Before: Judge Patricia Wald, Pre-Appeal Judge

Registrar: Mr. Hans Holthuis

Order of: 23 March 2001







Counsel for the Prosecutor:

Mr. Upawansa Yapa

Counsel for the Defence:

Mr. Ranko Radovic, Mr. Tomislav Pasaric for Zoran Kupreškic
Ms. Jadranka Slokovic-Glumac, Ms. Desanka Vranjican for Mirjan Kupreskic
Mr. Anthony Abell, Mr. John Livingston for Vlatko Kupreskic
Mr. Luka Šušak, Ms. Goranka Herljevic for Drago Josipovic
Mr. Petar Pavkovic, Mr. Mirko Vrdoljak for Vladimir Šantic


I, PATRICIA WALD, Judge 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 ("the International Tribunal"),

HAVING BEEN APPOINTED as pre-appeal Judge in this matter by virtue of an order of the Appeals Chamber dated 14 March 2001;

BEING SEISED OF the "Prosecution’s Urgent Motion for a Re-scheduling of the Date of Oral Hearing and Variation of Order for Protection of Certain Witnesses" filed by the Office of the Prosecutor ("the Prosecution") on 19 March 2001 ("the Prosecution Motion");

NOTING the "Scheduling Order" issued on 14 March 2001 which ordered, inter alia, that an oral hearing be held at 10 am on Friday 30 March 2001 and Vlatko Kupreskic present oral argument;

NOTING the "Decision On The Motions of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran Kupreskic and Mirjan Kupreskic to Admit Additional Evidence" issued by the Appeals Chamber on 26 February 2001 ("Decision of 26 February 2001");

NOTING the "Confidential Motion, Pursuant to Rule 115, for Admission of Additional Evidence on Appeal by the Appellant, Vlatko Kupreskic" filed by counsel for Vlatko Kupreskic on 5 September 2000 ("the Rule 115 Motion") which, inter alia, sought the admission into evidence before the Appeals Chamber of additional witnesses ("the additional witnesses") and additional documents;

NOTING FURTHER that the Rule 115 Motion also suggested that the lawyers of Vlatko Kupreskic at trial ("the former counsel") were grossly negligent in the preparation and presentation of the defence case;

NOTING that the Prosecution Motion requests that the Appeals Chamber grant the following orders:

  1. that the date of the oral hearing be re-scheduled;
  2. that the additional witnesses’ identities be revealed to allow the Prosecution to forward their statements to former counsel for the purpose of allowing them to respond to specific allegations of incompetence;
  3. that the confidential nature of the Rule 115 Motion be removed so as to allow former counsel access to all relevant documents contained in the Rule 115 Motion;
  4. that the Appeals Chamber direct that Vlatko Kupreskic provide a written waiver to former counsel; and
  5. any other order that meets the justice of the intended exercise;

NOTING the "Urgent Response on Behalf of Vlatko Kupreskic to Prosecution’s Urgent Motion for a Re-scheduling of the Date of Oral Hearing and Variation of Order for Protection of Certain Witnesses" filed by counsel for Vlatko Kupreskic on 23 March 2001 ("Urgent Response") which vigorously resists the granting of the Prosecution Motion’s requests;

NOTING that Rule 127 of the Rules of Procedure and Evidence ("the Rules") provides that the Appeals Chamber may exercise the power to enlarge any time prescribed by or under the Rules on good cause being shown by motion;

NOTING the reasons provided in the Prosecution Motion for a variation to the date of the oral hearing;

NOTING that the Prosecution apparently believes that the oral hearing will require the appellant Vlatko Kupreskic to make arrangements for witnesses residing in Croatia to attend; cross-examination of those witnesses by the Prosecution; and the possibility of evidence being called in rebuttal;

CONSIDERING that the Prosecution’s understanding of the purpose and scope of the oral hearing is mistaken;

NOTING that Vlatko Kupreskic in his Rule 115 Motion originally sought to admit the evidence of 19 additional witnesses and numerous exhibits ("the proposed evidence") and divided the proposed evidence into seven groups;

NOTING the provisions of Rule 115(A) of the Rules that a party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial and Rule 115(B) that the Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require;

NOTING that the Appeals Chamber in its Decision of 26 February 2001 rejected the proposed evidence relating to five of the seven groups on the basis that those groups could not satisfy the requirements of Rule 115(B);

NOTING that the Appeals Chamber found that two of the seven groups: alibi evidence and other matters relating to 15 April 1993; and evidence rebutting the Prosecution’s case as to Vlatko Kupreskic’s involvement in the police could satisfy the requirements of Rule 115(B) and therefore could require the presentation of the evidence in the appeal provided that Vlatko Kupreskic is able to satisfy the Appeals Chamber as to the requirements of Rule 115(A);

CONSIDERING that the burden of proof rests upon Vlatko Kupreskic to satisfy the requirements of Rule 115(A);

CONSIDERING that, in relation to Vlatko Kupreskic, the purpose of the oral hearing is to provide an opportunity to counsel for Vlatko Kupreskic to put forward oral arguments, based upon the material that has been hitherto presented to the Appeals Chamber in the Rule 115 Motion, to show whether a prima facie case of gross negligence of former counsel exists;

CONSIDERING that, if such a prima facie case is established, the presentation of further evidence by the Prosecution relating to the conduct of former counsel for Vlatko Kupreskic may be required prior to a determination by the Appeals Chamber as to whether the requirements of Rule 115(A) have been met;

CONSIDERING that, with the exception of the request to re-schedule the date of the oral hearing, at the present stage of the proceedings the Appeals Chamber is not therefore required to decide upon the other requests by the Prosecution;

CONSIDERING FURTHER that the basis for the request to re-schedule the date of the oral hearing is mistaken and that good cause for rescheduling the date of the oral hearing has consequently not been shown;

NOTING that the Urgent Response requests the Appeals Chamber to extend the time allowed for oral argument to one hour for the reason that there is a considerable quantity of material to deal with;

CONSIDERING that good cause to extend the time allowed for oral argument has been shown;

HEREBY DENY the Prosecution Motion in part in respect of the request to re-schedule the date of the oral hearing and ORDER that:

  1. determination of the remaining requests (b) to (e) be postponed until the Appeals Chamber has carried out an assessment as to whether a prima facie case of gross negligence is established;
  2. Vlatko Kupreskic be allowed one hour to present oral arguments at the oral hearing and that the Prosecution’s time to respond be enlarged by an additional 15 minutes.


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

Judge Patricia Wald
Pre-Appeal Judge

Dated this 23rd day of March 2001
At The Hague,
The Netherlands.

[Seal of the Tribunal]