Case No. IT-02-60-T

IN TRIAL CHAMBER I, SECTION A

Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay

Registrar:
Mr. Hans Holthuis

Decision of:
28 September 2004

PROSECUTOR

v.

VIDOJE BLAGOJEVIC
DRAGAN JOKIC

________________________________

DECISION ON MOTION TO SEEK LEAVE TO RESPOND TO THE PROSECUTIONíS FINAL BRIEF

________________________________

The Office of the Prosecutor:

Mr. Peter McCloskey

Counsel for the Accused:

Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje Blagojevic
Mr. Miodrag Stojanovic and Mr. Branko Lukic for Dragan Jokic

 

TRIAL CHAMBER I, SECTION A, ("Trial Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("Tribunal"),

BEING SEISED OF the "Motion to Seek Leave to Respond to the Prosecutionís Final Brief on the Basis of It Containing Irrelevant, Innacurate ₣sicğ and Deceiving Information,Ē filed by Counsel for Vidoje Blagojevic, Michael G. Karnavas, on 27 September 2004 ("Motion"),

NOTING the "Prosecutionís Response to Motion to Seek Leave to Respond to the Prosecutionís Final Brief," filed by the Office of the Prosecutor ("Prosecution") on 28 September 2004 ("Response"),

NOTING that Final Trial Briefs were filed by all Parties to these proceedings on 22 September 2004 pursuant to Rule 86 of the Rules of Procedure and Evidence ("Rules") and in accordance with the Trial Chamberís instructions,1

NOTING that Closing Arguments are scheduled to begin on Wednesday, 29 September 2004 pursuant to Rule 86 of the Rules,

NOTING that in the Motion, Counsel for Vidoje Blagojevic asserts that he must be granted leave to file a response to the Prosecutionís Final Trial Brief within fifteen days after Closing Arguments because, he asserts, "the Prosecutionís final brief contains an overwhelming amount of irrelevant, inaccurate and deceiving information, which permeates throughout the final brief, thus making the final brief in toto dangerously suspect and purely designed to confuse, inflame and mislead the Trial Chamber,"2

NOTING FURTHER that in the Motion, Counsel for Vidoje Blagojevic submits inter alia that the Prosecutionís Final Trial Brief: contains numerous paragraphs that are not relevant to this case as they contain information outside the scope of the Indictment; contains numerous errors that are not supported by the record; cites supporting material which does not support that which the Prosecution claims; and contains citations to documentary evidence where it purposely omits portions of sentences that are relevant to a "fair, accurate and honest analysis and interpretation of the evidence,"3

NOTING that in the Response, the Prosecution sets out its reasons for including in its Final Trial Brief material related to matters not specifically referred to in the Indictment or related to crimes dismissed by the Trial Chamber in its Judgement rendered pursuant to Rule 98 bis,4 and submits that it will be for the Trial Chamber, upon review of the facts and arguments put forward in this case, to determine whether its arguments are sufficiently supported,5

NOTING FURTHER that the Prosecution characterises the Motion as "the latest strike in a history of personal attacks levied by Counsel since the inception of the trial,"6

CONSIDERING that Counsel for Vidoje Blagojevic fails to provide any support for the serious allegations of professional and ethical misconduct or impropriety on the part of the Prosecution which he makes in the Motion,

CONSIDERING FURTHER that there is no reason for the Trial Chamber to believe that any member of the Prosecution team in this case has sought to "confuse, inflame and mislead the Trial Chamber," at any stage of these proceedings,

CONSIDERING that the primary purpose of Final Trial Briefs is to present each Party with an opportunity to present its theory of the case based on the evidence that has been adduced during trial,

CONSIDERING FURTHER that Final Trial Briefs are ordered to be filed before Closing Arguments in part to allow the each Party an opportunity to respond to arguments put forward in the Final Trial Brief of the Opposing Party during its Closing Argument,

CONSIDERING that through the Motion, it could appear that Counsel for Vidoje Blagojevic has demonstrated a fundamental misconception of the role of the Judges as finders of fact and finders of law on matters in dispute in the current proceedings, as well as a fundamental misconception of the roles played by the Parties in assisting the Trial Chamber in determining matters at issue before it,7

CONSIDERING HOWEVER that it is difficult for the Trial Chamber to conclude that this is the case because Counsel for Vidoje Blagojevic has extensive domestic and international criminal law experience, and has previously demonstrated his proficiency in the areas of criminal procedure and evidence in this case,

CONCLUDING THEREFORE that Counsel for Vidoje Blagojevic has filed a frivolous motion,

RECALLING that Counsel for Vidoje Blagojevic has been warned on previous occasions that the filing of frivolous motions may result in the imposition of sanctions,8

PURSUANT TO Rules 44, 46, 54 and 86 of the Rules,

HEREBY DENIES the Motion, and

ADMONISHES Counsel for Vidoje Blagojevic for filing such a Motion, and for making such allegations regarding the professionalism and ethics of the members of the Prosecution team therein.

 

Done in English and French, the English version being authoritative.

________________
Judge Liu Daqun
Presiding

Dated this twenty-eighth day of September 2004,
At The Hague
The Netherlands

[Seal of the Tribunal]


1. See, Decision on Prosecutionís Motion to Admit Evidence in Rebuttal and Incorporated Motion to Admit Evidence under Rule 92 bis in Its Case on Rebuttal and to Re-Open its Case for a Limited Purpose, 13 September 2004, in which the Trial Chamber varied its Scheduling Order of 30 July 2004 and ordered that Final Trial Briefs be filed on 22 September 2004.
2. Motion, page 1, introduction.
3. Motion, para 6. See Motion, paras 1-6.
4. See, Response, paras 2-3, citing Prosecutor v. Kupreskic, Case No. IT-95-16-A, Appeals Judgement, 23 October 2001, para. 321 and Prosecutor v. Strugar, Case No. IT-01-42-T, Decision on the Defence Objection to the Prosecutionís Opening Statement Concerning Admissibility of Evidence, 22 January 2004.
5. Response, para. 4.
6. Response, para. 1.
7. Rule 87 ("Deliberations") of the Rules provides:
(A) When both parties have completed their presentation of the case, the Presiding Judge shall declare the hearing closed, and the Trial Chamber shall deliberate in private. A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.
(B) The Trial Chamber shall vote separately on each charge contained in the indictment. If two or more accused are tried together under Rule 48, separate findings shall be made as to each accused.
(C) If the Trial Chamber finds the accused guilty on one or more of the charges contained in the indictment, it shall impose a sentence in respect of each finding of guilt and indicate whether such sentences shall be served consecutively or concurrently, unless it decides to exercise its power to impose a single sentence reflecting the totality of the criminal conduct of the accused.
8. See, Decision on Blagojevicís Motion for Clarification, Case No. IT-02-60, 27 March 2003, para. 1, issued by the Bureau comprised of Judges Theodor Meron, Fausto Pocar, Richard May, Liu Daqun, and Claude Jorda; and Decision on Provisional Release Application by Blagojevic, Case No. IT-02-60-AR65.4, 17 February 2003, fn. 18. At the time that Counsel for Vidoje Blagojevic was warned that sanctions could be imposed for frivolous motions, Rule 46 (C) of the Rule provided: "In addition to the sanctions envisaged by Rule 46, a Chamber may impose sanctions against counsel if counsel brings a motion, including a preliminary motion, that, in the opinion of the Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof." This Rule was amended 28 July 2004 and this provision was removed.
The current Rule 46 provides: "Under the supervision of the President, the Registrar shall publish and oversee the implementation of a Code of Professional Conduct for defence counsel." The Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal, IT/125/Rev.1, 12 July 2002 ("Code"), provides in Article 20 ("Rules of the Tribunal"): "Counsel shall at all times comply with the Statute, the Rules, this Code or any other applicable law including such rulings as to conduct and procedure as may be issued by the Tribunal in its proceedings. Counsel shall at all times have due regard to the fair conduct of proceedings." Article 25 ("Meritorious Proceedings and Claims") of the Code provides: "Counsel shall not bring or defend a proceeding or action unless there is a basis for doing so that is not frivolous. It shall not be considered frivolous for counsel to defend a proceeding so as to require that every element of the case be established." See also, Article 23 ("Candour Toward the Tribunal") of the Code.