Case No.: IT-95-14-A

IN THE APPEALS CHAMBER

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

Registrar:
Mr. Hans Holthuis

Decision of:
31 October 2003

PROSECUTOR

v.

TIHOMIR BLASKIC

_________________________________________________

DECISION ON EVIDENCE

_________________________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Appellant:

Mr. Anto Nobilo
Mr. Russell Hayman
Mr. Andrew M. Paley

 

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 SEIZED OF the Appellant Tihomir Blaskic’s first, second, third, and fourth motions to admit additional evidence on appeal pursuant to Rule 115 of the Rules of Procedure and Evidence of the International Tribunal (“Rules”)1, the first motion having been filed on 19 January 2001 (“First Rule 115 Motion”)2, the second motion having been filed under seal on 18 October 2001 (“Second Rule 115 Motion”)3, the third motion having been filed under seal on 10 June 2002 (“Third Rule 115 Motion”)4, and the fourth motion having been filed confidentially on 12 May 2003 (“Fourth Rule 115 Motion”)5;

NOTING the numerous responses and replies filed by the parties,6

CONSIDERING that the version of Rule 115 of the Rules that is applicable to this appeal provides that “(A) ?ag party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial …. (B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require”;

CONSIDERING that, pursuant to the case law of the International Tribunal, evidence is admissible under Rule 115 if it was unavailable at trial, and if it is relevant, credible—that is, reasonably capable of belief or reliance—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;7

CONSIDERING that, if the additional 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—that is, it would have affected the verdict;8

CONSIDERING that the significance of the additional evidence must be considered in the context of the evidence which was given at trial and of that which was admitted on appeal, and not in isolation;9

CONSIDERING that pursuant to Rules 73ter(C) and 107 of the Rules, the Appeals Chamber may decline to admit evidence which, although admissible on appeal, will be duplicative of other evidence that is admitted on appeal;

RECALLING that Exhibits 1, 4, 5, 6, 8, 9, 10, 12, 13, 14, 84, 85, 86, 87, 88, 89, 90, 96, 101, 102, 103, 132, 146, 147, 149, 183, 187, 242, 243, 257, 258, 260, 261, 263, 264, 265, 266, and 267 from the First Rule 115 Motion and Exhibits 1, 14, 16, 25, 27, and 35 from the Second Rule 115 Motion were deemed clearly admissible by the Appeals Chamber in its Scheduling Order of 31 October 2002 (“31 October Order ”), because these exhibits clearly satisfy the criteria of Rule 115, in that they were unavailable at trial, and are relevant, credible, and such that they could have shown that the conviction was unsafe;

RECALLING further that in the 31 October Order, Exhibits 36, 37, and 39 from the Second Rule 115 Motion were deemed clearly admissible pursuant to the miscarriage of justice exception to the unavailability requirement imposed by Rule 115;

CONFIRMING that the evidence from the First and Second Rule 115 Motion deemed clearly admissible in the 31 October Order is to be admitted;

CONSIDERING that, with respect to the other items of additional evidence sought to be admitted by the Appellant in the First and Second Rule 115 motions, the Appeals Chamber had reserved its position in the 31 October Order;

CONSIDERING that Ex. 11 from the First Rule 115 Motion was withdrawn by the Appellant;

CONSIDERING that the Appeals Chamber deemed the exhibits from the First Rule 115 Motion on which the Appeals Chamber had reserved its position to be unavailable at trial, and that of these exhibits, Ex. 141 and Ex. 142 are admissible because they were unavailable at trial, and are relevant, credible, and such that they could have shown that the conviction was unsafe, and that the remainder of the items from the First Rule 115 Motion on which the Appeals Chamber had reserved its position are not such that they could have shown that the conviction was unsafe;

CONSIDERING that, in relation to the Second Rule 115 Motion evidence on which the Appeals Chamber has reserved its position, Ex. 2 is admissible because it was unavailable at trial, and is relevant, credible, and such that it could have shown that the conviction was unsafe; Ex. 3, Ex. 4-13, Ex. 15, Ex. 17, Ex. 18, Ex. 20, Ex. 21, Ex. 22, Ex. 29, Ex. 32, Ex. 38, and Ex. 40 are inadmissible because they could not have shown that the conviction was unsafe; and Ex. 23, Ex. 24, Ex. 26, and Ex. 28 were available at trial and are inadmissible because they would not have affected the verdict;

CONSIDERING further that, in relation to the Second Rule 115 Motion evidence on which the Appeals Chamber has reserved its position, Ex. 19, Ex. 30, Ex. 33, and Ex. 34 satisfy the requirements of Rule 115, but it is not in the interest of justice to hear this evidence because it is duplicative;

CONSIDERING that it is not necessary to pronounce on the admissibility of Ex. 31 from the Second Rule 115 Motion because the evidence sought to be admitted by the Appellant through Ex. 31 is also contained in Ex. 40 from the Fourth Rule 115 Motion and will be addressed below;

CONSIDERING that on 7 January 2003, the Prosecution filed confidentially its “Rebuttal Evidence and Arguments in Response to Additional Evidence Admitted on Appeal” (“First Filing”)10 in relation to the evidence deemed clearly admissible in the 31 October Order;

CONSIDERING that rebuttal material is admissible if it directly affects the substance of the additional evidence admitted by the Appeals Chamber;

CONSIDERING that items sought to be admitted as rebuttal material, but which were trial exhibits or which have been admitted on appeal pursuant to Rule 115, are inadmissible as rebuttal material;

CONSIDERING that the following items of rebuttal material from the First Filing directly affect the substance of the Appellant’s admitted evidence: PA 3, 6, 7, 8, 10, 12, 13, 14, 15, 23-26, 34-41, 43, 44, 46, 4711, 48, 49, 51, and 52;

CONSIDERING that Exhibits 6, 12, 13, 14, 16, 18, 22-25, 27, 30, 31, 33, 34, 40, 42, 43, 44, 45, 47, 52, 57, and 59 from the Fourth Rule 115 Motion satisfy the requirements of Rule 115, in that they were unavailable at trial, and are relevant, credible, and such that they could have affected the verdict;

CONSIDERING that, in relation to the remaining items from the Fourth Rule 115 Motion, Ex. 11, 26, 41, 49-51, and 53 are inadmissible because they are irrelevant ; Ex. 15 and Ex. 56 are inadmissible because they are not credible; and Ex. 1, 9, 10, 11, 17, 28, 32, 37, 38, 39, 46, 48, 54, 55, and 58 are inadmissible because they could not have affected the verdict;

CONSIDERING that Ex. 29 from the Fourth Rule 115 Motion has been withdrawn by the Appellant;

CONSIDERING further that Ex. 2, 3, 4, 5, 7, 8, 20, 21, 36, and 60 from the Fourth Rule 115 Motion were available at trial and would not have affected the verdict ;

CONSIDERING that while Ex. 19 and Ex. 35 from the Fourth Rule 115 Motion would have affected the findings, it is not in the interest of justice to hear this evidence because it is duplicative;

CONSIDERING that the Prosecution filed confidentially its “Rebuttal Evidence and Arguments in Response to the Appellant’s Fourth Additional Evidence Motion on Appeal” on 16 July 2003 (“Second Filing”)12, and included in its submissions arguments relating to rebuttal material from the First Filing;

CONSIDERING that the following items of rebuttal material from the First and Second Filing directly affect the substance of the admitted evidence from the Fourth Rule 115 Motion: PA 8, 10, 12, 13, 14, 15, 23, 24, 25, 34-41, 51, 52, 56, 74, 75, and 78;

NOTING that on 21 November 2002, the parties presented oral argument on the issue of whether the clearly admissible evidence from the first three Rule 115 motions justified a new trial by a Trial Chamber, on some or all of the counts;

CONSIDERING that Rule 117(C) of the Rules provides that “in appropriate circumstances the Appeals Chamber may order that the accused be retried according to law”; that the decision whether to retain a case or to send it back for a re-trial lies within the discretion of the Appeals Chamber, in light of the circumstances of the case ; and that the interests of justice must be considered in such a decision;

CONSIDERING that the Appeals Chamber in this case has analyzed all the evidence proffered by the Appellant and rebuttal material filed by the Prosecution, and has done so in light of the trial record;

FINDING that in these circumstances a re-trial is not warranted;

DECIDES the following:

1. The exhibits from the First and Second Rule 115 Motion deemed clearly admissible in the 31 October Order are admitted.

2. Of the exhibits from the First Rule 115 Motion on which the Appeals Chamber has reserved its position, Ex. 141 and 142 are admitted; the remaining items are rejected.

3. Of the exhibits from the Second Rule 115 Motion on which the Appeals Chamber has reserved its position, Ex. 2 is admitted; Ex. 3, 4-13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 26, 28, 29, 30, 32, 33, 34, 38, and 40 are rejected.

4. The following exhibits from the Fourth Rule 115 Motion are admitted: Ex. 6, 12, 13, 14, 16, 18, 22-25, 27, 30, 31, 33, 34, 40, 42, 43, 44, 45, 47, 52, 57, and 59 ; the remaining items are rejected.

5. The following Prosecution rebuttal material from the First Filing and the Second Filing is admitted: PA 3, 6, 7, 8, 10, 12, 13, 14, 15, 23, 24, 25, 26, 34-41, 43, 44, 46, 47, 48, 49, 51, 52, 56, 74, 75, and 78; the remaining items are rejected.

A further order will be issued shortly setting a date for the hearing in this appeal.

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

___________
Fausto Pocar
Presiding Judge

Done this 31st day of October 2003,
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - That is, Rule 115 as it appeared prior to its latest amendment on 29 July 2002. See also Rule 6(D), which states that an amendment “shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case.”
2 - “Appellant’s Brief in Support of Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115, in Accordance with the Appeals Chamber’s Decision of 26 September 2000”, 19 Jan. 2001.
3 - “Appellant’s Second Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115,” Filed under seal, 18 Oct. 2001.
4 - This motion will be addressed in a separate confidential decision.
5 - “Appellant’s Fourth Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115,” Confidential, 12 May 2003; “Appellant’s Corrected Fourth Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115,” Confidential, 13 June 2003.
6 - In relation to the First Rule 115 Motion, see “Prosecution Response to Appellant’s Motion to Admit Additional Evidence on Appeal pursuant to Rule 115” (confidential), 19 April 2001, and the public version was filed on 13 September 2001; and “Appellant’s Reply memorandum in Support of Appellant’s Motion to Admit Additional Evidence on Appeal pursuant to Rule 115, in accordance with the Appeals Chamber’s Decision of 26 September 2000” (filed under seal), 18 June 2001.
In relation to the Second Rule 115 Motion, see “Prosecution Response to Appellant’s Second Motion to Admit Additional Evidence on Appeal pursuant to Rule 115”, 10 December 2001, together with confidential and partly ex parte annexes (which were made confidential on 11 December 2001); “Appellant’s Reply Brief in Support of Second Motion to Admit Additional Evidence on Appeal pursuant to Rule 115” (filed under seal), 7 January 2002; redacted version of the Second Rule 115 Motion, 7 March 2002; public, redacted version of the Prosecution Response, 7 March 2002; redacted version of Appellant’s Reply Brief in Support of Second Motion to Admit Additional Evidence on Appeal pursuant to Rule 115, 7 March 2002.
In relation to the Fourth Rule 115 Motion, see “Exhibits in Support of Appellant’s Fourth Motion to Admit Additional Evidence on Appeal pursuant to Rule 115” (confidential), 20 May 2003; “Appellant’s Corrected Fourth Motion to Admit Additional Evidence on Appeal pursuant to Rule 115” (confidential), 13 June 2003; “Prosecution’s Response to the Appellant’s Fourth Additional Evidence Motion pursuant to Rule 115” (confidential), 18 June 2003; “Corrected version of the Prosecution’s Response to the Appellant’s Fourth Additional Evidence Motion pursuant to Rule 115” (confidential), 30 June 2003; “Corrigenda to the Prosecution’s Response to the Appellant’s Fourth Additional Evidence Motion” (confidential), 30 June 2003;“Appellant’s Reply Brief in Support of Fourth Motion to Admit Additional Evidence on Appeal pursuant to Rule 115” (confidential), 30 June 2003; “Redacted Public Version of Appellant’s Corrected Fourth Motion to Admit Additional Evidence on Appeal pursuant to Rule 115”, 8 August 2003; “Public redacted version of the corrected version of the Prosecution’s Response to the Appellant’s Fourth Additional Evidence Motion pursuant to Rule 115”, 21 August 2003.
7 - Prosecutor v. Krstic, Case No. IT-98-33-A, Decision on Applications for Admission of Additional Evidence on Appeal, 5 Aug. 2003, p. 3 (“Krstic Decision”). See also Prosecutor v. Kupreskic et al, Case No. IT-95-16-A, Appeal Judgment, 23 Oct. 2001, para. 68.
8 - Krstic Decision, p. 4.
9 - Krstic Decision, p. 4.
10 - In relation to the First Filing, see “Public redacted version of the Prosecution’s Rebuttal Evidence and Arguments in Response to Additional Evidence Admitted on Appeal”, 24 January 2003; “Appellant’s Opposition to Prosecution’s Rebuttal Evidence and Arguments in Response to Additional Evidence Admitted on Appeal”, Confidential, 3 March 2003; “Public Redacted Version of Appellant’s Opposition to Prosecution’s Rebuttal Evidence and Arguments in Response to Additional Evidence Admitted on Appeal”, 7 April 2003.
11 - Although Ex. 141 from the First Rule 115 Motion appears to be identical to PA 47, the copy of the original version of PA 47 is more legible than the copy of the original version of Ex. 141 from the First Rule 115 Motion.
12 - In relation to the Second Filing, see “Appellant’s Opposition to Prosecution’s Rebuttal Evidence and Arguments in Response to the Appellant’s Fourth Additional Evidence Motion on Appeal” (confidential), 4 August 2003; “Prosecution’s Reply to the 'Appellant’s Opposition to Prosecution’s Rebuttal Evidence and Arguments in Response to the Appellant’s Fourth Additional Evidence Motion on Appeal’” (confidential), 15 August 2003; “Appellant’s Sur-Reply to Prosecution’s Reply to the Appellant’s Opposition to Prosecution’s Rebuttal Evidence and Arguments in Response to the Appellant’s Fourth Additional Evidence Motion on Appeal” (confidential), 1 September 2003.