DECLARATION OF PRESIDENT JORDA AND JUDGE SHAHABUDDEEN
- We agree with the decision and would like to speak on one point: The
fact that the Appeals Chamber disposes of an appeal on one ground makes it
unnecessary, but not impermissible under the law of the Tribunal, to deal
with an additional ground raised by the appellant. If the Appeals Chamber
decides to deal with an additional ground, that does not oblige it to deal
with all other additional grounds.
- In this case, it was a sufficient ground of disposition to determine
that Croatia lacked standing, but this did not prevent the Appeals Chamber
from going on, as it did, to pass on Croatia’s other "submission that the
prosecution must interview or offer to interview every proposed accused before
seeking a confirmation of an indictment" (para. 12 of the Decision).
- The additional question there was one of law, and so was the Appeals
Chamber’s reply, as can be seen from the cited paragraph of its Decision.
General and immediate guidance would be beneficial to the workings of the
Tribunal on the issue whether there was a requirement to interview an accused
before confirmation of the indictment against him could be sought.
- Not quite so with another additional argument, in which Croatia submitted
that Mr Bobetko satisfied all the requirements for provisional release, and
that, in view of this, he need not be arrested because he would at once be
granted provisional release (para. 13 of the Decision). Here matters of fact
would have to be assessed specific to the particular case.
- In particular, the Appeals Chamber would have to say whether, on the
material which has been placed before it by Croatia, it accepts the claim
by Croatia that Mr Bobetko would appear for trial so as to satisfy the requirements
for provisional release. If an application for provisional release were to
be later made by Mr Bobetko to a Trial Chamber, he would in all likelihood
rely, wholly or largely, on the same facts which are now available to the
Appeals Chamber; and an appeal from the Trial Chamber would lie to the same
- While the Trial Chamber and the Appeals Chamber would not be legally
bound by any findings now made by the latter, we believe that there would
be practical difficulty in ignoring those findings, inclusive of a possible
finding that, on the basis of the available factual material, Mr Bobetko would
not appear for trial. In any provisional release proceedings of his own, Mr
Bobetko would wish to argue the exact opposite and may complain of unfairness.
There could of course be a complete legal answer to that. But, if it could
be avoided, as we consider it could be, Mr Bobetko should not have to content
himself with a legal answer.
- The Appeals Chamber should not be unnecessarily expressing itself on
matters of fact which could be later brought before a Trial Chamber for decision
and thence on appeal back to the same Appeals Chamber. The circumstance that
the Appeals Chamber has dealt with the additional argument about the necessity
for an interview did not oblige it to deal with the additional argument about
provisional release; it had a discretion in the matter. In the circumstances
of the case, the discretion was correctly exercised.
Done in English and in French, the English text being authoritative.
Dated this 29th day of November 2002
At the Hague