Krajina, Prosecutor v. Brdanin, Decision on Request to Trial Chamber Under Rule 73 to Certify Permission to Appeal Decision on Motion for Acquittal Under Rule 98 bis Dated 19 March 2004, IT-99-36 (ICTY TC, Apr. 20, 2004)

Case No. IT-99-36-R77

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya

Registrar:
Mr. Hans Holthuis

Decision:
20 April 2004

PROSECUTOR

RADOSLAV BRDJANIN

CONCERNING ALLEGATIONS AGAINST MILKA MAGLOV

______________________________________

DECISION ON REQUEST TO TRIAL CHAMBER UNDER RULE 73 TO CERTIFY PERMISSION TO APPEAL DECISION ON MOTION FOR ACQUITTAL UNDER RULE 98 BIS DATED 19 MARCH 2004

______________________________________

Amicus Curiae Prosecutor:

Ms. Brenda J. Hollis

Respondent:

Ms. Milka Maglov

Defence:

Mr. Jonathan Cooper

TRIAL CHAMBER II ("Trial 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 Tribunal");

BEING SEISED OF the "Request to Trial Chamber Under Rule 73 to Certify Permission to Appeal Decision on Motion for Acquittal Under Rule 98 Bis Dated 19 March 2004" ("Request"), filed by Milka Maglov ("Respondent") on 6 April 2004, in which the Respondent requests the Trial Chamber to certify permission to appeal the "Decision on Motion for Acquittal Pursuant to Rule 98 Bis" handed down on 19 March 2004 ("Rule 98 bis Decision"), on the basis that the issues raised in the Request will significantly affect the fair and expeditious conduct of the current proceedings and/or the outcome of the current trial, and an immediate resolution by the Appeals Chamber will materially advance the proceedings;

ALSO BEING SEISED OF the "Motion by Amicus Curiae Prosecutor for Leave to File a Response to Request to Trial Chamber Under Rule 73 to Certify Permission to Appeal Decision on Motion for Acquittal Under Rule 98 Bis Dated 19 March 2004" ("Motion for Leave"), filed on 12 April 2004, in which leave to file a response to the Respondent’s Request is sought;

CONSIDERING that it is appropriate under the circumstances for the Amicus Curiae Prosecutor to be allowed leave to put her views on the Request before the Trial Chamber;

NOTING the "Amicus Curiae Prosecutor’s Response to Request to Trial Chamber Under Rule 73 to Certify Permission to Appeal Decision on Motion for Acquittal Under Rule 98 Bis Dated 19 March 2004" ("Response"), filed on 12 April 2004, in which the Amicus Curiae Prosecutor argues that the Request should be denied because: (a) it is untimely, and (b) it fails to meet the certification requirements set forth by Rule 73 of the Rules of Procedure and Evidence ("Rules"), since the Respondent fails to show that the alleged errors would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and that an immediate resolution by the Appeals Chamber may materially advance the proceedings;

NOTING that in its Rule 98 bis Decision, the Trial Chamber:

granted the Rule 98 bis Motion¹ only with respect to Count 3 of the Allegations² regarding the alleged disclosure of the whereabouts of the Witness to a member of the public in violation of an order of a Chamber, and declared that with regard to this specific part of the Charge, that there is no case to answer on the part of the Respondent; and
dismissed the Rule 98 bis Motion with respect to all other issues raised by the Respondent, rejecting her motion for acquittal for Counts 1 and 2, and for the remaining part of Count 3;

NOTING that on 30 March 2004, the Respondent was served with the Rule 98 bis Decision in a language that she understands and that the deadline proscribed by Rule 73 (C) runs from that day;

FINDING therefore that the Request, filed on 6 April 2004, was filed in time;

NOTING that pursuant to Rule 73 (B), "SdCecisions on all motions are without interlocutory appeal save with certification by the Trial Chamber, which may grant such certification if the decision involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings";

NOTING that the requirements for a Trial Chamber to grant certification to file an interlocutory appeal pursuant to Rule 73 (B) are cumulative;

NOTING that in accordance with Rule 77 (E) of the Rules, Parts Four to Eight of the Rules shall apply mutatis mutandis to contempt proceedings;

CONSIDERING that the proceedings concerning allegations of contempt of the Tribunal pursuant to Rule 77 are such that they require to be dealt with expeditiously and without undue formalities, especially since the integrity of the Tribunal’s administration of justice is at stake;

CONSIDERING that an immediate resolution by the Appeals Chamber of the issue would not materially advance the proceedings;

CONSIDERING that, pursuant to Rule 77 (J), any issue raised in the Request may be appealed at a later stage by either party following the final decision of the Trial Chamber in the instant proceedings;

FOR THE FOREGOING REASONS

PURSUANT to Rules 54, 73, and 77 of the Rules

GRANTS the Motion for Leave and DISMISSES the Request;

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

Dated this 20^th day of April 2004,
At The Hague
The Netherlands

_____________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1. Prosecutor v. Radoslav Brdjanin, Concerning Allegations Against Milka Maglov, IT-36-99-R77, Confidential Motion for Judgement of Acquittal – Rule 98 Bis, 24 February 2004 ("Rule 98 bis Motion").
2. Prosecutor v. Radoslav Brdjanin, IT-99-36-R77, Decision on Motion by Amicus Curiae Prosecutor to Amend Allegations of Contempt of the Tribunal, 6 February 2004.

Home | Terms & Conditions | About