Case No. IT-98-29-A

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Ndepele Mwachande Mumba
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision:
3 December 2004

PROSECUTOR

v.

STANISLAV GALIC

_______________________________________

DECISION ON PROSECUTIONíS MOTION TO STRIKE PORTIONS OF APPELLANTíS APPEAL BRIEF, BOOK OF AUTHORITIES AND REPLY BRIEF

_______________________________________

The Office of the Prosecutor:

Mr. Norman Farrell
Mr. Mathias Marcussen

Counsel for Stanislav Galic:

Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin

 

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 ("ICTY") since 1991,

NOTING the Judgement and Opinion rendered in this case by Trial Chamber I on 5 December 2003 and translated into French on 5 April 2004 ("the French translation of the Judgement");

NOTING the "Defence Appellantís Brief" ("Appeal Brief") and "Defence Appellants Brief Book of Authorities" ("Book of Authorities") filed by Counsel for Stanislav Galic ("Defence") on 19 July 2004, in which the Defence appeals the Judgement on a number of grounds;

NOTING the "Prosecution Response Brief" filed by the Office of the Prosecutor ("Prosecution") on 6 September 2004, in which the Prosecution argues that the Defence appeal should be dismissed;

NOTING the "Brief in Reply" filed by the Defence on 27 September 2004, in which the Defence challenges the Prosecution objections to the Defence appeal;

BEING SEISED OF the "Prosecution Motion to Strike Portions of Appellantís Appeal Brief, Book of Authorities and Reply Brief" filed by the Prosecution on 29 October 2004 ("Motion"), whereby the Prosecution moves the Appeals Chamber to strike passages of the Appeal Brief, Book of Authorities and Reply Brief insofar as they relate to a letter dated 29 August 2003 ("Letter") sent to the Defence by the International Committee of the Red Cross ("ICRC"), on the grounds, inter alia, that:

  1. the Letter constitutes new factual material that was not before the Trial Chamber and does not form part of the evidentiary record in the present case;

  2. if the Defence wishes to refer to the Letter, it must invoke Rule 115 of the Rules of Procedure and Evidence of the ICTY ("Rules");

  3. the Defence seems to be making a request to the Appeals Chamber for judicial notice under Rule 94, the application of which is inappropriate in the instant case;

NOTING further that the Prosecution requests that, if its Motion is denied, the Defence be required to file a motion addressing the admissibility criteria under Rule 115 and precisely formulating the facts for which he seeks judicial notice, and an explanation of how the requirements of Rule 94(A) of the Rules are met;

NOTING the "Defence Response on Prosecutionís Motion Dated 29 October 2004" ("Response"), filed by the Defence on 3 November 2004, in which the Defence opposes the Motion on the grounds, inter alia, that:

  1. the Letter is not new factual evidence but is submitted in the Book of Authorities as a reference about the status of the ICRC archives, and it is therefore not necessary to make an application pursuant to Rule 115;

  2. a reference to "judicial notice" or Rule 94 of the Rules is unnecessary as the procedure of the entering into force of Agreements, signed in the presence of the ICRC, is a procedure generally well-known and does not constitute facts which need to be proven;

NOTING the Prosecutionís "Reply to Defence Response on Prosecutionís Motion Dated 29 October 2004" ("Reply"), in which the Prosecution submits that the Defence appears to have changed the argument submitted in its Reply Brief, but that the question of which ratifications or acceptances were received by the ICRC (as contained in their archives) remains a factual matter subject to admission pursuant to Rule 115 of the Rules;

CONSIDERING that the status of the ICRC archives is a factual matter requiring proof;

FINDING that the Letter is intended to refute a finding of fact made by the Trial Chamber and is additional evidence intended to prove a fact not proved at trial, it is therefore subject to admission pursuant to Rule 115 of the Rules;

CONSIDERING that in terms of Rule 115 of the Rules the time limit for the filing of motions for additional evidence expires 75 days from the date of judgement;

CONSIDERING further that more than 75 days have passed from the date on which the Appellant received the French translation of the Judgement;

FINDING therefore that any Rule 115 application would now be out of time, but that pursuant to Rule 115 of the Rules, the Appeals Chamber, on good cause for further delay being shown by a motion, may enlarge the time prescribed by the Rules and recognise as validly filed any motion done after the expiration of the time so prescribed of 75 days;

FOR THE FOREGOING REASONS,

THE APPEALS CHAMBER HEREBY,

DIRECTS the Defence, should it wish to retain the grounds of appeal to which the additional evidence is directed, to file a motion pursuant to Rule 115 showing good cause for further delay for the Appeals Chamber to receive that motion as validly filed pursuant to Rule 115.

 

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

____________________
Judge Theodor Meron
Presiding Judge

Dated this 3rd day of December 2004,
At the Hague,
The Netherlands

[Seal of the Tribunal]