Press Release · Communiqué de presse
(Exclusively for the use of the media. Not an official document)
The Hague, 14 August 1997
BLASKIC CASE - SUBPOENA ISSUE
HEARING SCHEDULED ON 22 AND 23 SEPTEMBER FOR THE APPEAL FILED BY CROATIA AGAINST THE "SUBPOENA DECISION" OF 18 JULY
On 22 and 23 September 1997, the Appeals Chamber will hold a hearing at which the Republic of Croatia, the Prosecutor and amici curiae will make submissions on both the "admissibility and the merits" of the appeal lodged on 25 July by Croatia against the "Subpoena Decision" handed down on 18 July by Trial Chamber II (see Press Release 230).
This hearing was scheduled by the Appeals Chamber (consisting of Judge Antonio Cassese, (presiding), Judge Adolphus Karibi-Whyte, Judge Haopei Li, Judge Sir Ninian Stephen and Judge Lal Chand Vohrah) in a Decision rendered on 12 August concerning a Motion by the Prosecution to "set aside" the previous Decision of 29 July granting Croatia leave to appeal the subpoena decision
(see PR 234).
Prosecution Motion of 4 August 1997
On 4 August 1997, the Office of the Prosecutor filed a Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997 on the following grounds :
1. The Appeals Chamber erred in giving its decision without first giving the parties an opportunity to be heard ;
2. The Appeals Chamber erred in considering the application of Croatia as one falling under Rule 108bis ;
3. Even if Rule 108bis is applicable, and the application for review is granted, the Appeals Chamber should not have stayed the execution of the subpoena pending the disposal of the review proceedings ;
4. Even if Rule 108bis is applicable, under it, execution of the subpoena against Mr. Susak cannot be stayed as that Rule enables only a State to seek review of an interlocutory decision.
Response of Croatia to Prosecution's Motion
On 8 August 1997, the Republic of Croatia filed an Opposition of the Republic of Croatia to Prosecution's Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997 on the following grounds :
1. Croatia's appeal had not been granted as it had been merely been granted the opportunity to present its case to the Appeals Chamber ;
2. The Appeals Chamber has taken steps to minimise any inconvenience to the Prosecutor establishing a "very aggressive briefing schedule" and as a consequence, any delay in Blaskic's trial will be minimal ;
3. Croatia would be disadvantaged by allowing the subpoena to remain in effect pending the appeal as otherwise it would have been placed in the position of either violating the Trial Chamber's order, or complying with an illegal order and mooting its own appeal;
4. The Prosecutor has incorrectly suggested that Croatia is willing to turn over the documents covered by the Trial Chamber's subpoena, and that it should merely reserve its right to continue to contest the legal issue after the documents have been disclosed.
As a consequence, the Republic of Croatia requested the Appeals Chamber to deny the Prosecutor's Motion and to reaffirm the Decision of 29 July 1997.
Decision of the Appeals Chamber
In its Decision on Prosecution Motion to Set Aside the Decision of the Appeals Chamber of 29 July 1997, the Appeals Chamber :
Rejected the Prosecution Motion to set aside the Appeals Chamber Decision of 29 July 1997 ; Confirmed the suspension of the execution of the subpoena duces tecum, and ; Confirmed the scheduling order in its Decision of 29 July 1997 and scheduled a hearing for 22 and 23 September 1997.
Croatia reminded of its obligation to co-operate with the Tribunal
The Appeals Chamber reminded the Republic of Croatia of its obligation to co-operate with the Tribunal, and of its duty to comply "without undue delay with any request for assistance or an order issued by a Trial Chamber (...) pursuant to Article 29 of the Statute." Furthermore, the Appeals Chamber called upon the Republic of Croatia "... to produce as many as possible of
the documents the subject of the (...) subpoena, in accordance with the undertaking given by the Ambassador of Croatia at the hearings before Judge McDonald on 19 February 1997."
Grounds of the Decision
1. The Appeals Chamber first examined the Prosecution's argument that it erred in considering Croatia's request as admissible and in suspending the subpoena duces tecum without first giving the Parties an opportunity to be heard.
The Chamber referred to Rules 108bis sub-paragraphs (B) and (D), Rule 116bis and Rule 72(B) of the RPE and held that the Parties may be granted the opportunity to be heard "... on the merits of SCroatia's RequestC at an inter partes hearing which will take place before any final decision is rendered on the Request." The Chamber also held that it was the
practice of the Bench to take a decision on whether to grant or refuse leave to appeal without a hearing in order to ensure "expeditious appellate proceedings on interlocutory motions". Furthermore, the Judges found that the suspension of the execution of the subpoena without a hearing, was justified as it may be considered "... an immediate form of interlocutory
relief designed to prevent a Party ... from being subjected to the oppressive effects of an Order."
2. The Appeals Chamber considered the Prosecution's contention that it had erred in deciding that the application of Croatia fell under Rule 108bis. The Bench rejected this argument on the grounds that "if at the time of entry into force of the Rule, Sthe Decision of 18 JulyC had been delivered by a Trial Chamber and the fifteen days stipulated in sub-Rule
108bis had not yet elapsed, a State meeting the requirements of the Rule could legitimately file a request for review."
3. The Judges further examined the assertion by the Prosecution that, in any event, even if Rule 108bis is applicable, and the application for review is granted, the Appeals Chamber should not have suspended that execution of the subpoena pending the disposal of the review proceedings. The Chamber held that "... the suspension of the execution of the impugned
decision pending the determination of the review ... was the only means of preserving the subject-matter review." Moreover, the Appeals Chamber disagreed with the Prosecution's argument that it would be prejudiced by the suspension of the execution of the subpoena, as according to the Chamber, Croatia can still disclose all the documents which it had previously indicated
that it was willing to disclose. Finally, the Chamber held that Croatia would be prejudiced if the subpoena remained in force as it would either have to comply with an impugned decision, or refuse to comply and, as a consequence, face the possibility of being sanctioned.
4. The Chamber rejected the Prosecution's argument that Mr. Susak would have to comply with the subpoena, as the power of the Tribunal to issue a subpoena to an official of a State is one of the issues contested by Croatia and which the Chamber is called upon to pronounce.