Case No.: IT-96-23 & 23/1-A

BEFORE THE PRE-APPEAL JUDGE

Before: Judge Mohamed Shahabuddeen, Pre-Appeal Judge

Registrar: Mr. Hans Holthuis

Order of: 3 September 2001

THE PROSECUTOR

v.

Dragoljub KUNARAC
Radomir KOVAC
and
Zoran VUKOVIC

________________________________________________________

DECISION ON PROSECUTION REQUEST FOR EXTENSION OF TIME, NOTICE OF FILING RESPONDENT BRIEFS OVER 100 PAGES AND, IF NECESSARY MOTION TO EXCEED PAGE LIMIT OF PROSECUTIONíS RESPONSE BRIEFS

________________________________________________________

Counsel for the Prosecutor:

Mr. Upawansa Yapa

Counsel for the Appellants:

Mr. Slavisa Prodanovic and Ms. Maja Pilipovic for Dragoljub Kunarac
Mr. Momir Kolesar and Mr. Vladimir Rajic for Radomir Kovac
Mr. Goran Jovanovic and Ms. Jelena Lopicic for Zoran Vukovic

 

I, Mohamed Shahabuddeen, Judge of the Appeals 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 ("the Appeals Chamber") and Pre-Appeal Judge in this matter,

BEING SEIZED of the "Prosecution Request for Extension of Time, Notice of filing Respondent Briefs over 100 pages and, if necessary Motion to Exceed Page Limit of Prosecutionís Response Briefs", filed by the Prosecution on 10 August 2001 ("the Request");

NOTING that, in the Request, the Prosecution requests that "(i) an extension of time be granted for filing its response to the appeal brief of the Appellant Vukovic, (ii) the Prosecution be permitted to file an appeal brief totalling 160 pages as this is within the total page limit as permitted by the Practice Direction referred to below, and (iii) if necessary, the Appeals Chamber authorize the Prosecution to file a response of approximately 160 pages";

NOTING that the Prosecution argues that, on a correct interpretation of the Practice Direction on the Length of Briefs and Motions (IT/184) of 19 January 2001 ("the Practice Direction"), it is entitled to file a consolidated brief of approximately 160 pages in respect of all three appellants, alternatively that it seeks the authorization of the Appeals Chamber to do so and that it gives these reasons:

"(a) the three appeal briefs total approximately 260 pages;

    (b) all three appellants accused raise similar errors of law and fact regarding the threshold aspects of Art 3 and Art 5;

    (c) the errors of fact relate mainly to existence of armed conflict, nexus between the accusedsí actions and armed conflict, and the existence of a widespread and systematic attack on civilian population, and accusedís knowledge of these attacks;

    (d) the Appellantsí Briefs include wide-ranging references to the evidence at trial, including defence evidence which, in the Prosecutionís submission, the Trial Chamber must have rejected to come to their conclusions;

    (e) there are several errors of law are raised, including the legal test for nexus, and mens rea for Article 5 crimes;

    (f) looking to the appeal by Kunarac as an example, the Prosecution in formulating its response has identified 15 grounds of appeal to which it is responding, including alibi. Many of the grounds of appeal require cross checking the testimony of both Prosecution and defence witnesses.";

NOTING that the appellants Vukovic, Kunarac and Kovac have not filed a response to the Request;

NOTING that, after the Request was brought but before the expiry of the applicable time-limits, the Prosecution filed (i) the "Prosecutionís Respondentís Brief in Relation to ĎAppellantís Brief for the Accused Zoran Vukovic Against Judgement of 22 February 2001í" on 13 August 2001 of 35 pages, and (ii) the "Prosecutionís Consolidated Respondentís Brief" of 162 pages, in respect of the appellants Kunarac and Kovac, on 15 August 2001;

NOTING that the first part of the Request, in which the Prosecution asked for an extension of time for filing its response to the appeal brief of the Appellant Vukovic, is now moot in view of the circumstance that the Prosecutionís response to his appeal brief has been timeously filed;

NOTING that, accordingly, there remain only the second and third parts of the Request and that these now only concern the Prosecutionís Respondentís Brief to the appeal briefs filed by Kunarac and Kovac;

NOTING that paragraph (C)1(b) of the Practice Direction provides that "[t]he response of an appellee on an appeal from a final judgement of a Trial Chamber will not exceed 100 pages or 30,000 words, whichever is greater";

CONSIDERING that paragraph (C)1(b) of the Practice Direction, viewed in the light of the case-law1 of the Appeals Chamber, means that a Prosecution response to multiple appellants in the same proceedings instituted by the Prosecution must not, in total, exceed the limit of 100 pages or 30,000 words, whichever is greater;

CONSIDERING that, where there is difficulty in giving effect to this interpretation, remedial action can be taken by the Appeals Chamber, as may be appropriate, under the Rules of Procedure and Evidence or the Practice Direction or (to the extent that this has not been displaced) in exercise of the competence2 of the Appeals Chamber to regulate its procedure, the object being to secure a reasonable and sensible basis for doing its work consistent with the efficient use of judicial time;

CONSIDERING in particular that, under paragraph (C)7 of the Practice Direction, the Appeals Chamber may give authorization to a party to exceed the specified page-limit if there are exceptional circumstances;

FINDING that there are exceptional circumstances for giving such authorization in this case;

DEEM AND ACCEPT the "Prosecutionís Consolidated Respondentís Brief" as having been validly filed in respect of the Appellants Kunarac and Kovac with the authorisation of the Appeals Chamber;

 

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

_____________________________
Mohamed Shahabuddeen
Pre-Appeal Judge

Dated this third day of September 2001
At The Hague
The Netherlands

[Seal of the Tribunal]


1 - See Prosecutor v. Kupreskic, et al., IT-95-16-A, Order, 2 July 2001 and Prosecutor v. Dario Kordic & Mario Cerkez, IT-95-14/2-A, 30 August 2001.
2 - A reservation is made in respect of possible argument that, in exercise of the competence to regulate its procedure, the Appeals Chamber may order multiple parties with identical interests and on the same side to withdraw separate but duplicating briefs and, in their place, to file a single brief on common points to be supplemented where necessary by separate briefs on divergent points. See the general thinking in Fed. R. App. P. Rule 32 (as reprinted in the United States Code); United Sates of America v. Bradly S. Ashman et al., 964 F. 2d 596; 1992 U.S. App. Lexis 8640; and United States of America v. Miguel Torres, et al,. 170 F. 3d 749; 1999 U.S. App. Lexis 4552. The matter may be put on the basis of a rule, as in the case of USCS Ct App 9th Cir, Circuit R 28-4 (2001) and USCS Ct App 9th Cir, Circuit R 28-5 (2001), but the argument is open that the absence of a rule does not prevent the court from exercising its inherent power to regulate its procedure.