Case: IT-00-39-T

IN TRIAL CHAMBER I

Before:
Judge Alphons Orie, Presiding
Judge Joaquín Martín Canivell
Judge Claude Hanoteau

Registrar:
Mr Hans Holthuis

Date:
28 September 2005

PROSECUTOR

v.

MOMCILO KRAJISNIK

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DECISION ON DEFENCE MOTION TO STAY PROCEEDINGS

___________________________________________________________________________

Office of the Prosecutor

Mr Mark Harmon
Mr Alan Tieger

Counsel for the Defence

Mr Nicholas Stewart, QC
Mr David Josse

THE TRIAL CHAMBER,

NOTING the Defence’s Motion for Stay of Proceedings, filed on 26 September 2005, and the oral submissions on the motion made by the parties on 28 September 2005;

NOTING that the stay is requested by the Defence pending determination of the Defence’s filing of an appeal against the Trial Chamber’s decision of 19 August 2005 on the Defence’s motion for acquittal of the Accused (whether the appeal is as of right, as the Defence claims, is inconsequential to the determination of the present motion);

NOTING the reasons given by the Defence for the stay, namely that "it would be wrong both as a matter of fairness and practicality for the trial to continue" when a judgement of acquittal might yet be entered on all counts; that preparation of the Defence case "should be finalized only once the remaining ambit of the Prosecution case (if any) is known"; that evidence might be heard which finally – supposing the appeal succeeds to any extent – has no bearing on the case, an outcome wasteful and potentially prejudicial; and that the possibility exists that the Appeals Chamber will ask the Trial Chamber to repeat the Rule 98 bis exercise, in which case "it would be nothing less than absurd for the Defence to have commenced its case";

CONSIDERING that a stay of proceedings in this context is a form of discretionary relief, which a Trial Chamber orders to avoid prejudice to a party, and, in the case of an accused, to avoid infringement of a statutory right, such as the assurance of a fair trial;

CONSIDERING that the Defence has claimed that it would be unfair to allow the trial to proceed under the present circumstances, but has not demonstrated how continuation of the proceedings would result – or even might result – in prejudice to Mr Krajišnik, that is, prejudice beyond the practical inconveniences the Defence alludes to, if the appeal should succeed in whole or in part;

CONSIDERING that, as the Trial Chamber understands the matter, an appeal resulting in a judgement of acquittal would render any defence evidence presented unusable, whereas if the appeal were to succeed in part, the evidence received would be further considered only to the extent that it is relevant to the remaining charges, and certainly would not be considered at all should the Rule 98 bis exercise need to be repeated, and thus the Trial Chamber fails to see how prejudice could result in any of these situations;

CONSIDERING that the Trial Chamber, in deciding this motion, takes into account the public interest in uninterrupted trial proceedings, and that staying the proceedings in this case might result in a considerable delay and waste of Tribunal resources, a risk not countervailed by the avoidance of possible inconveniences postulated by the Defence;

DENIES the motion.

Done in English and French, the English version being authoritative.

___________________
Judge Alphons Orie
Presiding Judge

Dated this 28th day of September 2005
At The Hague,
The Netherlands

[Seal of the Tribunal]