Judge Lal Chand Vohrah, Presiding
Judge Wang Tieya
Judge Rafael Nieto-Navia

Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
23 August 1999







The Office of the Prosecutor:

Mr. Geoffrey Nice
Mr. Kenneth Scott
Ms. Susan Sommers
Mr. Patrick Lopez-Terres

Counsel for the Accused Dario Kordic:

Mr. Mitko Naumovski
Mr. Turner T. Smith, Jr.
Mr. David Geneson
Mr. Ksenija Turkovic
Mr. Stephen M. Sayers
Mr. Robert A. Stein

Counsel for the Accused Mario Cerkez:

Mr. Bozidar Kovacic
Mr. Goran Mikulicic


THIS BENCH of 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 ("the Bench" and "the Tribunal", respectively),

BEING SEIZED OF an "Application for Leave to Pursue an Interlocutory Appeal of the Trial Chamber’s 25 June 1999 Decision Stating Reasons for Trial Chamber’s Ruling of 1 June 1999 Rejecting Defense Motion to Suppress Evidence", filed by the Accused Dario Kordic ("the Appellant") on 2 July 1999 ("the Application");

NOTING the oral ruling of Trial Chamber III on 1 June 1999;

NOTING the "Decision Stating Reasons for Trial Chamber’s Ruling of 1 June 1999 Rejecting Defence Motion to Suppress Evidence", rendered by Trial Chamber III on 25 June and filed on 28 June 1999 ("the Decision");

NOTING the "Prosecutor’s Response to Dario Kordic’s Application for Leave to Pursue Interlocutory Appeal (Motion to Suppress Evidence)", filed on 4 August 1999 in accordance with the Scheduling Order of the Bench filed on 26 July 1999 ("the Response" and "the Scheduling Order", respectively);

NOTING that the Appellant had not filed any reply to the Response within the time limit set by the Scheduling Order;

CONSIDERING that the Application was filed pursuant to sub-Rule 73 (B) of the Rules of Procedure and Evidence of the Tribunal ("the Rules") (IT/32/Rev.15), which provided that:

Decisions on such motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave

(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal; or

(ii) if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally;

CONSIDERING that the Application was filed within time;

CONSIDERING that according to the Application, the issue is that "SbCecause the evidence seized in the illegal search is already being introduced by the Prosecution into the trial against Dario Kordic, because the conduct in question may be repeated by the Prosecution at any time and further illegally-seized evidence introduced into the trial of Mr. Kordic, and because of the novelty and breadth of the Trial Chamber’s breath-taking claim of authority for the Prosecution to enter the sovereign territory of any UN member state and use armed force to search government premises and seize government documents without the consent of that sovereign, the Decision:

(i) causes severe, incurable prejudice to the Accused under Rule 73 (B) (i), and
(ii) raises an issue of general importance to proceedings before the Tribunal and in international law generally under Rule 73 (B) (ii)."

CONSIDERING, HOWEVER, that the Appellant has not shown that the Decision has caused any prejudice to his case which could not be cured by the final disposal of the trial, including post-judgement appeal;

CONSIDERING that the Decision was rendered pursuant to Article 18 (2) and Article 29 of the Statute and Rule 39 of the Rules;

CONSIDERING that, contrary to the Defence contention, the Decision did not proclaim that the Office of the Prosecutor ("the Prosecution") had the authority to enter the territory of any member State of the United Nations to conduct search and seizure;

CONSIDERING FURTHER that the search and seizure at issue were conducted by the Prosecution pursuant to a search warrant issued by a Judge of the Tribunal in conformity with the Rules;

CONSIDERING IN PARTICULAR that Article 18 (2) of the Statute of the Tribunal expressly states that the Prosecutor "shall have the power to question suspects, victims and witnesses, to collect evidence and to conduct on-site investigations. In carrying out these tasks, the Prosecutor may, as appropriate, seek the assistance of the State authorities concerned";

CONSIDERING that sub-Rule 39 (i) of the Rules fully reflects the terms of Article 18 (2) of the Statute;

CONSIDERING that the provision of Article 18 (2) of the Statute has also been embodied in the Exchange of Letters between the United Nations and the Government of Bosnia and Herzegovina on the Status of the Liaison Office of the Prosecutor of the International Tribunal as a right for the Liaison Office, the Exchange of Letters being concluded with immediate effect on 16 February 1996 and without a denunciation clause or any change to date;

NOTING ALSO that Article 29 (1) of the Statute requires States to co-operate with the Tribunal in the investigation and prosecution of persons accused of committing serious violations of international humanitarian law, this obligation having also been clearly reflected in Article IX of the General Framework Agreement for Peace in Bosnia and Herzegovina, initialled on 21 November and entering into effect on 14 December 1995, by the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Federal Republic of Yugoslavia;

NOTING that the Government of Bosnia and Herzegovina has not made a complaint of the search and seizure at issue, in accordance with the Rules;

FINDING THEREFORE that no issue has been established by the Appellant as being of general importance to proceedings before the Tribunal or in international law generally, in that the issue raised in the Application is provided for in the Statute, the Rules, and a treaty between the United Nations and the Government of Bosnia and Herzegovina;

HEREBY DECIDES, to deny the Application for leave to appeal.

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


Lal Chand Vohrah
Presiding Judge

Dated this twenty-third day of August 1999
At The Hague,
The Netherlands.

[Seal of the Tribunal]