Case No.: IT-95-14-A

IN THE APPEALS CHAMBER

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

Registrar:
Mr. Hans Holthuis

Decision of:
4 December 2003

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"),

RECALLING the Scheduling Order of 31 October 2003 issued by the Appeals Chamber in the present proceedings, ordering the parties to file, if they so wish, a supplementary brief in the light of the admitted additional evidence and rebuttal material, by 1 December 2003;

NOTING that, on 21 November 2003, the Appellant applied to the Appeals Chamber for leave to file a supplementary brief of 35 pages (10,500 words) ("Appellant’s Supplemental Brief"), in reliance on provisions (C) (5) and (7) of the Practice Direction on the Length of Briefs and Motions, IT/184 Rev.1 ("Practice Direction"), and that the Prosecution did not oppose the application;

NOTING that, on that occasion, the Pre-Appeal Judge granted the application on the ground that the circumstances in the present case may require an oversized filing;

BEING SEIZED OF the "Prosecution’s Request for an Extension of Page Limit for its Supplemental Filing pursuant to the Appeals Chamber’s Scheduling Order of 31 October 2003", filed by the Prosecution on 1 December 2003 ("Request"), filed at the same time as its confidential Supplemental Filing ("Supplemental Filing")¹, and wherein the Prosecution seeks leave to file a Supplemental Filing of 165 pages in length;

NOTING that, in the Request, the Prosecution claims that there are exceptional circumstances to justify the filing of the Supplemental Filing in its current size, since, according to the Prosecution, the Supplemental Filing must address more than 20 previous filings totalling 1,600 pages, deal with the Appellant’s arguments and the admitted additional evidence, and re-assess and reformulate the positions taken in its Respondent’s Brief;

NOTING the "Appellant’s Opposition to Prosecution’s Request for an Extension of the Page Limit for its Supplemental Filing pursuant to the Appeals Chamber’s Scheduling Order of 31 October 2003", filed on 3 December 2003, in which the Appellant argues that the Request is not timely filed, that the Prosecution purports to address 24 filings in the Supplemental Filing, even though all those filings are before the Appeals Chamber which has in fact disposed of 21 of them, and that it would be grossly unfair to the Appellant to permit the Prosecution to file a brief that is almost five times greater than the length of the Appellant’s Supplemental Brief concerning the same subject-matter;

CONSIDERING that the Request and the Supplemental Filing were filed simultaneously, and at the point of expiration of the deadline, thus leaving the Appellant no time to respond and the Appeals Chamber no time to consider and dispose of the Request prior to the expiration of the deadline;

CONSIDERING that this action on the part of the Prosecution is unfair to the Appellant;

CONSIDERING that the Supplemental Filing and the Request should be rejected on these grounds alone;

NOTING, however, that on 1 May 2002, the Prosecution filed a confidential Respondent’s Brief pursuant to Rule 112 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") without responding to the arguments of the Appellant’s Brief based on additional evidence proffered by the Appellant, on the ground that the admissibility of such evidence had yet to be ruled on by the Appeals Chamber;

BUT CONSIDERING that the Prosecution has been given the opportunity to file voluminous rebuttal material and has filed such material and lengthy arguments in relation to the additional evidence that has been admitted by the Appeals Chamber, and that 21 of the 24 filings listed in the Request to justify the length of the Supplemental Filing have been disposed of by the Appeal Chamber;

FOR THE FOREGOING REASONS,

HEREBY REJECTS the Request and Supplemental Filing; and

1. the Prosecution to file, if it still wishes, by 1 pm, Monday, 8 December 2003, a supplementary brief up to 50 pages in the light of the additional evidence and rebuttal material admitted in this appeal;

2. the Prosecution to file the public version of the new supplemental brief by 15 January 2004; and

3. the Appellant to file the public version of the Appellant’s Supplemental Brief by 15 January 2004.

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

__________________

Fausto Pocar
Presiding Judge

Dated this fourth day of December 2003,
At The Hague,
The Netherlands.

[Seal of the Tribunal]