[1] The Appeals Chamber notes that in a different case, Trial Chamber III also denied a request for certification against a decision concerning the accused’s fitness to stand trial (Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Motion Re Fitness to Stand Trial, 10 March 2008 (confidential and ex parte) (“Stanišić Decision of 10 March 2008”)) on the grounds that the Defence in that case did not show that the criteria of Rule 73(B) of the Rules had been met - Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-PT, Decision on Defence Motion Requesting Certification for Leave to Appeal, 16 April 2008, paras 4-6.

[2] Cf. R. v. Podola [1959] Cr. App. 3 W.L.R. 718: “If a convicted person appeals against his conviction on the ground that the hearing of the preliminary issue was open to objection for error in law, so that he should never have been tried on the substantive charge at all, we are of opinion that this court has jurisdiction to entertain the appeal. […] [A] convicted person is entitled to contend […] that he 'should not have been given in charge to the jury as he was, or have been made the subject of any verdict at all, but should have had the proceedings stopped at the outset.’”

Ngatayi v. R [1980] 147 CLR 1, High Court of Australia, p. 14: “Before any trial on an issue of guilt, the issue of capacity is to be decided by a jury empanelled specially to try that issue of capacity […] The question of whether Mr Ngatayi was capable of understanding the proceedings was not an issue on the trial of his guilt. It is not satisfactory to excuse the holding of a trial at which this would be the issue because of conclusions based on evidence given at trial in which it was not an issue, Special leave to appeal should be granted. Because the statutory procedure intended for the applicant’s protection has not been followed, the appeal should be allowed.”

Kesavarajah v. R [1994], 181 CLR 230, High Court of Australia, pp. 246-248: “There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused’s fitness to be tried. Of course, that is not to exclude from the jury’s consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise. […] For our part, although the charge to the jury was almost complete, we do not consider that the appellant’s fitness to be tried became an immaterial consideration. […] Notwithstanding that the trial was drawing to its close, the possibility remained that the appellant might be called upon to participate in the proceedings to protect his own interests. […] Consequently, at this late stage of the trial, a serious question as to the appellant’s fitness to be tried again arose, requiring the determination of a jury. […] The object of s 393 is to ensure that a trial does not proceed in the case of an accused who is unfit to be tried; in other words, a person who is unfit to be tried should not be subject to trial resulting in the risk of his or her conviction. […] In the result, the appeal should be allowed, the conviction quashed and a new trial ordered.”

Malaysia, High Court of Muar, Public Prosecutor v. Misbah Bin Saat [1997] 3 MLJ 495, p. 504: “It should be observed that though s 342(1) of the CPC appears to cover a situation where the question of the accused's unsoundness of mind arises when the trial has already commenced, the inquiry by the court as to the fitness of the accused person ought to be determined forthwith when it comes to the knowledge of the court, and ought not to be postponed until after the close of the prosecution's case. It is the duty of the court either at the commencement of the trial, or at any stage during the course of the trial, when the question of fitness to stand trial is raised, to determine that issue immediately.”

[1]           Prosecutor v Brđanin, Case No: IT-99-36-A, Decision on Interlocutory Appeal, 19 March 2004.

[2]           Prior to the amendment adopted on 8 December 2004, the Rule read: (A) An accused may file a motion for the entry of judgement of acquittal on one or more offences charged in the indictment within seven days after the close of the Prosecutor’s case and, in any event, prior to the presentation of evidence by the defence pursuant to Rule 85(A)(ii). See Rules, IT/32/Rev.32.

[3]           Amended Rule 98bis, as amended on 8 December 2004: At the close of the Prosecutor’s case, the Trial Chamber shall, by oral decision and after hearing the oral submissions of the parties, enter a judgment of acquittal on any count if there is no evidence capable of supporting a conviction; Appeal [Prosecutor v. Momčilo Krajišnik, Case No. IT-00-39-AR98bis.1, Appeal Against Judgment Pursuant to Rule 98bis, 16 September 2005], para. 7.

[4]           Appeal, para. 8.

Footnote [1] See Rule 79(B) of the Rules (concerning certification to appeal with respect to preliminary motions).

Footnote [2] Cf. Prosecutor v. Rasim Delić, Case No. IT-04-83-Misc.1, Decision on Prosecution’s Appeal, 1 November 2006, p. 3 (considering that the Appeals Chamber of the ICTY has no inherent authority to intervene in an interlocutory decision of a trial chamber not subject to a right of appeal and to which certification to appeal has been denied). See also Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR-98-42-AR73, Decision on Pauline Nyiramasuhuko’s Request for Reconsideration, 27 September 2004, para. 10 (noting that certification of an appeal has to be the absolute exception when deciding on the admissibility of the evidence, and that it is first and foremost the responsibility of trial chambers, as triers of fact, to determine which evidence to admit during the course of the trial).