Case No.: IT-02-60/1-A

BEFORE THE PRE-APPEAL JUDGE

Before:
Judge Mehmet Güney

Registrar:
Mr. Hans Holthuis

Decision:
1 April 2005

Momir NIKOLIC

v.

PROSECUTOR

______________________________________

DECISION ON SECOND DEFENCE MOTION TO ENLARGE TIME FOR FILING OF REPLIES

______________________________________

Counsel for the Appellant:

Mr. Rock Tansey

Counsel for the Prosecutor:

Mr. Norman Farrell

 

I, Mehmet Güney, Judge of the Appeals Chamber of the International Criminal 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") and Pre-Appeal Judge in this case,

NOTING the "Appellantís Motion for Leave to File Second Amended Notice of Appeal" and the confidential "Appellantís Second Motion to Admit Additional Evidence" filed by Momir Nikolic ("Appellant") on 23 December 2004 ("Appellantís Motions");

NOTING my confidential Decision of 7 February 2005 authorizing the Prosecution to file its responses to the Appellantís Motions by 21 February 2005 and instructing the Appellant to file his replies to the Prosecutionís responses within twenty days of the filing of the Prosecutionís response, namely, by 14 March 2005;1

NOTING my Decision of 8 March 2005 granting the Appellant a further extension of time, until Monday 11 April 2005,2 to file his replies to the Prosecutionís Responses;3

BEING SEISED OF the "Second Motion to Enlarge Time for Filing of Replies Relating to Appellantís Second Motion to Admit Additional Evidence and Motion for Leave to File a Second Amended Notice of Appeal" filed on 31 March 2005 by the Appellant ("Second Motion for Extension of Time"), whereby he seeks a further extension of eight weeks to file his replies to the Prosecutionís Responses;

NOTING that, in support of his request, the Appellant submits, inter alia, that:

  1. Counsel for the Appellant was not assigned until 16 February 2005 and was unable to begin reviewing the record until 28 February 2005;4

  2. the amount of materials that required the Counselís review was significantly greater than "originally understood" and, as a result, his ability to consult with Appellant was delayed to 30 March 2005; 5

  3. because of the complex nature of the issues presented in the two pending motions, Counsel must now undertake a further review of some of the evidence presented in the Blagojevic and Jokic trial proceedings;6

  4. before being able to proceed with drafting the replies, Counsel needs time to familiarize himself with the record on appeal, the appellate pleadings, and the legal authorities cited, and to properly and fully consult with the Appellant, which will not result in prejudice to either the Appellant or the Prosecution;7

  5. in addition, "Counsel has a previous commitment for a major terrorism trial scheduled to begin 11 April 2005 and lasting six to eight weeks" ("terrorism trial");8

NOTING the "Prosecution Response to Second Motion to Enlarge Time for Filing of Replies Relating to Appellantís Second Motion to Admit Additional Evidence and Motion for Leave to File a Second Amended Notice of Appeal" filed on 1 April 2005, in which the Prosecution indicates that it does not oppose the Second Motion for Extension of Time on the sole basis that the Appellantís Counsel needs two additional weeks after the end of the terrorism trial to acquaint himself with the case, consult further with his client and file the replies;

NOTING that pursuant to paragraph 12, Section IV, of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal9 ("Practice Direction"), an appellant may file a reply within four days of the filing of the response;

NOTING that, pursuant to Rule 127 of the Rules of Procedure and Evidence of the International Tribunal and paragraph 19, Section VIII, of the Practice Direction, the Appeals Chamber may vary any time-limit prescribed for the filing of written submissions;

NOTING that the Appellant was granted two extensions amounting to a further 45 days for the filing of his replies;

CONSIDERING that it is in the interests of justice to allow newly appointed Counsel to familiarise himself with the case and that it was on this specific ground that the second extension of time was granted;

CONSIDERING nevertheless that former Counsel for the Appellant is currently part of the legal team of the newly appointed Counsel and is therefore able to significantly assist the new Counsel in preparing the replies;

CONSIDERING moreover that the time required to prepare a reply should not be significant since a reply is restricted to dealing with issues raised in the opposite partyís response and cannot be used to supplement the initial motion with new arguments;

STRESSING that other professional commitments of counsel should not have any bearing on the responsibilities of counsel towards their client and the International Tribunal;

FINDING that good cause has not been shown to grant a further extension of time to the Appellant for the filing of his replies to the Prosecutionís Responses;

FOR THE FOREGOING REASONS,

DENY the Second Motion for Extension of Time; and

REMIND the Appellant that the filing of his replies is due no later than Monday, 11 April 2005.

 

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

Done this first day of April 2005,
At The Hague,
The Netherlands.

______________________
Mehmet Güney
Pre-Appeal Judge

[Seal of the International Tribunal]


1. Decision on Prosecution Urgent Request for Extension of Time and Motion for Access, Confidential, 7 February 2005.
2. Decision on Motion to Enlarge Time for Filing of Replies Relating to Appellantís Second Motion to Admit Additional Evidence and Motion for Leave to File a Second Amended Notice of Appeal, 8 March 2005.
3. Prosecutionís Response to Appellantís Motion for Leave to File Second Amended Notice of Appeal and Prosecutionís Response to Appellantís Second Motion to Admit Additional Evidence, both filed confidentially on 21 February 2005 (together "Prosecutionís Responses").
4. Second Motion for Extension of Time, para. 6.
5. Second Motion for Extension of Time, para. 7.
6. Second Motion for Extension of Time, para. 8.
7. Second Motion for Extension of Time, para. 9.
8. Second Motion for Extension of Time, para. 11.
9. IT/155/Rev.2, 21 February 2005.