Trial Chambers
The Prosecutor v. Slobodan Milosevic - Case No. IT-02-54-AR73.6

“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
Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Mumba and Weinberg de Roca)

Interlocutory appeals – Role of the amici curiae

Not being a party to the proceedings, the amici curiae are not entitled to use Rule 73 to bring an interlocutory appeal. The fact that the amici were instructed by the Trial Chamber to take all steps they consider appropriate to safeguard a fair trial for the Accused does not alter this conclusion. 

Procedural Background

· 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.

Decision

The Appeals Chamber dismissed the appeal.

Reasoning

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

It found:

“Not being a party to the proceedings, the amici are not entitled to use Rule 73 to bring an interlocutory appeal. The fact that the amici were instructed by the Trial Chamber to take all steps they consider appropriate to safeguard a fair trial for the Accused does not alter this conclusion” (para. 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.

Discussion

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

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1. Milosevic, IT-02-54-T, Order Concerning the Preparation and Presentation of the Defence case, 17 September 2003 (“Order Concerning Preparation”).
2. Milosevic, IT-02-54-T, Decision Granting Request by the Amici Curiae for Certification of Appeal against a Decision of the Trial Chamber, 25 September 2003.
3. Regarding the mandate of the amici curiae, see Milosevic, IT-02-54-T, Order Inviting Designation of Amicus Curiae, 30 August 2001, Judicial Supplement No. 26. See also Milosevic IT-02-54-T, Order Concerning Amici Curiae, 11 January 2002; Milosevic, IT-02-54-T, Order on Further Instructions to the Amici Curiae, 6 October 2003.
4. Milosevic, IT-02-54-T, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, para. 3, Judicial Supplement No. 41.
5. At the hearing of 17 September 2003, the Accused stated that he “categorically protest[ed]” against the ruling on the preparation and presentation of his defence case and added that “[e]very decision or ruling can be re-examined and abolished, and that is my request and demand, that it be rethought” (Transcripts of the 17 September 2003 Hearing, at 4).
6. Para. 5.
7. The Appeals Chamber referred to para. 2 of the Prosecution Response to the Request by the Amici Curiae dated 18 December 2003 for a Certificate Pursuant to Rule 73(B), 24 September 2003, in which the Prosecution accepted that the amici “may be considered to be a ‘party’ for the purposes of an interlocutory appeal”.
8. Para. 5.
9. Delalic et al., IT-96-21-A, Judgement, 20 February 2001, paras. 292-293, Judicial Supplement No. 23.
10. Milosevic, IT-99-37-AR73, IT-01-50-AR73, IT-01-51-AR73, Reasons for Decision on Prosecution Interlocutory Appeal from Refusal to Order Joinder, 18 April 2002, para. 5, Judicial Supplement No. 32.
11. Para. 18. The Appeals Chamber found that the Trial Chamber took into account both the necessity to safeguard a fair trial for the Accused and the need to ensure an expeditious trial.
12. Judge Shahabuddeen examined whether the amici can be considered as a party, whether the Accused could have been considered as acting by himself, and whether the appeal could have been considered as being brought by the Accused through the amici curiae acting as his counsel.