Srebrenica-Drina Corps, Prosecutor v. Krstic, Decision on Applications for Admission of Additional Evidence on Appeal, IT-98-33-A (ICTY AC, Aug. 05, 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:
5 August 2003

PROSECUTOR
v
Radislav KRSTIC

__________________________________

DECISION ON APPLICATIONS FOR ADMISSION OF 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,

BEING SEISED OF a “Rule 115 Defence Motion to Present Additional Evidence” filed by Radislav Krstic on 10 January 2003 and a “Supplemental Rule 115 Defence Motion to Present Additional Evidence” filed on 20 January;¹

NOTING that, on 27 January 2003, Krstic filed confidentially a “Defence Addendum to Rule 115 Motion with Request for Authorization to Exceed the Page Limit in the Rule 115 Motion” in which he addressed the issue of availability of the evidence put forward by him as additional evidence;²

NOTING the Prosecution’s “Response to Defence Motions for Admission of Additional Evidence under Rule 115” filed on 31 January 2003, in which it submitted that none of the evidence presented by the Defence is admissible pursuant to Rule 115;³

NOTING that, on 12 February 2003, the Defence filed confidentially its “Defence Reply to the Prosecution’s Response to Defence Motions for Admission of Additional Evidence under Rule 115”;⁴

NOTING that, on 26 February 2003, the Defence notified the Appeals Chamber orally that one piece of evidence annexed to the “Rule 115 Defence Motion to Present Additional Evidence”, Tab 26, had been available at trial and that it had been put forward not as additional evidence on appeal, but in order to put Tabs 27 and 27A in their proper context;⁵

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 form⁶ and that it could not have been discovered through the exercise of due diligence,⁷ 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,”⁸

CONSIDERING that counsel must bring any difficulties in relation to obtaining evidence, including those arising from intimidation or inability to locate witnesses, to the attention of the Trial Chamber;⁹

CONSIDERING that this obligation to report to the Trial Chamber is intended not only as a first step in exercising due diligence but also as a means of self -protection, in that a contemporaneous record then exists that the cooperation of the prospective witness had not been obtained;¹⁰

CONSIDERING that such a report to the Trial Chamber does not by itself satisfy the obligation of due diligence as the party must also seek relief from the Trial Chamber by which the uncooperative prospective witness may be compelled to cooperate;¹¹

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;¹²

CONSIDERING that, if the evidence was available at trial or could have been discovered through the exercise of due diligence, the moving party will be 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;¹³

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 isolation;¹⁴

CONSIDERING that the Appeals Chamber is satisfied that the following evidence was not available at trial, that it could not have been discovered through the exercise of due diligence, that it is relevant to a material issue and credible and that it could have had an impact on the verdict: Tabs 1, 2, 3 and 5 in the Annex to the “Rule 115 Defence Motion to Present Additional Evidence”;¹⁵

CONSIDERING that the Appeals Chamber is satisfied that the following evidence should therefore be admitted pursuant to Rule 115: Tabs 1, 2, 3 and 5 in the Annex to the “Rule 115 Defence Motion to Present Additional Evidence”;

CONSIDERING that the remainder of the evidence put forward by the Defence in its Motion does not meet the requirements of Rule 115 and therefore will not be admitted as additional evidence on appeal;

CONSIDERING that the Prosecution will be permitted to offer evidence in rebuttal of the material admitted as additional evidence and that a Scheduling Order will be made for the future conduct of the Motion pursuant to Rule 115;

ORDERS that the evidence contained in Tabs 1, 2, 3 and 5 in the Annex to the “Rule 115 Defence Motion to Present Additional Evidence” be admitted as additional evidence on appeal pursuant to Rule 115.

NOTES finally that further reasons for the present decision will be given in due course. Judge Shahabuddeen will append a Separate Opinion to the statement of reasons.

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

Dated this 5th day of August 2003,
At The Hague,
The Netherlands.

__________________
Judge Theodor Meron
Presiding

[Seal of the Tribunal]

1 - They will be referred to together as the “Motion”.
2 - A public version was filed on 12 February 2003.
3 - On 21 February 2003, the Senior Legal Officer of the Appeals Chamber sent a letter to counsel for the Prosecution pointing out that its Response appeared to have omitted material which it had been intending to include, and inviting the Prosecution to correct its Response. As a result of this letter, on 24 February 2003, the Prosecution filed its “Prosecution Motion Seeking Leave to Amend the ‘Prosecution Response to Defence Motions for Admission of Additional Evidence under Rule 115’”, whereby it sought leave to amend its Response. On 26 February, leave was granted (“Order”).
4 - A public version was filed on 20 February.
5 - On 26 February 2003, the Appeals Chamber issued an Order in which it recorded the Defence submission on that point.
6 - Rule 115(B). See also Prosecutor v Krstic, IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (“Subpoenas Decision”), par 4.
7 - 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.
8 - Tadic Rule 115 Decision, pars 40, 44-45, 47; Kupreskic Conviction Appeal Judgment, par 50.
9 - Prosecutor v Krstic, Decision on Application for Subpoenas, 1 July 2003 (“Krstic Subpoenas Decision”), par 5; Tadic Rule 115 Decision, par 40; Kupreskic Conviction Appeal Judgment, par 50.
10 - Krstic Subpoenas Decision, par 14.
11 - Krstic Subpoenas Decision, par 15.
12 - Kupreskic Conviction Appeal Judgment, par 68.
13 - Krstic Subpoenas Decision, par 16; Delic Review Decision, par 15.
14 - 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.
15 - Tadic Rule 115 Decision, pars 35-45; Kupreskic Conviction Appeal Judgment, par 50.

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