Case No. IT-95-14-R77.4

IN TRIAL CHAMBER I

Before:
Judge Alphons Orie, Presiding
Judge Christine Van Den Wyngaert
Judge Bakone Moloto

Registrar:
Mr Hans Holthuis

Decision:
13 January 2006

PROSECUTOR

v.

MARIJAN KRIZIC

______________________________________________

DECISION REFERRING THE DEFENCE "APPEAL DATED 29 DECEMBER" TO THE APPEALS CHAMBER

______________________________________________

The Office of the Prosecutor:

Mr David Akerson

Counsel for the Accused:

Mr Emil Havkic for Mr Marijan Krizic

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");

CONSIDERING that Mr. Marijan Krizic’s ("the Accused’s") "Appeal" filed on 29 December 2005 ("the Appeal") was recorded by the Registry as if addressing this Trial Chamber, which consequently and to that extent is seised of the Appeal;

NOTING the Prosecution Motion to Strike Krizic’s Appeal of the Trial Chamber’s "Decision to Deny the Accused Marijan Krizic’s Preliminary Motion to Challenge Jurisdiction", filed on 5 January 2006, wherein the Prosecution submit that the Appeal should be struck from the court record because it was filed before the Trial Chamber and not before the Appeals Chamber;

NOTING the "Reply to the Prosecution’s Motion to Strike Krizic’s Appeal of the Trial Chamber’s "Decision to Deny the Accused Marijan Krizic’s Preliminary Motion to Challenge Jurisdiction" filed on 6 January 2006, whereby the Defence submit that the Appeal should not be struck from the court record because the Appeal was originally sent to the Registry for filing with a cover page indicating that the Appeal was addressed "to: THE APPEALS CHAMBER", and the cover page being only replaced upon guidance of a representative of the Registry;

CONSIDERING that the cover page of the filed version of the Appeal does not match with the following pages in terms of TX/RX Numbers (7029 against 7018), and time of the telefax communication (the cover page succeeding the following pages by four hours and 43 or 44 minutes in each of the time systems indicated on the telefaxed document); which gives credence to the argument of the Defence that the cover page was replaced;

CONSIDERING that the Chamber further accepts that the Defence demonstrated probable cause in respect of replacement of the cover page of the Appeal that was initially presented to the Registry, by now presenting a cover page that contains the words "to: THE APPEALS CHAMBER" and a relevant fax journal supporting the chronology of the chain of events;

CONSIDERING that Defence counsel, even where he convincingly claims to have included the words "to: APPEALS CHAMBER" on the initially sent cover page, has nevertheless created confusion by also stating on this cover page that he acted "BEFORE TRIAL CHAMBER I" and by stating the names of the judges that had issued the initial Decision;

CONSIDERING, however, that from the initial cover page it becomes sufficiently clear that the Defence addressed its Appeal to the Appeals Chamber, and that the Chamber therefore considers the Appeal as before the Appeals Chamber;

NOTING that the Chamber, by referring the Appeal to the Appeals Chamber, being the Chamber to which it was addressed, has not taken any position as to whether an interlocutory appeal under Rule 72(B)(i) of the Rules, as of right in the Defence’s claim,¹ can be lodged against the Trial Chamber’s Decision, in which the ruling of the Appeals Chamber² on the inapplicability of Rule 77(D) of the Rules in contempt cases was explicitly relied upon; it is for the Appeals Chamber to decide upon the admissibility of the Appeal;

FOR THE FOREGOING REASONS:

PURSUANT TO Rule 72 of the Rules, the Chamber hereby:

REFERS this Appeal to the Appeals Chamber.

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

Dated this 13^th January 2006
At The Hague, The Netherlands

_______________________
Judge Alphons Orie,
Presiding Judge, Trial Chamber I

[Seal of the Tribunal]