IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar: Mr Hans Holthuis
Decision of: 11 May 2001
Dario KORDIC & Mario CERKEZ
DECISION ON MOTIONS TO EXTEND TIME
FOR FILING APPELLANTS BRIEFS
Office of the Prosecutor:
Mr Upawansa Yapa
Counsel for the Defence:
Mr Mitko Naumovski for Dario Kordic
1 The background
1. The appellants, Dario Kordic (Kordic) and Mario Cerkez (Cerkez), seek an extension of time in which to file their Appellants Briefs.1 Rule 111 of the Rules of Procedure and Evidence ("Rules") requires such briefs to be filed within ninety days of filing the Notice of Appeal against judgment. Each appellant filed his notice of appeal on 12 March 2001.2 Rule 127 permits the Appeals Chamber, on good cause being shown, to enlarge any time prescribed under the Rules.
2 The application by Mario Cerkez
2. Cerkez has sought a suspension of the time limit imposed by Rule 111 until such time as the Office of the Prosecutor certifies to him that all witness statements and exculpatory evidence have been produced pursuant to Rule 66(A) and Rule 68," and/or pending the translation of the Trial Chambers judgment into the B/C/S language, whichever is the later. Alternatively, he has sought an extension of a further ninety days to the time limit imposed by Rule 111, making that time limit 180 days in lieu of ninety days.3 This alternative basis for relief is based upon the length and the complexity of the trial.4
3. The prosecution agrees that it would be appropriate to grant a suspension of the time limit imposed by Rule 111 until the Trial Chambers judgment becomes available in the B/C/S language,5 but it objects to any suspension continuing until it has produced all the material sought under Rules 66(A) and 68.6 The prosecution denies that it is under any obligation to produce any material to the accused under Rule 66(A) after judgment,7 but it concedes that it is under a continuing obligation to do so under Rule 68 even after judgment.8 The prosecution objects to any requirement that it give the certification sought by Cerkez.9 It also opposes the alternative application for an extension of ninety days,10 but it does not address the argument which Cerkez puts in support of that application.
4. In reply, Cerkez says that the language of Rule 66(A) is "neither complicated nor ambiguous" and that it does not exclude the prosecutions obligation to disclose "relevant material" to the defence in appellate proceedings.11
3 Rule 66(A)
5. Rule 66(A)(i) requires the prosecution to disclose to the defence, in a language which the accused understands, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the prosecution from the accused. That obligation must be satisfied by the prosecution within thirty days of the initial appearance of the accused. It can have no application after judgment has been given on that indictment.
6. Rule 66(A)(ii) requires the prosecution to disclose to the defence, again in a language which the accused understands:
[ ] copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all written statements taken in accordance with Rule 92bis [ ].
It requires "copies of the statements of additional prosecution witnesses" to be made available to the defence "when a decision is made to call those witnesses".
7. This obligation continues after judgment in relation to any witness whom the prosecution intends to call in proceedings following the judgment for example, during the course of an appeal, pursuant to Rule 115.12 The obligation is nevertheless restricted to the disclosure of the statements of witnesses (both their ordinary statements and any statements to be tendered in accordance with Rule 92bis), and then only when the intention to call those witnesses has been formed. The obligation imposed by Rule 66(A) does not include other material which is (or which may be) merely relevant to an appellants appeal, as Cerkez has argued. There has been no suggestion at this stage that the prosecution intends to call any evidence in the appeal.
8. Cerkez has accordingly failed to establish that the prosecution has any obligation of disclosure under Rule 66(A) at the present time.
4 Rule 68
9. Rule 68 requires the prosecution to disclose to the defence the existence of "evidence" known to the prosecution:
[ ] which in any way tends to suggest the innocence or mitigate the guilt of the accused or may affect the credibility of prosecution evidence.
The reference to "evidence" is not restricted to material in a form that would be admissible in evidence, but includes all information in any form which falls within the quoted description.13 This obligation continues after judgment, certainly in relation to proceedings before the Appeals Chamber.14 The prosecution has conceded this.15 Relief for a violation of that obligation, however, will not necessarily be granted where it is shown that the evidence is already accessible to the accused.16
10. Cerkez says that the prosecution has received "voluminous additional material" from the appellants in two associated "Lava Valley" cases,17 and through the prosecutions own investigation in the National Archives of the Republic of Croatia in Zagreb,18 yet no document has been produced to him.19 In his reply, Cerkez gave an expanded description to the material which he says is available:20
(a) alleged fighting between AbiH and HVO units in D.Veceriska, Vitez and Stari Vitez on or about 16 April 1993; (b) the process and state of mobilization of troops for Viteka brigade performed by a civilian branch of the Municipality of Vitezs HVO on or about 16 April 1993; (c) the participants of the military meeting held at OZ CB offices in the afternoon of 15 April 1993 and the substance or agenda of that meeting (meeting at Blakics command post), etc.
He says that it is reasonable to expect that there is some exculpatory (Rule 68) material among the documents and/or witness statements currently in the possession of the prosecution.21 Cerkez submits that the prosecution had never made its position clear as to whether or not it does have any Rule 68 material in its possession.22
11. The prosecution, after acknowledging again its obligation under Rule 68, says that, both before and after judgment was given by the Trial Chamber in the present case, it has:23
[ ] conducted searches in in-house existing material, incoming material and closed session evidence that may be related to the case. So far, no material that may reasonably be considered to fall within the scope of Rule 68 has been identified. The Prosecution intends to continue to undertake these efforts in order adequately to comply with its duties under Rule 68, and will disclose to the Appellant any material that appear [sic] to fall within the purview of the Rule.
12. The generality of that statement would ordinarily suggest that the reference to incoming material was intended to include the material to which Cerkez has referred from the two associated "Lava Valley" cases and the Zagreb Archives. If that were intended, such a statement would have constituted a sufficient answer to the implied allegation by Cerkez that the prosecution is already in default of its obligations under Rule 68. However, bearing in mind the issue which has been raised in relation to that material, it would certainly have been preferable for the prosecution to have referred to it expressly. The absence of any such express reference in these circumstances does raise some question as to whether the prosecution did indeed intend to include that material within the phrase "incoming material".
13. The possibility that this material was not intended to be included in the passage quoted is heightened by the prosecutions subsequent express reference to this material. It says of the material stemming from the Zagreb Archives albeit in the context of a further acknowledgement of its obligation under Rule 68 that this material:24
[ ] is fully accessible to the Appellant, and [ ] the Appellant has proffered during his trial material obtained from this particular source.
This could be taken as suggesting that, as referred to in paragraph 9 (supra), the prosecution is submitting that relief for any violation of its obligation under Rule 68 should be refused because the material is already accessible to Cerkez.
14. There should be no possibility of misunderstanding in relation to this issue. It would have been very simple for the prosecution to have said, expressly, that it has been and is still searching through the material which it has received in relation to the two associated "Lava Valley" cases and from the Zagreb Archives, and that, so far, no material which may reasonably be considered to fall within the scope of Rule 68 has been identified. The considerable strain which the need to make such searches places upon the resources provided to the prosecution is accepted. However, Rule 68 performs an important function. The prosecution is required to carry out these searches because of its superior access to material which may be exculpatory in character. It forms part of the prosecutions duty as "ministers of justice assisting in the administration of justice", upon which the prosecution relies in another context in relation to these Motions,25 to assist an accused in this way. The prosecutions obligation under Rule 68 is not a secondary one, to be complied with after everything else is done; it is as important as the obligation to prosecute.
15. The issue as to the prosecutions compliance with Rule 68 in relation to these particular materials having been raised, and in the light of problems concerning discovery which apparently did arise at the trial, the Appeals Chamber is entitled to have a clear assurance from the prosecution to the effect stated in paragraph 14, supra. Such assurances are regularly sought, and given without difficulty, during Status Conferences held pursuant to Rule 65bis. Such an assurance need not be in the form of a certificate as sought by Cerkez, but it should be in writing.
5. The application by Dario Kordic
16. Kordic seeks only an extension of ninety days in which to file his Appellants Brief,26 which would make the time limit imposed by Rule 111 a total 180 days in lieu of ninety days. Beyond joining in the Cerkez Motion, he adds no argument in support of his application. The prosecution in its Response dealt with both Motions as if they were the same (designating both as "the Defence Motion").27 It did not direct any separate attention to the Kordic Motion, which adopted only the last of the alternative forms of relief sought by Cerkez. As stated earlier, this form of relief is opposed by the prosecution without addressing the argument put by Cerkez in support of that particular application.28 It is, however, clear from the prosecutions acceptance of a suspension of the time limit imposed by Rule 111 until the Trial Chambers judgment becomes available in the B/C/S language that such was also intended to be an acceptance that Kordic too should have any extension which Cerkez should have.
6. The length of the extension of time to be granted
17. The agreement between the parties that there should be a suspension of the time for filing their Appellants Briefs does not ensure an acceptance by the Appeals Chamber of what has been agreed. The prosecution has also filed a Notice of Appeal,29 and it is obviously in its interests too to have the additional time agreed. However, delay in the disposition of an appeal can be just as contrary to the interests of justice as delay in the disposition of a trial.
18. The first issue is whether the delay in the receipt of the Trial Chambers judgment in a language which the accused understands justifies a complete suspension of work on the
Appellants Brief. Where the judgment is already available in a language which counsel for the accused speaks, it is not in the interests of justice that nothing should done until the accused is able to read the judgment.30 It is significant, for example, that, whereas Rule 72 imposes a time limit for preliminary motions which runs from the disclosure to an accused of the material which accompanied the indictment when confirmation was sought in a language which the accused understands, Rule 111 imposes a time limit for the Appellants Brief which runs indirectly from the pronouncement of the judgment, in whatever language it is written. A complete suspension until the judgment is available in a language which the accused understands would not be appropriate, as counsel would be able to commence the preparation of the appeal,31 although some allowance must be made for the fact that the appellant has not had the same time to read and consider the judgment. It is understood that the B/C/S translation of the Trial Chambers judgment will be available next month.
19. The second issue is whether the circumstances of this appeal are such that it falls outside the category contemplated by the time limit for filing Appellants Briefs imposed by Rule 111. Not every appellant is entitled to an extension of that time limit. It was certainly a very long trial, but that is rarely sufficient ground for an extension of time when (as is the case here) counsel briefed on the appeal also appeared at the trial. However, the Trial Chambers judgment does suggest that the trial was indeed a complex one.
20. Taking into account the matters discussed in the two preceding paragraphs, it would be reasonable to extend the time limit for filing the Appellants Briefs to Thursday 9 August 2001. Such an extension would apply also to the time limit for the filing of the Appellants Brief by the prosecution.
7 The production of material
21. If the material in question is not presently accessible to the appellants, and if the appellants can demonstrate that they require access to it for a legitimate forensic purpose, it is open to them to make an application independently of Rules 66(A) and 68 for such access. They would have to demonstrate that such access is likely to assist their case materially, or that there is at least a good chance that it will give that assistance.32
22. If, after having examined that material, the appellants believe that there are additional arguments or grounds of appeal available to them, it is open to them to make an application to add those arguments or grounds of appeal to their Appellants Briefs already filed. But it is not in the interests of justice to delay the filing of the Appellants Briefs merely because of the possibility that such additional arguments or grounds of appeal may be discovered in that material.
23. The Appeals Chamber orders
(1) that the time limit imposed by Rule 111 for the filing of Appellants Briefs be extended until 9 August 2001, and
(2) that the prosecution file on or before 21 May 2001 a written assurance that it has been and is still searching through the material which it has received in relation to the two associated "Lava Valley" cases and from the Zagreb Archives, and that, so far, no material which may reasonably be considered to fall within the scope of Rule 68 has been identified, but it otherwise refuses the relief sought.
Done in English and French, the English text being authoritative.
Dated this 11th day of May 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]