IN THE APPEALS CHAMBER

Before: Judge Gabrielle Kirk McDonald, Presiding

Judge Antonio Cassese

Judge Lal Chand Vohrah

Judge Wang Tieya

Judge Rafael Nieto-Navia

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 26 February 1998

 

 

PROSECUTOR

v.

TIHOMIR BLASKIC

 

 ____________________________________

DECISION ON THE NOTICE OF STATE REQUEST FOR REVIEW OF ORDER ON THE MOTION OF THE PROSECUTOR FOR THE ISSUANCE OF A BINDING ORDER ON THE REPUBLIC OF CROATIA FOR THE PRODUCTION OF DOCUMENTS AND REQUEST FOR STAY OF TRIAL CHAMBER’S ORDER OF 30 JANUARY 1998

____________________________________

 To: The Office of the Prosecutor

Ms. Louise Arbour, Prosecutor
Mr. Mark Harmon

To: The Republic of Croatia

Ambassador Ivan Simonovic
Mr. Ivo Josipovic
Mr. David B. Rivkin Jr.
Mr. Lee A. Casey

To: Defence Counsel for Tihomir Blaskic

Mr. Russell Hayman
Mr. Anton Nobilo

I. INTRODUCTION

1. This present Decision concerns a confidential ex parte binding Order on the Republic of Croatia for the production of documents ("binding Order") issued by Trial Chamber I of the International Criminal Tribunal for the former Yugoslavia ("International Tribunal") on 30 January 19981. The binding Order required the Republic of Croatia to disclose specified documents to the Office of the Prosecutor by 27 February 1998.

2. On 13 February 1998 and pursuant to Rule 108 bis of the Rules of Procedure and Evidence of the International Tribunal, the Republic of Croatia requested a review of the binding Order ("Request for Review")2 by the Appeals Chamber on the following grounds:

"(a) The 30 January 1998 Order is fundamentally inconsistent with the Appeals Chamber’s Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 . . .

(b) The Trial Chamber’s Order of 30 January 1998 was issued on an ex parte basis without justification or authority in the International Tribunal’s Rules of Procedure and Evidence

. . .

(c) The Trial Chamber’s Order of 30 January 1998 . . . raises the question of the binding and precedential effect of decisions of the Appeals Chamber on the Office of the Prosecutor and the Trial Chambers . . . ."

3. The Republic of Croatia requested a stay of the binding Order pending resolution of its Request for Review. It also indicated that it "would be pleased to present . . . argument[sC to the Trial Chamber" if the Appeals Chamber determines this to be appropriate3.

4. The Prosecutor filed its response to the Republic of Croatia’s Request for Review on 18 February 1998. It submitted that the Request for Review4 was without merit insofar as:

"(i) The Appellant has failed to establish that any of the grounds which it has raised constitute ‘issues of general importance relating to the powers of the Tribunal’ within the ambit of Rule 108bis, paragraph (A). Consequently, the Appellant does not enjoy a right of interlocutory appeal with respect to the Order.

(ii) The Appellant has provided no justification whatsoever for the exceptional request to stay the Order pending resolution of the appeal."

5. The Republic of Croatia filed a further reply on 19 February 19985. The Defence has not made any submissions in respect of this Request for Review.

 

II. APPLICABILITY OF RULE 108 bis

6. Rule 108 bis provides a mechanism by which a State affected by an interlocutory decision of a Trial Chamber may request review of that decision by the Appeals Chamber. This Rule provides as follows:

Rule 108 bis

State Request for Review

(A) A State directly affected by an interlocutory decision of a Trial Chamber may, within fifteen days from the date of the decision, seek a review of the decision by the Appeals Chamber if that decision concerns issues of general importance relating to the powers of the Tribunal.

(B) The Prosecutor and the defence shall be entitled to be heard by the Appeals Chamber.

(C) The Appeals Chamber, if it considers the request for review admissible may, if it deems it appropriate, suspend the execution of the impugned decision.

(D) Rule 116 bis (B) shall apply mutatis mutandis.

 

7. It is clear from the wording of Rule 108 bis(A) that two conditions must be met before a State is entitled to relief. First, the State must show that it is directly affected by an interlocutory decision of the Trial Chamber. Secondly, the State must show that the interlocutory decision of the Trial Chamber concerns issues of general importance relating to the powers of the International Tribunal.

8. The Republic of Croatia is plainly affected by the binding Order issued by Trial Chamber I by virtue of its obligation under that Order to find, collect and produce the documents by the specified date.

9. We have borne in mind the fact that the Republic of Croatia is a State third party to the proceedings against the accused. Rule 108 bis requires the affected State seeking review of an interlocutory decision of a Trial Chamber to do so within 15 days of the decision. The Republic of Croatia has not filed a motion with Trial Chamber I to vacate the binding Order because it asserts that the Rules of Procedure and Evidence do not clearly provide for such a process by a State non-party. The Republic of Croatia further asserted that insufficient time was available for it to present arguments to the Trial Chamber on the right to be heard regarding the binding Order.

10. Having given due consideration to the submissions of the Republic of Croatia and the Prosecution, we find that the binding Order concerns the issue of whether a State third party is entitled to challenge an order for production of documents which it contends fails to comply with a decision of the Appeals Chamber. We conclude that this issue is of general importance to the International Tribunal because it raises questions regarding the scope and extent of the rights to due process that a State third party has in such proceedings.

11. We hold, accordingly, that the Republic of Croatia’s request for review is admissible.

12. We suspend the execution of the binding Order and refer the matter to Trial Chamber I to hear arguments from the Republic of Croatia and the Parties in respect of the binding Order. When receiving these arguments, the Trial Chamber is to take into consideration the Appeals Chamber’s decision of 29 October 19976.

 

III. DISPOSITION

13. For the foregoing reasons, the APPEALS CHAMBER, pursuant to Rule 108 bis

(1) unanimously REFERS the matter to Trial Chamber I before which the Republic of Croatia and the Parties may be heard regarding the binding Order on the Republic of Croatia for the production of documents;

(2) unanimously SUSPENDS the execution of the binding Order until the Republic of Croatia and the Parties are heard by Trial Chamber I and the Trial Chamber decides on this matter.

14. The Appeals Chamber remains otherwise seised of this matter.

 

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

-------------------------------

Gabrielle Kirk McDonald

President

Dated this twenty-sixth day of February 1998

At The Hague,

The Netherlands.

[Seal of the Tribunal]


1. Order on the Motion of the Prosecutor for the Issuance of a Binding Order on the Republic of Croatia for the Production of Documents, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, T.Ch. I, 30 Jan. 1998.

2. Notice of State Request for Review of Order on the Motion of the Prosecutor for the Issuance of a Binding Order on the Republic of Croatia for the Production of Documents and Request for Stay of Trial Chamber’s Order of 30 January 1998, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-AR108bis, App. Ch., 13 Feb. 1998.

3. Ibid, page 9.

4. Prosecutor’s Response to Notice for the Issuance of a Binding Order on the Republic of Croatia for the Production of Documents and Request for Stay of Trial Chamber’s Order of 30 January 1998, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-AR108bis, App. Ch., 18 Feb. 1998.

5. Reply of the Republic of Croatia to Prosecutor’s Response to Notice of State Request for Review and for Stay of Trial Chamber’s Order of 30 January 1998, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-AR108bis, App. Ch., 19 Feb. 1998.

6. Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-AR108bis, App. Ch., 29 Oct. 1997.