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Lasva Valley, Prosecutor v. Kordic et al, Decision on Application for Leave to Appeal and on Request for Leave to File a Supplementary Response, IT-95-14/2-A (ICTY AC, Apr. 28, 2000)

BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding
Judge Lal Chand Vohrah
Judge Rafael Nieto-Navia

 Registrar:
Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:
28 April 2000

PROSECUTOR

v.

DARIO KORDIC
MARIO CERKEZ

___________________________________________________________

DECISION ON APPLICATION FOR LEAVE TO APPEAL AND
ON REQUEST FOR LEAVE TO FILE A SUPPLEMENTARY RESPONSE

___________________________________________________________

Counsel for the Prosecutor:

Mr. Geoffrey Nice
Mr. Kenneth Scott
Mrs. Susan Somers
Mr. Patrick Lopez-Terres

Counsel for Dario Kordic:

Mr. Mitko Naumovski
Mr. Turner T. Smith, Jr.
Mr. Robert A. Stein
Mr. Stephen M. Sayers

Counsel for Mario Cerkez:

Mr. Bozidar Kovacic
Mr. Goran Mikulicic

 

THIS BENCH of the Appeals 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 ("Bench" and "International Tribunal" respectively),

BEING SEIZED OF the "Accused Dario Kordic’s Application for Leave to Pursue an Interlocutory Appeal of Trial Chamber III’s March 10, 2000 Ruling to Admit into Evidence seven Affidavits and one Formal Statement in Contravention of the Provisions of Rule 94ter", filed on 17 March 2000, and "Accused Mario Cerkez’s Notice of Joinder in Accused Dario Kordic’s Application for Leave to Pursue an Interlocutory Appeal of Trial Chamber’s SsicC III March 10, 2000 ruling to Admit into Evidence seven "Affidavit Sataments SsicC" and one "Formal Statement" in Contradiction of the Provisions of to SsicC Rule 94ter", filed on 17 March 2000 (together the "Application");

NOTING the oral decision of Trial Chamber III rendered on 10 March 2000 ("Impugned Decision"), granting a request by the Office of the Prosecutor ("Prosecution") to admit into evidence seven Affidavits and one Formal Statement;

NOTING the "Prosecutor’s Response to Accused Dario Kordic’s Application for Leave Pursuant SsicC an Interlocutory Appeal of Trial Chamber III’s March 10, 2000 Ruling to Admit into Evidence seven Affidavits and one Formal Statement under Rule 94ter", filed on 27 March 2000 ("Response");

NOTING the "Reply to the Prosecutor’s Response to the Accused Dario Kordic’s Application for Leave to Pursue an Interlocutory Appeal of Trial Chamber III’s March 10, 2000 Ruling to Admit into Evidence seven Affidavits and one Formal Statement in Contravention of the Provisions of Rule 94ter", filed on 31 March 2000 ("Reply");

NOTING the "Prosecutor’s Request for Leave to File a Supplementary Response to New Facts Raised by the Accused’s SsicC Dario Kordic in his Reply", filed on 6 April 2000 ("Request");

NOTING that the Application is filed pursuant to Rule 73 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") which provides, inter alia, that applications "for leave to appeal shall be filed within seven days of the filing of the impugned decision" and allows for interlocutory appeals in the following two instances:

  1. 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
  2. if the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally;

CONSIDERING that the Application was filed within time;

CONSIDERING that the Appeals Chamber would be precluded from examining the Request, except within the framework of an appeal against a prior decision on the matter by the Trial Chamber;

FINDING that the Application has failed to establish that any alleged prejudice arising from the Impugned Decision could not be cured by the final disposal of the trial including post-judgement appeal;

FINDING, however, that the Trial Chamber’s authority in relation to the admission of affidavit evidence in this case constitutes an issue of general importance to proceedings before the International Tribunal or in international law generally;

HEREBY,

1. DECLARES the Request inadmissible;

2. GRANTS Leave to Pursue an Interlocutory Appeal;

3. INFORMS the parties of their obligations to submit written briefs in accordance with the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal (IT/155).

 

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

________________________________
Fausto Pocar,
Presiding Judge

Dated this twenty-eighth day of April 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]

   

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