Case No. IT-02-60-T
IN TRIAL CHAMBER I, SECTION A
Before:
Judge Liu Daqun, Presiding
Judge Volodymyr Vassylenko
Judge Carmen Maria Argibay
Registrar:
Mr. Hans Holthuis
Decision of:
28 September 2004
PROSECUTOR
v.
VIDOJE BLAGOJEVIC
DRAGAN JOKIC
________________________________
DECISION ON MOTION TO SEEK LEAVE TO RESPOND TO THE PROSECUTION’S FINAL BRIEF
The Office of the Prosecutor:
Mr. Peter McCloskey
Counsel for the Accused:
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Vidoje
Blagojevic
Mr. Miodrag Stojanovic and Mr. Branko Lukic for Dragan Jokic
TRIAL CHAMBER I, SECTION A, ("Trial 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 ("Tribunal"),
BEING SEISED OF the "Motion to Seek Leave to Respond to the Prosecution’s Final Brief on the Basis of It Containing Irrelevant, Innacurate ₣sicğ and Deceiving Information,” filed by Counsel for Vidoje Blagojevic, Michael G. Karnavas, on 27 September 2004 ("Motion"),
NOTING the "Prosecution’s Response to Motion to Seek Leave to Respond to the Prosecution’s Final Brief," filed by the Office of the Prosecutor ("Prosecution") on 28 September 2004 ("Response"),
NOTING that Final Trial Briefs were filed by all Parties to these proceedings on 22 September 2004 pursuant to Rule 86 of the Rules of Procedure and Evidence ("Rules") and in accordance with the Trial Chamber’s instructions,1
NOTING that Closing Arguments are scheduled to begin on Wednesday, 29 September 2004 pursuant to Rule 86 of the Rules,
NOTING that in the Motion, Counsel for Vidoje Blagojevic asserts that he must be granted leave to file a response to the Prosecution’s Final Trial Brief within fifteen days after Closing Arguments because, he asserts, "the Prosecution’s final brief contains an overwhelming amount of irrelevant, inaccurate and deceiving information, which permeates throughout the final brief, thus making the final brief in toto dangerously suspect and purely designed to confuse, inflame and mislead the Trial Chamber,"2
NOTING FURTHER that in the Motion, Counsel for Vidoje Blagojevic submits inter alia that the Prosecution’s Final Trial Brief: contains numerous paragraphs that are not relevant to this case as they contain information outside the scope of the Indictment; contains numerous errors that are not supported by the record; cites supporting material which does not support that which the Prosecution claims; and contains citations to documentary evidence where it purposely omits portions of sentences that are relevant to a "fair, accurate and honest analysis and interpretation of the evidence,"3
NOTING that in the Response, the Prosecution sets out its reasons for including in its Final Trial Brief material related to matters not specifically referred to in the Indictment or related to crimes dismissed by the Trial Chamber in its Judgement rendered pursuant to Rule 98 bis,4 and submits that it will be for the Trial Chamber, upon review of the facts and arguments put forward in this case, to determine whether its arguments are sufficiently supported,5
NOTING FURTHER that the Prosecution characterises the Motion as "the latest strike in a history of personal attacks levied by Counsel since the inception of the trial,"6
CONSIDERING that Counsel for Vidoje Blagojevic fails to provide any support for the serious allegations of professional and ethical misconduct or impropriety on the part of the Prosecution which he makes in the Motion,
CONSIDERING FURTHER that there is no reason for the Trial Chamber to believe that any member of the Prosecution team in this case has sought to "confuse, inflame and mislead the Trial Chamber," at any stage of these proceedings,
CONSIDERING that the primary purpose of Final Trial Briefs is to present each Party with an opportunity to present its theory of the case based on the evidence that has been adduced during trial,
CONSIDERING FURTHER that Final Trial Briefs are ordered to be filed before Closing Arguments in part to allow the each Party an opportunity to respond to arguments put forward in the Final Trial Brief of the Opposing Party during its Closing Argument,
CONSIDERING that through the Motion, it could appear that Counsel for Vidoje Blagojevic has demonstrated a fundamental misconception of the role of the Judges as finders of fact and finders of law on matters in dispute in the current proceedings, as well as a fundamental misconception of the roles played by the Parties in assisting the Trial Chamber in determining matters at issue before it,7
CONSIDERING HOWEVER that it is difficult for the Trial Chamber to conclude that this is the case because Counsel for Vidoje Blagojevic has extensive domestic and international criminal law experience, and has previously demonstrated his proficiency in the areas of criminal procedure and evidence in this case,
CONCLUDING THEREFORE that Counsel for Vidoje Blagojevic has filed a frivolous motion,
RECALLING that Counsel for Vidoje Blagojevic has been warned on previous occasions that the filing of frivolous motions may result in the imposition of sanctions,8
PURSUANT TO Rules 44, 46, 54 and 86 of the Rules,
HEREBY DENIES the Motion, and
ADMONISHES Counsel for Vidoje Blagojevic for filing such a Motion, and for making such allegations regarding the professionalism and ethics of the members of the Prosecution team therein.
Done in English and French, the English version being authoritative.
________________
Judge Liu Daqun
Presiding
Dated this twenty-eighth day of September 2004,
At The Hague
The Netherlands
[Seal of the Tribunal]