Case No. IT-98-34-A

IN THE APPEALS CHAMBER

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

Registrar:
Mr. Hans Holthuis

Date:
27 January 2005

PROSECUTOR

v.

Mladen NALETILIC, aka "TUTA"
Vinko MARTINOVIC, aka "STELA"

________________________________________

DECISION ON NALETILICíS MOTION FOR LEAVE TO FILE HIS SECOND MOTION TO PRESENT ADDITIONAL EVIDENCE PURSUANT TO RULE 115

________________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for the Accused:

Mr. Matthew Hennessy and Mr. Christopher Young Meek for Mladen Naletilic
Mr. éelimir Par and Mr. Kurt Kerns for Vinko Martinovic

 

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 Mladen Naletilićís ("Appellant") "Motion for Leave to File His Second Motion to Present Additional Evidence Pursuant to Rule 115" ("Motion for Leave"), filed on 8 September 2004, wherein the Appellant seeks leave to file his "Second Motion to Present Additional Evidence Pursuant to Rule 115" ("Second Rule 115 Motion");

NOTING the Appellantís Second Rule 115 Motion filed confidentially on 26 July 2004, in which he seeks admission of fifteen additional documents pursuant to Rule 115 of the Rules of Procedure and Evidence of the International Tribunal ("Rules");

RECALLING that at the Status Conference held on 26 July 2004 in this case, the Pre-Appeal Judge observed that the Appellant had filed his Second Rule 115 Motion out of time and ordered the Appellant to file a "detailed request seeking leave" to complement his Second Rule 115 Motion;1

NOTING the ďProsecutionís Motion for Clarification and if Necessary for an Extension of Time to Respond to Mladen Naletilićís Second Additional Evidence MotionĒ ("Motion for Clarification"), filed on 29 July 2004, wherein the Prosecution submits that it should not be required to respond to the Appellantís Second Rule 115 Motion until leave has been granted by the Appeals Chamber to the Appellant for filing the Second Rule 115 Motion and requests that the Appeals Chamber grant it an extension of 14 days for filing its response, if any, pursuant to Rule 127 of the Rules because of the "particular nature of a response to a motion for admission of additional evidence in conjunction with the lack of assistance provided by the Appellant";2

NOTING that no response has been filed by the Appellant to the Prosecutionís Motion for Clarification;

NOTING the "Prosecutionís Response to Mladen Naletilićís Motion for Leave to File Second Additional Evidence Motion" ("Responseíí), filed confidentially on 16 September 2004, in which the Prosecution submits that the Appellantís Motion for Leave should be denied because he has failed to establish good cause or exceptional circumstances for the filing of a Rule 115 motion at an advanced stage of the proceedings;3

NOTING that no reply has been filed by the Appellant to the Prosecutionís Response;

CONSIDERING that under Rule 115(A) of the Rules, "[a] party may apply by motion to present additional evidence before the Appeals Chamber" and that said motion "must be served on the other party and filed with the Registrar not later than seventy-five days from the date of the judgement, unless good cause is shown for further delay";

NOTING that the Trial Chamber rendered its judgement in this case on 31 March 2003 ("Trial Judgement");

NOTING however, that because the Appellantís Lead Counsel was replaced by order of the Registry on 23 June 2003, and a BCS translation of the Trial Judgement was not made available to Defence Counsel until 1 July 2003, the Pre-Appeal Judge found that good cause had been established under Rule 127 of the Rules for extending the deadline found in Rule 115 in the Appellantís case and ordered the new deadline for filing any Rule 115 motion to be set at 15 August 2003 (the "extended deadline");4

CONSIDERING that because the Appellantís Second Rule 115 Motion was filed on 26 July 2004, or approximately 346 days after the extended deadline, the Appellant must establish good cause for filing his Second Rule 115 Motion pursuant to Rule 115(A);

CONSIDERING that "the good cause requirement [in Rule 115] obliges the moving party to demonstrate that it was not able to comply with the time limit set out in the Rule, and that it submitted the motion in question as soon as possible after it became aware of the existence of the evidence sought to be admitted";5

CONSIDERING that the Appellant argues that he should be granted leave to file his Second Rule 115 Motion because the fifteen documents submitted as additional evidence were only acquired by Defence Counsel for the Appellant from an independent source "after August 2003 but before the end of the year" and the subsequent delay in filing a Rule 115 motion was caused by awaiting full translations of the original BCS versions, which were submitted to the Translation Unit of the International Tribunal as soon as possible after their receipt but that the translations were not completed until late 2003 or early 2004; by a computer crash in April 2004 of Defence Co-Counselís computer; and by the discovery of additional documents from an independent source in January 2004,6 which Defence Counsel was investigating with the Prosecution to determine whether this evidence had been previously disclosed by the Prosecution7 before or during trial;8

NOTING that the Appellant has failed to establish in his Motion for Leave why he was only able to obtain the fifteen documents submitted with his Second Rule 115 Motion until "after August 2003 but before the end of the year," and was unable to comply with the extended deadline;

CONCLUDING that in light of the arguments advanced or failed to be advanced by the Appellant, the Appeals Chamber is not convinced that the Appellant has sufficiently established that he has good cause for filing his Second Rule 115 Motion out of time;

CONSIDERING that under the Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings before the International Tribunal ("Practice Direction on Written Submissions in Appeal Proceedings"), a motion filed during appeals from judgement shall contain the precise ruling or relief sought;9

CONSIDERING further that pursuant to Rule 115(A), a Rule 115 motion must "clearly identify with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed," and, under the Practice Direction on Formal Requirements for Appeals from Judgement, a party applying to present additional evidence shall identify clearly the relationship of the evidence to the pertinent grounds of appeal it raises;10

NOTING that in this case, the Appellant has failed to indicate in his Second Rule 115 Motion the specific findings of fact made by the Trial Chamber, which the fifteen additional documents challenge, and has failed to advance arguments demonstrating specifically, which grounds of appeal listed in his Second Rule 115 motion are supported by the additional evidence proffered;

CONSIDERING that where a party fails to specify clearly the impact of additional evidence proffered on appeal on a Trial Chamberís decision, the party "runs the risk of the evidence being rejected without detailed consideration";11

CONSIDERING however, that in the interests of justice, the Appellant may file an amended Second Rule 115 Motion pursuant to the requirements of Rule 115 and the Practice Directions on appeals proceedings before the International Tribunal, specifically establishing therein good cause for leave to file said amended motion;

FOR THE FOREGOING REASONS:

DENIES the Appellantís Motion for Leave and DISMISSES the Appellantís Second Rule 115 Motion;

INVITES the Appellant, if he so wishes, to file an amended Second Rule 115 Motion, however no later than within 10 days from the issuance of this decision;

ORDERS the Prosecution to file its response to the Appellantís amended Second Rule 115 Motion, if any, within 10 days of the filing of the amended Second Rule 115 Motion;12 and

ORDERS that the Appellant may file his reply, if any, within four days of the filing of the Prosecutionís response.13

 

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

________________
Judge Fausto Pocar Presiding

Dated this 27th day of January 2005,
Done at The Hague,
The Netherlands.

[Seal of the Tribunal]


1. Status Conference (Open Session), 26 July 2004, p. 45, T. 16-23.
2. Motion for Clarification, paras. 1, 20.
3. Response, paras. 3-4, 16.
4. Decision on Mladen Naletilicís Motions for Extension of Time, 25 June 2003, pp. 3-4.
5. Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-A, Decision on Prosecutionís Motion to Admit Additional Evidence in Relation to Dario Kordic and Mario Cerkez, 17 December 2004, p. 2.
6. The Appeals Chamber notes that Defence Counsel eventually chose not to submit these additional documents with its Second Rule 115 Motion although it claims that it had originally intended to do so, see Motion for Leave, paras. 4-5.
7. The Appeals Chamber further notes that the Prosecution informed Defence Counsel as early as March 2004 that the documents had already been disclosed in BCS at trial; however, Defence Counsel was not satisfied with this response and continued its investigations into the matter until August 2004, see Motion for Leave, para. 5; Response, paras. 11-13 and Annex A.
8. Motion for Leave, paras. 2-5.
9. IT/155 Rev. 1, 7 March 2002, para. 10(a).
10. IT/201, 7 March 2002, para. 11(b).
11. Prosecutor v. Kupreskic et. al, Case No.: IT-95-16-A, Appeal Judgement, 23 October 2001, para. 69.
12. See Practice Direction on Written Submissions in Appeal Proceedings, para. 11.
13. Ibid.,para. 12.