IN THE APPEALS CHAMBER
Judge Theodor Meron, Presiding Judge
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Inés Mónica Weinberg de Roca
Mr. Hans Holthuis
20 July 2004
DECISION ON PROSECUTIONíS MOTION TO DISALLOW A GROUND OF
APPEAL AND TO FILE A FURTHER RESPONSE
Counsel for the Prosecutor:
Mr. Norman Farrell
Counsel for the Defence:
Mr. Branko D. Lukic
Mr. John R. Ostojic
- Counsel for the Prosecution filed the "Prosecutionís Motion to Disallow
a New Ground of Appeal in zMilomir Stakićís Brief in Replyí and to File
a Further Response to the Brief in Reply" on 8 June 2004 ("Motion").
The Appellant, Milomir Stakic ("Appellant"), filed "Milomir
Stakicís Appellantís Response in Opposition to the Prosecutionís Motion to
Disallow a New Ground of Appeal" ("Response") and "Milomir
Stakicís Appellantís Motion for Leave to File His Response in Opposition to
the Prosecutionís Motion to Disallow a New Ground of Appeal, Instanter"
("Request for Leave to File Response") on 6 July 2004.
- The Response was due ten days after the filing of the Motion, thus on 18
June 2004.1 The filing on 6 July was therefore
18 days out of time. The Request for Leave to File Response contends that
the Appellant could not file his Response on time because one of the Appellantís
counsel did not receive the Motion until 17 June, due to the absence of counsel
from The Hague and "communications technical difficulties between defense
counselsí respective offices."2 Problems
of communication among the Appellantís counsel do not constitute good cause
for an extension of time. Even accepting that counsel only received the Motion
on 17 June, the Request for Leave to File Response does not explain why the
Response was not filed within ten days of that date, on or before 28 June
2004. Consequently, the Request for Leave to File Response is dismissed.
- The Motion first contends that the Appellantís Brief in Reply ("Reply
Brief") improperly expands one of his grounds of appeal. The Motion seeks
disallowance of the expanded ground or, in the alternative, leave to respond
- Ground II.B of the Appellantís Notice of Appeal ("Notice of Appeal")
asserts that the Trial Chamber erred in dismissing his motion for a mistrial
following certain alleged discovery violations by the Prosecution.3
The Appellantís Brief on the merits ("Appellantís Brief") set forth
the factual predicate of this ground of appeal:
161. Essentially, after the conclusion of the Prosecutionís case in chief,
the Prosecution disclosed over thirty witness statement excerpts from crucial
witnesses pursuant to Rule 68, including significant exculpatory material,
which had been in the possession of the Prosecution, before the commencement
of trial, and which had not been previously identified, or disclosed, despite
requests from the Defense. These statements were exculpatory and contradicted
the evidence and arguments advanced by the Prosecution.
166. This violation on the part of the Prosecution resulted in the inability
of the defense to properly prepare for trial. While the Prosecution had in
excess of two years to analyze the statements and evidence which formed the
backdrop of its case, the defense was not given an opportunity to have prompt
and full access to the same, and thus was denied the opportunity to confront
witnesses and cross examine them based on the non-disclosed material. These
violations of the Tribunalís statute and rules by the Prosecution both separately
and collectively warrant that Stakic be granted a new, and fair trial.4
- The Appellantís Brief therefore focused on the discovery of matters that
were subject to his mistrial motion, i.e. the statements that were disclosed
following the close of the Prosecutionís case in chief.
- In the Reply Brief, however, the Appellant raised a new objection, namely
that the Prosecution improperly failed to disclose any materials relating
to his co-perpetrators. The Appellant contends not that the Prosecution disclosed
such materials belatedly, but that no such materials were disclosed at all:
63. It is respectfully submitted inasmuch as the trial chamber found Milomir
Stakić guilty as an "indirect co-perpetrator" the Prosecution
to this day has not produced any Rule 68 materials in its possession of these
alleged co-perpetrators such as Simo Drljaca, Milan Kovačević, Colonel
Vladimir Arsić, and Major Radmilo éeljaja.
64. The Prosecutionís narrow interpretation of the requirements of Rule
68, in a case of co-perpetratorship, only to provide materials relating to
Milomir Stakic reveals and demonstrates the realization that a fair trial
was denied and the Prosecutionís streamlined tactic of self-governance is
flawed. Recently the Appeals Chamber in Krstic stated that it "Ö
will not tolerate anything short of strict compliance with disclosure obligationsÖ"
65. It is respectfully submitted that the Prosecutionís dilatory tactics
and refusal to disclose any Rule 68 materials relating to alleged co-perpetrators
denied Appellant a right to a fair trial, which constitutes a miscarriage
of justice, thereby invalidating the judgement of 31 July 2003.5
The Appellant also mentions the non-disclosure of materials relating to co-perpetrators
in paragraphs 127 and 148 of the Reply Brief.
- The Prosecutionís Motion contends that these paragraphs in the Reply Brief
improperly introduce a new argument, namely that the trial was unfair because
the Prosecution has never disclosed any exculpatory information with regard
to the Appellantís alleged co-perpetrators.
- The Prosecution appears to be correct that the Appellant did not raise any
argument regarding disclosure of information regarding co-perpetrators in
his Notice of Appeal or in the Appellantís Brief. The Appeals Chamber has
not located any such argument in any submission prior to the Reply Brief.
- In the circumstances, the Appeals Chamber concludes that the Prosecutionís
request for disallowance is well-founded. The Appellantís arguments regarding
non-disclosure of materials relating to co-perpetrators are therefore disallowed
and will not be considered on appeal.
- The Motion also raises a second matter. In the Appellantís Brief, the Appellant
contended that the Trial Chamber erred in relying on certain facts that were
not pleaded in the indictment, including "7 June 1992 Serbian Assembly."6
The Prosecution responded that "the 7 June 1992 Assembly is sufficiently
outlined in paragraph 7 of the Indictment."7
In the Reply Brief, the Appellant states that his reference to the "7
June 1992 assembly" was a typographical error and that the correct date
is 7 January 1992. The Appellant then appears to argue that the Prosecutionís
decision to discuss the 7 June assembly, rather than the 7 January assembly,
"plainly supports the conclusion that ₣the Prosecutionğ had
no reasonable response."8 The Prosecution
disputes this latter point and seeks leave to respond to the Appellantís argument
regarding the 7 January assembly.
- The Chamber notes the Appellantís clarification of the typographical error
in the Appellantís Brief. However, there is no reason to penalize the Prosecution
for having responded to the Appellantís Brief as it was written or to deny
the Prosecution the right to respond now that the error has been corrected.
The Prosecution will therefore be given an opportunity to file an addendum
to its Response Brief addressing the Appellantís argument with regard to the
7 June assembly. The Appellant will then have the opportunity to file an addendum
to his Reply Brief.
- The Motion is therefore GRANTED. The Request for Leave to File Response
is DISMISSED. It is ORDERED that:
(a) the Appellantís arguments regarding non-disclosure of materials relating
to co-perpetrators, including the statements to that effect in paragraphs
63 through 65, 127 and 148 of the Reply Brief, are disallowed and will not
be considered on appeal;
(b) the Prosecution may file, not later than 10 days following the date
of this decision, an addendum to the Prosecution Response Brief not exceeding
5 pages in length relating to the "7 January 1992 Serbian Assembly";
(c) the Appellant may file, not later than 10 days following the date
of filing of the Prosecutionís addendum, an addendum to his Reply Brief not
exceeding 2 pages in length relating only to points raised in the Prosecutionís
Done in English and French, the English text being authoritative.
Dated this 20th day of July 2004,
At The Hague,
Judge Theodor Meron
[Seal of the International Tribunal]
1. "The opposite party shall file a response
within ten days of the filing of the motion." Practice Direction on Procedure
for the Filing of Written Submissions in Appeal Proceedings Before the International
Tribunal, 7 March 2002, para. 11.
2. Request for Leave to File Response,
3. Appellant, Milomir Stakicís Notice of Appeal, 1 September 2003, p. 5.
4. Milomir Stakicís Re-Filed Appellantís Brief in Support of His Notice of Appeal,
9 March 2004, paras. 161, 166 (footnote omitted).
5. Milomir Stakicís Brief in Reply, 20 May 2004, paras. 63-65 (footnote omitted).
6. Appellantís Brief, para. 37(c).
7. Prosecutionís Response Brief, 8 April 2004, para. 2.4.
8. Reply Brief, para. 14.