Case No. IT-01-48-PT
IN THE TRIAL CHAMBER III
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
14 January 2005
SEPARATE OPINION OF JUDGE O-GON KWON APPENDED TO TRIAL CHAMBER DECISION DATED 12 JANUARY 2005 ON PROSECUTION REQUEST FOR CERTIFICATION FOR INTERLOCUTORY APPEAL OF ĎDECISION ON PROSECUTORíS MOTION SEEKING LEAVE TO AMEND THE INDICTMENTí
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. I agree with the conclusion of the Trial Chamberís decision, denying the Prosecutorís application for certification for interlocutory appeal ("Application"), on a different reasoning. I find that, in this case, the two criteria of Rule 73(B) are met. However, I am of the opinion that the Application should be denied in the exercise of the Trial Chamberís discretion, as allowed by Rule 73(B).
2. Satisfaction of the two criteria of Rule 73(B) is a matter of law for determination by the Trial Chamber. Therefore, although the Application does not adequately explain how the two criteria of Rule 73(B) have been met in this case, the Trial Chamber may review all relevant factors and find, sua sponte, that they have been met otherwise.
3. The two criteria of Rule 73(B) that must be satisfied before a Trial Chamber may certify a decision for interlocutory appeal are: (1) that the issue of the impugned decision would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and (2) an immediate resolution of the issue by the Appeals Chamber may, in the opinion of the Trial Chamber, materially advance the proceedings.
4. In this case, the first criterion of Rule 73(B) is clearly met. This is because the denial of the Prosecutorís application to amend the Indictment, regarding the alleged failure of the Accused to prevent the murders in Uzdol, goes to the scope of the judgement and, therefore, the issue would significantly affect the outcome of the trial.
5. As for the second criterion of Rule 73(B), the focal question is whether the proceedings may be materially advanced, if the matter is to be resolved at the present stage rather than by the appeals judgement at a later stage. In other words, the two ways of resolving the issue should be compared in terms of material advancement of the proceedings: one being an "immediate resolution" by way of interlocutory appeal, and the other being a later resolution by way of appeal against the Trial Chamber judgement.
6. According to the Indictment as it stands now, the Accused is charged with the count of murder for his failure (i) to prevent the crimes in relation to events in Grabovica, (ii) to punish the crimes in relation to events in Grabovica; and (iii) to punish the crimes in relation to events in Uzdol. If, hypothetically, the Accused is acquitted by the Trial Chamber of all charges, the Prosecutor, launching an appeal against the Trial Chamber judgement, may challenge the effect of the impugned decision. She may assert in her challenge that she should have been able to present her case regarding the alleged failure of the Accused to prevent the crimes in relation to the events in Uzdol. In such a case, if the Appeals Chamber were to agree with the Prosecutor, the matter would certainly need to be remanded to the Trial Chamber for further trial. In comparison to such a scenario, the proceedings would be materially advanced, if the issue were to be resolved by the Appeals Chamber at this stage, i.e. immediately. Therefore, for this reason, I am satisfied that second criterion of Rule 73(B) has been also met.
7. However, the decision to grant certification remains in the discretion of the Trial Chamber, as provided by Rule 73(B).1 As another Trial Chamber stated, "The effect of Rule 73(B) is to preclude certification unless its conditions are satisfied, but, in a case where they are satisfied, certification remains in the discretion of the Trial Chamber."2
8. If certification were to be granted in this case as it stands now, there would be the possibility that the trial will not be able to commence as scheduled in January 2005, on the ground that the issue of the interlocutory appeal before the Appeals Chamber concerns the indictment upon which the case should proceed. There is also the possibility that the trial for this case may be delayed for a more substantial period of time, due to the current practice of the International Tribunal in allocating cases to Trial Chambers for the commencement of trial. Given that the Indictment against the Accused was confirmed in September of 2001 and the case has been in the pre-trial stage for over three years, taking on the risks of further delay in the commencement of trial must be seriously considered. In other words, the Trial Chamber must bear in mind the rights of the accused, namely the right to be tried without undue delay, as provided by Article 21 of the Statute of the International Tribunal. Therefore, despite my finding that the two criteria of Rule 73(B) have been met, I am of the opinion that the Trial Chamber should exercise its discretion to deny the certification for interlocutory appeal.
9. It is for the foregoing reasons that I agree with the Trial Chamberís decision denying the Application.
Done in English and French, the English text being authoritative.
Dated this 14th day of January 2005