BEFORE A BENCH OF THE APPEALS CHAMBER
Judge Lal Chand Vohrah, Presiding
Judge Mohamed Shahabuddeen
Judge Rafael Nieto-Navia
Mr. Hans Holthuis
31 July 2001
MILOJICA KOS a/k/a "KRLE"
MLADO RADIC a/k/a "KRKAN"
ZORAN ZIGIC a/k/a "ZIGA"
DECISION ON APPLICATION BY THE ACCUSED MIROSLAV KVOCKA FOR LEAVE TO APPEAL THE ORAL DECISION OF TRIAL CHAMBER I DATED 30 MAY 2001
Counsel for the Prosecutor:
Ms. Susan Somers
Mr. Krstan Simic for Miroslav Kvocka
Mr. Zarko Nikolic for Milojica Kos
Mr. Toma Fila for Mlado Radic
Mr. Slobodan Stojanovic for Zoran Zigic
Mr. Jovan Simic for Dragoljub Prcac
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("the Bench" and "the International Tribunal" respectively),
BEING SEISED OF the "Application of the Accused Miroslav Kvocka for Leave to Appeal the Decision of Trial Chamber I from 30 May 2001 on the Defense Request to Order the Prosecution to Disclose Relevant Documents which are Result of Testimony of Witness AW" filed on 5 June 2001 by counsel for Miroslav Kvocka ("the Application" and "the Defence" respectively);
NOTING the "Prosecution Response to the Application of the Accused Miroslav Kvocka for Leave to Appeal the Decision of Trial Chamber I from 30 May 2001 on the Defense Request to Order the Prosecution to Disclose Relevant Documents which are Result of Testimony of Witness AW" filed on 15 June 2001 by the Office of the Prosecutor ("the Response" and "the Prosecution" respectively);
NOTING the oral decision of Trial Chamber I rendered on 30 May 2001 denying a request by the Defence for an order to the Prosecution to disclose relevant documents resulting from Witness AWs testimony ("the Impugned Decision");
NOTING that the Impugned Decision found, inter alia, that:
[d]ocument 3/304, which was presented by the Prosecutor, contains all of the information that the Defence might wish to request in order to cross-examine the witness AW who, at this point in time, is available so that the Defence may and can continue the cross-examination of this witness following the information that has been disclosed by the Prosecutor... However, it seems obvious to us that there is nothing additional that might be disclosed, and it would not fall under the provisions of Rule 70(A) of the Rules of Procedure and Evidence and which could be the subject of an order by the Chamber consequently;1
CONSIDERING that the Application is filed pursuant to Rule 73(D) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") which provides, inter alia, that, with leave of a bench of three Judges, interlocutory appeals may be made in the following two instances:
(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal; or
(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally;
NOTING that the Application submits, inter alia, that: (i) the Bench should order the Prosecution to disclose to the Defence all statements given by Witness AW because, although not signed, they are subject to disclosure under Rule 66 of the Rules; (ii) the admission of Witness AWs testimony causes prejudice to the Defence in that it challenges the moral integrity of the accused, which forms a large part of the basis of its case; and (iii) the issue of determining whether an unsigned witness statement is subject to disclosure or not is of general importance pursuant to Rule 73(D)(ii) of the Rules;
NOTING that the Response submits, inter alia, that: (i) the Defence did not suffer any prejudice because it chose not to further cross-examine Witness AW upon receipt of the "Proffer", which contained all the necessary information, despite having the opportunity to do so; (ii) the issue of whether investigators notes should be disclosed to the Defence, is not of general importance within the meaning of Rule 73(D)(ii) of the Rules, since it has already been settled within the jurisprudence of the International Tribunal;
CONSIDERING that it is for the Defence to demonstrate to the Bench either that the Impugned Decision would cause such prejudice to its case as could not be cured by the final disposal of the trial including post-judgement appeal, or that the issue in the proposed appeal is of general importance to proceedings before the International Tribunal or in international law generally;
FINDING that there has been no showing either that there is such prejudice or that the issue in the proposed appeal is of general importance to proceedings before the International Tribunal or in international law generally;
HEREBY DECIDES TO DISMISS the Application.
Done in both English and French, the English text being authoritative.
Lal Chand Vohrah
Dated this thirty-first day of July 2001
At The Hague,
[Seal of the Tribunal]
1. Trial Transcript pp. 12185-12186.