Case No.: IT-02-60/1-A

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

Registrar:
Mr. Hans Holthuis

Decision of:
19 July 2005

___________________________________________

Counsel for the Appellant:

Mr. Rock Tansey
Mr. Richard John Livingston

Counsel for the Prosecutor:

Mr. Norman Farrell

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 Judgement rendered in this case by Trial Chamber I, Section A, on 2 December 2003 (“Sentencing Judgement”);

NOTING the notice of appeal filed by Momir Nikolic (“Appellant”) on 30 December 2003,¹ the “Momir Nikolic’s Opening Brief on Appeal” filed confidentially on 24 May 2004 and the “Redacted and Conformed Momir Nikolic’s Opening Brief on Appeal” filed on 21 September 2004 (“Appellant’s Brief”);²

NOTING the “Appellant Momir Nikolic’s Amended Notice of Appeal” filed by the Appellant on 26 October 2004 (“Amended Notice of Appeal”);

NOTING the confidential “Appellant’s Second Motion to Admit Additional Evidence ” (“Second Rule 115 Motion”) and the “Appellant’s Motion for Leave to File Second Amended Notice of Appeal” (“Second Motion to Amend Notice of Appeal”), both filed on 23 December 2004;

NOTING that the Deputy Registrar withdrew the assignment of Ms. Virginia Lindsay and assigned Mr. Rock Tansey as lead counsel for the Appellant on 14 February 2005³ and Mr. Richard John Livingston as co-counsel on 24 May 2005;⁴

BEING SEISED OF the “Motion to Withdraw Previous Motions Under Rule 115 and to Amend Notice of Appeal” filed by the Appellant on 6 June 2005 (“Motion to Withdraw ”), in which the Appellant seeks leave (i) to withdraw the Second Rule 115 Motion and the Second Motion to Amend Notice of Appeal (“Request to Withdraw”), and (ii ) to file a revised Appellant’s Brief within eight weeks (“Request to File Revised Appellant’s Brief”);

BEING ALSO SEISED OF the “Motion to Amend Notice of Appeal” filed by the Appellant on 29 June 2005 (“Third Motion to Amend Notice of Appeal”), in which the Appellant seeks leave to amend paragraph 1B of the Amended Notice of Appeal to delete all pages and paragraphs references and to substitute in their place other references (“Request to Amend Notice of Appeal”);

NOTING the “Prosecution Response to Appellant’s Motion to Amend Notice of Appeal” filed on 8 July 2005;

(i) Request to withdraw

NOTING that the Appellant seeks leave to withdraw the Second Rule 115 Motion and the Second Motion to Amend Notice of Appeal on the ground that he no longer wishes to pursue these motions;⁵

NOTING that the Prosecution orally informed the Appellant⁶ and the Appeals Chamber that it does not oppose the withdrawal of these motions;

CONSIDERING that the right of the Appellant to an effective defence pursuant to Article 21 of the Statute of the International Tribunal is best served by allowing his newly appointed defence team to choose the litigation strategy it considers best;

FINDING that it is in the interests of justice to grant leave to withdraw these motions;

(ii) Request to File Revised Appellant’s Brief

NOTING that the Appellant submits that the filing of a revised Appellant’s Brief would “simplify and clarify the issues at stake in this sentencing appeal”;⁷

NOTING that the Appellant further argues that eight weeks would be necessary to complete this task as it would include (i) a substantial revision of the original Appellant’s Brief; (ii) translation into BCS; (iii) further conference between the Appellant and his Counsel; and (iv) the making of further amendments prior to filing ;⁸

NOTING that the Prosecution orally informed the Appellant⁹ and the Appeals Chamber that it does not oppose the Request to File Revised Appellant’s Brief;

CONSIDERING that the Appellant’s request is being made at a very late stage of the appeal proceedings, over 12 months after the filing of his initial Appellant’s brief and after the Prosecution filed its Respondent’s Brief;¹⁰

CONSIDERING, however, that the Appellant was recently assigned a new defence team and that his new defence should be allowed, after familiarizing itself with the case, to give the Appellant its expertise and to seek leave to vary the Appellant’s submissions in order to correct any ambiguity or error made by the previous counsel , without unduly delaying the appeal proceedings;

CONSIDERING further that the Appellant’s Brief is in places confusing and that some of the arguments developed thereto indeed lack clarity, and that, therefore , the revision of the Appellant’s Brief with the aim to “simplify and clarify the issues at stake” is appropriate and would allow a fair and expeditious conduct of the appellate proceedings;

CONSIDERING also that the opposing party would not be prejudiced by the Appellant filing a revised Appellant’s Brief if allowed to file a revised Respondent’s Brief addressing the modifications made by the Appellant to his Appellant’s Brief;

FINDING therefore that, in light of these reasons, it would be in the interests of justice to grant the Appellant’s Request to File Revised Appellant’s Brief;

CONSIDERING however that eight weeks to file the revised Appellant’s Brief from the day this decision is filed would not be appropriate, as the Appellant’s defence team has already had six weeks from the day it filed the Motion to Withdraw and therefore has already had significant time to prepare the revised Appellant’s Brief;

(iii) Request to Amend Notice of Appeal

NOTING that, in support of his Request to Amend Notice of Appeal, the Appellant argues that the references contained within paragraph 1B of the Amended Notice of Appeal “are in error”;¹¹

NOTING that paragraph 1B of the Amended Notice of Appeal refers to criminal activity in Zvornik, but that aside from the reference to paragraph 177 of the Sentencing Judgement, none of the other pages and paragraphs referred to in the Amended Notice of Appeal relate to this location;

NOTING that the Appellant seeks leave to further amend the Amended Notice of Appeal so that these incorrect references can be substituted with references to pages and paragraphs that do relate to criminal activity in Zvornik;¹²

NOTING that the Prosecution responded that “good cause for the amendment has been demonstrated since rectifying the erroneous paragraph references will ensure a more focussed [sic] and efficient conduct of the appeals proceedings”;¹³

NOTING that, pursuant to Rule 108 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), the “Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal”;

CONSIDERING that the Request to Amend Notice of Appeal is being made at a very late stage of the appeal proceedings, 18 months after the filing of the original notice of appeal,¹⁴ and that it is the second amendment that the Appellant seeks in this appeal;

CONSIDERING however that the Appellant was recently assigned a new defence team and that his new defence should be allowed, after familiarizing itself with the case, to seek leave to correct any error committed by the Appellant’s previous counsel;

CONSIDERING that the modifications suggested by the Appellant are minor and do not affect the substance of the Amended Notice of Appeal, which the Appellant has not sought to amend;

CONSIDERING that the modifications requested by the Appellant would correct the erroneous references contained in paragraph 1B of the Amended Notice of Appeal , thereby facilitating a more efficient examination of the Appellant’s appeal;

FINDING that, in light of these reasons, there is good cause within the meaning of Rule 108 of the Rules to authorise the requested variation of paragraph 1B of the Amended Notice of Appeal;

FOR THE FOREGOING REASONS,

GRANTS leave to the Appellant to withdraw the Second Rule 115 Motion and the Second Motion to Amend the Notice of Appeal;

GRANTS leave to the Appellant to file a revised Appellant’s Brief and ORDERS that:

1. the revised Appellant’s Brief shall be filed no later than Monday 8 August 2005;

2. a revised Respondent’s Brief, if any, shall be filed no later than Friday 26 August 2005;

3. if need be, a revised Brief in reply shall be filed no later than Monday 5 September 2005;

GRANTS the Appellant’s Third Motion to Amend Notice of Appeal and ORDERS the Appellant to file a new notice of appeal incorporating the modifications authorised to paragraph 1B of the Amended Notice of Appeal within three days from the date of the filing of this decision.

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

Done this 19th day of July 2005,At The Hague, The Netherlands.

______________________
Theodor Meron
Presiding Judge