O
SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA ROAD • FREETOWN • SIERRA LEONE
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TRIAL CHAMBER II

DECISION ON BRIMA – KAMARA APPLICATION FOR LEAVE TO APPEAL FROM DECISION ON THE RE-APPOINTMENT OF KEVIN METZGER AND WILBERT HARRIS AS LEAD COUNSEL

TRIAL CHAMBER II (“Trial Chamber”) of the Special Court for Sierra Leone (“Special Court”), composed of Judge Teresa Doherty, presiding, Judge Richard Lussick and Judge Julia Sebutinde;

SEISED of the Brima-Kamara Application For Leave to Appeal from Decision on the Extremely Urgent Confidential Joint Motion for Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by the Deputy Principal Defender to Trial Chamber II for Clarification of its Oral Order of 12 May 2005, filed 14 July 2005 (“the Motion”);

CONSIDERING the Response, filed on 22 July 2005 by the Principal Defender (“the Second Respondent’s Response”);

CONSIDERING the Response, filed by the Registrar on 22 July 2005 (“the First Respondent’s Response”);

CONSIDERING the Defence’s consolidated Reply to both Responses’s (“the Reply”);

BEING MINDFUL of the “Decision on the Extremely Urgent Confidential Joint Motion for Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara and Decision on Cross Motion by Deputy Principal Defender to Trial Chamber II for Clarification of its Oral Order of 12 May 2005”, dated 9 June 2005 (“the impugned Decision”);

BEING MINDFUL FURTHER of the “Dissenting Opinion of the Hon. Justice Julia Sebutinde from the Majority Decision on the Extremely Urgent Confidential Joint Motion for Re-Appointment of Kevin Metzger and Wilbert Harris as Lead Counsel for Alex Tamba Brima and Brima Bazzy Kamara, and Decision on Cross Motion by the Deputy Principal Defender to Trial Chamber II for Clarification of its Oral Order of 12 May 2005”, dated 11 July 2005 (“the dissenting Opinion”);

NOTING that Rule 73(B) of the Rules provides that

Decisions rendered on such motions are without interlocutory appeal. However, in exceptional circumstances and to avoid irreparable prejudice to a party, the Trial Chamber may give leave to appeal. Such leave should be sought within 3 days of the decision and shall not operate as stay of proceedings unless the Trial Chamber so orders.

NOTING therefore the general rule that decisions are without interlocutory appeal, and that only if the conjunctive conditions of exceptional circumstances and irreparable prejudice to the accused in Rule 73(B) are satisfied, a Trial Chamber may grant leave to interlocutory appeal;

CONSIDERING FURTHER that the Appeals Chamber has recently ruled that

“In this Court, the procedural assumption is that trials will continue to their conclusion without delay or diversion caused by interlocutory appeals on procedural matters, and that any errors which affect the final judgment will be corrected in due course by this Chamber on appeal”.[1]

NOTING therefore that the rationale behind the restrictive nature of Rule 73(B) is that the proceedings before the Special Court should not be heavily encumbered and consequently unduly delayed by interlocutory appeals;[2]

NOTING AND APPLYING therefore the restrictive application of Rule 73(B) as established by Trial Chamber I stating that

[Rule 73(B)] involves a high threshold that must be met before this Chamber can exercise its discretion to grant leave to appeal. The two limbs of the test are clearly conjunctive, not disjunctive: in other words, they must both be satisfied;[3]

CONSIDERING HOWEVER that in the present case the very nature of the application satisfies the conjunctive test of “exceptional circumstances” and “irreparable prejudice” by Rule 73 (B) since it concerns a fundamental right enshrined in Article 17(4) of the Statute;

FOR THE FORGOING REASONS

TRIAL CHAMBER ALLOWS THE APPLICATION and grants the Defence leave to file an interlocutory appeal against the impugned Decision.

Justice Lussick will give a Separate and Concurring Opinion and Justice Doherty appends a personal comment to this Decision.

Done at Freetown, Sierra Leone, this 5th day of August 2005.

[Seal of the Special Court for Sierra Leone]

[1] The Prosecutor v. Norman et al., Case No. SCSL-2004-14-AR73, Decision on Amendment of the Consolidated Indictment, 16 May 2005, para. 43.
[2] Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004.
[3] Prosecutor v. Sesay et al., Case No. SCSL-2004-15-PT, Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004; Prosecutor v. Brima et al., Decision on the Prosecutor’s Application for Leave to File an Interlocutory Appeal against the Decision on the Prosecution Motion for Joinder, 13 February 2004.