Prosecution Time Limit Stands: Appeals Chamber rules Trial Chamber had authority to set an end date for the prosecution's case
Prosecution Time Limit Stands: Appeals Chamber rules Trial Chamber had authority to set an end date for the prosecution's case
A three-judge panel of the Appeals Chamber recently issued reasons for denying the Prosecutor's (OTP) request to appeal the Trial Chamber's time limitation on its case. The Trial Chamber gave the OTP until April 10, 2003 (one year and 2 months) to complete presentation of evidence against Slobodan Milosevic for war crimes, crimes against humanity and genocide in Croatia, Bosnia-Herzegovina and Kosovo. The OTP claimed the Trial Chamber abused its discretion by interfering with the independence of the OTP in planning and presenting its case.
The Appeals Panel disposed of the appeal on a procedural matter, but went on to rule on the substantive issues. As a procedural matter, the Panel held that the Trial Court's decision was one 'involving evidence and procedure' and therefore not subject to interlocutory appeal, i.e. appeal before the end of the trial. While the OTP could have sought a certificate from the Trial Chamber allowing it to appeal the decision, it chose not to do so, claiming instead that the decision was of general importance to international law and, if allowed to stand, would cause the OTP irreparable injury. The Appeals Panel ruled that the absence of a certificate from the Trial Chamber was fatal, and for that reason it had dismissed the motion to appeal.
While this ruling dispensed with the issue, the Appeals Panel took the opportunity to express its opinion on the more substantive matters raised by the OTP. The Panel pointed out that, while the independence of the prosecutor guaranteed by the Tribunal's statute is a fundamental element of the adversarial nature of the Tribunal, it is limited to deciding which situations or persons to investigate and which to charge. Once the indictment has been filed, 'the Prosecutor becomes a party before the Tribunal, and thus subject to the power of a Chamber to manage the proceedings, in the same way as any other party before the Tribunal,' the Panel wrote. Construing prosecutorial independence to encompass the way in which the Prosecutor's case is presented before a Trial Chamber would put the accused person, who does not enjoy that right, at an unfair disadvantage, according to the opinion.
The Panel went on to state the standard for review of the Trial Chamber's decision is 'abuse of discretion.' 'Provided that the Trial Chamber has properly exercised its discretion, its decision will not be disturbed on appeal, even though the Appeals Chamber itself may have exercised the discretion differently,' Judge Claude Jorda wrote for the Panel. In reaching this conclusion, the Appeals Panel found the reasonableness of the Trial Chamber's decision in its consideration of several factors, including the need to make the case manageable, that it was not appropriate to establish every serious violation for which evidence was available, the OTP had 14 months to present its case, it would need to reduce the number of incidents to be proved and the Trial Chamber would review the time limit in light of unforeseen circumstances.
Judge Jorda, writing for himself, Judge David Hunt and Judge Fausto Pocar, emphasized that 'a Trial Chamber may always reconsider a decision it has previously made,' regardless of unforeseen circumstances. Judge Jorda went on to note the particular difficulty of managing a case, where an accused has expressed his intention to avail himself of every opportunity to 'speak in the interest of truth and 'to make a comment.' 'It does not need any particular degree of foresight to see that, even with the Trial Chamber exercising stringent control, the accused's cross-examinations may, deliberately or otherwise, seriously erode the time available for the prosecution case.' While upholding the Trial Chamber's discretion in setting a time limitation, the Appeals Panel appeared also to be sending a message.
The Appeals Panel disposed of the appeal on a procedural matter, but went on to rule on the substantive issues. As a procedural matter, the Panel held that the Trial Court's decision was one 'involving evidence and procedure' and therefore not subject to interlocutory appeal, i.e. appeal before the end of the trial. While the OTP could have sought a certificate from the Trial Chamber allowing it to appeal the decision, it chose not to do so, claiming instead that the decision was of general importance to international law and, if allowed to stand, would cause the OTP irreparable injury. The Appeals Panel ruled that the absence of a certificate from the Trial Chamber was fatal, and for that reason it had dismissed the motion to appeal.
While this ruling dispensed with the issue, the Appeals Panel took the opportunity to express its opinion on the more substantive matters raised by the OTP. The Panel pointed out that, while the independence of the prosecutor guaranteed by the Tribunal's statute is a fundamental element of the adversarial nature of the Tribunal, it is limited to deciding which situations or persons to investigate and which to charge. Once the indictment has been filed, 'the Prosecutor becomes a party before the Tribunal, and thus subject to the power of a Chamber to manage the proceedings, in the same way as any other party before the Tribunal,' the Panel wrote. Construing prosecutorial independence to encompass the way in which the Prosecutor's case is presented before a Trial Chamber would put the accused person, who does not enjoy that right, at an unfair disadvantage, according to the opinion.
The Panel went on to state the standard for review of the Trial Chamber's decision is 'abuse of discretion.' 'Provided that the Trial Chamber has properly exercised its discretion, its decision will not be disturbed on appeal, even though the Appeals Chamber itself may have exercised the discretion differently,' Judge Claude Jorda wrote for the Panel. In reaching this conclusion, the Appeals Panel found the reasonableness of the Trial Chamber's decision in its consideration of several factors, including the need to make the case manageable, that it was not appropriate to establish every serious violation for which evidence was available, the OTP had 14 months to present its case, it would need to reduce the number of incidents to be proved and the Trial Chamber would review the time limit in light of unforeseen circumstances.
Judge Jorda, writing for himself, Judge David Hunt and Judge Fausto Pocar, emphasized that 'a Trial Chamber may always reconsider a decision it has previously made,' regardless of unforeseen circumstances. Judge Jorda went on to note the particular difficulty of managing a case, where an accused has expressed his intention to avail himself of every opportunity to 'speak in the interest of truth and 'to make a comment.' 'It does not need any particular degree of foresight to see that, even with the Trial Chamber exercising stringent control, the accused's cross-examinations may, deliberately or otherwise, seriously erode the time available for the prosecution case.' While upholding the Trial Chamber's discretion in setting a time limitation, the Appeals Panel appeared also to be sending a message.
