Case No.: IT-98-30/1-A

IN THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Fausto Pocar
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg De Roca

Registrar:
Mr. Hans Holthuis

Decision of:
10 October 2003

PROSECUTOR

v.

MIROSLAV KVOCKA
MLADJO RADIC
ZORAN ZIGIC
DRAGOLJUB PRCAC

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DECISION ON MOTION FOR APPLICATION OF THE NEW LAW BEFORE ICTY

___________________________________________________________

Counsel for the Prosecutor:

Mr Norman Farrell

Counsel for the Appellants

Mr K. Simic for M. Kvocka
Mr T. Fila for M. Radic
Mr S. Stojanovic for Z. Zigic
Mr J. Simic for D. Prcac

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"),

BEING SEISED of the "Motion for Application of the New Law before ICTY”, filed by the Appellant Zoran Zigic on 14 August 2003 (“Motion” and “Appellant” respectively), in which the Appellant seeks the “application of mens rea in the present case as defined in Article 30 of the International Criminal Court’s Statute" ("ICC Statute");

NOTING the “Prosecution’s Response to Zoran Zigic ‘Motion for Application of the new Law before the ICTY’”, filed on 25 August 2003, in which the Prosecution submits inter alia that the Motion should be struck out, or alternatively, the Motion should be denied and the contents and arguments therein disregarded for the purposes of the pleadings in this case;

NOTING the “Reply to ‘Prosecution’s Response to Zoran Zigic’s Motion for Application of the New Law before the ICTY’" ("Reply"), filed on 2 September 2003, which is four days out of time;

NOTING that Rule 127 of the Rules of Procedure and Evidence ("Rules") provides that a Chamber "may, on good cause being shown by motion recognize as validly done any act done after the expiration of a time so prescribed on such terms, if any, as is thought just and whether or not that time has already expired";

CONSIDERING the submission of the Appellant that the counsel for the Appellant was on holiday during the time available to file his reply;

CONSIDERING that, in the circumstances of this case, and especially the fact that the Appellant has no co-counsel, it is necessary to recognize the Reply as validly filed;

CONSIDERING that, if the Appellant wishes to vary his grounds of appeal, he must show good cause by motion filed pursuant to Rule 108 of the Rules;

CONSIDERING that the Appellant is not seeking to vary his grounds of appeal and that, in any event, were he seeking to do so, he has not shown good cause;

CONSIDERING also that the Tribunal must apply the law as it existed at the time when the crimes were allegedly committed, and that the Appellant has not shown in the Motion how Article 30 of the ICC Statute was reflected in customary international law at the time the crimes were allegedly committed;

FOR THE FOREGOING REASONS

DISMISSES the Motion.

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

______________
Mohamed Shahabuddeen
Presiding Judge

Dated 10 October 2003,
At The Hague,
The Netherlands.

[Seal of the Tribunal]