Case No. IT-02-60/1-A
BEFORE THE PRE-APPEAL JUDGE
Before:
Judge Mehmet Güney
Registrar:
Mr. Hans Holthuis
Decision:
21 October 2004
Momir NIKOLIC
v.
PROSECUTOR
_______________________________
DECISION ON APPELLANT’S MOTION TO AMEND NOTICE OF APPEAL
Counsel for the Appellant:
Ms. Virginia C. Lindsay
Counsel for the Prosecutor:
Mr. Norman Farrell
I, MEHMET GÜNEY, Judge of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991 ("International Tribunal"),
NOTING the Judgement rendered in this case by Trial Chamber I, Section A, on 2 December 2003;
NOTING "Momir Nikolic’s Notice of Appeal" filed on 30 December 2003 by Momir Nikolic ("Notice of Appeal" and "Appellant", respectively);
NOTING "Momir Nikolic’s Opening Brief on Appeal" filed confidentially on 24 May 2004 ("Appellant’s Brief") and the "Redacted and Conformed Momir Nikolic’s Opening Brief on Appeal" filed on 21 September 2004;
NOTING the "Prosecution’s Response Brief on Appeal" and the "Corrigenda to Prosecution’s Response Brief on Appeal" filed confidentially by the Prosecution on 5 and 30 July 2004 respectively (together "Respondent’s Brief");
NOTING the "Appellant’s Reply Brief on Appeal" filed confidentially on 20 August 2004 and the "Notice of Withdrawal of Section II.A. of Appellant’s Reply Brief on Appeal and Relevant Portions of Related Pleadings" filed confidentially on 15 September 2004 by the Appellant;
BEING SEISED OF the "Appellant’s Motion to Amend Notice of Appeal" filed on 5 October 2004 ("Motion"), whereby the Appellant moves the Appeals Chamber to authorise the filing of an amended notice of appeals in the form appended to the Motion ("Proposed Amended Notice of Appeal") ;
NOTING that the Proposed Amended Notice of Appeal (i) includes, under grounds 1A., 1.B. and 5, the grounds named I, II.A and II.B and developed in the Appellant’s Brief ("Grounds 1.A., 1.B. and 5"), (ii) does not include ground 5 of the original Notice of Appeal, and (iii) suggests some formal modifications;1
NOTING that, in support of his Motion, the Appellant submits inter alia:
(i) that the issues developed under Grounds 1.A., 1.B. and 5 "have been fully briefed by both parties";2
(ii) that the Prosecution indicated in the Respondent’s Brief that it has "no objection to these grounds of appeal";3
(iii) that the proposed Amended Notice of Appeal appended to the Motion would put the Notice of Appeal in conformity with the Appellant’s Brief;
NOTING the "Prosecution’s Response to Appellant’s Motion to Amend Notice of Appeal" filed on 15 October 2004, whereby the Prosecution indicates having no objection to the Motion;
NOTING that the Appellant did not file a reply;
NOTING that, pursuant to Rule 108 of the Rules of Procedure and Evidence ("Rules"), the "Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal";
CONSIDERING that the issues raised in the proposed Grounds 1.A., 1.B. and 5 have been fully addressed by the Appellant in the Appellant’s Brief4 and by the Prosecution in the Respondent’s Brief;5
CONSIDERING, therefore, that no prejudice would be caused to the opposing party if leave to add Grounds 1.A., 1.B. and 5 to the Notice of Appeal was granted;
CONSIDERING that the Appellant had put the Appeals Chamber and the Prosecution on notice that he "will not be pursuing issue 5 from his Notice of Appeal";6
CONSIDERING that the addition of the proposed new grounds of appeal and the deletion of the ground not addressed would put the Notice of Appeal in conformity with the Appellant’s Brief;
CONSIDERING that the formal modifications suggested by the Appellant are very minor and do not affect the content of the Notice of Appeal;
FINDING therefore that there is good cause within the meaning of Rule 108 of the Rules to authorise the requested variation of the grounds of appeal;
FOR THE FOREGOING REASONS,
GRANT the Motion; and
ORDER the Appellant to file his Proposed Amended Notice of Appeal no later than Tuesday 26 October 2004.
Done in English and French, the English text being authoritative.
Done this 21st day of October 2004,
At The Hague, The Netherlands.
______________________
Mehmet Güney
Pre-Appeal Judge
[Seal of the Tribunal]