Case No. IT-01-48-PT
IN THE TRIAL CHAMBER III
Judge Patrick Robinson
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
14 January 2005
SEPARATE AND CONCURRING OPINION OF JUDGE IAIN BONOMY IN THE DECISION ON PROSECUTION REQUEST FOR CERTIFICATION FOR INTERLOCUTORY APPEAL OF "DECISION ON PROSECUTORíS MOTION SEEKING LEAVE TO AMEND THE INDICTMENT"
The Office of the Prosecutor:
Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Counsel for the Accused:
Mr. Peter Morrissey
Mr. Guénaël Mettraux
1. The Trial Chamber unanimously reached the conclusion that the Prosecution Request for Certification ("Application") should be denied. The basis for that decision is that the Prosecution failed to establish that either criterion in Rule 73(B) was satisfied. While Judge Kwon agreed that the Application should be denied, he considered that that should be done not on that basis but in the exercise of the Trial Chamberís discretion. In the event that I, like Judge Kwon, had concluded that the criteria of Rule 73(B) were satisfied, then I also would have denied the Application in the exercise of the Trial Chamberís discretion. I write separately to explain this view.
RULE 73(B) is in these terms:
"Decisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings."
2. Before a Trial Chamber can positively consider granting a request for certification, two criteria must be satisfied. The first of these is in the alternative: either (a) that the issue would significantly affect a fair and expeditious conduct of the proceedings or (b) that it would significantly affect the outcome of the trial. The Prosecution relied on the former. The second criterion is that an immediate resolution of the issue by the Appeals Chamber may materially advance the proceedings. The rule provides clearly that it is only in the event that both criteria are satisfied that the Trial Chamber "may grant Ö certification". Thus the Trial Chamber retains a discretion to grant or deny the request even when the two criteria are met.
3. In view of the importance of these criteria, a Trial Chamber should be cautious about refusing certification where they are met.1 That is particularly so where, as in this case, the issue involves an important legal question. There must be a substantial countervailing reason for exercising the Trial Chamberís discretion against granting the request. In this case such a substantial reason does exist: that is the delay that would inevitably be caused by granting the request. That delay must be considered in the context of the overall time-scale of the proceedings.
4. The proceedings began in September 2001. For various reasons the trial was not initially scheduled to begin until January 2004. The trial did not proceed at that stage. It is now set to commence on 24 January 2005. That trial date would be lost. It is not appropriate for a trial to commence while there remains outstanding a question over the terms of the Indictment and, in particular, while there is doubt about whether the trial of the Accused relates to the failure to prevent a number of murders. This Trial Chamber has recent experience of an interlocutory appeal being dealt with expeditiously because special arrangements to hear the appeal were made by the Appeals Chamber. Nevertheless that procedure took two months. Even if the present appeal were completed within that time, it is likely that the trial would be postponed to a significantly later date because another would plainly be allocated in its place. While I acknowledge that the exact consequences of granting the request are not known, the foregoing is a reasonable assessment of what is likely.
5. I was of the view that any further delay in these proceedings could amount to undue delay amounting to unfair prejudice to the Accused. Weighing all factors in the balance I considered that that factor was of such significance as to require the denial of the Application.
Dated this 14th day of January 2005