Case No.: IT-95-16-R.3

IN THE APPEALS CHAMBER

Registrar:
Mr. Hans Holthuis

Decision of:
2 April 2004

PROSECUTOR

v.

DRAGO JOSIPOVIC

_____________________________________________

DECISION ON MOTION FOR REVIEW

_____________________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell

Counsel for Drago Josipovic:

Mr. Ranko Radovic

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"),

NOTING the "Appeal Judgement" ("Judgement"), the “Decision on the Motion of the Counsel of Drago Josipovic” and the "Decision on Second Motion for Review", issued by the Appeals Chamber on 23 October 2001, 9 July 2002, and 7 March 2003, respectively;

BEING SEISED OF the "Proposal of the Counsel of Drago Josipovic for the Revision of the Case" filed confidentially by counsel for Drago Josipovic ("Defence" and "Josipovic", respectively) on 11 September 2003 ("Motion for Review") pursuant to Rule 119 of the Rules of Procedure and Evidence of the International Tribunal ("Rules");

NOTING the "Prosecution’s Response to the Proposal of the Counsel of Drago Josipovic for the Revision of the Case and Prosecution’s Request for an Extension of Page Limit" filed confidentially on 17 October 2003;

NOTING the "Motion of the Counsel as the Answer to the Prosecutor’s Answer on the Proposal of the Counsel of Drago Josipovic, Considering Revision of the case" filed confidentially by the Defence on 10 November 2003;

CONSIDERING that, in the Motion for Review, the Defence submits that Josipovic was wrongly convicted on the basis of Witness EE’s testimony because Witness EE erred in the identification of Josipovic among the group of individuals who, on 16 April 1993, attacked the house of Musafer Puscul in the village of Ahmici, and killed Musafer Puscul during the attack;

CONSIDERING that, in support of this contention, the Defence relies on the statements of several residents of the village of Ahmici, namely:

1. Salih Ahmic, who states that he has read the first statement given by Witness EE at the Centre for Investigations of War Crimes in Zenica in 1993 and that, in that statement, there was no mention of Josipovic as one of the participants in the attack on the house of Musafer Puscul on 16 April 1993;
2. Jasminka Ahmic, who claims to have overheard a conversation between a number of inhabitants of Ahmici in which Witness EE stated that she had not recognised any of the attackers of the house of Musafer Puscul, save one who was not masked (but that this was not Josipovic);
3. Nasiha Sarajlic, who states that while sitting with her child on a bench in a park in Zenica, she overheard a conversation "in May or June 1993" in which Witness EE stated that, during the Croat attack on Ahmici, masked HVO soldiers went to Musafer Puscul’s house and took him out of the house and that among the soldiers there was "a certain Vlado" who was unmasked;
4. Hajrija Ahmic, who recalls that having spoken to a number of inhabitants of Ahmici after Witness EE testified at trial, they were all surprised to learn that Witness EE was able to recognise Josipovic among the attackers of the house of Musafer Puscul, as they had been masked;
5. Seiba Osmancevic, who claims that it is untrue that Josipovic was not saving Muslims, as he saved her husband and took her and her husband to the house of Anto Papic to receive shelter for one night; and
6. Witness CA, who, inter alia, asserts that in the house of a resident of Ahmici, she heard Witness EE speaking about the incident which occurred at Musafer Puscul’s house without ever mentioning Josipovic;

CONSIDERING that, in accordance with Article 26 of the Statute of the Tribunal ("Statute") and Rules 119 and 120 of the Rules, a party seeking review must satisfy four criteria, namely:

1. there must be a new fact;
2. this new fact must not have been known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber;
3. the lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and
4. the new fact, if proved, could have been a decisive factor in reaching the original decision;(1)

CONSIDERING that, even if the evidence of Salih Ahmic, Jasminka Ahmic, and Hajrija Ahmic, were to be regarded as relating to new facts within the meaning of Rule 119 of the Rules, the existence of these potential witnesses was already known to the Defence during the appeal proceedings of this case, as these individuals were among the signatories of a petition submitted by the Defence (then counsel for Mirjan and Zoran Kupreskic), which was dismissed by the Appeals Chamber, and, that, therefore, neither the second nor the third of the above criteria is satisfied;(2)

CONSIDERING further that the evidence of these witnesses does not relate to facts of such strength that, if proved, it could have been a decisive factor in reaching the original decision within the meaning of Rule 120 of the Rules;

CONSIDERING that, even if the evidence of Nasiha Sarajlic were to be regarded as relating to new facts within the meaning of Rule 119, none of the facts mentioned therein is of such strength that, if proved, it could have been a decisive factor in reaching the original decision within the meaning of Rule 120 of the Rules;

CONSIDERING that the testimony of Witness CA was already heard at trial(3) and that a statement of this witness was admitted into evidence and examined in the Judgement;(4)

CONSIDERING that, assuming Witness CA’s evidence satisfies the first criterion of Rule 119 of the Rules, that evidence is not of such strength that, if proved, it could have been a decisive factor in reaching the original decision within the meaning of Rule 120 of the Rules;

CONSIDERING that the Decision on Second Motion for Review has already dealt at length with the testimony of Seiba Osmancevic (and that of her husband Mirsad) and that, therefore, it should not have been brought up again;(5)

NOTING the request by the Defence that Witness AT be called to testify;

CONSIDERING that this request does not present any new fact within the meaning of Rule 119 of the Rules and that the impact of Witness AT’s evidence on Josipovic’s conviction has already been carefully examined in the Judgement;(6)

NOTING the submission by the Defence of a petition signed by 27 residents of Ahmici supporting Drago Josipovic’s innocence ("Petition");

CONSIDERING that 10 of the signatories of the Petition had already signed a similar petition which was rejected by the Appeals Chamber, and that the Petition, while reflecting the opinion of some of the inhabitants of Ahmici, does not present any new decisive fact that would substantiate the claim that Josipovic was not one of the participants on the attack on the house of Musafer Pušcul;

FINDING that, for the foregoing reasons, the Motion for Review does not satisfy the criteria set out in Rules 119 and 120 of the Rules;

HEREBY DISMISSES the Motion for Review.

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

Dated this 2^nd day of April 2004
At The Hague,
The Netherlands.

__________________
Judge Theodor Meron
Presiding

[Seal of the Tribunal]