1. I agree with the decision on the Prosecution’s first ground of appeal that in the circumstances of this case, the Prosecution had a right to be heard on the question of whether the evidence was sufficient to sustain a conviction. I differ somewhat in the reasons.

2. Rule 98bis(B) provides that prior to the presentation of evidence by the defence, that is, at the close of the Prosecution case, “[t]he Trial Chamber shall order the entry of judgement of acquittal on motion of an accused or proprio motu if it finds that the evidence is insufficient to sustain a conviction on that or those charges.” Three aspects of this provision deserve attention. First, the fact that the Trial Chamber may act proprio motu, means that the Trial Chamber has a right to act on its own volition and without the need for a motion to be filed requesting that it so act. Second, the provision is expressed in the imperative, in that the Chamber shall act once it finds that the evidence is insufficient to sustain a conviction – that is, it ensures that in these circumstances (either following a motion or proprio motu), the Chamber is obliged to order the entry of judgement of acquittal. At this point, it has no discretion not to do so. Third, the Rule does not expressly provide that, before ordering the entry of judgement of acquittal the parties have a right to be heard by the Trial Chamber.

3. My question is, whether pursuant to general principles of law, primarily that of audi alteram partem, a Trial Chamber is always obliged to hear from the Prosecution before reaching a decision under Rule 98bis. I agree with the finding in the Judgement that a party always has a right to be heard on its motion, whether in writing, orally or, subject to the discretion of the Trial Chamber, both¹ - but what if no motion is filed? I am not convinced by the Prosecution’s absolute proposition, as confirmed in the Judgement that a Trial Chamber’s right to make a decision proprio motu on this question (that is, without having been asked by either party), “does not relieve it of the normal duty of a judicial body first [in all circumstances] to hear a party whose rights can be affected by the decision to be made.”² What were the circumstances of this case such that the Appeals Chamber reached this conclusion? What did the Trial Chamber find?

4. During the hearing held on 19 October 1999, the Trial Chamber stated :

Après discussion, les Juges ont fixé, au cours de cette conférence de mise en état [which was held on 22 September 1999], au 8 novembre prochain la date pour le début de la présentation des éléments de preuve de la défense [….] Les Juges ont ensuite examiné l’ensemble des éléments de preuve avancés par l’accusation. De leur deliberé, ils ont conclu que, sans même qu’il soit besoin d’entendre les arguments éventuels de la défense, l’accusé ne pouvait pas être reconnu coupable du crime de génocide.³

5. The Trial Chamber acknowledged that the Prosecution had filed its motion to be heard but decided to join it to the merits of the case.⁴ In doing so, it considered that the Prosecution did not have an absolute right to present closing argument in the context of a decision entered under Rule 98bis. On the contrary, as the Trial Chamber had reached a decision proprio motu that the evidence was not sufficient to sustain a conviction, it found that it was obliged by that provision to enter a judgement of acquittal and was not required to hear submissions from the Prosecution. The Trial Chamber held that the principle audi alteram partem was inapplicable in the circumstances of this case, on the basis that it was not an absolute principle (finding that an exception applies in the case of motions filed ex parte) and because its decision did not originate in a motion filed by the defence, but rather was a decision taken proprio motu .⁵ It found that:

[c]e caractère imperatif [of Rule 98bis(B) of the Rules] exclut toute possibilité d’intervention de la partie accusatrice, sauf l’appel naturellement , après que les Juges ont formé leur décision sur la base de l’ensemble des preuves que cette même partie a choisi de présenter. Par définition, il exclut que le Procureur puisse présenter des arguments finaux tels que ceux visaient à l’article 86 du Règlement .6

6. The Trial Chamber stated that the Prosecution should not be given “une chance supplémentaire” other than the right to appeal its decision⁷ and added that,

[l]e Procureur ne peut pas non plus s’abstenir de présenter en temps voulu tous les éléments de preuve susceptible, selon lui, de convaincre la Chambre pour attendre que la défense ait présenté ses propres éléments de preuve. Enfin, il appartient au Procureur, qui ne peut pas ignorer les dispositions de l’article 98bis du Règlement , de se prémunir contre leurs conséquences éventuelles en soumettant, le moment voulu, à la Chambre les conclusions, notamment juridiques, qu’il estimerait nécessaire d’apporter à l’appui de sa thèse.⁸

Was this reasoning correct?

7. The Trial Chamber reached its decision after the Prosecution had decided to close its case and had presented all of its evidence.⁹ It is at this point in the trial that the Trial Chamber is under an absolute obligation , if the evidence brought by the Prosecution is insufficient to sustain a conviction on some or all counts on the indictment, to “order the entry of judgement of acquittal .” The Trial Chamber rightly found as such. However, is it the case that the mandatory nature of the Rule, “?pgar définition…exclut que le Procureur puisse présenter des arguments finaux tels que ceux visaient à l’article 86 du Règlement”?¹⁰

8. If the latter proposition is understood as meaning that the Prosecution may never intervene in the context of a proprio motu decision by the Trial Chamber under Rule 98bis, for the reasons set out below, I believe it is incorrect. In fact, I believe that neither the absolute position taken by the Appeals Chamber, nor the contrary taken by the Trial Chamber, correctly reflect the obligation on the Trial Chamber to strike a balance between protection of the rights of the accused and the Prosecution (as a party to the proceedings) and the need to ensure that trial proceedings are fairly and expeditiously conducted.

9. I do not dispute in principle, the Prosecution’s proposition, that “[s]ubmissions to the Trial Chamber by the Prosecution as to the case presented, would have enabled the Trial Chamber to appreciate precisely what the Prosecution’s theory of the case was and how each of the various elements of a crime were supported by the evidence.”¹¹ Nor, as stated , do I dispute the contention that the Prosecution would have a right to respond if the defence filed a motion under Rule 98bis. It also may be accepted that in practice, for a Trial Chamber to terminate proceedings at this stage of the trial proprio motu is a somewhat “extraordinary step” for it to take.¹² Nevertheless, I do not agree that there could never be a “justifiable reason”¹³ for a Trial Chamber to decide to do so, without first hearing from the Prosecution – that is, I do not agree that there is an absolute obligation on the Trial Chamber to hear from the Prosecution.

10. A criminal trial is essentially a fact-finding process during which the Judges both hear the evidence and (in the case of the Tribunal) based on this evidence reach a decision. At this stage of the trial process, they are entitled to conclude that the evidence so far presented is insufficient to sustain a conviction on one or more counts on the indictment, such that the trial on that particular count concludes. It may arise that a Trial Chamber is totally convinced, having read the parties’ pre-trial briefs (Rule 65ter), heard the parties’ opening statements (Rule 84) and the Prosecution witnesses and evidence (Rule 85), that there is insufficient evidence to sustain a conviction on one or more counts. It may also be that it reaches this decision in the certainty that there is no need to hear further argument from the parties, being satisfied that this would add nothing to its decision. If so, why should it be obliged to go through the motions of doing so? It is my view that an interpretation of the Rules accords with a view that a decision under Rule 98bislies within the discretion of the Trial Chamber and that it may reach it with or without the assistance of submissions from the Prosecution. Accordingly, if it is totally convinced, based on the evidence so far presented, that there is no need to hear further argument, it is within its competence to make that decision.¹⁴ The Judgement decides that the Prosecution could assist in this decision-making process. As stated , I do not dispute this as a general proposition. However, whether or not in a particular case a Trial Chamber is more comfortable making this decision with the benefit of a form of closing argument from the Prosecution is a matter solely within its discretion - it may equally reach this decision without further assistance from the parties .

11. This interpretation is supported by the express wording of the relevant provisions of the Rules. In this regard, the Prosecution submits that the phrase “after the close of the Prosecutor’s case” (in Rule 98bis), should be construed as including an absolute right for the Prosecution to present closing argument pursuant to Rule 86(A), prior to deliberation by the Trial Chamber on the sufficiency of the evidence after the close of the Prosecution case. However, Rule 86(A) expressly provides for such a right to the Prosecution, “[a]fter the presentation of all the evidence.”¹⁵ The totality of the evidence in a trial includes that provided by the Prosecution and the defence , together with evidence ordered by the Trial Chamber pursuant to Rule 98.¹⁶ Consequently it does not necessarily follow that this express provision in Rule 86(A), for a right to present a closing argument after the presentation of all the evidence, necessarily guarantees its application at this point in the trial - clearly all of the evidence has not yet been presented. Similarly this analogy fails if one considers the following possibility. At the end of a trial, the decision as to whether or not the Prosecution wishes to present a closing argument lies within its discretion (“the Prosecutor may present a closing argument”). It is accepted that generally the Prosecution will exercise this right - equally however, a Trial Chamber may find itself in the position whereby it must decide the case without the assistance of the Prosecution, if the Prosecution decides not to exercise its right. The possibility therefore exists even at this stage of the trial that the Trial Chamber may have to deliberate on the case unassisted by closing argument from the Prosecution.

12. It is a general rule of interpretation that the law must be interpreted in such a way that it has useful effect (the principle of effectiveness, or ut res magis valeat quam pereat).¹⁷ Similarly “[i]n interpreting a particular Rule, a Trial Chamber should ensure that it is interpreted in accordance with its ‘ordinary meaning.’”¹⁸ Although in many circumstances it is likely that a Trial Chamber will seek assistance from the parties prior to entering a decision under Rule 98bis proprio motu , it is my view that, based on the ordinary and effective meaning of the Rules, it is equally within the discretion of the Trial Chamber in limited and defined circumstances as outlined above, to proceed without doing so.

13. Finally, the majority cites the dissenting opinion of Judge Barwick in the Nuclear Tests Case as support for “a more general observation on the importance of not deciding without first hearing counsel’s arguments.”¹⁹ It is however noteworthy that in that case the majority of the International Court of Justice in fact decided not to hear from the parties concerned. In this regard , the Court stated:

It would no doubt have been possible for the Court, had it considered that the interests of justice so required, to have afforded the Parties the opportunity, e.g., by reopening the oral proceedings, of addressing to the Court comments on the statements made since the close of those proceedings. Such a course however would have been fully justified only if the matter dealt with in those statements had been completely new, had not been raised during the proceedings, or was unknown to the Parties.²⁰

14. In my view, this reasoning applies mutatis mutandis to the issue in point, such that only if it is considered in the interests of justice should argument be invited.

15. Turning now to the instant case, the following factors distinguish it. First, the appellant in this case has conceded that the Prosecution was denied the right to be heard on the question of whether the evidence was sufficient to sustain a conviction, while he himself did not file a motion to acquit at the conclusion of the case.²¹ Second, on 22 September 1999, I believe it is clear that the Trial Chamber in the course of the Status Conference and at its conclusion, gave rise to a legitimate expectation on behalf of the parties that the matter would return on 8 November 1999 to commence the defence case. In doing so, it ordered that the defence should notify the court as soon as possible , if it intended to file a motion under Rule 98bis. There does not appear to have been any indication to the parties that the Trial Chamber was thinking in terms of Rule 98bis(B) and that it intended to make such a ruling proprio motu. The Prosecution filed a motion to be heard on 15 October 1999. The Trial Chamber decided to join this motion to the merits four days later, on 19 October 1999, finding that there was “un lien indissociable” between the motion to be heard and the decision on the merits.²² It gave no detailed reasons as to what this “lien” was, why this decision was taken nor why it could not have first rendered a decision on the motion to be heard thereby perhaps providing for a right of interlocutory appeal to the Prosecution . Finally, in its oral decision on the motion to be heard, as set out above, the Trial Chamber appears to have based its decision partly, on an understanding that the Rules in question excluded the possibility of intervention by the parties when a decision under Rule 98bis was entered proprio motu. As stated above , this is not my interpretation.

16. For these reasons and despite my views on the substance of the issue in point, I believe that the Trial Chamber erred in finding that the Prosecution could not have a right to be heard on the question of whether the evidence was sufficient to sustain a conviction. Consequently, it is not necessary for me to dissent from the Appeals Chamber’s conclusions on this point, although I do not agree with the general statement that the Prosecution has an absolute right to be heard in the case of a proprio motu decision under Rule 98bis.

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

_______________
Rafael Nieto-Navia

Dated this fifth day of July 2001
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - Majority Judgement, para. 25.
2 - Majority Judgement, para. 27.
3 - T, 19 October 1999, p. 1705.
4 - T, 19 October 1999, p. 1706.
5 - Majority Judgement, para. 26.
6 - T, 19 October 1999, p. 1708.
7 - Ibid.
8 - T, 19 October 1999, p. 1709.
9 - Save for one possible witness who it stated it would perhaps call in the future.
10 - T, 19 October 1999, p. 1708.
11 - Prosecution Brief para. 2.4.
12 - The Prosecution stated that it was an “extraordinary step” for the Trial Chamber to “summarily terminate[ ] the proceedings.” Prosecution Brief, para. 2.3. It is noted that this was the first time since Rule 98bis was adopted by the Tribunal at the eighteenth Plenary Session on 9-10 July 1998, that such a decision was entered proprio motu, while all subsequent decisions by Trial Chambers have been rendered pursuant to motions filed by the defence.
13 - Prosecution Brief, para. 2.4.
14 - In the decision in R. v. Barking and Dagenham Justices, ex parte Director of Public Prosecutions, [1995] Crim LR 953, the court found “desirable that the Magistrates, in such circumstances, should call upon the party that they are provisionally against, in this case the Prosecution, before making a ruling” (emphasis added). This is however distinct from the situation to which I allude. That is, not a situation in which the justices are “provisionally” against a party, but rather are already convinced. In any event, I believe that the jurisprudence supports my contention that a decision by the court is discretionary, that is, it is “desirable” and not mandatory to hear the party.
15 - Emphasis added.
16 - Rule 85(A) of the Rules.
17 - See, Prosecutor v. Dario Kordic and Mario Cerkez, Decision on appeal regarding the admission into evidence of seven affidavits and one formal statement, Case No. IT-95-14/2-AR73.6, 18 September 2000, paras. 23 et seq.
18 - Ibid., para. 22, referring to Article 31(1) of the Vienna Convention on the Law of Treaties (1969).
19 - Majority Judgement, footnote 55.
20 - Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 253, at para. 33.
21 - Majority Judgement, para. 28.
22 - T, 19 October 1999, p. 1706. The Trial Chamber stated: “Il y a donc lieu de joindre cette requête, qu’on appellera l’incident, au fond.”