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Tuta and Stela, Prosecutor v. Naletilic et al., Decision on Application for Leave to Appeal by the Accused Mladen Naletilic and Notice of Joinder in That Application by the Accused Vinko Martinovic Against the Decision of Trial Chamber I of 10 November 2000, IT-98-34-A (ICTY AC, Jan. 31, 2001)

BEFORE A BENCH OF THE APPEALS CHAMBER

Before:
Judge Lal Chand Vohrah, Presiding
Judge Mohamed Shahabuddeen
Judge Rafael Nieto-Navia

Registrar:
Mr. Hans Holthuis

Decision of:
31 January 2001

THE PROSECUTOR

v.

MLADEN NALETILIC,
also known as "TUTA"
VINKO MARTINOVIC,
also known as "STELA"

____________________________________________________________

DECISION ON APPLICATION FOR LEAVE TO APPEAL BY THE
ACCUSED MLADEN NALETILIC AND NOTICE OF JOINDER IN THAT APPLICATION BY THE ACCUSED VINKO MARTINOVIC AGAINST THE DECISION
OF TRIAL CHAMBER I OF 10 NOVEMBER 2000

____________________________________________________________

Counsel for the Prosecutor:

Mr. Kenneth Scott

Counsel for the Accused:

Mr. Kresimir Krsnik, for Mladen Naletilic
Mr. Branko Seric, for Vinko Martinovic

 

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 ("the Bench" and "the International Tribunal" respectively),

BEING SEIZED OF the "Defence’s Leave to Appeal Against Trial Chamber I Order Dated of 10 November 2000 (Rule 71)", filed by Counsel for Mladen Naletilic on 17 November 2000, and the "Vinko Martinovic’s Defence’s Notice of Joining the Request of the Defence for the Accused Mladen Naletilic for a Permission to Lodge the Appeal Against the Decision on the Prosecutor’s Motion to Take Depositions for Use at Trial (Rule 71)", filed by Counsel for Vinko Martinovic on 17 November 2000, ("the Application for Leave to Appeal" and "the Notice of Joinder" respectively);

NOTING the "Decision on Prosecutor’s Motion to Take Depositions for Use at Trial (Rule 71)" issued by Trial Chamber I on 10 November 2000 ("the Impugned Decision") wherein the Trial Chamber, inter alia, ordered that, pursuant to Rule 71 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules"), 23 depositions may be taken for use at trial, but that

[t]he question of location for the deposition procedure, whether the sessions be held in open or closed session, and the presence of the accused, be the subject of further discussions between the parties, the Presiding Officer, and representatives of the Registry; and that in the event that agreement cannot be reached, the matter shall be referred back to the Pre-Trial Judge;

NOTING that the Impugned Decision also found that "the subsidiary nature of the witnesses . . . mitigates any disadvantage to the Trial Chamber of being unable to directly observe StheirC demeanour . . . or to ask questions"; and that "deposition evidence may be accorded less weight than evidence given directly in the courtroom";

NOTING the "Prosecutor’s Response to Defence’s Leave to Appeal Against Trial Chamber I Order Dated 10 November 2000 (Rule 71)" filed on 24 November 2000 ("the Response"),

CONSIDERING that the Application for Leave to Appeal is filed pursuant to Rule 73 of the 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;

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

NOTING that the Application for Leave to Appeal submits, inter alia, that (i) the evidence covering general information should not be taken into consideration by the Trial Chamber; (ii) the evidence directly involving the accused should be taken only in his presence; (iii) the hearing of witnesses outside the Trial Chamber’s supervision and without the control of the public would cause harm to the accused who could not provide information to his counsel during the course of these testimonies; and (iv) the application of Rule 71 would not expedite the proceedings or guarantee the truth and effectiveness of the testimonies so given;

NOTING that the Response submits, inter alia, that an appeal against the Impugned Decision at this stage of the proceedings would be premature since important questions, such as the location for the deposition procedure and the presence of the accused, are to be the subject of further discussion between the parties with the possibility of the matter being referred back to the Pre-Trial Judge in the event an agreement could not be reached;

CONSIDERING that it is for an applicant for leave to appeal to show the Bench either that the decision against which he wishes to appeal would cause such prejudice to its case as could not be cured by the final disposal of the trial including post-judgement appeal, or that the issue in the proposed appeal is of general importance to proceedings before the International Tribunal or in international law generally;

FINDING that there has been no showing in the Application for Leave to Appeal or in that application as adopted in the Notice of Joinder that either there is such prejudice or that the issue in the proposed appeal is of general importance to proceedings before the International Tribunal or in international law generally;

HEREBY DISMISSES the Application for Leave to Appeal and the Notice of Joinder.

 

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

________________________________
Lal Chand Vohrah
Presiding Judge

Dated this thirty-first day of January 2001
At The Hague,
The Netherlands.

[Seal of the Tribunal]

   

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