Srebrenica, Prosecutor v. M. Nikolic, Decision on Motion for Variation of Time-Limit, IT-02-60/1-A (ICTY AC, Jan. 22, 2004)

Case No. IT-02-60/1-A

BEFORE THE PRE-APPEAL JUDGE

Before:
Judge Mehmet Guney

Registrar:
Mr. Hans Holthuis

Decision:
22 January 2004

PROSECUTOR

Momir NIKOLIC

_____________________________

DECISION ON MOTION FOR VARIATION OF TIME-LIMIT

_____________________________

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellants:

Mr. Veselin Londrovic
Mr. Stefan Kirsch

I, MEHMET GUNEY, 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"),

BEING SEISED OF the "Motion for Variation of Time-limit" ("Motion") filed on 30 December 2003 by Momir Nikolic ("Appellant");

NOTING that the sentencing judgement was rendered on 2 December 2003 and that the Appellant filed his Notice of Appeal on 30 December 2003;

CONSIDERING that, pursuant to Rule 111 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"), the Appellant is due to file his Appellant’s Brief on 15 March 2004;

CONSIDERING that the Motion seeks an extension of time of seventy-five days from the date the Appellant is served with the BCS translation of the sentencing judgement to file his Appellant’s Brief as required by Rule 111 of the Rules and requests that the Registry be ordered to file a notice of the date a BCS copy of the sentencing judgement is made available to the Appellant;

CONSIDERING that the Appellant submits that he "is not in a position to meaningfully assist" his Counsel because he has not yet been provided with a translation in BCS of the sentencing judgement;

NOTING the "Prosecution Response to Defence Motion for Extension of Time" filed on 6 January 2004 by the Office of the Prosecutor ("Prosecution"), in which the Prosecution submits that the Appeals Chamber should decline to grant the requested extension mainly on the ground that an appeal of a sentencing judgement based upon a guilty plea should be treated differently because, inter alia;

a sentencing judgement is much shorter and less complicated than a trial judgement;

the time-limits for the submissions in appeals proceedings are designed for appeals from full trial judgements;

the parties to appeal from sentencing judgement are already in a very advantageous position;

limited or no prejudice will result if the accused cannot himself read the sentencing judgement insofar as he can be appraised of the judgement by being advised by his Counsel of the legal determinations made by Trial Chamber.

If the Appeals Chamber were to decide that the Appellant must be given some time before the filing of his Appellant’s Brief to review the translation into BCS of the sentencing judgement, the Prosecution submits in addition that the Appellant will have sufficient time to do so insofar as the translation is expected to be available on about 15 February 2004;

NOTING the "Defence Reply Re Motion for Variation of Time" ("Reply") filed on 8 January 2004, in which (1) the Appellant replies, inter alia, that there is nothing in the Statute of the International Tribunal ("Statute") nor in the Rules to support the idea that appeals of a sentencing judgement should be treated differently and that "[t]he Prosecution’s position must be rejected, since it demotes the accused to be the mere 'object' of the procedure – rather than the 'subject'" and (2) raises the fact that the Lead Counsel does not speak either of the two working languages of the International Tribunal and that this should be taken into consideration;

NOTING the "Prosecution Further Response to 'Defence Reply Re Motion for Variation of Time' of 8 January 2004" ("Further Response") filed on 9 January 2004, where the Prosecution seeks leave to file a further response to the Reply on the ground that the Appellant raised an issue in his Reply that was not raised in his Motion;

CONSIDERING that the issue relating to the inability of the Lead Counsel to speak either of the two working languages of the International Tribunal is raised for the first time in the Reply and that it is in the interest of justice to give the Prosecution the opportunity to respond to this issue;

RECOGNISE as validly filed the Further Response;

NOTING that the Prosecution submits in his Further Response that the inability to work in the working languages of the International Tribunal does not constitute good cause for the granting of an extension of time;

CONSIDERING that, pursuant to Rule 127(A)(i) and (B) of the Rules, the time-limit for the filing of the Appellant’s Brief may be enlarged on good cause being shown;

CONSIDERING that the Statute and the Rules do not make any distinction between an appeal against a sentencing judgement based on a guilty plea and an appeal from a trial judgement not based on a guilty plea;

CONSIDERING that it is in the interest of justice to allow the Appellant adequate time to read the sentencing judgement in a language he understands and consult with Counsel before filing his Appellant’s Brief pursuant to Rule 111 of the Rules and that this constitutes "good cause" within the meaning of Rule 127 of the Rules;

CONSIDERING that the inability of the Lead Counsel to work in English constitutes "good cause" in the present case, the Lead Counsel having been assigned by the Registry in spite of the fact that he does not speak either of the two languages of the International Tribunal;

CONSIDERING HOWEVER that the requested extension of time of seventy-five days from the moment the translated judgement is available appears too long in light of the complexity of the case and of the fact that, as the Co-Counsel speaks English, he can commence preparation of the appeal and consult with the Lead Counsel and the Appellant on several matters before that time;

FOR THE FOREGOING REASONS,

HEREBY GRANT in part the Motion;

ORDER the Appellant to file his Appellant’s Brief not later than 40 days after the filing of the BCS translation of the sentencing judgement;

REQUEST the Registry to inform the Appeals Chamber and the parties when the sentencing judgement is served on the Appellant in BCS.

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

Dated 22 January 2004,
At The Hague,
The Netherlands.

______________________
Mehmet Güney
Pre-Appeal Judge

[Seal of the Tribunal]

Home | Terms & Conditions | About