Case No. IT-98-34-A
IN THE APPEALS CHAMBER
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca
Mr. Hans Holthuis
18 November 2003
Mladen Naletilic, aka "TUTA"
Vinko Martinovic, aka "STELA"
DECISION ON THE REQUEST FOR PRESENTATION OF ADDITIONAL EVIDENCE
Counsel for the Prosecutor:
Mr. Norman Farrell
Counsel for the Accused:
Mr. Matthew Hennessy and Mr. Christopher Young Meek for Mladen Naletilic
Mr. Zelimir Par and Mr. Kurt Kerns for Vinko Martinovic
I. PROCEDURAL BACKGROUND
- The Appeals Chamber of the International Criminal Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia ("International
Tribunal") is seised of a motion for the admission of additional evidence
pursuant to Rule 115 of the Rules of Procedure and Evidence of the International
- On 31 July 2003, Vinko Martinovic ("Appellant") filed confidentially
the "Request for Presentation of Additional Evidence" ("Motion") in which
he seeks to admit additional evidence to his pending appeal from the Trial
Chamber’s judgment in Prosecutor v. Naletilic and Martinovic1
rendered on 31 March 2003 ("Judgment"). The Prosecution filed the "Prosecution
Response to Vinko Martinovic’s Request for Presentation of Additional Evidence"
("Response") on 11 August 2003 and the Appellant filed the "Response to Prosecution
Response to Vinko Martinovic’s Request for Presentation of Additional Evidence"
("Reply") on 18 August 2003.
II. ARGUMENTS OF THE PARTIES
- In the Motion, the Appellant proposes to tender an expert testimony
of Dr. Ahmo Curic, neuro-psychiatrist from Mostar, on the health condition
of Prosecution witness Ajanic. According to the Defence, this additional evidence
disputes the findings of the Trial Chamber set out in paragraphs 476 to 511
of the Judgment2. The additional evidence allegedly
pertains to the credibility of witness Ajanic.
- The Appellant was indirectly approached by Dr. Curic who treated and
examined the witness when he was at the "Dr. Safet Mujic" hospital
in Mostar in 1996. The witness has consented to testify before the Appeals
Chamber but only upon receiving an order. The Appellant submits that "in the
course of the procedure it was objectively not possible for the Defence to
obtain this kind of evidence"3. Continueing, the
Appellant states that "the contacts of the Defence with the Prosecution witnesses
were prohibited and the Defence had objectively no possibility to request
from witness Ajanic the medical documentation in relation to his health condition,
nor to summon him to undergo examination by a psychiatrist engaged by the
- In its Response, the Prosecution argues that the Appellant must file
the additional evidence with the Motion and since the Appellant failed to
do so, the Motion must be dismissed on that basis alone5.
Furthermore, it submits that Rule 115 is not a mechanism for summoning a witness6.
According to the Prosecution, the Appellant has not satisfied the criterion
of non-availability as he failed to exercise due diligence during the trial;
he did not attempt to speak to witness Ajanic nor did he seek the assistance
of the Trial Chamber to obtain a psychiatric evaluation of the witness7.
- In its Reply, the Appellant stresses the importance of allowing the
testimony of Dr. Curic who personally examined witness Ajanic. He repeats
that Dr. ]uric will only testify if he is summoned, and that the "defence
has just conducted an interview with dr. Ahmo ]uric, without taking any deposition
or expert finding" as it could put the witness in a situation which is harmful
- The admission of additional evidence is regulated in Rule 115 of the
Rules, which reads as follows:
(A) A party may apply by motion to present additional evidence
before the Appeals Chamber. Such motion shall clearly identify with precision
the specific finding of fact made by the Trial Chamber to which the additional
evidence is directed, and must be served on the other party and filed with
the Registrar not later than seventy-five days from the date of the judgment,
unless good cause is shown for further delay. Rebuttal material may be presented
by any party affected by the motion.
(B) If the Appeals Chamber finds that the additional evidence
was not available at trial and is relevant and credible, it will determine
if it could have been a decisive factor in reaching the decision at trial.
If it could have been such a factor, the Appeals Chamber will consider the
additional evidence and any rebuttal material along with that already on the
record to arrive at a final judgement in accordance with Rule 117.
(C) The Appeals Chamber may decide the motion prior to the
appeal, or at the time of the hearing on appeal. It may decide the motion
with or without an oral hearing.
(D) If several defendants are parties to the appeal, the
additional evidence admitted on behalf of any one of them will be considered
with respect to all of them, where relevant.
In order to admit additional evidence, the moving party must demonstrate
that the additional evidence was unavailable at trial and that it is relevant,
and 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 unsafe9.
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 verdict10.
(i) Unavailable at trial
- The applicant must demonstrate that the additional evidence tendered
on appeal was not available to him at trial and that it could not have been
discovered through the exercise of due diligence11.
The duty placed upon the applicant to act with reasonable diligence includes
making "appropriate 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"12.
The requirement of due diligence obliges counsel to bring any difficulties
in relation to obtaining evidence, including those arising from intimidation
or the inability to locate witnesses, to the attention of the Trial Chamber13.
- The trial record does not suggest that the Appellant brought to the
attention of the Trial Chamber any difficulties in relation to obstacles in
contacting an expert witness who would examine witness Ajanic personally.
Further, the Appellant failed to show any difficulties in making contact with
Dr. Omanovic who, according to the Appellant, was the doctor treating witness
Ajanic in 1996; the Appellant also failed to make inquiries at the "Dr. Safet
Mujic Hospital" in Mostar where witness Ajanic was admitted.
- Further, the Appellant could have requested that the expert witness
Dr. Begic, who testified about the credibility of witness Ajanic for the Defense,
or another qualified psychiatrist, undertake a personal examination of witness
Ajanic. When Dr. Begic was asked by Judge Diarra what had prevented him from
communicating with witness Ajanic directly, Dr. Begic answered: "Nothing prevented
me from communicating with that patient, but my task was to consider, to analyze
documents. Had they [the Defence] asked me to do something else, then as a
witness, I would have acted accordingly"14.
- In this case counsel neither requested to have witness Ajanic examined
personally by a qualified psychiatrist nor reported any difficulties in obtaining
evidence. The Appeals Chamber therefore finds that the proposed evidence was
available at trial.
(ii) Miscarriage of Justice
- Even if the proposed additional evidence was available at trial, it
can be admitted if the appellant can establish that its exclusion would lead
to a miscarriage of justice15.
- The Appellant has not attached the proposed additional evidence to the Motion
and it is therefore impossible for the Appeals Chamber to determine whether
it would have affected the verdict. The Appeals Chamber does not accept the
Appellant's claim that he has not attached any statement from Dr. ]uric because
it could be harmful to him. If Dr. ]uric needs protection the Appellant could
have requested protective measures to be imposed by the Chamber and should
not have revealed his name in the Reply which is a public filing. The Motion
could be dismissed on this basis alone. The Appeals Chamber notes that in
any event the challenged paragraphs of the Judgement are based upon a number
of witnesses and that witness Ajanic is only one of them. The Appeals Chamber
considers that even if the proposed evidence had been proffered by the Appellant,
it is not such that its exclusion would lead to a miscarriage of justice.
19. For the foregoing reasons, the Appeals Chamber dismisses the Motion.
Done in both English and French, the English text being authoritative.
Judge Fausto Pocar
Dated this 18th day of November 2003,
At The Hague,
[Seal of the Tribunal]
1. Prosecutor v. Naletilic and Martinovic, Judgment,
Case No.: IT-98-34-T, 31 March 2003.
2. Motion, p. 2; Prosecutor v. Naletilic and Martinovic, Second
Amended Indictment, 28 September 2001.
3. Motion, pp. 3-4. The Appellant is referring to the lack of
cooperation by the medical institutions and doctors in the Eastern part of Mostar,
mainly populated by Muslims who have a negative perception of the Appellant.
4. Motion, p. 3.
5. Response, paras 10–13.
6. Response, paras 14-16.
7. Response, paras 20-24.
8. Reply, Registry page 693.
9. 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. Kupreškic et al, Case No. IT-95-16-A, Appeal Judgment,
23 Oct. 2001, (“Kupreskic Appeals Judgement”), para. 68, Prosecution v. Blaskic,
Case No.: IT-95-14-A, Decision on Evidence, 31 October 2003, p. 3.
10. Krstic Decision, p. 4.
11. Prosecutor v Tadic, Case No.: IT-94-1, Decision on Appellant’s
Motion for the Extension of the Time-Limit and Admission of Additional Evidence,
15 October 1998, (“Tadic Rule 115 Decision”), para. 35-45; . Kupreskic Appeals
Judgement, para. 50.
12. Tadic Rule 115 Decision, para. 47.
13Tadic Rule 115 Decision, para. 40; Kupreškic Appeal Judgment,
para. 50; Prosecutor v Krstic, Case No.: IT-98-33-A, Decision on Application for
Subpoenas, 1 July 2003 (“Krstic Subpoenas Decision”), para. 5.
14. Trial Transcript, p. 15485.
15. Prosecutor v Delic, Case No.: IT-96-21-R-R119, Decision on
Motion for Review, 25 April 2002 (“Delic Decision”) para. 15.