Prosecutor Seeks to Appeal Time Limit: Del Ponte claims Trial Chamber infringed prosecutor's province by setting end date for prosecution case

Citing 'incurable prejudice to the Prosecution,' Chief Prosecutor Carla Del Ponte asked the Appeals Chamber to allow an appeal of the Trial Chamber's order establishing April 10, 2003 as the mandatory end date for the Prosecution's case against Slobodan Milosevic for war crimes, crimes against humanity and genocide in Kosovo, Croatia and Bosnia-Herzegovina. In response, President of the Tribunal Judge Claude Jorda constituted a three-judge panel of the Appeals Chamber to decide whether to allow the interlocutory appeal, i.e. an appeal during the trial stage of the proceedings.

In her motion, the Prosecutor argued that the Trial Chamber exceeded its authority by limiting the Prosecution's case and that this was an infringement of the Prosecution's rights under the Tribunal's governing statute:
'It is respectfully submitted that this application involves a fundamental matter: the adequate balance between the functions and duties of separate organs of the International Tribunal (Prosecutor and Chambers), i.e., the scope and limits of their respective spheres of authority.'
She acknowledged that Tribunal Rules permit the Trial Chamber a certain amount of discretion in determining 'the time available to the Prosecutor for presenting evidence.' (Rule 73bis (E)) Such power cannot interfere with the Prosecution's right to fully present its case in the manner it deems fit, she argued. Rules of the Tribunal must be interpreted to promote the overarching principles contained in the Tribunal's Statute, in this case, the principle of prosecutorial independence. She concluded by claiming that the Trial Chamber abused its discretion by setting a mandatory deadline for the end of the Prosecution's case.

In support of her motion, the Prosecutor cited the decision by a three judge Appeals Panel in the Galic case which ruled that Rule 73bis (E) requires a trial chamber to determine whether all the issues have been identified before imposing limits on the Prosecution's case. (13 December 2001) In most cases, issues are identified and narrowed before trial begins – by a pre-trial judge, assisted by pre-trial briefs from the Prosecutor and defense counsel. For example, defense counsel might stipulate that there were about 800,000 refugees in Macedonia and Albania during the Kosovo war, thereby eliminating any need for the Prosecution to prove this. At the same time, the parties could agree that the fact at issue is the cause of the civilian displacement: fear of NATO bombs and fighting or forced deportation. Identification of and agreement on issues makes it possible to estimate the time required for the Prosecution to prove the facts alleged in the indictment.

In the Milosevic case where the accused is not represented by counsel and does not acknowledge the legitimacy of the Tribunal, Milosevic did not assist in identifying or narrowing issues. As a result, identification of issues can only be finally ascertained through the trial process itself. While the matters at issue in the Kosovo portion of the Milosevic case have been clarified after two months of trial, those in the Croatia and Bosnia portions of the case have not.

The Trial Chamber acknowledged that the issues have not been clearly determined in the Croatia and Bosnia portions, but nonetheless, and despite the Galic decision, the Chamber imposed a deadline on the Prosecution. It remains unclear whether the Galic decision controls the issue in other cases, since it was decided by a three judge panel rather than the entire Appeals Chamber. Tribunal jurisprudence has not determined the precedential value of such rulings, i.e., whether all trial chambers must follow the legal rules established. In its motion in the Milosevic trial, the Prosecutor argued that even if Galic is not controlling as a matter of law, 'a decision by a Bench of Three Judges of the Appeals Chamber should at a minimum be given the status of highly persuasive authority, and not be dismissed light-handedly.'

The Prosecutor also pointed out that the purpose of Rule 73bis (E), according to the Galic Appeals Panel, is to provide the Trial Chamber with a 'powerful tool for preventing excessive and unnecessary time being taken by the Prosecution.' In the Milosevic case, the Prosecutor argued, 'the record . . . clearly demonstrates the Prosecution's constant efforts to present a case as concise and manageable as it could reasonably be presented. . . .' Some of the measures it has taken include reducing the number of vive voce (live) witnesses by selecting one or two per crime site and submitting a few additional selected witness statements in writing, presenting witness statement summaries in writing in advance of appearance, and providing binders with summaries of evidence, exhibits, maps and photos for each crime site. These efforts, and the lack of any contrary evidence, demonstrate that the Trial Chamber abused its discretion in limiting the Prosecution's case at this time and in an arbitrary manner before all issues have been identified, the Prosecutor's motion argued.

Finally, the Prosecutor pointed out the need for a decision by an Appeals Panel as soon as possible, and long before the case is concluded. 'It is apparent that if the Prosecution is forced to present its case within an unreasonable period of time, the only possible consequence is that the quality of the Prosecution's case will suffer, which, in turn, will impact on the quality of the Chamber's final decision.' The Milosevic case is the largest to come before the Tribunal, spanning ten years and three armed conflicts. As the Prosecutor pointed out, 'only one of the incidents contained in the Kosovo indictment, Racak, would justify a prosecution by itself, and would ordinarily involve months of presentation of evidence.' The Croatia and Bosnia indictments also include incidents deserving of separate prosecutions, such as Vukovar, Srebrenica, Dubrovnik and Sarajevo. To face 'a rigid and arbitrary deadline' will force the Prosecution to drastically reduce its evidence 'not to improve or make more efficient the presentation of its case, but merely to meet the deadline.' (emphasis in original) This, the Prosecution claims, would cause it irreparable harm and violate its right to a fair trial.

The three judge panel of the Appeals Chamber includes Judge Jorda, Presiding, Judge David Hunt and Judge Fausto Pocar. They will decide whether the Prosecutor's appeal can go forward. If the appeal is allowed, the Prosecutor and, likely, the Amici Curiae will further brief the issue.