BEFORE A BENCH OF THE APPEALS CHAMBER
Judge Antonio Cassese, Presiding
Judge Haopei Li
Judge Saad Saood Jan
Mrs. Dorothee de Sampayo Garrido-Nijgh
3 June 1997
IN THE CASE OF DRAGAN OPACIC DECISION ON APPLICATION FOR LEAVE TO APPEAL
Counsel for the Applicant
Ms. Branislava Isailovic
In an application dated 30 May 1997, and filed in the Registry on the same day, Dragan Opacic, a witness in the Tadic case (IT-94-1-T), detained at the Tribunal pursuant to Rule 54 of the Rules of Procedure and Evidence, seeks to appeal the Decision of the Trial Chamber rendered on 27 May 1997 ordering that he be remanded to the authorities of the Republic of Bosnia and Herzegovina.
The application does not state the Rule of the Tribunal pursuant to which the appeal is made. It is readily apparent, however, that the applicant does not have standing to appeal to the full Appeals Chamber, since, according to Article 25 of the Statute, "The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor ..."; the applicant has not been convicted by the Trial Chamber nor may he appeal on behalf of the Prosecutor.
The only course open is, therefore, to treat the applicants motion as an application for leave to appeal pursuant to Rule 72 of the Rules of Procedure and Evidence, which reads in petinent part:
(A) After the initial appearance of the accused, either party may move before a Trial Chamber for appropriate relief or ruling. Such motions may be written or oral, at the discretion of the Trial Chamber.
(B) The Trial Chamber shall dispose of preliminary motions in limine litis and without interlocutory appeal, save
(ii) in other cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon serious cause being shown, within seven days following the impugned decision.
On the basis of the above, a Bench of the Appeals Chamber has been constituted, in the interests of justice, to consider the present application.
On even the most cursory examination of the application, however, it is clear that the applicant equally lacks standing to invoke Rule 72 of the Rules of Procedure and Evidence. Rule 72 applies to preliminary motions filed by "either party". The term "party" is defined in Rule 2 of the Rules of Procedure and Evidence as "The Prosecutor or the accused". The detained witness, Dragan Opacic, who has not been indicted, being neither the Prosecutor nor the accused, is therefore not a party. Accordingly he has no standing to invoke Rule 72.
If this view of the matter appears overly legalistic, any other ruling would open up the Tribunals appeals procedures to non-parties - witnesses, counsel, amicus curiae, even members of the public who might nurse a grievance against a Decision of the Trial Chamber. This could not be. The Tribunal has a limited appellate jurisdiction which categorically cannot be invoked by non-parties.
In this connection, the Bench would further request the Registrar not to seize the Appeals Chamber in future of putative appeals which are lodged by non-parties, nor to pay the costs of such applications, including the present application.
The Bench of the Appeals Chamber,
For the above reasons,
Pursuant to Rule 72(B)(ii) of the Rules of Procedure and Evidence,
REJECTS the application of Applicant Dragan Opacic for leave to appeal the Decision of 27 May 1997.
CERTIFIES that the defence costs of the present application were not reasonably incurred and therefore requests the Registrar not to reimburse the sums so incurred,
DONE in English and French, the English text being authoritative.
Dated this 3rd day of June 1997
At The Hague
[Seal of the Tribunal]