Case No.: IT-02-54-T-R77.4
IN THE TRIAL CHAMBER
Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Registrar:
Mr. Hans Holthuis
Decision of:
3 May 2005
PROSECUTOR
v.
SLOBODAN MILOSEVIC
CONTEMPT PROCEEDINGS AGAINST KOSTA BULATOVIC
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ORDER ON DEFENCE MOTION SEEKING RECONSIDERATION OF ORDER ON CONTEMPT CONCERNING WITNESS KOSTA BULATOVIĆ AND ALTERNATIVELY MOTION REQUESTING CERTIFICATION
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Office of the Prosecutor:
Ms. Carla Del Ponte
Mr. Geoffrey Nice
The Accused:
Mr. Slobodan Milosevic
Counsel for Mr. Kosta Bulatovic:
Mr. Stéphane Bourgon, Duty Counsel
Court Assigned Counsel:
Mr. Steven Kay, QC
Ms. Gillian Higgins
Amicus Curiae:
Prof. Timothy McCormack
THIS TRIAL 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 ("International Tribunal");
BEING SEISED OF a "Defence Motion Seeking Reconsideration of Order on Contempt Concerning Witness Kosta Bulatovic and Alternatively Motion Requesting Certification”, filed confidentially on 27 April 2005 ("Motion"), in which the Defence of Kosta Bulatovic ("Witness Accused") presents two alternative prayers for relief: (1) a request that the Chamber reconsider its decision to proceed against the Witness Accused for contempt ("Reconsideration Request"), and (2) a request that the Chamber certify its decision "to remain seized of the matter", and not transfer the contempt proceedings to another Chamber ("Certification Request");
CONSIDERING that a Chamber may reconsider a decision where there has been a change of circumstances, or where the Chamber has been persuaded that its previous decision was erroneous and caused prejudice;1
CONSIDERING that a Chamber’s determination of whether to reconsider its previous decision is itself a discretionary decision arising from its inherent powers;2
NOTING the arguments advanced in the Reconsideration Request:
CONSIDERING that neither the Witness Accused’s statements after the resumption of the Milosevic trial on 25 April 2005, nor the information unavailable to the Chamber at the time of its decision, affect or change the conduct on 19 and 20 April 2005 that gave rise to the initiation of contempt proceedings against him;
CONSIDERING that the legal issues discussed in the Reconsideration Request are beyond the scope of the limited proceedings against the Witness Accused;
CONSIDERING that the Witness Accused has an automatic right of appeal from the decision of this Trial Chamber at the conclusion of the contempt proceedings;
CONSIDERING that the remaining issues raised in the Reconsideration Request are not relevant to the contempt proceedings, and that none of those issues persuades the Chamber that its previous decision was erroneous or caused prejudice;
CONSIDERING that Rule 73(B) of the Rules of Procedure and Evidence of the International Tribunal ("Rules") requires two criteria be satisfied before a Trial Chamber may certify a decision for interlocutory appeal: (1) that the issue 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,
NOTING that the Certification Request’s basic assignment of error to the Chamber in relation to its decision to prosecute the contempt matter itself is that "its impartiality may be called into question regarding the underlying issue of the right of an accused person to be tried in his presence";
CONSIDERING that, although the Certification Request correctly notes the two criteria for certification, its arguments focus on the effect on the fair conduct of the proceedings of the Chamber’s decision to prosecute the matter itself, and do not discuss the requirement that immediate resolution of the issue by the Appeals Chamber may materially advance the proceedings;
CONSIDERING that, even when an important point of law is raised, such as in this case, the effect of Rule 73(B) is to preclude certification unless the party seeking certification establishes that both conditions are satisfied;
CONSIDERING, moreover, that given the narrow nature of the charge against the Witness Accused and the imminent hearing date of 5 May 2005, it is difficult to see how resolution of the issue by the Appeals Chamber now, as opposed to after a decision is rendered by this Trial Chamber,3 would materially advance the proceedings;
PURSUANT TO Rules 54 and 73 of the Rules,
HEREBY DENIES the Motion.
Done in English and French, the English text being authoritative.
___________________________
Judge Robinson
Presiding
Dated this third day of May 2005
At The Hague
The Netherlands
[Seal of the Tribunal]