Decision on Defence Application for Certification on Interlocutory Appeal

Case No.: IT-95-14 & 14/2 – R77

IN THE TRIAL CHAMBER

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

Registrar:
Mr. Hans Holthuis

Decision of:
3 February 2006

PROSECUTOR

JOSIP JOVIC

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DECISION ON DEFENCE APPLICATION FOR CERTIFICATION ON INTERLOCUTORY APPEAL

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Office of the Prosecutor

Mr David Akerson

Counsel for the Accused

Mr Kresimir Krsnik

THIS TRIAL CHAMBER (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’s Request dated 28 December 2005 for certification to appeal (the "Request") the Chamber’s decision of 21 December 2005 (the "Decision") on the Accused’s preliminary motion to dismiss the indictment on the grounds of lack of jurisdiction and defects in the form of indictment (the "Preliminary Motion"),

NOTING the Prosecution’s Notification dated 9 January 2006 informing the Chamber of its decision not to respond to the Request,

NOTING that the Defence submits that the dismissal by the Appeals Chamber of the Indictment, in whole or in part, is "crucial to the Accused’s right to be tried without an undue delay" and would "at least simplify the proceedings and reduce the material to be dealt with at trial, if not completely terminate the proceedings,"

NOTING that the Defence also argues that the Decision allows the Prosecution to change its allegations throughout the proceedings and, therefore, affects not only the right of the Accused to be familiar with the cause and the nature of the charges against him but also his ability to prepare and conduct his defence,

NOTING that Rule 72 (B)(ii) of the Rules of Procedure and Evidence of the Tribunal (the "Rules") requires two cumulative criteria to be satisfied before the Chamber can exercise its competence to certify a decision for interlocutory appeal: (1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or outcome of the trial, and (2) that an immediate resolution of the issue may, in the opinion of the Trial Chamber, materially advance the proceedings,

NOTING that, in the Preliminary Motion, the Defence had initially challenged the indictment on the following four grounds: (i) the Tribunal has no personal jurisdiction; (ii) the Tribunal has no subject matter jurisdiction; (iii) the Prosecutor lacks the authority to prosecute the case (presented as a defect in the form of the Indictment); and (iv) other defects in the form of the Indictment,

CONSIDERING that the Request does not specify whether the Defence intends to challenge the Decision on the third and fourth grounds or only on the fourth and, therefore, lacks clarity in this respect,

CONSIDERING moreover that the Request does not identify any errors of law or fact which could lead to the immediate dismissal of the indictment,

CONSIDERING that the Chamber cannot accept the claim, put in very general terms, that the immediate dismissal of the Indictment, in whole or in part, and the termination of the proceedings before the Tribunal constitute in themselves "issues" in the meaning of Rule 72(B)(ii) of the Rules,

CONSIDERING that these arguments could be raised in a similar way in most, if not all, requests for certification when defects in the form of the Indictment are claimed and therefore have no clear value for a determination under Rule 72(B)(ii) of the Rules, and that granting certification on such a basis would defeat the wording and purpose of Rule 72(B)(ii) of the Rules,

NOTING furthermore that the Chamber has granted the Accused’s Preliminary Motion with respect to his arguments on the form of the Indictment and has ordered the Prosecution to provide additional factual information as specified in the Decision,

CONSIDERING finally that, contrary to the allegations of the Defence, the Decision does not allow the Prosecution to modify its allegations contained in the Indictment, but on the contrary orders the Prosecution to provide additional factual information regarding certain aspects of the Indictment,

NOTING in this regard the procedure set forth in Rule 50(A)(i)(c) of the Rules, according to which, to change its allegations, the Prosecution must, after the assignment of the case to a Trial Chamber, obtain "the leave of that Trial Chamber or a Judge of that Chamber, after having heard the parties",

ON THE BASIS OF THE FOREGOING and pursuant to Rule 72(B)(ii) of the Rules,

HEREBY DENIES the Request.

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

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Judge Alphons Orie,
Presiding Judge

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

[Seal of the Tribunal]