Case No. IT-02-60-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Registrar:
Mr. Hans Holthuis

Decision of:
23 April 2004

PROSECUTOR

v.

VIDOJE BLAGOJEVIC
DRAGAN JOKIC

______________________________________________

DECISION ON REQUEST FOR CERTIFICATION OF INTERLOCUTORY APPEAL OF THE TRIAL CHAMBER’S JUDGEMENT ON MOTIONS FOR ACQUITTAL PURSUANT TO RULE 98 BIS

______________________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Mr. Branko Lukic for Dragan Jokic

 

    I. INTRODUCTION

  1. Trial Chamber I, Section A (“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 (“Tribunal”) is seised of the “Prosecution’s Request for Certification of Interlocutory Appeal of the Trial Chamber’s Judgement on Motions for Acquittal pursuant to Rule 98 bis,” (“Request”) filed on 15 April 2004 by the Office of the Prosecutor (“Prosecution”). The Prosecution requests that the Trial Chamber grant certification to appeal the “Judgement on Motions for Acquittal pursuant to Rule 98 bis,” (“Judgement”) rendered on 5 April 2004, on the basis that the issues raised in the Request satisfy the requirements of Rule 73(B) of the Rules of Procedure and Evidence (“Rules”).

  2. In the Judgement, the Trial Chamber granted the motions for acquittal pursuant to Rule 98 bis filed by the Accused in part,1 and accordingly entered a judgement of acquittal: for Vidoje Blagojevic on Counts 2 to 4 of the Indictment insofar as his individual criminal responsibility is alleged, under Article 7(1) of the Statute, for planning, instigating, ordering and committing the crimes; for Vidoje Blagojevic on Counts 5 and 6 of the Indictment insofar as his individual criminal responsibility is alleged, under Article 7(1) of the Statute, for planning, instigating and ordering the crimes; and for Dragan Jokic on Counts 2 to 5 of the Indictment insofar as his individual criminal responsibility is alleged, under Article 7(1) of the Statute, for planning, instigating and ordering the crimes. The Trial Chamber further rejected certain factual allegations contained in the Indictment.

    II. APPLICABLE PROVISIONS

  3. Article 23 of the Statute governs the issuance of judgements by the Trial Chamber. The relevant Rule on judgements for the present Request is Rule 98 bis (“Motion for Judgement of Acquittal”) which provides:

    (A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85 (A)(ii).

    (B) The Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges.

  4. The relevant provision of the Statute governing appeals proceedings is Article 25, which provides:

    1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds:

    (a) an error on a question of law invalidating the decision; or
    (b) an error of fact which has occasioned a miscarriage of justice.

    2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers.

  5. Rule 73 (“Other Motions”) of the Rules provides:

    (A) After a case is assigned to a Trial Chamber, either party may at any time move before the Chamber by way of motion, not being a preliminary motion, for appropriate ruling or relief. Such motions may be written or oral, at the discretion of the Trial Chamber.

    (B) Decisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.

    (C) Requests for certification shall be filed within seven days of the filing of the impugned decision. Where such decision is rendered orally, this time-limit shall run from the date of the oral decision, unless

    (i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or

    (ii) the Trial Chamber has indicated that a written decision will follow, in which case the time-limit shall run from filing of the written decision.

    If certification is given, a party shall appeal to the Appeals Chamber within seven days of the filing of the decision to certify.

  6. Rule 108 (“Notice of Appeal”) of the Rules provides:

    A party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgement was pronounced, file a notice of appeal, setting forth the grounds. The Appellant should also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought. The Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal.

    III. DISCUSSION

    A. Rule 73 of the Rules

  7. The Prosecution brings its request for certification pursuant to Rule 73 of the Rules. Rule 73(B) provides that a Trial Chamber may grant certification if the decision in question involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. Rule 73 of the Rules was amended in 2001 and 2002,2 with the effect that decisions rendered pursuant to this Rule was without interlocutory appeal, save in cases where certification for such an appeal has been granted by the Trial Chamber.3

  8. The amendment to Rule 73(B) of the Rules at the Twenty-third Plenary in April 2001 specifically included “denials under Rule 98 bis, Motion for Judgement of Acquittal,” in the non-exhaustive list of the kind of “decisions” on “motions involving evidence and procedure” that would be without interlocutory appeal, save for cases in which the Trial Chamber has granted certification for interlocutory appeal.4 Rule 73(B), as amended in April 2001, further provided that those “decisions” that are without interlocutory appeal “may be assigned as grounds for appeal from the final judgement.” Through the amendment of Rule 73 in July 2002, any reference to Rule 98 bis in this Rule was removed. Additionally, as is reflected in the current Rule 73, any reference to decisions without interlocutory appeal being assigned as grounds for appeal from the final judgement was removed from the Rule.

  9. The Trial Chamber finds that Rule 73(B) of the Rules applies to decisions rendered by the Trial Chamber pursuant to Rule 73 of the Rules.5

    B. The Judgement at Issue in the Request

  10. The Prosecution seeks certification for the Judgement rendered pursuant to Rule 98 bis of the Rules. Rule 98 bis falls within Section Four of Part Six of the Rules, namely that section entitled “Judgement”. The Judgement is therefore not a decision rendered pursuant to Rule 72 or Rule 73 of the Rules.

  11. The effect of granting, in whole or in part, a motion pursuant to Rule 98 bis of the Rules is that a judgement of “acquittal” is entered for those offences charged in the indictment for which the Trial Chamber has found that “the evidence is insufficient to sustain a conviction on that or those charges”.6 The accused is thereby “judicially discharged from an accusation”7 with the effect that he ceases to be charged with the said offence or offences.

  12. As stated above, the Trial Chamber entered judgements of acquittal for both Accused in relation to certain modes of liability, a practice which this Trial Chamber observes has precedent in other cases.8 Additionally, the Trial Chamber dismissed certain factual allegations in the Indictment.

  13. Rule 108 provides, in part, that a party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgement was pronounced, file a notice of appeal, setting forth the grounds for such appeal.9 Under a plain-language reading of the Rules and taking into account the amendment history of Rules 72 and 73, the Trial Chamber finds that Rule 108 – and not Rule 73 – is the proper Rule under which to bring an appeal from a judgement including a judgement rendered pursuant to Rule 98 bis.10

  14. The Trial Chamber notes that one trial chamber has entertained requests for certification under Rule 73 of judgements rendered pursuant to Rule 98 bis of the Rules.11 This Trial Chamber, however, endorses the practice in the case of Prosecutor v. Goran Jelisic, in which the parties filed a notice of appeal pursuant to Rule 108 of the Rules following a judgement rendered pursuant to Rule 98 bis.12 The Trial Chamber observes that while Rule 73 has been amended since the time that the Jelisic case was heard, the amendment does not have any impact on Rule 98 bis and the proper avenue by which to bring an appeal from such a judgement.

    IV. DISPOSITION

    15. The Trial Chamber finds that the Prosecution erred in bringing the request under Rule 73 of the Rules. Accordingly, pursuant to Rule 73 of the Rules, the Trial Chamber DISMISSES the Request.

 

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

______________
Judge Liu Daqun
Presiding

Dated this twenty-third day of April 2004,
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - See, “Defendant Dragan Jokic’s Motion for Acquittal Pursuant to Rule 98 bis,” 2 March 2004; and “Vidoje Blagojevic’s Motion for Judgement of Acquittal Pursuant to Rule 98 bis,” 2 March 2004.
2 - Rule 73 was amended in at the Twenty-third Plenary held in April 2001, with the effect that interlocutory appeals could be granted either by a bench of three Judges of the Appeals Chamber (in cases where the decision in question 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 in cases where the proposed appeal is of general importance to proceedings before the Tribunal or international law generally) or upon certification by a Trial Chamber if an interlocutory appeal of the motion involving “evidence or procedure” is appropriate “for the continuation of trial.” Rule 73 was amended again at the Twenty-fifth Plenary held in December 2001 to include time-limits for requests for certification and appeal. Rule 73(B) was subsequently amended at the Plenary held in July 2002 to read:
Decisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.
3 - Rule 72, which applies to preliminary motions, was also amended at the Plenary held in July 2002, with the effect that in cases other than motions challenging jurisdiction, interlocutory appeals will no longer be granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown, but rather, only where certification has been granted by a Trial Chamber upon a finding that the decision in question involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings.
4 - The Trial Chamber notes with interest that even under the construction of Rule 73 that specifically included reference to Rule 98 bis, it only included reference to denials under Rule 98 bis, and not situations such as that which the Prosecution in the Request is seeking to appeal, namely the granting (in part) of a motion pursuant to Rule 98 bis.
5 - Rule 73 (“Other Motions”) is the provision under which parties bring all motions, other than preliminary motions, before the Trial Chamber for appropriate ruling or relief.
6 - Rule 98 bis (B).
7 - Black’s Law Dictionary, Seventh Edition, definition of “acquitted”.
8 - See, Judgement, fn. 22, citing Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-T, Decision on Defence Motions for Judgement of Acquittal, 6 April 2000; Prosecutor v. Miroslav Kvocka et. al, Case No. IT-98-30/1-T, Decision on Defence Motions for Acquittal, 15 December 2000; and Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23-T and IT-96-23/1-T Decision on Defence Motions for Judgment of Acquittal, 3 July 2000. See also¸ Prosecutor v. Milomir Stakic, Case No. IT-97-24-T, Decision on Rule 98 bis Motion for Judgement of Acquittal, 31 October 2002. The Trial Chamber takes note of the Appeals Chamber’s comments on this issue in Prosecutor v. Radislav Brdjanin, Case No. IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004, para. 11: “As regards the second alleged error, namely the submission that the Trial Chamber erred in law in dismissing proceedings under a mode of liability at the Rule 98bis stage, it is sufficient to say that the purpose of Rule 98bis proceedings is to test the sufficiency of the Prosecution’s evidence-in-chief, and that this purpose does not preclude the Trial Chamber from entertaining legal issues where determination of those issues at that time is of benefit to the parties and the efficiency of the proceedings.”
9 - The Trial Chamber notes that Rule 108 further provides (as per the amendment at the Twenty-fifth Plenary in December 2001): “The Appellant should also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or decision or ruling challenged with specific reference to the date of its filing, and/or transcript page, and indicate the substance of the alleged errors and the relief sought.” The Trial Chamber observes that this sentence is to be read in the context of Rule 108 (appeal of a judgement) and consistent with the interlocutory appeals process provided for in Rule 72(B) and Rule 73(B) of the Rules.
10 - The Trial Chamber further observes that the decision to grant certification under Rule 73(B) is a discretionary one (“may”). In order to ensure that the rights of all accused to be equal before the Tribunal (Article 21(1) of the Statute) is respected, the Trial Chamber considers that a discretionary avenue of appeal would not be appropriate in cases where the issue determined by the Trial Chamber is whether to enter a judgement of acquittal on one or more offences in the indictment.
11 - See, Prosecutor v. Radislav Brdjanin, Case No. IT-99-39-T, Oral Decision Granting Certification, Transcript of trial proceedings of 3 December 2003, page 23122; and Prosecutor v. Radislav Brdjanin (concerning allegations against Milka Maglov), Case No. IT-99-36-R77, Decision on Request to Trial Chamber under Rule 73 to Certify Permission to Appeal Decision on Motion for Acquittal under Rule 98 bis dated 19 March 2004, 20 April 2004.
12 - See, Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, Prosecution’s Notice of Appeal, 21 October 1999.