IN THE APPEALS CHAMBER
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Theodor Meron
Judge Wolfgang Schomburg
Mr. Hans Holthuis
14 July 2006
DECISION ON DEFENCE MOTION REGARDING NEW EVIDENCE
The Office of the Prosecutor:
Ms. Helen Brady
Ms. Michelle Jarvis
Ms. Shelagh McCall
Counsel for the Defence:
Ms. Mara Pilipovic
Mr. Stephane Piletta-Zanin
- 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 ”) is seized of Appeals filed by the Prosecution(
1 ) and the Defence(
2 ) against the Judgement rendered by the Trial Chamber on 5 December
2003. The Appeals Chamber is also presently seized of the Defence Motion Regarding
New Evidence (“Defence Motion”), filed on 11 July 2006 by Stanislav Galic.
THE DEFENCE MOTION
- The Defence Motion informs the Appeals Chamber that Defence Counsel has
recently visited a military barracks in Banja Luka to examine “documents regarding
Main Staff VRS and SRK VRS”.(
3 ) According to the Defence Motion, Defence Counsel has “selected
25 documents which could, in accordance with other evidence, be considered
documents for filing a motion under rule 115, because in the defencess [sic.]
opinion they fall under Rule 68.”(
4 ) The Defence Motion further asserts that on 14 July 2006 Defence
Counsel will be examining the “archives of the ABiH 1st Corps”.(
5 ) Defence Counsel believes that “there is a possibility to find”
exculpatory documents there.(
- Having brought the foregoing points to the Appeals Chamber’s attention,
the Defence makes four requests. First, “the Defences [sic.] ask for an extension
before deciding if they will file a new motion under the rule 115.”(
7 ) Second, Defence “counsel pleads the Chamber to allow the counsel
to examine the mentioned documents [in the archives of the ABiH 1st Corps]
in the presence of its military expert.”(
8 ) Third, “the Defence requests that the Appeal Chamber orders the
Defence to seek the translations in English from the Registry and, that being
done, files a motion under Rule 115 in the next 10 days.”(
9 ) Fourth, the Defence “suggest[s] that the Appeal Chamber should
… decide about the hearing planned for the 29 August.”
- With regard to the Defence’s request “for an extension”, the Appeals Chamber
recalls that under Rule 115(A) of the Rules of procedure and Evidence (“Rules”),
motions to admit additional evidence must be “served on the other party and
filed with the Registrar not later than thirty days from the date for filing
of the brief in reply, unless good cause” is “shown for a delay”. As the reply
briefs in this case were due well over a year ago,(
10 ) any party seeking to file a Rule 115 motion will need to show
cause for its delay . Not knowing what specific evidence the Defence might
seek to introduce in the Rule 115 motion being contemplated, the Appeals Chamber
cannot now determine whether the Defence has good cause for failing to introduce
that evidence until now, or for delaying its Rule 115 Motion until some specified
date in the future. Hence , the Appeals Chamber cannot grant “an extension”
of the deadline for the filing of Defence’s contemplated Rule 115 motion.
If and when the Defence files this Motion , the Appeals Chamber will consider
whether “good cause” has been “shown for [the ] delay”.
- The Appeals Chamber likewise cannot grant the request “to allow [Defence]
counsel to examine the … documents [in the archives of the ABiH 1st Corps]
in the presence of its military expert.”(
11 ) Though it explains why Defence Counsel would like to examine
these documents in the presence of the military expert,(
12 ) the Defence Motion never explains why this expert cannot accompany
Defence Counsel without an order from the Appeals Chamber. Indeed, the Defence
Motion does not even explain who the order in question should be directed
- “[T]he Defence request that the Appeal Chamber order the Defence to
seek the translations in English from the Registry”(
13 ) is also without merit. If the Defence is merely seeking an order
to the effect that it should request translations from Registry, its request
is frivolous. The Defence is free to make requests of the Registry without
seeking permission from the Appeals Chamber. The Appeals Chamber therefore
assumes that, with this request , the Defence is seeking an order compelling
the Registry to have prospective Rule 115 evidence translated. Yet the Defence
Motion suggests neither that the Defence has asked the Registry to translate
proposed Rule 115 evidence nor that the Registry has denied a Defence request
to this effect. As the Appeals Chamber will not ordinarily order the Registry
to translate documents at the behest of an accused before the accused has
asked the Registry whether it will have the documents translated,(
14 ) the Appeals Chamber declines to order the Registry to translate
prospective Rule 115 evidence at the present time.(
- Finally, as the Defence Motion is nothing but a fishing expedition, the
Appeals Chamber declines to take any decision about the hearing in this case
that has been scheduled for 29 August 2006.(
16 ) Not having seen the Defence’s contemplated Rule 115 Motion, the
Appeals Chamber cannot determine whether it, or any additional evidence the
Defence might seek to introduce , compel a postponement of the hearing.
- For the foregoing reasons, the Defence Motion is DENIED.
Done in English and French, the English text being authoritative.
Dated this 14th day of July 2006,
At The Hague, Judge Fausto Pocar,
The Netherlands. Presiding
[Seal of the Tribunal]
1 - Prosecution’s Notice of Appeal, 18 December 2003.
2 - Notice of Appeal, 4 May 2004.
3 - Defence Motion, p. 1.
4 - Ibid., p. 1.
5 - Ibid., pp. 1&2.
6 - Ibid., p. 2.
7 - Ibid.
8 - Ibid.
9 - Ibid.
10 - Rule 113 of the Rules states that an “appellant may file a brief in reply within fifteen days of the filing of the Respondent’s brief.” In this case, the Prosecution Response Brief was filed on 6 September 2004. Stanislav Galic’s Respondent’s Brief was filed on 2 April 2004.
11 - Defence Motion, p. 2.
12 - Ibid.
13 - Ibid.
14 - C.f. Prosecutor v. Limaj et al., Case No. IT-03-66-A, Decision on Extension of Time to File Response, 5 April 2006, para. 10 (“[I]n the first instance, accused should address concerns about legal aid-related matters to the Registry”).
15 - As mentioned in paragraph 3 supra, connected with the translation-related request is the statement that the Defence should be ordered to file a Rule 115 Motion within 10 days after “that” is “done”. In connection with this statement, the Appeals Chamber notes that the Defence does not need its permission to file a Rule 115 motion. If the Defence is requesting that the Appeals Chamber treat as timely any Rule 115 motion filed within 10 days of a certain event, the request is denied for the reasons explained in paragraph 4 supra.
16 - Scheduling Order for Appeal Hearing, 21 June 2006, p. 1 (scheduling the hearing of the Appeals in the present case for 29 August 2006).