"Decision on the Request of the Republic of Croatia for Review of a Binding Order"

9 September 1999
Judges McDonald [Presiding], Shahabuddeen, Vohrah, Wang and Nieto-Navia

The issue

Further to an ex parte request by the Prosecution, on 4 February 1999, Trial Chamber III issued a Binding Order to the Republic of Croatia. The Order required Croatia to produce a number of documents which the Trial Chamber deemed to be consistent with the criteria established by the Appeals Chamber in its "Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997" (hereinafter "the Judgement"), of 29 October 1997. Croatia argued that the Binding Order should be quashed on the grounds that: 1) it had not been given notice and an opportunity to be heard before the Binding Order was issued 2) the order was inconsistent with the criteria established by the Appeals Chamber in an earlier case.

The decision

The Appeals Chamber declared that the Requesting State had no right to be notified or to be heard before the Binding Order was issued to it and found the Binding Order to be consistent with the criteria enunciated by the Appeal Chamber in the above-mentioned Judgement.

The reasoning

With regard to the admissibility of Croatia's request, the Appeals Chamber found that Croatia was clearly directly affected by the Order, and that it concerned issues of general importance relating to the powers of the Tribunal within the meaning of Rule 108 bis of the Rules of Procedure and Evidence; the Appeals Chamber thus declared Croatia's Request for Review admissible.

Croatia's Request relies on two arguments. First, it argued that a State has the right to be notified and heard prior to the issuance of a binding order pursuant to Article 29(2) of the Statute. Second, Croatia argued that the Binding Order was inconsistent with the criteria established in the Judgement.

First Ground for Review

Croatia argued that as a matter of due process States have the right to notice and to a hearing in Article 29(2) proceedings. On the basis of the significant consequences for the State involved, it argued that these rights accrue to that State prior to the issuance of a binding order. Croatia also argued that due process further requires that the right to notice and to a hearing should extend to the issue of compliance of the requested order with the criteria established in the Judgement. The Prosecution submitted that there was no legal basis for the rights claimed.

The Appeals Chamber held that, in the absence of enforcement powers and in order to fulfil its mandate, the Tribunal is dependent on the co-operation by States. It recalled the Tribunal’s binding powers enshrined in Article 29 of the Statute which are expounded in the Judgement.

Although the primary beneficiaries of due process guarantees are the parties before the Tribunal, i.e. the Prosecution and the accused, the Appeals Chamber agreed that a requested State is entitled to be heard at a meaningful time and in a meaningful manner. It consequently held that equity is achieved through the procedure laid down in Rule 108 bis.

The Appeals Chamber held that the ex parte nature of a request for a binding order excludes the right to a prior hearing. The Chamber also deemed is neither unfair nor illogical to provide the State with an opportunity, after the issuance of a binding order, to prove that the order was issued erroneously because it failed to meet the four criteria in the Judgement. The Appeals Chamber also rejected Croatia’s claim that resort might be had to binding orders issued on an ex parte basis only in cases of urgency or administrative necessity. It further stressed that the issuance of an order does not entail any finding that the State has failed to comply with its international legal obligations.

The Appeals Chamber also rejected the argument that the general grounds on which a request for a binding order is based should be disclosed to the State. Finally, it ruled on the application of the Judgement’s fourth criterion according to which reasonable and workable deadlines could be set after consultation with the requested State. Accordingly, the proper inference is that the State may apply for a variation of the time-limit after the issuance of the order.

Second Ground for Review

Croatia submitted that the Binding Order did not satisfy the four criteria in the Judgement. It submitted that the Trial Chamber is bound by the Judgement either through the rule of stare decisis or otherwise. However, having noted that the Trial Chamber considered the Judgement’s criteria "mandatory and cumulative", the Appeals Chamber did not pronounce on the binding nature of an Appeals Chamber’s ruling vis-à-vis a Trial Chamber.

The first criterion of the Judgement requires that a binding order concern specific documents and not broad categories. Croatia had submitted that, accordingly, individual documents should be separable from all other materials pertaining to the same individual or subject-matter and that the precise number of documents sought should be clear from the face of the order. The Appeals Chamber disagreed and held that, in the case in point, the criterion of specificity had been met.

The second criterion of the Judgement concerns the relevance of the documents sought. The Appeals Chamber rejected Croatia’s submission that, in the absence of specificity, the Trial Chamber was unable to determine accurately the relevance of the documents sought.

The third criterion which requires that the documents sought not be unduly onerous does not automatically preclude an order for the production of hundreds of documents as Croatia had submitted. The Appeals Chamber held that, given the Tribunal’s difficult task and the nature of the complex charges, it is inevitable that the obligation of States to co-operate with the Tribunal will sometimes be onerous. Having reviewed the documents requested in the Binding Order, the Appeals Chamber found that the Order complied with the criterion.

Finally, the fourth criterion in the Judgement requires that a State be given sufficient time to comply with the order. The Appeals Chamber recalled the Judgement according to which, after consulting the requested State, "[r]easonable and workable deadlines could be set" at the discretion of the Trial Chamber. The Appeals Chamber held that an ordered State’s not being heard before the deadline for compliance was set does not render the order inconsistent with the criterion. It further pointed out that the procedure envisaged in Rule 108 bis does not preclude a State from applying for an extension of time for compliance.

In its Disposition, the Appeals Chamber affirmed the Binding Order and reinstated the execution of that Order.