BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Lal Chand Vohrah, Presiding
Judge Mohamed Shahabuddeen
Judge Rafael Nieto-Navia

Registrar:
Mr. Hans Holthuis

Decision of:
31 July 2001

PROSECUTOR

v.

RADOSLAV BRDANIN
MOMIR TALIC

___________________________________________________________

DECISION ON APPLICATION FOR LEAVE TO APPEAL AGAINST THE DECISION OF 2 JULY 2001

___________________________________________________________

Counsel for the Prosecutor:

Ms. Joanna Korner

Counsel for the Defence:

Mr. John Ackerman, for Radoslav Brdjanin
Mr. Xavier de Roux and Mr. Michel Pitron, for Momir Talic

 

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 (hereinafter "the Appeals Chamber"),

BEING SEISED OF the "Application for Leave to Appeal Against the Decision of 2 July 2001", ("the Application") filed by counsel for the accused Momir Talic ("the Defence") on 5 July 2001, pursuant to sub-Rule 72 (B) (ii) of the Rules of Procedure and Evidence ("the Rules");

NOTING the "Decision Varying Decision on Form of Further Amended Indictment", issued on 2 July 2001 ("the Impugned Decision");

NOTING the "Prosecutionís Response to ĎApplication for Leave to Appeal Against the Decision of 2 July 2001í filed by counsel for the accused Momir Talic", filed on 12 July 2001("the Response");

NOTING the "Memorandum on the Prosecutorís Response of 12 July 2001", filed by the Defence in French on 16 July 2001;

NOTING that in the Application it is submitted, inter alia, that the Impugned Decision violates the rights of the accused to a fair and impartial trial as guaranteed by Articles 18 and 20 of the Statute of the International Tribunal as well as Rules 47(B) and 50(A)(i) of the Rules, and that the Trial Chamber by ordering the Prosecutor to add a paragraph to the indictment took the place of the Prosecutor;

NOTING that the Response submits, inter alia, that: (i) the Trial Chamber rightly moved to ensure that the indictment was not defective in its pleadings of both facts and law; (ii) it is fallacious to hold that by ordering an amendment to an indictment the Trial Chamber could be said to have participated in the drafting of that indictment; and (iii) no complaint was made by the Defence in respect of many other amendments ordered by the Trial Chamber in this matter;

CONSIDERING that (apart from jurisdictional cases mentioned in Rule 72(B)(i) of the Rules) Rule 72(B)(ii) of the Rules provides that decisions on preliminary motions are without interlocutory appeal save "where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber";

CONSIDERING that there is no sufficient basis constituting good cause for the Defence to challenge the Impugned Decision as the same (i) does not, as alleged, order the Prosecutor to add a paragraph to the Indictment, but, proposes a variation of a previous decision on the form of indictment1 if the Prosecution wishes to retain the word "committed" and (ii) does not prejudice the Defence as it requires the Prosecution to clarify and appropriately narrow the scope of the indictment;

CONSIDERING that, in the circumstances, no basis has been shown for suggesting any error on the part of the Trial Chamber in the Impugned Decision;

FINDING that the Defence has failed to establish in the Application the existence of good cause within the meaning of sub-Rule 72(B)(ii) of the Rules;

HEREBY REJECTS the Application.

 

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

________________________________
Lal Chand Vohrah
Presiding Judge

Dated this thirty-first day of July 2001
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1."Decision on the form of the Further Amended Indictment and Prosecution Application to Amend, 26 June 2001."