Judge David Hunt, Pre-Appeal Judge
Mr Hans Holthuis
9 July 2003
Dario KORDIC & Mario CERKEZ
DECISION ON APPLICATION BY CERKEZ FOR EXTENSIONS OF TIME AND PAGE LIMITS
Counsel for the Prosecutor:
Mr Norman Farrell
Counsel for the Defence:
Mr Mitko Naumovski, Mr Turner T Smith Jnr and Mr Stephen M Sayers for
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez
1. Mario Cerkez (“Cerkez”) seeks an extension of time and page limits in which to reply to the further response which the prosecution was permitted to file to his Rule 115 Motion.1 He seeks an extension of three days until 14 July in which to file his reply and an extension of pages so that his reply may contain twenty-five pages in all.2
2. Cerkez identifies the good cause which he must identify for the grant of this relief as follows:
(i) although the prosecution filed its response on Friday 4 July as required,
he did not receive that filing until Monday 7 July; and
(ii) the complexity of the further response now filed by the prosecution.
The prosecution has orally informed both the Appeals Chamber and Cerkez that it will not be filing an objection to the Motion.
3. As to (i), the Registry has informed the Appeals Chamber that the prosecution’s further response was not filed until late on Friday 4 July, and that authority was given within the Registry to those responsible for its distribution to wait until Monday 7 July to do so. The further response was not faxed to Cerkez until approximately 11.00 am on Monday 7 July. As Cerkez was not responsible for this delay, he should be permitted the seven days which had been given to him when the prosecution was granted leave to file the further response.3 The extension of time will therefore be granted.
4. As to (ii), Cerkez says that the further response now filed by the prosecution raises at least ten significant issues and that a proper reply to those issues “ will most probably require” a further review of the trial judgment, “possibly a review of transcripts and admitted exhibits”, and consideration of the jurisprudence of the Tribunal and other sources of law.4 He points to his obligation to file a sufficiently detailed reply which will assist the Appeals Chamber in identifying all of the arguments,5 and that a “proper” reply would require “extensive argument and/or references to the trial records, to the proceeding briefs as well as to the Tribunal’s jurisprudence and the Judgment”.6 He says that it is not possible for him to achieve this in the ten pages permitted, and that he estimates that he will need a maximum of twenty-five pages in which to make his reply.7
5. The prosecution was permitted to file a further response of forty pages, but the document filed is only thirty-two pages. That further response did not, as Cerkez appears to be suggesting, raise ten significant issues for the first time . It responds to the ten new issues which Cerkez had himself raised for the first time in his original reply. Except for the general claim made by the prosecution that the motive of Cerkez in raising these ten issues for the first time in his original reply was to undermine the cogency of its original response, there is nothing new in the further response. That general claim appears to have been induced by similarly unfortunate claims made by Cerkez in these proceedings concerning the prosecution’s motives, and (so far as it could possibly be relevant) it could be met by a simple admission or denial. In my view, a reply of twenty-five pages to such a response is excessive.
6. Counsel for Cerkez must keep it firmly in mind that a “proper” reply is necessarily limited to dealing with matters in the response which go beyond the matters raised in the original motion, by contradicting or explaining those matters stated in the response. (In the present case, this would include the matters raised for the first time in the original reply filed by Cerkez.) A reply does not permit the moving party to deal with matters which should have been dealt with in the motion (or, in the present case, in the original reply). The sorry history of these Rule 115 proceedings has been caused almost entirely by the failure of Cerkez to deal in his original
motion with matters which he should have dealt with there. As a result of that failure, it was necessary for him to deal with the many new issues in his original reply which should have been dealt with in his motion. He is not going to be given the opportunity to repeat that performance.
7. I am satisfied that an extension of the page limit of ten pages is warranted, but that a reply of twenty pages in all will be more than sufficient to enable Cerkez to give to the Appeals Chamber the assistance to which it is entitled from counsel .
8. Cerkez is to file his reply to the prosecution’s further response on or before 14 July 2003, and such reply may contain up to twenty pages.
Done in English and French, the English text being authoritative.
Dated this 9th day of July 2003,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]