Case: IT-02-54-AR73

1. During the course of the trial in this case, the prosecution filed a document in relation to the future management of the trial, in which it invited the Trial Chamber to consider "possible creative solutions" to problems which it saw as arising in relation to various "procedural/evidentiary issues". The Prosecution Paper sought no specific relief, and it had been filed by the prosecution in response to an indication by the Trial Chamber that its assistance was sought in relation to the anticipated length of the trial.

2. There was an extensive discussion of the issues raised in the Prosecution Paper. It is sufficient at this stage to refer only to a number of salient points. The prosecution made it clear that, because the unrepresented accused had become "fully engaged" in the trial, the time which its case was expected to take was now longer than originally envisaged. Reference was made to over 1000 witnesses whose "crime-base" evidence was necessary in one form or another to establish all of the incidents pleaded. It was pointed out to the prosecution that it was necessary for it to consider presenting a case which was of a smaller size than that which had been pleaded, by selecting incidents which were representative of those charged in the indictment. Counsel for the prosecution stated that he was in "complete agreement" with such an approach. The Trial Chamber recognised that, in the rather special circumstances of this case, the final issues in dispute would probably not become clear until the trial was well under way, and that they may well not become clear until the beginning of the Defence case.

3. Against that very generally stated background, the Trial Chamber stated that, as part of its management of the trial so that it could be brought to an end within a reasonable time, and in order to concentrate minds and to ensure that the matter was completed fairly to both parties, it was necessary to impose a time limit within which the prosecution was to complete its case. The Trial Chamber recognised the duty of the prosecution to put forward its case, that it must be given a reasonable opportunity to do so, and that it was not for the Trial Chamber to dictate to the prosecution in any arbitrary way how it should do so. The Trial Chamber stated that it would consider ways in which the evidence could properly be put before it expeditiously, and it noted that ways in which the scope of the prosecution case might be brought within a "proper range" would be pursued. It stated that, because the issues in dispute may not be made plain in the circumstances of this trial until the beginning of the Defence case, such a limit had to be imposed at an early stage of the trial. The Trial Chamber acknowledged its duty to ensure that the cross-examination of the prosecution witnesses was kept within reasonable limits without an unreasonable waste of time. The prosecution was directed to conclude its case within twelve months, in addition to the two months which had already been spent, the Trial Chamber expressing its view that no prosecution case should continue for longer than fourteen months. Such a limitation was subject to "the unexpected", and the Trial Chamber stated that it would be reviewed in the light of illness or other unforeseen circumstance.

4. Appeals from interlocutory decisions other than preliminary motions and applications for provisional release are governed by Rule 73 of the Rules of Procedure and Evidence ("Rules"), which at the relevant time provided:

(B) Subject to paragraph (C), decisions rendered during the course of the trial on motions involving evidence and procedure (including, without limiting the generality of this Rule, orders and decisions under Rule 71, Depositions, and denials under Rule 98bis, Motion for Judgement of Acquittal) are without interlocutory appeal. Such decisions may be assigned as grounds for appeal from the final judgement.

(C) The Trial Chamber may certify that an interlocutory appeal during trial from a decision involving evidence or procedure is appropriate for the continuation of the trial, upon a request being made within seven days of the issuing of the decision. If such certification is given, a party may appeal to the Appeals Chamber without leave, within seven days of the filing of the certification.

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

Rule 73(E) at the relevant time provided for the time in which an application for leave to appeal had to be filed.

5. No certificate was sought in accordance with Rule 73(C). The prosecution has instead sought leave to appeal pursuant to Rule 73(D), arguing that a consequence of the limitation imposed by the Trial Chamber upon the length of its case is the infringement of its statutory rights. This situation is thus "clearly distinguishable", the prosecution says, from "the more ‘ordinary’ matters described in Rule 73(B) as examples of matters involving evidence and procedure". As such, the prosecution submits, its appeal rights should be governed by Rule 73(D) rather than Rule 73(B).

6. The decision of the Trial Chamber to impose a time limit upon the length of the prosecution case was not given as the determination of any motion. The prosecution has nevertheless argued that the fact that the order was made proprio motu and not on a motion does not deny it the right to seek leave to appeal pursuant to Rule 73(D). Provided that the character of the decision given is otherwise appropriate to be dealt with under Rule 73(D), this Bench of the Appeals Chamber agrees that that is so. For the same reasons, the fact that the order was made proprio motu and not on a motion does not exclude the application of Rule 73(B) if the decision rendered during the course of the trial is otherwise one "involving evidence and procedure".

7. The order which was made in the present case is incontrovertibly one "rendered during the course of the trial" and one "involving evidence and procedure". The examples given in Rule 73(B) – "orders and decisions under Rule 71, Depositions, and denials under Rule 98bis, Motion for Judgement of Acquittal" – were intended to make it clear that they were included within the concept of "evidence and procedure", and they are expressly described as not limiting the generality of the Rule. The allegation (or even the fact) that an impugned decision made during the course of the trial has the consequence of infringing the statutory rights of a party cannot change its character as one involving evidence and procedure. It would be extraordinary that a party could have avoided the strict provisions of Rule 73(B) by the simple expedient of

merely alleging that an impugned decision had the consequence of affecting its statutory rights or, for example, the fairness of the trial. Such an interpretation would clearly emasculate the purpose of Rule 73(B). What matters is the character of the impugned decision, not the character of its consequences. The possibility of such consequences would have been a matter for the Trial Chamber to consider in determining whether a certificate should be given, but it did not take the order made out of the scope of Rule 73(B).

8. Accordingly, the absence of a certificate from the Trial Chamber is fatal to the prosecution’s attempt to appeal from the time limitation imposed by the Trial Chamber, as the impugned decision was without interlocutory appeal. It is for this reason that the Motion was dismissed.

9. In its Formal Decision dismissing the Motion, this Bench of the Appeals Chamber also stated that, even if Rule 73(D) were applicable, it was not satisfied that the conditions for its application had been made out. To that issue, the Bench now turns.

10. The prosecution’s Motion expressly assumes that, in limiting the time within which the prosecution case was to be concluded, the Trial Chamber was exercising its power under Rule 73bis(E). However, every court possesses the inherent power to control the proceedings during the course of the trial. Rule 73bis(E) merely makes it clear that that power may also be exercised before the trial at the Pre-Trial Conference by the Trial Chamber, or by the Pre-Trial Judge. The current trial has, since its commencement, been the trial of all three indictments issued against the accused, which are now deemed to constitute one indictment, so that Rule 73bis(E) – which concerns the Pre-Trial Conference – could not have been the source of the power during the trial to limit the time for the prosecution case. The order made by the Trial Chamber was made in the exercise of its power to control the proceedings currently being tried before it, which is no different in its relevant aspect from the power identified in Rule 73bis(E).

11. The prosecution has submitted that such a power is not intended "to provide a vehicle for a Trial Chamber unduly to interfere with the presentation of the Prosecution case" which, it says, "falls under the exclusive province of the Prosecution". The exercise of that power on this occasion, the prosecution submits, was "invading the sphere of prosecutorial autonomy". It draws attention to Article 16.2 of the Tribunal’s Statute, which provides:

The prosecution argues that the impugned decision invades the independence of the Prosecutor under that Article, as well as her right to a fair and expeditious trial under Article 20. The prosecution says that its right to present the prosecution case in the manner which it "deems fit (absent a demonstration of abuse)" falls solely within its province as an independent and separate organ on the Tribunal.

12. The claim that the order made by the Trial Chamber has interfered with the independence of the Prosecutor is misconceived. The independence which the Tribunal’s Statute gives to the Prosecutor is an important feature of the Statute, and it is the source of the "largely adversarial" nature of the proceedings before the Tribunal. The Statute leaves it entirely to the Prosecutor to investigate serious violations of international humanitarian law in the territory of the former Yugoslavia, and to determine against whom an indictment is to be brought. No government or other institution or person, including the judges of the Tribunal, can direct the Prosecutor as to whom he or she is to investigate or to charge. That is the true intent, and the extent, of Article 16.2 of the Statute.

13. However, once the indictment has been confirmed by a judge, and once the indictment has been filed, the Prosecutor becomes a party before the Tribunal, and thus subject to the power of a Chamber to manage the proceedings, in the same way as any other party before the Tribunal. It is erroneous to suggest that the Prosecutor has an independence in relation to the way in which her case is to be presented before a Trial Chamber which the accused person does not have. The Tribunal’s Statute itself provides to the contrary. Article 21 is stated in uncompromising terms: "All persons shall be equal before the International Tribunal." That equality is fundamental to the fairness of the trials which are conducted before the Trial Chambers. It has not been infringed in the present case.

14. The prosecution concedes, correctly, that the decision by the Trial Chamber to impose a time limit within which the prosecution was to present its case was a discretionary one. The issue in an appeal from such a decision is not whether the decision was correct, in the sense that the Appeals Chamber agrees with that decision, but rather whether the Trial Chamber has correctly exercised its discretion in reaching that decision. Provided that the Trial Chamber has properly exercised its discretion, its decision will not be disturbed on appeal, even though the Appeals Chamber itself may have exercised the discretion differently. The prosecution identifies, as the "discernible" error made by the Trial Chamber in the exercise of its discretion, its disregard of the need for the issues in the trial to become clear before any time-limit is imposed. This is said to have caused the prosecution "irremediable prejudice", and to raise an issue of general importance to proceedings before the Tribunal, thus establishing a basis upon which leave to appeal should be granted pursuant to Rule 73(D).

15. In the Galic Decision, upon which the prosecution relies, a Bench of the Appeals Chamber said:

That was said in a case in which the accused was represented by counsel, and it was still in the pre-trial stage. In the particular circumstances of this case, the Trial Chamber was entitled to regard that injunction as largely inapplicable. The case as pleaded in the indictment, and as initially pursued by the prosecution at the hearing, required proof of every serious violation of international humanitarian law which had occurred throughout Croatia, Bosnia and Kosovo for which evidence was available. The accused, although engaged in the case in the sense that he is cross-examining the prosecution witnesses, has not co-operated with the prosecution or with the Trial Chamber in any meaningful way in defining the issues in the case.

16. Having in mind the discussion which had occurred, it is clear that what the Trial Chamber was saying to the prosecution was that:

In the circumstances of this case, which were exceptional, the Trial Chamber was entitled to take such a course, and error in the exercise of its discretion has not been established.

17. This Bench of the Appeals Chamber is not satisfied that the prosecution has been prejudiced by the order made in the manner which it has alleged. It must be emphasised that a Trial Chamber may always reconsider a decision it has previously made, and not only because of unforeseen circumstances. Whether or not it exercises that power is a discretionary matter. In the present case, the accused has several times stated that, when given the opportunity to cross-examine the prosecution witnesses, he intends to avail himself of every such opportunity "to speak in the interest of truth" and "to make a comment". Such an intention is not always consistent with the proper limitations upon a cross-examination, and it will obviously be difficult for the Trial Chamber continually to ensure that his cross-examinations are kept within reasonable limits without an unreasonable waste of time. It does not need any particular degree of foresight to see that, even with the Trial Chamber exercising stringent control, the accused’s cross-examinations may, deliberately or otherwise, seriously erode the time available for the prosecution case.

18. Nor is this Bench of the Appeals Chamber satisfied that, in the exceptional circumstances already described, the decision raises any issue of general importance to proceedings before the Tribunal generally which warrants further elaboration by a full Bench of the Appeals Chamber.

19. It was for these reasons that this Bench of the Appeals Chamber stated that, even if Rule 73(D) were applicable in the present case, it was not satisfied that the conditions for its application had been made out.

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

Dated this 16^th day of May 2002,
At The Hague,
The Netherlands.

________________________
Judge Claude Jorda
Presiding