IN THE APPEALS CHAMBER
Judge David Hunt, Presiding
Judge Fouad Riad
Judge Rafael Nieto-Navia
Judge Mohamed Bennouna
Judge Fausto Pocar
Mrs Dorothee de Sampayo Garrido-Nijgh
31 March 2000
Zejnil DELALIC, Zdravko MUCIC (aka PAVO), Hazim DELIC
and Esad LANDZO (aka ZENGA)
ORDER ON MOTION OF APPELLANTS HAZIM DELIC AND ZDRAVKO MUCIC FOR LEAVE TO FILE SUPPLEMENTARY BRIEF AND ON MOTION OF PROSECUTION FOR LEAVE TO FILE SUPPLEMENTARY BRIEF
Office of the Prosecutor:
Mr Upawansa Yapa
Mr Christopher Staker
Mr Norman Farrell
Counsel for the Defence:
Mr John Ackerman for Zejnil Delalic
Mr Tomislav Kuzmanovic and Mr Howard Morrison for Zdravko Mucic
Mr Salih Karabdic and Mr Tom Moran for Hazim Delic
Ms Cynthia Sinatra and Mr Peter Murphy for Esad Landzo
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 ("International Tribunal");
NOTING the Appellants-Cross Appellees Hazim Delics and Zdravko Pavo Mucics Motion for Leave to File Supplemental Brief and Supplemental Brief filed by the appellants Hazim Delic (Delic) and Zdravko Mucic (Mucic) on 17 February 2000 (Appellants Motion) in which Delic and Mucic seek leave to file a supplementary brief (Appellants Supplementary Brief") which would supplement in various ways the submissions made in their respective briefs in this appeal filed on 2 July 19991;
NOTING the Prosecution Response to the Motion by Hazim Delic and Zdravko Mucic to File a Supplemental Brief and Prosecution Motion to File a Supplemental Brief" filed by the Office of the Prosecutor ("Prosecution") on 28 February 2000 ("Prosecution Response" and "Prosecution Motion") in which the Prosecution opposes the Appellants Motion in part, and seeks to file its own supplementary brief ("Prosecution Supplementary Brief") in addition to its response brief filed in this appeal on 17 September 1999 ("Prosecution Response Brief");
CONSIDERING that the Appellants Motion seeks to introduce material falling within the following categories:
(i) submissions2, arising from
(a) three recent judgements of chambers of the International Tribunal3 delivered after the filing of the briefs, responses and replies in this appeal, and
(b) a decision of the Bureau dated 25 October 1999,4
which seek to supplement arguments made in relation to existing grounds of appeal or add further arguments in support of those grounds;
(ii) documents, contained in Exhibit A to the Appellants Motion, which are sought to be adduced as additional evidence in relation to certain grounds of appeal of Delic and Mucic relating to the qualification of Judge Odio-Benito to serve as a judge, and which were not previously submitted due to "administrative oversight";5
(iii) submissions6, based on the Kupreskic Judgement, alleging that the Trial Chamber in the present case erred in convicting the accused of "both grave breaches and violation of the laws and customs of war for the same acts";
NOTING that the Prosecution does not oppose the Appellants Motion insofar as it seeks to introduce the material filed in category (i) above, provided that the Prosecution is permitted time to file a brief in response;
CONSIDERING that it is desirable, for the accurate disposition of the present appeal, that the parties have an opportunity to brief the Appeals Chamber on all relevant jurisprudence of the International Tribunal and that it is therefore appropriate to grant leave to make the supplementary submissions referred to in category (i) above;
NOTING that the Prosecution does not oppose the admission of the documents referred to in category (ii) above, provided that it is permitted to respond to the material;
NOTING Rule 111 of the Rules which provides that an appellants brief of argument shall set out, inter alia, the grounds of appeal on which the appellant relies;
NOTING also Rule 127 of the Rules which provides that the Appeals Chamber may, on good cause being shown by motion, enlarge any of the time limits prescribed by the Rules;
NOTING that the Prosecution opposes the grant of leave to admit the submissions referred to in category (iii) above as they seek to raise a new ground of appeal, and submits that an extension to the time limit provided in Rule 111 should not be granted pursuant to Rule 127 on the basis that:
(i) "[t]o demonstrate good cause for adding a new ground of appeal out of time, a party must show, for instance, that the ground of appeal could not have been ascertained with due diligence earlier, and that the proposed ground of appeal, as a matter of law and/or fact, could arguably invalidate the judgement";
(ii) even where good cause is shown, the Appeals Chamber has a discretion as to whether to grant an extension, which should be exercised by reference to whether the addition of a ground of appeal will cause prejudice to the other party or otherwise be contrary to the interests of justice;
CONSIDERING that the submissions referred to in category (iii) above could only relate to an additional ground of appeal (Additional Ground of Appeal) which was not included in either of the briefs of argument filed by Delic and Mucic pursuant to Rule 111;
CONSIDERING that the Appellants Motion relies, in support of the Additional Ground of Appeal, on the Kuprekic Judgement which considers in some detail a legal issue which has not yet been pronounced upon by the Appeals Chamber;
CONSIDERING that the Kupreskic Judgement was delivered after the filing of the Appellants briefs of argument and replies and that in the present case this constitutes good cause for an extension of time;
CONSIDERING FURTHER that the question of whether leave to add a ground of appeal is not to be resolved by reference to any final determination of the merits of the proposed ground;
BUT CONSIDERING that, if upheld, the Additional Ground of Appeal would invalidate the convictions of the appellants on one or more of the different charges based upon the same acts;
AND CONSIDERING that the Prosecution Response identifies no basis on which the grant of leave to add the Additional Ground of Appeal would cause the Prosecution material prejudice, or otherwise be contrary to the interests of justice;
NOTING that the Prosecution, in the Prosecution Motion, seeks to file the Prosecution Supplementary Brief which would introduce an "additional substantive argument" ("Additional Prosecution Argument"), and certain supporting documents, to supplement its Prosecution Response Brief in relation to grounds of appeal raised by the appellants Mucic, Delic and Esad Landzo (Landzo);
NOTING that the Additional Prosecution Argument was not included in the Prosecutions Brief in Response filed pursuant to Rule 112 of the Rules;
NOTING the "Response of Appellant, Esad Landzo, to Prosecutions Request to File Supplemental Brief, and, if necessary, to File Supplemental Brief filed by appellant Lando on 6 March 2000 (Landzo Response) in which Lando submits that the Additional Prosecution Argument lacks merit but takes no position on the Prosecution Motion and responds substantively to the Prosecution Supplementary Brief in the event that leave to file the brief is granted;
NOTING that Mucic and Delic have not responded to the Prosecution Motion;
NOTING the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal which provides in par 11 that any response of the opposing parties be filed within ten days of the filing of any motions during appeals against judgment;
CONSIDERING that the admission of the Prosecution Supplementary Brief is therefore not opposed and that no challenge is made to the authenticity of the documents therein;
CONSIDERING that the question of whether leave to add an additional argument is not to be resolved by reference to any final determination of the merits of the proposed argument;
CONSIDERING FURTHER that the admission of the Prosecution Supplementary Brief would not cause material prejudice to any party;
CONSIDERING that it is necessary to allow for the Prosecution to file a response to the Additional Ground of Appeal and the matters raised and for Mucic and Delic to file a reply to any such response, and for appellants Mucic and Delic to reply to the Additional Prosecution Argument;
HEREBY ORDERS AS FOLLOWS:
1. Delic and Mucic are granted leave to add the Additional Ground of Appeal.
2. Delic and Mucic shall file a document identifying their amended grounds of appeal.
3. Delic and Mucic are granted leave to file the Appellants Supplementary Brief.
4. The Prosecution is granted leave to file the Prosecution Supplementary Brief.
5. Landzo is granted leave to file the response to the Prosecution Supplementary Brief, which was already filed with the Lando Response.
6. Any response by the Prosecution to the Appellants Supplementary Brief shall be filed by 4.30 pm on Monday, 17 April 2000.
7. Any reply by Delic and Mucic to any response made by the Prosecution pursuant to order 6 above shall be filed within 7 days of suchresponse being filed.
8. Any reply by the appellants Delic, Mucic and Lando to the Prosecution Supplementary Brief shall be filed by 4.30pm on Friday, 7 April 2000.
Done in English and French, the English version being authoritative.
Done this 31 March 2000
At The Hague,
[Seal of the Tribunal]