Case No. IT-95-9-A

IN THE APPEALS CHAMBER

Before:
Judge Mehmet Güney, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision:
27 September 2004

PROSECUTOR

v.

BLAGOJE SIMIC

________________________________

DECISION ON PROSECUTIONíS MOTION TO STRIKE PARTS OF THE BRIEF IN REPLY

________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell
Mr. Mark J. McKeon

Counsel for the Appellant:

Mr. Igor Pantelic
Mr. Peter Murphy

 

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,

NOTING the Judgement rendered in this case by Trial Chamber II on 17 October 2003;

NOTING the "Appellant Blagoje Simicís Notice of Appeal" filed on 17 November 2003 ("Notice of Appeal") and the "Appellate Brief of Blagoje Simic" filed on 17 June 2004 by Blagoje Simic;

NOTING the "Prosecutionís Response Brief" filed confidentially on 27 July 2004 ("Respondentís Brief");

NOTING the "Reply Brief of Blagoje SimicĒ filed partly confidentially on 10 August 2004 ("Brief in Reply");

BEING SEISED OF the "Prosecutionís Motion to Strike" filed by the Prosecution on 20 August 2004 ("Motion"), whereby the Prosecution moves the Appeals Chamber to strike paragraphs 14 to 16 of the Appellantís Brief in Reply on the grounds, inter alia, that:

  1. in these paragraphs, the Appellant raises a new submission in that the Trial Chamber should not have relied upon the words "acting in concert" because they were introduced into paragraph 13 of the Third Amended Indictment in a defective manner and that, therefore, "the form of the third amended Indictment must be regarded as being in doubt";
  2. as a result, the Brief in Reply exceeds the scope of a reply as defined by the Practice Direction on Formal Requirements for Appeals from Judgement of 7 March 2002 ("Practice Direction");
  3. moreover, the new submission "is not covered" by the Notice of Appeal;

NOTING that, in case the Motion is denied, the Prosecution requests leave to file a further response to the new submission within ten days from the Appeals Chamberís decision on the Motion;

NOTING the "Response of Blagoje Simic to Prosecutionís Motion to StrikeĒ filed on 27 August 2004, in which the Appellant opposes the Motion and submits that the argument developed in paragraphs 14 to 16 of the Brief in Reply do not exceed the scope allowed for a Brief in reply since the matter raised in these paragraphs is an issue relevant to a factual statement made in the Respondentís Brief regarding the addition of the words "acting in concert" in the Third Amended Indictment;

NOTING that the Appellant contends nevertheless that he does not object to the Appeals Chamber granting leave to the Prosecution to "make further submissions to explain its conduct in this matter", "subject to a right to reply briefly and within a short time frame";

NOTING the "Prosecutionís Reply to Response of Blagoje Simic to Prosecutionís Motion to Strike" filed on 30 August 2004, in which the Prosecution mainly argues that the Appellant "tries [Ö] to turn his reply into an Appeal Brief to which the Prosecution would respond and to which he then could reply" and that "this would result in a complete reversal of the applicable appeals procedure";

CONSIDERING that paragraph 6 of the Practice Direction provides that a Brief in reply is "limited to arguments in reply to the Respondentís Brief";

CONSIDERING that the argument developed by the Appellant in paragraphs 14 to 16 of his Brief in Reply is made in reply to the argument in the Respondentís Brief that the Appellant was put on notice by the Third Amended Indictment that he was charged with participating in a joint criminal enterprise;1

NOTING that the Appellantís second ground of appeal reads as follows:

"The Trial Chamber erred in law and abused its discretion by granting, over the objection of Dr. Blagoje Simic, the Prosecutionís Motion to Amend the Third Amended Indictment on 20 December 2001. This decision allowed the Prosecution to proceed against Dr. Simic without affording him sufficient notice of the allegation of Joint Criminal Enterprise. Accordingly, Dr. Simic was not apprised of the specific case against which he was required to defend, and he was, therefore, deprived of the opportunity to fully prepare his defense; thus, invalidating the decision. [Judgement, paragraphs 150-155 (pages 52-54), 1137 (page 347), Separate and Partly Dissenting Judgement of Judge Lindholm, para. 1-5 (pages 314-316)]. [Ö]"2

CONSIDERING that, in its decision of 20 December 2001, the Trial Chamber referred specifically to the fact that the words "acting in concert" were already contained in the Third Amended Indictment when it granted leave to the Prosecution to file a Fourth Amended Indictment and, inter alia, to include the words "acting in concert" in relation to Count 1 (Persecutions); 3

CONSIDERING that the argument developed in paragraphs 14 to 16 of the Brief in Reply raises the question of the validity of the inclusion of the words "acting in concert" in the Third Amended Indictment;

CONSIDERING, therefore, that this argument contained in the Brief in Reply is linked to some extent to the Appellantís second ground of appeal;

FINDING that the argument developed in paragraphs 14, 15 and 16 falls within the scope of a Brief in reply;

FOR THE FOREGOING REASONS,

  1. DISMISSES the Motion;
  2. DENIES leave to the Prosecution to file a rejoinder addressing the argument raised by the Appellant in paragraphs 14 to 16 of the Brief in Reply.

 

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

Dated this 27 day of September 2004,
At The Hague,
The Netherlands.

____________________
Judge Mehmet Güney
Presiding Judge

[Seal of the Tribunal]


1. Respondentís Brief, paragraph 2.7 and seq.
2. Notice of Appeal, "Second Ground of Appeal: Form of Indictment Ė Joint Criminal Enterprise", page 3, paragraph 4. Emphasis added.
3. Prosecutor v. Simic et al., Decision on the Prosecutionís Motion for Leave to amend the Indictment, 20 December 2001, paragraphs 22-25.