Case No. IT-01-48-T


Judge Liu Daqun, Presiding
Judge Florence Ndepele Mwachande Mumba
Judge Amin El Mahdi

Mr. Hans Holthuis

Decision of:
20 September 2005







The Office of the Prosecutor:

Mr. Philip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, (“Trial 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 (“Tribunal”);

BEING SEISED of the Prosecution “Motion to strike Halilovic’s redacted final trial brief”, filed on 9 September 2005 (“First Motion”), by which the Prosecution argues that the Defence redacted final trial brief 1 “is unfair to the Prosecution and violates the principle of the equality of arms ” 2 because it is “almost twice the size” 3 permitted by the “Practice Direction on the Length of Briefs and Motions” (“Practice Direction”)4 as extended by the Trial Chamber’s oral order of 30 August 2005 (“Order”), 5 and, consequently, that the redacted final trial brief should be struck from the trial record and replaced by a new final trial brief “of the greater of 250 pages or 75,000 words”; 6

ALSO BEING SEISED of the Prosecution “Motion to strike Halilovic’s ‘Defence final trial brief public redacted version’”, filed 13 September 2005 (“Second Motion”), by which the Prosecution argues that the public redacted version of the Defence final trial brief 7 should be struck from the trial record because, while being shorter than the permitted 250 pages, at 145,061 words8 it still remains “almost twice as long as authorised”,9 which causes “incurable procedural prejudice to the Prosecution”;10

NOTING the Defence “Response to Prosecution repeated motions to strike Defence final trial brief”, filed 16 September 2005 (“Response”), by which the Defence argues , in particular, that the Prosecution has failed to show prejudice, that it is not in the interest of justice at this point in the proceedings to strike the Defence brief, that clause (B) of the Practice Direction “refers to the body text of the brief, and not to its footnotes”, that clause (C)4 of the Practice Direction should be read in the alternative,11 and consequently that both motions should be denied;

NOTING that the Practice Direction contains formatting rules for, inter alia, final trial briefs “in order to establish a limit on the length of written briefs and motions at trial and on appeal”;12

NOTING that clause (B) of the Practice Direction provides that “typeface will be 12 point with 1.5 line spacing”,13 that an “average page should contain fewer than 300 words”, 14 and that clause (C)4 provides that final trial briefs “will not exceed 200 pages or 60,000 words, whichever is greater”; 15

NOTING that upon request a Chamber may, where exceptional circumstances have been shown by the moving party, extend the page limit imposed by the Practice Direction ; 16

CONSIDERING that clause (C)6 of the Practice Direction provides clearly that “headings, footnotes and quotations count towards the above word and page limitations ” and that there is nothing in the Practice Direction that supports the Defence’s submission that clause (B) of the Practice Direction does not refer to both the body text and the footnotes;

CONSIDERING HOWEVER that it is unreasonable to require footnotes to be formatted in accordance with the first part of clause (B) provided the demands of legibility and accessibility of the text are met, something which is particularly important when the filing party, as does the Defence in the current case, makes extensive factual and legal argument in the footnotes;

CONSIDERING that a typeface size of eight points, as used in the Defence brief, does not fully meet this standard;

CONSIDERING that the rationale behind the Practice Direction mandates that its provisions be read together and that, in particular, clauses (A) and (B) be considered with the relevant sub-section of clause (C) when determining the formatting and permissible length of a brief or a motion;

CONSIDERING THEREFORE that the Defence’s argument, that Practice Direction clause (C)4 sets a requirement in the alternative, is without merit;

CONSIDERING that the Defence final trial brief fails to comply with the Practice Direction’s word limitations, as extended by the Order, by a factor of almost 2- 1, and that this failure is so evident that Defence counsel must have been aware of it when drafting or redacting each version of the final trial brief;

CONSIDERING that the Defence, in the face of the unambiguous Order specifying the limitations with regard to the final trial brief, filed two versions of the final trial brief which were not in conformity with the Practice Direction;

CONSIDERING that in view of the clear language of the Practice Direction and the Order and in case the Defence was in any doubt as to whether its final trial brief was in conformity with the requirements of the Practice Direction as extended by the Order, the Defence could have sought clarification from the Trial Chamber , which would have saved significant time, efforts and resources for all parties involved;

CONSIDERING THEREFORE that the Defence has breached the Practice Direction and the Order;

NOTING that after the Defence on 25 August 2005 had filed the first version of its final trial brief, which was 244 pages long and contained 147,566 words, the Prosecution requested a one-day postponement of the closing arguments scheduled for Monday 28 August 2005, which “extra day (would( allow the Parties additional time to prepare a proper response to opposing arguments”;17

NOTING that the Prosecution’s request was granted and that the closing arguments were held on Tuesday 30 and Wednesday 31 August 2005;

CONSIDERING that the Prosecution had the opportunity before the closing arguments to request a postponement longer than one day, and that as the Prosecution did not do so the Trial Chamber is unable to draw any other conclusion than that, in the Prosecution’s opinion, the one-day postponement was sufficient to examine the Defence final brief;18

CONSIDERING that the Prosecution’s argument, that had it “known in advance that the Defence desired to file a (redacted( brief almost two and a half times the size permitted (…( the Prosecution would have requested an extension of the page limits”, is devoid of substance because it was open to the Prosecution to request an extension of pages irrespective of any such request by the Defence should the Prosecution have considered that the number of pages permitted under the Practice Direction was insufficient in order to adequately present its case, and NOTING in this respect that the redacted and the public redacted versions of the Defence final brief did not increase, but actually decreased, in size as compared with the first version of the brief filed on 25 August 2005;19

CONSIDERING that the Prosecution’s submission in the First Motion that it “is unable to respond to the length and depth of factual and legal argument contained in the additional 233 or so pages filed” is misguided, and in fact moot, as the Prosecution, after having been granted the one-day extension it requested, responded to the content of the first version of the final trial brief, which was the most extensive of the three versions, and as the case was at the time of the First Motion closed in accordance with Rule 87(A) of the Rules of Procedure and Evidence (“Rules ”);

CONSIDERING THEREFORE that, while the Defence final trial brief fails to comply with the Practice Direction’s requirements as extended by the Order, the Trial Chamber is unable to discern any prejudice or harm to the Prosecution at this point in the proceedings when the case has been closed;

REITERATING the Trial Chamber’s statement at the hearing on 30 August 2005 that “no new […] motions shall be accepted or entertained unless there are some very extraordinary circumstances or unless there is something left over from the proceedings”;20

CONSIDERING that at this stage of the proceedings it is neither in the interests of justice, nor in the interests of procedural economy to grant the motions,


PURSUANT TO Rule 54 of the Rules,

HEREBY DENIES both Motions.

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

Judge Liu Daqun

Dated this twentieth day of September 2005,
At The Hague,
The Netherlands

[Seal of the Tribunal]

1 - Filed 7 Sep ’05.
2 - First Motion, para. 16.
3 - First Motion, para. 12. The Prosecution argues that the redacted final brief contains 145,070 words, id. para. 5.
4 - IT/184/Rev. 1, 5 Mar ’02, see further below on the relevant requirements of the Practice Direction.
5 - 30 Aug ’05, T. 12, ordering “the Defence to re-file its final trial brief, which must not exceed a 50-page extension and which respects the formatting set out in the [Practice Direction], in particular clause (A).”
6 - First Motion, paras 19-20.
7 - Filed 12 Sep ’05.
8 - Second Motion, para. 4.
9 - Second Motion, para. 1.
10 - Second Motion, para. 1.
11 - Response, paras 4-6, 8, 10, and 9, respectively.
12 - Practice Direction, preamble.
13 - Practice Direction, clause (B).
14 - Practice Direction, clause (B).
15 - Practice Direction, clause (C)4.
16 - Practice Direction, clause (C)7.
17 - Prosecution Motion to postpone scheduling order for closing arguments, 26 Aug ’05.
18 - The Trial Chamber notes in this respect the Prosecution’s reply, at the end of its closing arguments, to the direct question by the presiding Judge whether the Prosecution had anything to add: “Nothing, Your Honour. That’s our case”, 30 Aug ’05, T. 102.
19 - First Motion, para. 16.
20 - 30 Aug ’05, T. 127.