The Prosecutor v. Miroslav Kvocka, Milojica Kos, Mlado Radic, Zoran Zigic and Dragoljub Prcac - Case No. IT-98-30/1-A

"Decision on Motion by Zoran Zigic for Issuing
of a Binding Order to Prosecution"

7 March 2002
Judge Hunt, Pre-Appeal Judge

Procedural Background

· On 27 December 2001, Zoran Zigic filed a Motion in which the accused requested that the Appeals Chamber issue a binding order to the Prosecution to comply with the Decision on Zoran Zigic's Motion for Rescinding the Confidentiality of Schedules Attached to the Indictment rendered by Trial Chamber I on 22 February 2001, ordering the Prosecution to file various documents.

· On 7 January 2002, the Prosecution responded and claimed that it had fully complied with the Decision on 1 March 2001.

· On 10 January 2002, in a confidential reply, the Defence disputed the Prosecution's claim.

The Decision

Judge Hunt dismissed the Motion and directed the Registrar to withhold payment of the whole of the fees associated with the Motion and/or costs thereof.

The Reasoning

The pre-appeal Judge considered that the Prosecution had fully complied with the Decision by filing its submissions on 1 March 2001. He found that the Motion was frivolous and stated that "the bringing of a frivolous Motion may be subject to sanction pursuant to Rule 46(C) of the Rules of Procedure and Evidence1.

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1. Rule 46(C) of the Rules was amended at the 25th Plenary Session on 12 and 13 December 2001 [IT/199 of 21 December 2001, published in Judicial Supplement No. 29)] and entered into force on 28 December 2001. Rule 46(C) provides that: "In addition to the sanctions envisaged by Rule 46, a Chamber may impose sanctions against counsel if counsel brings a motion, including a preliminary motion, that, in the opinion of the Chamber, is frivolous or is an abuse of process. Such sanctions may include non-payment, in whole or in part, of fees associated with the motion and/or costs thereof."
Regarding the non-payment of fees and/or costs associated with frivolous Motions, see The Prosecutor v. Zoran Kupreskic et al. ("Lasva River Valley"), Case No. IT-95-16-A, Appeals Chamber, Decision on Motions by Zoran Kupreskic, Mirjan Kupreskic and Vladimir Santic for Leave to Appeal the Decision of the Appeals Chamber dated 29 May 2001, 18 June 2001 (summarised in Judicial Supplement No. 25) and the text-box in this issue of the Judicial Supplement.
See also The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-R, Pre-Review Judge Fausto Pocar, Decision on Motion for Extension of Time, 14 December 2001, in which the Judge noted that the Motion was filed two days after the expiration of the time frame set out for the filing of the Reply. The Pre-Review Judge found that it was "unacceptable" that Defence counsel paid by the Tribunal "dedicate themselves to other professional commitments to the neglect of their client". Judge Pocar underscored that the misconduct of Defence counsel "should not penalise the individuals tried" before the Tribunal and invited "the Registrar to consider withholding payment of any fees or costs involved in the preparation of the Motion".
Regarding recent case-law of the International Criminal Tribunal for Rwanda (hereinafter the "ICTR") on this issue, see Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A, Pre-Hearing Judge Claude Jorda, Order (Extremely Urgent Motion for Extension of the Time-Limits for Filing the Defence Brief in Reply to the Prosecutor's Response), 2 July 2001, in which the Judge considered that the fact that the accused had titled his application "Extremely Urgent Motion" constitutes an abuse of process under Rules 107 and 73(E) of the ICTR Rules of Procedure and Evidence. However, Judge Jorda found that there were "no grounds to order the non-payment, in part, of fees associated with the Motion for extension and/or related costs as provided for under Rule 73(E) of the Rules" of the ICTR.
See also The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Trial Chamber III, Decision Pursuant to Rule 73(E) in relation to the Defence Extremely Urgent Motion for Review of the Oral Decision of 14 November 2001, in which the Trial Chamber considered that "the Motion was frivolous and baseless and that it was not supported by any relevant evidence". Pursuant to ICTR Rule 73(E), the Trial Chamber directed the Registry not to pay to the Defence any fees or costs associated with the Motion.
See also The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-I, Trial Chamber I, Decision on the Defence Motion opposing the Hearing of the Ruggiu Testimony against Jean-Bosco Barayagwiza, 31 January 2002, in which the Trial Chamber noted that the Defence was "again raising a motion, which it had moved once before and which was finally adjudicated by the Trial Chamber in its Decision of 19 September 2000." It concluded that the Motion was "frivolous" and directed the Registrar, pursuant to Rule 73(E) of the Rules, not to pay to the Defence any fees or costs associated with this Motion." In the same case, see also the Decision on the Defence's Request to have the Report and the Testimony of Expert Witness Jean-Pierre Chrétien declared inadmissible, rendered by Trial Chamber I that same day.
See also The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Pre-Appeal Judge Claude Jorda, Decision ("Requête de l'Intimé en demande de délais supplémentaires"), 25 January 2002.
See also Jean-Bosco Barayagwiza v. The Prosecutor, Case No. ICTR-99-52-A, Appeals Chamber, Decision (Interlocutory Appeal against the 27 August 2001 Trial Chamber I Oral Decision), 1 February 2002, in which the Appeals Chamber considered that the appeal was "frivolous" and constituted an "abuse of process under Rule 73(E) of the Rules read with Rule 107 thereof".
See also The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Trial Chamber III, Decision on Defence Motion for Judicial Notice and Presumption of Facts pursuant to Rules 94(B) and 54, 6 February 2002, in which the Trial Chamber found that "the vast bulk of the materials filed in support of the Defence Motion w[as] irrelevant" to the trial proceedings. It underscored that it had "previously brought this to the attention of Defence Counsel in earlier matters." The Trial Chamber expressed the view that this constituted "an abuse of process" (para. 23) and directed the Registrar to pay only one half of Defence Counsel fees and costs" incurred in making the Motion.