BEFORE THE PRE-APPEAL JUDGE
Judge Theodor Meron, Pre-Appeal Judge
Mr. Hans Holthuis
26 April 2004
DECISION ON THE DEFENCE MOTION FOR EXTENSION OF TIME
Counsel for the Prosecution:
Mr. Norman Farrell
Counsel for the Defence:
Mr. Branko D. Lukic
Mr. John R. Ostojic
1. Appellant, Milomir Stakic, seeks an extension of time to file his Reply Brief in this appeal.1 Pursuant to Rule 113 of the Rules of Procedure and Evidence, the Appellantís Reply Brief was due on 23 April 2003, 15 days after the filing of the Prosecutionís Response Brief. The Appellant seeks an additional 28 days, until 20 May 2004.
2. In support of his request, the Appellant argues that the Prosecutionís Response Brief was not served upon his counsel until 5 days after it was filed. He further argues that the received copy was incomplete and that, as of the time of this motion, the missing portion still has not been received. Finally, the Appellant submits that because the Response Brief is longer than is normally provided under the Tribunalís rules2 and addresses issues which are complex and important, his counsel would need additional time to adequately respond to the Prosecutionís arguments.
3. Rule 127(B) allows the Appeals Chamber to grant a motion for extension of time upon a showing of good cause. In this case, the issue is close. The Appellant is correct, and the Tribunalís Registry acknowledged, that the filed copy of the Prosecutionís Response Brief was not forwarded to his counsel until 5 days after the date of the filing, due to intervening official UN holidays. This delay could justify a grant of additional time to the Defence, though not as lengthy an extension as the one the Appellant seeks.
4. By contrast, the Appellantís argument that his counsel received an incomplete copy of the Response Brief and that counselís request to the Registry to correct the situation went unanswered does not constitute good cause. Based on the explanation provided to me by the Registry, I conclude that the portion of the Response Brief not received by the Appellant consisted of only two pages. This omission was due to an inadvertent defect in a facsimile transmission and not to any lack of diligence on the part of the Registry. The material not received by the Defence is a very small portion of the entire Response Brief, and its non-receipt in time could not have imperilled the Defenceís ability to prepare a reply to such an extent as to justify a grant of extra time. Furthermore, the Registry represents to me that it has not received any of the requests for the missing pages which Appellantís counsel attests to have made. Interpreting the facts in the light most favourable to the Appellant, it appears that electronic communications sent by Defence counsel to the Registry remained undelivered. While the problem may not have been of the Defence counselís making, if counsel seeks to hold the Registry responsible for the malfunction of their transmission equipment, he must accept responsibility for failure to ensure that his own communications reach the Registry. The Defenceís complaint about the non-receipt of a portion of the Response Brief and the Registryís alleged failure to remedy the problem do not justify a grant of additional time.
5. What tips the balance in favour of granting the extension sought is the acknowledged complexity of issues in this appeal. The difficult nature of these issues is evidenced by the fact that the Prosecution sought, and was granted, an extension of pages to present its arguments in the Response Brief.3 The consequent complexity of the Prosecutionís Response Brief constitutes a valid reason to grant the Appellantís request for an extension of time to enable him to adequately respond to the Prosecutionís arguments.4 It would be in the interests of both the Appeals Chamber and the Prosecution to have the Appellant present a carefully written and thorough Reply Brief.5 A grant of the extension sought by the Appellant will not delay the consideration of this appeal or prejudice the opposing party. In these circumstances, the extension sought by the Appellant is justified and his motion should be granted.
6. There is one more matter than must be taken up. The Appellant designated his motion as confidential. He does not explain the reason for this restrictive label, nor is it apparent from the motion what the reason might be. A document should be filed on a confidential basis only when it contains information which, if disclosed, might cause prejudice, concerns about safety, or serious embarrassment to a party or a witness, or where the very fact of filing might have the same result. In this case, the fact that the Appellant requested an extension of time raises none of these concerns. The information contained in the Appellantís motion, most of which is relayed in this decision, also poses no risk of prejudice, endangerment or embarrassment.
7. The proceedings before the Tribunal, both oral and written, are open to the public. The openness of the proceedings is important to ensure their integrity and to secure public respect for the judicial process. The only exception to this principle of transparency is when the information is sensitive and its disclosure will lead to the consequences which, as explained above, risk damaging the proceedings themselves. By labelling routine filings as confidential without justifiable reason, a party contravenes this important policy of the Tribunal. The counsel is reprimanded for having improperly designated his motion as confidential. The Registry is directed to make the filing public.
For the reasons above, I HEREBY GRANT the Appellantís motion and ORDER that the Appellant shall have until 20 May 2004 to file his Reply Brief. I also DIRECT the Registry to designate ďAppellant, Milomir Stakicís Urgent Motion to Enlarge Time for Filing of a Reply Brief in Support of His Appeal,Ē filed confidentially on 20 April 2004, as a public document.
Done in English and French, the English text being authoritative.
Dated this 26th day of April 2004,
At The Hague,
Judge Theodor Meron
[Seal of the Tribunal]