"Decision on Application for Leave to Appeal the Trial Chamber's Decision concerning Preliminary Motion on the Form of the Indictment"

13 September 2000
Bench of the Appeals Chamber (Judges Vohrah [Presiding], Shahabuddeen and Nieto-Navia)

Procedural Background

• On 2 August 2000, Trial Chamber III issued its Decision Concerning Preliminary Motion on the Form of the Indictment, which dismissed the Defence motion.

• On 8 August 2000, Momcilo Krajisnik filed an Application for Leave to Appeal the Trial Chamber’s Decision Concerning Preliminary Motion on the Form of the Indictment, pursuant to Rules 72(B)(ii)1 and (C)2 of the Rules of Procedure. In this Request, the accused listed five grounds of appeal:

(a) the Trial Chamber had abused its discretion by finding that the material facts were sufficiently pleaded in the Indictment and that it would be unreasonable to ask the Prosecution for further precision;
(b) the Trial Chamber had abused its discretion by finding that the Prosecution had satisfied the requirements for specificity as regarded the criminal responsibility and that it did not need to provide the annex requested by the Defence;
(c) the Trial Chamber had abused its discretion by noting that the Prosecution would be required to provide more detail in its Pre-Trial Brief;
(d) the Impugned Decision would cause irreparable and incurable prejudice to the Appellant;
(e) the issues raised in the proposed appeal were of great significance for the proceedings before the Tribunal and in international law.

• On 18 August 2000, the Prosecution responded to the Defendant’s Application for Leave to Appeal the Trial Chamber’s Decision Concerning the Preliminary Motion on the Form of the Indictment.

The Decision

The Reasoning

• With regard to the first three grounds of appeal, the Judges considered that Momcilo Krajisnik had challenged "a discretionary finding of the Trial Chamber without presenting any contentions" which disclosed "an arguable case of any abuse of such discretion". The Bench held that, in the circumstances, no basis had been shown "for suggesting any error on the part of the Trial Chamber in reaching its Decision" and that there was therefore "no showing of good cause as to these grounds".

• With regard to the fourth ground of appeal, the Judges noted that it relied on "an error or an abuse of discretion on the part of the Trial Chamber", and that the Appellant’s contentions did not disclose an arguable case that there had been such abuse or error. The Bench therefore held that there had been "no showing of good cause as to this ground".

• With regard to the fifth ground of appeal, the Judges considered that Momcilo Krajisnik’s contentions did not "disclose an arguable case". The Bench further found "that a mere assertion that an issue is one of general importance to the Tribunal or international law generally does not in itself establish good cause within the meaning of Rule 72(B)(ii)"3.

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1. Rule 72(B) provides that: "Decisions on preliminary motions are without interlocutory appeal save

(i) in the case of motions challenging jurisdiction, where an appeal by either party lies as of right;
(ii) in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber."

2. "Appeals under Sub-rule (B)(i) shall be filed within fifteen days and applications for leave to appeal under Sub-rule (B)(ii) shall be filed within seven days of filing of the impugned decision. Where such decision is rendered orally, this time-limit shall run from the date of the oral decision, unless

(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
(ii) the Trial Chamber has indicated that a written decision will follow, in which case, the time-limit shall run from filing of the written decision."

3. On the definition of the test to be applied in order to show "good cause", see The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-AR72.2, Bench of the Appeals Chamber, Decision on Request to Appeal, 16 May 2000 (summarised and analysed in Judicial Supplement No. 15), in which the Judges found that no basis had been shown to suggest any error on the part of the Trial Chamber in reaching its Decision.