Case No. IT-01-48-T

IN TRIAL CHAMBER I, SECTION A

Decision of:
25 July 2005

PROSECUTOR

DECISION ON PROSECUTION REQUEST FOR CERTIFICATION FOR INTERLOCUTORY APPEAL OF 'DECISION ON MOTION FOR EXCLUSION OF STATEMENT OF ACCUSED'

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

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 "Prosecution Request for Certification for Interlocutory Appeal of 'Decision on Motion for Exclusion of Statement of Accused'," filed on 13 July 2005 ("Request"), in which the Prosecution seeks certification from the Trial Chamber for interlocutory appeal of its "Decision on Motion for Exclusion of Statement of Accused", filed on 8 July 2005 ("Decision");

NOTING the Defence "Response to Prosecution Motion for Certification," filed with a confidential annex on 15 July 2005 ("Response"), in which the Defence submits that the Prosecution failed to satisfy the requirements set out in Rule 73 (B) of the Rules of Procedure and Evidence ("Rules") and requests that the Trial Chamber deny the Request;

NOTING that in its Decision the Trial Chamber did not admit into evidence the statement of Sefer Halilovic ("Statement of the Accused"), taken during seven interviews with a representative of the Office of the Prosecutor ("Prosecution" ) held between January and May 1996;

NOTING that the Prosecution submits that the Decision affects the fair and expeditious conduct of the proceedings because the Trial Chamber denied the Prosecution "the right to present a very important piece of evidence in its case;" ¹

NOTING that the Prosecution submits, referring to the Trial Chamber’s decision to grant certification for appeal of its admission of the record of the interview of the Accused taken in 2001,² that "the issues in the decision relating to the admission into evidence of the record of the interview and decision relating to the statement of the Accused involve very similar principles concerning the admission into evidence of an out of court statement of an accused person" and that both decisions should be determined before the Defence case rests;³

NOTING that the Prosecution further submits that an immediate decision of the Appeals Chamber may materially advance the proceedings, because, should the Appeals Chamber admit the statement during appeal proceedings, it would, in light of the standard for review of evidence as set out in the Blaskic Appeal Judgement, result in the Defence being placed "at extreme disadvantage in the appeal proceedings" because it had not led evidence to meet the content of the statement at trial and that a retrial would be the only practical remedy to heal this "disadvantage";⁴

NOTING that the Defence submits that the Prosecution has not set out the particulars of the legal error which it contends the Trial Chamber has committed, nor the standard by which such an error is to be assessed;⁵

NOTING that according to the Defence the Prosecution does not enjoy a "right" to fair trial, and that a party "may not claim that an unfairness has been created merely because a piece of evidence which it considers important to its case has been excluded" and that "the Prosecution has failed to establish that the Trial Chamber excluded this statement unreasonably or without having given due regard to the Prosecution’s and international community’s interests";⁶

NOTING that the Defence also submits that certification of the Decision would not expedite but unduly prolong the proceedings;⁷

NOTING FURTHERMORE that the Defence submits that the Prosecution could argue an error in law during appellate proceedings after the Trial Chamber’s judgement and that, should the Appeals Chamber at that point in time decide to admit the statement, the Defence may request to lead additional evidence, a situation very common to the Appeals Chamber;⁸

CONSIDERING that under the Rules decisions on motions, other than preliminary motions, are without interlocutory appeal except where the criteria set out in Rule 73 (B) of the Rules are satisfied;

CONSIDERING that Rule 73 (B) of the Rules requires two criteria to be satisfied before the Trial Chamber exercises its discretion to grant certification: 1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and 2) that an immediate resolution of the issue by the Appeals Chamber may, in the opinion of the Trial Chamber, materially advance the proceedings;

CONSIDERING that whether or not to admit a statement of an accused is an important issue, which is closely related to the fairness of the proceedings as it involves a number of statutory rights guaranteed to the accused, and that the requirement that the "decision involves an issue that would significantly affect the fair […] conduct of the proceedings", is met;

CONSIDERING however that the Defence closed its case on 14 July 2005 and that the Trial Chamber denied the Motion for Rebuttal⁹;

CONSIDERING the very late stage in the proceedings; and

CONSIDERING that the issue at hand can, if necessary, be appropriately addressed in an appeal following the Trial Chamber Judgment, without, in the opinion of the Trial Chamber, resulting in the need for a retrial or causing any infringement on the rights of the Accused, wherefore a resolution by the Appeal Chamber at this moment in time would not materially advance the proceedings;

FINDING therefore that the second criterion set out in Rule 73 (B) of the Rules has not been met;

PURSUANT TO Rules 54 and 73 (B) of the Rules,

HEREBY DENIES the Request.

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

_____________
Judge Liu Daqun
Presiding

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