Judge David Hunt, Pre-Appeal Judge
Mr Hans Holthuis
16 May 2003
Dario KORDIC & Mario CERKEZ
DECISION ON APPLICATION BY CERKEZ FOR LEAVE TO REPLY AND OTHER RELIEF
Counsel for the Prosecutor:
Mr Norman Farrell
Counsel for the Defence:
Mr Mitko Naumovski, Mr Turner T Smith Jnr and Mr Stephen M Sayers for
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez
1. The appellant Mario Cerkez has applied to the Appeals Chamber, pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”), to admit additional evidence in his appeal.1 The prosecution has filed its Response to the Rule 115 Motion.2 Before filing his Reply to that Response, Cerkez seeks guidance from the Appeals Chamber as to the interaction between Rule 126bis and the Practice Direction on Procedure For the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal (“Practice Direction”),3 together with other relief to which reference will be made later.4
2. Rule 126bis (“Time for Filing Responses to Motions”) provides:
Unless otherwise ordered by a Chamber either generally or in the particular case, a response, if any, to a motion filed by a party shall be filed within fourteen days of the filing of the motion. A reply to the response, if any, shall be filed within seven days of the filing of the response, with the leave of the relevant Chamber.
On the other hand, Part IV of the Practice Direction (“Motions During Appeals from Judgement”) relevantly provides:
11. The opposite party shall file a response within ten days of the filing of the motion. This response shall clearly state whether or not the motion is opposed and the grounds therefor.
12. The moving party may file a reply within four days of the filing of the response . The Appeals Chamber may thereafter decide the motion without further submissions from the parties.
3. Cerkez points out that (i) Rule 126bis requires leave to file a reply, whereas the Practice Direction does not, and (ii) the Rule allows seven days in which to do so, whereas the Practice Direction allows only four days. He says that, because different interpretations are available, he seeks leave to file a reply, although his position is that the Practice Direction should apply in preference to Rule 126bis, and he seeks an extension of the time which the Practice Direction allows.
4. Rule 19(B) requires Practice Directions to be consistent with the Tribunal’s Statute and the Rules.5 There is, however, no inconsistency between Rule 126bis and the Practice Direction. Rule 126bis is a general provision applying to all Chambers. It was introduced into the Rules on 13 December 2001. At that time, the Practice Direction, which applies generally to all motions filed in relation to appeals from the judgment of a Chamber, had not been revised in its present form, but paragraphs 11 and 12 were then in identical terms to the present paragraphs already quoted. It was for this reason that Rule 126bis commences with the words “Unless otherwise ordered by a Chamber generally or in the particular case […]”. Accordingly, the Practice Direction applies to all such motions, in preference to Rule 126bis. Leave to file a reply is not required in relation to such motions.
5. I turn then to the application by Cerkez for an extension of time in which to file his reply,6 together with his application for an increase in the number of pages in that reply,7 as the two may conveniently be dealt with together. The number of pages permitted in a motion, response and reply is dealt with in the Practice Direction on the Length of Briefs and Motions,8 and in each case is fixed at ten pages (or 3000 words, whichever is the greater).9 The history of the Rule 115 application discloses that:
(a) Cerkez was given leave to file his Rule 115 Motion consisting of 93 pages excluding the additional material sought to be admitted;10
(b) the prosecution was granted an extension of time of approximately twenty-three days in which to filed its Response to the Rule 115 Motion,11 and leave for such Response to consist of 115 pages.12 In fact, it consisted of 105 pages.
6. Cerkez seeks an extension of time of approximately eighteen days in which to file his reply,13 and leave for that reply to consist of sixty pages.14 In relation to each request, he argues that the size of the filings so far and the range and complexity of the issues raised demonstrate good cause for the grant of such relief.
7. The prosecution accepts that the moving party has a right to file a reply;15 it consents to the extension of time sought;16 and it consents to a “reasonable” extension of pages.17 It points out, however, that Cerkez failed to make any reference in his Rule 115 Motion to the evidence at the trial or to the relevant passages in the Trial Chamber’s Judgment (leaving it to the prosecution to do so in its Response), and that the need to remedy that failure should not be regarded as a proper basis for the extension of pages now sought for the reply.18
8. The prosecution’s cri de cœur is very understandable,19 and I appreciate its force. But the requirements imposed by both Practice Directions do not exist in order to punish parties whose counsel do not always work as efficiently as they should. The Appeals Chamber needs the assistance of counsel, even if that assistance is not always immediately forthcoming. It would not, in my view, be right to refuse this application because counsel for Cerkez have been as efficient as they are expected to be. I regard the material which the prosecution has included in its Response to the Rule 115 Motion as very helpful, but I would appreciate it more if Cerkez were given the opportunity to deal with that material – even though it should have been dealt with in his Rule 115 Motion in the first place. On the other hand, I would not want the prosecution to be prejudiced by the failure of Cerkez to deal with the evidence and the relevant passages from the Trial Chamber’s Judgment at the stage when he should have dealt with it. If the reply raises issues in relation to that material which go beyond the prosecution’s Response to the Rule 115 Motion, the prosecution will be granted leave to file a further response. My concern is only that the Appeals Chamber receive the assistance it needs from all of the parties in the case before it.
9. I accept that good cause has been shown, and the relief sought will be granted.
10. Mario Cerkez is to file his reply to the Response to the Rule 115 Motion on or before 2 June 2003, and he is granted an extension of pages so that that reply may consist of sixty pages.
Done in English and French, the English text being authoritative.
Dated this 16th day of May 2003,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]