Case No. IT-01-42-PT

IN TRIAL CHAMBER I

Before:
Judge Alphons Orie
Judge Amin El Mahdi
Judge Joaquín Martín Canivell

Registrar:
Mr. Hans Holthuis

Order of:
18th September 2003

PROSECUTOR

v.

PAVLE STRUGAR

_____________________________________

DECISION DENYING CERTIFICATION TO APPEAL THE DECISION ON THE REQUEST FOR REVIEW OF THE REGISTRARíS DECISION AND FOR A SUSPENSION OF ALL TIME LIMITS

_____________________________________

The Office of the Prosecutor:

Mr. Susan Somers

Counsel for the Accused:

Mr. Goran Rodic
Mr. Vladimir Petrovic

 

TRIAL CHAMBER I (the "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 Tribunal");

BEING SEISED of the "Defence Request for Certification to Appeal "Decision on Defence Request for Review of Registrarís Decision and Motion for Suspension of all Time Limits" ", ("Application") filed on 27th August 2003, seeking certification from the Trial Chamber for interlocutory appeal of its decision denying the Defence request for a review of the Registrarís Decision of 6th June 2003 and to suspend all time limits ("Decision");1

NOTING the motion submitted by the Office of the Prosecutor (the "Prosecution") for leave to amend the indictment of 31st March 2003 and to file a second amended indictment ("the Prosecutionís Motion"), to which a copy of the draft of that second amended indictment ("the proposed second amended indictment") was attached;

NOTING that the Prosecution aims to limit the ratione temporis of the proposed second amended indictment to 6th December 1991;

NOTING the Decision Granting Leave to Amend the Indictment of 31st March 2003 and to file a Second Amended Indictment of 15th September 2003 which limits the ratione temporis to 6th December 1991, rather than the period of 3 months referred to in the amended indictment of 31st March 2003, and which limits the ratione materiae of the shelling to the Old Town of Dubrovnik;

NOTING the Chamberís Scheduling Order of 25th July 2003 for Submission of Pre-Trial Briefs and for setting the date for the Pre-Trial Conference, as amended on the 19th August 2003, postponing the Trial date until 9th October 2003;

NOTING that Defence argues in support of its Application that the Decision will significantly affect the fair and expeditious conduct of the trial for the following reasons:

  1. the ranking of the case at the third level is justified,
  2. pre-trial resources ran out on 5th August and the Defence was not in a position to spend hundreds of hours of counsel on a pro bono basis nor pay for investigative and legal assistance from its own pocket,
  3. there is a drastic inequality of arms between the Prosecution which comprises dozens of lawyers together with support staff and the accused who has no resources for basic pending tasks,
  4. the Defence will not be able to obtain essential evidence, it will not have reviewed disclosure and it will not be able to prepare essential pre-trial documents,
  5. the Defence will not be ready to cross-examine witnesses and may request postponement of their testimony, and if that is denied the Defence will proceed with cross examination and thereafter appeal the conviction, and
  6. "the expeditious conduct of the trial may be endangered by the ethical dilemma of the Defence to continue representation of the accused in the trial phase aware that the accused cannot be adequately defended";2

NOTING that, the Prosecution has not filed a response;

NOTING that in paragraph 19 of the Application the Defence confirms that the grounds are that the case has been ranked at the wrong level and not because exceptional circumstances exist;

NOTING that Rule 73 (B) of the Rules of Procedure and Evidence ("Rules") sets out two criteria to be satisfied before the Trial Chamber can exercise its discretion to certify a decision for interlocutory appeal:

  1. the issue significantly affects the fair and expeditious conduct of the proceedings or the outcome of the trial; and
  2. in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings;

CONSIDERING that the second amended indictment reduces the scope of the indictment and therefore an immediate resolution of the issue by the Appeals Chamber will not materially advance the proceedings;

FOR THE FORGOING REASONS and PURSUANT TO Rules 54 and 73 (B) of the Rules,

DENIES the Application.

 

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

Dated this 18th day of September 2003
At The Hague,
The Netherlands.

___________
Judge Alphons Orie
Presiding

[Seal of the Tribunal]


1. Decision on Defence Request for Review of Registrarís Decision and Motion for Suspension of all Time Limits, Prosecutor v Strugar, Case Number IT-01-42-PT, 19th August 2003.
2. The Motion para., 15.