Case No.: IT-98-34-AR73.5

BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Mehmet Güney
Judge Theodor Meron

Registrar:
Mr. Hans Holthuis

Decision of:
18 January 2002

PROSECUTOR

v.

MLADEN NALETILIC a/k/a "TUTA"
VINKO MARTINOVIC a/k/a "STELA"

___________________________________________________________

DECISION ON APPLICATION BY MLADEN NALETILIC FOR LEAVE TO APPEAL THE ORDER AND DECISION OF TRIAL CHAMBER I SECTION A DATED 1 NOVEMBER 2001

___________________________________________________________

Counsel for the Prosecutor:

Mr. Kenneth Scott

Defence Counsel:

Mr. Kresmir Krsnik, for Mladen Naletilic
Mr. Branko Seric, for Vinko Martinovic

 

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 International Tribunal"),

BEING SEISED of the "Request for Leave to Appeal", filed confidentially by Mladen Naletilic ("the Applicant") on 8 November 2001 ("the Application for Leave to Appeal");

NOTING the "Prosecutorís Response to Defenceís Leave to Appeal Against the Order of Trial Chamber I Dated 1 November 2001", filed on 19 November 2001;

NOTING the "Order Relating to Request for All Documents Relating to Search Warrant Issued on the 18th September 1998 and Signed by the Honorable Judge May and Decision on Motion for Extention [sic] of Time to File Objections Concerning Admissibility of Evidence Seized Pursuant to Search Warrant", issued confidentially by Trial Chamber I Section A on 1 November 2001, which denies the Applicantís request;

NOTING that Rule 73(D) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") provides that decisions on motions falling under that paragraph are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave, inter alia,:

  1. 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 for Leave to Appeal was based on Rule 73(D)(ii) of the Rules;

NOTING Rule 73(B) and (C) of the Rules which provide as follows:

(B) Subject to paragraph (C) decisions rendered during the course of the trial on motions involving evidence and procedure (including, without limiting the generality of this Rule, orders and decisions under Rule 71, Depositions, and denials under Rule 98 bis, Motion for Judgement of Acquittal) are without interlocutory appeal. Such decisions may be assigned as grounds for appeal from the final judgement

(C) The Trial Chamber may certify that an interlocutory appeal during trial from a decision involving evidence or procedure is appropriate for the continuation of the trial. If such certification is given, a party may appeal to the Appeals Chamber without leave;

CONSIDERING that the substance of the Application for Leave to Appeal is directed to the question of the fairness of the trial;

CONSIDERING therefore that the Application for Leave to Appeal was properly filed under Rule 73(D)(ii) of the Rules;

NOTING that the Application for Leave to Appeal submits that denial of access to the affidavits, transcripts and sworn testimonies submitted in support of an application for a search warrant prevents an accused from challenging the admissibility of evidence which may lead to his conviction and hinders the accused from receiving a fair trial;

NOTING that access to the material supporting the search warrant issued on 18 September 1998 by Judge May is sought in order to determine whether probable cause existed upon which to issue the search warrant and thus whether the Applicant would eventually challenge the admissibility of the documents seized;

CONSIDERING that the Applicantís right to object, during the trial, to the admissibility of the documents seized has not been impaired;

CONSIDERING FURTHER that the circumstances in question are not sufficient to present an arguable case that the fair trial principle is attracted in this matter;

FINDING that the Applicant has not established that the issue in the proposed appeal is of general importance to proceedings before the International Tribunal or in international law generally;

FOR THE FOREGOING REASONS HEREBY DISMISSES the Application for Leave to Appeal.

 

Done in both English and French, the English text being authoritative.

________________________________
Mohamed Shahabuddeen
Presiding Judge

Dated this eighteenth day of January 2002
At The Hague,
The Netherlands.

[Seal of the Tribunal]