Case No.: IT-04-84-AR65.1

IN THE APPEALS CHAMBER

Before:
Judge Fausto Pocar, Presiding

Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Theodor Meron
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
22 November 2005

THE PROSECUTOR

v.

Ramush HARADINAJ
Idriz BALAJ
Lahi BRAHIMAJ

________________________________________________________________________________

DECISION ON MOTION FOR CLARIFICATION OF THE PRACTICE DIRECTION ON PROCEDURE FOR THE FILING OF WRITTEN SUBMISSIONS IN APPEAL PROCEEDINGS AND FOR EXTENSION OF TIME

________________________________________________________________________________

Office of the Prosecutor

Mr. Stefan Waespi
Mr. Gilles Dutertre
Mr. Philippe Vallieres-Roland

Counsel for the Accused:

Mr. Ben Emmerson, Mr. Rodney Dixon and Mr. Michael O’Reilly for Ramush Haradinaj
Mr. Gregor Guy-Smith for Idriz Balaj
Mr. Richard Harvey for Lahi Brahimaj

The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Appeals Chamber” and “Tribunal ”, respectively), is seized of the “Prosecution’s Motion for Clarification of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (IT-155/REV.3) and for Extension of Time”, filed on 18 November 2005 (“Motion for Clarification”).

Relevant Procedural History

Trial Chamber II issued its “Decision on Defence Motion on Behalf of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted on 6 June 2005”, on 12 October 2005 (“Impugned Decision”). As part of the appeal proceedings stemming from this case, the Prosecution filed the “Prosecution’s Application under Rule 115 to Present Additional Evidence in its Appeal against ‘Decision on Defence Motion of Ramush Haradinaj to Request Re-Assessment of Conditions of Provisional Release Granted 6 June 2005’” on 8 October 2005 (“Rule 115 Application”). Ramush Haradinaj filed his “Confidential Defence Response on Behalf of Ramush Haradinaj to the Prosecution’s Application under Rule 115 to Present Additional Evidence in its Appeal against ‘Decision on Defence Motion of Ramush Haradinaj to Request Re -Assessment of Conditions of Provisional Release Granted on 6 June 2005’” on 15 November 2005 (“Rule 115 Response”). The Prosecution has not yet filed its reply and, in its Motion for Clarification, it requests “clarification from the Appeals Chamber on the appropriate procedure to follow when filing written submissions pursuant to Rule 115 during provisional release interlocutory appeals”1 as well as an extension of time.2

Prosecution’s Submissions

The Prosecution notes that it filed its appeal of the Impugned Decision pursuant to Rule 65 (D) of the Rules of Procedure and Evidence (“Rules”),3 and contends that the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal (“Practice Direction ”) applies to that appeal.4 Heading two of the Practice Direction, entitled “Appeals from Decisions where Interlocutory Appeal Lies as of Right”, stipulates that the party pursuing an interlocutory appeal shall have four days to file its reply to the opposite party’s response.5 However, heading two of the Practice Direction makes no explicit reference to the procedure that governs the filing of motions brought pursuant to Rule 115 of the Rules; yet, the Prosecution notes that “the Appeals Chamber has established that Rule 115 is not only applicable to appeals from final judgement but also to provisional release interlocutory appeals”.6

On the other hand, the fifth heading of the Practice Direction, entitled “Motions during Appeals from Judgement”, specifically discusses Rule 115 of the Rules.7 Under that Rule, the moving party has fourteen-days to file a reply to the opposing party’s response to its Rule 115 motion.8

According to the Prosecution it is therefore “unclear which procedure governs submissions made pursuant to Rule 115 in the context of provisional release interlocutory appeals ”.9 In the result, the Prosecution requests that the procedure governing the filing of Rule 115 submissions pursuant to provisional release interlocutory appeals be clarified and that it be granted an additional ten days to file its reply to the Rule 115 Response if the shorter four-day time-limit is applied under the second heading of the Practice Direction .10

Disposition

As recognized by the Prosecution, the Appeals Chamber has ruled that Rule 115 is applicable to both provisional release interlocutory appeals and to appeals from final judgement.11 This dual application of Rule 115 explains the difference between the timing contemplated by the two relevant headings – headings two and five – of the Practice Direction. Heading two of the Practice Direction governs when Rule 115 is applicable to a provisional release interlocutory appeal. This is made clear in the wording of heading two of the Practice Direction: “Appeals from Decision where Interlocutory Appeal Lies as of Right”.12 Heading five of the Practice Direction, on the other hand, clearly contemplates only the instance where Rule 115 is applicable to “Appeals from Judgement”. In the case at hand, the Rule 115 Application is filed pursuant to an appeal of the Impugned Decision – which is a provisional release interlocutory appeal - and therefore heading two of the Practice Direction governs.

Given that the Prosecution has represented that the timing of the filing of submissions pursuant to Rule 115 is unclear, and that as a result of the clarification offered in this decision its reply is due on 21 November 2005, it is granted an additional two days to file its reply to the Rule 115 Response.

For the foregoing reasons, the Appeals Chamber CLARIFIES that heading two of the Practice Direction applies to Rule 115 motions filed pursuant to interlocutory appeals and GRANTS the Prosecution an additional two days to file its reply to the Rule 115 Response. The reply shall thus be due on 23 November 2005.

Done in English and French, the English version being authoritative.

Done this 22nd day of November 2005,
At The Hague,
The Netherlands.

________________________
Judge Fausto Pocar
Presiding

[Seal of the Tribunal]


1 - Motion for Clarification, para. 3.
2 - See id., para. 11.
3 - Id., para. 5.
4 - IT/155/Rev.3, 16 September 2005, paras. 1-3.
5 - Practice Direction, para. 2.
6 - Motion for Clarification, para. 6 citing Prosecution v. Stanisic and Simatovic, Decision on Prosecution’s Application under Rule 115 to Present Additional Evidence in its Appeal Against Provisional Release, Case No. IT-03-69-AR65.1 and IT-03-69-AR65.2, 11 November 2004, (“Stanisic and Simatovic Decision”), para. 7.
7 - Practice Direction, paras. 13-15.
8 - Id., para. 13.
9 - Motion for Clarification, para. 8.
10 - Id., para. 11.
11 - Stanisic and Simatovic Decision, para. 7.
12 - Emphasis added.