BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Rafael Nieto-Navia, Presiding
Judge Lal Chand Vohrah
Judge Fausto Pocar

Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
3 May 2000

PROSECUTOR

v.

BLAGOJE SIMIC
MILAN SIMIC
MIROSLAV TADIC
STEVAN TODOROVIC
SIMO ZARIC

________________________________________________

DECISION ON APPLICATION FOR LEAVE TO APPEAL AGAINST TRIAL CHAMBER DECISION OF 7 MARCH 2000

_________________________________________________

Counsel for the Prosecutor:

Mr. Graham Blewitt
Mr. Grant Niemann

Counsel for the Defence:

Mr. Slobodan Zecevic, for Milan Simic
Mr. Igor Pantelic and Mr. Novak Lukic, for Miroslav Tadic
Mr. Deyan Ranko Brashich, for Stevan Todorovic
Mr. Borislav Pisarevic and Mr. Aleksander Lazarevic, for Simo Zaric

 

THIS BENCH of the Appeals 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 ("the International Tribunal"),

BEING SEIZED OF the "Application for Leave to Appeal Against the Trial Chamber’s Interlocutory Decision of 7 March 2000" filed by the Office of the Prosecutor ("the Prosecution") on 14 March 2000 ("the Application");

NOTING Trial Chamber III’s "Order on Defence Requests for Judicial Assistance For The Production of Information", issued on 7 March 2000 ("the Impugned Decision"), wherein the Trial Chamber ordered, inter alia, that the Prosecution should disclose certain information and documentation to the Defence for Stevan Todorovic (“the Defence”, Stevan Todorovic alone hereinafter referred to as "the Accused") which is in their custody or control and as requested in the two motions filed by the Defence requesting such an order;

NOTING that such information and documentation ordered to be disclosed to the Defence, is connected with the evidentiary hearing which has commenced on the "Notice of Motion for an Order Directing the Prosecutor to Forthwith Return the Accused Stevan Todorovic to the Country of Refuge” filed on 21 October 1999 and the “Accused Stevan Todorovic’s Petition for a Writ of Habeas Corpus" filed on 15 November 1999 (together "the Motions for Release");

NOTING the "Opposition to Application for Leave to Appeal Against the Trial Chamber’s Interlocutory Order of March 7, 2000" filed by the Defence on 20 March 2000;

NOTING the "Prosecution Reply to the Defence Response to the Prosecution Application for Leave to Appeal Against the Trial Chamber’s Interlocutory Decision of 7 March 2000" filed on 23 March 2000 ("the Prosecution Reply");

NOTING the "Further Opposition to Application for Leave to Appeal Against the Trial Chamber’s Interlocutory Order of March 7, 2000" filed on 31 March 2000 ("the Further Opposition");

CONSIDERING that Article 6 of the Practice Direction on Procedure for Filing of Written Submissions in Appeal Proceedings Before the International Tribunal provides that upon receipt of a reply filed by the appellant, in this case the Prosecution Reply, the Appeals Chamber may thereafter decide the application for leave to appeal without further submissions from the parties and that therefore the Appeals Chamber will not take into account the submissions contained in the Further Opposition;

NOTING that the Application is filed pursuant to Rule 73 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") which provides, inter alia, that applications "for leave to appeal shall be filed within seven days of the filing of the impugned decision" and allows for interlocutory appeals in the following two instances:

  1. if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal;
  2. if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally;

CONSIDERING that the Application was filed within time;

NOTING that the Prosecution relies in particular on sub-Rule 73(B)(ii) of the Rules and submits that there are six issues in the proposed appeal which are of general importance to both proceedings before the Tribunal and in international law generally (each issue hereinafter referred to in numerical order as an "Issue") and that accordingly leave to appeal should be granted;

NOTING that the Prosecution alleges that the first Issue is whether the Trial Chamber abused its discretion in the Impugned Decision in that it permitted the Defence to raise for a second time matters already raised by the Defence in the "Notice of Motion for Evidentiary Hearing on Arrest, Detention and Removal of Defendant Stevan Todorovic and for Extension of Time to Move to Dismiss Indictment” filed on 11 February 1999 (“the First Defence Motion") and disposed of in both a decision of the Trial Chamber issued on 25 March 1999 ("the Decision of 25 March 1999") and a decision of the Appeals Chamber issued on 13 October 1999 ("the Decision of 13 October 1999");

NOTING that the Prosecution alleges that the Defence has simply filed new motions seeking similar relief to that denied in the Decision of 25 March 1999 and the Decision of 13 October 1999, having presented neither new facts nor arguments;

CONSIDERING that the Decision of 25 March 1999 denied the First Defence Motion which concerned an application for an evidentiary hearing because it considered that "the Motion does not contain sufficient factual and legal material, and in particular does not provide a statement as to the factual circumstances of [the Accused’s] arrest, to warrant an evidentiary hearing" and that therefore it did not consider in detail the merits of the application regarding the legality of arrest and detention;

CONSIDERING that the Decision of 13 October 1999 found that on this basis there were no grounds to intervene in respect of this finding;

NOTING that following the Decision of 13 October 1999 the Defence filed the Motions for Release, together with a statement by the accused ("the Statement") regarding the legality of the arrest and detention of the Accused;

CONSIDERING that in an oral decision of 23 November 1999, the Trial Chamber found that the Statement was a new circumstance such that it justified ordering an evidentiary hearing on the legality of the arrest and detention of the Accused and that this hearing has yet to conclude, the result being that these issues remain to be finally considered by the Trial Chamber;

CONSIDERING THEREFORE that this cannot be a request for re-litigation of a matter when the Trial Chamber has yet to dispose of the matter;

NOTING that the Prosecution alleges that the second Issue is whether the Trial Chamber abused its discretion in granting relief to a party without first ruling on all the grounds of opposition raised by the opposing party;

NOTING that the Prosecution specifically alleges that the Trial Chamber should have considered its first and third arguments raised in its response to the First Defence Motion, that the First Defence Motion was filed out of time and that even if the Trial Chamber found in favour of the Accused on the merits of the First Defence Motion, and accordingly found that his arrest had been illegal or irregular, the First Defence Motion should be denied without an evidentiary hearing as the facts alleged by the Accused would not as a matter of law entitle the Accused to the remedy sought;

CONSIDERING that the First Defence Motion has been disposed of in both the Decision of 25 March 1999 and the Decision of 13 October 1999 and that the issue of the legality of the arrest and detention of the Accused remains to be finally considered by the Trial Chamber in the Motions for Release;

CONSIDERING that it falls to the Trial Chamber to consider the merits of the Motions for Release, ascertaining the facts before it before considering the law to apply and that this is not a matter on which the Appeals Chamber should rule at this time;

NOTING that the Prosecution alleges that the third Issue is whether the Trial Chamber abused its discretion in adopting a course of action which resulted in a significant delay in the proceedings;

CONSIDERING that as the Trial Chamber found that an evidentiary hearing should take place on the Motions for Release, it is also endowed with the power to order the production and disclosure of any information or documentation which it considers to be relevant and necessary for such a hearing;

CONSIDERING that the time frame envisaged by the Trial Chamber in the Impugned Decision for disclosure of such information and documentation is reasonable in that it facilitates complete disclosure and discovery, to the extent considered necessary, before the conclusion of the evidentiary hearing on the Motions for Release and in doing so aims at avoiding unnecessary delay;

NOTING that the Prosecution alleges that the fourth Issue is whether the Trial Chamber abused its discretion in launching a factual enquiry into the conduct of a sovereign State in circumstances where this factual enquiry may be unnecessary and unwarranted in the proceedings before it;

NOTING that the Prosecution maintains that any requirement by the Tribunal that States should disclose details of their operations to arrest accused can be expected to lead to a withdrawal of their willingness to provide voluntary assistance to the Tribunal;

CONSIDERING that the Impugned Decision is limited, inter alia, to an order that the Prosecution disclose material found only in its custody or control and not to conduct a discovery in the field;

CONSIDERING FURTHER that the Trial Chamber is entitled to consider legal questions so long as they are related to the matter before it, in this case the legality of the Accused’s arrest and that should it deem necessary, the Trial Chamber is endowed with the power to take measures to ensure that any information or documentation to be disclosed may remain confidential;

NOTING that the Prosecution alleges that the fifth Issue is whether the Trial Chamber has the power to order disclosure by the Prosecution in addition to that provided pursuant to Rules 66 to 68 of the Rules and if so, whether it was an abuse of discretion for the Trial Chamber to order such additional disclosure when it has not been requested by the Defence nor been the subject of argument by the parties;

NOTING FURTHER that the Prosecution alleges that the Trial Chamber based the order for disclosure in the Impugned Decision on Rule 54 of the Rules, when no application had been made by the Defence for it to do so, the application having been based on Rule 66(B) of the Rules and that therefore the Trial Chamber had no power to consider whether or not the requested disclosure fell within Rule 54;

CONSIDERING that Rule 54 of the Rules provides inter alia that a Judge or a Trial Chamber may, proprio motu, "issue such orders….as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial";

CONSIDERING that Rule 66(B) of the Rules does not relate to the material sought by the Accused as it does not relate to the trial of the Accused but rather to the issue of the jurisdiction of the Tribunal to try him;

CONSIDERING that the Trial Chamber is clearly endowed with the power to issue orders proprio motu by virtue of Rule 54 and that in the circumstances of the particular disclosure requested by the Defence, there is nothing improper in the fact that it utilised this power, being satisfied that it was necessary and in the interests of justice to do so for the purposes of the evidentiary hearing on the Motions for Release;

NOTING that the Prosecution alleges that the sixth Issue was whether the Trial Chamber had abused its discretion in making an interlocutory order based on findings not supported by the record or any evidence in the case;

NOTING that the Impugned Decision appears to have been based on the testimony of the Accused which the Trial Chamber found to be sufficient to establish a "prima facie showing both that the requested evidence is in the custody or control of the Prosecution, has identified expressly and precisely the ‘legitimate forensic purpose’ for which access is sought, and has demonstrated to the satisfaction of the Trial Chamber that production of the material sought is likely to assist materially in the presentation of the case";

CONSIDERING that the Trial Chamber has simply found that a prima facie case has been made out by the Defence such that an order for disclosure of certain information and documentation is justified and that it is clearly within their discretion to do so;

FOR THESE REASONS FINDS that the Application has failed to establish that any Issue raised constitutes an issue of general importance to proceedings before the Tribunal or in international law generally such that leave to appeal should be granted;

ACCORDINGLY REJECTS the Application in full.

 

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

____________________________
Judge Rafael Nieto-Navia,
Presiding

Dated this third day of May 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]