IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar: Mr Hans Holthuis
Decision of: 29 August 2001
Dario KORDIC & Mario CERKEZ
DECISION AUTHORISING APPELLANTS BRIEFS TO EXCEED THE LIMIT IMPOSED BY THE PRACTICE DIRECTION ON THE LENGTH OF BRIEFS AND MOTIONS
Office of the Prosecutor:
Mr Upawansa Yapa and Mr Norman Farrell
Counsel for the Defence:
Mr Mitko Naumovski for Dario
Mr Bozidar Kovacic and Mr Goran Mikulicic for Mario Cerkez
1. On 8 August 2001,1 the appellant Dario Kordic (Kordic) filed an application for authority in advance to exceed the limit imposed upon the length of an Appellants Brief imposed by the Practice Direction on the Length of Briefs and Motions.2 This was the day before the time limit imposed for his brief to be filed, which had already been extended beyond the time fixed by Rule 111 of the Rules of Procedure and Evidence ("Rules").3
2. In what has apparently become his regular practice, the appellant Mario Cerkez (Cerkez) joined in the Kordic Motion, also giving notice of doing so on the day before the time limit imposed for his brief to be filed,4 and he has relied upon the arguments put forward by Kordic.5
3. The parties have relied upon the length of the trial, the number of witnesses, the number of exhibits and the number of pre-trial motions and requests,6 as well as upon the complexity of the case.7 The excess on the part of Cerkez is relatively minor, but that on the part of Kordic is substantial.
4. It will be recognized by anyone who has had experience in drafting written submissions that it takes considerably longer to make those submissions succinct than it does to permit them to be verbose. There is also a degree of skill involved in writing succinctly, one which not all counsel share. The excess upon the part of Cerkez is permissible and it will be waived, but that on the part of Kordic, despite the arguments he has put forward, is not.
5. Nevertheless, in considering the application by Kordic, regard must be had to the background of this appeal. There have already been two applications for an extension of time one partly successful, and the other wholly unsuccessful. Attempts to delay the filing of Appellants Briefs until every piece of additional evidence has been discovered and examined were rejected upon the basis that, until such Briefs are filed, both the Appeals Chamber and the prosecution remained ignorant of the issues raised in the appeals.8 If the application by Kordic were to be rejected and his excessively long Appellants Brief accordingly rejected, the Appeals Chamber and the prosecution would have continued to remain ignorant of those issues for the considerable time which it would take to prepare a Brief which was not excessive in length. Thus, whether intentionally or otherwise, Kordic would have obtained at least some part of the extra time which he had unsuccessfully sought so that a fresh Appellants Brief could be prepared.
6. It must be kept in mind that the Rules are intended to be the servants and not the masters of the Tribunals procedures.9 A Practice Direction issued by the President in accordance with Rule 19(B) should not be ignored by the parties, but the Appeals Chamber has the discretion to dispense with any such requirement of a Practice Direction where compliance with it would cause unwarranted delay, even where relief has been sought so late that an insistence upon compliance will necessarily create such delay. However, if parties deliberately attempt to avoid compliance in this way, they may suffer severe consequences, even to the extent of having further time to achieve compliance refused with the result that their Appellants Brief is rejected entirely.
7. As that does not appear to have been the case here, and reluctantly, the non-compliance by Kordic with the requirements of the Practice Direction must also be waived.
8. The Appeals Chamber accordingly authorises the Appellants Briefs filed by both Kordic and Cerkez notwithstanding that they do not comply with the Practice Direction.10
Done in English and French, the English text being authoritative.
Dated this 29th day of
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1. Appellant Dario Kordic's Application to Exceed Page
Limits of Practice Direction on the Length of Briefs and Motions, 8 Aug 2001 ("Kordic
2. IT/184 ("Practice Direction").
3. Decision on Motion to Extend Time for Filing Appellant's Briefs, 11 May 2000.
4. Appellant Mario Cerkez's Notice of Joinder in Appellant Dario Kordic's Application to Extend Page Limits of Practice Direction on the Length of Briefs and Motions, 8 Aug 2001 ("Cerkez Motion").
5. Ibid, par 2.
6. Kordic Motion, par 4.
7. Ibid, par 7.
8. Decision on Second Motions to Extend Time for Filing Appellant's Briefs, 2 July 2001, pars 7, 12-14.
9. Kendall v Hamiliton (1879) 4 App Cas 504 at 525, 530-531.
10. The parties were notified in writing that such an order would be made after the Tribunal's Summer vacation had concluded: Letter from Senior Legal Officer, dated 10 August 2001.