Decision on Request of the Accused Markica Rebic for Certification of Appeal to Challenge Decision on Jurisdiction

Case No.: IT-95-14-R77.2

IN THE TRIAL CHAMBER

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

Registrar:
Mr. Hans Holthuis

Order of:
25 October 2005

PROSECUTOR

IVICA MARIJACIC
MARKICA REBIC

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DECISION ON REQUEST OF THE ACCUSED MARKICA REBIC FOR CERTIFICATION OF APPEAL TO CHALLENGE DECISION ON JURISDICTION

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The Office of the Prosecutor:

Mr. David Akerson

Counsel for Ivica Marijačic:

Mr. Marin Ivanovic

Counsel for Markica Rebic:

Mr. Krešmir Krsnik

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 a Confidential "Request of the Accused Markica Rebic for Certification of Interlocutory Appeal to Challenge the Decision on Motions to Dismiss the Indictment due to Lack of Jurisdiction" filed on 14 October 2005 by the Defence for the accused Markica Rebic (the “Request”) seeking certification to challenge the "Decision on Motions to Dismiss the Indictment due to Lack of Jurisdiction," issued by the Trial Chamber on 7 October 2005,

CONSIDERING that Rule 73(B) of the Rules of Procedure and Evidence of the International Tribunal ("Rules") requires 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 that there is no reason for the Request to be filed confidentially,

NOTING that the arguments in favour of certification put forward by the accused Markica Rebic are that: (1) a decision declining jurisdiction made by the Appeals Chamber would bring the present proceedings to an immediate end, and that therefore the issue raised is an important matter "for the expeditious conduct of the proceedings and the outcome of the trial," and its resolution may materially advance proceedings by bringing them to an end, (2) a decision from the Appeals Chamber on the issue of jurisdiction "could remove lots of questions from the possible further proceedings," and (3) "this issue obviously affects the fairness of conduct of these proceedings,"

CONSIDERING that certification for appeal will only be granted if both of the criteria set out in Rule 73(B) are satisfied,

CONSIDERING that resolution of the issue of jurisdiction by the Appeals Chamber could affect the outcome of the trial, if the Appeals Chamber were to find that the Tribunal lacked jurisdiction in the present case,

CONSIDERING HOWEVER that the present case concerns allegations of contempt, that it is ready to go to trial, and that the trial proceedings should be concluded swiftly, and that an appeal to the Appeals Chamber would serve to delay the proceedings for several months,

PURSUANT TO Rules 73 and 54 of the Rules,

HEREBY DENIES the Request, (per Judges Robinson and Bonomy) on the basis that an appeal at the present stage would not materially advance the proceedings, and (per Judges Kwon and Bonomy) on the basis that, even if the second criterion were satisfied, a weighing of the relevant considerations in this case would not merit the exercise of the Trial Chamber’s discretion, and

ORDERS the Registry to file the Request as a public document.

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

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O-Gon Kwon
Presiding

Dated this twenty-fifth day of October 2005
At The Hague
The Netherlands

[Seal of the Tribunal]