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

"Decision Granting Leave to Dario Kordic to Amend his Grounds of Appeal "

9 May 2002
Pre-Appeal Judge David Hunt

Procedural Background

· On 18 February 2002, Judge David Hunt ordered that Dario Kordic file a document specifying each and every grounds of his appeal.

· On 8 March 2002, Dario Kordic filed a response containing two grounds of appeal not included in his previous Brief.

· On 22 March 2002 the Prosecution raised a partial objection to one of the new grounds submitted by Dario Kordic, i.e. the allegation that the right of the accused to a "public trial" had been violated1.

· On 5 April 2002 in the Decision on Prosecution Application, Dario Kordic was directed to show good cause for such an addition.

· On 19 April 2002 the accused filed a Motion for leave to add a new ground of appeal based on the alleged lack of adequate notice of charges.

The Decision

Judge Hunt granted Dario Kordic leave to add a new ground to his amended grounds of appeal.

The Reasoning

The pre-appeal Judge considered that the notion of good cause is "protean"2 and that "whether it is established depends on the circumstances of each case", i.e. on "the importance which the ground could have to the success of any appeal." He emphasised that "[i]nadvertence or negligence by an appellant's counsel to plead a ground of appeal with sufficient clarity should not restrict an appellant's right to raise that ground of appeal where that ground could be of substantial importance to the success of an appeal such as to lead to a miscarriage of justice if it is excluded." He pointed out that "[t]he inability of Counsel to articulate a ground of appeal properly should not exclude" the accused from raising that ground of appeal and noted that the Prosecution had "not demonstrated any relevant prejudice."

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1. Article 21(2) of the Statute provides inter alia that "[i]n the determination of charges against him, the accused shall be entitled to a fair and public hearing".
2. Rule 108 of the Rules of Procedure and Evidence reads as follows:
"A party seeking to appeal a judgement shall, not more than thirty days from the date on which the judgement was pronounced, file a notice of appeal, setting forth the grounds. The Appellant should also identify the order, decision or ruling challenged with specific reference to the date of its filing, and/or the transcript page, and indicate the substance of the alleged errors and the relief sought. The Appeals Chamber may, on good cause being shown by motion, authorise a variation of the grounds of appeal."
Regarding the notion of good cause, Rule 72(B) of the Rules provides:
"Decisions on preliminary motions are without interlocutory appeal save
(i) in the case of motions challenging jurisdiction, where an appeal by either party lies as of right;
(ii) in other cases where leave to appeal is, upon good cause being shown, granted by a bench of three Judges of the Appeals Chamber."
See also The Prosecutor v. Momcilo Krajisnik ("Bosnia and Herzegovina"), Case No. IT-00-39-AR72, Bench of the Appeals Chamber, Decision on Application for Leave to Appeal the Trial Chamber's Decision concerning Preliminary Motion on the Form of the Indictment, 13 September 2002 (summarised in Judicial Supplement No. 18); The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-A-AR77, Appeals Chamber, Decision on Application for Leave to Appeal, 25 October 2000 (summarised in Judicial Supplement No. 21).