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PROSECUTOR v ALEX TAMBA BRIMA & ORS - DECISION ON JOINT DEFENCE APPEAL AGAINST THE DECISION ON THE REPORT OF THE INDEPENDENT COUNSEL PURSUANT TO RULE 77(C)(iii) AND 77(D) - Case No. SCSL-04-16-AR77 [2005] SCSL 130 (17 August 2005)

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SPECIAL COURT FOR SIERRA LEONE
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THE APPEALS CHAMBER

DECISION ON JOINT DEFENCE APPEAL AGAINST
THE DECISION ON THE REPORT OF THE INDEPENDENT COUNSEL PURSUANT TO RULE 77(C)(iii) AND 77(D)

THE APPEALS CHAMBER (“Appeals Chamber”) of the Special Court for Sierra Leone (“Special Court”) composed of Justice Raja Fernando, Presiding, Justice Emmanuel Ayoola, Justice George Gelaga King, Justice Geoffrey Robertson and Justice Renate Winter;

BEING SEISED OF the “Joint Defence Appeal Motion against the Decision on the Report of Independent Counsel Pursuant to Rules 77(C)(iii) and 77(D) of the Rules of Procedure and Evidence of 29 April 2005 by Trial Chamber II” filed on 3 May 2005 (“the Appeal”);

CONSIDERING the “Prosecution Response to the ‘Joint Defence Appeal’ dated 3 May 2005” filed 12 May 2005 (“the Response”);

CONSIDERING the “Joint Defence Reply to the Prosecution Response to the ‘Joint Defence Appeal’ Dated 3 May 2005”, filed on 16 April 2005 (“the Reply”);

CONSIDERING the Order of the President of 17 May 2005 assigning the matter to the full bench of the Appeals Chamber;

NOTING the Decision on the Report of Independent Counsel Pursuant to Rule 77(C)(iii) and 77(D) of the Rules of Procedure and Evidence of 29 April 2005 (“the Impugned Decision”);

REFERRING to the Appeals Chamber Decision on Defence Appeal Motion Pursuant to Rule 77(J) on both the Imposition of Interim Measures and an Order Pursuant to Rule 77(C)(iii) of 23 June 2005 (“the Appeals Chamber Decision on the First Contempt Appeal”);

CONSIDERING the Statute of the Special Court (the “Statute”) and the Rules of Procedure and Evidence (“the Rules”);

NOW DETERMINES THE APPEAL ON THE BASIS OF THE WRITTEN ARGUMENTS OF THE PARTIES:

1. The Defence is challenging the Impugned Decision rendered by Trial Chamber II in which, after considering the matters disclosed in the Report of the Independent Counsel appointed by the Registrar in accordance with the Oral Ruling of 10 March 2005 pursuant to Rule 77(C)(iii) of the Rules, the Trial Chamber (i) ordered that orders in lieu of indictments be issued against the alleged contemnors, pursuant to Rule 77(C)(iii) of the Rules; (ii) directed that the Independent Counsel prosecute the alleged contemnors; (iii) decided that the Interim Order of 10 March 2005 shall remain in force until the final judgement in the respective contempt proceedings is delivered; and (iv) assigned the contempt proceedings pursuant to the orders in lieu of indictments to Trial Chamber I in accordance with Rule 77(D).
   
2. The grounds of this Appeal are (i) that the Trial Chamber erred in law and/or in fact by erroneously finding that there were “sufficient grounds” to institute proceedings against the alleged contemnors without disclosing the report of the Independent Expert, (ii) that the Trial chamber erred in law and/or in fact by issuing the Impugned Decision without first deciding on several pending Motions, and (iii) that the Trial Chamber erred in law and/or in fact by failing to provide any arguments as to why the Impugned Decision considers that there are sufficient grounds to proceed against the alleged contemnors.
   
3. It is the view of the Appeals Chamber that the Impugned Decision and the Defence’s three grounds of Appeal are directly related to the contempt proceedings under Rule 77. Those proceedings directed against the alleged contemnors are distinct from the proceedings in the main AFRC Case against the Appellants. The only part of the Impugned Decision which concerns the AFRC Case is the decision that the Interim Order of 10 March 2005 shall remain in force until the final judgement in the respective contempt proceedings is rendered, but the Defence does not challenge this aspect of the Impugned Decision in its Appeal.
   

Background: the First Contempt Appeal

4. The background is fully set out in the Appeals Chamber Decision on the First Contempt Appeal. In brief, Prosecution Witness TFI-023 complained on 10th March 2005 that she had been subjected to threats from four women, including the wives of the Accused, as she was being driven from court the previous evening. The Prosecution produced witness statements incriminating Mr Samura, the investigator of the Brima Defence team, as the person who divulged to the women the identity of this witness. Pursuant to Rule 77(C), the Trial Chamber decided on this material that there was reason to believe that a contempt may have been committed. It further appointed an experienced Independent Counsel to report back as to whether there was sufficient grounds for instituting contempt proceedings. The attempted appeal by the three AFRC Accused against these two decisions failed, so this court held, because Rule 77(J) only permitted appeals against final contempt decisions – i.e. against conviction and acquittals – and because the appellants lacked standing since they were not potential defendants in the contempt investigation.
   
5. Trial Chamber II also imposed, on 10th March, certain “interim orders”: it suspended Mr Samura from the Brima Defence team and ordered the appointment of a new investigator, and it banned the four women suspects from entering the public gallery. The Appeals Chamber held that these “interim measures”, augmenting the protection already given to the witness, were capable of appeal because they were made under Rule 75 and not Rule 77. Such an appeal could, however, only be brought with leave of the Trial Chamber under Rule 73(B), and that leave had not been obtained.
   

Submissions of the Parties

6. The current Contempt Appeal differs from the previous one only slightly. It is relying on the following grounds of appeal:
   1. The Defence submits that Trial Chamber II erred in law and/or in fact by erroneously finding that there were “sufficient grounds” to institute proceedings against the investigator of the Brima Defence team and the four women without disclosing the report of the Independent Expert.
   2. The Defence further submits that Trial Chamber erred in law and/or in fact by issuing the Impugned Decision without first deciding on several pending Motions dealing with procedural as well substantive aspects of the Trial Chamber’s initial Decision and that the Trial Chamber should have awaited their outcome.
   3. The Defence finally submits that Trial Chamber II erred in law and/or in fact by failing to provide any arguments as to why the Impugned Decision considers “that there are sufficient grounds to proceed against” the alleged contemnors.
      
7. The Appeals Chamber notes that, although the Impugned Decision prolonged the interim measures ordered on the 10 March 2005, the Defence does not challenge this aspect any more. Thus, it is not necessary to discuss if and to what extent Trial Chamber II had the power to pronounce the said measures.
   
8. Before addressing the merits of the Appeal, the Appeals Chamber shall however address the preliminary issues of the Appellants right to appeal and of their locus standi which are raised by the Prosecution in its Response.
   

First Preliminary Issue: Right to Appeal

9. In the Decision on the First Contempt Appeal it was stated that:
   

“‘Any decision’ means in context ‘any final decision’ and not ‘any decision taken by the Court at any time in the course of investigating or processing a contempt allegation.’” [1]

10. The Appeals Chamber further refers to the Separate and Concurring Opinion of the Honourable Justice Ayoola (“the Concurring Opinion”) appended to the same Decision in which it is stated that :
    

“In view of Rule 77(J) which provides that: "Any decision rendered by a single Judge or Trial Chamber under this Rule shall be subject to appeal", it is expedient to consider the nature of the power exercised by a Judge or Trial Chamber under Rule 77(C). In so far as the powers exercised by a Judge or trial Chamber can be said to be a result of a decision to exercise such powers, it can be said that the exercise of such powers implies a ‘decision’. However, it cannot be said that such decisions are judicial decisions. They are decisions of an executive nature and are not decisions, at that stage, that depend on any dispute or on the resolution of any conflicting facts or issues. The choice between options available under 77(c) (ii) or (iii) is determined not by law but by administrative convenience and expediency. Rule 77(J) deals with judicial decisions. Hence the use of the words ‘decision rendered’. ” [2]

11. The Concurring Opinion further states that:
    

“Choice of power that a Judge or Trial Chamber decides to exercise pursuant to Rule 77(C) does not amount to a prosecutorial decision, but may lead, eventually, to that. Even in regard to prosecutorial decisions, there may be several ways of challenging such decisions, but an appellate process is not one of them. The Appeals Chamber is not set up to exercise a general and roving supervisory jurisdiction over the Trial Chamber so as to review such exercise of power conferred upon it by Rule 77(C.).” [3]

12. It follows from these findings that a preliminary decision rendered under Rule 77(C) of the Rules is not a decision capable of appeal to this Chamber pursuant to Rule 77(J). It is the view of this Chamber that the impugned decision is not subject to appeal, for the reasons given in the Decision on the First Contempt Appeal which apply equally to the right to appeal asserted in this second case.
    

Second Preliminary Issue: Locus Standi

13. In its Decision on the first Appeal on Contempt, the Appeals Chamber decided that:
    

“This appeal is brought without leave by the three defendants in the AFRC trial. None are subject to the contempt investigation ordered by the Trial Chamber. Their counsel have not been assigned to represent any of the five alleged contemnors nor do they purport to have been instructed to represent them. It follows that they have no standing, in any event, to prosecute an appeal against the two decisions taken by the Trial Chamber in relation 1) to its reason to believe that a contempt had been committed by others or 2) to its direction for an independent investigation of that alleged contempt.” [4]

14. Again, in Concurring Opinion, it is stated that:
    

“(i) Contempt proceedings pursuant to Rule 77 are proceedings separate from the proceedings in the course of which the alleged contempt was occasioned or to which the conduct of the contemnor was directed.

(ii) The parties to the proceedings in the course of which the alleged contempt may have arisen do not by virtue of that fact become parties to the contempt proceedings, when initiated, unless they are the alleged contemnors.” [5]

15. It is the view of the Appeals Chamber that, in the present Appeal, the issue of the Appellants’ lack of locus standi arises in the same terms as in the first Appeal. The Impugned Decision as well as the Defence grounds of Appeal are enshrined in the contempt proceedings, which are parallel to the proceedings in the AFRC Case. The only part of the Impugned Decision which concerns the AFRC Case is the decision that the Interim Order of 10 March 2005 shall remain in force until the final judgement in the respective contempt proceedings is rendered, but, as noted before, the Defence does not challenge this aspect of the Impugned Decision in its Appeal.
    
16. The arguments developed by the Defence in its Reply to the Prosecution Response on the issue of standing do not provide anything which might cause a change to the ruling of the Appeals Chamber in its Decision in the First Appeal on Contempt. In particular, the Appeals Chamber is not convinced by the submissions of the Defence that the outcome of the contempt proceedings will affect the fairness of the case against the Accused in the AFRC trial and that they therefore have a reasonable interest to a participation in these proceedings. The contempt proceedings are parallel to the Case against the Accused and their outcome shall have no effect on the Trial against them, as none of the Accused is indicted for having had a part in the alleged contempt. Therefore, it is the view of the Appeals Chamber that the Appellants have no locus standi in the current Appeal.
    
17. We hereby authorise Court Management to serve this Separate and Concurring Opinion during the official recess period of the Special Court.
    

As the Appellants have neither the Right to Appeal nor standing,

THE APPEALS CHAMBER DISMISSES

the Appeal in its entirety.

The Honourable Justice George Gelaga King appends a Separate and Concurring Opinion.

The Honourable Justice Geoffrey Robertson appends a Separate and Concurring Opinion

Done in Freetown this 17th August 2005.

Justice Renate Winter

[Seal of the Special Court for Sierra Leone]

[1] Appeals Chamber Decision on Defence Appeal Motion Pursuant to Rule 77(J) on both the Imposition of Interim Measures and an Order Pursuant to Rule 77(C)(iii) filed 23 June 2005, para. 29.
[2] Separate and Concurring Opinion of Hon. Justice Ayoola on the Decision on Appeal against the 10 March 2005 Oral Ruling on the Allegations of Contempt filed 23 June 2005 and appended to the Appeals Chamber Decision ibid para. 28.
[3] Ibid, para. 31.
[4] Appeals Chamber Decision on Defence Appeal Motion Pursuant to Rule 77(J) on both the Imposition of Interim Measures and an Order Pursuant to Rule 77(C)(iii) filed 23 June 2005, at para. 33.
[5] Separate and Concurring Opinion of Hon. Justice Ayoola on the Decision on Appeal against the 10 March 2005 Oral Ruling on the Allegations of Contempt filed 23 June 2005 and appended to the Appeals Chamber Decision ibid para. 31.