Trial Chambers


The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-AR73

"Reasons for Refusal of Leave to Appeal
from Decision to Impose Time Limit"

16 May 2002
Judges Jorda (Presiding), Hunt and Pocar

Rules 73(B) and (D) of the Rules of Procedure and Evidence - Article 16(2) of the Statute - Independence of the Prosecutor - Intent and extent - Power of the Trial Chamber to reconsider its previous decisions.

(1) The fact that the Trial Chamber renders a decision proprio motu (a) does not deny the Prosecutor the right to seek leave to appeal pursuant to Rule 73(D) of the Rules provided that the decision meets the other requirements of Rule 73(D) and (b) does not exclude the application of Rule 73(B) if the decision rendered during the course of the trial is one "involving evidence and procedure".

(2) Only the character of the impugned decision and not that of its consequences determines the application of Rule 73(B) of the Rules.

(3) Every court possesses the inherent power to control the proceedings during the course of the trial.

(4) Intent and extent of Article 16(2) of the Statute: no government, institution or person, including the judges of the Tribunal, can direct the Prosecutor as to whom he or she is to investigate or to charge.

(5) The authority of the Trial Chamber to reconsider its previous decisions is a discretionary power of the Trial Chamber itself.

Procedural Background

· On 10 April 2002, Trial Chamber III proprio motu rendered an oral decision (1) directing the Prosecution to conclude its case within twelve months, in addition to the two months it had already used, and (2) expressing the view that no Prosecution case should continue for more than fourteen months. It added that such limitation is subject to "the unexpected", i.e. illness or other unforeseen circumstance.

· On 16 April 2002, the Prosecution filed an Application for an Interlocutory Appeal pursuant to Rule 73(D) of the Rules of Procedure and Evidence1. It argued inter alia that the Trial Chamber had invaded the independence of the Prosecutor provided for in Article 16(2) of the Statute2.

· On 25 April 2002, the Bench of the Appeals Chamber rendered its Decision on the Prosecution Application for Leave to File an Interlocutory Appeal in which it stated that even if Rule 73(D) had been applicable in this case, it was not satisfied that the conditions for its application had been met.

The Reasoning

Admissibility

The Bench of the Appeals Chamber considered that the fact that the Trial Chamber rendered a decision proprio motu (a) does not deny the Prosecutor the right to seek leave to appeal pursuant to Rule 73(D) of the Rules provided that the decision meets the other requirements of Rule 73(D) and (b) does not exclude the application of Rule 73(B) of the Rules3 if the decision rendered during the course of the trial is one "involving evidence and procedure". The Bench of the Appeals Chamber stressed that only the character of the impugned decision and not that of its consequences determines the application of Rule 73(B) of the Rules.

The Bench of the Appeals Chamber also pointed out that "every court possesses the inherent power to control the proceedings during the trial."4 It considered that the Trial Chamber issued the decision in the exercise of its power to control the proceedings currently tried before it.

Independence of the Prosecutor

The Bench of the Appeals Chamber interpreted "the true intent of Article 16(2) of the Statute" and its "extent" as being that "no government or other institution or person, including the judges of the Tribunal, can direct the Prosecutor as to whom he or she is to investigate or to charge."

Power of the Trial Chamber to reconsider its previous decisions

The Bench of the Appeals Chamber pointed out that "a Trial Chamber may always reconsider a decision it has previously made, and not only because of unforeseen circumstances."5 It added that "[w]hether or not it exercises that power" is discretionary6.

The Bench of the Appeals Chamber stated that it was not satisfied that, in the exceptional circumstances of this case, "the decision raises any issue of general importance to proceedings before the Tribunal generally which warrants further elaboration by a full Bench of the Appeals Chamber."

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1. Rule 73(D) in the version then in force provided that:
"Decisions on all other motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave
(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal;
(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally."

2. "The Prosecutor shall act independently as a separate organ of the International Tribunal. He or she shall not seek or receive instructions from any Government or from any other source."
3. "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."
4. Regarding the inherent powers of the Tribunal, see The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21, Judge Antonio Cassese, Decision of the President on the Prosecution's Motion for the Production of Notes Exchanged Between Zejnil Delalic and Zdravko Mucic, 11 November 1996, in which the President of the Tribunal stated, obiter dictum, that the power to punish contempt is a prerogative of the Chambers since it derives from the inherent power of the court to control its own proceedings (para. 34); The Prosecutor v. Dusko Tadic ("Prijedor") Case No. IT-94-1-A-R77, Appeals Chamber, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, (summarised in Judicial Supplement No. 11).
5. See The Prosecutor v. Hazim Delic ("Celebici Camp"), Case No. IT-96-21-A, Appeals Chamber, Order of the Appeals Chamber on Hazim Delic's Emergency Motion to Reconsider Denial of Request for Provisional Release, 1 June 1999, in which the Appeals Chamber considered that "in the absence of particular circumstances justifying a Trial Chamber or the Appeals Chamber to reconsider one of its decisions, motions for reconsideration do not form part of the procedure of the International Tribunal" (page 4); The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Judge Claude Jorda, Order on the Prosecution's Motion for Reconsideration of the Order issued by the President on 11 September 2000, dated 11 January 2001, in which the President of the Tribunal stated that "no new ground justifying a reconsideration of the Order" had been submitted and concluded that there was "no cause to reconsider the Order"; The Prosecutor v. Stanislav Galic ("Sarajevo"), Case No. IT-98-29-AR73, Bench of the Appeals Chamber, Decision on Application by Prosecution for Leave to Appeal, 14 December 2001, in which the Bench of the Appeals Chamber considered that "a Trial Chamber may nevertheless always reconsider a decision it has previously made, not only because of a change of circumstances but also where it is realised that the previous decision was erroneous or that it has caused an injustice" (para. 13); see also Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Appeals Chamber, Decision on the Appeal Against the Oral Decision of 7 February 2002 Dismissing the Motion for Review of the Decision of 29 January 2002 relating to the Appearance of the French Expert Witness Dominique Lecomte and the Acceptance of His Report, 16 April 2002, in which the Appeals Chamber considered that "there was a right of reconsideration" since the decision had proceeded on a mistaken assumption "with the consequence that the procedure by which the former decision" had been taken "was unfair to him" (page 2).
In the opposite sense, see The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-PT, Trial Chamber I, Decision on Prosecutor's Motion for Reconsideration, 15 February 1999, in which the Trial Chamber considered that "motions to reconsider are not provided for in the Rules and do not form part of the procedures of the International Tribunal" (page 2).
6. See Théoneste Bagosora v. The Prosecutor, Case No. ICTR-98-41-A, Appeals Chamber, Interlocutory Appeal from refusal to Reconsider Decisions relating to Protective Measures and Application for a Declaration of "Lack of Jurisdiction", 2 May 2002, in which the Appeals Chamber considered that "[w]hether or not a Trial Chamber reconsiders a prior decision is itself a discretionary decision" (para. 10).