Appeals Chamber

The Prosecutor v. Dario Kordic and Mario Cerkez - Case No. IT-95-14/2-A

"Decision on Motions to Extend Time for Filing Appellant's Briefs"

11 May 2001
Pre-Appeal Judge Hunt

Rules 66(A)(ii) and 68 of the Rules of Procedure and Evidence - Scope.

(1) The obligation imposed on the Prosecution by Rule 66(A)(ii) is restricted to the disclosure of the statements of witnesses (both their ordinary statements and any statements to be tendered in accordance with Rule 92 bis), and then only when the intention to call those witnesses has been formed.
(2) Where the Judgement is already available in a language which counsel for the accused speaks, it is not in the interests of justice for nothing to be done until the accused is able the read the Judgement.

Procedural Background

The Decision

The Appeals Chamber ordered:

(1) that the time-limit for the filing of Appellant's Briefs imposed by Rule 111 be extended until 9 August 2001 and

(2) that the Prosecution file written assurance by 21 May 2001 that it has been and is still searching through the material it received which relates to the two associated Lasva River Valley cases as well as material from the Zagreb archives and also that it certify that no material which may reasonably be considered to fall within the scope of Rule 68 has been identified so far. The Appeals Chamber otherwise refused the relief sought.

The Reasoning

Rule 66(A)

Judge Hunt reiterated that the Rule 66(A)(ii) obligation continues after Judgement in relation to any witness whom the Prosecution intends to call in proceedings following the Judgement - for example, during the course of an appeal pursuant to Rule 1156. Judge Hunt pointed out however that "[t]he obligation is restricted to the disclosure of the statements of witnesses (both their ordinary statements and any statements to be tendered in accordance with Rule 92 bis7), and then only when the intention to call those witnesses has been formed." He emphasised that "[t]he obligation imposed by Rule 66(A) does not include other material which is (or which may be) merely 'relevant' to an appellant's appeal".

Rule 68

Judge Hunt reiterated that the reference to "evidence" in Rule 68 "is not restricted to material in a form that would be admissible in evidence, but includes all information in any form which falls within the quoted description."8 Judge Hunt also reiterated that the obligation continues after judgement, "certainly in relation to proceedings before the Appeals Chamber"9 and that relief for a violation of that obligation will however "not necessarily be granted where it is shown that the evidence is already accessible to the accused."10

Judge Hunt emphasised the important function of Rule 68 and stated that the Prosecution "is required to carry out these searches because of its superior access to material which may be exculpatory in character." He added that it forms part of the Prosecution's "duty as 'ministers of justice assisting in the administration of justice'11 […] to assist an accused in this way." He pointed out that the Prosecution's "obligation under Rule 68 is not a secondary one, to be complied with after everything else is done; it is as important as the obligation to prosecute."

Judge Hunt held that "the Appeals Chamber is entitled to have a clear assurance" from the Prosecution "that it has been and is still searching through the material which it has received in relation to the two associated" Lasva River Valley cases and from the Zagreb archives, "and that, so far, no material which may reasonably be considered to fall within the scope of Rule 68 has been identified." He specified that such an assurance should be in writing12.

The extension of time

Judge Hunt emphasised that "delay in the disposition of an appeal can be just as contrary to the interests of justice as delay in the disposition of a trial." He considered that the first issue to be determined is whether the delay in the receipt of the Trial Chamber's Judgement "in a language which the accused understands justifies a complete suspension of work on the Appellant's Brief." He held that where the Judgement "is already available in a language which counsel for the accused speaks, it is not in the interests of justice" that nothing should be done until the accused is able the read the Judgement. Judge Hunt noted that each of the Appellants is represented by a counsel "who is accepted by the Tribunal as being competent in the English language"13 and that the Trial Chamber handed down its Judgement in English. He also noted that whereas Rule 7214 imposes a time-limit for preliminary Motions which "runs from the disclosure to an accused of the material which accompanied the indictment when confirmation was sought in a language which the accused understands", Rule 111 imposes a time-limit for the Appellant's Brief which runs indirectly from the pronouncement of the Judgement in whatever language it is written. Judge Hunt considered that a complete suspension until the Judgement "is available in a language which the accused understands would not be appropriate, as counsel would be able to commence the preparation of the appeal15", although some allowance must be made for the fact that the Appellant has not had the same time to read and consider the Judgement. Lastly, he noted that the B/C/S translation of the Trial Chamber's Judgement would be available in June16.

Judge Hunt considered that the second issue to be determined was whether the circumstances of the appeal are such that it falls outside the category contemplated by the time-limit for filing Appellant's Briefs imposed by Rule 111. He found that the Judgement of the Trial Chamber suggests that the trial was complex and therefore decided to extend the time-limit for filing the Appellant's Briefs.

Latest Development

On 21 May 2001, the Prosecution filed an Assurance of Compliance with Rule 68 stating "that it has been and is still searching through the material it has received in relation to the two associated" Lasva River Valley cases and from the Zagreb archives.

________________________________________
1. The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III, Judgement, 26 February 2001 (summarised and analysed in Judicial Supplement No. 23).
2. "(A) Save as provided by paragraph (C), a Trial Chamber may, on good cause being shown by motion,

(i) enlarge or reduce any time prescribed by or under these Rules;
(ii) recognize as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired.

(B) In relation to any step falling to be taken in connection with an appeal or application for leave to appeal, the Appeals Chamber or a bench of three Judges of that Chamber may exercise the like power as is conferred by paragraph (A) and in like manner and subject to the same conditions as are therein set out.
(C) This Rule shall not apply to the times prescribed in Rules 40 bis and 90 bis."
3. "An Appellant's brief of argument setting out the grounds of appeal and authorities shall be filed within ninety days of filing of the notice of appeal pursuant to Rule 108."
4. "(A) Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands

(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused; and
(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all written statements taken in accordance with Rule 92 bis; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses."

5. "An Appellant's brief of argument setting out the grounds of appeal and authorities shall be filed within ninety days of filing of the notice of appeal pursuant to Rule 108."
6. "(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing.
(B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require." See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-A, Appeals Chamber, Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (summarised and analysed in Judicial Supplement No. 19), para. 17.
7. (A) A Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment.

(i) Factors in favour of admitting evidence in the form of a written statement include but are not limited to circumstances in which the evidence in question:

(a) is of a cumulative nature, in that other witnesses will give or have given oral testimony of similar facts;
(b) relates to relevant historical, political or military background;
(c) consists of a general or statistical analysis of the ethnic composition of the population in the places to which the indictment relates;
(d) concerns the impact of crimes upon victims;
(e) relates to issues of the character of the accused; or
(f) relates to factors to be taken into account in determining sentence.

(ii) Factors against admitting evidence in the form of a written statement include whether:

(a) there is an overriding public interest in the evidence in question being presented orally;
(b) a party objecting can demonstrate that its nature and source renders it unreliable, or that its prejudicial effect outweighs its probative value; or
(c) there are any other factors which make it appropriate for the witness to attend for cross-examination.

(B) A written statement under this Rule shall be admissible if it attaches a declaration by the person making the written statement that the contents of the statement are true and correct to the best of that person's knowledge and belief and

(i) the declaration is witnessed by:

(a) a person authorised to witness such a declaration in accordance with the law and procedure of a State; or
(b) a Presiding Officer appointed by the Registrar of the Tribunal for that purpose; and

(ii) the person witnessing the declaration verifies in writing:

(a) that the person making the statement is the person identified in the said statement;
(b) that the person making the statement stated that the contents of the written statement are, to the best of that person's knowledge and belief, true and correct;
(c) that the person making the statement was informed that if the content of the written statement is not true then he or she may be subject to proceedings for giving false testimony; and (d) the date and place of the declaration. The declaration shall be attached to the written statement presented to the Trial Chamber.

(C) A written statement not in the form prescribed by paragraph (B) may nevertheless be admissible if made by a person who has subsequently died, or by a person who can no longer with reasonable diligence be traced, or by a person who is by reason of bodily or mental condition unable to testify orally, if the Trial Chamber:

(i) is so satisfied on a balance of probabilities; and
(ii) finds from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability.

(D) A Chamber may admit a transcript of evidence given by a witness in proceedings before the Tribunal which goes to proof of a matter other than the acts and conduct of the accused.

(E) Subject to Rule 127 or any order to the contrary, a party seeking to adduce a written statement or transcript shall give fourteen days notice to the opposing party, who may within seven days object. The Trial Chamber shall decide, after hearing the parties, whether to admit the statement or transcript in whole or in part and whether to require the witness to appear for cross-examination."
8. See The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-PT, Trial Chamber II, Decision on Motion by Momir Talic for Disclosure of Evidence, 27 June 2000, in which the Trial Chamber decided to interpret the word "evidence" "very widely", found that "[i]t is not restricted to material which is in a form that would be admissible in evidence" and that "[i]t includes all information which in any way tends to suggest the innocence of, or mitigates the guilt of, the accused or which may affect the credibility of prosecution evidence." (Para. 8)
9. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-A, Appeals Chamber, Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (summarised and analysed in Judicial Supplement No. 19), para. 32.
10. Ibidem, para. 38.
11. Ibidem, para. 32. See also Prosecutor's Regulation No. 2, 14 September 1999, in which the then Chief Prosecutor, Louise Arbour, stated that "prosecutors, who in these Tribunals represent the international community, play a crucial role in the administration of justice" (para. 1).
12. See The Prosecutor v. Milorad Krnojelac ("Foca - KP-Dom Camp"), Case No. IT-97-25-PT, Pre-Trial Judge Hunt, Decision on Motion by Prosecution to Modify Order for Compliance with Rule 68, 1 November 1999 (summarised and analysed in Judicial Supplement No. 9).
13. Rule 44(A) provides inter alia that "[a] counsel shall be considered qualified to represent a suspect or accused if the counsel satisfies the Registrar that the counsel is admitted to the practice of law in a State, or is a University professor of law, and speaks one of the two working languages of the Tribunal."
14. Rule 72(C) provides inter alia that "[a]ppeals under paragraph (B)(i) shall be filed within fifteen days and applications for leave to appeal under paragraph (B)(ii) shall be filed within seven days of filing of the impugned decision."
15. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-A, Appeals Chamber, Decision on the Appellant's Motions for the Production of Material, Suspension or Extension of the Briefing Schedule, and Additional Filings, 26 September 2000 (summarised and analysed in Judicial Supplement No. 19), para. 62.
16. See also The Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic ("Foca"), Case No. IT-96-23-A & IT-96-23/1-A, Appeals Chamber, Decision on the Request for Extension of Time Limit, 25 May 2001, in which the Appeals Chamber referred to the instant Decision and considered "that Counsel for the appellants have already read the Judgement in English and that, consequently, the interests of justice do not justify their not taking any steps to prepare their briefs until such time as the appellants have read the Judgement in a language they understand". (Page 2)