IT-09-92-PT D37810 - D37802 09 March 2012 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

37810 SMS

Case No. IT-09-92-PT IN THE PRE-TRIAL CHAMBER

Before:

Judge Alphons Orie, Presiding Judge Bakone Justice Moloto Judge Christoph Flgge Mr. John Hocking 9 March 2012

Registrar: Date Filed:

THE PROSECUTOR v. RATKO MLADI Public ___________________________________________________________________________ DEFENCE MOTION TO ENLARGE TIME FOR THE DEFENCE PRE-TRIAL BRIEF ___________________________________________________________________________

The Office of the Prosecutor: Mr. Dermot Groome Mr. Peter McCloskey Counsel for the Accused: Mr. Branko Luki Mr. Miodrag Stojanovi

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THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA PROSECUTOR v. RATKO MLADI Case No: IT-09-92-PT Public

DEFENCE MOTION TO ENLARGE TIME FOR THE DEFENCE PRE-TRIAL BRIEF

Ratko Mladi (Accused), by and through Counsel, respectfully submits the following Motion pursuant to Rule 127 of the Rules of Procedure and Evidence, and states as follows: I. 1. INTRODUCTION AND PROCEDURAL HISTORY On 13 January 2012, the Prosecution sought an enlargement of the word limit for its The Defence did not object, and the
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Pre-Trial Brief, from 15,000 to 45,000 words.1 Prosecution request was granted by the Chamber. 2.

On 8 February 2012, the Prosecution filed an urgent motion seeking extension of time

for the filing of its Pre-Trial Brief, seeking 14 days, until 24 February 2012. The Defence did not object to the same, and the extension of time sought was granted by the Chamber.3 3. On 24 February 2012, the Prosecution filed its Pre-Trial Brief, although the same was

not served upon the Defence until the evening of 27 February 2012 (after working hours4). The Prosecution Pre-Trial Brief, as filed, consists of 43,974 words, and several additional annexes, including maps and charts.

1 2

See Prosecutions Motion to Exceed the Word Limit for its Pre-Trial Brief, 13 January 2012. See Status Conference, 19 January 2012, T.154. 3 See Scheduling Order, 15 February 2012, para.2. 4 The email arrived in the inbox of Counsel after 5:00p.m. Case No: IT-09-92-PT 2 9 March 2012

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4.

Per the 15 February 2012 Scheduling Order of the Pre-trial Chamber, the Defence Pre-

Trial Brief is due to be filed on 16 March 2012. Per the relevant Practice Direction, the Defence Pre-Trial Brief is to be 15,000 words or less. 5. The instant Motion seeks and enlargement of time for the filing of the Defence Pre-

Trial Brief of 18 days, up to and including 3 April 2012.5 The Defence also seeks a modest enlargement of the word-limit to 20,000 words now for the sake of judicial economy and to avoid a second filing. II. 6. SUBMISSION OF GOOD CAUSE GROUNDS FOR ENLARGEMENT As an initial point, per the aforementioned Scheduling Order, the Chamber foresaw

the Defence having 3 weeks (21 days) to prepare the Defence Pre-Trial Brief. Due to the fact that the Prosecutions Pre-Trial Brief was not served upon the Defence until the 4th day after the originally set filing deadline, the Defence has lost 4 days from the 21 days granted to it, through no fault of its own. Upon information and belief, there is a Registry/CMSS policy in place that would act to automatically adjust a normal response deadline to run from the day that the filing was served upon the Defence. In order to clear any confusion of whether said policy can act to modify a specific deadline previously set by a Chamber, the Defence asks for the Chamber to enlarge the time period for the Pre-Trial Brief by 4 days, irrespective of the outcome of the remainder of this Motion. 7. Rule 127 of the ICTY Rules of Procedure and Evidence allows for a party to seek a

variation of any filing or time limit, for good cause shown. The Defence respectfully submits that there is good cause shown for an extension of time of fourteen (14) days6 for the filing of its Pre-Trial Brief, based on the following arguments: a) The magnitude and scope of the voluminous and complex Prosecution PreTrial Brief that must be reviewed and responded to by the Defence; b) The significant time period that the Prosecution has had to prepare its PreTrial Brief;
5

To include the 4 days that would apply pursuant to the Registry/CMSS policy on filings, insofar as the Prosecution Pre-Trial Brief was not served on the Defence until the 4th day after its filing. 6 In addition to the 4 days resulting from the delay in serving the Defence with a copy of the Pre-Trial Brief Case No: IT-09-92-PT 3 9 March 2012

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c) The scheduling of other filings during the interim time period; d) The time that was permitted to Defence Teams in other cases, including cases where the word limit was less than in the instant case. A. 8. THE MAGNITUDE AND SCOPE OF THE PROSECUTION BRIEF

The standard word-limit for a Prosecution Pre-Trial Brief is 15,000 words. The

enlargement granted to the Prosecution in the instant case was for essentially three times (3x) the number of words than in a standard-sized brief. The Pre-Trial Brief as filed by the Prosecution, although under the 45,000 words granted, is still approximately three times a standard brief. 9. The Prosecution Pre-Trial Brief is essentially the first opportunity for the Defence to

have notice of the Prosecutions case that it has to confront and rebut/answer. The length and complexity of the case presented by the Prosecution in its Pre-Trial Brief alone is, respectfully, sufficient good cause for the modest enlargement of time being sought. The Defence Pre-Trial Brief is suppose to address the factual and legal issues raised in the Prosecution Pre-Trial Brief, as well as set out the general terms of the Defence position or case. In order to do the same, it is required for the Defence to not only read the voluminous Prosecution Pre-Trial Brief once over, but multiple times, to analyze the same and determine a strategy, and response that is appropriate. This is time-consuming work. Additional factors must be taken into account that further justify the sought extension. 10. One such factor is due to the fact that the voluminous Prosecution Pre-Trial Brief The

contains citations only to the 65ter numbers of documents upon which it relies.

disclosures to the Defence by the Prosecution, both on EDS and through the parallel hard-disk disclosure methods, were only made by ERN and not by 65ter number. Neither EDS nor the parallel disclosure databases have any notation of or ability to search the Rule 65ter number of the documents. Likewise, e-Court for the Mladi case is not yet available to the Defence, nor are the documents uploaded in E-court either. It is not expected that these documents (with Rule 65ter numbers) will be completely uploaded into e-Court until the end of March 2012. This means that the only manner for the Defence to attempt to locate these cited
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documents at present is to manually look up each cited document on the voluminous exhibit list (containing just under 28,000 proposed exhibits and comprising over 2,180 pages) to obtain the ERN and title of the document. With the ERN, since the meta-data is not yet inserted in the EDS and due to other problems with disclosure that have been previously brought to the attention of the Chamber by the Defence and are subject to the ongoing cooperative efforts of the parties to resolve the same the Defence must employ several different methods to try and locate the said document among the disclosed materials. Thus, the process of locating even a single document that is cited in the Prosecution Pre-Trial Brief is quite time intensive even before one gets the opportunity to open and read the document. Respectfully, it is not as simple as typing in the 65ter number; Counsel submits that, as experienced with e-Court in prior cases, such review was greatly assisted. However, due to the lack of e-Court in the current circumstances, good cause exists for the modest enlargement of time sought. 11. Additionally, a review of the Prosecution Pre-Trial Brief has revealed complicated and a) b) 12. Allegations outside the temporal and geographic scope of the Indictment, Additional and substantial annexes that must be reviewed and analyzed.

unexpected items that were not included in the Fourth Amended Indictment, including: which must be reviewed and analyzed and researched; and

Respectfully the foregoing constitutes good cause for the enlargement being sought

of 14 days. B. 13. THE SIGNIFICANT PERIOD THE PROSECUTION HAD TO DRAFT ITS BRIEF

The Prosecution has had multiple years to prepare this case and has had months to

plan for and draft its Pre-Trial Brief, with full access to the documents. 14. The Defence still does not have any effective access to the documents of the case and

only recently (as of the February 23 delivery of the most recent hard-disk disclosure by the Prosecution) gained access and ability to search for significant portion of the same. The Defence likewise has only had since 24 February 2012 to effectively work on the Pre-Trial Brief.

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15.

Respectfully the foregoing constitutes good cause for the enlargement being sought

of 14 days. C. 16. THE SCHEDULING OF CONFLICTING FILINGS AND DEADLINES

With the rapidly approaching early May 2012 trial date, there has been intensive

scheduling of other filings that have had to be addressed by the Defence, such that there has been less time to devote to the Pre-Trial Brief. Multiple other significant filings (no fewer than 15) have been made since the filing of the Prosecution Pre-Trial Brief or are due during the time period available for the drafting of the Pre-Trial Brief (27 Feb. 2012 16 March 2012), including: i) Prosecution Notice of Disclosure of Expert Report of Richard Philipps Pursuant to Rule 94bis and Attached Annex (filed 24 February 2012)7 ii) First Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts (filed 29 February 2012) iii) Prosecution Motion for Variation of Deadline for Rule 68(i) Disclosure Relating to Witness List (filed 29 February 2012) iv) Defence Report on Progress on Disclosure Issues, Pursuant to Chamber Instruction Issued at Status Hearing of 23 February 2012 (filed 1 March 2012) v) Corrigendum to Prosecution Rule 65ter(E) Filings (filed 2 March 2012)

vi) Defence Response to Prosecution Motion for Variation of Deadline for Rule 68(i) Disclosure Relating to Witness List (filed 5 March 2012)8 vii) One Re-filed Prosecution Motion Under Rule 92bis (filed 2 March 2012)

7 8

But served on the Defence 27 February 2012. Filed per an expedited basis, at the request of the Pre-Trial Chamber. 6 9 March 2012

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viii) Defence Response To Prosecution Submission On The Expert Statement Of Prosecution Witness Teufika Ibrahimefendi Pursuant To Rule 94bis (filed 2 March 2012) ix) Defence Supplement to Original Rule 94bis Notice, Objection and Motion to Bar Relative to Proposed Prosecution Witness Richard Philipps (filed 6 March 2012) x) Potential Reply to one Rule 94bis Notice (due 13 March 2012)

xi) Response to one Rule 92quater Motion (due 15 March 2012) xii) Response to one Rule 92bis Motion (due 16 March 2012) xiii) Joint Progress Report (due 16 March 2012) xiv) Joint Filing on All Agreed Facts (due 16 March 2012) 17. The foregoing have taken or will take significant attention and time from the Defence,

all of which limit the time available to devote to the voluminous Prosecution Pre-Trial Brief. 18. Respectfully the foregoing constitutes good cause for the enlargement being sought

of 14 days. D. THE SOUGHT ENLARGEMENT WOULD OTHER ACCUSED 19. Per the Statute of the Tribunal, each Accused is to be treated equally at the Tribunal.9 LINE TIME AFFORDED

BE IN

WITH THE

The Defence in the instant case was afforded 21 days10 to address the 43,974 word Pre-Trial Brief. The Defence has reviewed prior cases before the Tribunal, and believes that a modest enlargement of time to 3 April 2012 is reasonable and warranted, especially since it would be in line with these other cases that all had significantly more than 21 days from the filing of the
9

10

Article 21(1). Actually 17, due to the late service of the Prosecution Pre-Trial Brief on the Defence. 7 9 March 2012

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Prosecution Brief to do the Defence Brief and/or had significantly smaller-sized briefs to work with. CASE OTP vs. Deli OTP vs. Prli OTP vs. Perii OTP vs. Karadi OTP vs. Gotovina 20. PROSECUTION BRIEF DEFENCE BRIEF 31 Oct 2006 19 Jan 2006 23 Feb 2007 08 Apr 200912 18 May 200913 16 Mar 2007 5 Apr 2007 19 Jan 2007 15 Feb 2006 30 Mar 2007 29 Jun 200914 TIME ALLOTTED 75 days 26 days11 35 days 66 days15 42 days 23 days16

Respectfully the foregoing constitutes good cause for the enlargement being sought

of 14 days.

11

Relating to a smaller brief as to each Accused, as the consolidated brief as to 6 defendants was 140,458 words, or 23,000 allocated per Accused. 12 For the Interim Pre-Trial Brief. 13 For the Final Pre-Trial Brief. 14 Addressing both the Interim and Final briefs. 15 Essentially the same size brief (43,415 words), and a similar case to the instant matter. 16 For a brief of 14,739 words, essentially 1/3 the size of the instant Prosecution Pre-Trial Brief. Case No: IT-09-92-PT 8 9 March 2012

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III. RELIEF REQUESTED WHEREFORE, for the foregoing reasons, the Defence respectfully requests that the Chamber grant an enlargement of time of 14 days for the Defence Pre-Trial Brief,17 up to and including 3 April 2012, and enlarge the word-limit of the same to 20,000 words. Word Count: 2146 RESPECTFULLY SUBMITTED BY:

Branko Luki Lead Counsel for Ratko Mladi Dated this 9th of March 2012 Belgrade, Republic of Serbia

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In addition to a 4-day enlargement to account for the delayed service of the Prosecution Pre-Trial Brief on the Defence. Case No: IT-09-92-PT 9 9 March 2012