Prosecutor v. Seselj, Decision on Request for Certification to Appeal (Submission Number 69), IT-03-67 (ICTY TC, Feb. 24, 2005)

Case No. IT-03-67-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
24 February 2005

PROSECUTOR

VOJISLAV SESELJ

__________________________________________

DECISION ON REQUEST FOR CERTIFICATION TO APPEAL
(Submission Number 69)

__________________________________________

The Office of the Prosecutor:

Ms. Hildegard Uertz-Retzlaff
Mr. Ulrich Mussemeyer
Mr. Daniel Saxon

The Accused:

Mr. Vojislav Seselj

Standby counsel:

Mr. Tjarda Eduard van der Spoel

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 ("Tribunal");

BEING SEISED OF the "Submission Number 69" ("Motion"), filed on behalf of the Accused Vojislav Seselj ("Accused") on 5 January 2005, wherein he requests certification to appeal, pursuant to Rule 73 of the Rules of Procedure and Evidence,¹ the Trial Chamber’s decision to reject his requests to the Trial Chamber to seek, through the Security Council or the General Assembly of the United Nations, an advisory opinion of the International Court of Justice on the lawfulness of the establishment of the Tribunal;²

NOTING that the Accused submits that the Impugned Decision, in the terms of Rule 73(B), "involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial", and furthermore that he "should be able to submit an interlocutory appeal to the Appeals Chamber in good time";³

CONSIDERING that Rule 73(B) additionally requires that, in order to grant certification, the Trial Chamber must also be of the opinion that an immediate resolution by the Appeals Chamber of the issue involved "may materially advance the proceedings";⁴

REITERATING that, as stated in the Impugned Decision, the Statute of the Tribunal does not foresee recourse to the International Court of Justice;⁵

CONSIDERING that, as stated in the Impugned Decision, in the Tadic Jurisdiction Decision the Appeals Chamber already ruled in favour of (i) the jurisdiction of the Tribunal to determine its own jurisdiction, and (ii) the lawfulness of the establishment of the Tribunal by the Security Council;⁶

CONSIDERING therefore that, in the opinion of the Trial Chamber, an immediate resolution by the Appeals Chamber will not materially advance the proceedings;

CONSIDERING further that, pursuant to the terms of Rule 73(D), the Impugned Decision does not come within the parameters of Rule 72(B)(i);

FOR THE FOREGOING REASONS

PURSUANT TO Rule 73 of the Rules, HEREBY DENIES the Motion.

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

Dated this twenty-fourth day of February 2005,
At The Hague,
The Netherlands

_____________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1. Rules of Procedure and Evidence, IT/32/Rev.33, 17 December 2004 ("Rules").
2. Decision on the Accused’s Requests for an Advisory Opinion of the International Court of Justice, 16 December 2004 ("Impugned Decision").
3. Motion, page 1.
4. Rule 73(B).
5. Statute of the International Criminal Tribunal for the Former Yugoslavia, adopted 25 May 1993 by S/RES 827 (1993) and last amended by S/RES 1411 (2002).
6. Prosecutor v. Tadic, Case IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 ("Tadic Jurisdiction Decision"), paras 18, 26-48.

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