Case No. IT-02-60-A
Judge Mohamed Shahabuddeen, Pre-Appeal Judge
Mr. Hans Holthuis
6 December 2005
Counsel for the Prosecutor:
Mr. Norman Farrell
Counsel for the Accused:
Mr. Vladimir Domazet for Mr. Vidoje Blagojevic
Ms. Cynthia Sinatra for Mr. Dragan Jokic
1. 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”) is seized of appeals in this case from the Judgement of Trial Chamber I, which was rendered orally on 17 January 2005 and in writing on 24 January 2005 (“Judgement ”). Both Vidoje Blagojevic and Dragan Jokic (“Appellants”) have appealed their convictions, and the Prosecution intends to file a consolidated response to the two Appellants’ appeal briefs (“Consolidated Response Brief”).
2. I, Mohamed Shahabuddeen, was designated as Pre-Appeal Judge in this case by an “Order Assigning Judges to a Case Before an Appeals Chamber,” which was filed on 14 February 2005. In this capacity, I am presently seized of the Prosecution’s “Motion to Extend Word Limit of Consolidated Response Brief” (“Motion”), filed 30 November 2005, which requests an enlargement of the word limit for its Consolidated Response Brief. Neither of the Appellants has yet responded to the Motion; however , as the Consolidated Response Brief is due on 9 December 2005,1 it is necessary to decide on the Motion now. Because I am denying the Motion, the Appellants will not be prejudiced by its being decided at this time.
3. The present Practice Direction on the Length of Briefs and Motions, issued on 16 September 2005 (“Practice Direction”), provides that a consolidated brief filed by the Prosecution in response to the briefs of two appellants shall not exceed 40,000 words in length.2 The Prosecution seeks an extension to 47,500 words. Its principal argument is that the appeal briefs of both appellants are unclear and poorly structured, making it necessary for the Prosecution to provide explanations of its interpretations of their arguments and of the way the various arguments interrelate, in addition to its responses to the arguments.3
4. It is not necessary to comment on the Prosecution’s criticisms of the Appellants’ briefs except to say that if they are as poorly reasoned and constructed as the Prosecution claims, the Prosecution should be able to respond to them more rather than less concisely. For instance, if an assertion is wholly unsupported,4 the Prosecution is free to so note and to forgo an extensive response. And if numerous grounds of appeal overlap with one another,5 the Prosecution may make its response all in one place, and simply cross-reference that response elsewhere as appropriate. If the Prosecution determines that certain issues merit a more extensive response that is disproportionate to that allocated by the appellant, that is its strategic choice to make, but it does not constitute a basis for an enlargement of the word limit. It is counsel’s responsibility to decide how to allocate the space that it is allotted.6
5. The Prosecution’s further submission that “there is little overlap between the appeals of the Appellants” is not persuasive. The Prosecution has repeatedly stated its intention to file a consolidated response brief in this case, emphasizing that this will facilitate more efficient consideration of the two related appeals.7 The briefing schedule for both appeals has repeatedly been adjusted in order to accommodate this request of the Prosecution,8 ultimately resulting in the Prosecution having longer than the 40 days designated by Rule 112 to respond to each Appellant’s brief.9 Its eleventh-hour claim that, essentially, there was never a good reason for consolidation in the first place does not provide good cause for an enlargement of the word limit . Moreover, the Prosecution has not shown that the case presents especially complex issues or any other justification for a longer brief.
6. The Prosecution is correct, however, in observing that neither of the Appellants’ appeal briefs comports with the Practice Direction’s requirement that a word count (of less than 30,000 words) be indicated. Instead, each complies with the alternative , 100-page limit requirement of the prior version10 of the Practice Direction: Mr. Jokic’s Amended Appeal Brief is 100 pages long, and Mr. Blagojevic’s Appeal Brief is just 78 pages long. The Appeals Chamber held this approach permissible with respect to Mr. Jokic because to impose the word limit requirement set by the very recent amendment to the Practice Direction would have unfairly prejudiced him.11 I find that Mr. Blagojevic’s submission is permissible for the same reason. In the interest of fairness and equality of arms, the Prosecution should also be permitted the option of complying with the prior version of the Practice Direction rather than the current version. Under the prior version, it may choose between a word limit of 40,000 words and a page limit of 135 pages.
7. The Motion is hereby DENIED. The Prosecution is ordered to submit a Consolidated Response Brief of no more than 135 pages or 40,000 words, whichever is greater.
Done in English and French, the English text being authoritative.
Dated 6 December 2005
At The Hague
[Seal of the Tribunal]