IN THE APPEALS CHAMBER
Before: Judge David Hunt, Pre-Appeal Judge
Registrar: Mr Hans Holthuis
Decision of: 17 December 2001
DECISION ON APPLICATION BY APPELLANT TO SUSPEND BRIEFING SCHEDULE OR FOR EXTENSION OF TIME
Office of the Prosecutor:
Mr Norman Farrell
Counsel for the Defence:
Mr Neneas Petrusic
Mr Tomislav Visnjic
1. Radislav Krstic (the "Appellant") has sought an order suspending the briefing schedule for his appeal or, alternatively, an order extending the time fixed for him to file the Appellantís Brief in his own appeal and his Respondentís Brief to the prosecutionís appeal1. The prosecution has opposed the relief sought2.
2. The bases put forward by the Appellant in support of the relief he seeks in relation to the Appellantís Brief in his own appeal are:
(1) A motion has been filed at the same time as this Motion requiring the prosecution, pursuant to Rules 66 and 68 of the Rules of Procedure and Evidence ("Rules"), to produce "relevant and exculpatory materials which were withheld during the trial". When that material has been produced, it is anticipated that a motion pursuant to Rule 115 will be filed seeking its admission as new evidence. Until that process is completed, it is said, the Appellant is not in a position to file a comprehensive brief3.
(2) The case was an unusually complex one, lasting fifteen months, and the record exceeds 10,000 pages4. The Judgment of the Trial Chamber was delivered on 2 August 2001.
(3) "[C]ertain elements related to the appeal" were noted only after the Appellant had read the Trial Chamber Judgment in the B/C/S language5. This became available on 21 November 20016.
(4) Both Mr Petrusic and Mr Visnjic, who appeared for the Appellant in the trial, were neither physically nor professionally capable of starting work on the case until "sometime in September"7.
(5) The Registrar has approved the hiring of Mr Norman Sepenuk, an experienced trial and appellate lawyer from the United States, "to be a consultant to General Krsticís counsel from Yugoslavia, and to supplement [their] efforts with his experience in the common-law legal system". Mr Sepenuk is to be primarily responsible for the genocide issue8.
3. The basis put forward by the Appellant in support of the relief he seeks in relation to his Respondentís Brief to the prosecutionís appeal is that the prosecution appeal is directed to the failure of the Trial Chamber to impose cumulative sentences of imprisonment for life, whereas the Appellantís appeal is directed, in part, to the excessiveness of the sentence of imprisonment for forty-six years, given his "peripheral role and lack of effective control of events in Srebrenica"9.
4. The matters put forward by the Appellant are answered as follows:
Paragraph 2(1), supra: Prospective applications to admit new evidence pursuant to Rule 115 do not ordinarily permit either suspensions of the briefing schedule or extensions of time in which to file briefs10. No reason has been demonstrated for such prospective applications to do so in this case. If the applications are successful, the Appellant will be permitted to file a supplementary brief.
Paragraphs 2(2) & (3), supra. The first of these matters, and the possibility of the consequences of the second, have already been taken into account when substantially granting to the Appellant his first application for an extension of time11, and to take them into account again would amount to double counting.
Paragraph 2(4), supra. It had already been made clear to appellants generally Ė by the decision in Kordic last July12, amongst others Ė that substantial reasons were required for considerable extensions of time, and this is even more so for further extensions of time. This particular problem was not mentioned in the Appellantís first application13, and in the circumstances it provides no acceptable excuse for the further extension sought.
Paragraph 2(5), supra. Additional time will not be granted for a new lawyer at this late stage to trawl through the record looking for points of appeal which have not been discovered by counsel who appeared at the trial and who have remained in the team for the appeal. In any event, Mr Sepenuk is described as a consultant primarily responsible for the genocide issue, not as counsel. It is, moreover, completely inefficient for each member of the team to duplicate the work of the others. Mr Sepenuk has the two trial counsel to direct him to the relevant parts of the record for the limited purpose for which he has been retained.
Paragraph 3, supra. No valid reason has been demonstrated as to why everything the Appellant wishes to say on the issue of sentence cannot be contained within his Respondentís Brief to the prosecution appeal. Mr Sepenuk conceded that it would not be "the end of the world" if the Appellant was required to do so.14
5. The relief sought in the Motion is refused. However, because the issue was determined so close to the time for the filing of the Appellantís Respondentís Brief to the prosecution appeal, and as indicated at the Status Conference, the time for filing that Respondentís Brief is extended to 21 December 2001.15
Done in English and French, the English text being authoritative.
Dated this 17th day of December 2001,
At The Hague,
Judge David Hunt
[Seal of the Tribunal]
1 - Motion to Suspend Briefing Schedule or,
Alternatively for an Extension of Time to File Appellant's Brief and Respondent's
Brief, 30 Nov 2001 ("Motion").
2 - Prosecution's response to Motion to Suspend Briefing Schedule or, Alternatively for an Extension of Time to File Appellant's Brief and Respondent's Brief Dated 30 November 2001, 10 Dec 2001 ("Response").
3 - Motion, par 3
4 - Ibid, par 5.
5 - Status Conference, 11 Dec 2001, Transcript p 6.
6 - Response, par 9.
7 - Status Conference, 11 Dec 2001, Transcript pp 5-6.
8 - Motion, pars 6-8.
9 - Motion, pars 9-10.
10 - Prosecutor v Kordic & Cerkez, Case IT-95-14/2-A, Decision on Second Motions to Extend Time for Filing Appellant's Briefs, 2 July 2001, pars 12-14; Prosecutor v Blaskic, Case IT-95-14-A, Decision on Appellant's Supplemental Motion to Suspend Briefing Schedule, 5 Dec 2001, p 3.
11 - Order Granting Extension of Time, 5 Nov 2001, p 2.
12 - See footnote 10, supra.
13 - Motion to Extend Time for Filing Appellant's Brief, 22 Oct 2001.
14 - Status Conference, 11 Dec 2001, Transcript pp 13-14.
15 - Ibid, p 19. As also indicated, the prosecution will receive a sympathetic hearing from me as the Vacation judge for an extension of time for filing its Brief in Reply because, as a result of the tardiness of General Krstic in filing the present Motion, the filing schedule in relation to the prosecution appeal will now unexpectedly run well into the Winter Vacation.