Decision on Second Motions to extend Time for filing Appellant's Briefs

IN THE APPEALS CHAMBER

Before: Judge David Hunt, Pre-Appeal Judge

Registrar: Mr Hans Holthuis

Decision of: 2 July 2001

PROSECUTOR

Dario KORDIC & Mario CERKEZ

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DECISION ON SECOND MOTIONS TO EXTEND TIME FOR FILING APPELLANT’S BRIEFS

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Office of the Prosecutor:

Mr Upawansa Yapa and Mr Norman Farrell

Counsel for the Defence:

Mr Mitko Naumovski for Dario Kordic
Mr Božidar Kovacic and Mr Goran Mikulicic for Mario Cerkez

1. On 11 May 2001, and on the application by both appellants, the Appeals Chamber extended until 9 August 2001 the time limit for the filing of Appellant’s Briefs, imposed by Rule 111 of the Rules of Procedure and Evidence ("Rules").¹ In doing so, consideration was given to:

(i) the fact that the B/C/S translation of the Trial Chamber’s judgment would not be available until June,² and

(ii) the awaited production of additional material by the prosecution, pursuant to Rule 68 ("Disclosure of Exculpatory Evidence"), from archives made available to it last year.³

2. In the course of considering the first of those matters, it was stated in that decision that each of the two appellants is represented by one counsel who is accepted by the Tribunal as being competent in the English language (the language in which the Trial Chamber’s judgment was given).⁴ In the course of considering the second of these matters, it was stated that, if the appellants, having examined any of the additional material to which they have been given access, believe that there are additional arguments or grounds of appeal available to them, it would be open to them to make an application to add those arguments or grounds of appeal to their Appellant’s Briefs after they have been filed.⁵

3. On the day before the Status Conference held on 22 June, the appellant Dario Kordic ("Kordic") filed a fresh application for a further delay in the filing of his Appellant’s Brief.⁶ The Appellant Mario Cerkez ("Cerkez") orally joined in that Motion during the course of the Status Conference,⁷ and he has since filed a formal motion to that effect.⁸

4. Kordic has challenged both of the statements in the previous decision identified in par 2, supra. His counsel (Mr Mitko Naumovski), it is said, does not read English well, and he has not been certified by the Registry as being competent in the English language. He had appeared at the trial as co-counsel with English speaking lawyers, but he now appears alone, and that, since the B/C/S translation of the Trial Chamber’s judgment became available earlier last month, he has become aware of "many points and much nuance of language" which had escaped him when reading the English version.⁹ Cerkez does not rely upon these arguments, it being conceded that he is represented by counsel who is competent in the English language.¹⁰

5. Counsel seeking to represent an accused person is required to satisfy the Registrar, inter alia, that he speaks one of the two working languages of the Tribunal, English and French,¹¹ to demonstrate that he is qualified to appear as counsel.¹² The Registrar does have a discretion to admit a counsel who does not speak either of those languages, but who speaks the native language of the accused, where the interests of justice so demand, and he may impose such conditions as are deemed to be appropriate.¹³ No such discretion has been exercised by the Registrar in favour of Mr Naumovski. These rules came into effect only in July 2000, but no doubt that discretion would otherwise have been exercised in his favour if sought at the trial, because counsel appearing with him in the trial were native English speakers.¹⁴ It is by no means clear whether such a discretion would be exercised in his favour now that Mr Naumovski is appearing alone. It has proved to be a major impediment to the smooth operation of the Tribunal’s procedures where the accused is not represented by any counsel who is able to speak one or the other of the Tribunal’s working languages.

6. It is the obligation of Mr Naumovski to satisfy the Registrar that he is qualified to appear for Kordic in the appeal or that the interests of justice nevertheless demand his admission as counsel for that purpose. At the present time, the Appeals Chamber is entitled to assume that Mr Naumovski is sufficiently competent in the English language. It should also be noted that Mr Naumovski is presently being assisted in the preparation of certain appeal papers on a pro bono publico basis by persons who were associated with him in the trial and who are native English speakers.¹⁵

7. Kordic has also argued that it would be both unfair and inefficient for the additional material to which the defence is being given access to be used only to supplement his Appellant’s Brief; the only viable course, he says, is to defer briefing entirely until there has been "full, fair and direct access" to these materials.¹⁶ He says that the recent disclosure by the prosecution of one particular document has made the situation distinguishable from that previously considered by the Appeals Chamber.¹⁷ The previous documents disclosed by the prosecution to the appellants either related to two associated "Lasva Valley" cases,¹⁸ or came from the National Archives of the Republic of Croatia in Zagreb ("Zagreb Archives"). However, the document revealed by the prosecution only on 13 June is one which was found by the prosecution during searches through what has been described as the "ABiH archive".¹⁹

8. This document purports to be a security report made to the Bosnia and Herzegovina Army ("ABiH"), dated 16 April 1993, stating that all units of the 7^th Muslim Brigade were in a state of readiness, given what is stated to be the deterioration of relations between the ABiH and units of the Croatian Defence Council (HVO) in Zenica and other parts of Central Bosnia. The document purports to report that an artillery attack had been launched that morning on Vitez, that the villages of Vranjska, Vecerska and Ahmici were shelled, that fierce fighting was going on in Ahmici, and that Army members have been forced to retreat to reserve positions.

9. It is said that this document constitutes "powerful" evidence which supports the defence case upon these issues, and which contradicts the prosecution’s case which was accepted by the Trial Chamber.²⁰ It is also said that the mere existence of the ABiH archive indicates that other documents relevant to these issues must also exist.²¹ Such documents had been sought on many occasions during the trial, and a binding order to both Bosnia-Herzegovina and the Federation of Bosnia-Herzegovina had been issued by the Trial Chamber on 18 July 2000 requiring their production.²² The existence of the ABiH archive had not been revealed until June this year.²³

10. The prosecution has conceded that it obtained the ABiH archive during an operation in October 2000, the documents having been located on a shelf in the ABiH 3^rd Corps archive room.²⁴ At that time, the trial was still in progress and the defence cases were being presented.²⁵ It is alleged that the prosecution knew full well that the defence had been seeking access to such an archive,²⁶ yet the prosecution did not reveal to either the defence or the Trial Chamber that it had come into possession of the archive which had been sought. Although a search of this archive is said to have been commenced by the prosecution in October, in compliance with its obligations pursuant to Rule 68, this document now disclosed was not found until June.²⁷ These matters obviously require proper investigation and explanation by the prosecution.

11. Kordic has filed a fresh application for a binding order to both Bosnia-Herzegovina and the Federation of Bosnia-Herzegovina for the production of further documents,²⁸ in which Cerkez has joined.²⁹ The prosecution has yet to respond to that application. There is nevertheless a possibility that other documents may be forthcoming, either from that source or from the continuing search by the prosecution through the ABiH archive.³⁰

12. It is accepted that the absolutely perfect Appellant’s Brief is one which addresses, at the one time, every issue which is to be argued in the appeal. However, this Tribunal does not operate under absolutely perfect conditions. The circumstances under which all three Lasva Valley cases presently under appeal are proceeding make that clear. In one of the other two cases,31 the applicant was required to file his Appellant’s Brief notwithstanding the possibility that further material would continue to become available, and both the Appeals Chamber and the prosecution are now familiar with most of the issues to be raised in that appeal. In the third case,32 the appellant has not been required to file his Appellant’s Brief, and there is no present sign as to when either the Appeals Chamber or the prosecution will become even aware of the issues to be raised in that appeal.

13. Each of the appellants says that he has issues to raise in the appeal other than the existence of this new exculpatory evidence.³³ No reason, other than an understandable desire for perfection, exists as to why the appellants cannot file their Appellant’s Briefs in relation to those other issues. Cerkez has nevertheless argued that a reasonable balance must be achieved between the two guarantees given to the accused by the Tribunal’s Statute: one to have adequate time and facilities for the preparation of his defence,³⁴ and the other to be tried without undue delay.³⁵ The possibility that additional evidence will become available, and that supplements may have to be added to such Appellant’s Briefs, does not deny to the appellants the guarantees given to them by the Tribunal’s Statute. The Appeals Chamber will understand the circumstances in which the Appellant’s Briefs have been compiled.

14. However, the experience gained in the other two Lasva Valley appeals demonstrates that counsel will always find some reason why the absolutely perfect Appellant’s Brief should be delayed. It is inappropriate that both the Appeals Chamber and the prosecution should remain ignorant of the issues to be raised in appeals until an absolutely perfect Appellant’s Brief can be completed.

1. For these reasons, both the Kordic Motion and the Cerkez Motion are refused.

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

Dated this 2^nd day of July 2001,
At The Hague,
The Netherlands.

________________________
Judge David Hunt
Pre-Appeal Judge

[Seal of the Tribunal]

1. Decision on Motions to Extend Time for Filing Appellant’s Briefs, 11 May 2001, par 23.
2. Ibid, par 18.
3. Ibid, par 22.
4. Ibid, par 18 (footnote 30).
5. Ibid, par 22.
6. Motion for Assignment of a Supplemental Briefing Schedule, or, in the Alternative, for a Short Extension of the Briefing Schedule, 20 June 2001 [filed 21 June 2001] ("Kordic Motion").
7. Status Conference, 22 June 2001, Transcript pp 2-3.
8. Appellant Mario Cerkez’s Notice of Joinder in Appellant Dario Kordic’s Motion for Assignment of a Supplemental Briefing Schedule, or, in the Alternative, for a Short Extension of the Briefing Schedule, 25 June 2001 ("Cerkez Motion"). A "Corridendum" filed the same day verified the "authenticity"of the facts stated in the Cerkez Motion.
9. Kordic Motion, par 11; Status Conference, 22 June 2001, Transcript pp 13-14.
10. Cerkez Motion, par 2.
11. Rule 3(A).
12. Rule 44(A).
13. Rule 44(B).
14. Status Conference, 22 June 2001, Transcript p 14.
15. Notification dated 20 June 2001, pursuant to the Trial Chamber’s Order for Measures to Protect Victims and Witnesses, 15 Jan 1999. Although that document is filed ex parte and under seal, the information from it which is revealed in the text of this decision cannot justifiably be regarded as confidential in the circumstances of the application which Kordic has now made.
16. Kordic Motion, par 10.
17. Ibid, par 9.
18. Prosecutor v Blaskic, IT-95-14-A ("Blaskic Appeal") and Prosecutor v Kupreskic et al, IT-95-16-A ("Kupreskic Appeal").
19. Letter from Mr Upawansa Yapa, Senior Appeals Counsel for the prosecution, 13 June 2001.
20. Motion, par 4.
21. Ibid, par 4.
22. Ibid, par 5.
23. Ibid, par 5.
24. Status Conference, 22 June 2001, Transcript, p 4.
25. Ibid, p 11.
26. Ibid, pp 8-9.
27. Ibid, pp 4-7.
28. Appellant Dario Kordic’s Application for Issuance of an Order to Bosnia-Herzegovina and to Federation of Bosnia-Herzegovina Compelling the Production of Documents and Other Materials, 20 June 2001.
29. Appellant Mario Cerkez’s Notice of Joinder in Appellant Dario Kordic’s Application for Issuance of an Order to Bosnia-Herzegovina and to Federation of Bosnia-Herzegovina Compelling the Production of Documents and Other Materials, 25 June 2001.
30. No application has been made by either of the appellants for access to that particular archive.
31. The Kupreskic Appeal.
32. The Blaskic Appeal.
33. Status Conference, 22 June 2001, Transcript, pp 13,26.
34. Tribunal’s Statute, Article 21.4(b).
35. Ibid, Article 21.4(c).