Case: IT-98-30/1-A

IN THE APPEALS CHAMBER

Before: Judge David Hunt, Pre-Appeal Judge

Registrar: Mr. Hans Holthuis

Decision of: 22 April 2002

PROSECUTOR

v

Miroslav KVOCKA, Milojica KOS, Mladjo RADIC,
Zoran ZIGIC & Dragoljub PRCAC

___________________________________________________

DECISION ON FILING OF CONSOLIDATED RESPONDENTíS BRIEF

___________________________________________________

Counsel for the Prosecutor:

Mr Norman Farrell

Counsel for the Defence:

Mr Krstan Simic for Miroslav Kvocka
Mrs Jelena Nikolic for Milojica Kos
Mr Toma Fila for Mladjo Radic
Mr Slobodan Stojanoic for Zoran Zigic
Mr Jovan Simic for Dragoljub Prcac

1. The appeal in this case arises from a trial in which the five appellants were jointly charged with serious violations of international humanitarian law. All were convicted, and all have appealed. Each has filed or has yet to file a separate Appellantís Brief.

2. In a document filed for a related purpose1, the prosecution informed the Appeals Chamber of its intention to file what is called a "Consolidated Response Brief" to each of the "Appeal Briefs" filed by the appellants2, and that, as a result of the additional time sought by the appellant Zoran Zigic to file his Appellantís Brief, the prosecution would file such document forty days from the filing date of the last Appellantís Brief3.

3. Two of the appellants, Mladjo Radic and Dragoljub Prcac, have objected to this statement of intention, and they request an order that the prosecution respond within forty days of the date upon which they filed their Appellantís Briefs, 11 April 20024.

4. The prosecution has now sought leave to file a response to the objection by those two appellants5.

5. Before dealing with the issues raised by the parties, it is worth reminding them that it would assist clarity if they consistently used the terminology of the Rules of Procedure and Evidence ("Rules"). In relation to an appeal, the appellant files a "notice of appeal" which sets forth his "grounds of appeal" (Rule 108). He then files his "Appellantís brief" (Rule 111), to which the opposite party responds with a "Respondentís brief" (Rule 112) and to which the appellant may reply with his "brief in reply" (Rule 113). Where a party seeks relief in relation to anything during the course of preparation for the appeal, he or it files a "motion", to which the other party may file a "response" and the moving party may file a "reply" to that "response" (Rule 126bis). It does not assist if relief is sought, as it is so often done, by a "Request", to which a "Response" is filed and then a "Response" is filed to that "Response". Notwithstanding that the Rules refer to "grounds of appeal" and to a "brief", "motion", "response" and "reply" in lower case initial letters, the title of a document may appropriately be given an upper case initial letter. It would also assist clarity if the parties gave shorter titles to the documents filed. A recent example in another case will demonstrate what I mean when I say that these titles are getting out of hand6:

Appellant Dario Kordicís Reply to Tihomir Blaskicís Response to Dario Kordicís Request for Assistance of Appeals Chamber in Gaining Access to Appellate Briefs and Non-Public Post-Appeal Pleadings and Transcripts Filed in Prosecutor v Blaskic.

6. The situation which led to the current problem was that the appellants had been granted an extension of time in which to file their Appellantís Briefs by reason, in part, of the delay in the translation of the Trial Chamberís judgment into the B/C/S language, which is the language understood by each of the appellants7. This translation was not produced within the time originally advised, and the appellant Zoran Zigic sought a further extension8. An extension was granted to each of the appellants until 31 May 2002 in which to file his Appellantís Brief9. Four of the five appellants, however, have now filed their Appellantís Briefs within the time originally granted without waiting for the B/C/S translation of the Trial Chamberís judgment (and despite their claim that such a translation was necessary for the drafting of those Appellantís Briefs)10.

7. The order sought in the Response is based upon Rule 112, which requires a Respondentís Brief to be filed within forty days of the filing of an Appellantís Brief11, and upon the arguments:

(1) that it is "in interest of justice and fair and expeditious trial" that the prosecution keep to that time limit regardless of the fact that the other appellants are filing their Appellantís Briefs at different times12, and

(2) that the prosecution is required to file individual Briefs in Reply to each Appellantís Brief Ė

"[Ö] having in mind circumstances in each case, avoiding general and unspecified allegations, inherent to consolidated written submissions"13.

8. The rules relating to "Appellate Proceedings" (Part Seven of the Rules) do not contemplate proceedings in which there is more than one appellant, but the Practice Direction on the Length of Briefs and Motions does14. It provides, in par I(C)1 ("Merits appeals"), for a Consolidated Appellantís Brief to be filed by the prosecution where there is more than one respondent15, and for a Consolidated Respondentís Brief where there is more than one appellant16.

9. Contrary to the submission by the appellants, such a consolidated pleading may well facilitate comprehension and promote an expeditious processing of the matter17. The interests of justice are better served by having issues common to all appeals dealt with in the one document, where the relevant principles can be applied to each of the different cases at the one time. There are already apparent in the Appellantís Briefs in the present appeal a number of common (or at least very similar) allegations of errors of law and fact18, so that the decision of the prosecution to file a Consolidated Respondentís Brief was wholly appropriate in this case.

10. It is not immediately apparent why the adoption of such a consolidated pleading will impede either a fair or an expeditious appeal, as alleged by the appellants, as the appeal will not be heard until the pleadings are complete in relation to all of the appellants. There is, however, one matter to which attention should be drawn in the particular circumstances of the present case. The Practice Direction also provides, in the same paragraph, that the time-limit for filing a Consolidated Respondentís Brief "shall run from the filing date of the last appellantís brief". This is entirely reasonable in the usual case where all of the opponentsí briefs may be expected to be filed at around the same time, and it is necessary only to provide that date as the specific point at which time begins to run so that the prosecution is not out of time for its Respondentís Brief in relation to those appellants who filed their Appellantís Briefs a day or so earlier than the date upon which the last Appellantís Brief was filed.

11. In the present case, four out of the five appellants have filed their Appellantís Briefs by 12 April 2002. The appellant Zoran Zigic now has until 31 May in which to file his Appellantís Brief. The prosecution therefore already has forty-eight days in which to prepare its Consolidated Respondentís Brief relating to those four appellants before the time-limit of forty days allowed by Rule 112 even begins to run. The common issues of law and fact already apparent are likely to be common also to the Zigicís Appellantís Brief filed. Just as the incremental increase in the page-limit for a Consolidated Respondentís Brief in relation to each additional appellant is considerably less than the page-limit imposed for a Respondentís Brief where there is a single appellant19, it is reasonable to apply a similar but not identical increase in the time-limit given to the prosecution in which to file its Consolidated Response Brief where there are multiple appellants if it is shown to be necessary.

12. In the present case, the Appellant Zoran Zigic already has an increase in the page-limit for his Appellantís Brief from 100 to 130 pages (or 30,000 words to 39,000 words, whichever is the greater), by reason of the number of alleged inconsistencies and errors in the Trial Chamberís judgment20. It is thus reasonable to assume that the prosecution may need more time than it would otherwise have needed to respond to Zoran Zigicís Appellantís Brief. A total of eighty-eight days nevertheless appears at the present time to be a somewhat excessive period for the prosecution to prepare a Consolidated Respondentís Brief, even one concerning five appellants. In those circumstances, it is appropriate for the appellantís Response to be interpreted as a motion to reduce the forty days from the time when the Appellantís Brief of Zoran Zigic is filed as provided by the combined operation of Rule 112 and par I(C)(1) of the Practice Direction, and at least to consider whether good cause for such a reduction has been shown in accordance with Rule 127(A)(i).

Disposition

13. The prosecution is therefore directed to file a memorandum on or before 10 June 2002 Ė by which time it will have the Appellantís Brief of Zoran Zigic and have had the opportunity to consider how long it reasonably needs to file its Consolidated Respondentís Brief Ė indicating the time which it reasonably needs to do so. The order sought by the appellants Mladjo Radic and Dragoljub Prcac is refused, and their application pursuant to Rule 127(a)(i) for the time in which the prosecution must file its Consolidated Respondentís Brief to be reduced is deferred until the prosecution has filed that memorandum.

 

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

Dated this 22nd day of April 2002,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Pre-Appeal Judge

[Seal of the Tribunal]


1 - Prosecution's Response to Zoran Zigic's "Second Motion to Extend Time for Filing Appellant's Brief" Filed on 8 April 2002 and Prosecutions Notice of Intention to File a Consolidated Response Brief, 11 Apr 2002 ("Notice").
2 - Ibid, par 2.
3 - Ibid, par 7.
4 - Defence Response to Prosecution's Notice of Intention to File a Consolidated Response Brief, 12 Apr 2002 ("Objection"), par 5.
5 - Prosecution's Application for Leave to File a Response to Mlado [sic] Radic and Dragoljub Prcac's "Defence Response to Prosecution's Notice of Intention to File a Consolidated Brief" and Prosecution Response, 17 Apr 2002, par 5. As explained in pars 8-10 of the text, the prosecution has the right to file a Consolidated Respondent's Brief where appropriate (subject only to the power of the Appeals Chamber to direct it to do otherwise where it has done so inappropriately) and to file it 40 days after the filing date of the last Appellant's Brief (subject only to the power of the Appeals Chamber to reduce that period pursuant to Rule 127(A)(i)). The Objection filed by the appellants has therefore been interpreted as a motion to have separate Respondent's Briefs filed within 40 days of each Appellant's Brief, and the prosecution's document dated 17 Apr 2002 is validly filed as a response to that motion. Leave is not required.
6 - Prosecutor v Blaskic, IT-95-14-A, 4 Mar 2002. A title which would have sufficiently identified the document would have been "Reply by Dario Kordic in Motion for Assistance to Gain Access" - 11 words instead of 36 words. The prosecution is also guilty of this practice. A recent example is:

Prosecution's Response to Pleadings Entitled "Memorandum in Support of Oral Request for Guidance as to Rule 92bis" Filed by the Accused Brdanin and "General Talic's Objection to the Admission of the Rule 92bis Statements" Filed by the Accused Talic.

7 - Prosecutor v Brdjanin & Talic, IT-99-36-T, 20 Mar 2002.
8 - Decision on Appellant Requests for an Extension of Time, 1 Feb 2002, p 2.
9 - Second Motion to Extend Time for Filling [sic] Appellant's Brief - Defence for the Accused Zoran Zigic, 8 Apr 2002.
10 - Decision on Appellant's Second Request for an Extension of Time, 11 Apr 2002, p 2.
Milojica Kos, dated 1 Apr 2002, filed on 2 Apr 2002; Mladjo Radic, dated 10 Apr 2002, filed 11 Apr 2002; Miroslav Kvocka, dated 10 Apr 2002, filed 11 Apr 2002; Dragoljub Prcac, 12 Apr 2002.
11 - Response, par 3.
12 - Ibid, par 4.
13 - Ibid, par 4.
14 - IT/184 Rev 1, 5 Mar 2002 ("Practice Direction").
15 - The Practice Direction uses the word "Appellee", which betrays its Unites States origins. However, it is not consistent with the use of "respondent" in the Rules, which should be preferred.
16 - The Practice Direction uses the expression "consolidated brief in response", which again is not consistent with the use of "Respondent's brief" in the Rules.
17 - Prosecutor v Kunarac et al, IT-96-23&23/1-A, Order on Page Limits, 7 Sept 2001, p 2.
18 - Reply, par 13.
19 - Practice Direction, par I(C)1.
20 - Decision on Appellant Request for Variance of Length of Appellant's Brief, 22 Mar 2002, p 2. The prosecution was invited to request an additional page limit for its Respondent's Brief.