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

v.

IVICA MARIJACIC
MARKICA REBIC

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DECISION ON DEFENDANT IVICA MARIJACIC’S REQUEST FOR CERTIFICATION OF APPEAL

_________________________________________________

The Office of the Prosecutor:

Mr. David Akerson

Counsel for Ivica Marijacic:

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 "Defendant Ivica Marijacic’s Nunc Pro Tunc Request Certification [sic] of Interlocutory Appeal pursuant to Rule 73(B)" filed on 18 October 2005 by the accused Ivica Marijacic (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 ("Decision"),

CONSIDERING that the Defence for Ivica Marijacic (“Defence”) did not receive a copy of the Decision until 11 October 2005 and that it believed that it had seven days from that date in which to file any request for certification pursuant to Rule 73(B) and (C) of the Rules of Procedure and Evidence of the International Tribunal ("Rules"),

CONSIDERING that the Defence should have been aware from the date on the Decision that it was filed on 7 October 2005, and that if any request for certification was to be filed by the Defence it should have been done by 14 October 2005, but that it is in the interests of justice for the Trial Chamber to consider the Request,

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,

NOTING that the arguments in favour of certification put forward by the Defence are that: (1) if the Appeals Chamber were to rule that the Prosecution has failed to establish prima facie the existence of an order binding on Ivica Marijacic such that he could be found in contempt, then this would significantly affect the fair and expeditious conduct of proceedings or the outcome of trial, (2) the importance of allowing a defendant to appeal a Trial Chamber assertion of personal jurisdiction over him is evident in Rule 72(B)(i), and (3) the Decision has important ramifications for journalists worldwide,

CONSIDERING that the other arguments put forward by the Defence in the Motion go to the substance of the Decision, rather than to the criteria to be satisfied for certification to be granted,

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

CONSIDERING ALSO 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 Rule 127 recognises the filing of the Request as validly done, and

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.

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

__________________
O-Gon Kwon
Presiding

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

[Seal of the Tribunal]