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:
28 January 2005

PROSECUTOR

STANISLAV GALIC

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DECISION ON PROSECUTION’S MOTION TO STRIKE NEW ARGUMENT ALLEGING ERRORS BY TRIAL CHAMBER RAISED FOR FIRST TIME IN APPELANT’S REPLY BRIEF

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The Office of the Prosecutor:

Mr. Norman Farrell

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 since 1991 ("Tribunal"),

BEING SEISED OF the "Motion to Strike New Argument Alleging Errors By Trial Chamber Raised For First Time in Appellant’s Reply Brief" ("Motion"), filed by the Office of the Prosecutor ("Prosecution") on 30 November 2004, in which the Prosecution moves for the Appeals Chamber to strike from the record paragraph 49 of the "Brief in Reply" filed by Stanislav Galic ("Appellant") on 27 September 2004;

NOTING the "Judgement and Opinion" ("Judgement") rendered in this case by Trial Chamber I on 5 December 2003;

NOTING the "Notice of Appeal" and the "Defence Appellant’s Brief" ("Appeal Brief") filed by the Appellant on 4 May 2004 and 19 July 2004 respectively, in which the Appellant appeals the Judgement on a number of grounds;

NOTING the "Prosecution Response Brief" filed by the Prosecution on 6 September 2004, in which the Prosecution argues that the Appellant’s appeal should be dismissed;

NOTING the Brief in Reply, in which the Appellant challenges the Prosecution’s objections to the Appellant’s appeal;

NOTING that, in the Motion, the Prosecution moves for the Appeals Chamber to strike from the record paragraph 49 of the Brief in Reply on the grounds that it raises for the first time an allegation that the Trial Chamber committed errors which are not contained in the Appellant’s Notice of Appeal and therefore not argued in his Appeal Brief, specifically:

1. that the Trial Chamber erred in law in concluding that the 22 May Agreement was of legal effect despite the Appellant’s claim that it was signed by representatives of political parties not taking part in the conflict;

2. that the Trial Chamber erred in law in failing to conclude that if all parties to the conflict were violating the provisions of the Geneva Convention then nobody can be held responsible for their breach;¹

3. that the Appellant is additionally seeking to ascribe blame to various bodies and commissions which he implies contributed to violations of international humanitarian law or at least failed to act in a manner that would ensure maximum compliance;

NOTING the "Defence Response to Prosecution’s Motion To Strike New Argument Alleging Error By Trial Chamber Raised For the First Time in Appellant’s Reply Brief", filed by the Appellant on 3 December 2004, in which the Appellant opposes the Motion and submits that the Prosecution misunderstands paragraph 49, which does not exceed the scope allowed for a brief in reply, but is rather a wider explanation of the argument contained in the Notice of Appeal and Appeal Brief, that is, as submitted in the grounds of appeal, that the 22 May Agreement had no legal effect;

NOTING the "Reply to Defence Response to Prosecution’s Motion to Strike New Argument Alleging Error" filed by the Prosecution on 7 December 2004, in which the Prosecution submits that the Appellant seeks to rely on general formulations in his Notice of Appeal which belong to otherwise unrelated grounds, and that the allegations of error of fact or law should have been specified in the Notice of Appeal or the associated arguments made in his Appeal Brief;

CONSIDERING that Article 6 of the Practice Direction on Formal Requirements for Appeals from Judgement, IT/201 provides that a Brief in Reply is "limited to arguments in reply to the Respondent’s Brief",² the purpose of which is to prevent an appellant from raising new arguments in a brief in reply as the respondent would not have an opportunity to respond to such new arguments;³

CONSIDERING that the argument that the 22 May Agreement was not binding on the parties was raised in the Notice of Appeal⁴ and Appeal Brief;⁵

CONSIDERING nonetheless that the reasons adduced in paragraph 49 of the Brief in Reply in support of that argument in and of themselves constitute new arguments;

CONSIDERING FURTHER that the new arguments appearing in paragraph 49 are not in reply to the Prosecution Response Brief;

FINDING that paragraph 49 goes beyond the scope of what is permissible argument in a brief in reply;

HEREBY GRANTS the Motion and ORDERS that paragraph 49 be struck out of the Brief in Reply.

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

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Judge Theodor Meron
Presiding Judge

Dated this 28^th day of January 2005,
At the Hague,
The Netherlands