9.       Rule 73(C) of the Rules, pursuant to which this appeal is brought, entitles a “party” to appeal a trial chamber’s decision after having requested and obtained certification. Rule 2 of the Rules defines “parties” as “[t]he Prosecutor and the Defence”. The Impugned Decision was issued in the Karadžić case and Tolimir is neither part of the Prosecution nor the Defence in that case. Thus, sensu stricto, he is not entitled to use Rule 73(C) of the Rules to bring an interlocutory appeal.

10.     However, the Appeals Chamber recalls the Milošević Appeal Decision[1] in which it decided to consider an interlocutory appeal filed by amici curiae in that case.[2] The Appeals Chamber determined that, although amici curiae operate in proceedings “solely as assistants” to the court and not as actual parties, it would nonetheless adjudicate the amici curiae’s interlocutory appeal on the basis that, in the circumstances of the particular case, consideration of the appeal served the interests of justice.[3] Additional factors underlying the Appeals Chamber’s decision to adjudicate the matter included: (i) the existence of an alignment of interests between the amici curiae and the accused in that case; (ii) the fact that consideration of the appeal would not infringe the accused’s interests; (iii) that there was no “danger of unfairness to the Prosecution”; and (iv) that the Prosecution did not oppose consideration of the appeal and in fact expressed “its willingness to accept the amici as a party for these purposes”.[4] The Appeals Chamber also notes the Brđanin Appeal Decision in which it adjudicated an interlocutory appeal, filed by a non-party to the proceedings, against a subpoena decision.[5]

11.     The Appeal raises concerns regarding, inter alia, Tolimir’s right against self-incrimination under Article 21(4)(g) of the Statute of the Tribunal (“Statute”).[6] Neither Karadžić nor the Prosecution have objected to the filing of the Appeal and in fact both have indicated their willingness to accept Tolimir as having standing to appeal the Impugned Decision.[7] Thus, neither the interests of Karadžić nor the Prosecution stand to be compromised by adjudication of the Appeal. In these circumstances and emphasising in particular that the Appeal raises concerns about a fundamental right of an accused before the Tribunal, the Appeals Chamber finds that consideration of the Appeal serves the interests of justice.

CONSIDERING further that Counsel have no standing in their own right in circumstances where the appellant has died and the appellate proceedings before the Tribunal have been terminated;

Page 2

NOTING Karadžić’s submission that the Appeals Chamber has previously held that the Prosecution has standing to bring a motion under Rule 86(G) of the Rules where an external party lacks the requisite knowledge to do so and that, therefore, there is no reason why the Defence should not have standing to do the same;[8]

CONSIDERING that, in the cases to which Karadžić cites, the Prosecution acted on behalf of various national authorities pursuant to its statutory obligation to assist investigations and prosecutions by national authorities, and that the defence has no such corresponding statutory duty;[9]

[…]

FINDING, therefore, that Karadžić has no standing to bring the Motion;

[…]