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

IN THE APPEALS CHAMBER

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:
20 January 2005

Momir NIKOLIC

v.

PROSECUTOR

_________________________________________

DECISION ON PROSECUTION’S SECOND MOTION TO STRIKE

_________________________________________

Counsel for the Appellant:

Ms. Virginia C. Lindsay

Counsel for the Prosecutor:

Mr. Norman Farrell

THE APPEALS CHAMBER of the International Criminal 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"),

NOTING the "Emergency Motion for Access to Confidential Document" filed confidentially¹ by Momir Nikolic ("Appellant") on 26 November 2004 ("Motion for Access"), whereby the Appellant requests to be granted access to confidential documents filed in the Krstic case;

NOTING the "Memorandum of Law in Support of Emergency Motion for Access to Confidential Document" filed confidentially² on 29 November 2004 by the Appellant ("Memorandum of Law");

BEING SEISED OF the "Second Motion to Strike" filed by the Prosecution on 3 December 2004 ("Motion"), in which the Prosecution requests the Appeals Chamber to strike the Memorandum of Law on the following grounds:

1. the Memorandum of Law sets forth supplementary legal arguments in support of the Motion for Access, which previously simply listed the provisions pursuant to which the Motion was filed;³

2. the Memorandum of Law expands the purpose of the Motion for Access by putting forward a new and unrelated basis for it, i.e. that the pleadings in Krstic have some link to the Appellant’s grounds of appeal;⁴

3. the Memorandum of Law is not a proper memorandum of law; ⁵

4. the Appellant has not sought leave to amend and supplement his Motion for Access, nor did he offer any explanation as to why he could not have made the full set of arguments when he filed the Motion for Access, or, why he could not wait to file his Motion for Access until it was done properly containing the complete arguments which are now set out in the supplementary Memorandum of Law;⁶

NOTING the "Appellant’s Consolidated Response to Prosecution’s Motion to Strike and Prosecution’s Second Motion to Strike and Motion for Leave to File Over-Sized Same" filed confidentially on 6 December 2004 ("Response"), in which the Appellant alleges, inter alia, that:

1. the Motion for Access was filed "after weeks of effort spent trying to understand the origin and meaning of paragraph 120 of the Krstic Appeals Judgement, which under-signed counsel believes to mis-state Appellant’s testimony in a way that will negatively impact upon Appellant if the error is not corrected";⁷

2. the Motion for Access was filed as an emergency motion because the resolution of its issue may have impacted "upon the allegations presented in the Appellant’s Second Motion to Admit Additional Evidence";⁸

3. the Motion for Access was filed as soon as the specific passage of the Appellant’s testimony in the Krstic Judgement was finally identified, "in spite of the Prosecution’s apparent inability to supply any helpful information";⁹

4. the Motion for Access was filed in the belief that Appellant’s right to have access to the requested documents was patently obvious and that legal authorities supporting such a request were not necessary beyond citations to the International Tribunal’s Statute itself;¹⁰

5. subsequent to filing of the Motion for Access on a Friday, the Appellant’s Counsel "re-considered and proceeded to prepare the Memorandum of Law", which was e-mailed to the Prosecution very early on the next Monday and filed later that same day;¹¹

NOTING the "Prosecution Reply to Appellant’s Consolidated Response to Prosecution’s Motion to Strike and Prosecution’s Second Motion to Strike and Motion for Leave to File Over-Sized Same" filed confidentially on 10 December 2004, whereby the Prosecution submits, inter alia, that:

1. the Appellant concedes in his Response that the Motion for Access was supplemented by the Memorandum of Law;¹²

2. the Appellant offers no justifications as to why the Motion for Access was urgent and provides no valid reasons for the parting of the motion in two, especially given the fact that only a few days separate the filing of the two documents;¹³

3. the fact that the Counsel "re-considered" some unspecified issues and subsequently filed the Memorandum of Law cannot constitute a justification for such a practice;¹⁴

CONSIDERING that the Memorandum of Law contains new grounds and a new legal basis absent from the Motion for Access and in effect constitutes a significant supplement to the Motion for Access rather than a "memorandum of law";

NOTING that pursuant to paragraph 10(c) of the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal,¹⁵ a party wishing to move the Appeals Chamber for a specific ruling or relief shall file a motion containing the grounds on which the ruling or relief is sought;

CONSIDERING that the Appellant was requested to develop his arguments in his Motion for Access and that he is not permitted to correct his failure to do so by supplementing his initial motion without first seeking leave of the Appeals Chamber and showing good cause as to why he could not have provided a complete and comprehensive set of arguments in the initial motion;

CONSIDERING that the reasons provided by the Appellant in his Response are not convincing;

REMINDING the Appellant that this pattern of developing new arguments outside the initial motion leads to a considerable waste of the International Tribunal’s resources;

FINDING the Memorandum of Law as improperly filed;

GRANTS the Motion; and

STRIKES the Memorandum of Law;

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

Done this 20^th day of January 2005,
At The Hague
The Netherlands

______________________
Theodor Meron
Presiding Judge

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