IN THE APPEALS CHAMBER

Before: Judge David Hunt, Pre-Appeal Judge

Registrar: Mr Hans Holthuis

Decision of: 27 July 2001

PROSECUTOR

v

Dario KORDIC& Mario CERKEZ

________________________________________________

DECISION ON MOTION BY PROSECUTION FOR VARIATION OF TIME LIMIT TO FILE A RESPONSE TO AN APPLICATION BY THE APPELLANTS AND PERMITTING FURTHER RESPONSE TO BE FILED

________________________________________________

Office of the Prosecutor:

Mr Upawansa Yapa and Mr Norman Farrell

Counsel for the Defence:

Mr Mitko Naumovski for Dario Kordic
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez

1. By a motion filed on 21 June 2001, the appellant Dario Kordic("Kordic") sought an order directed to Bosnia-Herzegovina and to the Federation of Bosnia-Herzegovina compelling the relevant entity to give to him "full, free, and direct access to the entire ABiH archive" which, it is alleged, had been unsuccessfully sought from those entities during the trial but to which access had been obtained by the prosecution during the trial.¹ Filed as part of the Kordic Motion was a considerable amount of material from the trial which had been filed by the Defence on a confidential and ex parte basis. The appellant Mario Cerkez ("Cerkez") joined in that application.²

2. The relevant Practice Direction requires the respondent to such a Motion to file a response within ten days of the filing of the motion.³ Although the Kordic Motion was filed on 21 June, the material from the trial filed on a confidential and ex parte basis was not received by the prosecution until 6 July. It is reasonable in those circumstances to have expected the prosecution to file its response on or before 16 July. It did not, however, file its response until 20 July, for reasons which it has elaborated in an application pursuant to Rule 127 of the Rules of Procedure and Evidence ("Rules") for an order recognising the filing as validly done notwithstanding the expiration of the period nominated by the Practice Direction.⁴

3. The Prosecution application for such relief is opposed by the appellants, upon the basis that no good cause has been shown for any delay beyond 16 July.⁵ The delay arose out of the quite reasonable desire by the prosecution to include within its response its explanation for the non-disclosure by it during the trial of its possession of the ABiH archive.⁶ When it became apparent that it would not be able to do so within time, it was already too late. In those circumstances, a four day delay is hardly serious, and the order sought pursuant to Rule 127 will be made.

4. The Kordic Reply, however, reveals a significant re-casting of the original Kordic Motion. Rather than an order directed to the two entities compelling them to produce the documents in question as originally sought, Kordic now states that "mere issuance of a new binding order to produce documents or information would be futile".⁷ Rather, he says, he requests only "essentially the same access to the same ABiH archive that the Prosecution has already obtained",⁸ upon the basis that the basis that the prosecution had had access to that material during the trial when he had not had similar access.⁹

5. The significance in the change made is that, despite the claim in conclusion of the Kordic Reply,¹⁰ the application is in reality an application for access to the precise material which is presently in the possession of the prosecution, over which neither entity presently has the power to produce. That is a considerable change, and the prosecution has not had the opportunity to respond to such an application. It will therefore be given a further ten days from today to file a further response if it wishes to do so. Whilst the Appeals Chamber still expects an explanation from the prosecution for its non-disclosure of the ABiH archive during the trial, any further response to the Kordic Motion as interpreted by the Kordic Reply should not be delayed for the purposes of including that explanation. Any reply to such further response may be filed in accordance with the relevant Practice Direction.

6. When the time for filing the further response and any reply has expired, the filings will be referred to the five judges assigned to hear the appeal for their determination of the Kordic Motion in which Cerkez has joined. Specific reference is made to this otherwise self-evident fact because of a footnote to the Kordic Reply, in which he "reserves the right to request leave to file an appeal" if his arguments in relation to the ABiH archive are not accepted.¹¹ Kordic has made it clear that his original Motion is made under Rule 54, not Rule 54bis.¹² There is no right to seek leave to appeal from decisions of the Appeals Chamber upon motions for such relief during an appeal against judgment.¹³

Disposition

7. The Appeals Chamber orders

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

Dated this 27^th day of July 2001,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Pre-Appeal Judge

[Seal of the Tribunal]

1. Application for Issuance of an Order to Bosnia-Herzegovina and to the Federation of Boznia-Herzegovina Compelling the Production of Documents and Other Materials, 20 June 2001 (“Kordic Motion”), par 6. The emphasis appears in the original.
2. Appellant Mario Cerkez’s Notice of Joinder in Appellant Dario Kordic’s Application for Issuance of an Order to Bosnia-Herzegovina and to the Federation of Boznia-Herzegovina Compelling the Production of Documents and Other Materials, 25 June 2001 (“Cerkez Motion”).
3. Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal, 1 Oct 1999, IT/155, par 11.
4. Motion for Variation of Time Limit for Filing Response and Prosecution’s Response to "Application for Issuance of an Order to Bosnia-Herzegovina and to the Federation of Boznia-Herzegovina Compelling the Production of Documents and Other Materials["], 20 July 2001 ("Prosecution Motion"), pars 6-10.
5. Dario Kordic’s Reply to Motion for Variation of Time Limit for Filing Response and Prosecution’s Response to “Application for Issuance of an Order to Bosnia-Herzegovina and to the Federation of Boznia-Herzegovina Compelling the Production of Documents and Other Materials["], 24 July 2001 (“Kordic Reply”), par 1; Appellant Mario Cerkez’s Notice of Joinder in Appellant Dario Kordic’s Reply to Motion for Variation of Time Limit for Filing Response and Prosecution’s Response to “Application for Issuance of an Order to Bosnia-Herzegovina and to the Federation of Boznia-Herzegovina Compelling the Production of Documents and Other Materials”, 24 July 2001 (“Cerkez Reply”).
6. Prosecution Motion, par 9.
7. Kordic Reply, par 11.
8. Ibid, par 3.
9. Ibid, par 9. Again, the emphasis appears in the original.
10. He again seeks the relief sought in his original motion.
11. Footnote 3.
12. Kordic Reply, par 2.
13. Prosecutor v Kupreskic, Case IT-95-16-A, Decision on Motions by Zoran Kupreškic, Mirjan Kupreskic and Vladimir Santic for Leave to Appeal the Decision of the Appeals Chamber Dated 29 May 2001, 18 June 2001, p 2. The decision of the Appeals Chamber to grant leave to appeal from its judgment in Prosecutor v Tadic, Case IT-94-1-A-R77, Judgment on Allegations of Contempt Against Prior Counsel, Milan Vujin [Decision on the Application for Leave to Appeal, 25 Oct 2000] related to a Judgment in a matter which the Appeals Chamber heard sitting as a chamber of first instance, not from a decision on a motion heard by the Appeals Chamber during an appeal against judgment.