Case No.: IT-01-42-PT
IN THE TRIAL CHAMBER
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquin Martin Canivell
Mr. Hans Holthuis
12 December 2003
DECISION ON THE DEFENCEíS REQUEST FOR CERTIFICATION TO APPEAL
THE TRIAL CHAMBERíS DECISION DATED 26 NOVEMBER 2003 ON THE PROSECUTORíS MOTION
FOR SEPARATE TRIAL AND ORDER TO SCHEDULE A PRE-TRIAL CONFERENCE AND THE START
OF THE TRIAL AGAINST PAVLE STRUGAR
Office of the Prosecutor
Ms Susan Somers
Counsel for the Accused
Mr Goran Rodic
Mr Vladimir Petrovic
- On 26 November 2003 this Trial Chamber ("the 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 Tribunal") issued its "Decision
on the Prosecutorís Motion for Separate Trial and Order to Schedule a Pre-trial
Conference and the Start of the Trial Against Pavle Strugar" ("the
November Decision"),1 granting the Prosecutionís
motion to separate the cases of Pavle Strugar and Vladimir Kovacevic, which
up until then were due to be tried together.
- In the same decision the Chamber scheduled a pre-trial conference in the
case of Pavle Strugar for 8 December 2003, set the trialís commencement for
9 December 2003, terminated Pavle Strugarís provisional release, and requested
the Government of Serbia and Montenegro to return him to the Netherlands.
- On 4 December 2003 the Defence for Pavle Strugar filed a request ("the
Request") for certification to appeal that part of the November Decision
concerning the separation of the two cases.2 The
Defence cited Rule 73(B) of the Tribunalís Rules of Procedure and Evidence
("the Rules") as the basis for its Request. The Prosecutor, on 9
December 2003, asked the Chamber to deny the Request, citing non-fulfilment
of Rule 73(B)ís preconditions for certification.
- Rule 73 of the Rules comes into force once a case is assigned to a Trial
Chamber. Paragraph B of the Rule states that a Trial Chamber may certify a
request to appeal its decision if the decision involves an issue that would
significantly affect the fair and expeditious conduct of the proceedings or
the outcome of the trial, and for which, in the opinion of the Trial Chamber,
an immediate resolution by the Appeals Chamber may materially advance the
proceedings. (The same test is found in Rule 72(B)(ii). Had the Request been
brought pursuant to that rule, the outcome would have been the same.)
- The Defence submitted that in the instant case the preconditions for certification
are met. However, the Defence did not advance any persuasive arguments.
- The Chamber understands Rule 73(B) to mean that the moving party must show
how, in its view, the decision in question raises or leaves unresolved an
issue that would significantly affect the fair and expeditious conduct of
the proceedings or the outcome of the trial. In other words, in its quest
to appeal the decision, some error must be alleged by the moving party,
and this error must have the capacity to significantly affect the fair and
expeditious conduct of the proceedings or the outcome of the trial.
- The Defence failed to identify an error. The Request reiterates the main
arguments used by the Defence to oppose the Prosecutorís original motion.
To take an example (para. 7 of the Request): "the accused requests joint
trial, he has interest to be tried with Kovacevic" (sic). The November
Decision dealt with this issue. The Chamber was of the view that the separation
of the two cases would mean an expeditious trial for Pavle Strugar. The Chamber
was not convinced that the determination of the case against Vladimir Kovacevic,
as part of a joined trial, would necessarily benefit Pavle Strugar, and therefore
did not agree that the separation of the two cases would necessarily, or even
possibly, be to the latterís disadvantage. Pavle Strugarís entitlement to
call evidence in his defence is not diminished by the separation of Vladimir
Kovacevic. Nor are any other of his rights diminished. Having considered the
interests of all concerned, the November Decision explained that separation
was in the interests of justice.
- The Defence submitted that Rules 72(A)(iii) and 82(B) of the Rules "are
Rules to protect the accused. Ö Defence understanding of the Rule 82(B) is
that the Trial Chamber has discretionary power to separate trial, besides
[in] the interests of justice, in the interest of an accused, not to the contrary"
(para. 7). While it is true that the aforementioned rules give an accused,
or a Trial Chamber, the possibility to modify previous determinations on joinder
in the interests of an accused and to protect the interests of justice, it
does not follow that the Accused thereby has a right to oppose the separation
of his case from another without showing that this would be prejudicial to
his defence. This the Defence for Pavle Strugar has failed to demonstrate.
Moreover, the November Decision found that Pavle Strugarís right to an expeditious
trial would be promoted by the separation of cases. The Defence has not cast
doubt on this either.
FOR THE FOREGOING REASONS,
DISMISSES the Request.
Done in English and French, the English text being authoritative.
Dated this 12th day of December 2003
At The Hague
[Seal of the Tribunal]
1. Filed on 27 November 2003.
2. The November Decisionís consequential orders are not addressed in the Request.