Case No. IT-01-48-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Registrar:
Mr. Hans Holthuis

Decision of:
30 March 2005

PROSECUTOR

v.

SEFER HALILOVIC

_________________________________________

DECISION ON MOTION FOR CERTIFICATION

_________________________________________

The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, ("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 Defence "Motion for Certification", filed on 21 February 2005 ("Motion"), pursuant to Rule 73 (B) of the Rules of Procedure and Evidence ("Rules"), seeking certification from the Trial Chamber for interlocutory appeal of its "Decision on Prosecution’s Application for Leave to Vary its Exhibit List Filed Pursuant to Rule 65 ter (E) (iii)" ("Prosecution Request"), issued on 14 February 2005 ("Decision"), whereby the Trial Chamber granted the Prosecution Request;

NOTING that Rule 73 (B) of the Rules requires two criteria to be satisfied before the 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 may, in the opinion of the Trial Chamber, materially advance the proceedings;

NOTING the Defence’s arguments in support of its Motion, that:

1. the Decision affects the fair conduct of the proceedings insofar as it granted the Prosecution Request "despite [the Prosecution’s] failure to comply with the Rules and [its failure] to establish good cause in this matter";¹

2. the Decision affects the expeditious conduct of the proceedings since (1) the Prosecution’s use of the new exhibits at trial; (2) the intent of the Defence to challenge the authenticity and/or the admissibility of a number of the new exhibits; and (3) the additional time that the Defence may request in order to be adequately prepared, are factors that are "likely to prolong trial";²

3. the Decision affects the outcome of the trial insofar as "it permitted the Prosecution to present a new case against Mr Halilovic”, "one that is distinct in focus – if not in nature – from the one laid down in the indictment, in the original pre-trial brief and distinct from the one put before the Pre-Trial Judge by the Prosecution in September 2001";³

4. an immediate resolution by the Appeals Chamber may materially advance the proceedings insofar as the outcome of the Appeals Chamber’s decision "would shorten and facilitate trial proceedings a great deal if this issue were be clarified at this stage rather than to engender lengthy litigation during trial in relation to exhibits which, should the Defence appeal succeed, prove to be unnecessary";⁴

NOTING that the Motion also indicates some of the Defence’s potential grounds of appeal "to assist [the Trial Chamber] in determining [the] Motion";⁵

NOTING the "Prosecution Response to Defence Motion for Certification", filed on 25 February 2005 ("Response"), in which the Prosecution argues that the Motion failed to satisfy any of the requirements set out in Rule 73(B) of the Rules, and urges the Trial Chamber to deny it;

CONSIDERING that by its Decision, the Trial Chamber, inter alia, granted the Prosecution Request to add new exhibits and ordered the Prosecution "to provide the Defence with an English translation of the new exhibits as soon as these translations are available to the Prosecution", and "to introduce the new exhibits at a later stage in the proceedings in order to provide the Defence with adequate time to examine them"; and informed the Defence that "if necessary it can seek leave for additional time to examine the new exhibits";

NOTING that the Prosecution in its Response stated that the translations of the new exhibits were completed on 15 February 2005 and that the Defence received all translations of the new exhibits "barring the three books and the Uzdol death certificates";⁶

CONSIDERING that pursuant to Articles 20 (1) and 21 (4) (b) of the Statute the accused is entitled to a fair and expeditious trial and, more specifically, to have adequate time and facilities for the preparation of his defence; and that the Defence argues that a variation of the Prosecution exhibit list at that stage of the proceedings is an issue that would affect the fair and expeditious conduct of the proceedings or the outcome of the trial;⁷

CONSIDERING that the Trial Chamber, by its Decision, allowed the Defence, whenever it deems it necessary, to request additional time to examine the new exhibits that the Prosecution intends to use during trial;

CONSIDERING that allowing the Prosecution to introduce new exhibits is distinct from admitting these exhibits into evidence, and that, in any case, the Defence may, during the proceedings, challenge the authenticity and admissibility of any of the Prosecution’s new exhibits, especially when it believes that these exhibits relate to issues going beyond the scope of the Indictment;

CONSIDERING FURTHER, as highlighted in the "Guidelines on the Standards Governing the Admission of Evidence", adopted by the Trial Chamber on 16 February 2005, the clear distinction that exists between the admissibility of documentary evidence and the weight that individual pieces of evidence is given under the principle of free evaluation of evidence;

CONSIDERING that the Trial Chamber granted the Prosecution Request to add new exhibits based on the variation of the Prosecution Witness list that resulted in a reduction of the Prosecution live witnesses;

CONSIDERING that pursuant to Rule 85 of the Rules, the Prosecution is entitled to present evidence in support of its case as it deems it most appropriate, and that the Trial Chamber has no reasons to believe that the use of the new exhibits will "significantly affect the […] expeditious conduct of the proceedings";⁸

CONSIDERING that, in the opinion of the Trial Chamber, the issue is not one that "would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial";

CONSIDERING that the Defence failed to demonstrate the first criterion for certification and that therefore the Trial Chamber does not see the need to consider whether the second criterion has been met;

FOR THE FOREGOING REASONS,

PURSUANT to Rule 73 (B) of the Rules,

HEREBY DENIES the Motion.

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

_________________________
Judge Liu Daqun
Presiding Judge

Dated this thirtieth day of March 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]

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