Case No. IT-99-36-A

IN THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Pre-Appeal Judge

Registrar:
Mr. Hans Holthuis

Decision:
20 July 2005

PROSECUTOR

Radoslav BRDJANIN

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DECISION ON MOTION FOR EXTENSION OF TIME FOR THE FILING OF PROSECUTION RESPONSE BRIEF

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The Office of the Prosecutor:

Mr. Mark J. McKeon

Counsel for the Appellant:

Mr. John Ackerman

I, MOHAMED SHAHABUDDEEN, Judge of the Appeals Chamber of the International 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");

NOTING the "Order Appointing a Pre-Appeal Judge," filed on 22 October 2004, in which the President designated me to serve as Pre-Appeal Judge in this case;

NOTING the judgment rendered in this case by Trial Chamber II on 1 September 2004 ("Judgment");

NOTING the "Decision on Motions for Extensions of Time" issued on 9 December 2004 ("Decision of 9 December 2004"), which extended the deadline for the filing of Radoslav Brdjanin’s ("Appellant’s") Appeal Brief to 50 days beyond the date of the Appellant’s receipt of a B/C/S translation of the Judgment;

NOTING that Rule 112 of the Rules of Procedure and Evidence of the International Tribunal ("the Rules") requires the Prosecution to file a Response Brief within forty days of the filing of the Appellant’s Brief;

NOTING that the B/C/S translation was delivered to the Appellant on 7 April 2005, with the consequence that the deadline for filing the Appellant’s Brief was then set at 27 May 2005, which meant that the Prosecution’s Response Brief would then have been due on 6 July 2005;

NOTING that the deadline for the Appellant’s Brief was subsequently extended to 27 June 2005 by the "Decision on Motion to Extend date for Filing Appellant’s Brief," issued on 5 May 2005, which meant that the Prosecution’s Response Brief would then have been due on 8 August 2005;

NOTING that the deadline for the Appellant’s Brief was again extended to 25 July 2005 by the "Decision on Appellant’s Motion for Extension of Time to File a Consolidated Appeal Brief and for Enlargement of Page Limit," issued on 22 June 2005 ("Decision of 22 June 2005"), which means that, assuming the Appeal Brief is filed on 25 July rather than earlier, the deadline for the filing of the Prosecution’s Response is now 5 September 2005;

BEING SEISED OF the Respondent’s "Motion for extension of Time for the Filing of Prosecution Response Brief," filed 27 June 2005 ("Motion"), which requests, pursuant to Rules 127(A)(i) and 127(B) of the Rules, a four-week extension of the time limit for the filing of its Response Brief, and argues that there is "good cause" for granting the extension because (i) based on the briefing schedule set before the most recent extension of time, key Prosecution staff assigned to the case planned holidays for the summer court recess; (ii) due to work allocations based on the prior briefing schedule, the Senior Appeals Counsel in this case is now also assigned to the Strugar case, and the drafting periods for the Respondent’s Briefs in the two cases significantly overlap; and (iii) in light of the recess and the schedule of the Strugar case, the Office of the Prosecutor will have difficulty in assigning new staff to work on the Response Brief in this case;

NOTING that the Prosecution furthermore argues that even if these factors do not amount to "good cause", an extension should nonetheless be granted because it is in the interests of justice, the Appellant does not oppose it, and no delay in the appeal process is likely to result, as the hearing of the appeal is not likely to be scheduled until next year;

NOTING that the Appellant has not filed a Response to the Motion;

CONSIDERING that Rules 127(A)(i) and 127(B) of the Rules provide that "on good cause being shown by motion", the Appeals Chamber may "enlarge or reduce any time prescribed by or under these Rules";

NOTING that, at the Status Conference held in this case on 6 June 2005, the Prosecution mentioned that if an extension of time was given to the Appellant it would likely seek an extension for its Response, and was told by the Pre-Appeal Judge to raise the issue by motion at the appropriate time;

NOTING that the Prosecution further raised this issue in paragraphs 29 to 35 of its "Response to Motion for Extension of Time to File a Consolidated Brief an for Enlargement of Page Limit", filed on 15 June 2005;

CONSIDERING that the fact that work on the brief will commence during the summer recess does not alone constitute good cause for an extension of time within the meaning of Rules 127(A)(i) and 127(B) of the Rules, because filing deadlines continue to run during the recess¹ and "because extensions of time can be granted only on the basis of concrete difficulties shown by motion"²;

CONSIDERING that the fact that fewer staff are available during the summer recess does not itself constitute "good cause",³ as the Prosecution can be expected to anticipate such difficulties and to assign work accordingly ahead of time;

CONSIDERING the fact that the Prosecution’s briefing schedule considerably overlaps with that of another case does not in itself constitute "good cause"⁴, as the Office of the Prosecutor is expected to balance the work requirements involved in multiple cases and to assign staff to cases accordingly;

CONSIDERING, however, that under the circumstances of this case, the extensions given to the Appellant have significantly complicated the planning process for the Office of the Prosecutor, making it understandably difficult to assign work to its staff in anticipation of the briefing schedule, and that in light of these circumstances taken in combination with the timing of the summer recess and the Strugar appeal schedule, and also in light of the complexity of the case,⁵ the Prosecution has established "good cause" for an extension of reasonable length;

CONSIDERING that the four-week extension requested by the Prosecution is of reasonable length under the circumstances, corresponding to the length of the extension granted to the Appellant in the Decision of 22 June 2005;

GRANT the Prosecution’s motion for extension of time for the filing of the Response Brief; and

ORDER the Prosecution to file its Response Brief no later than 3 October 2005.

Done in English and French, the English version being authoritative.

_____________________
Mohamed Shahabuddeen
Pre-Appeal Judge

Dated 20 July 2005
At The Hague
The Netherlands