“Decision on Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case”
20 January 2004
· On 2 September 2003, the Trial Chamber held a Status Conference to discuss the anticipated conclusion of the Prosecution’s case and the preparation necessary for the Defence case. The Accused requested a continuance of over two years to prepare his defence, pointing to the fact that he is conducting his own defence, the complexity of the case, the large number of witnesses he intends to call and the extensive material disclosed by the Prosecution which he must examine. The amici curiae pointed to the same considerations and seconded the Accused’s request for an adjournment of considerable duration without, however, suggesting a specific period.
· On 17 September 2003, the Trial Chamber granted the Accused a period of three months to prepare his defence and ordered that he file a list of the witnesses and exhibits he intends to present, within six weeks of the adjournment.1
· On 25 September 2003, the Trial Chamber granted the amici curiae certification to appeal the Order Concerning Preparation.2 It considered that their request was within the scope of the Trial Chamber’s instruction that they act in any way they consider appropriate in order to secure a fair trial for the Accused3 and that this could be construed as a request for certification from the Accused’s application for a two-year continuance.
The Appeals Chamber dismissed the appeal.
Admissibility of the appeal
The Appeals Chamber recalled that Rule 73, pursuant to which the appeal by the amici curiae was brought, entitles a “party” to appeal a decision of a Trial Chamber after having requested and obtained certification. It noted that the Rule “does not confer such right upon an amicus curiae appointed by a Trial Chamber ” (para. 4) and recalled that the amici do not act as representatives of the Accused at trial but solely as assistants to the Trial Chamber.4
The Appeals Chamber then relied on statements by the Accused that he did not accept the ruling of the Trial Chamber and sought its reconsideration.5 The Appeals Chamber found an “identity of interests” between the amici and the Accused and held that its “consideration of this appeal would not infringe his interests”.6 It further noted that the Prosecution did not oppose consideration of the appeal7 which would in this case “serve the interests of justice”.8 It therefore decided to consider the appeal.
The Appeals Chamber pointed out that the Trial Chamber’s order could only be overturned if it were proven that it had erred in the exercise of its discretion in setting the time limit.9 It added that the amici had to demonstrate that the Trial Chamber “ha[d] given weight to extraneous or irrelevant considerations, or […] failed to give weight or sufficient weight to relevant considerations, or […] made an error as to the facts upon which it […] exercised its discretion”.10 It reviewed the approach taken by the Trial Chamber and found that the Trial Chamber had considered all the relevant factors. The issue was therefore whether the Trial Chamber had erred in its analysis of these factors. In this respect the Appeals Chamber found that the Trial Chamber’s Decision was informed “both by sufficient factual information and by the appropriate legal principles, and did not take into account any impermissible factors”.11 It dismissed the appeal.
Separate Opinion of Judge Shahabuddeen
While Judge Shahabuddeen agreed with the Decision of the Appeals Chamber to dismiss the interlocutory appeal, he did not consider that the Appeals Chamber had to go as far as to assess whether the Trial Chamber had correctly exercised its discretion . In his view, there was a preliminary reason for dismissal: the dismissal “should have rested on the more fundamental fact that the interlocutory appeal ha[d] not been brought by a ‘party’ within the meaning of Rule 73(A) of the Rules of Procedure and Evidence of the Tribunal”.12