BEFORE A BENCH OF THE APPEALS CHAMBER
Before: Judge Lal Chand Vohrah, Presiding
Judge Wang Tieya
Judge Rafael Nieto-Navia
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 29 August 1998
PROSECUTOR
v.
ZEJNIL DELALIC
ZDRAVKO MUCIC also known as "PAVO"
HAZIM DELIC
ESAD LANDZO also known as "ZENGA"
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DECISION ON PROSECUTOR’S APPLICATIONS FOR LEAVE TO APPEAL THE ORDER OF 30 JULY 1998 AND DECISION OF 4 AUGUST 1998 OF TRIAL CHAMBER II QUATER
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The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Teresa McHenry
Mr. Giuliano Turone
Counsel for the Accused:
Ms. Edina Residovic, Mr. Eugene O’Sullivan, for Zejnil Delalic
Ms. Butorovic, Mr. Tomislav Kuzmanovic, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Ms. Cynthia McMurrey, Ms. Nancy Boler for Esad Landzo
This Bench of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia ("the International Tribunal"),
NOTING the Application of the Office of the Prosecutor ("the Prosecution") for Leave to Appeal against the Order of 30 July 1998 of Trial Chamber II quater ("the Trial Chamber") regarding the admissibility of rebuttal evidence ("the Order"), filed on 6 August 1998,
NOTING that the Trial Chamber in the Order granted leave to the Prosecution to call only one out of four intended witnesses to testify in rebuttal of the defence case,
NOTING the Application of the Prosecution for Leave to Appeal against the oral Decision of
4 August 1998 of the Trial Chamber ("the Decision") rejecting the Prosecution’s alternative request to re-open its case in order to introduce fresh evidence, filed on 17 August 1998,
NOTING the Prosecution’s request in the Application of 17 August 1998 that the two Applications be consolidated as they raise related issues of fact and law,
NOTING the Trial Chamber’s subsequent written Decision on the Prosecution’s alternative request to re-open its case, filed on the 19 August 1998,
NOTING the subsequent filings by the parties in respect of the two Applications,
NOTING that leave to appeal is being sought pursuant to Rule 73(B) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"), which provides as follows:
Decisions on such motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave
NOTING Rule 73(C), which provides that:
Applications for leave to appeal shall be filed within seven days of the filing of the impugned decision. Where such decision is rendered orally, the application shall be filed within seven days of the oral decision, unless
…
CONSIDERING that the Trial Chamber on 28 July 1998 indicated that a written decision would follow and that such a decision was subsequently filed on 30 July 1998 in the form of an Order,
FINDING that the Application of 6 August 1998 was filed in time,
CONSIDERING that the proposed appeals raise related issues in law and fact and that they therefore should be consolidated,
CONSIDERING the interlocutory nature of the proposed appeals,
FINDING that neither the Order to grant the Prosecution leave to call only one witness in rebuttal of the defence case nor the Decision to reject the Prosecution’s alternative request to re-open its case would cause such prejudice to the case of the Prosecution as could not be cured by the final disposal of the trial including post-judgement appeal, within the meaning of Rule 73(B)(i), and
FINDING that the issues in the proposed appeals are not of general importance to the proceedings before the International Tribunal or in international law generally, within the meaning of Rule 73(B)(ii),
HEREBY DECIDES, unanimously, to refuse to grant leave to appeal as sought in the Applications.
Done in English and French, the English text being authoritative.
_____________________
Lal Chand Vohrah
Presiding Judge
Dated this twentyninth day of August 1998
At The Hague
The Netherlands
[Seal of the Tribunal]