Dubrovnik, Prosecutor v. Strugar, Decision Rejecting the Motion for Certification to Appeal the "Decision and Order Relating to Accused's Pavle Strugar Request for Postponement" and "Order to the Government of Serbia and Montenegro to Ensure Mr. Pavle Strugar's Immediate Return to the Netherlands", IT-01-42 (ICTY TC, Dec. 05, 2003)

Case No. IT-01-42-PT

IN TRIAL CHAMBER I

Before:
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell

Registrar:
Mr. Hans Holthuis

Order of:
5 December 2003

PROSECUTOR

PAVLE STRUGAR

_________________________________________

DECISION REJECTING THE MOTION FOR CERTIFICATION TO APPEAL THE "DECISION AND ORDER RELATING TO ACCUSED’S PAVLE STRUGAR REQUEST FOR POSTPONMENT" AND "ORDER TO THE GOVERNMENT OF SERBIA AND MONTENEGRO TO ENSURE MR. PAVLE STRUGAR’s IMMEDIATE RETURN TO THE NETHERLANDS"

_________________________________________

The Office of the Prosecutor:

Ms. Susan Somers
Mr. Philip Weiner

Counsel for the Accused:

Mr. Goran Rodic
Mr. Vladimir Petrovic

TRIAL CHAMBER I 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");

BEING SEIZED OF the Defence Request for Certification to appeal the "Decision and Order relating to Accused’s Pavle Strugar Request for Postponment" and "Order to the Government of Serbia and Montenegro to Ensure Mr. Pavle Strugar’s Immediate Return to the Netherlands", dated 4 December 2003 ("the Request");

NOTING the "Decision and Order relating to Accused’s Pavle Strugar Request for Postponement" ("the Decision") dated 1 December, whereby the Trial Chamber confirms its order for the return of the Accused to the Tribunal’s custody;

NOTING the "Order to the Government of Serbia and Montenegro to Ensure Mr. Pavle Strugar’s Immediate Return to the Netherlands" ("the Order") dated 3 December 2003, whereby the Trial Chamber orders Pavle Strugar to return to the Seat of the Tribunal by Friday 5 December 2003 and orders the Government of Serbia and Montenegro to appoint an official agent, to instruct the agent to accompany Mr. Pavle Strugar to an airport in the Netherlands and hand him over to the Dutch authorities in that airport;

NOTING that the Accused requests a certification to appeal the Decision and the Order on the basis of Rule 73(B) of the Rules of procedure and evidence ("the Rules");

CONSIDERING that an appeal by the Accused against the Order can be received to the sole extent that the Order is addressed to him; that the Request should therefore be limited to this part which orders the Accused to return to the Seat of the Tribunal; that the Government of Serbia and Montenegro is the only entity which has standing, under Rule 108bis, to request the review the other part of the Order;

CONSIDERING that the Decision and part of the Order addressed to the Accused deal with the suspension of the Decision for Provisional Release and are based on Rule 65 of the Rules;

CONSIDERING that, under Rule 65(D), "any decision rendered under this Rule by a Trial Chamber shall be subject to appeal in cases where leave is granted by a bench of three Judges of the Appeals Chamber, upon good cause being shown" and "applications for leave to appeal shall be filed within seven days of filing the impugned decision";

CONSIDERING that the Trial Chamber is not competent to grant certification for an appeal or to grant leave to appeal and that the Request should have been lodged with the Appeals Chamber;

CONSIDERING that the grounds on which leave to appeal can be granted differ whether the request is based on Rule 65 (D) or Rule 73(B); that a referral of the Request to the Appeals Chamber is therefore not indicated;

CONSIDERING that, pursuant to Rule 127(B), it belongs to the Appeals Chamber alone, to possibly enlarge or reduce any time prescribed under the Rules in case the Defence would file a request leave to appeal ;

CONSIDERING that Rule 65(E) provides that the Prosecutor may apply for a stay of a decision by the Trial Chamber to release an accused, that Rule 108 bis likewise provides that "the Appeals Chamber may at any stage suspend the execution of the impugned decision"; that it follows that, unless otherwise provided in the Rules or by a judicial decision, an appeal, a request for certification or leave for appeal, lodged against a decision, is without suspensive effect; that in matters of pre-trial detention and provisional release, it is particularly the case that enforcement of decisions should not be suspended without compelling justification;

CONSIDERING that the Decision and Order should therefore be immediately executed;

FOR THE FOREGOING REASONS,

PURSUANT to Rules 65 and 54 of the Tribunal’s Rules of Procedure and Evidence;

REJECTS the Request and

ORDERS the Accused to comply with the Decision and the Order.

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

Dated this fifth day of December 2003
At The Hague,
The Netherlands.

_____________
Judge Alphons Orie
Pre-Trial Judge

[Seal of the Tribunal]

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