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

BLAGOJE SIMIC

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DECISION ON PROSECUTION’S MOTION TO STRIKE PARTS OF THE BRIEF IN REPLY

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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 Simic’s 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 "Prosecution’s Response Brief" filed confidentially on 27 July 2004 ("Respondent’s Brief");

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

BEING SEISED OF the "Prosecution’s 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 Appellant’s 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 Chamber’s decision on the Motion;

NOTING the "Response of Blagoje Simic to Prosecution’s Motion to Strike” 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 Respondent’s 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 "Prosecution’s Reply to Response of Blagoje Simic to Prosecution’s Motion to Strike" filed on 30 August 2004, in which the Prosecution mainly argues that the Appellant "tries […] 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 Respondent’s 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 Respondent’s 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 Appellant’s second ground of appeal reads as follows:

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 Appellant’s 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.

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Judge Mehmet Güney
Presiding Judge

[Seal of the Tribunal]