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

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision:
1 September 2004

___________________________________

Counsel for the Appellant:

Mr. Veselin Londrovic

Ms. Virginia C. Lindsay

Counsel for the Prosecutor:

Mr. Norman Farrell

1. On 8 June 2004, the Prosecution filed the “Motion to Strike Parts of Defence Appeal Brief and Evidence not on Record” (“Prosecution’s Motion”), in which it requests the Appeals Chamber to strike from “Momir Nikolic’s Opening Brief on Appeal” (“Appellant’s Brief”) sub-sections V.A.2¹ (paragraphs 130 to 135) and V.D.4 (paragraphs 219 to 224) as well as paragraphs 122 to 124 and 227, as they allegedly raise grounds of appeal that are not included in Momir Nikolic’s Notice of Appeal (“Appellant’s Notice of Appeal”) and are based on evidence that is not on record in the appeal in this case. The Prosecution seeks also to have the Appeals Chamber strike Appendix E of the Appellant’s Brief, alleging that this evidence is not part of the appeals record and that the Appellant has not sought to have the evidence admitted as additional evidence.

2. On 21 June 2004, Momir Nikolic (“Appellant”) filed “Momir Nikolic’s Response to the Prosecution’s Motion to Strike Parts of Defence Appeal Brief and Evidence not on Record” (“Response”). Pursuant to paragraph 11 of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal of 7 March 2002 (“Practice Direction”), the Appellant was due to file his Response within ten days, namely no later than 18 June 2004. The Appeals Chamber notes that the Response was filed after the expiration of the time prescribed.

3. On 28 June 2004, the Appellant filed a “Motion to Enlarge Time” by which he requests the Appeals Chamber to exercise its discretion under Rule 127 of the Rules of Procedure and Evidence (“Rules”) and accept his Response as timely filed. In support of this motion, the Appellant’s Defence recognizes that the Response was filed out of time and submits that:

(i) due to the fact that it is the first appointment before the International Tribunal for both Lead Counsel and Co-Counsel, they erroneously believed that there were fourteen days at their disposal to respond the Prosecution’s Motion, as provided by Rule 126bis of the Rules;²
(ii) the Co-Counsel assigned to draft the Response to the Prosecution’s Motion was unavailable to start working on the Response between the date of the filing of the Prosecution’s Motion on 8 June 2004 and 13 June 2004, as she was out of town;³
(iii) the negligence of the Defence Counsel should not prejudice the Appellant, “especially as the Prosecution was informed in advance of the date that ?theg Response would be filed” and “[b]ecause they do not oppose the late filing, it appears they suffered no prejudice”.⁴

4. In the “Prosecution Response to Motion to Enlarge Time” filed on 7 July 2004, the Prosecution informed the Appeals Chamber that it does not oppose the Appellant’s request for an extension of time.

5. Rule 127(A)(ii) and (B) of the Rules provides that the Appeals Chamber may, on good cause being shown by motion, “recognize as validly done any act done after the expiration of a time so prescribed.” The Appeals Chamber considers that it would be of assistance to have the Appellant’s response to the issues raised in the Prosecution’s Motion. Moreover, the Appeals Chamber notes that the Appellant was only one day late. In the circumstances of the case, the Appeals Chamber finds that good cause within the meaning of Rule 127 of the Rules has been shown to grant the Appellant’s Motion to Enlarge Time. Therefore, the Appeals Chamber declares the Response as validly filed.

6. In the Response, the Appellant submits that he does not oppose the Prosecution’s Motion in relation to paragraphs 130 to 135 and 219 to 224. He concedes that Appendix E is not part of the record on appeal and, therefore, does not oppose having this part struck out. In addition, he concedes to the striking of portions of paragraph 227. On the contrary, the Appellant opposes the Prosecution’s Motion with respect to paragraphs 122 to 124 and to portions of paragraph 227.

7. On 24 June 2004, the Prosecution filed the “Prosecution Reply in Relation to Prosecution’s Motion to Strike Parts of Defence Appeal Brief and Evidence not on Record” (“Reply ”) in which it rejects the Appellant’s claim that paragraphs 122, 123, 124 and 227 in part are covered by the Appellant’s Notice of Appeal.

8. On 28 June 2004, the Appellant filed “Momir Nikolic’s Motion for Leave to File Rejoinder to Parts of the Prosecutor’s Reply in Relation to her Motion to Strike Parts of Defence Appeal Brief and Evidence not on Record” (“Motion for Leave to File Rejoinder”) by which he requests the Appeals Chamber to grant him leave to file “Rejoinder to Parts of the Prosecutor’s Reply in Relation to her Motion to Strike Parts of Defence Appeal Brief and Evidence not on Record” (“Rejoinder”), arguing that, in the Reply the Prosecution made two arguments “that could not have been anticipated ” by the Appellant in his Response, and “that warrant some response”.⁵

9. The Prosecution filed its “Prosecution’s Response to 'Momir Nikolic’s Motion for Leave to File Rejoinder Regarding Prosecution’s Motion to Strike'” on 8 July 2004 in which it asks the Appeals Chamber to dismiss the Motion for Leave to File Rejoinder. The Prosecution contends that its Reply is properly confined to arguments raised by the Appellant in his Response and that the Appellant should not be permitted to extend the proceedings by filing further arguments.

10. The Appeals Chamber recalls that a reply is restricted to dealing with issues raised in an opposing party’s response. If a party raises in a reply an argument or request for the first time then the opposing party is deprived of an opportunity to respond which could harm the fairness of the proceedings.⁶ Having carefully reviewed the Prosecution’s Motion, the Response and the Reply, the Appeals Chamber finds that the arguments developed by the Prosecution in its Reply are confined to those raised in the Prosecution’s Motion and in the Response and fall within the scope of a reply made to a response during appellate proceedings. The Appeals Chamber considers therefore that the arguments submitted by the Prosecution in reply “could have been anticipated” by the Appellant and that there is no valid reason to give the Appellant the opportunity to file a rejoinder and develop arguments he could have raised in his Response. In accordance with paragraph 12 of the Practice Direction, the Appeals Chamber will decide the Prosecution’s Motion without further submissions from the parties. The Motion for Leave to File Rejoinder is dismissed.

11. The Prosecution submits that the paragraphs from the Appellant’s Brief set out below should be struck out. The Prosecution also seeks to have Appendix E to the Appellant’s Brief removed. ⁷

1. Paragraphs 130 to 135, 219 to 224 and Appendix E

12. The Prosecution contends that in the Appellant’s Notice of Appeal there is no ground of appeal covering the arguments relating to the Appellant’s medical records and the alleged Trial Counsel’s failure to investigate the Appellant’s medical condition in 1992.⁸ It also submits that the evidence the Appellant relies on is not part of the record on appeal.⁹ With regard to paragraphs 130, 131 and 223, the Prosecution further submits that, by placing himself in the position of a witness in this appeal, Lead Counsel is precluded from making submissions on the issues that his testimony concerns and that, therefore, the arguments in these paragraphs are improperly made.¹⁰ In his Response, the Appellant concedes that paragraphs 130 to 135, 219 to 224 and Appendix E rely on evidence which are not part of the record on appeal and, therefore, that they should be removed from the Appellant’s Brief.¹¹ In its Reply, the Prosecution submits that its request should be granted since there is no dispute between the parties in this regard.

2. Paragraph 227

13. The Prosecution asserts that paragraph 227 should be removed from the Appellant’s Brief since it raises a ground of appeal not covered by the Appellant’s Notice of Appeal. Moreover, the Prosecution argues that this paragraph is based on evidence about the Appellant’s medical condition, which is not part of the record on appeal.¹²

14. The Appellant concedes that parts of the second and third sentences of paragraph 227 should be removed.¹³ He further accepts the deletion of the reference to Appendix E of the Appellant’s Brief from footnote 262.¹⁴ However, the Appellant opposes the striking of the remainder of the paragraph. He submits that the remaining portion is based upon his testimony in the Blagojevic and Jokic trial proceedings which is part of the record on appeal.¹⁵ He adds that paragraph 227 amended in the proposed manner consists of legal argument properly covered by the eleventh ground of appeal in the Appellant’s Notice of Appeal. It reads “the Trial Chamber erred and abused its discretion in not according significant weight to Mr. Nikolic’s personal circumstances.”¹⁶ According to the Appellant, “striking the entire paragraph 227 would erroneously and unfairly eliminate an important part of one of Mr. Nikolic’s claims that was timely and properly included in his Notice of Appeal”.¹⁷

15. In its Reply, the Prosecution objects to the Appellant’s contention that paragraph 227 as amended by the Appellant falls within the scope of the eleventh ground of appeal. It maintains that the eleventh ground of appeal merely alleges that the Trial Chamber failed to give sufficient weight to the Appellant’s personal circumstances found in this case. In the view of the Prosecution, the relevant ground of appeal does not assert that the Trial Chamber failed to consider the Appellant’s alleged medical condition in 1992 as a mitigating circumstance. The Prosecution supports its argument by noting that the Trial Chamber could not have possibly failed to consider the Appellant’s alleged medical condition in 1992, as the said medical condition was never submitted by the Defence as a mitigating circumstance.¹⁸

3. Paragraphs 122-124

16. The Prosecution submits that paragraphs 122 to 124 should be struck out of the Appellant’s Brief as they raise a ground of appeal not included in the Appellant’s Notice of Appeal and are based on evidence not part of the record on appeal.¹⁹

17. In his Response, the Appellant replies that the Prosecution has no basis to ask for the removal of paragraphs 122 to 124 from the Appellant’s Brief insofar as the paragraphs in question are based entirely upon the Appellant’s testimony in his own Sentencing Hearing or upon his testimony in Blagojevic and Jokic trial proceedings, which was moved into evidence by the Prosecution.²⁰ Although the Appellant does not object that the “see also” reference to the medical records in Appendix E in footnote 167 (paragraph 122) be struck out, he opposes the striking of paragraphs which are based upon evidence included in the record on appeal.²¹

18. In its Reply, the Prosecution alleges that the Appellant’s arguments regarding paragraphs 122 to 124 fail to address the Prosecution’s primary argument that these paragraphs raise issues that are not addressed in the Appellant’s Notice of Appeal.²² The Prosecution adds nevertheless that, contrary to what the Appellant asserts, the aforementioned paragraphs are not covered by the eleventh ground of appeal.²³

19. The Appeals Chamber notes that there is no dispute between the parties with regard to paragraphs 130 to 135, 219 to 224 and Appendix E. The Appellant concedes as well that footnote 167 of paragraph 122 and portions of paragraph 227 be struck out. The Appeals Chamber agrees that the medical records contained in Appendix E are not part of the record on appeal and that the paragraphs enumerated above, footnote 167 and portions of paragraph 227, relate to material which is not part of the record on appeal. Therefore, the Appeals Chamber finds that these paragraphs, paragraph 227 in part, footnote 167 and Appendix E should be struck out.

20. The matter still in dispute relates to paragraphs 122, 123, 124 and, in part, 227. Thus, the Appeals Chamber is seized of the following two questions: first, whether grounds of appeal not included in the Appellant’s Notice of Appeal are raised by the Appellant in paragraphs 122, 123, 124 and 227; and, second, whether these paragraphs rely on evidence that is not part of the record on appeal.

21. With regard to the first question, in paragraph 122 of his Appellant’s Brief, the Appellant alleges that, after being mobilized, he became de facto commander of the Bratunac Territorial Defence. The Appellant asserts that this de facto promotion was short-lived, since following his failure as a commander to participate in an attack on a Muslim village, he was attacked by a mob and as a result was hospitalized with a nervous breakdown. In support of this argument, the Appellant produces in paragraph 123 a segment of his testimony brought up on cross-examination before the Blagojevic and Jokic Trial Chamber. In paragraph 124, the Appellant submits that following his physical assault he moved with his family as refugees to Belgrade, where they lived until November 1992. In paragraph 227, the Appellant refers to the evidence mentioned in paragraphs 122, 123 and 124, arguing that the Trial Chamber should have enquired further or given weight to this mitigating evidence so clearly revealed in the record.

22. The eleventh ground of appeal reads as follow: “the Trial Chamber erred and abused its discretion in not according significant weight to Mr. Nikolic’s personal circumstances.”²⁴ The Appeals Chamber recalls that, pursuant to Rule 108 of the Rules, a party seeking to appeal must set forth in his Notice of Appeal the grounds of appeal, identify the decision challenged and “indicate the substance of the alleged errors and the relief sought.” Paragraph 1(c)(i) and (ii) of the Practice Direction on Formal Requirements for Appeals from Judgment of 7 March 2002 further provides that a Notice of Appeal shall contain, inter alia, “the grounds of appeal, clearly specifying in respect of each ground of appeal” “any alleged error on a question of law invalidating the decision ” and/or “any alleged error of fact which has occasioned a miscarriage of justice.” As previously stated, the Appeals Chamber considers that the only formal requirement under the Rules is for the Notice of Appeal to contain a list of the grounds of appeal and that in any event a Notice of Appeal need not detail the arguments that the Parties intend to use in support of the grounds of appeal; the place for detailed arguments is the Appellant’s Brief.²⁵

23. In this case, the Appeals Chamber finds that the core of the argument presented by the Appellant in paragraphs 122, 123, 124 and 227, though touching upon the Appellant’s medical condition, nevertheless goes to the consequences of the attack upon the Appellant and his family, as a result of which they were compelled to leave Bosnia and live in Belgrade as refugees. Based on that, the Appeals Chamber considers that the arguments presented in the aforementioned paragraphs could relate to the Appellant’s “personal circumstances” and, as such, are covered by the eleventh ground of appeal, as contained in the Appellant’s Notice of Appeal. The question whether the Appellant’s alleged medical condition was submitted for consideration by the Trial Chamber as a personal circumstance constituting a mitigating factor will not be considered at this stage of the proceedings as it concerns the merits of the eleventh ground of appeal.

24. The second question is whether the disputed paragraphs rely on evidence not part of the record on appeal. The Appeals Chamber notes that the disputed paragraphs rely on the testimony given by the Appellant before the Blagojevic and Jokic Trial Chamber from 19 September to 1 October 2003.²⁶ After careful examination of the record on appeal, it appears that this testimony is, as alleged by the Appellant, part of the record on appeal.²⁷ Indeed, it has been admitted by the Trial Chamber into evidence as an exhibit in the Momir Nikolic case upon the request of the Prosecution on 29 October 2003.²⁸ Consequently, the Appeals Chamber concludes that paragraphs 122,²⁹ 123, 124 and, in part, paragraph 227 rely on evidence that is part of the record on appeal.

FOR THE FOREGOING REASONS,

THE APPEALS CHAMBER

HEREBY

GRANTS the Motion to Enlarge Time and RECOGNIZES the Response as validly filed; and

DISMISSES the Motion For Leave to File Rejoinder;

STRIKES paragraphs 130 to 135, 219 to 224 and Appendix E from the Appellant’s Brief;

STRIKES the reference to Appendix E in footnote 167;

STRIKES in part paragraph 227 and consequently ORDERS it to read as follows:

“Nor did the Trial Chamber even mention the evidence that Momir Nikolic had tried to properly use command powers in 1992, but had suffered attack by a mob as a result, a psychological breakdown, and had to flee Bosnia with his family as refugees. Momir Nikolic respectfully submits that this mitigating evidence was brought out on cross-examination by attorney Karnavas. Where, as in this case, the record so clearly reveals mitigating evidence, then the Trial Chamber should have a duty to either enquire further or to give mitigating weight to the un-contradicted evidence when determining sentence”; and

DISMISSES the remaining parts of the Prosecution’s Motion.

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

Done this 1st day of September 2004,
At The Hague,
The Netherlands.

_________________
Theodor Meron
Presiding Judge

[Seal of the Tribunal]

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