Before: Judge Mohamed Shahabuddeen, Presiding

Judge Wang Tieya

Judge Rafael Nieto Navia

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Order of: 24 September 1998








Office of the Prosecutor:

Ms. Brenda Hollis
Mr. Michael Keegan

Counsel for the Accused:

Mr. Dusan Vucicevic
Mr. John Ostojic


THIS BENCH OF THE APPEALS CHAMBER of the International Criminal Tribunal for the former Yugoslavia ("International Tribunal"),

NOTING the Request for Leave To Appeal filed by the Office of the Prosecutor ("Prosecution") on 31 August 1998 ("the Request for Leave to Appeal"), seeking leave pursuant to Rule 73 (B) of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"), to appeal from an Order Denying Request For Return Of Materials issued by Trial Chamber II on 24 August 1998,

NOTING that, by its Order Terminating The Proceedings Against Milan Kovacevic issued on 24 August 1998, the Trial Chamber reminded the parties that various Orders and Decisions of the Trial Chamber for the protection of witnesses remain in force and "thus prohibit the disclosure of certain . . . material" and ordered that "material which has not been put into the public domain shall remain confidential and should not be disclosed by either party",

NOTING FURTHER that, in its Order for Non-Disclosure issued on 3 July 1998, the Trial Chamber ordered the return of certain videotapes disclosed by the Prosecution "as soon as they are no longer required for purposes of this case",

CONSIDERING that the Prosecution seeks leave to appeal pursuant to Rule 73 (B) of the Rules, which reads as follows:

(B) 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 jurisdiction of the Bench under that Rule is exercisable only in relation to an interlocutory appeal, which presupposes that the impugned decision is made by a Trial Chamber in the course of a pending case,

CONSIDERING that, by reason of his death on 1 August 1998, the case against the accused has been terminated by Order of the Trial Chamber dated 24 August 1998,

CONSIDERING FURTHER that the Order sought to be appealed from was made by the Trial Chamber on a motion filed after the death of the accused and is consequently not a decision capable of founding an interlocutory appeal within the meaning of Rule 73,

CONSIDERING ALSO that this Bench is not called upon to say whether or not, in such circumstances, there is a right of appeal without leave with or without any necessary extensions of time,

DECIDES that it has no jurisdiction under Rule 73 of the Rules to hear and determine the Request for Leave to Appeal.


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


Mohamed Shahabuddeen


Dated this twenty-fourth day of September 1998

At The Hague

The Netherlands

[Seal of the Tribunal]