IN TRIAL CHAMBER II
Judge David Hunt, Pre-Trial Judge
Mr Hans Holthuis
16 May 2001
RADOSLAV BRDANIN & MOMIR TALIC
DECISION ON SECOND MOTION BY BRDANIN
TO DISMISS THE INDICTMENT
The Office of the Prosecutor:
Ms Joanna Korner
Mr Nicolas Koumjian
Mr Andrew Cayley
Ms Anna Richterova
Ms Ann Sutherland
Counsel for Accused:
Mr John Ackerman for Radoslav Brdanin
Maître Xavier de Roux and Maître Michel Pitron for Momir Talic
1. The accused Radoslav Brdanin ("Brdanin") has filed a motion in which he seeks the dismissal of the indictment.1 He complains that the Tribunal has not provided him, and is not prepared to provide him, with sufficient resources properly and legally to prepare his defence, and that it has caused unnecessary delay by failing to provide sufficient translation services to the Office of the Prosecutor. He says that either the Tribunal has the necessary resources to provide equality between the prosecution and the defence or it has failed and refused to request the Security Counsel or the General Assembly of the United Nations for additional funding. The delays caused by these failures are in violation of his right to be tried without undue delay.2 He asserts that he is at a significant disadvantage in preparing for trial compared to the prosecution because the prosecution has access to greater resources.3 He submits that the indictment should be dismissed as the only reasonable remedy for the failure of the Tribunal to "honour the principle of equality of arms and provide sufficient resources to the defence in this case".4 Alternatively, he requests an order to the Registrar to provide resources to the defence "commensurate with those devoted by the Prosecutor" to the case, and he submits that, if there be a default by the Registrar to do so within a reasonable time, the indictment should be dismissed.5
2. In its Response,6 the prosecution argues that the Motion is concerned only with the allocation of Resources and, in accordance with the Tribunal’s Directive on Assignment of Defence Counsel,7 any dispute regarding the allocation of resources remains within the domain of the Registry and/or the President.8 The prosecution expresses confidence that a settlement under this Directive would satisfy the objections of Brdanin.9
3. When stripped of its rhetoric and unsubstantiated assumptions, the Motion is indeed concerned only with the sufficiency of the resources made available to Brdanin in his defence. It is appropriate that he first exhaust the avenues of redress open to him under the Directive before seeking redress from the Trial Chamber. The Registry has now acted upon his most recent request for further resources.10 The Motion will therefore be dismissed.
4. However, the Trial Chamber is not indifferent to the difficulties faced by the defence in preparing a case of this complexity. It is fundamental to any criminal justice system that no-one should be convicted of a crime otherwise than after a fair trial according to law. Articles 20.1 and 22.2 of the Tribunal’s Statute expressly provide that an accused before the Tribunal is entitled to a fair trial. Article 20.1 makes it an essential function of the Trial Chambers to ensure that the accused receives such a fair trial.
5. If it is demonstrated that the resources necessary to ensure a fair trial are not available, a Trial Chamber cannot permit a miscarriage of justice to occur. There would be no miscarriage of justice if an accused person were shown to be freely willing to go to trial without the provision of such resources. Even where a trial would amount to a miscarriage of justice, it would only be in exceptional circumstances that the dismissal of the indictment would be appropriate. However, if the Trial Chamber is satisfied that the absence of such resources will result in a miscarriage of justice, it has the inherent power and the obligation to stay the proceedings until the necessary resources are provided, in order to prevent the abuse of process involved in such a trial.11 The consequences of such a stay upon the continued detention of the accused would depend upon the circumstances of the particular case.
6. The Motion is dismissed.
Judge David Hunt
Dated this 16th day of May 2001
At The Hague
[Seal of the Tribunal]
1 - Motion to Dismiss the Indictment,
2 May 2001 ("Motion"), pars 16-17.
2 - Ibid, pars 1(a)-(d).
3 - Ibid, par 1(e).
4 - Ibid, par 16.
5 - Ibid, par 17.
6 - Prosecution’s Response to "Motion to Dismiss the Indictment" Filed by the Accused Radoslav Brdanin", 8 May 2001 ("Response").
7 - Directive No.1/94 (IT/73/Rev 7). Article 33 of the Directive provides: "In the event of disagreement on questions relating to calculation and payment of remuneration or to reimbursement of expenses, the Registrar shall make a decision, after consulting the President and, if necessary, the Advisory Panel, on an equitable basis."
8 - Response, par 2.
9 - Ibid, par 3.
10 - Copy letter to Mr Ackerman of Counsel, 10 May 2001.
11 - The burden upon an accused seeking a stay upon this basis was not argued, and it is unnecessary for the purposes of the present decision to determine the issue. It may be sufficient if it is demonstrated that the absence of such resources is likely to result in a miscarriage of justice