocutory Appeal on Trial Chamber’s ‘Decision on Prosecution Motion for Leave to Amend the Amended Indictment’” filed on 21 December 2005 (“Simatovic Motion”) by the Defence of Franko Simatovic (“Simatovic Defence”), in which the Stanisic Defence and Simatovic Defence request, pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), certification to appeal the “Decision on Prosecution Motion for Leave to Amend the Amended Indictment” issued on 16 December 2005 granting the Office of the Prosecutor (“Prosecution”) leave to amend the amended Indictment (“Trial Chamber Decision”),1

NOTING that the Prosecution did not file responses to the Stanisic Motion and the Simatovic Motion,

NOTING that, in requesting certification to appeal the Trial Chamber Decision , the Stanisic Defence argues that “(i) The Trial Chamber failed to allow the Defence to respond to additional materials submitted by the Prosecution, thereby restricting its right to be heard in accordance with Rule 50(A)(i)(c); (ii) The Trial Chamber failed to take into account the impact on SsicC the Prosecution’s failure to comply with the Defence requests in a timely manner on the ability of the Defence to respond to the amendment motion; (iii) The Trial Chamber incorrectly applied the test of unfair prejudice; (iv) The Trial Chamber incorrectly applied the prima facie standard”,2

NOTING that the Stanisic Defence requests that the deadline to file a preliminary motion regarding the Second Amended Indictment does not begin to run either until a decision, should the present request for certification be granted, is issued by the Appeals Chamber, or until a decision, should the present request for certification be denied, is issued by the Trial Chamber,3

NOTING that, in requesting certification to appeal the Trial Chamber Decision , the Simatovic Defence argues that the “Trial Chamber was misled, and/or that the whole material relevant for assessing whether the criteria from Article 19, paragraph 1 of the Statute were met was not accessible to the Trial Chamber” by submitting that a particular statement made by a Prosecution witness to a Belgrade investigative judge was not part of the supporting materials submitted by the Prosecution, although another statement made by the same witness to the Prosecution was included in the supporting materials,4

NOTING that the Simatovic Defence requests that the particular statement in question be disclosed (to the Defence and Trial Chamber) and that it be added as supplementary supporting material,5

CONSIDERING that the right to be heard pursuant to Rule 50(A)(i)(c) of the Rules has not been restricted in light of the fact that the Stanisic Defence and the Simatovic Defence, in their responses to the Prosecution’s submission of the additional materials,6 addressed each of the additional materials,7

CONSIDERING that the supporting materials were disclosed to the Stanisic Defence and the Simatovic Defence,8 and that they responded to the Prosecution’s motion requesting leave to amend the Amended Indictment on 28 June 2005 and 29 June 2005,9 with the Stanisic Defence submitting an oversized response,10

CONSIDERING FURTHER that a determination of whether the evidence of the Prosecution is sufficient to establish the charges pleaded in the Second Amended Indictment against the two Accused is ultimately a matter for trial, during which time the Stanisic Defence and the Simatovic Defence can submit their own evidence including exculpatory materials that may affect the weight of the Prosecution evidence,

CONSIDERING that the decision to grant the Prosecution leave to amend an indictment is a discretionary one,

CONSIDERING that, in determining whether unfair prejudice would follow from the amendment, the Trial Chamber took into consideration the circumstances of the case as a whole, including the present stage of the proceedings, and restated the continuing obligation of the Chamber to ensure that the Accused will have an adequate opportunity to prepare an effective defence, and therefore the ground of appeal asserting that the Trial Chamber incorrectly applied the test of unfair prejudice is unarguable,

CONSIDERING that the test of whether a prima facie case has been established by the Prosecution pursuant to Article 19, paragraph 1, of the Statute requires the Trial Chamber to consider the supporting materials submitted in support of the proposed amendment and decide whether they provide “a credible case which would (if not contradicted by the Defence) be a sufficient basis to convict the accused on the charge”,11 and not to reach final conclusions on competing submissions about the materials,

CONSIDERING that the Stanisic Defence and the Simatovic Defence present no arguable ground of appeal that the Trial Chamber could not have reached the conclusion that a prima facie case was established by the materials actually submitted by the Prosecution,

CONSIDERING that Rule 73(B) of the Rules requires that two criteria be satisfied before a Trial Chamber may certify a decision for interlocutory appeal: (1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and (2) an immediate resolution of the issue by the Appeals Chamber may, in the opinion of the Trial Chamber, materially advance the proceedings,

CONSIDERING THEREFORE that the Stanisic Defence and the Simatovic Defence have not sufficiently demonstrated how the two criteria of Rule 73(B) of the Rules have been satisfied,

PURSUANT TO Rules 50, 54, 72, 73, and 126 bis of the Rules,

HEREBY DENIES the Stanisic Motion in part and the Simatovic Motion in its entirety and ORDERS the Stanisic Defence and the Simatovic Defence to file their respective preliminary motion, if any, no later than Friday, 10 March 2006.

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

________________________
Judge Patrick Robinson

Dated this eighth day of February 2006
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - See “Prosecution’s Submission of Second Amended Indictment”, 20 December 2005 (“Second Amended Indictment”).
2 - Stanisic Motion, para. 2.
3 - Stanisic Motion, para. 30.
4 - Simatovic Motion, para. 14.
5 - Simatovic Motion, para. 16.
6 - See partly confidential “Prosecution’s Submission of Supplementary Supporting Materials to Motion for Leave to Amend the Amended Indictment,” 6 July 2005.
7 - Confidential “Response to Prosecution Submission of Supplementary Supporting Materials to Motion for Leave to Amend the Amended Indictment” filed by the Stanisic Defence on 14 July 2005 and the confidential “Response to Prosecution Submission of Supplementary Supporting Materials to Motion for Leave to Amend the Amended Indictment” filed by the Simatovic Defence on 19 July 2005.
8 - On 15 June 2005, the Trial Chamber ordered the Prosecution to immediately disclose the supporting materials to the Defence and the Defence to file their response to the motion by 29 June 2005. “Decision on (1) Defence Motions for Access to Ex Parte Supporting Materials Related to the Prosecution Motion for Leave to Amend the Amended Indictment; and (2) Request from the Defence of Stanisic for Leave to File a Response Exceeding the Page Limit to the Prosecution Motion for Leave to Amend the Amended Indictment”.
9 - “Defence Response to “Prosecution’s Motion for Leave to Amend the Amended Indictment’” filed by the Simatovic Defence on 28 June 2005 and the Confidential “Response to Prosecution Motion to Amend Amended Indictment” filed by the Stanisic Defence on and 29 June 2005.
10 - Request for leave to file the oversized response, which included 25 pages of main text and 31 pages of double sided attachments, was granted by the Trial Chamber.
11 - See Prosecutor v. Kordic et al., Case No. IT-95-14-I, Decision on the Review of the Indictment, 10 November 1995, at p. 3.