Case No. IT-01-48-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Registrar:
Mr. Hans Holthuis

Decision of:
6 April 2005

PROSECUTOR

v.

SEFER HALILOVIC

__________________________________________

DECISION ON MOTION FOR CERTIFICATION

__________________________________________

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

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");

BEING SEISED of the Defence "Motion for Certification", filed on 4 March 2005 ("Motion"), pursuant to Rule 73 (B) of the Rules of Procedure and Evidence ("Rules"), seeking certification from the Trial Chamber for interlocutory appeal of its "Decision on Admission into Evidence of Documents Tendered during Witness Salko Gusić’s Testimony in Court”, issued on 24 February 2005 ("Decision");

NOTING that Rule 73 (B) of the Rules requires two criteria to be satisfied before the 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 Rule 73 (C) of the Rules provides, inter alia, that "[r]equests for certification shall be filed within seven days of the filing of the impugned decision", and that accordingly the Defence should have filed the Motion no later than 3 March 2005;

NOTING that the Motion was not filed within the prescribed time limit, but one day later;

NOTING that the argument of the Defence in favour of the request for an extension of time of one day to file the Motion is that the Defence was waiting to obtain the "chain of custody of the documents concerned by the [Motion]”,¹ which the Prosecution had undertaken to provide the Defence with by 2 March 2005; and that only on 3 March 2005 the Defence was told that the chain of custody was not yet ready;

NOTING the "Prosecution Response to Defence Motion for Certification", filed on 15 March 2005 ("Response"), in which the Prosecution submits that "only five of the exhibits for which further information was sought were tendered through Mr. Gusic, out of a total of 28” and that therefore the “Defence position […] that it could not file its application for certification within the prescribed deadline because it was waiting for chain of custody material that, for the main part, did not relate to the present impugned decision", "does not justify the time breach of Rule 73 (C)";²

NOTING that Rule 127 of the Rules provides, inter alia, that "a Trial Chamber may, on good cause being shown by motion, (i) enlarge or reduce any time prescribed by or under these Rules; (ii) recognize as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired";

CONSIDERING that the Prosecution’s failure to provide the Defence with the chain of custody material on the agreed date, 2 March 2005, justifies the late filing of the Motion, on 4 March 2005, and therefore the Trial Chamber, pursuant to Rule 127 (A) of the Rules, recognises the Motion as validly filed;

NOTING the arguments of the Defence in support of the Motion, that:

1. the Decision affects the fair conduct of the proceedings insofar as "the admission of documents which lack any indicia of reliability and for which there is no reliable indication of authenticity is capable of prejudicing Mr. Halilovic’s right to a fair trial to the extent that the Trial Chamber might rely upon those in the course of its judgment”;³

2. the Decision affects the outcome of the trial insofar as the admission of documents which do not satisfy the requirement of reliability and/or authenticity is capable […] to affect the outcome of the trial insofar as the Trial Chamber might give some weight to such evidence”;⁴

3. an immediate resolution by the Appeals Chamber may materially advance the proceedings insofar as “it would prevent any risk or prejudice to the Defence (should the [Motion] be granted and should the defence be successful on appeal) and would also ensure that any infringement upon the right of the accused to a fair trial as might have occurred would be properly dealt with and cured immediately so as to limit any prejudicial consequences thereof";⁵

NOTING that the Motion also indicates some of the Defence’s potential grounds of appeal "to assist [the Trial Chamber] in determining [the] Motion”;⁶

NOTING that the Prosecution argues in its Response that the Motion failed to satisfy any of the requirements set out in Rule 73(B) of the Rules, and urges the Trial Chamber to deny it;

CONSIDERING that by its Decision, the Trial Chamber, inter alia, admitted into evidence documents marked for identification MFI 102 through 107 and 109 through 129 (“exhibits”) tendered by the Prosecution during the testimony of Salko Gusic;

CONSIDERING that the Defence has had the opportunity to cross-examine the witness and to challenge the reliability and/or the authenticity of the exhibits;

CONSIDERING FURTHER, as highlighted in the "Guidelines on the Standards Governing the Admission of Evidence", adopted by the Trial Chamber on 16 February 2005 ("Guidelines"), the clear distinction that exists between the admissibility of documentary evidence and the weight that individual pieces of evidence is given under the principle of free evaluation of evidence;

CONSIDERING that, as indicated in the Guidelines, "[f]actors such as authenticity and proof of authorship will naturally assume the greatest importance in the Trial Chamber’s assessment of the weight to be attached to individual pieces of evidence", and that for this purpose objections raised on the grounds of authenticity and reliability are given due consideration;

CONSIDERING that it is the Trial Chamber’s belief that the issue is not one that "would significantly affect the fair […] conduct of the proceedings or the outcome of the trial";

CONSIDERING that the Defence failed to demonstrate the first criterion for certification and that therefore the Trial Chamber does not see the need to consider whether the second criterion has been met;

FOR THE FOREGOING REASONS;

PURSUANT to Rule 73 (B) and (C) and 127 of the Rules;

HEREBY DENIES the Motion.

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

______________________
Judge Liu Daqun
Presiding Judge

Dated this sixth day of April 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]