Case No. IT-98-34-A
Judge Fausto Pocar, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca
Mr. Hans Holthuis
20 October 2004
Mladen NALETILIC, aka “TUTA”
Vinko MARTINOVIC, aka “STELA”
DECISION ON NALETILIC’S CONSOLIDATED MOTION TO PRESENT 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
1. 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 since 1991 (“International Tribunal ”) is seised of a Motion to Present Additional Evidence Pursuant to Rule 115 (“Rule 115 Motion”) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), filed on 15 August 2003, a First Supplement to the Motion to Present Additional Evidence Pursuant to Rule 115, filed confidentially on 18 August 2003 (“First Supplement”),1 and a Consolidated Motion to Present Additional Evidence Pursuant to Rule 115, Incorporating the Previously -Filed Motion and Supplement, filed on 8 September 2003, (“Consolidated Motion”) by Mladen Naletilic (“Appellant” or “Naletilic”).
2. On 31 March 2003, Trial Chamber I rendered a judgement against Naletilic and Vinko Martinovic (“Martinovic”) finding them guilty of several crimes against humanity, violations of the laws or customs of war and grave breaches of the Geneva Conventions of 1949.2 The Trial Chamber sentenced Naletilic and Martinovic to 20 and 18 years of imprisonment respectively. Naletilic and Martinovic filed their Notices of Appeal on 29 April 2003. The Prosecution filed its Notice of Appeal on 1 May 2003.
3. On 5 June 2003, Naletilic filed a Motion for an Extension of Time to File a Motion for Presentation of Additional Evidence Pursuant to Rule 115. The Pre-Appeal Judge, in a decision rendered on 25 June 2003, granted the motion in part, permitting Naletilic to file a Rule 115 motion, if any, by 15 August 2003.3 On 30 July 2003, Naletilic filed a Second Request for Extension of Time to file his Rule 115 Motion, which the Pre-Appeal Judge denied.4
4. On 15 August 2003, Naletilic filed his Rule 115 Motion and a confidential First Supplement thereto.5 Naletilic requested the Appeals Chamber to consider documents attached to his Rule 115 Motion and confidential First Supplement as new exculpatory and mitigating evidence in his case.
5. On 19 August 2003, the Prosecution filed its Response to Mladen Naletilic’s Motion to Present Additional Evidence Pursuant to Rule 115 Filed on 15 August 2003 and to Mladen Naletilic’s First Supplement to Present Additional Evidence Pursuant to Rule 115 (“Response”). In its Response, the Prosecution argued that Naletilic’s Rule 115 Motion does not comply with the formal requirements for presentation of additional evidence as set out in paragraph 11 of the Practice Direction on Formal Requirements of Appeals from Judgement, IT/201, of 7 March 2002 (“Practice Direction ”). In particular, the Prosecution claimed that Naletilic’s Rule 115 Motion: (i) “does not contain a precise list of the evidence the Appellant is seeking to have presented;” (ii) “does not identify with precision each ground of appeal to which the evidence relates nor does it contain a request to submit any additional grounds of appeal based on such evidence;” (iii) “does not contain any arguments in relation to the requirement of non-availability at trial;” and that (iv) “the overwhelming majority of the documents are filed in B/C/S language only, without translation into one of the official languages of the International Tribunal.”6 The Prosecution requested that the Appeals Chamber dismiss Naletilic’s Rule 115 Motion or, in the alternative, order Naletilic to refile the motion remedying the procedural deficiencies according to the requirements of the Practice Direction. Furthermore, the Prosecution requested that the First Supplement to Naletilic’s Rule 115 Motion be dismissed since it (i) was filed “out of time”; (ii) has already been “the subject of a Trial Chamber decision” under Rule 68 denying Naletilic’s motion to stay trial deliberations in light of new material that had been disclosed by the Prosecution, which he alleged was exculpatory; and (iii) was not “new” or “additional” evidence as it was only a mere English translation of a document that had been disclosed by the Prosecution at trial.7
6. On 29 August 2003, the Pre-Appeal Judge ordered Naletilic to file a consolidated Rule 115 motion that was in compliance with the Practice Direction, incorporating his Rule 115 Motion filed 15 August 2003 and the confidential First Supplement.8 Pursuant to the Pre-Appeal Judge’s order, Naletilic filed his Consolidated Motion on 8 September 2003. Naletilic seeks to admit into evidence the following documents (“Exhibits A-I”):
A. A copy of a military identification card of Romeo Blazevic dated 22 September 1992 ;
B. a copy of another military identification card of Romeo Blazevic dated 7 June 1993 ;
C. a copy of a ruling from the County Court, Mostar, Number Ki-3/2001 dated 10 December 2001;
C-1. a copy of a decision of the Prosecuting Attorney with regard to Romeo Blazevic, County of Mostar, dated 29 November 2002;9
D. a copy of a signed certificate, No. 511-12-15-28/225-2003, referring to a certain Ivan Hrkac, dated 13 August 2003;
E. a copy of a record of an interview with Miroslav Marijanovic (“Miro”) before the investigating judge of the County Court, Mostar;
F. copies of several identification and medical documents relating to Marinko Marijanovic (“Vinko”);
G. copies of medical documents and papers referring to Semir Bošnjic;
H. a copy of a letter from the Intelligence Security Service of the Federation of BiH, Sarajevo, dated 13 August 2003; and
I. a copy of the translated minutes of the meetings of the 3rd Mijat Tomic Battalion.
7. On 18 September 2003, the Prosecution responded to Naletilic’s Rule 115 Motion, First Supplement and Consolidated Motion.10 Naletilic did not file a reply to the Prosecution’s Response.
8. The admission of additional evidence is regulated under Rule 115 of the Rules, which provides as follows:
Rule 115Additional Evidence
(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.
9. In order to have additional evidence admitted on appeal under Rule 115, the moving party must meet a number of requirements.
10. At the outset, the applicant must demonstrate that the additional evidence presented on appeal was unavailable at trial and could not have been discovered through the exercise of due diligence.11 The duty placed upon the applicant to act with due 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 applicant should have brought any difficulties in relation to obtaining evidence, including those arising from intimidation or inability to locate witnesses, to the attention of the Trial Chamber first.13 The applicant must also seek relief from the Trial Chamber to compel an uncooperative prospective witness to cooperate.14 An applicant who follows these steps will, in most cases, be deemed to have acted with due diligence.15
11. Where evidence was not available at trial and could not have been discovered through the exercise of due diligence, the applicant must show that the evidence is both relevant to a material issue and credible, i.e. reasonably capable of belief or reliance, and that it could have had an impact on the verdict.16 In other words, the evidence must be such that, considered in the context of evidence given at trial and of that which was admitted on appeal, and not in isolation, it could demonstrate that the conviction was unsafe.17 A party seeking to admit additional evidence on appeal bears the burden of specifying with sufficient clarity the impact the evidence could have upon the Trial Chamber’s decision.18
12. If the additional evidence was available at trial, it may still be admissible on appeal if the applicant can meet the burden of establishing that exclusion of the evidence would lead to a miscarriage of justice—that is, it would have affected the verdict.19 In Krstic, the Appeals Chamber reasoned that “this heightened standard seeks to ensure the finality of judgements and the application of maximum effort by counsel at trial to obtain and present relevant evidence,” while at the same time, it does “not permit a factually erroneous conviction to stand, thereby safeguarding an equally important interest of accuracy in judgements.”20 A party seeking to admit the evidence must specify clearly the impact of the additional evidence upon the Trial Chamber’s decision.21 If the party fails to do so, the Appeals Chamber may reject the evidence without detailed consideration.22 Pursuant to the jurisprudence of the International Tribunal, the significance of the additional evidence shall again not be assessed by the Appeals Chamber in isolation, but in the context of the evidence which was admitted at trial and on appeal.23
13. The Trial Chamber found that Naletilic bears command responsibility under Article 7 (3) of the International Tribunal’s Statute24 for grave breaches of the Geneva Conventions of 1949 as defined under Article 2( c) of the Statute (wilfully causing great suffering or serious injury), committed by members of the Convicts’ Battalion (“KB”) against prisoners detained at Ljubuški.25 The Trial Chamber was satisfied beyond reasonable doubt that prisoners, among them Rudi Jozelic and other witnesses who testified at trial, were mistreated by KB soldiers while they were detained in Ljubuški Prison.26 Specifically, the Chamber found beyond reasonable doubt that Naletilic’s subordinates, namely, Romeo Blazevic, Ernest Takac, and Robo and Ivan Hrkac, participated in severe beatings of prisoners at Ljubuški.27 The Trial Chamber was further satisfied that Naletilic had reason to know about these crimes being committed by his subordinates after he had seen how soldiers of the KB severely mistreated some of the same prisoners, such as witness Y, and failed to punish them.28
14. Naletilic argues that the above findings of the Trial Chamber should be set aside as Exhibits A, B, C, and C-1 demonstrate that (i) Romeo Blazevic was not a member of the KB but a lieutenant of the HVO at the material time when the beatings took place, i.e., in May 1993, (ii) Romeo Blazevic did not beat Rudi Jozelic, and (iii) Witnesses FF and AA were not credible witnesses.29 Moreover, Naletilic asserts that the Trial Chamber’s verdict cannot stand in light of Exhibit D, which shows that Ivan Hrkac was also not a member of the KB.30
15. In support of these contentions, Naletilic presents as Exhibits A and B two copies of military identification cards, dated 22 September 1992 and 7 June 1993 respectively, which he claims show that Romeo Blazevic was not a member of the KB in May 1993 when the incidents at Ljubuški Prison occurred.31 With regard to the availability of the documents, Naletilic concedes that although Exhibits A and B might have been “technically” available to him before or during trial, they were “effectively” unavailable due to the pace of the trial and conflicting demands on limited resources. In this context, he points out that his requests for reasonable breaks during trial were repeatedly denied by the Trial Chamber.32
16. In its Response, the Prosecution submits that Naletilic has failed to demonstrate that Exhibits A and B were not available to him at trial despite the exercise of due diligence. According to the Prosecution, Naletilic has not shown what specific steps he undertook in order to obtain access to these particular documents.33 Furthermore, the Prosecution submits that from the copies of the two documents presented by Naletilic, it is impossible to ascertain whether they identify Romeo Blazevic. According to the Prosecution, the copies do not prove that Romeo Blazevic was not a member of the KB in May 1993 when prisoners at Ljubuški Prison were mistreated, and therefore, the evidence could not have been a decisive factor if considered at trial.34
17. By attending to the substance of the matter, the Appeals Chamber intends to deal with the distinction drawn by the Appellant between evidence which was technically available and evidence which was effectively available. Here, Naletilic concedes that Exhibits A and B were available at trial and fails to show what reasonable steps he took at trial in the exercise of due diligence to obtain those documents. Moreover, the Appeals Chamber finds that an examination of the trial record shows that the Appellant did receive adequate extensions of time for the preparation of his case allowing for him to request admission of Exhibits A and B at trial, but failed to do so. In its Scheduling Order of 5 February 2002, the Trial Chamber granted Naletilic a two-month break before the Defence case began noting that “the jurisprudence of the Tribunal shows that the longest period of time granted by a Chamber to a Defence team to prepare their case after the closing of the Prosecution case was a period of approximately two months which included a period of judicial recess.”35 With regard to the Appellant’s requests for extension which were denied by the Trial Chamber, the first request for extension came before the Appellant’s case had even commenced.36 This request, in which the Defence asked for a one week break after the first seven witnesses and for some other short breaks during the trial, was denied by the Trial Chamber on the ground that the trial schedule did not give reason for concern as to the fairness of proceedings or protection of the rights of the accused.37 The Defence filed a further request for a recess on 27 May 2002, this time on the ground that the Appellant was allegedly in poor health. This request was also denied by the Trial Chamber. The Chamber found that the medical report did not indicate any deterioration of the Appellant’s medical condition.38 In any event, the Trial Chamber was forced to adjourn proceedings for a week because the Defence was unable to bring any of their witnesses for the first week of June.39 The Appeals Chamber further notes that some of the requests for extension of time by the Appellant were granted by the Trial Chamber. On 17 June 2002, both Naletilic and Martinovic filed a joint request for a recess prior to the taking of depositions, which was granted for the period between the end of the presentation of the witnesses and the start of the depositions on the condition that the Defence for the Appellant would present all of the witnesses.40 Similarly, the Appellant’s request for the evidence of six of his former deposition witnesses to be heard via video-link from Zagreb was granted by the Trial Chamber and scheduled for the week of 26 August 2002 instead of 22 July 2002 as requested by the Defence, which gave the Appellant another four weeks time to prepare his case.41
18. Considering these circumstances, the Appeals Chamber finds that the Appellant has not demonstrated that Exhibits A and B, allegedly relating to Romeo Blazevic, were not available to him at trial and that they could not have been obtained through the exercise of due diligence.
19. In order to have the evidence admitted on appeal, the Appellant must therefore establish that the exclusion of Exhibits A and B from his appeal would lead to a miscarriage of justice. With regard to this criterion, the Appeals Chamber holds that the Appellant has not met the standard the Chamber has established in the decisions of the International Tribunal as cited above. Both documents, assuming their authenticity, do not allow for the inferences the Defence would have the Appeals Chamber draw from their content. Based on the evidence before it, the Trial Chamber found that Romeo Blazevic was a member of the Convicts’ Battalion at the time relevant to the Indictment.42 Exhibit A does not undermine this finding. Even if Blazevic was a member of the HVO in September 1992, it does not necessarily follow that he was not a member of the KB in May 1993 when the prisoners were mistreated at Ljubuški prison. The Appellant has thus not demonstrated that even if this document had been available to the Trial Chamber, it would have had an impact on the verdict. In relation to Exhibit B, the Appellant contends that, even though Unit “1717” mentioned on the ID card was in fact the Convicts’ Battalion, the date on the document, 7 June 1993, indicates that Romeo Blazevic was not a member of the KB before that date, namely, when prisoners were mistreated at Ljubuški in May 1993.43 This conclusion cannot be authoritatively drawn from the document. The document does not demonstrate that 7 June 1993 was the first day of membership of Blazevic in the Convicts’ Battalion, which had been set up by the Appellant two years earlier on 1 June 1991.44 Since the document explicitly links Blazevic with the KB, the Appeals Chamber is of the view that rather than casting doubt on whether he was indeed a member of that unit, i.e., under the Appellant’s command, in May 1993, Exhibit B appears to confirm the Trial Chamber’s finding in this regard.
20. Because the Appellant failed to demonstrate that Exhibits A and B were not available at trial or that they would affect his verdict of guilt with regard to responsibility for the grave breaches of the Geneva Conventions committed by his subordinates against prisoners at Ljubuški Prison, the Appeals Chamber denies the Appellant’s request for admission of Exhibits A and B as additional evidence under Rule 115.
21. Exhibit C is a ruling by the County Court Mostar, dated 10 December 2001, ordering that an investigation be conducted against Romeo Blazevic for war crimes and other crimes committed against inter alia civilians and prisoners of war in violation of Articles 154, 156, and 158 of the Criminal Code for the Republic of BiH. Paragraph 4 of this document refers to the beating of Rudolf Jozelic in Ljubuški prison. Exhibit C-1 is a related document sent by the Cantonal Prosecutor to the Cantonal Court in Mostar on 29 November 2002, indicating that he was discontinuing his investigation of Blazevic for crimes allegedly committed as listed in paragraph 4 of the order of 10 December 2001, and was not bringing charges on those grounds before the court.
22. In relation to Exhibits C and C-1, the Appellant submits that these documents were not available to him during trial since Exhibit C was issued “at a time when the trial was already underway for over three (3) months” and Exhibit C-1 “did not come into existence until 29 November 2002, well after the trial was concluded.”45 According to the Defence, the documents show that the local investigation concluded, based on interviews with a certain Vlado Fink and other eyewitnesses, that “Blazevic ?sic g did not beat Jozelic ?sic g.”46
23. In its Response, the Prosecution points out that Exhibit C was issued during the Prosecution’s case and thus even before the Defence case started, whereas Exhibit C-1 was issued after the Defence’s case, but four months before the Trial Chamber rendered its judgement. The Prosecution further notes that “the fact that a document 'originates' after the close of the hearings does not prevent a re-opening of the case should allegedly important evidence come to light.”47
24. As to the availability of Exhibit C, the Appeals Chamber notes that the ruling of the County Court Mostar was in fact issued before the Defence case started.48 The Defence, however, has not demonstrated what efforts it made in order to obtain and present this document at trial. For the purposes of Rule 115, Exhibit C must therefore be regarded as having been available to the Appellant at trial. In relation to Exhibit C-1, the Appeals Chamber agrees with the Prosecution’s submission that the fact that a document was issued after the close of the hearings does not prevent a re-opening of the case in the interests of justice should new and crucial evidence come to light.49 Applying this principle, the Trial Chamber re-opened the Appellant’s case in order to assess the relevance of material relating to the meetings of the HVO 3rd Mijat Tomic Battalion from mid -April to mid-May 1993, which the Prosecution disclosed to the Defence after the hearings were concluded. In this context, a hearing was held on 20 March 2003, almost four months after the date the document in Exhibit C-1 was purportedly issued. Nevertheless, the Defence has failed to demonstrate what steps it took to obtain the document before the Trial Chamber rendered its Judgement on 31 March 2003 or what prevented it from presenting the document at the hearing on 20 March. The Appeals Chamber therefore concludes that Exhibit C-1 was also available at trial.
25. With regard to the substance of both Exhibits, the Appeals Chamber finds that the documents do not support the Appellant’s assertion that “the local investigation concluded that Blazevic did not beat Jozelic ?sicg.”50 The document in Exhibit C-1 merely records the local Prosecutor’s decision to “give up” the investigation into the alleged beatings of Rudi Jozelic by Blazevic without providing any reasons for this decision. In contrast to the Appellant’s submissions, there is no indication of what evidence the Prosecutor relied on prior to his decision not to proceed with parts of the investigation, or what witnesses were interviewed. In particular, the truth of the Defence’s contention that the Prosecution’s decision was “based on interviews of Vlado Fink and other eyewitnesses”51 cannot be inferred from the documents. Since the Trial Chamber would not be bound by a decision of a local Prosecutor, the Appeals Chamber finds that, even if Exhibits C and C-1 had been before the Trial Chamber, they would not have affected the verdict.
26. Because the Appellant failed to demonstrate that Exhibits C and C-1 were not available at trial or that they would affect his verdict of guilt with regard to responsibility for the beatings of Rudi Jozelic by Blazevic at Ljubuški Prison, the Appeals Chamber denies the Appellant’s request for admission of Exhibits C and C-1 as additional evidence under Rule 115.
27. Exhibit D is a document purportedly issued by the Croatian Ministry of the Interior, Split-Dalmatia Police Administration, Legal Affairs and Personnel Section on 13 August 2003. It certificates that Ivan Hrkac was employed in the Split-Dalmatia Police Administration, the Ministry of the Interior of the Republic of Croatia, from 5 August 1990 until 15 June 1993.
28. With regard to this document, the Appellant acknowledges that evidence of the facts contained therein was already adduced by him at trial, but that he “could not have envisioned that the Trial Chamber would totally and actively disregard the testimony of Defence witnesses.”52 Furthermore, the Appellant claims that this evidence should be admitted in the interests of justice.53
29. In the Prosecution’s view, the Appellant has not demonstrated that (i) Exhibit D was not available to him before or during trial despite the exercise of due diligence 54 and that (ii) this evidence could have affected the Trial Chamber’s findings with regard to Ivan Hrkac’s involvement in the beating of prisoners at Ljubuški.55
30. In relation to Exhibit D, the Appeals Chamber finds that the Appellant has not demonstrated that the document pertaining to Ivan Hrkac was not available to him at trial and that it could not have been discovered through the exercise of due diligence. It appears that the reason why this document carries the date of 13 August 2003 is that it was issued by the Croatian Ministry of the Interior following a request of the Defence counsel at that time. As the document simply certifies the status of employment of Hrkac between 5 August 1990 and 15 June 1993, the Appellant has failed to prove that he was unable to request this certification before or during the course of the trial. The further argument of the Defence that it “could not have envisioned that the Trial Chamber would totally and actively disregard the testimony of Defence witnesses”56 is not relevant here. In Kupreskic et al, the Appeals Chamber rejected a similar argument. In that case, the Defence argued that it could not “have assumed ” the Trial Chamber’s conclusion that a witness at trial would recognise the accused.57 The Appeals Chamber, however, disregarded this argument stating that the Defence is obliged, in order to discharge its duty to act with due diligence, to “make the best case in the first instance.”58 In Delic, the Appeals Chamber further observed that the appeal process is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial.59 The Appeals Chamber therefore concludes that the Appellant has failed to establish that Exhibit D was not available for admission at trial in spite of his exercise of due diligence.
31. The Appeals Chamber is also not satisfied that the information contained in Exhibit D would have affected the verdict. Contrary to the Appellant’s assertion,60 the document does not mention where Ivan Hrkac, sometimes known as Cikota, was stationed from 5 August 1990 until 15 June 1993. All it says is that he “was employed in the Split-Dalmatia Police Administration, the Ministry of the Interior of the Republic of Croatia, from 5 August 1990 until 15 June 1993.” Furthermore, after examining the trial record, it is clear that the information that Hrkac was a policeman purportedly stationed in Hvar was indeed before the Trial Chamber. The latter was confirmed by Witness NM when confronted with Prosecution Exhibit P704.61 Although this information was before the Trial Chamber, it did not change the Trial Chamber’s assessment of the Defence evidence or its conclusion that Naletilic was responsible for the beatings of prisoners at Ljubuški prison by Hrkac.62
32. Because the Appellant failed to demonstrate that Exhibit D was not available at trial or that it would affect his verdict of guilt with regard to responsibility for the severe beatings of helpless prisoners at Ljubuški Prison by Ivan Hrkac, the Appeals Chamber denies the Appellant’s request for admission of Exhibit D as additional evidence under Rule 115.
33. Even taking into account the cumulative effect of the evidence in Exhibits A, B, C, C-1 and D, the Appeals Chamber finds that the conviction of Naletilic by the Trial Chamber for responsibility for the severe beatings of prisoners at Ljubuški would remain unaffected. As set out above, the Trial Chamber’s verdict was based on its findings that several members of the Convicts’ Battalion and the Vinko Škrobo ATG participated in the beatings of prisoners, whilst Romeo Blazevic and Ivan Hrkac were only two of the direct perpetrators and Rudi Jozelic only one of their victims.63
34. The Appellant submits that Exhibits E and F refer to the Trial Chamber’s finding that the Appellant knew that prisoners at another detention center, “the Heliodrom,” were mistreated, both physically and psychologically, by soldiers, including members of the KB, and that he failed to take any measures to prevent his subordinates from committing those crimes.64 In particular, the Trial Chamber found that the Appellant was physically present when prisoners were mistreated by soldiers who accompanied him (among whom were his subordinates ).65 The Chamber was convinced beyond reasonable doubt that Naletilic was responsible pursuant to Article 7 (3) of the Statute for the acts committed by a certain Juka Prazina and a certain Miro Marijanovic, two of the Appellant’s subordinates, amounting to cruel treatment and wilfully causing great suffering in violation of Articles 2 (c) and 3 of the Statute.66
35. Exhibit E is a copy of a record of an interview with the accused Miro Marijanovic before the investigating judge of the County Court in Mostar, compiled on 8 October 2002. It states, under point 9 “occupation,” that Marijanovic was employed by the Mostar KPZ/Penal and Correctional Institution.
36. Exhibit F consists of the following:
37. With regard to Juka Prazina, the Appellant indicated that he would address “ the sufficiency of the evidence of whether Prazina was Naletilic’s subordinate” in his brief on appeal.67 In relation to Marijanovic, the Appellant alleges that the Trial Chamber committed an error by assuming that Miro Marijanovic and another individual, namely, Marinko Marijanovic (“Vinko”), are one and the same person. Naletilic presents several documents relating to both individuals to prove that (i) Miro and Marinko Marijanovic are not the same person; (ii) Miro Marijanovic was not a member of the KB; and (iii) Marinko Marijanovic, although a member of the KB, was not at the Heliodrom at the relevant time.68
38. With regard to the non-availability requirement, the Appellant concedes that the documents, now presented as Exhibits E and F, were “arguably available at trial,” but they were not sought by the Defence as it was not foreseeable that the Trial Chamber would conclude that two separate and distinct HVO soldiers were one and the same person. In the Appellant’s view, Exhibits E and F should be admitted to avoid a miscarriage of justice.69
39. In its Response, the Prosecution submits that the Appellant has failed to set out what efforts he undertook in order to obtain access to these documents during trial. Moreover, the Prosecution argues that the admission of these documents cannot serve the interests of justice since the evidence brought forward by the Appellant was not inconsistent with the findings of the Trial Chamber and could not affect the verdict.70
40. The Appeals Chamber finds in light of the concessions of the Appellant as much, Exhibits E and F were available at trial. The Defence has failed to demonstrate what steps it undertook, in the exercise of due diligence, to obtain access to those materials. As stated above in relation to Exhibit D, the Appellant’s argument that he could not have envisioned the Trial Chamber’s conclusion that “two separate and distinct HVO soldiers were one and the same person”71 is irrelevant with regard to its failure to seek admission of the exhibits at trial in the first instance.
41. Furthermore, the Appeals Chamber finds that Exhibits E and F would not have affected the Trial Chamber’s verdict here. Although it appears as if the Trial Chamber had overlooked the fact that there were two perpetrators with the last name Marijanovic at the Heliodrom at the relevant time, this information was in fact before the Chamber. In footnote 1140, the Trial Chamber referred to the testimony of Witness HH, who testified about the role of two different perpetrators called Marijanovic, one of them described by the witness as the “governor” or the “warden” of the prison.72 This evidence seems to be consistent with Exhibit E, indicating that Miro Marijanovic was employed by the Mostar KPZ/Penal and Correctional Institution. In addition, none of the documents included in Exhibit F conclusively establishes that Marinko Marijanovic could not have been at the Heliodrom in late May 1993 when the incidents described by Witness HH took place. The evidence merely shows that Marinko Marijanovic was wounded on 15 June 1992 on his left arm, that he received treatment in a medical rehabilitation institute in Vela Luka from 1 July to 18 July 1992 and again from 21 July to 14 August 1992, and had X-rays taken on 11 February and 25 November 1993. No inference, however, can be drawn from these documents as to where Marinko Marijanovic was at the material time.
42. Because the Appellant failed to demonstrate that Exhibits E and F were not available at trial or that they would affect his verdict of guilt with regard to his responsibility for the mistreatment by his subordinates of detainees in the Heliodrom, the Appeals Chamber denies the Appellant’s request for admission of Exhibits E and F as additional evidence under Rule 115.
43. Exhibit G relates to the crime of torture committed at the Heliodrom in early June 1993 (Counts 9 and 10). The Trial Chamber held that the Appellant is individually responsible under Article 7(1) of the Statute as a co-perpetrator with a certain Samir [sic] Bosnjic for the torture of Witness FF in violation of Articles 2 (b) and 5 (f) of the Statute.73 The Trial Chamber’s verdict was based on its findings that the Appellant “inflicted great suffering and mental pain on witness FF and that he did so for the purpose of obtaining information about witness FF’s father and to punish him for being the son of this politically prominent person.”74 In the Chamber’s view, the Appellant “allowed witness FF to be physically mistreated by Samir [sic] Bosnjic after he did not answer his questions and he also inflicted severe mental suffering on the witness by falsely informing him that they had killed his father on that morning.”75
44. Exhibit G encompasses the following documents, which Naletilic seeks to use to prove that Samir Bošnjic was injured on 9 May 1993 and that, due to his injuries, he was not capable of committing the acts attributed to him:76
45. The Appellant asserts that Semir Bošnjic was unavailable to the Defence before and during the Trial as he had disappeared for over five years and that the documents should be admitted in order to avoid a miscarriage of justice.77 The Defence further states that it made bona fide efforts in the exercise of due diligence to locate Semir Bošnjic and, in any event, it could not have “envisioned that the Trial Chamber would so totally disregard the testimony of Defence witnesses.”78
46. The Prosecution submits that the Appellant has not shown that the documents presented as Exhibit G were not available to him at trial despite acting with due diligence.79 Further, the Prosecution files, together with its Response of 18 September 2003, evidence in rebuttal to the Appellant’s assertion that the evidence referred to in Exhibit G was not available to him at trial.80 Finally, the Prosecution notes that Exhibit G could not have been a decisive factor at trial.81
47. The Appeals Chamber finds that the Appellant has not shown that the medical documents and papers he now presents as additional evidence under Exhibit G were not available to him at trial despite acting with due diligence. Specifically, the Defence has failed to demonstrate what steps it undertook to bring the alleged difficulties in locating Semir Bošnjic to the attention of the Trial Chamber.82 Furthermore, the Defence did not show that it made any attempts to obtain the documents. As the Appellant has failed to meet the burden of proof for showing that the additional evidence was not available at trial, the Appeals Chamber does not find it necessary to assess the evidence the Prosecution filed in rebuttal to the Appellant’s assertion of unavailability.
48. As to the question of whether the exclusion of Exhibit G would lead to a miscarriage of justice, the medical documents show that there is, in fact, a possibility that the Appellant’s co-perpetrator was not Semir Bošnjic but another person. According to the Trial Chamber’s findings, Witness FF was brought to the Heliodrom in early June 1993 and interrogated by Naletilic “some days later.”83 The documents in Exhibit G indicate that Bosnjic was injured on 9 May 1993 in Mostar, transferred to the Surgery Clinic of Firule KBC in Split on the same day, operated on 10 or 11 May 1993, released to recuperate at home on 19 May 1993 and received treatment at the Treatment, Rehabilitation and Rest Centre in Makarska between 18 June and 30 July 1993. It could indeed therefore be doubted whether Bosnjic was capable of committing the acts attributed to him. Additionally, the fact that Bosnjic was wounded on his head appears to be consistent with evidence Witnesses SS, K and NN gave at trial regarding an incident which took place at Vinko Martinovic’s headquarters in July or August 1993 when several prisoners were beaten by Martinovic.84 Some of the witnesses described Semir Bošnjic as a man with a scar to his head, a speech impediment and a limp, who participated in the beating of a prisoner.85
49. Nevertheless, the Appeals Chamber finds that even if these details with regard to Semir Bošnjic had been available at trial, they would not have altered the Trial Chamber’s findings on the Appellant’s responsibility for the torture of Witness FF. The Trial Chamber found the Appellant guilty on the basis of his own acts pursuant to Article 7 (1) of the Statute for torturing Witness FF. The additional evidence presented as Exhibit G does not cast any doubt on that finding. In particular, it does not undermine the reliability of Witness FF’s testimony or his credibility, since the witness did not expressly identify Bošnjic as the person who was beating him during the interrogation conducted by Naletilic and admitted that he did not know the name of that person. It was only after describing him later to co-detainees that he was told that the person was Samir ?sicg Bošnjic who physically tortured him.86 Further, the evidence does not cast any doubt on the Trial Chamber’s findings that the Appellant allowed the witness to be physically mistreated by another person after he did not answer the Appellant’s questions and that Naletilic also inflicted severe mental suffering on witness FF by falsely informing him that they had killed his father on that morning.87 Under these circumstances, the Appeals Chamber is satisfied that the exclusion of Exhibit G would not lead to a miscarriage of justice.
50. Because the Appellant failed to demonstrate that Exhibit G was not available at trial or that it would affect his verdict of guilt with regard to his individual responsibility for the torture of Witness FF at the Heliodrom in early June 1993, the Appeals Chamber denies the Appellant’s request for admission of Exhibit G as additional evidence under Rule 115.
51. Exhibit H is a letter from the Intelligence Security Service of the Federation of BiH Sarajevo, dated 13 August 2003, attaching various documents requested on 21 July 2003 and 5 August 2003.
52. The Appellant contends that statements made in the letter with regard to non -accessibility of certain documents are evidence that the Prosecutor has control of certain documents and has not made them accessible to the Appellant. He alleges that he is “still being denied evidence which he verily believes is exculpatory.”88
53. The Prosecution rejects the Appellant’s allegations that it would have exculpatory evidence in its possession, which it has deliberately not disclosed. In addition, it informs the Appeals Chamber that it has recently written to the Defence counsel asking for specific information about what documents or evidence the Defence is looking for, but it has not yet received a formal response.89
54. The Appeals Chamber finds that the Appellant failed to demonstrate how the letter in Exhibit H, which is allegedly proof that the Appellant has been denied evidence he believes is exculpatory, was unavailable to him at trial though acting with due diligence. Neither does the Appellant show how the admission of the letter would have an impact on the Trial Chamber’s verdict of guilt as the letter fails to specify exactly which documents the Defence Counsel has been seeking or to which findings of fact made by the Trial Chamber the missing documents would be directed. Therefore, the Appeals Chamber denies the Appellant’s request for admission of Exhibit H.
55. In his First Supplement (Exhibit I), the Appellant asserts that his counsel has recently been made aware of additional information from a certain Alojz Rados, the putative author of a contemporaneous record of events relevant to the Indictment, referred to by the Trial Chamber as the “Rados Diary,”90 evidencing whether Rados had personal, as opposed to secondhand, knowledge of the events in his so-called diary. According to the Appellant, “?tghis new information together with the newly translated minutes of the 3rd Mijat Tomic ?sicg Battalion constitutes exculpatory and mitigating evidence.”91
56. The Prosecution requests that the “First Supplement” to Naletilic’s Rule 115 Motion should be dismissed since it was filed “out of time,” is merely an English translation of a document that was available at trial, and was the subject of a specific decision by the Trial Chamber.92
57. The Appeals Chamber finds that notwithstanding the fact that the First Supplement was filed on 15 August 2003 after business hours93 and that the Appellant has neither requested a further extension of time for the filing of his supplement nor demonstrated “good cause” for the late filing within the meaning of Rule 127, Exhibit I does not contain “new” or “additional” evidence not available at trial in the sense of Rule 115. As demonstrated in relation to Exhibits C and C-1, the minutes of the 3rd Mijat Tomic Battalion were disclosed by the Prosecution to the Defence before the Trial Chamber rendered its judgement. After a hearing took place on 20 March 2003, the Trial Chamber held, in its decision of 24 March 2003,94 that “the Defence, in the Chamber’s view, was unable to show prima facie that the Material falls under Rule 68” and that it could not find “any facts which tends to suggest the innocence or mitigate the guilt of the Accused or which may affect the credibility of Prosecution evidence.” The Appeals Chamber therefore concludes that because the Appellant has failed to show that Exhibit I was not available at Trial or that it would affect the Trial Chamber’s verdict of guilt against him, it must deny the Appellant’s request for admission of Exhibit I.
58. On the basis of the foregoing, the Appeals Chamber finds that none of the additional evidence submitted by the Appellant on appeal meets the requirements of Rule 115 of the Rules for admission and, as a consequence, dismisses Naletilic’s Consolidated Motion in its entirety.
Done in both English and French, the English text being authoritative.
Judge Fausto Pocar Presiding
Dated this 20th day of October 2004,
At The Hague,
[Seal of the Tribunal]