IN THE APPEALS CHAMBER

Before:
Judge David Hunt, Presiding
Judge Fouad Riad
Judge Rafael Nieto-Navia
Judge Mohamed Bennouna
Judge Fausto Pocar

Registrar:
Mrs Dorothee de Sampayo Garrido-Nijgh

Order of:
31 March 2000

PROSECUTOR

v

Zejnil DELALIC, Zdravko MUCIC (aka “PAVO”), Hazim DELIC
and Esad LANDZO (aka “ZENGA”)

____________________________________________________________

ORDER ON APPELLANTS HAZIM DELIC AND ZDRAVKO MUCIC’S “NOTICE” RELATED TO APPELLANT ESAD LANDZO’S FOURTH GROUND OF APPEAL

____________________________________________________________

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 Zdravko “Pavo” Mucic and Hazim Delic’s Notice to the Chamber Related to Landzo’s Issue on the Presiding Judge Sleeping During Trial” filed by the appellants Zdravko Mucic (“Mucic”) and Hazim Delic (“Delic) on 17 February 2000 ("Notice");

NOTING the “Defendant Esad Landzo’s Notice of Appeal”, filed on 1 December 1998, wherein he sets out his grounds of appeal, which include, inter alia, that his right to a fair and expeditious trial pursuant to Articles 20 and 21 of the Statute of the International Tribunal “were violated when verdict and sentence were rendered by a Trial Chamber whose presiding Judge was permitted to sleep through much of the proceedings” (“Landzo’s Fourth Ground of Appeal");

NOTING that Mucic and Delic indicate that the Notice is intended to “clarify” the issue of the positions of Mucic and Delic in relation to Landzo’s Fourth Ground of Appeal;

NOTING paragraph 3 of Section 5 of the “Appellant - Zdravko Mucic’s [aka Pavo] Brief on Appeal Against Conviction and Sentence”, filed by Mucic on 2 July 1999, which refers to Landzo’s Fourth Ground of Appeal, observes that at that point in time the supplementary brief on the issue had not yet been filed and states that "the Appellant is not in a position to adopt or avoid that proposed ground of appeal and, therefore, submits that, should such a proposed ground of appeal be drafted and succeed in its assumed objective of overturning the convictions of the co-appellant, it should by parity of reasoning overturn the convictions of the Appellant";

NOTING the “Particulars of the Grounds of Appeal of the Appellant Zdravko Mucic”, filed by Mucic on 26 July 1999, in which Mucic, under the heading of “Adoption of other submissions” identifies, as Ground 11 of his grounds of appeal, that "[i]f the matters set out in paragraph 3 of section 5 of the Appellant’s Appeal Brief come to have a basis in law or fact, then the Trial Chamber was not constituted as required by Article 12, and/or Article 20, and/or Article 21, or at all [and] in consequence of the above, the Appellant was denied a fair trial as required by Article 20(1), and/or Article 21 (2), and/or the principles of equity, and/or natural justice, or at all" ("Eleventh Ground of Appeal");

NOTING paragraph 154 of the "Appellant-Cross Appellee Hazim Delic’s Reply to the Respondent’s Brief of the Prosecutor of 17 September 1999”, filed on 25 October 1999, which states that “[i]f the record supports the assertion of the Presiding Judge was asleep during a significant portion of the trial, the Appeals Chamber should vacate the judgement and remand this case for a new trial";

NOTING the “Prosecution Response to the Notice Filed by Zdravko Mucic and Hazim Delic Related to Esad Landzo’s Fourth Ground of Appeal and Motion for an Order" filed by the Office of the Prosecutor ("Prosecution") on 28 February 2000 ("Prosecution Response and Motion") in which the Prosecution submits:

  1. that Mucic, having submitted no arguments in relation to the Eleventh Ground of Appeal, should not be permitted to present any substantive arguments on this issue at any subsequent stage of the proceedings, and in particular should not be permitted to present any substantive arguments on this issue beyond adopting the arguments of Landzo or the limited argument in his Reply Brief;

  2. that Delic has not raised this issue as a ground of appeal but on the basis that the Notice should be treated as an implied motion for leave to add an additional ground of appeal, it is opposed by the Prosecution;

NOTING that the Prosecution moves the Appeals Chamber for an order which would state that Mucic is not permitted to present any further substantive arguments in relation to the Eleventh Ground of Appeal and that Delic is not joined to Landzo’s Fourth Ground of Appeal and that the issues raised in Landzo’s Fourth Ground of Appeal “are not part of the appeal” of Delic;

NOTING that Mucic and Delic have not responded to the Motion included in the Prosecution Response and 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;

NOTING Rule 111 of the Rules which provides that an appellant’s 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;

CONSIDERING that the issue sought to be raised by Delic was not included in the brief of argument filed by Delic pursuant to Rule 111 on 2 July 1999 and the indication of the intention that “Delic joins Landzo’s arguments related to the Presiding Judge sleeping during the trial” does constitute an implied application for leave to add an additional ground of appeal (“Delic’s Additional Ground of Appeal”);

CONSIDERING that the Prosecution Response and Motion identify no basis on which the grant of leave to add Delic’s Additional Ground of Appeal would cause the Prosecution prejudice of any kind;

NOTING that Mucic and Delic, in the Notice, seek to “join” the arguments of Landžo on the substance of Landžo’s Fourth Ground of Appeal;

CONSIDERING that the Notice also makes a limited number of submissions in relation to the substance of Mucic’s Eleventh Ground of Appeal and Delic’s Additional Ground of Appeal;

NOTING that the submissions in the Notice were not included in Mucic or Delic’s Appeal Briefs filed pursuant to Rule 111 of the Rules;

CONSIDERING that the Prosecution Response and Motion identifies no basis on which the admission of the submissions in the Notice would cause the Prosecution prejudice of any kind;

CONSIDERING that, because the arguments made by Landzo in relation to Landzo’s Fourth Ground of Appeal are adopted by Mucic and Delic, the arguments of Landzo on this issue, in addition to the submissions made in the Notice and those made by Mucic in his Reply Brief, should be accepted as the full submissions of Mucic and Delic on this issue;

HEREBY ORDERS AS FOLLOWS:

  1. Delic is granted leave to add Delic’s Additional Ground of Appeal.

  2. Delic is ordered to file a document identifying his amended grounds of appeal.

  3. Delic and Mucic are granted leave to file the additional submissions made in the Notice.

  4. The Prosecution may file a response, if any, to Delic’s Additional Ground of Appeal, by 4.30 pm on Monday 17 April 2000.

  5. Delic and Mucic may file a reply to any response filed by the Prosecution pursuant to order 4 above within 7 days of such response being filed.

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

______________________
David Hunt
Presiding Judge

Done this 31 March 2000
At The Hague,
The Netherlands.

[Seal of the Tribunal]