Case No.: IT-98-30/1-A

IN THE APPEALS CHAMBER

Before:
Judge Mohamed Shahabuddeen, Presiding
Judge Fausto Pocar
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg De Roca

Registrar:
Mr. Hans Holthuis

Order of:
16 February 2004

PROSECUTOR

v.

MIROSLAV KVOCKA
MLADO RADIC
ZORAN ZIGIC
DRAGOLJUB PRCAC

____________________________________________

DECISION ON APPELLANTSí MOTIONS TO ADMIT ADDITIONAL EVIDENCE PURSUANT TO RULE 115

____________________________________________

The Office of the Prosecutor:

Mr. Christopher Staker

Counsel for the Appellants:

Mr. Krstan Simic for Miroslav Kvocka
Mr. Toma Fila for Mlado Radic
Mr. Slobodan Stojanovic for Zoran Zigic
Mr. Jovan Simic for Dragoljub Prcac

 

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 SEISED OF the "Motion of Dragoljub Prcac to Admit Additional Evidence Pursuant to Rule 115" filed confidentially on 25 February 2003 and the Addendum thereto filed on 10 March 2003 (collectively "Prcac Motion"), in which the Appellant Prcac seeks to adduce twenty-seven pieces of additional evidence (Identified in Confidential Annex A to this Decision) on appeal relating to the general situation in the Prijedor Municipality and to the status of Prcac in the Omarska camp;

NOTING the "Prosecutionís Response to the Rule 115 Motion of Mladjo Radic and Dragoljub Prcac" filed confidentially on 25 March 2003 ("Prosecution Radic/Prcac Response"), in which the Prosecution submits that none of the evidence proposed in the Prcac Motion is admissible pursuant to Rule 115 of the Rules of Procedure and Evidence ("Rules");

BEING SEISED OF the "Motion of Mlađo Radic to Admit Additional Evidence Pursuant to Rule 115" filed confidentially on 25 February 2003 and the Addendum thereto filed on 7 March 2003 (collectively "Radic Motion"), in which the Appellant Radic seeks to adduce five pieces of additional evidence (Identified in Confidential Annex B to this Decision) relating to the credibility of a Prosecution witness;

NOTING the Prosecutionís Joint Response, in which the Prosecution submits that none of the evidence proposed in the Radic Motion is admissible pursuant to Rule 115 of the Rules;

BEING SEISED OF the "Confidential Motion to Present Additional Evidence Ė Defense for the Accused Zoran Zigic" filed on 22 August 2002 and the addendum thereto filed on 13 June 2003 (collectively "First Zigic Motion"), in which the Appellant Zigic seeks to adduce thirteen items of additional evidence (Identified in Confidential Annex C to this Decision) and his own testimony, relating to six of his grounds of appeal, namely: the murder of Becir Medunjanin; the murder of Drago TokmadĎic; the murder of Sead Jusufagic; the murder of Emsud Bahonjic; the torture of Fajzo Mujkanovic; and the alleged unfairness of the trial;

NOTING the "Prosecutionís Response to Zoran Zigicís Motion to Present Additional Evidence" filed on 9 September 2002; the Appellant Zigicís reply thereto filed on 23 September 2002; the "Prosecutionís Supplemental Response to Zoran Zigicís Addendum to Zoran Zigic Motion to Present Additional Evidence Filed on 22 August 2002" filed on 25 June 2002; and the Appellant Zigicís reply thereto filed on 30 June 2003;

NOTING further the "Decision on Zoran Zigicís Motion Seeking Leave to Add Paragraphs to his Motion to Present Additional Evidence" filed on 3 October 2002; the "Prosecutionís Response to the Additional Paragraphs Added to Zoran Zigicís Motion to Present Additional Evidence" filed on 14 October 2002; and the Appellant Zigicís confidential reply thereto filed on 5 November 2002;

BEING SEISED OF the "Confidential Zoran Zigicís Second Motion to Present Additional Evidence" filed on 11 April 2003 and the Supplement thereto filed on 19 May 2003 (collectively "Second Zigic Motion"), in which the Appellant Zigic seeks to adduce nineteen items of additional evidence (Identified in Confidential Annex D to this Decision) relating to four of the Appellantís grounds of appeal, namely: the murder of Becir Medunjanin; the murder of Drago TokmadĎic; the alleged unfairness of the trial; and the finding that the Appellant was engaged in a joint criminal enterprise with respect to the Omarska camp;

NOTING the confidential "Prosecutionís Response to Zoran Zigicís Second Motion to Present Additional Evidence" filed on 9 May 2003 and Zoran Zigicís confidential reply thereto filed on 19 May 2003; the confidential "Prosecutionís Response to the Supplement to Zoran Zigicís Second Motion to Present Additional Evidence and Prosecution Motion to File a Further Pleading" filed on 29 May 2003; and NOTING further the confidential "Prosecutionís Further Response to the Reply Pursuant to Decision on Application by Prosecution for Leave to File Further Response" filed on 12 June 2003 and Zigicís Reply thereto filed on 26 June 2003;

CONSIDERING that, in the circumstances of this case, the Appeals Chamber recognizes as validly filed the said Rule 115 motions, notwithstanding any transgression of any applicable time-limits;

CONSIDERING that, under Rule 115 of the Rules, the Appellant is required to establish that the evidence sought to be admitted was not available at trial in any form and could not have been discovered through the exercise of due diligence;1

CONSIDERING that evidence that was unavailable at trial and could not have been discovered through the exercise of due diligence is admissible under Rule 115 of the Rules if it is relevant to a material issue and credible and if it could have had an impact on the verdict, i.e., if it could have shown, in the case of a request by a defendant, that a conviction was unsafe;2

CONSIDERING that evidence that was available at trial or could have been discovered through the exercise of due diligence is not admissible unless the moving party shows that its exclusion would lead to a miscarriage of justice, in that, if it had been available at trial it would have affected the verdict;3

CONSIDERING that the significance of the additional evidence must be considered in the context of the evidence which was produced at trial, and not in isolation;4

THE PRCAC MOTION

CONSIDERING that the onus is on the Appellant to clearly identify the evidence that he seeks to have admitted on appeal, and that the Prcac Motion lists twenty-seven items of additional evidence, but that the annexed materials contain other documents, some of which have also been referred to in the Addendum;

CONSIDERING therefore that the Appeals Chamber will only consider the twenty-seven items clearly identified in the Prcac Motion and listed in Confidential Annex A to this decision;

CONSIDERING that the Appellant Prcac has failed to demonstrate that Items 1 to 24 were unavailable at trial and that the Appeals Chamber is not convinced that this evidence would have affected the verdict had the evidence been available at trial;

CONSIDERING that the Appellant Prcac failed to submit Items 25 and 26 and therefore these items cannot be considered as part of the Prcac Motion;

CONSIDERING that Item 27 can be considered to have been unavailable at trial, but that the Appellant Prcac has not established that it could have been a decisive factor in reaching the decision at trial, as required for admission under Rule 115 of the Rules;

THE RADIC MOTION

CONSIDERING that Items 1, 3, 4 and 5 were unavailable to the Appellant Radic at trial;

CONSIDERING that the alleged inconsistencies between the evidence adduced at trial and the information contained in Items 1, 3, 4, and 5 are insufficient to satisfy the Appeals Chamber that these items could have affected the verdict had they been available at trial;

CONSIDERING that the Appellant Radic failed to submit a complete copy of Item 2, omitting relevant pages of the article, and therefore Item 2 cannot be considered as having been submitted as part of the Radic Motion;

CONSIDERING moreover that the alleged inconsistencies between the evidence adduced at trial, the information contained in the submitted portion of Item 2 and in the excerpts contained in the Radic Motion are insufficient to satisfy the Appeals Chamber that Item 2 could have affected the verdict had it been available at trial;

THE FIRST ZIGIC MOTION

CONSIDERING that the Appellant Zigic was available to testify at trial and that he has failed to demonstrate that the exclusion of his testimony on appeal would lead to a miscarriage of justice, in that if it had been admitted at trial it would have affected the verdict;

CONSIDERING that Item 1, a further statement of a witness who appeared for the Prosecution trial, could have been obtained at trial through the exercise of due diligence and that it has not been shown that this evidence would have affected the verdict;

CONSIDERING that, as the Appellant Zigic has failed to demonstrate that he exercised due diligence in relation to Items 2 to 9 and 11 to 13, the evidence is to be treated as having been available at trial but that it has not been shown that this evidence would have affected the verdict;

CONSIDERING that, as Item 10 was disclosed to the Appellant Zigic by the Prosecution pursuant to Rule 68 after the close of the trial on 19 July 2001 but before the Judgement on 2 November 2001, the statement will be treated as having been unavailable at trial but that the Appellant Zigic has not established that the proposed evidence could have affected the verdict;

THE SECOND ZIGIC MOTION

CONSIDERING that Items 1 to 3, 5 to 9, 11 to 15, and 18 were available at trial through the exercise of due diligence and that it has not been shown that this evidence would have affected the verdict;

CONSIDERING that Items 10 and 17 were not available to the Appellant Zigic at trial, but that it has not been shown that this evidence could have affected the verdict;

CONSIDERING that Item 4 could have been available at trial through the exercise of due diligence, but that its exclusion would lead to a miscarriage of justice, in that, if it had been admitted at trial, it would have affected the verdict;

CONSIDERING that the supplemental statement made by the same witness on 22 September 1998 was not available at trial and that it could have affected the verdict;

CONSIDERING that Item 16 meets the requirements of Rule 115 in that the statement was not available to the Appellant Zigic at trial and could have affected the verdict if it had been available at trial;

FOR THE FOREGOING REASONS:

DISMISSES the Prcac Motion;

DISMISSES the Radic Motion;

DISMISSES the First Zigic Motion;

GRANTS the Second Zigic Motion, in part, and finds that Item 4, the supplemental statement of the same witness, and Item 16 are admissible as additional evidence on appeal pursuant to Rule 115 of the Rules;

DISMISSES the Second Zigic Motion in all other respects; and

ORDERS that, pursuant to Rules 98 and 107 of the Rules, the Witnesses identified in Items 4 and 16 of Annex D to this Decision will be heard by the Appeals Chamber on a date specified by a scheduling order to be issued.

 

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

Done this sixteenth day of February 2004,
At The Hague,
The Netherlands.

____________________
Judge Shahabuddeen
Presiding Judge

[Seal of the Tribunal]


1. See Prosecutor v. Krstic, "Decision on Applications for Admission of Additional Evidence on Appeal," ICTY Case No. IT-98-33-A, 5 August 2003 ("Krstic Rule 115 Decision"), p. 3.
2. Ibid.
3. Krstic Rule 115 Decision, p. 4.
4. Ibid.