Case No. IT-04-84-AR65.2
IN THE APPEALS CHAMBER
Before:
Judge Liu Daqun, Presiding
Judge Mohamed Shahabuddeen
Judge Andrésia Vaz
Judge Theodor Meron
Judge Wolfgang Schomburg
Registrar:
Mr. Hans Holthuis
Decision of:
3 March 2006
PROSECUTOR
v.
Ramush HARADINAJ
Idriz BALAJ
Lahi BRAHIMAJ
______________________________________________
DECISION ON LAHI BRAHIMAJ’S
REQUEST TO PRESENT ADDITIONAL EVIDENCE UNDER
RULE 115
______________________________________________
The Office of the Prosecutor:
Mr. Stephan Waespi
Mr. Gilles Dutertre
Mr. Phillippe Vallieres-Roland
Counsel for the Accused:
Mr. Ben Emmerson Q.C., Mr. Rodney Dixon,
Mr. Conor Gearty and Mr. Michael O’ Reilly
for Ramush Haradinaj
Mr. Gregor Guy-Smith for Idriz Balaj
Mr. Richard Harvey for Lahi Brahimaj
- 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 (“Appeals Chamber” and “International
Tribunal” respectively) is seized of the “Defence Application
Under Rule 115 to Present Additional Evidence on Appeal
Against the Trial Chamber’s Decision of 3
November 2005 Denying Provisional Release to the Accused
Lahi Brahimaj” filed confidentially
on 15 November 2005 (“Rule 115 Motion”), by Lahi Brahimaj
(“Appellant”), in which
he seeks the admission of additional evidence in his
interlocutory appeal.
PROCEDURAL BACKGROUND
- The “Prosecution’s Response to Defence Application
Under Rule 115 to Present Additional Evidence on
Appeal Against the Trial Chamber’s Decision of 3
November 2005 Denying Provisional Release the Accused
Lahi Brahimaj [sic] and Prosecution
Application to Present Rebuttal Material Under Rule
115 With Annexes A-C” was filed
confidentially on 25 November 2005 (“Response”). The
Prosecution submits that were the Appeals Chamber
to grant the Rule 115 Motion and admit the three pieces
of proposed evidence, in particular Exhibit 1 and
Exhibit 2, the Prosecution will seek, by way of rebuttal
under Rule 115(A) of the Rules of Procedure and Evidence
of the International Tribunal (“Rules”),1 to
apply for the admission of rebuttal material.2 The
Prosecution also requests leave to exceed the word
limit for the Response by 866 words, on the basis
that this submission is not only a response to the
Appellant’s
Rule 115 motion, but also contains an application for
leave to present rebuttal material.3
- The “Reply by Defence of Lahi Brahimaj to Prosecution’s
Response to Defence Application Under Rule 115 to
Present Additional Evidence on Appeal Against the
Decision by the Trial Chamber of 3 November 2005
Denying Provisional Release to the Accused Lahi
Brahiamj and Opposition to Prosecution Application
to Present Rule 115 Rebuttal Material Under Annex
A” was filed confidentially on 2 December 2005
(“Reply”).
- On 16 September 2005, the Appellant filed confidentially,
the “Defence Motion
on Behalf of Lahi Brahimaj for Provisional Release” (“Initial
Motion”) requesting
the Appellant’s provisional release pending his trial.
The Appellant submitted, along with the Initial Motion,
a personal statement in which he proposed to resume
previously-initiated university studies if granted
provisional release.4
Moreover, in connection with this “Initial Motion”,
on 11 October 2005, UMNIK official Søren Jessen-Petersen
submitted to the Registrar of the International Tribunal
a letter which promised that UNMIK “would be able
to monitor Mr. Brahimaj’s movements
and activities” should the Trial Chamber grant provisional
release, which also explained that UNMIK “would arrest
him for breaching the terms and conditions” of his
provisional release, and which did not object to the
Appellant’s request for provisional release.
- In response to the Initial Motion, on 17 October
2005, the Prosecution filed confidentially the “Réponse
du Procureur à la Demande de mise en liberté provisoire
déposée par Monsieur Brahimaj le 16 septembre 2005
avec les annexes A-R”, in
which it opposed the Appellant’s request for provisional
release (“Initial Response”).5 In
the Initial Response the Prosecution argued, inter
alia, that “the Accused provid[ed] no information
on” the feasibility
of his proposed university studies, and that he had
to provide proof of earlier enrollment or proof that
that it was still possible to enroll for the coming
year.6 The
Prosecution also said that it would file a letter
in which UNMIK, referring to certain documents that
it had provided to the Prosecution, explained that
it could not assent to the Prosecution’s
request to file the documents with the Trial Chamber.7
The Prosecution then asserted: a) that the documents
at issue “alleg[ed] that the
Accused intimidated some witnesses”, b) that UNMIK
would not permit the documents to be filed because
some victims of threats and intimidation might be identifiable,8 and
that c) UNMIK’s concern “illustrate[s]
the danger posed by the Accused.”9
In the Initial Reply, the Appellant urged the Trial
Chamber not to infer from UNMIK’s
concerns about document disclosure that he might endanger
witnesses.10
The Appellant also told the Trial Chamber that “the
Defence is making efforts to obtain assurances from
the University of Pristina of its willingness to readmit
him as a student.”11
- On 3 November 2005, Trial Chamber II (“Trial Chamber”)
rendered the “Decision
on Lahi Brahimaj’s Motion for Provisional Release” (“Impugned
Decision”), in which
it denied the Initial Motion, finding that the Appellant
had not discharged his burden of proving that if released,
he would appear for trial and would not pose a danger
to any victim, witness or other person.12
Denying the Initial Motion, the Trial Chamber considered, inter
alia, “the
vagueness of the accused’s plans”.13
The Trial Chamber also explained that it could not “completely
disregard” the Prosecution’s
allegation “that the Accused threatened or exercised
pressure on victims or potential witnesses”.14
- The Appellant has filed an interlocutory appeal
against the Impugned Decision.15 The Rule 115 Motion seeks the
admission of additional evidence which is intended
to challenge the findings in the Impugned Decision,
support the Appeal and supplement the evidence annexed
therein.
REQUEST FOR EXTENSION OF PAGE LIMIT
- The Appeals Chamber notes the Prosecution’s request
for leave to exceed the word limit for the Response
by 866 words, on the basis that this submission is
not only a response to the Appellant’s Rule 115
motion, but also contains an application for the
presentation of rebuttal of material.16
The Appeals Chamber reminds the Prosecution that, in
accordance with paragraph seven of the Practice Direction
on the Length of Briefs and Motions,17
a party must seek authorization in advance from the
Appeals Chamber to exceed the prescribed word limits.18 That being
said, paragraph five of the Practice Direction IT/184/Rev.2
provides that motions and responses related to Rule
115 proceedings will not exceed 9000 words and motions
related to Rule 115 rebuttal material will not exceed
3000 words. Considering that the Response consists
of a total of 3866 words, the Appeals Chamber finds
that the Prosecution is well within the page limit
and as such, the request for an increase in the word
limit is moot.
APPLICABLE LAW
- A party seeking to have additional evidence
considered in the determination of a provisional
release interlocutory appeal, should do so by way
of a motion requesting the admission of additional
evidence pursuant to Rule 115 of the Rules.19
While Rule 115 speaks in terms of appeals from judgment,
it applies equally to appeals from Trial Chamber decisions
on provisional release.20
Therefore the Appeals Chamber considers that the Rule
115 Motion is properly filed by the Appellant in support
of his Appeal under Rule 65 of the Rules.
- Pursuant to Rule 115 of the Rules and in accordance
with the jurisprudence of the Appeals Chamber, the
party submitting additional evidence on appeal ordinarily
must demonstrate that such evidence, was not available
at trial in any form,21
and that it could not have been discovered through
the exercise of due diligence.22 In this respect, the moving party
must provide a reasonable explanation as to why the
evidence submitted was not available at trial23 and must demonstrate that
due diligence had been exercised at trial.24
A party seeking to show that evidence could not have
been discovered through the exercise of due diligence
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”.25
- Whether evidence was available during proceedings
before the Trial Chamber is of importance because
it affects the standard for the admissibility of
evidence proffered pursuant to Rule 115.26
Evidence which was not available during proceedings
before the Trial Chamber and could not have been discovered
through the exercise of due diligence must be relevant
to a material issue, credible (i.e. capable
of belief or reliance) and such that it could have
had an impact on the verdict.27
Where the moving party cannot establish that the proffered
evidence was unavailable during proceedings before
the Trial Chamber and could not have been discovered
through the exercise of due diligence, it is required
to undertake the additional burden of establishing
that the exclusion of the additional evidence would lead
to a miscarriage of justice, in that if it had been
available at the trial it
would have affected the verdict.28
SUBMISSIONS OF THE PARTIES AND DISCUSSION
Material Submitted Pursuant to Rule 115
- The Appellant seeks the admission of three
documents attached to the Rule 115 Motion. Exhibit
1 is an affirmation of Mr. Richard Harvey, lead counsel
for the Appellant dated 15 November 2005.29
It details the events relating to a recent trip to
Kosovo that he undertook in order to investigate matters
relating to the Rule 115 Motion. Exhibit 2 is a letter
dated 9 November 2005, signed by Mr. Richard Harvey
and addressed to Mr. Søren Jessen-
Petersen, the Special Representative of the Secretary
General (“SRSG”) and Head
of the United Nations Interim Administration Mission
in Kosovo (“UNMIK”) requesting
a meeting with him to clarify alleged contradictions
relating to the Appellant’s
provisional release.30 Exhibit 3 is
a letter dated 10 November 2005, signed by Professor
Dr. Selim Daci, Dean of the Faculty of Philosophy
at the University of Pristina confirming that the Appellant
is a student at the University of Pristina.31
Availability of the material
- The Appellant submits that the three documents
are new in that they were not available to the counsel
for the Appellant (“Defence”) at the time of filing
the Initial Motion and could not have been obtained
through the exercise of due diligence before the
Trial Chamber issued the Impugned Decision.32
The Appellant submits that the Defence was unable to
provide documentary proof of his academic status without
first visiting Pristina and making contact with the
appropriate academic officials, but that this was
not possible prior to the week beginning on 7 November
2005 due to other professional commitments.33
He further submits that both categories of proposed
evidence are relevant to a material issue and credible.34
- The Prosecution argues that the Appellant has
not demonstrated that it exercised due diligence
during the proceedings before the Trial Chamber in
collecting the evidence and that the proposed evidence
lacks probative value.35
More specifically, the Prosecution does not dispute
that Exhibit 1 was not available during the proceedings
before the Trial Chamber, but argues that it does not
meet the requirements of Rule 115 since its probative
value is minimal and only confuses the issue.36 It also submits that
the Appellant has not shown that he exercised due diligence
in relation to Exhibit 3 and Exhibit 1.37 The Prosecution
submits that the Appellant’s recent efforts resulting
in the proposed Defence exhibits, appear to indicate
that it would have been easy for the Appellant to acquire
the necessary information at the time of the filing
of the Initial Motion.38
The Prosecution further submits that nothing prevented
the Appellant from first collecting all the necessary
information and only then, filing his Initial Motion.39
- In reply, the Appellant submits that he was
not privy to the UNMIK documents referred to by
the Prosecution in its Initial Response, and that
he had no reason at that stage to impugn the credibility
of the Prosecution’s claims, made in the
Initial Response, to the effect that UNMIK believed
he was involved in witness intimidation.40 Further, the Appellant submits
that he was not in a position to obtain clarification
of UNMIK’s position before
the Impugned Decision was issued, and that he expected
the Trial Chamber to hold a hearing which would
address UNMIK’s views about the Appellant’s alleged
involvement in witness intimidation.41 The Appellant
also submits that contrary to the Prosecution’s assertion,
it was not easy for the Defence to acquire the information
contained in Exhibit 3 at the time of filing the Initial
Motion, and he further contends that the Appeals Chamber
should take into account the stage of the proceedings
during which the Trial Chamber made its ruling as
well as the resources available to the Defence.42
- The Appeals Chamber is aware that none of the
three exhibits existed at the time the Impugned
Decision was rendered, so they were obviously not “available”
in a literal sense. The question for the Appeals Chamber
is, however, whether the Appellant could, by exercising
due diligence, have obtained the information contained
in them at an earlier date. Exhibit 1 recounts information
received in a meeting held after the Impugned Decision
was issued, and was filed 12 days after the latter
was rendered.43 Thus, this information
was not available for presentation to the Trial Chamber.
As to whether the information contained in Exhibit
1 could have been discovered through the exercise
of due diligence, the Appeals Chamber notes the Appellant’s
argument that the Defence was not privy to the contents
of the UNMIK documents referred to.44
Exhibit 1 recounts information received in a meeting
held in Pristina after the Impugned Decision was rendered,
and which could not reasonably have been held between
the time the Initial Response made the Appellant aware
of the documents discussed at the meeting and the
time that the Impugned Decision was rendered. Considering
the particular circumstances of this case and considering
further that Exhibit 1 relates to allegations made
by the Prosecution45
contained in documents that are, to date, still not
publicly available46
and therefore not available to the Defence and which
could not reasonably and with due diligence have been
obtained before the Impugned Decision was issued, taking
into account the traveling involved, the Appeals Chamber
finds that the information in this exhibit regarding
the meeting with UNMIK officials was unavailable for
presentation to the Trial Chamber.47
- The Appeals Chamber notes the Appellant’s submission
that Exhibit 2 is new and was therefore unavailable.48 As
previously noted, Exhibit 2 is a letter attempting
to schedule the meeting at issue in Exhibit 1.49 Even though the Appeals
Chamber has accepted that the said meeting could not
reasonably have been held earlier, it considers
that the letter requesting the meeting could have
been written as soon as the Defence became aware
that it was necessary to clarify UNMIK’s position
on whether the Appellant would endanger witnesses
if released, that is, following receipt of the Prosecution’s
Initial Response and before the filing of the Initial
Reply. Since the Defence has failed to demonstrate
that Exhibit 2 could not have been obtained through
the exercise of due diligence the Appeals Chamber
is not satisfied that Exhibit 2 was unavailable
at the time of the proceedings before the Trial Chamber.
- Regarding Exhibit 3, the Appeals Chamber notes
that the Appellant indicated that he had difficulty
giving precise information concerning the dates of
the courses for which he proposed to enrol since
he did not have a clear indication of the date at
which he might be able to resume his studies.50
He further explained that the Defence was nevertheless
making efforts to obtain assurances from the University
of Pristina of its willingness to readmit him as a
student.51 Recalling
that in the exercise of due diligence counsel must
bring any difficulties in relation to obtaining evidence,
to the attention of the Trial Chamber,52
the Appeals Chamber finds that this was done by the
Defence and therefore concludes that Exhibit 3 was
unavailable during the proceedings before the Trial
Chamber.
- Having found that Exhibit 1 and Exhibit 3 were
unavailable, and Exhibit 2 was available at the
time of the proceedings before the Trial Chamber
the Appeals Chamber turns now to the arguments raised
by the parties in light of the applicable law relating
to each of the exhibits in question.
i. Exhibit 1
- Exhibit 1 is an affirmation by the Appellant’s
lead counsel, dated 15 November 2005, providing
details concerning a meeting with Mr. Thomas Monaghan,
Director of the UNMIK Department of Justice and
author of the letter submitted by the Prosecution
as Annex H to the Initial Response, together with
three other UNMIK officials held on 11 November
2005, in Pristina, in which Mr. Monaghan stated to
him that the UNMIK documents referred to at paragraph
44 of the Initial Response did not refer in any
way to the Appellant.53 He asserts
that Mr. Monaghan further confirmed that he knew of
no information that would detract in any way from
the assurances given to the International Tribunal
by the SRSG.54
Exhibit 1 also makes submissions relating to the Appellant’s
plans if granted provisional release; it describes
the assurances made by the Appellant’s brother to Defence
Counsel, to the effect that the Appellant’s family
would support the Appellant as necessary to enable
him to study if granted provisional release.55
- The Appellant submits that the SRSG provided
the International Tribunal with his assurance that,
in the event of the Appellant being granted provisional
release, UNMIK would be able to ensure that he complied
fully with all terms and conditions imposed upon
him by the Trial Chamber.56
He submits that one such condition would inevitably
be that he should not in any way seek to contact,
influence or intimidate victims, witnesses or other
persons.57 He
submits that it therefore appeared that there was
a direct contradiction between the two letters sent
by UNMIK in October 2005, one from the SRSG and the
other from the Director of the Department of Justice,
Mr. Thomas Monaghan, submitted by the Prosecution,
which letter refused to lift the confidentiality measures
and to authorise the disclosure of the documents which,
the Prosecution claims, establish the Appellant’s involvement
in acts of intimidation.58
- The Appellant further submits that the Trial
Chamber was clearly concerned by such allegations
and therefore found that “[a]lthough it has not been
verified that the [Appellant] threatened or exercised
pressure on victims or potential witnesses, these
allegations made by the Prosecution are very serious
and the Trial Chamber cannot completely disregard
them”.59
He refers to the Trial Chamber’s finding that “in the
absence of any other significant factor indicating
that he will not pose a danger to any victim, witness
or other person, the [Appellant] ha[d] not discharged
his burden of proof to satisfy the Trial Chamber that
the second requirement of Rule 65(B) of the Rules ha[d]
been met.”60
- The Appellant submits that in order to resolve
this apparent conflict, the Defence wrote and hand-delivered
a letter requesting clarification and indicating
his availability to meet with the SRSG or his representative,
which letter is attached to the Rule 115 Motion.61 The Appellant
argues that UNMIK assured the Defence that it had not
provided the Prosecution with any documentation
implicating the Appellant in such a way, and as such
the Trial Chamber reached its decision to deny the
Appellant provisional release, relying in whole
or in part on the Prosecution’s representation which
it had no means of verifying.62 The Appellant also submits
that the Defence was not privy to the contents of
the UNMIK documents referred to by the Prosecution
in its Initial Response and had no reason at that
stage of proceedings to impugn the credibility of
the Prosecution’s claims.63
- In response, the Prosecution submits that Annex
H attached to its Initial Response is in essence
the UNMIK response to an Office of the Prosecutor
(“OTP”) request
of 5 October 2005, to have the confidentiality restrictions
of five UNMIK generated documents released for the
purposes of disclosure to the Defence and the Trial
Chamber and use in the Appellant’s provisional release
proceedings.64
The Prosecution submits that Annex H in effect prevented
the OTP from using the said five documents even in
redacted format, but the Prosecution used Annex H to
show that UNMIK, at the very least, acknowledged the
OTP’s concerns in relation
to the witnesses, and specifically, vis-à-vis the Appellant.65
- The Prosecution argues that Exhibit 1 does
not meet the requirements of Rule 115.66 It argues that while the proposed
evidence was not available in the proceedings before
the Trial Chamber, its probative value is minimal
and only confuses the issue.67
It adds that Exhibit 1 is in essence a hearsay declaration
by the Defence of a meeting with what appears to be
a group of UNMIK officials.68
The Prosecution submits that Exhibits 1 and 2, attempt
to cast doubt on the reliability of Annex H, based
on a meeting that the Defence had at UNMIK Headquarters
with Mr. Monaghan and three other persons whose identity
and functions are not clarified. The Prosecution argues
that the Appellant states that Mr. Monaghan stated “clearly
and unequivocally” that the documents referred to
in paragraph 44 of the Initial Response did not refer
to the Appellant, however, nowhere in Exhibit 1 is
there a direct and verbatim quote attributed to Mr.
Monaghan or another UNMIK participant at the meeting.69 It also adds that
it is further not clear at all whether Mr. Monaghan
had seen the five UNMIK documents in order to allow
him to comment on their contents in relation to the
Appellant.70
The Prosecution adds that the proper thing to do would
have been to take a signed witness statement from
Mr. Monaghan or any other person who has in fact seen
the five documents, just as the Prosecution has, and
have their comments recorded in a way that would guarantee
a sufficient degree of reliability as required by Rule
115.71 Lastly,
the Prosecution submits that Annex H and the five
underlying documents were not a decisive factor for
the Trial Chamber in reaching its decision, but rather
the two statements directly linking the Appellant
to witness threats.72
- Turning to the issue of whether Exhibit 1’s description
of the meeting with UNMIK officials is relevant
to a material issue, the Appeals Chamber recalls
that in order to satisfy this requirement the new
evidence should relate to findings material to the
Impugned Decision, in the sense that those findings
were crucial or instrumental to the decision.73
The Appeals Chamber notes that Exhibit 1 is material
to the specific finding of fact in relation to the
intimidation of witnesses in the Impugned Decision
since it claims that Mr. Monaghan stated that the
UNMIK documents referred to by the Prosecution in
its Initial Response did not refer in any way to the
Appellant.74
The Appeals Chamber therefore finds that Exhibit 1’s
description of the meeting with UNMIK officials is
relevant to the Appeal. Concerning the credibility
requirement, what is important in deciding if a piece
of evidence is credible is to ascertain whether it
appears to be reasonably capable of belief or reliance.75
The Prosecution submits that Exhibit 1 does not meet
the requirements of Rule 115, because, inter alia, (a)
it is essentially a report of statements made by persons
other than the signatory, thus constituting hearsay
evidence, and (b) its probative value is minimal.
First, the Appeals Chamber notes that hearsay evidence
is admissible,76 and emphasises that
it need not at this stage make a finding on the evidentiary
value of this exhibit. The Appeals Chamber recalls
that what is important at this stage is to ascertain
whether Exhibit 1 is reasonably capable of belief
or reliance. The Appeals Chamber further notes that
the affirmation is made by counsel admitted to appear
before this International Tribunal, and that, as
such, he is bound by the ethical rules in force.77 In light of the foregoing, the Appeals Chamber finds that Exhibit 1 is capable
of belief or reliance.
- Before determining whether Exhibit 1 could
have had an impact upon the Impugned Decision, the
Appeals Chamber notes the Prosecution’s argument
that Annex H and the five UNMIK documents submitted
by the Prosecution were not a decisive factor considered
by the Trial Chamber in reaching the Impugned Decision
and that it had submitted two statements directly
linking Appellant to witness threats.78
The Appeals Chamber is not persuaded by this argument.
Although the Trial Chamber found that it had “not
been verified that the [Appellant] threatened or exercised
pressure on victims or potential witnesses”,79
it also concluded that it was not satisfied that the
second requirement set out in Rule 65(B) had been
met. The Appeals Chamber is of the view that in reaching
the latter conclusion the Trial Chamber also considered
the allegations made by the Prosecution concerning
the five UNMIK documents.
- Regarding the determination as to whether Exhibit
1 could have had an impact upon the Impugned Decision,
the Appeals Chamber notes that the Prosecution had
argued that UNMIK or more specifically, Mr. Monaghan,
had refused to allow disclosure of documents allegedly
showing the implication of the Appellant in acts
of intimidation.80 The Trial Chamber then found that
although it had not been verified that the Appellant
threatened or exercised pressure on victims or potential
witnesses, these allegations were very serious and
the Trial Chamber could not completely disregard
them.81
Considering that Exhibit 1 could have satisfied the
Trial Chamber that insofar as UNMIK is concerned the
Appellant did not pose a danger to witnesses, the Appeals
Chamber finds that Exhibit 1 could have had an impact
on the Impugned Decision, and accordingly admits Exhibit
1 as additional evidence on appeal.
ii. Exhibit 2
- Exhibit 2 is a letter from the Defence and
addressed to the SRSG requesting a meeting with
him to clarify apparent contradictions relating to
the Appellant’s
provisional release. The letter indicates that although
the SRSG had provided his assurance in a letter
dated 11 October 200582
that UNMIK would ensure the Appellant’s compliance
with all the conditions set by the Trial Chamber in
the event that he was provisionally released, on 7
October 2005, Mr. Monaghan wrote to the Deputy Prosecutor
of the International Tribunal in response to the latter’s
previous request for lifting the confidentiality measures
concerning the UNMIK documents which the Prosecution
claims allege that the Appellant intimidated some
witnesses, denying the Deputy Prosecutor’s request
on the basis of security concerns. The letter states
that the Trial Chamber may have found Mr. Monaghan’s
letter to be somewhat contradictory to the SRSG letter
dated 11 October 2005, and explains that in light
of the fact that the Defence has not seen any of these
documents provided to the OTP he cannot help the Trial
Chamber to reconcile the matter, and finally, requests
a meeting to discuss these issues.
- Having found that the Appellant has failed
to show that Exhibit 2 could not have been obtained
through the exercise of due diligence during proceedings
before the Trial Chamber, the question that remains,
therefore, is whether the Appellant has shown that
Exhibit 2 is relevant, credible and has discharged
the additional burden of establishing that the exclusion
of Exhibit 2 would lead to a miscarriage
of justice, in that if it had been available in the
proceedings before the Trial Chamber it would have
affected the verdict. The Appeals Chamber notes that
Exhibit 2, like Exhibit 1, is material to the specific
finding of fact in relation to witness intimidation.
The Appeals Chamber therefore finds that Exhibit
2 is relevant to the interlocutory appeal. Concerning
the credibility requirement, the Appeals Chamber
finds that Exhibit 2 is reasonably capable of belief
or reliance.
- Since the Appeals Chamber has found that Exhibit
2 was available during the proceedings before the
Trial Chamber, in that the Defence could have obtained
it through the exercise of due diligence, the question
that remains, therefore, is whether the Appellant
has discharged the additional burden of establishing
that the exclusion of Exhibit 2 would lead
to a miscarriage of justice. The Appellant has not
expressly made any arguments relying on the miscarriage
of justice exception in relation to Exhibit 2 and
in failing to do so, has not provided any meaningful
guidance for its assessment. The Appellant simply
states that “in relation to the
totality of the new evidence (the latter ( would have
been capable of having a material impact on the
(Impugned( Decision and that it would result in a
miscarriage of justice not to admit this new evidence.”83
The Appeals Chamber is therefore not satisfied that
the Appellant has discharged the additional burden
of establishing that the exclusion of Exhibit 2 would
lead to a miscarriage of justice, in that if it had
been presented before the Trial Chamber prior to the
delivery of the Impugned Decision, the latter would
have been different. However, in the interests of
justice the Appeals Chamber will exercise its discretion
to consider whether the exclusion of this evidence
would lead to a miscarriage of justice. The Appeals
Chamber considers that Exhibit 2 merely states the
point of view of the Defence on the underlying issues
and is not evidence that is particularly probative
of those issues. Considered in the context of the evidence
which was given during proceedings before the Trial
Chamber and of that which has been admitted on appeal,84 there is no realistic
possibility that the finding that the second requirement
of Rule 65(B) of the Rules had not been met, would
have been different if Exhibit 2 had been before the
Trial Chamber. The Appellant’s request for the admission
of Exhibit 2 therefore fails to meet the standards
of Rule 115 and is accordingly dismissed.
iii. Exhibit 3
- Exhibit 3, as stated above, is a letter from
the Dean of the Faculty of Philosophy at the University
of Pristina confirming that the Appellant is a student
at the University of Pristina.85 The Appellant
submits that the Prosecution had argued that he “must
also provide proof of his earlier enrolment at the
faculty and that he has a student card for the year
2005 -2006 or that enrolment for his academic year
is still open.”86
Citing the Prosecution’s Initial Response, the Rule
115 Motion states that, “
this information is prerequisite to […] a proper assessment
of the conditions of release of the accused.”87 The
Appellant contends that this document proves that:
a. The Appellant was enrolled as a student in the Faculty
of Philosophy, Department of History prior to his
indictment;
b. The History Department is ready to enable him to
resume his studies as soon as he may be granted provisional
release;
c. The History Department and its teaching staff are
willing to provide supervision, additional lectures
and courses to enable him to make up for time he
has missed during his pre-trial detention;
d. The Appellant will be required to participate in
classes for a minimum of four days a week, leading
up to his Diploma Thesis for the degree of Bachelor
of Arts;
e. The fee for the academic year is one hundred and
thirty Euros;
f. University accommodation is available to him.88
- The Appellant reiterates that his family have
undertaken to underwrite the cost of his studies
as well as his living expenses and that he intends
to repay his family and to contribute to the collective
support and well being of the extended family by
working on the family farm when the terms and conditions
of his provisional release so permit.89
- Lastly, the Appellant submits that when the
significant number of factors weighing in favour
of granting his provisional release, are considered
in combination with the additional evidence proffered
in his Rule 115 Motion, the said additional evidence
- had it been available at the time the Trial Chamber
rendered the Impugned Decision - would unquestionably
have been capable of affecting the Impugned Decision.90
- Apart from arguments as to the availability
of Exhibit 3, the Prosecution submits that the admission
of the additional exhibits would not have changed
the Trial Chamber’s
decision which is clearly based on both prongs of Rule
65(A) of the Rules: that the Appellant has failed
to convince the Trial Chamber that he will appear
for trial and not pose any danger to victims and
witnesses.91
- Having found that Exhibit 3 was not available
at the time of the proceedings before the Trial
Chamber, the Appeals Chamber has to determine whether
Exhibit 3 is relevant to a material issue, credible,
and such that it could have had an impact on the
Impugned Decision. The Appeals Chamber considers
that Exhibit 3 is material to the specific finding
that the Trial Chamber was not satisfied that the
Appellant would appear for trial if released. The
Appeals Chamber further notes that the credibility
of Exhibit 3 is not disputed. Therefore, it finds
that Exhibit 3 is reasonably capable of belief or
reliance.
- During the proceedings before the Trial Chamber,
the Prosecution argued that the Appellant had failed
to provide information on his sources of income and
how he intends to support himself as a student which,
in the Prosecution’s view, is
necessary in order to provide a proper assessment of
the conditions of his release.92 The Prosecution also argued
before the Trial Chamber, that the Appellant had
not provided any information concerning his intended
activities, or place of residence and that the Appellant
should provide proof that he was indeed registered
at the faculty.93
The Prosecution concluded that “this information is
a pre-requisite to […] a proper
assessment of the conditions of release of the (Appellant(.”94
The Appeals Chamber notes that the Trial Chamber having
taken the Prosecution’s
argument into account, then considered the vagueness
of the Appellant’s plans and
the uncertainty of his ability to earn a livelihood
prior to finding that the Appellant had not discharged
his burden of proof to satisfy the Trial Chamber that
the first requirement of Rule 65(B) of the Rules had
been met.95
- Bearing in mind the above finding, the Appeals
Chamber finds that Exhibit 3 could have had an impact
upon the Impugned Decision. In light of the above
findings relating to the admission of Exhibit 1
which could have had an impact upon the Trial Chamber’s
finding regarding the second requirement of Rule
65(B), the Appeals Chamber finds that Exhibit 3
which is relevant to the first requirement of Rule
65(B), when considered collectively with and in
the context of Exhibit 1, could have had an impact
on the Impugned Decision and is accordingly admitted
as additional evidence on appeal.
- The Appeals Chamber stresses that since there
has not yet been a determination as to the weight
to be afforded to any of the new evidence, Exhibit
1 and Exhibit 3 will therefore be admitted into
evidence without prejudice to the determination
of the weight to be afforded to the evidence when
the Appellant’s provisional release
is considered.96
Request for the Admission of Rebuttal
Material
- The Prosecution submits that, were the Appeals
Chamber to decide to grant the Rule 115 Motion,
it will seek the introduction of the following three
pieces of additional evidence as rebuttal material
since they directly affect the substance of the
additional evidence offered by the Appellant and
thus meet the requirements set out in Rule 115:97
a. A declaration of OTP Investigator Thomans Obruca,
dated 24 November 2005;98
b. A request for assistance in the form of a letter
from the OTP to UNMIK, dated 21 November 2005;99
c. And a letter from UNMIK’s Director of the Department
of Justice, dated 23 November 2005.100
- The Prosecution argues that in particular Exhibit
1 would appear to contradict Annex H which was submitted
by the Prosecution with its Initial Response, thus
it should be permitted to rebut the allegations
contained in the Defence exhibits, and adds in support
that the Appellant requests the Prosecution to articulate
clearly the basis upon which it made its representation
at paragraphs 44 and 45 of its Initial Response.101
- The Prosecution submits that Prosecution Rebuttal
Exhibit A would be highly probative to the issues
raised in paragraphs 11 to 18 of the Rule 115 Motion,
especially Exhibit 1 proffered with the Rule 115
Motion and the Appellant’s contention that
Annex H “did not refer in any way to the [Appellant]”.102
The Prosecution submits that Investigator Obruca, the
author of Prosecution Rebuttal Exhibit A, has reviewed
the documents referred to in Annex H and comments on
whether there is any reference to the Appellant in
these documents. According to the Prosecution, “[t]he
investigator comes to the conclusion that the five
UNMIK documents indeed contain a number of references
to the [Appellant].”103
The Prosecution submits that the other two proposed
pieces of rebuttal material offered by the Prosecution,
that is, Prosecution Rebuttal Exhibits B and C, equally
and directly address the issue raised by the proposed
Defence exhibits.104
- The Prosecution submits that in the request
signed by the Deputy Prosecutor and dated 21 November
2005, it put to Mr. Monaghan the parts of the Rule
115 Motion that were related to Mr. Monaghan’s meeting
with the Appellant’s lead counsel on
11 November 2005 in Pristina.105
The request concluded that, “[i]n light of the above
and in order to provide the Appeals Chamber with the
opportunity to verify the OTP’s claims and to reach
its decision with all the necessary information, the
OTP is of the view that the investigation case files
that you released solely for the use of the OTP should
be submitted (in redacted form) to the Appeals Chamber
(and the Defence). The investigation[] files now
appear like a crucial document in the Appeals Chamber
deliberations on the Accused Brahimaj’s appeal and
Rule 115 Motion.”106
Prosecution Rebuttal Exhibit C is a letter dated 23
November 2005 from Mr. Monaghan, UNMIK’s Director
of the Department of Justice, denying the OTP’s request
of 21 November 2005. The Prosecution submits that
what is particularly noteworthy in Prosecution Rebuttal
Exhibit C is the striking absence of any substantive
reference to the concrete issues that Mr. Monaghan
was asked to comment upon by the OTP and that there
isn’t
the slightest hint as to his meeting with the Appellant’s
lead counsel, despite the fact that his letter post-dates
the meeting.107
In Reply, the Appellant submits that Prosecution Rebuttal
Exhibit C is consistent with Exhibit 1 because nowhere
in Prosecution Rebuttal Exhibit C does Mr. Monaghan
contradict the Defence’s version of the verbal assurances
given on 11 November 2005 despite the fact that his
attention was drawn to the assertions made by the
Defence and contained in Exhibit 1.108
- The Appeals Chamber recalls that “rebuttal material
is admissible if it directly affects the substance
of the additional evidence admitted by the Appeals
Chamber”109 and
as such, has a different test of admissibility from
additional evidence under Rule 115 of the Rules.110
The Appeals Chamber notes the Prosecution’s submission
that Prosecution Rebuttal Exhibits A-C directly affect
the substance of the additional evidence offered by
the Defence and thus meet the requirements set out
in Rule 115.111
The Appeals Chamber further notes that the Appellant
does not oppose the admission of Prosecution Rebuttal
Exhibits B and C as rebuttal material,112
but that he opposes the admission of Prosecution Rebuttal
Exhibit A as an inappropriate and disingenuous attempt
to impugn Exhibit 1 and to mislead the Appeals Chamber.113
Considering that the evidence contained in the three
documents attached to the Response is admissible as
rebuttal material under Rule 115 of the Rules, as it
directly affects the substance of the additional evidence
admitted by the Appeals Chamber in this decision,
Prosecution Rebuttal Exhibits A, B, and C are admitted
as rebuttal material pursuant to Rule 115 of the Rules.
Disposition
For the foregoing reasons, the Appeals Chamber,
GRANTS the Appellant’s request for admission
into evidence of Exhibits 1 and 3;
DISMISSES the request for admission into evidence
of Exhibit 2;
AND ALLOWS the Prosecution’s request for the
admission of rebuttal material relating to Prosecution
Rebuttal Exhibits A-C.
Done this 3rd day of March 2006
At The Hague,
The Netherlands.
_____________________
Judge
Liu Daqun
Presiding Judge
[Seal of the International Tribunal]
1. IT/32/Rev.36.
2. Response, para. 4.
3. Response, para. 5. According to
the Prosecution, the total word count of the Response
is 3866 words, see Response, footnote 5.
4. Initial Motion, Annex A, p. 2.
5. Prosecution Response to Motion for
Provisional Release Filed by Mr Brahimaj on 16 September
2005, Confidential, 17 October 2005, English
Translation filed on 1 November 2005 (“Initial
Response ”); see also the “Request
by the Defence for Lahi Brahimaj for Leave to Reply
to the Prosecution’s Response to ‘Defence
Motion on Behalf of Lahi Brahimaj for Provisional Release’,
filed on 17 October 2005 and for Authorisation to Exceed
the Page-Limit for the Reply’”, filed by
the Appellant on 25 October 2005; and the “ Defence
Reply to Prosecution’s Response to Defence Motion
on Behalf of Lahi Brahimaj for Provisional Release” (“Initial
Reply”) filed confidentially by the Appellant
on 25 October 2005.
6. Initial Response, paras 54-55.
7. Ibid., para. 44.
8. Ibid.
9. Ibid., para. 45.
10. Initial Reply, para. 30.
11. Ibid., para. 41.
12. Impugned Decision, p. 6.
13. Ibid.
14. Ibid.
15. Prosecutor v. Ramush Haradinaj
et al., Case No.: IT-04-84-AR65.2, “Interlocutory
Appeal Against the Decision by the Trial Chamber of
3 November 2005 to Dismiss the Motion for Provisional
Release Filed by the Accused Lahi Brahimaj With Partly
Confidential Annexes” filed on 10 November 2005
(“Appeal”). On 21 November 2005, the Prosecution
filed, the “Prosecution’s Response to ‘Interlocutory
Appeal Against the Decision by the Trial Chamber of
3 November 2005 to Dismiss the Motion for Provisional
Release Filed by the Accused Lahi Brahimaj With Partly
Confidential Annexes’” opposing the Appeal.
The “Reply by Defence of Lahi Brahimaj to Prosecution’s
Response to ‘Interlocutory Appeal Against the
Decision by the Trial Chamber of 3 November 2005 to
Dismiss the Motion for Provisional Release Filed by
the Accused Lahi Brahimaj With Partly Confidential
Annexes’” was filed on 25 November 2005.
16. Response, para. 5. According to
the Prosecution, the total word count of the Response
is 3866 words, see Response, footnote 5.
17. Practice Direction on the Lengths
of Briefs and Motions, IT/184/Rev.2, 16 September 2005
(“Practice Direction IT/184 /Rev.2”).
18. See Prosecutor v. Momir Nikolic, Case
No.: IT-02-60/1-A, Decision on Prosecution’s
Motion to Strike, 20 January 2005, para. 13; Prosecutor
v. Stanislav Galic, Case No.:IT-98-29-A, Decision
on Request for Extension of Page Limit for the Prosecution’s
Response to Galic’s Third Rule 115 Motion, p.
3.
19. Prosecutor v. Vinko Pandurevi
c and Milorad Trbic, Case No.: IT-05-86-AR65.1,
Decision on Interlocutory Appeal from Trial Chamber
Decision Denying Vinko Pandurevic’s Application
for Provisional Release, 3 October 2005, para. 15. Prosecutor
v. Mitar Rasevic and Savo Todovi c, Case No.:
IT-97-25/1-AR65.1, Decision on Interlocutory Appeal
From Trial Chamber Decision Denying Savo Todovic’s
Application for Provisional Release, 7 October 2005,
para. 17.
20. Prosecutor v. Nikola [ainovi
c & Dragoljub Ojdanic, Case No.: IT-99-37-AR65,
Decision on Motion for Modification of Decision on
Provisional Release And Motion to Admit Additional
Evidence, 12 December 2002; Prosecutor v. Vidoje
Blagojevic et al., Case No.: IT-02-53-AR65, Decision
on Motion to Present Additional Evidence, 28 May 2002; Prosecutor
v. Jovica Stanisic and Franko Simatovic, Case Nos.:
IT-03-69-AR65.1, IT-03-69 -AR65.2, Decision on Prosecution’s
Application Under Rule 115 to Present Additional Evidence
in its Appeal Against Provisional Release, 11 November
2004; Prosecutor v. Vinko Pandurevic and Milorad
Trbic, Case No.: IT-05-86-AR65.1, Decision on Interlocutory
Appeal from Trial Chamber Decision Denying Vinko Pandurevic’s
Application for Provisional Release, 3 October 2005,
para. 15.
21. See Rule 115(B); see also Prosecutor
v. Radislav Krstic, Case No.: IT-98-33-A, Decision
on Application for Subpoenas, 1July 2003 (“Krstic Subpoenas
Decision”), para. 4; Prosecutor v. Radislav
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; Juvénal Kajelijeli v. Prosecutor, Case
No.: ICTR-98 -44A-A, Decision on Defence Motion for
the Admission of Additional Evidence Pursuant to Rule
115 of the Rules of Procedure and Evidence, 28 October
2004, para. 9; Prosecutor v. Stanislav Galic, Case
No.: IT-98-29-A, Decision on Defence Second Motion
for Additional Evidence Pursuant to Rule 115, 22 March
2005 (“Galic Decision on the Second Rule
115 Motion”), para. 9.
22. Prosecutor v. Duško
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.
Kupreškic et al., Case No.: IT -95-16-A,
Appeal Judgment, 23 October 2001 (“Kupreskic
et al. Appeal Judgement ”), para. 50; Prosecutor
v. Hazim Delic, Case No.: IT-96-21-R-R119, Decision
on Motion for Review, 25 April 2002, para. 10; Krstic Subpoenas
Decision, para. 5; Krstic Rule 115 Decision,
p. 3; Prosecutor v. Tihomir Blaskic, Case No.:
IT-95-14-A, Decision on Evidence, 31 October 2003 (“Blaskic Evidence
Decision”), p. 3; Prosecutor v. Mladen Naletilic
and Vinko Martinovi c, Case No.: IT-98-34-A, Decision
on Naletilic’s Consolidated Motion to Present
Additional Evidence, 20 October 2004 (“Naletilic
and Martinovic October 2004 Rule 115 Decision”),
para. 10; Galic Decision on the Second Rule
115 Motion, para. 9.
23. Tadic Rule 115 Decision,
para. 45.
24. “Consequently, defence counsel
is under a duty, when representing an accused, to act
with competence, skill and diligence when investigating
a potential defence on behalf of an accused. The duty
also applies when gathering and presenting evidence
before the Tribunal. The counsel would not be required
to do everything conceivably possible in performing
these tasks, but would be expected to act with reasonable diligence
in discharging the duty.” Prosecutor v. Kupreskic
et al., Case No.: IT-95-16-A, Decision on the Motions
of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran
Kupreskic and Mirjan Kupreskic to Admit Additional
Evidence, Confidential, 26 February 2001, para. 15; see
also Tadic Rule 115 Decision, para. 36.
25. Tadic Rule 115 Decision,
para. 47; Prosecutor v. Zoran Kupreskic et al., Case
No. IT-95-16-A, Appeal Judgement, 23 October 2001
(“Kupreskic et al. Appeal Judgement”),
para. 50.
26. Galic Decision on the Second
Rule 115 Motion, para. 4; Decision on the Fourth Defence
Motion to Present Additional Evidence Before the Appeals
Chamber, 29 August 2005 (“Decision on the Fourth Galic Motion”),
para. 9.
27. Krstic Rule 115 Decision,
p. 3; Decision on the Fourth Galic Motion, para.
9.
28. See Prosecutor v. Jovica Stani
sic and Franko Simatovic, Case Nos.: IT-03-69-AR65.1,
IT-03-69-AR65.2, Decision on Prosecution’s Application
Under Rule 115 to Present Additional Evidence in its
Appeal Against Provisional Release, 11 November 2004,
para. 8; Krstic Rule 115 Decision, p. 4; Blaskic Evidence
Decision, p. 3.
29. “Affirmation of Richard
J. Harvey, Lead Counsel for Lahi Brahimaj” (“Exhibit
1”).
30. See infra para. 21.
31. This letter is entitled “Confirmation
Letter Concerning the Status of Mr. Lahi Shaban
Brahimaj at the Faculty of Philosophy University
of Pristina” (“Exhibit 3”) (emphasis
in the original).
32. Rule 115 Motion, para. 3.
33. Rule 115 Motion, para. 21.
34. Rule 115 Motion, para. 3.
35. Response, para. 3.
36. Response, para. 12.
37. Response, para. 18, footnote 25.
38. Response, para. 19.
39. Response, para. 20.
40. Reply, para. 7.
41. Reply, paras 7 and 8.
42. Reply, para. 18.
43. The Impugned Decision was filed
on 3 November 2005, and Exhibit 1 was filed on 15 November
2005.
44. Reply, para. 7.
45. See Rule 115 Motion, paras
6-9.
46. Response, para. 10; see also
Initial Response, Annex H, which states that UNMIK
does not agree to lift the confidentiality restrictions
on the basis that “(a( review of the released
files and listed documents showed that it cannot be
excluded that the threatened and intimidated persons
can be identified, regardless of an editing of the
documents in question.”
47. The Appeals Chamber notes that
the public nature of a document can have a bearing
on the question of unavailability. See Prosecutor
v. @eljko Mejakic, Momcilo Gruban, Dusan Fustar and
Dusko Kne `evic, Case No.: IT-02-65-AR11bis.1,
Decision on Joint Defense Motion to Admit Additional
Evidence Before the Appeals Chamber Pursuant to Rule
115, para. 18.
48. Rule 115 Motion, para. 3.
49. See supra para. 12.
50. Initial Reply, para. 41.
51. Initial Reply, para. 41.
52. Krstic Subpoenas Decision,
para. 5; Tadic Rule 115 Decision, para. 40; Kupreškic
et al. Appeal Judgment, para. 50.
53. Exhibit 1, para. 10.
54. Exhibit 1, para. 10.
55. See, for example, submissions
contained in Exhibit 1, paras 13 and 14, which are
also contained in the Rule 115 Motion, paras 21 and
23.
56. Rule 115 Motion, para. 10, referring
to the letter dated 11 October 2005, filed on 12 October
2005. This letter was submitted in support of the
Appellant’s application for provisional release.
It stated, inter alia, that UNMIK could ensure
the Appellant’s compliance with the provisional
release conditions.
57. Rule 115 Motion, para. 14.
58. Rule 115 Motion, para. 11, referring
to the letter submitted as Annex H to the Initial Response.
59. Rule 115 Motion, para. 13, quoting
Impugned Decision, p. 6.
60. Rule 115 Motion, para. 13, quoting
Impugned Decision, p. 6.
61. Rule 115 Motion, para. 16, see also
Exhibit 1, p. 10.
62. Rule 115 Motion, para. 17.
63. Reply, para. 7.
64. Response, para. 10.
65. Response, para. 10.
66. Response, para. 12.
67. Response, para. 12.
68. Response, para. 13.
69. Response, paras 11 and 13.
70. Response, para. 13.
71. Response, paras 14 and 15.
72. Response, para. 16, referring
to Initial Response, Annex E, paras 5-12 and 14-30;
and Annex F, paras 5-10.
73. Kupreskic et al. Appeal
Judgement, para. 62.
74. See Exhibit 1, para. 10; see also,
Impugned Decision, p. 6 and Rule 115 Motion, paras
10-18.
75. Prosecutor v. Zoran Kupreskic
et al., Case No. IT-95-16-A, Decision on the Motions
of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran
Kupreskic and Mirjan Kupreskic to Admit Additional
Evidence, 26 February 2001, para. 28. See also Blaskic Evidence
Decision, p. 3; Naletilic and Martinovic 20
October 2004 Rule 115 Decision, para. 11.
76. Prosecutor v. Zlatko Aleksovski, Case
No.: 95-14/1-AR73, Decision on Prosecutor’s Appeal
on Admissibility of Evidence, 16 February 1999, para.
15, in which the Appeals Chamber stated that, “It
is well settled in the practice of the Tribunal that
hearsay evidence is admissible.”
77. See for example Code of
Professional Conduct for Defence Counsel Appearing
Before the International Tribunal, Rev. 1, 12 July
2002.
78. Response, para. 16.
79. Impugned Decision, p. 6.
80. Initial Response, para. 44.
81. Impugned Decision, p. 6.
82. The Appeals Chamber notes that
although the Appellant refers to a letter dated 7th
October 2005 and filed on 11 October, it has verified
that the actual signature date of the letter from the
SRSG is 11 October 2005 and that it was filed on 12
October 2005.
83. Rule 115 Motion, para. 5.
84. See Prosecutor v. Zoran Kupreskic
et al., Case No.: IT-95-16-A, Redacted Version
of Decision on the Motions of Appellants Vlatko Kupreskic,
Drago Josipovic, Zoran Kupreskic and Mirjan Kupre skic
to Admit Additional Evidence dated 26 February 2001,
filed on 30 May 2001, paras 61 and 78; see also
Decision on Admission of Evidence Following Hearing
of 30 March 2001, 11 April 2001 (“Kupreskic
et al. 11 April 2001 Decision ”), para. 8
; Kupreskic et al. Appeal Judgement, paras 66
and 75; Krsti c Rule 115 Decision, p. 4; Blaskic Rule
115 Decision, p. 3; Naletilic and Martinovic October
2004 Rule 115 Decision, para. 11.
85. This letter is entitled “Confirmation
Letter Concerning the Status of Mr. Lahi Shaban
Brahimaj at the Faculty of Philosophy University
of Pristina” (emphasis in the original).
86. Rule 115 Motion, para. 20.
87. Rule 115 Motion, para. 20 (emphasis
in original), referring to the Initial Response, para.
55.
88. Rule 115 Motion, para. 21.
89. Rule 115 Motion, para. 22. See also
Personal Statement submitted with the Initial Motion.
90. Rule 115 Motion, para. 24. The
Appeals Chamber notes that whether Exhibit 3 is reasonably
capable of belief or reliance is not disputed by the
parties.
91. Response, para. 21.
92. Rule 115 Motion, paras 52 and
55.
93. Initial Response, paras 53-55.
94. Initial Response, para. 55.
95. Impugned Decision, p. 6.
96. See for example Kupreskic
et al. 11 April 2001 Decision, para. 31, where
evidence advanced by Vlatko Kupreskic and admitted
pursuant to Rule 115, was held not to be determinative
of the appeal proceedings.
97. Response, paras 4 and 22.
98. Response, para. 24, Annex A (“Prosecution
Rebuttal Exhibit A”).
99. Response, para. 24, Annex B (“Prosecution
Rebuttal Exhibit B”).
100. Response, para. 24, Annex C
(“Prosecution Rebuttal Exhibit C”).
101. Response, para. 23.
102. Response, para. 25.
103. Response, para. 25.
104. Response, para. 27.
105. Response, para. 28.
106. Response, para. 28 referring
to Prosecution Rebuttal Exhibit B, p. 3.
107. Response, para. 30.
108. Reply, para. 13.
109. Blaskic Evidence Decision,
p. 3.
110. Prosecutor v. Miroslav Kvocka
et al., Case No.: IT-98-30/1-A, Decision on Prosecution’s
Motion to Adduce Rebuttal Material, 12 March 2004,
p. 3.
111. Response, para. 22.
112. Reply, paras 1 and 22.
113. Reply, paras 14-15 and 22.
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