IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar: Mr Hans Holthuis
Decision of: 27 July 2001
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
7. The Appeals Chamber orders
(1) that the Prosecutions 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["], filed on 20 July 2001, be recognised as having been validly filed notwithstanding that the period for filing it nominated by the relevant Practice Direction had expired; and
(2) that, if it wishes to do so, the prosecution may file a further response to the said application by Kordic within ten days from the date of this Decision.
Done in English and French, the English text being authoritative.
Dated this 27th day of July 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]