Srebrenica-Drina Corps, Prosecutor v. Krstic, Decision on Application for Admission of Further Additional Evidence on Appeal, IT-98-33-A (ICTY AC, Sep. 15, 2003)

Case: IT-98-33-A

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Wolfgang Schomburg
Judge Mohamed Shahabuddeen
Judge Mehmet Güney

Registrar:
Mr Hans Holthuis

Decision of:
15 September 2003

PROSECUTOR

Radislav KRSTIC

_________________________________

DECISION ON APPLICATION FOR ADMISSION OF FURTHER ADDITIONAL EVIDENCE ON APPEAL

_________________________________

Counsel for the Prosecutor:

Mr Norman Farrell

Counsel for the Accused:

Mr Nenad Petrusic
Mr Norman Sepenuk

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 a "Motion for Leave to Present Further Evidence in Support of Defence Rule 115 Motion to Produce Additional Evidence" filed confidentially by Radislav Krstic on 7 August 2003 ("Motion"), in which the Defence seeks to have admitted under Rule 115 of the Rules of Procedure and Evidence of the International Tribunal ("Rules") the statements of two witnesses ("Two Witnesses"), which are attached as Appendices A and B to the Motion;

NOTING the "Prosecution’s Response to Applicant’s Confidential Motion for Leave to Present Further Evidence in Support of Defence Rule 115 Motion to Produce Additional Evidence, and Prosecution Request for Extension of Page Limit" filed confidentially on 15 August 2003, in which the Prosecution submits inter alia that the evidence presented by the Defence is not admissible pursuant to Rule 115;

NOTING the Appeals Chamber’s "Decision on Applications for Admission of Additional Evidence on Appeal" issued on 5 August 2003 ("Original Rule 115 Decision"), in which the Appeals Chamber considered inter alia the admissibility of evidence relating to the Two Witnesses;

NOTING the Appeals Chamber’s "Decision on Application for Subpoenas" issued on 1 July 2003 ("Subpoena Decision") granting the Defence request that subpoenas be issued for the Two Witnesses to attend interviews conducted by the Defence;

NOTING that in the Motion the Defence proffers the statements of the Two Witnesses made at those interviews as additional evidence;

NOTING that pursuant to Rule 115 an application for the admission of additional evidence on appeal shall be "filed with the Registrar not later than seventy-five days from the date of the StrialC judgement unless good cause is shown for further delay";

CONSIDERING that the non-availability of the Two Witnesses before the rendering of the Subpoena Decision constitutes in the circumstances good cause and the Motion is deemed to have been timely filed;

CONSIDERING the complexity of the issues raised in the Motion it is appropriate in the circumstances to grant the Prosecution’s request to exceed the page limit pursuant to Paragraph 7 of the Practice Direction on the Length of Briefs and Motions (IT/184 Res. 1);

CONSIDERING that, in order to have additional evidence admitted on appeal, the party submitting such evidence is required primarily to establish that the evidence itself "was not available at trial" in any form¹ and that it could not have been discovered through the exercise of due diligence,² which means that the party seeking its admission must show (inter alia) that it made use of "all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber,³

CONSIDERING that the Defence pleadings are deficient in specifying the relief sought but that this is not by itself a ground to deny the Motion;

CONSIDERING that the Appeals Chamber is satisfied that the evidence of the Two Witnesses attached as Appendices A and B to the Motion was not available at trial and that it could not have been discovered through the exercise of due diligence;

CONSIDERING that, to be admissible pursuant to Rule 115, evidence which was not available at trial and could not have been discovered through the exercise of due diligence must be relevant to a material issue and credible and such that it could have had an impact on the verdict i.e., could have shown, in the case of a request by a defendant, that a conviction was unsafe;⁴

CONSIDERING that the significance of the additional evidence must be considered in the context of the evidence which was given at the trial and not in isolation⁵ and also in light of the relevant evidence considered in the Original Rule 115 Decision;

CONSIDERING that the new evidence provided in Appendix A is not such that it could have affected the verdict;

CONSIDERING that the new evidence provided in Appendix B is not such that it could have affected the verdict;

CONSIDERING that the evidence put forward by the Defence in the Motion therefore does not meet the requirements of Rule 115;

HEREBY denies the Motion, and

NOTES finally that further reasons for the present decision will be given in due course.

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

Dated this 15th day of September 2003,
At The Hague,
The Netherlands.

_____________
Judge Theodor Meron
Presiding

[Seal of the Tribunal]

1. Rule 115(B). See also Prosecutor v Krstic, IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 ("Subpoenas Decision"), par 4.
2. Prosecutor v Tadic, IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time Limit and Admission of Additional Evidence, 15 Oct 1998 ("Tadic Rule 115 Decision"), pars 35-45; Prosecutor v Kupreskic et al, IT-95-16-A, Appeal Judgement, 23 Oct 2001 ("Kupreskic Conviction Appeal Judgment"), par 50; Prosecutor v Delic, IT-96-21-R-R119, Decision on Motion for Review, 25 Apr 2002 ("Delic Review Decision"), par 10.
3. Tadic Rule 115 Decision, pars 40, 44-45, 47; Kupreskic Conviction Appeal Judgment, par 50.
4. Kupreskic Conviction Appeal Judgment, par 68.
5. Prosecutor v Kupreskic et al, Decision on the Motions of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran Kupreskic and Mirjan Kupreskic to Admit Additional Evidence, 26 Feb 2001, par 12; Prosecutor v Kupreskic et al, Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 April 2001, par 8; Kupreskic Conviction Appeal Judgment, pars 66, 75.

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