Case No. IT-98-34-A

IN THE APPEALS CHAMBER

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

Registrar:
Mr. Hans Holthuis

Date:
20 October 2004

PROSECUTOR

v.

Mladen NALETILIC, aka “TUTA”
Vinko MARTINOVIC, aka “STELA”

___________________________________________

DECISION ON MARTINOVIC’S REQUEST FOR PRESENTATION OF ADDITIONAL EVIDENCE

___________________________________________

Counsel for the the Prosecutor:

Mr. Norman Farrell

Counsel for the Accused:

Mr. Matthew Hennessy and Mr. Christopher Young Meek for Mladen Naletelic
Mr. Zelimir Par and Mr. Kurt Kerns for Vinko Martinovic

 

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 Vinko Martinovic’s (“Appellant”) “Request for Presentation of Additional Evidence” (“Appellant’s Rule 115 Motion”), filed on 15 March 2004 pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”), wherein the Appellant seeks admission into evidence the testimony of a new witness, “Witness A”;

NOTING the “Prosecution’s Response to Vinko Martinovic’s Request for Presentation of Additional Evidence” (“Prosecution’s Response”), filed on 25 March 2004, in which it is submitted that the Appellant’s Rule 115 Motion should be dismissed as it does not meet the requirements for admissibility of additional evidence on appeal;

NOTING that the Appellant has not filed a reply to the Prosecution’s Response;

CONSIDERING that under Rule 115(A) of the Rules, “a party may apply by motion to present additional evidence before the Appeals Chamber” and that said motion “shall clearly identify with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed;”

CONSIDERING that under Rule 115(B) of the Rules, in order to have additional evidence admitted on appeal, the applicant must demonstrate that the evidence itself was not available to him at trial and that it could not have been discovered through the exercise of due diligence,1 which includes making “appropriate 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”;2

CONSIDERING that in the exercise of due diligence at trial, the applicant should bring any difficulties in relation to obtaining evidence, including those arising from intimidation or an inability to locate witnesses, to the attention of the Trial Chamber,3 and that a party should also seek relief from the Trial Chamber to compel a prospective witness to cooperate;4

CONSIDERING that, in order to be considered 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 such that it could have had an impact on the verdict i.e., could have shown, in the case of a Rule 115 request by a defendant, that the conviction was unsafe;5

CONSIDERING that if the evidence was available at trial or could have been discovered through the exercise of due diligence, the appellant will be required to meet the heightened burden of establishing that the exclusion of the additional evidence on appeal would lead to a miscarriage of justice, in that if it had been considered at trial, it would have affected the verdict;6

CONSIDERING that the applicant must specify clearly the impact of the additional evidence upon the Trial Chamber’s decision,7 and if the applicant fails to do so, the Appeals Chamber may reject the evidence without detailed consideration;8

CONSIDERING that under the jurisprudence of the International Tribunal, the Appeals Chamber will assess the significance of the additional evidence that the Appellant seeks to be admitted in the context of the evidence that was admitted at trial and on appeal, and not in isolation;9

CONSIDERING that the Appellant fails to provide any explanation as to why Witness A, who claims to be close to the Appellant and to have known him since 1990, was unavailable to give his testimony during the Appellant’s trial, and that in light of Witness A’s written statement attached to the Appellant’s Rule 115 Motion, the Appellant’s submission that it was only through the publication of an article in the Croatian press in February 2004 that the Defence came to know of Witness A, is unconvincing;

CONSIDERING that although Witness A asserts in his written statement that after he was forced to give false statements against the Appellant in 1996, he subsequently appeared before a court where he admitted that his former statements against the Appellant had been false, the Defence fails to explain why it was not aware of this witness or his court testimony;

CONSIDERING that the Defence fails to provide any reasonable steps it took in the exercise of due diligence to try and obtain the testimony of Witness A during the Appellant’s trial;

CONCLUDING therefore that the Appellant has failed to demonstrate that the proposed additional evidence was not available to him at trial;

CONSIDERING that because the Appellant has failed to demonstrate the unavailability of the testimony of Witness A at trial, the Appellant must establish that the exclusion of this additional evidence would lead to a miscarriage of justice, in that if it had been presented at trial it would have affected the verdict, in order for the evidence to be found admissible by the Appeals Chamber;

CONSIDERING that the findings in paragraphs 710-713 and 715 of the Trial Judgement,10 which the Appellant submits will be undermined by the additional evidence, are merely summary conclusions of the Trial Chamber and do not contain the specific factual findings the Trial Chamber relied upon to determine the credibility of the Prosecution witnesses or to reach a verdict of guilt with regard to the charge of persecutions as a crime against humanity under Count 1 of the Indictment against the Appellant;

CONSIDERING that although the Appellant alleges that Prosecution witnesses WW, GG, and MM were forced to provide false testimony in support of the persecutions charge in Count 1 against the Appellant and thus lack credibility, the Appellant fails to demonstrate specifically how the general statements in Witness A’s written statement relate to these witnesses in particular or undermine the Trial Chamber’s credibility findings as to these witnesses;

CONSIDERING that it is clear from the Trial Judgement that, in contrast to the Appellant’s contention,11 the Trial Chamber did not rely solely on Witnesses WW, GG and MM to hold him responsible for the persecutions charge under Count 1 of the Indictment but also relied upon the testimony of other witnesses as well as documentary evidence, including those used to assess the Appellant’s responsibility for other acts charged against him, to determine whether they amount to persecutions;12

CONCLUDING that upon consideration of the significance of the testimony of Witness A in the context of all of the evidence admitted thus far in this case and not in isolation, the Appellant has failed to demonstrate that the exclusion of the written statement of Witness A would lead to a miscarriage of justice in that if it had been submitted at trial, it would have affected the Trial Chamber’s verdict of guilt against him for persecutions under Count 1 of his Indictment;

FOR THE FOREGOING REASONS:

FINDS that the proposed additional evidence submitted by the Appellant is inadmissible under Rule 115 of the Rules, and

DISMISSES the Appellant’s Rule 115 Motion in its entirety.

 

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

________________
Judge Fausto Pocar
Presiding

Dated this 20th day of October 2004,
Done at The Hague,
The Netherlands.

[Seal of the Tribunal]


1 - Prosecutor v. Tadic, Case No. IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998 (“Tadic Rule 115 Decision”), paras. 35-45; Prosecutor v. Kupreskic et al, Case No. IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic Appeal Judgement”) para. 50; Prosecutor v. Krstic, Case No. IT-98-33-A, Decision on Applications for Admission of Additional Evidence on Appeal, 5 August 2003 (“Krstic Rule 115 Decision”), p. 3; and Prosecutor v. Blaskic, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003 (“Blaskic Rule 115 Decision”), p. 3.
2 - Tadic Rule 115 Decision, para. 47.
3 - Ibid., para. 40.
4 - Prosecutor v. Krstic, Case No. IT-98-33-A, Reasons for the Decisions on Applications for Admission of Additional Evidence, 6 April 2004, (“Krstic Reasons”), para. 10.
5 - Blaskic Rule 115 Decision, p. 3.
6 - Krstic Rule 115 Decision, p. 4; Krstic Reasons, para. 12; Blaskic Rule 115 Decision, p. 3.
7 - Kupreskic Appeal Judgement, para. 69.
8 - Ibid.
9 - Kupreskic Appeal Judgement, paras. 66 and 75; Krstic Rule 115 Decision, p. 4; Blaskic Rule 115 Decision, p. 3.
10 - Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-T, Judgement, 31 March 2003, (“Trial Judgement”), paras. 709-13, 715.
11 - Appellant’s Rule 115 Motion, p. 4.
12 - See, generally Trial Judgement, paras. 632, 639-702; See also, e.g., paras. 559-564 and 628, referring to testimonies of Witnesses AB, OO, F, II and to Exhibits PP 620.1 and PP 707, with regard to specific findings on underlying acts of the persecutions charge against the Appellant.
   

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