IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar: Mr Hans Holthuis
Decision of: 30 August 2001
Dario KORDIC & Mario CERKEZ
DECISION AUTHORISING RESPONDENTS BRIEF TO EXCEED THE LIMIT IMPOSED BY THE PRACTICE DIRECTION ON THE LENGTH OF BRIEFS AND MOTIONS AND GRANTING AN EXTENSION OF TIME TO FILE BRIEF
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. The appellants, Dario Kordic ("Kordic") and Mario Cerkez ("Cerkez"), filed their Appellants Briefs on 9 August 2001. An order has since been made authorising each of those briefs notwithstanding that it does not comply with the limit of 100 pages imposed by the Practice Direction on the Length of Briefs and Motions ("Practice Direction"),1 the parties having been notified earlier that such an order would be made after the official Tribunal Summer vacation had concluded.2
2. The prosecution has timeously sought an extension of time in which to file its Respondents Brief and, in the event that it is required, authority to exceed the limit of 100 pages for such brief imposed by the Practice Direction.3 It is convenient to deal first with the request for authorisation to exceed the length of the prosecutions proposed Respondents Brief.
3. The Practice Direction provides:
1. Merits appeals:
(a) The brief of an appellant on appeal from a final judgement of a Trial Chamber will not exceed 100 pages or 30,000 words, whichever is greater.
(b) The response of an appellee [sic] on an appeal from a final judgement of a Trial Chamber will not exceed 100 pages or 30,000 words, whichever is greater.
(c) The reply brief of an appellant is an appeal from a final judgement of a Trial Chamber will not exceed 30 pages or 9,000 words, whichever is greater.
4. The prosecution primarily submits that, on a proper interpretation of that provision, it is entitled to file a Respondents Brief consisting of 100 pages in relation to each Appellants Brief. It argues:
(i) If the prosecution had been the appellant against the acquittal of three accused persons, each of the acquitted respondents would necessarily be entitled to file a Respondents Brief of 100 pages to its Appellants Brief. The interpretation of the provision should not alter according to the identity of the appellant.4
(ii) Multiple convicted appellants are not limited to an Appellants Brief of 100 pages between them.5 In some cases, it could be that each appellant relies upon wholly different grounds of appeal. It is inequitable that the prosecution should be restricted to a Respondents Brief of 100 pages to answer all of the Appellants Briefs.6
(iii) If the prosecution is entitled to file a separate Respondents Brief of 100 pages in answer to each Appellants Brief, it is illogical to restrict a consolidated Respondents Brief to 100 pages.7
(iv) If one of several convicted appellants obtains an extension of time in which to file his Appellants Brief, the prosecution must nevertheless file its Respondents Brief to the earlier Appellants Briefs within the thirty days permitted by Rule 112 of the Rule of Procedure and Evidence ("Rules"), without any knowledge of what will be contained in the later Appellants Brief, and thus without knowing how much space within its 100 pages it should leave in order to respond to that later Appellants Brief.8
Alternatively, if its arguments are not accepted as to the proper interpretation of the Practice Direction, the prosecution seeks authority to file a Respondents Brief which exceeds the 100 pages permitted.9
5. The prosecution acknowledges,10 and the appellant Cerkez relies upon,11 a decision of Judge Wald as Pre-Appeal Judge in Prosecutor v Kupreskic et al,12 which proceeds upon the necessary assumption that the proper interpretation of the Practice Direction is that the prosecution, in a case such as the present, is indeed restricted to a Respondents Brief of 100 pages unless authority is given to exceed it. That decision, which is in the form of a formal order, was given in a case in which there were five appellants. Their Appellants Briefs had been filed before the Practice Direction came into effect, and some of them exceeded 100 pages. The prosecution filed its Respondents Brief totalling 365 pages. The decision states:
CONSIDERING that this situation, combined with the fact that the present case involves multiple appellants raising various issues, constitutes exceptional circumstances justifying the size of the Respondents Brief.
For these reasons, the prosecutions Respondents Brief was accepted as having been validly filed.
6. Cerkez has submitted that careful consideration should be given to Judge Walds decision before determining whether it is appropriate to depart from it.13
7. The decision does not disclose the reasoning by which Judge Wald must necessarily have concluded in the passage quoted that the proper interpretation of the relevant provision of the Practice Direction is that the prosecution in such a case is restricted to a Respondents Brief of 100 pages. It is not disclosed whether the matter was argued in the way it has been argued in the present case. It must, of course, be accepted that, in many cases, there will be some degree of common ground between multiple convicted appellants, and that it would be unnecessary for the prosecution in its Respondents Brief to produce 100 pages in answer to the case of each appellant. But the degree of common ground will differ from case to case, and it cannot be assumed that it will be 100% in every case. The probability that there will be at least some degree of common ground between multiple convicted appellants in many cases does not, in my view, justify the interpretation which has been adopted. If the issue had arisen before me for the first time, I have to say (with the greatest of respect to Judge Wald) that I would have accepted the arguments of the prosecution.
8. The Appeals Chamber has ruled now on a number of occasions that it should follow its previous decisions, although it should be free to depart from them for cogent reasons in the interest of justice.14 In my view, the need for certainty in international criminal law means that the Appeals Chamber should never disregard a previous decision simply because the members of the Appeals Chamber at that particular time do not personally agree with it.15 As the inevitable consequence of the interpretation in question here is that, in every case where there are multiple convicted appellants, the prosecution will ordinarily be successful in obtaining authority to exceed the 100 pages permitted by the Practice Direction, I see no cogent reason in the interests of justice for departing from that interpretation. But I do suggest that there is a need for further consideration to be given to the terms of the Practice Direction, if only to avoid the unnecessary time involved in dealing with those inevitable applications by the prosecution.
9. Kordic has no objection to an order authorising the prosecution to exceed the 100 page limit.16 Cerkez does not oppose the request as "a matter of principle", but he seeks to impose a condition that, if granted, such an authority should also be given to the appellants in relation to their Reply Briefs.17 It is, however, premature to grant such an authority in relation to the Reply Brief, which can only be considered in relation to the nature of the Respondents Brief when it is filed. The authority sought by the prosecution will be granted.
10. I return now to the extension of time sought. The time permitted by Rule 112 for filing a Respondents Brief expires on 10 September 2001. The prosecution seeks an extension of three weeks, to 1 October 2001.18 In support of its application, the prosecution relies upon the complexity of the issues raised in each of the Appellants Briefs - which, rather than focussing on specific findings of the Trial Chamber or specific issues, cover practically every finding underpinning the convictions, as well as a substantial number of procedural issues and the sentence imposed. It is suggested that there are some thirty-one issues raised by the appellants to which the prosecution has to respond. Many of the complaints made by the appellants relate to the prosecutions conduct of the trial, and these require a detailed understanding of the trial record and of the voluminous correspondence between the parties for an adequate and substantiated response to be made. The Senior Trial Attorney is no longer a member of the OTP, and other members of the trial team are currently engaged in other trials or in preparation for those trials.19
11. Both of the appellants object to the extension of time sought by the prosecution.
12. Kordic opposes the extension as "a matter of principle" because, he says, the prosecution is already "intimately familiar" with all of the factual and legal issues raised by this and the other Lasva Valley cases.20 He points out that the prosecution objected to the length of the extension of time which the appellants had sought in which to file their Appellants Briefs.21 Furthermore, he asserts that the prosecution had the duty to anticipate the potential arguments to be made by the appellants and to prepare its Respondents Brief accordingly before the Appellants Briefs were filed.22
13. Cerkez opposes the extension sought because, he says, the prosecution bears the greater part of the responsibility for the complexity of the case, and thus should bear the consequences of its own actions.23 He also points out that the prosecution objected to the length of the extension of time which the appellants had sought in which to file their Appellants Briefs.24 He complains that the extension of three weeks sought will interfere with his right to the speedy determination of the proceedings against him.25 He also says that the prosecution is already "intimately familiar" with the issues raised in the Lasva Valley cases.26 Finally, Cerkez says that, if an extension of time is granted, it should be no longer than a week.27 The basis upon which that period has been computed is not disclosed.
14. I am not convinced by quid pro quo arguments. The extension of time sought by the appellants, and opposed by the prosecution, went far beyond what was necessary by reason of the complexity of the case. On the other hand, the extension which the appellants did obtain from the Appeals Chamber took into account the complexity of the issues raised during the trial.28 It is no answer to the prosecutions request for equal consideration upon that basis that it is already "intimately familiar" with the issues raised in the Lasva Valley cases. The present case raised issues concerned with the political structure of the Croat leadership in Central Bosnia which were not raised in the other Lasva Valley cases. Moreover, the many procedural issues raised in the Appellants Briefs relate to this particular trial, and cannot be resolved merely by reference to what happened in the other trials. Nor was it the duty of the prosecution to assume that the appellants would challenge practically every finding of the Trial Chamber underpinning the convictions, and to prepare its Brief upon that basis before the Appellants Briefs were filed. That is quite unreal. The issues raised in the Appellants Briefs are indeed complex.29 The prosecution is entitled to equal consideration in relation to the complexity of the issues, although as the respondent to the appeal it cannot necessarily expect equal time. The other arguments put forward by the appellants are unpersuasive.
15. The extra period of time sought by the prosecution is reasonable in the circumstances. An additional consideration in the present case is the fact that the period fixed by Rule 112 commenced to run during the official Tribunal Summer vacation. The application will be granted.
16. (i) The Appeals Chamber authorises the prosecution to exceed the limit imposed by the Practice Direction on the Length of Briefs and Motions in relation to its Respondents Brief.
(ii) The Appeals Chamber extends the period within which the prosecution must file its Respondents Brief to 1 October 2001.
Done in English and French, the English text being authoritative.
Dated this 30th day of August 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1. Decision Authorising Appellants
Briefs to Exceed the Limit Imposed by the Practice Direction on the Length of
Briefs and Motion, 29 August 2001.
2. Letter from Senior Legal Officer, 10 Aug 2001.
3. Motion for Variation of Time Limit for Filing Prosecution Response to Appeal Briefs of Dario Kordic and Mario Cerkez and if Necessary Request for Enlargement of Page Limit of Response Brief, 17 Aug 2001 ("Motion").
4. Motion, pars 8-10.
5. Ibid, par 7.
6. Ibid, pars 14-15.
7. Ibid, par 13.
8. Ibid, par 12.
9. Ibid, par 16.
10. Ibid, par 11.
11. Appellant Mario Cerkezs Response to Prosecutions Motion for Variation of Time Limit for Filing Prosecution Response to Appeal Briefs of Dario Kordic and Mario Cerkez and if Necessary Request for Enlargement of Page Limit of Response Brief, 23 Aug 2001 ("Cerkez Response"), par 3.2.
12. IT-95-16-A, Order, 2 July 2001.
13. Cerkez Response, par 3.2.
14. For example: Prosecutor v Aleksovski, IT-95-14/1-A, Judgment, 24 Mar 2000 ("Aleksovski Appeal"), par 107; Prosecutor v Delalic et al, IT-96-21-A, Judgment, 20 Feb 2001, par 8.
15. Aleksovski Appeal, Declaration of Judge David Hunt, par 8.
16. Appellant, Dario Kordics Response to Prosecutions Motion for Variation of Time Limit and Page Limit Applicable to Respondents Brief, 21 Aug 2001 ("Kordic Response"), par 1.
17. Cerkez Response, pars 3.2, 3.3.
18. Motion, par 2.
19. Ibid, par 5.
20. Kordic Response, par 2. The reference to the other Lasva Valley cases is to Furundzija (IT-95-17/1), Aleksovski (IT-95-14/1), Kupreskic (IT-95-16) and Blaskic (IT-95-14).
21. Kordic Response, par 4.
22. Ibid, par 6.
23. Cerkez Response, par 2.2.1.
24. Ibid, par 2.2.2.
25. Ibid, par 2.2.3.
26. Ibid, par 2.2.4.
27. Ibid, par 2.4.
28. Decision on Motions to Extend Time for Filing Appellants Briefs, 11 May 2001, pars 19-20.
29. That statement is not intended as a criticism of the content of the Appellants Briefs.