BEFORE THE APPEALS CHAMBER
Before: Judge Antonio Cassese, Presiding
Judge Adolphus Karibi-Whyte
Judge Haopei Li
Judge Sir Ninian Stephen
Judge Lal Chand Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 12 August 1997
TIHOFIL also known as TIHOMIR BLASKIC
DECISION ON PROSECUTION MOTION TO SET ASIDE THE DECISION
OF THE APPEALS CHAMBER OF 29 JULY 1997
The Office of the Prosecutor
Ms. Louise Arbour, Prosecutor
Mr. Mark Harmon
Mr. James Crawford
The Republic of Croatia
Ambassador Ivan Simonovic Ambassador Branko Salaj
Mr. David Rivkin
Ms. Katharine Baragona
Mr. Ivo Josipovic
The Republic of Bosnia and Herzegovina
Madame Vasvija Vidovic
Ms. Jadranka Slokovic Glumac (on behalf of the Minister of Defence)
Defence Counsel for Tihomir Blaskic
Mr. Russell Hayman
Mr. Anto Nobilo
Mrs. Nela Pedisic
The Appeals Chamber is seized of a Prosecution Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997 dated 4 August 1997 (Registry Page nos. ("RP") D59-17) ("the Prosecution Motion"). The Prosecution Motion seeks an Order pursuant to Rules 54 and 107 of the Rules of Procedure and Evidence to set aside the Decision on the Admissibility of the Request for Review by the Republic of Croatia of an Interlocutory Decision of a Trial Chamber (Issuance of Subpoenae Duces Tecum) And Scheduling Order, rendered by the Appeals Chamber on 29 July 1997. In summary, the Prosecution moves for such an Order on the following grounds:
A. The Appeals Chamber erred in considering Croatias Request as admissible and in suspending the subpoenae duces tecum without first giving the Parties an opportunity to be heard.
B. The Appeals Chamber erred in considering the application of Croatia as one falling under Rule 108bis.
C. In any event, even if Rule 108bis is applicable, and the application for review is granted, the Appeals Chamber should not have stayed the execution of the subpoena pending the disposal of the review proceedings.
D. Furthermore, even if Rule 108bis is applicable, under that Rule execution of the subpoena against Mr. Susak cannot be stayed.
The Prosecution elaborates on each of these points in its Motion. They shall here be dealt with in turn.
OPPOSITION OF CROATIA TO THE PROSECUTION MOTION
On 8 August 1997, the Republic of Croatia ("Croatia") submitted its Opposition of the Republic of Croatia to Prosecutions Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997 (RP 69-61) which was filed on 11 August 1997. Croatia opposes each of the points raised in the Prosecution Motion and requests accordingly that the Appeals Chamber deny the Prosecution Motion and reaffirm the Appeals Chamber Decision of 29 July 1997. The arguments of Croatia have been taken into account in rendering this Decision.
A. Whether the Appeals Chamber erred in considering Croatias Request as admissible and in suspending the subpoenae duces tecum without first giving the Parties an opportunity to be heard.
The first question which concerns us here is whether the Parties had a right to be heard by the Appeals Chamber before it deemed admissible the request by Croatia for appellate review of the Interlocutory Decision rendered by a Trial Chamber on 18 July 1997, and before it suspended the said Interlocutory Decision.
The right invoked by the Prosecution is in effect the principle audiatur et altera pars. The extent and scope of any such right depends on the context and circumstances of the case. In proceedings before the International Criminal Tribunal for the former Yugoslavia ("the Tribunal"), the context is provided for by the Statute and Rules of Procedure and Evidence of the Tribunal, in particular Rules 108 and 116 bis thereof.
Sub-Rule (B) of Rule 108 bis - the Rule pursuant to which the Request by Croatia was deemed admissible by the Appeals Chamber - provides that, "The Prosecutor and the Defence shall be entitled to be heard by the Appeals Chamber". This does not necessarily mean, however, that the Parties have a right to be heard by the Appeals Chamber before it deems a request admissible or before it suspends the execution of the impugned decision under Sub-Rule (C). The Appeals Chamber considers, rather, that this provision may be satisfied by granting the Parties the opportunity to be heard on the merits of the Request at an inter partes hearing which will take place before any final Decision is rendered on the Request.
That the Appeals Chamber may pronounce on the admissibility of a request for review and on the appropriateness of suspending the subpoena duces tecum before hearing the Parties is supported by the fact that, pursuant to Rule 108bis(D), to which Rule 116bis ("Expedited Appeals Procedure") applies mutatis mutandis, a Rule 108bis proceeding is one which is intended to resolve an interlocutory dispute at the appellate level with all possible speed.
It should be stressed, with specific reference to admissibility, that Rule 72(B)(ii) (whereby a bench of three Judges of the Appeals Chamber may grant leave to appeal a Decision of the Trial Chamber upon serious cause being shown) supports the view that, in general, an application before the Tribunal may be deemed admissible without hearing the Parties. This Rule does not require the bench of three Judges to first hear the Parties before taking the decision to grant or refuse leave to appeal. Nor has the practice been to grant a hearing; in all applications made to date, the bench of three Judges of the Appeals Chamber has taken its decision without scheduling a hearing. The rationale for this practice has been the desire for expeditious appellate proceedings on interlocutory motions.
The Appeals Chamber deems it appropriate to add that, notwithstanding the above, and the further remarks set out below (paras 10 and following), the Parties, as well as Croatia and any amici curiae, remain free to make submissions on the issue of admissibility at the hearing to be held on the dates fixed in the Disposition below.
Finally, with specific reference to the stay of execution of the subpoena duces tecum, it bears noting that the view that the suspension of an impugned decision may be granted ex parte is supported by analogy with the relevant national practice concerning interlocutory relief. The Appeals Chambers Decision of 29 July 1997 may be considered as an immediate form of interlocutory relief designed to prevent a Party (or in this case non-Party) from being subjected to the oppressive effects of an Order. From this viewpoint as well it is akin to an interim injunction. Such relief is often granted ex parte, subject to the scheduling of an inter partes hearing at a later date to consider what the other party has to say. In this respect, the notion of audiatur et altera pars implicitly invoked by the Prosecution is misconceived. There will be a time for "the other side", namely the Prosecution, to be heard, but that will be at a later date, namely at the inter partes hearing.
B. Whether the Appeals Chamber erred in considering the application of Croatia as one falling under Rule 108bis.
Under this heading, the Prosecution argues that:
"(i) The Trial Chambers Decision was given prior to the adoption of Rule 108bis. Rule 6(C), which provides that an amendment to the Rules shall enter into force immediately, should be construed as giving an amendment to the Rules immediate prospective effect. Properly construed, Rule 6(C) does not give an amendment to the Rules retroactive effect. To apply Rule 108bis to the Trial Chambers Decision would be to give the new Rule retroactive effect."
The Appeals Chamber does not find this analysis persuasive. To apply Rule 108bis to the request by Croatia for appellate review does not mean that Rule 108bis is being applied retroactively. This rule grants States meeting the conditions set out therein a right, or, to put it more accurately, a procedural entitlement, to challenge before the Appeals Chamber an interlocutory decision of a Trial Chamber. This right or procedural entitlement is conferred on States ex nunc, i.e. from the moment the Rule entered into force, that is to say 24 July 1997. Consequently, if at the time of the entry into force of the Rule, a Decision had been delivered by a Trial Chamber and the fifteen days stipulated in sub-Rule 108bis(A) had not yet elapsed, a State meeting the requirements of the Rule could legitimately file a request for review.
However, even if one were to consider, notwithstanding that Croatias request falls within the fifteen day period, that in this instance Rule 108bis is being applied retroactively, because the impugned decision was rendered before the Rule came into effect, this element of retroactivity would still in no way invalidate the proceedings. First, the purpose of amendment of a Rule or adoption of a new Rule is to create conditions which are more conducive to the proper administration of justice. Hence Rule 6(C) prescribes that "an amendment shall enter into force immediately", without any limitation of its application other than that of not prejudicing the rights of the accused. Therefore, except in the case where the amendment explicitly states that it is not to have retroactive effect for certain particular reasons, the general rule is that it has retroactive as well as prospective effect. Second, Rule 108bis is in any event a procedural rule and no general principle precludes procedural rules from applying retroactively.
C. Whether, in any event, even if Rule 108bis is applicable, and the application for review is granted, the Appeals Chamber should not have stayed the execution of the subpoena pending the disposal of the review proceedings.
The Prosecution avers that the Appeals Chamber erred when it stated that "the subpoena at issue cannot be executed while its validity is being challenged in appellate proceedings", because it appeared thereby to regard as automatic that which was discretionary under Rule 108 bis (C). This is a misconception. The phrase in the Appeals Chamber Decision which the Prosecution quotes is a statement of the self-evident. That the subpoena cannot be enforced while its validity is put in question is the very reason why the Appeals Chamber "deem(ed) it appropriate (to) suspend the execution of the impugned decision" under Rule 108 bis (D). In other words, in the present case the Appeals Chamber deemed that enforcement of the order sought to be reviewed, while the application for review was still pending, would negate that review. Thus the suspension of the execution of the impugned decision pending the determination of the review in this case was the only means of preserving the subject-matter of the review.
Nor does the Appeals Chamber agree with the Prosecution that "in the present case, the balance of convenience militated against staying the execution of the subpoena" (paragraph (C)(ii)). As the Prosecution admits in its Motion, "Croatia has not objected to the production of the documents the subject of the subpoena, but rather has objected on a matter of principle" (paragraph (C)(ii)(c)). This belies the Prosecutions argument that it is inconvenienced or prejudiced by the stay of execution of the subpoena. Croatia can still disclose all the documents which it had previously indicated it was willing to disclose. Moreover, as the Appeals Chamber pointed out in its Decision of 29 July 1997, Croatia remains unequivocally under a duty to "comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to: (b) ... the production of evidence", pursuant to Article 29 of the Statute.
On the other hand, Croatia could be prejudiced if the subpoena remained in force during the pending proceedings. Croatia would have either to comply with an impugned decision - with what it contends is an invalid subpoena - or to refuse to comply with it at the risk of a possible sanction being imposed upon it, which could prejudice it when it appeared before the Appeals Chamber at the inter partes hearing. This applies equally to the Prosecutions suggestion that:
"Even if Croatia objected to providing some of the documents the subject of the subpoena, for instance on the ground that Croatias national security interests could be threatened by disclosure, there is no clearly established prejudice to Croatia if the subpoena remains in force at this stage. Croatia could produce all documents in respect of which it raises no objection. It would then be open to Croatia to approach the Trial Chamber to object to the production of the remaining documents on specified grounds."
The problem remains that if Croatias objection is not upheld by the Trial Chamber, then Croatia risks being subjected to sanctions for failing to produce the documents. The Prosecution recognises this when it states, in the next line of its Motion, "In any event, there could be no direct disadvantage to Croatia until such time as the Trial Chamber decide to impose sanctions on Croatia for non-compliance with the subpoena". The Appeals Chamber sees no merit, however, in this suggestion that Croatia, while contesting the subpoenas very validity, should be forced to the brink of being subjected to sanctions, before the Appeals Chamber, which has already declared the issue of the subpoena to be a suitable subject for review, stays its execution. On the contrary, it was appropriate for the Appeals Chamber to stay the execution of the subpoena simultaneously with granting the Request for Review. Moreover, as has already been pointed out, nothing bars Croatia from adopting the course suggested by the Prosecution while the subpoena is being stayed.
D. Whether, even if Rule 108bis is applicable, under that Rule execution of the subpoena against Mr. Susak cannot be stayed.
Finally, the Appeals Chamber sees no merit in the Prosecutions point that, "where a State brings an application under Rule 108bis, Sub-rule (C) only enables execution to be suspended of so much of the interlocutory decision as pertains directly to that State" and that "execution of the decision of the Trial Chamber cannot be suspended under this provision, in so far as that decision pertains to Mr. Susak". (paragraph D). As Mr. Susak is Minister of Defence of Croatia, and has been subpoenaed in that capacity, execution of the subpoena is tantamount to its execution against that State, so a stay of execution of the subpoena addressed to him is also necessary. Furthermore, the power of a Trial Chamber to address a subpoena to a senior State official is one of the issues contested by Croatia and on which the Appeals Chamber is called upon to pronounce. To refuse a stay of execution of the subpoena addressed to Mr. Susak would therefore be to prejudge one of the contested issues.
THE APPEALS CHAMBER,
For the above reasons,
Pursuant to Rules 54 and 107 of the Rules of Procedure and Evidence,
REJECTS the Prosecution Motion to set aside the Appeals Chamber Decision of 29 July 1997.
CONFIRMS the stay of execution of the said subpoena duces tecum;
CONFIRMS the Scheduling Order which accompanied the said Decision of the Appeals Chamber;
REMINDS the Republic of Croatia of its duty to cooperate with the Tribunal, and in particular its duty to comply without undue delay with any request for assistance or an order issued by a Trial Chamber, including, but not limited to the production of evidence, pursuant to Article 29 of the Statute;
CALLS UPON the Republic of Croatia to produce as many as possible of the documents the subject of the said subpoena duces tecum, in accordance with the undertakings given by the Ambassador of Croatia at the hearings before Judge McDonald on 19 February 1997;
SCHEDULES an inter partes hearing for 22-23 September 1997, at which the Republic of Croatia will also be represented, and at which both the Parties and the Republic of Croatia, as well as any amici curiae who are granted leave to appear by the Appeals Chamber pursuant to Rule 74 of the Rules of Procedure and Evidence, may make submissions on both the admissibility and the merits of the application for appellate review by the Republic of Croatia dated 25 July 1997,
DONE in English and French, the English version being authoritative.
for Antonio Cassese
Dated this 12th day of August 1997
At The Hague