THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA SLOBODAN PRALJAK S REQUEST FOR A TEMPORARY ADJOURNMENT

Transcription

1 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA IT T D D March 2010 SF TRIAL CHAMBER III Case No. IT T Original: English Before: Judge Jean-Claude Antonetti, Presiding Judge Arpad Prandler Judge Stefan Trechsel Reserve Judge Antoine Kesia-Mbe Mindua Registrar: Mr. John Hocking Filed: 23 March 2010 THE PROSECUTOR v. JADRANKO PRLIĆ BRUNO STOJIĆ SLOBODAN PRALJAK MILIVOJ PETKOVIĆ VALENTIN ĆORIĆ BERISLAV PUŠIĆ - URGENT AND PUBLIC - SLOBODAN PRALJAK S REQUEST FOR A TEMPORARY ADJOURNMENT The Office of the Prosecutor Mr. Kenneth Scott Mr. Douglas Stringer Counsel for Jadranko Prlić Mr. Michael G. Karnavas Ms. Suzana Tomanović Counsel for Bruno Stojić Ms. Senka Nožica Mr. Karim A.A. Khan Counsel for Slobodan Praljak Mr. Božidar Kovačić Ms. Nika Pinter Counsel for Milivoj Petković Ms. Vesna Alaburić Mr. Nicholas Stewart Counsel for Valentin Ćorić Ms. Dijana Tomašegović-Tomić Mr. Drazen Plavec Counsel for Berislav Pušić Mr. Fahrudin Ibrišimović Mr. Roger Sahota

2 SLOBODAN PRALJAK S REQUEST FOR A TEMPORARY ADJOURNMENT I. INTRODUCTION 1. Slobodan Praljak, ( Accused ) by and through counsel, ( Praljak Defence ), respectfully requests the Trial Chamber to order an adjournment of trial proceedings until the interlocutory appeal processes regarding the Trial Chamber s denials of the right of the Accused Praljak to submit evidence pursuant to Rule 92 bis are resolved. II. BACKGROUND 2. On 16 February 2010, the Trial Chamber issued the Decision on Slobodan Praljak s Motion to Admit Evidence Pursuant to Rule 92 bis of the Rules ( First Impugned Decision ). The Previously Impugned Decision recited the history of the filings on this issue from the 14 September 2009 submission of statements pursuant to Rule 92 bis ( Sworn Statements ), over six months ago. 3. On 8 March 2010, the Praljak Defence filed Slobodan Praljak s Request for Certification to Appeal the Decision on Slobodan Praljak s Motion to Admit Evidence Pursuant to Rule 92 bis of the Rules ( First Request for Certification ). Annex A of the Prior Motion for Certification provides extensive transcript excerpts covering the history of the clear encouragement of the Trial Chamber to extensively use Rule 92 bis and the plainly expressed intentions of the Praljak Defence to use Rule 92 bis. 4. On 17 March 2010, the Trial Chamber issued the Ordonnance portant sur la Demande de la Défense Praljak d'obtenir une suspension du délai ordonné par la Chambre pour déposer 20 déclarations écrites ou comptes rendus de dépositions en vertu de l'article 92 bis du Règlement ( Second Impugned Decision ). 5. On 22 March 2010, the Praljak Defence filed Slobodan Praljak s Request for Certification to Appeal the Ordonnance portant sur la Demande de la Défense Praljak d'obtenir une suspension du délai ordonné par la Chambre pour déposer 20

3 déclarations écrites ou comptes rendus de dépositions en vertu de l'article 92 bis du Règlement ( Second Request for Certification ). III. DISCUSSION A. Generally, If No Fair Trial Can Be Held, Then the Trial Must Be Temporarily Adjourned. 6. The Praljak Defence respectfully submits that the current state of international criminal law regarding temporary adjournments requires an adjournment of trial proceedings whenever no fair trial can be held. As stated in the Appeals Chamber of the International Criminal Court Decision of 14 December 2006: Where fair trial becomes impossible because of breaches of the fundamental rights of the suspect or the accused by his/her accusers, it would be a contradiction in terms to put the person on trial. Justice could not be done. A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and must be stopped. 1 [ ] Where the breaches of the rights of the accused are such as to make it impossible for him/her to make his/her defence within the framework of his rights, no fair trial can take place and the proceedings can be stayed As stated by the Appeals Chamber in Blagojević, when an Accused has appealed an action of the Registrar an organ of the Tribunal which the Accused asserted made the trial unfair, the only option is a temporary stay in trial: The only inherent power that a Trial Chamber has is to ensure that the trial of an accused is fair [ ] As such, the only option open to a Trial Chamber, where the Registrar has refused the assignment of new Counsel, and an accused appeals to it, is to stay the trial until the President has reviewed the decision of the Registrar. 3 1 The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (OA4), Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19 (2)(a) of the Statute of 3 October 2006, 14 December 2006, ( Lubanga Decision on Jurisdiction ) para Ibid., para The Prosecutor v. Vidoje Blagojević, Case No. IT AR73.4, Public and Redacted Reasons for Decision on Appeal by Vidoje Blagojević to Replace His Defence Team, ( Blagojević ) para. 7.

4 In Tadić, the Appeals Chamber recognized that it was incumbent upon an Accused to move for a stay of proceedings when a fair trial is not possible because witness testimony central to the defence case cannot be presented. 4 held that: The Appeals Chamber [W]henever the aforementioned measures have proved to be to no avail, a Chamber may, upon the request of a party or proprio motu: (7) order that proceedings be adjourned[.] 5 9. Reading this jurisprudence together, it is clear that the Trial Chamber has the power and obligation to order a temporary adjournment when necessary in order to preserve the fair trial rights of an accused. More specifically: a. Temporary adjournments in a trial are the only response to actions or omissions of Organs of an international tribunal which risk an unfair trial; 6 and b. Circumstances which prevent witness testimony central to the defence case from being presented risk an unfair trial. 7 B. Currently, While Uncertainty Reigns and the Praljak Defence is Denied the Use of Rule 92 bis, No Fair Trial Can Be Held. 10. The Praljak Defence respectfully submits that the Trial Chamber s failure to decide one way or another as to whether the statements submitted by the Praljak Defence pursuant to Rule 92 bis ( Sworn Statements ) are admitted, combined with the Trial Chamber s declaration that the Trial Chamber has no intention to make a such a decision for the remainder of the Trial, 8 means that currently no fair trial can be held. 4 The Prosecutor v. Duško Tadić, Case No. IT-94-1-A, 15 July 1999, ( Tadić ) para. 55. In this instance, the witnesses allegedly did not appear due to the lack of cooperation of the authorities in the Republica Srpska. See para. 53. The Appeals Chamber ruled against the Appellant not due to any problem with the remedy of a stay, but rather from the Appellant s error in not requesting it. See para Ibid., para Blagojević, para. 7; Lubanga Decision on Jurisdiction, para Tadić, para See First Impugned Decision.

5 The situation s gross unfairness is compounded by the current uncertainty with respect to whether the Trial Chamber will permit the Appeals Chamber to review its denial of the presentation of much of the Praljak Defence case. Because the Trial Chamber has not decided upon the First Request for Certification or Second Request for Certification, the Praljak Defence does not know whether the current unfair situation must wait for review on final Appeal. Further this is occurring in a context when other similar Trial Chamber decisions regarding evidence tendered have not yet been issued The Praljak Defence respectfully submits that the instant situation is far worse than the situation in Tadić. There, the Appeals Chamber retrospectively endorsed the remedy of a stay in trial when there was only a possibility that witness testimony could not be considered as a result of the alleged injustice. 10 Here, there is a positive certainty that the Trial Chamber will entirely disregard the Sworn Statements of over 100 witnesses, unless corrected by the Appeals Chamber In Lubanga, the subject was the mere possibility that an unknown amount of evidence which might be potentially exculpatory was not available to the accused and thus would potentially not be considered by the Trial Chamber. 12 Here, there is a certainty that a great deal of exculpatory evidence will not be considered by the Trial Chamber, unless corrected by the Appeals Chamber The Praljak Defence respectfully submits that the fact that the failure of the Trial Chamber to consider the evidence tendered 14 is responsible for this rights violation 9 The Trial Chamber has not yet decided on the Slobodan Praljak s Request for Clarification and Reconsideration or, in the Alternative, for Certification to Appeal the Non-Admission of Certain Documents Tendered Through Slobodan Praljak, filed 9 March 2010; nor has it decided on Slobodan Praljak s Motion for the Admission of Documentary Evidence, filed 24 October Tadić, paras First Impugned Decision. 12 The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (OA4), Judgment on the Appeal of the Prosecutor against the Decision of Trial Chamber I entitled Decision on consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 21 October 2008, ( Lubanga Decision on Stay ) para First Impugned Decision. 14 Ibid..

6 rather than the action or omission of another judicial organ 15 is not relevant. The Trial Chamber is not, with respect, above the requirements and fair trial standards of contemporary international criminal law. This issue is not final, as certification for appeal has been neither granted nor denied. 15. The Praljak Defence respectfully submits that the relief requested is modest in scope. It is not permanent. 16 The interlocutory appeal process will come to an end. An adjournment of trial proceedings until the interlocutory appeal process regarding the Trial Chamber s denial of the right of the Accused Praljak to submit evidence pursuant to Rule 92 bis is resolved will result in only a small delay compared to the extensive time already spent in trial. 16. The Ćorić Defence is nearing the end of its case. The plans of the Pusić Defence are unknown. The Praljak Defence cannot reasonably prepare for the remainder of the Trial and the end of the case as long as this issue is outstanding. Every trial day represents additional prejudice to the Accused. Accordingly, a temporary adjournment of trial until this issue is resolved is required. C. Accordingly, The Trial Must Be Temporarily Adjourned. 17. The Praljak Defence respectfully submits that given the conclusion of Section III.A. supra (if no fair trial can be held, then the trial must be temporarily adjourned) and the assessment in Section III.B. supra (currently, no fair trial can be held) then the Trial Chamber has no alternative but to order a temporary adjournment. IV. RELIEF REQUESTED 18. For the reasons set forth above, and in accordance with Article 21 and Rules 54 and 73 the Praljak Defence respectfully requests the Trial Chamber to stay trial proceedings until the interlocutory appeal processes regarding the Trial Chamber s denials of the right of the Accused Praljak to submit evidence pursuant to Rule 92 bis are resolved. 15 See Blagojević, para. 7; Lubanga Decision on Jurisdiction, para This contrasts with the situation in Lubanga, where the stay in trial threatened to become permanent. See Lubanga Decision on Stay.

7 Word Count: 1762 Respectfully submitted, By Božidar Kovačić and Nika Pinter Counsel for the Accused Slobodan Praljak