Case No.: IT-01-48-PT

IN THE TRIAL CHAMBER

Before:
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy

Registrar:
Mr. Hans Holthuis

Order of:
12 January 2005

PROSECUTOR

v.

SEFER HALILOVIC

____________________________________

DECISION ON PROSECUTION REQUEST FOR CERTIFICATION FOR INTERLOCUTORY APPEAL OF ‘DECISION ON PROSECUTOR’S MOTION SEEKING LEAVE TO AMEND THE INDICTMENT’

____________________________________

Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

 

THIS 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 ("International Tribunal"),

BEING SEISED of the "Prosecution Request for Certification for Interlocutory Appeal of ‘Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment’", filed by the Office of the Prosecutor on 22 December 2004 ("Application") pursuant to Rule 73(B) of the Rules of Evidence and Procedure of the International Tribunal ("Rules"), seeking certification from the Trial Chamber for interlocutory appeal of its decision denying leave to amend the indictment ("Decision"),1

CONSIDERING that Rule 73(B) requires two criteria be satisfied before a Trial Chamber may certify a decision for interlocutory appeal: (1) that the issue would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and (2) an immediate resolution of the issue by the Appeals Chamber may, in the opinion of the Trial Chamber, materially advance the proceedings,

CONSIDERING that even when an important point of law is raised, such as in this case, the effect of Rule 73(B) is to preclude certification unless the party seeking certification establishes that both conditions are satisfied,

NOTING that the Prosecution’s arguments in favour of certification are the following: (1) the principal legal issue resolved by the Decision "would significantly affect the fair and expeditio[us] conduct of the proceedings", and (2) since the consequences of the Decision "go[] to the core of the proceedings…[i]mmediate resolution of the issue by the Appeals Chamber would therefore have to materially advance the proceedings",

NOTING the "Response to Prosecution Motion for Certification" filed by the Defence on 28 December 2004, in which it argued that the Prosecution had failed to establish that any of the requirements of Rule 73(B) had been met, and urged the Chamber to deny the Application,

CONSIDERING that the Application concentrates on the Prosecution’s potential grounds of appeal, and does not adequately explain how the criteria of Rule 73(B) have been met in this case; in particular, in the single paragraph discussing the first criterion, there is no explanation of how the issue involved in the Decision would "significantly affect the fair and expeditious conduct of the proceedings", or indeed, affect it at all,2 while in the single paragraph discussing the second criterion, no support is given for the Prosecution’s assertion that immediate resolution of the issue would "have to materially advance the proceedings",3

PURSUANT TO Rule 73(B) of the Rules,

HEREBY DENIES THE APPLICATION.

SEPARATE CONCURRING OPINIONS WILL FOLLOW.

 

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

___________________________
Patrick Robinson
Presiding

Dated this twelfth day of January 2005
At The Hague
The Netherlands

[Seal of the Tribunal]

1. Prosecutor v. Halilovic, Case No. IT-01-48-PT, "Decision on Prosecutor’s Motion Seeking Leave to Amend the Indictment", 17 December 2004.
2. See Application at para. 17.
3. Id., para. 18 (emphasis added).    

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