Before:
Judge David Hunt, Pre-Appeal Judge

Registrar:
Mr Hans Holthuis

Decision of:
16 June 2003

Counsel for the Prosecutor:

Mr Christopher Staker

Counsel for the Defence:

Mr Krstan Simic for Miroslav Kvocka
Mr Toma Fila for Mlado Radic
Mr Slobodan Stojanovic for Zoran Zigic
Mr Jovan Simic for Dragoljub Prcac

1. In this somewhat prolonged application by three of the four remaining appellants for the admission of additional evidence in support of their appeals against conviction – pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”) – the appellant Zoran Zigic (“Zigic”) filed a Reply.¹ The prosecution, in a filing in associated proceedings pursuant to Rule 115, took exception to this Reply upon the basis that it contained matters which (it was said ) called for a reply, and it sought leave to respond to those points.² In the same document, the prosecution set out its further response,³ which dealt with four (or perhaps five) issues.

2. The prosecution was granted leave to file a further response to just two of these issues upon the basis that they were the only new issues raised in the Reply.⁴ They were: (a) the argument in par 6 of the Reply that the prosecution had been in breach of its obligations of disclosure pursuant to Rule 68, and (b) the argument in par 9 of the Reply that the three prior statements of the witness are admissible as additional evidence in order to strengthen the credibility of the witness.⁵ It was also stated in the Decision:⁶

As the argument proposed to be put as outlined in the Supplementary Response in relation to the second of those matters does not deal with the possibility that the conduct of the trial may have made prior consistent statements of the witness admissible, and as the Appeals Chamber will need assistance from counsel on this issue, the prosecution is required to file a separate Further Response to the Reply in which it isolates (and, if thought advisable, expands) its submissions on these two issues.⁷

3. The document which has now been filed pursuant to that Decision contains (apart from an Annex, which is not counted) the title page, twelve full pages of submissions and a further page which contains one and a half lines of submissions, the signature of counsel and the date.⁸ Included in the document itself is an application for an extension of four pages to the ten pages (including the title page) allowed for a response to a motion by the Practice Direction on the Length of Briefs and Motions.⁹ The “exceptional circumstances”, which a party must identify in order to obtain an extension,¹⁰ are said to be that the second of the issues (the admissibility of the prior consistent statements of the witness) “requires research; discussion and analysis of the relevant jurisprudence”.¹¹

4. The prosecution has not complied with the Practice Direction, in that authorisation for filing an oversized document must be sought in advance,¹² but I would not dismiss the application for an extension of the page limit upon that basis alone in the circumstances of the present case. The problem lies in the merits of the application itself.

5. The thirteen pages which the prosecution has now filed concerning the two issues in relation to which it was granted leave to file a further response may be compared with the material contained in the Application for Leave in relation to the four (or perhaps five) issues in relation to which leave was sought, which covered less than two pages. There is a great deal of wasted effort in the Further Response now filed:

(1) In relation to the first of the two issues for which leave was granted (“the argument in par 6 of the Reply that the prosecution had been in breach of its obligations of disclosure pursuant to Rule 68”), the Decision granting leave stated that this issue was “a new one, and the prosecution is entitled to explain the circumstances of the disclosure which was made at that time”.¹³ This the prosecution has done, in pars 7-18 of the Further Response, covering just over three pages. This was a reasonable addition to what had been stated in the Application for Leave – except for par 10, which is wholly repetitive of what is said in pars 7-8. The prosecution has, however, also spent almost a page under the same heading making submissions concerning the issue of due diligence (pars  5-6), which was an issue upon which leave had been refused.

(2) In relation to the second of the two issues (“the argument in par 9 of the Reply that the three prior statements of the witness are admissible in order to strengthen the credibility of the witness”), the Decision granting leave stated that, as the material contained in the Application for Leave “does not deal with the possibility that the conduct of the trial may have made prior consistent statements of the witness admissible”, the prosecution could expand its submission on this issue as well as the first, as the Appeals Chamber “will need assistance from counsel on this issue”.¹⁴ This the prosecution has done, in pars 20-44, covering just over six pages. Of these pages, about five consist of submissions dealing with the admissibility of prior consistent statements of a witness, a matter upon which it was hardly necessary to elaborate (and certainly not as excursively as it was elaborated here). The only assistance which has been given upon the issue which had been sought – as to whether the conduct of this particular trial had made the prior consistent statements admissible – is given in par 43, in the last sentence:

There was no need for the prosecution to challenge or impeach the witness’s credibility by way of previous inconsistent statements at trial, thus offering a possible basis for the defence to admit previous consistent statements.

This submission was permissibly elaborated in the rest of par 43. The remainder of pars 39-44, about a page and a half, was relevant material in further response .

6. In these circumstances, as I stated at the Status Conference:

(a) leave to exceed the page limit by four pages is refused; and

(b) a Further Response which complies with the Practice Direction may be filed on or before Thursday, 19 June 2003.

Zoran Zigic may file a reply to that Further Response within seven days upon which such response is filed.

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

Dated this 16th day of June 2003,
At The Hague,
The Netherlands.

______________
Judge David Hunt
Pre-Appeal Judge

[Seal of the Tribunal]