Case No.: IT-01-42-PT

IN THE TRIAL CHAMBER

Before:
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquin Martin Canivell

Registrar:
Mr. Hans Holthuis

Decision of:
12 December 2003

PROSECUTOR

v.

PAVLE STRUGAR

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DECISION ON THE DEFENCE’S REQUEST FOR CERTIFICATION TO APPEAL THE TRIAL CHAMBER’S DECISION DATED 26 NOVEMBER 2003 ON THE PROSECUTOR’S MOTION FOR SEPARATE TRIAL AND ORDER TO SCHEDULE A PRE-TRIAL CONFERENCE AND THE START OF THE TRIAL AGAINST PAVLE STRUGAR

______________________________________________________________________

Office of the Prosecutor

Ms Susan Somers

Counsel for the Accused

Mr Goran Rodic
Mr Vladimir Petrovic

1. On 26 November 2003 this Trial Chamber ("the 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 Tribunal") issued its "Decision on the Prosecutor’s Motion for Separate Trial and Order to Schedule a Pre-trial Conference and the Start of the Trial Against Pavle Strugar" ("the November Decision"),¹ granting the Prosecution’s motion to separate the cases of Pavle Strugar and Vladimir Kovacevic, which up until then were due to be tried together.
2. In the same decision the Chamber scheduled a pre-trial conference in the case of Pavle Strugar for 8 December 2003, set the trial’s commencement for 9 December 2003, terminated Pavle Strugar’s provisional release, and requested the Government of Serbia and Montenegro to return him to the Netherlands.
3. On 4 December 2003 the Defence for Pavle Strugar filed a request ("the Request") for certification to appeal that part of the November Decision concerning the separation of the two cases.² The Defence cited Rule 73(B) of the Tribunal’s Rules of Procedure and Evidence ("the Rules") as the basis for its Request. The Prosecutor, on 9 December 2003, asked the Chamber to deny the Request, citing non-fulfilment of Rule 73(B)’s preconditions for certification.
4. Rule 73 of the Rules comes into force once a case is assigned to a Trial Chamber. Paragraph B of the Rule states that a Trial Chamber may certify a request to appeal its decision if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. (The same test is found in Rule 72(B)(ii). Had the Request been brought pursuant to that rule, the outcome would have been the same.)
5. The Defence submitted that in the instant case the preconditions for certification are met. However, the Defence did not advance any persuasive arguments.
6. The Chamber understands Rule 73(B) to mean that the moving party must show how, in its view, the decision in question raises or leaves unresolved an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial. In other words, in its quest to appeal the decision, some error must be alleged by the moving party, and this error must have the capacity to significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.
7. The Defence failed to identify an error. The Request reiterates the main arguments used by the Defence to oppose the Prosecutor’s original motion. To take an example (para. 7 of the Request): "the accused requests joint trial, he has interest to be tried with Kovacevic" (sic). The November Decision dealt with this issue. The Chamber was of the view that the separation of the two cases would mean an expeditious trial for Pavle Strugar. The Chamber was not convinced that the determination of the case against Vladimir Kovacevic, as part of a joined trial, would necessarily benefit Pavle Strugar, and therefore did not agree that the separation of the two cases would necessarily, or even possibly, be to the latter’s disadvantage. Pavle Strugar’s entitlement to call evidence in his defence is not diminished by the separation of Vladimir Kovacevic. Nor are any other of his rights diminished. Having considered the interests of all concerned, the November Decision explained that separation was in the interests of justice.
8. The Defence submitted that Rules 72(A)(iii) and 82(B) of the Rules "are Rules to protect the accused. … Defence understanding of the Rule 82(B) is that the Trial Chamber has discretionary power to separate trial, besides [in] the interests of justice, in the interest of an accused, not to the contrary" (para. 7). While it is true that the aforementioned rules give an accused, or a Trial Chamber, the possibility to modify previous determinations on joinder in the interests of an accused and to protect the interests of justice, it does not follow that the Accused thereby has a right to oppose the separation of his case from another without showing that this would be prejudicial to his defence. This the Defence for Pavle Strugar has failed to demonstrate. Moreover, the November Decision found that Pavle Strugar’s right to an expeditious trial would be promoted by the separation of cases. The Defence has not cast doubt on this either.

FOR THE FOREGOING REASONS,

THE CHAMBER:

DISMISSES the Request.

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

____________
Alphons Orie
Presiding

Dated this 12th day of December 2003
At The Hague
The Netherlands

[Seal of the Tribunal]