THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal"),

NOTING the Decision on Motion to Dismiss Indictment ("Decision"), issued by Trial Chamber II on 5 October 1999, whereby the Trial Chamber dismissed Radoslav Brdjanin’s ("Appellant") challenge to the confirmation of the indictment against him, inter alia on the ground that there is no basis in the Rules of Procedure and Evidence of the International Tribunal to permit a Trial Chamber to review the decision of the confirming Judge regarding the existence of a prima facie case against the accused;

NOTING the Interlocutory Appeal from Decision on Motion to Dismiss Indictment, filed by the Appellant on 12 October 1999 ("Interlocutory Appeal"), whereby he submits that his challenge to the confirmation of the indictment constitutes a challenge to jurisdiction under Rule 72 (B)(i), and in the alternative requests that it should be treated as an application for leave to appeal under Rule 72 (B)(ii);

NOTING the Prosecution’s Response to the Interlocutory Appeal ("Prosecution’s Response"), filed on 21 October 1999, whereby the Office of the Prosecutor ("Prosecution") contends that the Interlocutory Appeal does not properly fall within the terms of Rule 72 (B)(i) and should also be dismissed under Rule 72 (B)(ii), and further gives notice of its intention to seek to amend the indictment against the accused before the confirming Judge;

NOTING the Reply to the Prosecution’s Response and Motion for Protective Order, filed by the Appellant on 25 October 1999 ("Motion for Protective Order"), whereby the Appellant seeks a protective order prohibiting the Prosecution from seeking to amend the Indictment until the Appeals Chamber has entered a decision in this matter;

NOTING the Prosecution’s Response to Motion for Protective Order filed on 29 October 1999, whereby the Prosecution opposes the Motion for Protective Order;

CONSIDERING that the issue to be decided by the Appeals Chamber at this stage is whether the Interlocutory Appeal was properly filed under Rule 72;

CONSIDERING that, before the Trial Chamber, the Appellant argued both a procedural and a substantive error in support of his challenge to the confirmation of the indictment;

CONSIDERING that the Appellant’s argument in relation to procedure, as correctly stated by the Trial Chamber, confuses form with substance, and that the error alleged by the Appellant thus goes to substance;

CONSIDERING that, assuming arguendo the existence of a substantive error in the prima facie assessment of the material before him by the confirming Judge, such an error could not be considered as going to jurisdiction within the meaning of Rule 72 (B)(i);

CONSIDERING THEREFORE that a challenge to the confirmation of an indictment on this basis cannot be regarded as constituting a challenge to jurisdiction within the ambit of Rule 72 (B)(i);

CONSIDERING FURTHER that the Interlocutory Appeal does not involve any of the categories contemplated in Rule 72 (A), referred to in Rule 72 (B)(ii);

CONSIDERING THEREFORE that the Interlocutory Appeal cannot be treated as an application for leave to appeal under Rule 72 (B)(ii);

CONSIDERING that, under these circumstances, there is no ground for granting the Motion for Protective Order;

HEREBY REJECTS the Interlocutory Appeal as improperly filed pursuant to Rule 72 AND DISMISSES the Motion for Protective Order.

Done in both English and French, the English text being authoritative.

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Mohamed Bennouna
Presiding Judge

Dated this sixteenth day of November 1999
At The Hague,
The Netherlands.