Case: IT-98-30/1-A

IN THE APPEALS CHAMBER

Before:
Judge David Hunt, Pre-Appeal Judge

Registrar:
Mr. Hans Holthuis

Decision of:
6 June 2002

PROSECUTOR
v
Miroslav KVOCKA, Mlado RADIC, Zoran ZIGIC & Dragoljub PRCAC

_________________________________

DECISION ON APPLICATION BY PROSECUTION FOR LEAVE TO FILE FURTHER RESPONSE

_________________________________

Counsel for 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

1. In an Order dated 8 May 2003, I stated that, if Zoran Zigic (“Zigic”) sought pursuant to Rule 115 of the Rules of Procedure and Evidence (“Rules”) – and as part of his second motion pursuant to that Rule in support of his appeal against conviction 1 – to tender as additional evidence a document which had just been disclosed to him by the prosecution, the prosecution would be given the opportunity to respond to that tender.2 Zigic did subsequently tender that document in a Supplement to his Second Rule 115 Motion,3 at the same time as he filed his Reply to the prosecution’s Response to that motion.4 The prosecution then filed a response to the Supplement,5 as I had indicated that it could in the earlier Order.

2. The prosecution’s Supplementary Response also seeks leave to respond to “several points arising out of” the Reply which had been filed by Zigic to its Response to the Second Rule 115 Motion.6 Four paragraphs of the Reply are subsequently identified, and they are said to contain “matters arising […] that call for a reply”. Neither the Rules nor the practice of the Tribunal provide a party with a right to respond to a reply,7 although leave to do so may be granted.8 Leave will usually be granted to file a further response where the reply raises a new issue.9 It is not sufficient that a matter raised in the reply may merely “call” for a reply (or, more appropriately, a further response). A respondent, in his response to a motion, must give his full answer to the issues raised in that motion and, except where the interests of justice require, he will not be permitted the opportunity to give further answers or to elaborate the answers already given to those issues. Leave will, as stated, usually be granted where the reply raises a new issue to which the respondent has not already had the opportunity to respond.

3. Zigic has stated that he has no objection to the application for leave and that, if leave were granted, he would not seek to reply to it.10 It is, of course, not unknown for parties to agree to an application for a procedural concession for reasons other than the speedy resolution of the particular matter to which the application relates, and such agreement does not avoid the need for consideration to be given to the merits of the procedural application before allowing it.

4. In the present case, the prosecution has made no attempt to demonstrate that any of the four identified paragraphs of the Reply does raise a new issue.11 It should not have been left for the Chamber to work out for itself. Nevertheless, in order to save time in having this Rule 115 Motion resolved, I have considered the four paragraphs of the reply identified by the prosecution in order to determine whether they do in fact raise any new issues:

(i) Paragraph 5 In responding to the submission of the prosecution (at par 7 of the Response) that, in establishing that the additional evidence tendered under Rule 115 “was not available at trial”,12 it must be shown that the evidence could not have been discovered through the exercise of due diligence by counsel,13 Zigic has argued that the issue of due diligence is “palpable only in the most extreme circumstances”, and that the burden of work upon his counsel at the trial excuses his lack of due diligence. The further response which the prosecution seeks to make is that the burden lies upon the appellant to establish due diligence, and that a mere blanket assertion by Zigic that the Defence was too busy at the trial to discover the additional evidence is insufficient to establish the requirements of Rule 115.14 These submissions are no more than a repetition of the Response already filed by the prosecution.15 The prosecution is merely attempting to have the last say, but the wish to repeat a submission already made provides no basis for leave to file a further response.

(ii) Paragraph 6 In responding to the same submission, Zigic argues that, leaving aside the issue of his own counsel’s due diligence, lack of due diligence on the part of the prosecution “has already been proven” by its failure to comply with its obligations of disclosure imposed by Rule 68, and that as a consequence his rights had been infringed. The further response which the prosecution seeks to make is that certain documents were available to the Defence at the trial, and certain other documents did not come into existence until after the Trial Chamber had given its judgment.16 The Second Rule 115 Motion by Zigic made no suggestion that the disclosure of this material after the Trial Chamber had given judgment constituted a failure by the prosecution to comply with Rule 68.17 The issue is therefore a new one, and the prosecution is entitled to explain the circumstances of the disclosure which was made at that time.

(iii) Paragraph 9 In responding to the submissions of the prosecution (at par 15 of the Response) that three documents tendered showing that the particular witness being discussed had previously made statements consistent with his evidence at the trial (a) could not “have had an impact on the trial verdict” and (b) could not “have been a decisive factor in reaching the decision at trial”,18 Zigic argues that such statements strengthen the witness’s credibility by demonstrating that his evidence was sure and reliable. In his Second Rule 115 Motion, Zigic had argued that the three statements of this witness make it clear that, contrary to the finding by the Trial Chamber, he (Zigic) was not involved in the incident to which the statement refers.19 He described the statements as having been given by a “very well informed, credible and capable” person,20 but he did not clearly assert as a separate argument that the prior consistent statements strengthen the credibility of that witness. In its Response, the prosecution argued that the statement of a witness at the trial was “not evidence by a new witness giving a contradictory version of events”, and that the issue was whether the prior statement was inconsistent, an issue which is the reverse of that which Zigic has now raised.21 The further response which the prosecution seeks to make (a) repeats that such a statement was not admissible on appeal as additional evidence, and (b) argues that, in any event, the credibility of a witness is not strengthened by the fact that the witness had made prior consistent statements.22 The first of those arguments is merely attempting once more to have the last say, but the second does relate to an issue raised for the first time in the Reply.

(iv) Paragraph 10 In responding to the submission of the prosecution (at par 18 of the Response) in relation to the same three documents, that the same witness had expressed a belief that the victim had been killed by a particular person, Zigic takes issue with the interpretation of the evidence upon which the prosecution is said to have relied. The relevance of the submission by the prosecution in its Response is unclear but, as the further response which the prosecution seeks to make is not stated in the document filed,23 there is no need to pursue the application in relation to par 10.

5. The prosecution is therefore granted leave to file a response in relation to the two new issues raised in the Reply: (a) the argument in par 6 of the Reply that the prosecution had been in breach of its obligations of disclosure pursuant to Rule 68, and (b) the argument in par 9 of the Reply that the three prior statements of the witness are admissible in order to strengthen the credibility of the witness. As the argument proposed to be put as outlined in the Supplementary Response in relation to the second of those matters does not deal with the possibility that the conduct of the trial may have made prior consistent statements of the witness admissible, and as the Appeals Chamber will need assistance from counsel on this issue, the prosecution is required to file a separate Further Response to the Reply in which it isolates (and, if thought advisable, expands) its submissions on these two issues. Despite his stated intention not to file a reply to such response, Zigic may wish to do so when he sees the document itself, and he will be permitted to do so. He must, however, take care merely to reply to the arguments put by the prosecution, and must understand that he has no right to raise more new issues in such a reply.

Disposition

6. The following orders are made:

(1) The prosecution may file within seven days of the date of this Decision a separate Further Response to the Reply limited to the two new issues raised therein: (a)  the argument in par 6 of the Reply that the prosecution had been in breach of its obligations of disclosure pursuant to Rule 68, and (b) the argument in par 9 of the Reply that the three prior statements of the witness are admissible in order to strengthen the credibility of the witness.

(2) Zoran Zigic may file a reply to such response within seven days of the date upon which such response is filed.

 

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

Dated this 6th day of June 2003,
At The Hague,
The Netherlands.

__________________________
Judge David Hunt
Pre-Appeal Judge

[Seal of the Tribunal]

1 - (Confidential) Zoran Zigic’s Second Motion to Present Additional Evidence, 11 April 2003 (“Second Rule 115 Motion”).
2 - Order on Extension of Time, 8 May 2003, p 2.
3 - (Confidential) Supplement to Zoran Zigic’s Second Motion to Present Additional Evidence, 19 May 2003 (“Supplement”).
4 - (Confidential) Prosecution’s Response to Zoran Zigic’s Second Motion to Present Additional Evidence, 9 May 2003 (“Response”); (Confidential) Zoran Zigic’s Reply to Prosecution’s Response to Zoran Zigic’s Second Motion to Present Additional Evidence, 19 May 2003 (“Reply”).
5 - (Confidential) Prosecution’s Response to the “Supplement to Zoran Zigic’s Second Motion to Present Additional Evidence” and Prosecution Motion to File a Further Pleading, 29 May 2003 (“Supplementary Response”).
6 - Supplementary Response, par 4.
7 - Prosecutor v Sainovic & Ojdanic, IT-99-37-AR65, Decision on Provisional Release, 30 Oct 2002 (“Sainovic Decision”), par 5.
8 - Practice Direction on Procedure for the Filing of Written Submissions in Appeal Proceedings Before the International Tribunal, 7 Mar 2002 (IT/155 Rev 1), par 16.
9 - Sainovic Decision, par 5. The Decision was unanimous upon this issue: see also Dissenting Opinion of Judge David Hunt on Provisional Release, par 5. See as well Prosecutor v Strugar et al, IT-01-42-AR72, Decision on “Prosecution’s Application for Leave to File a Reply to the Defence’s Reply to the Prosecution’s Response to the Defence’s Brief on Interlocutory Appeal on Jurisdiction, 12 Sept 2002, p 2.
10 - (Confidential) Zoran Zigic’s Response to the Prosecution’ Motion to File a Further Pleading Filed on 29 May 2003, 2 June 2003, par 3.
11 - There is not even a “mere blanket assertion” that they do raise such issues (cf Supplementary Response, par 19).
12 - Rule 115(B).
13 - Prosecutor v Tadic, IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time Limit and Admission of Additional Evidence, 15 Oct 1998, pars 35-45; Prosecutor v Kupreskic et al, IT-95-16-A, Appeal Judgement, 23 Oct 2001 (“Kupreskic Appeal Judgment”), par 50; Prosecutor v Delic, IT-96-21-R-R119, Decision on Motion for Review, 25 Apr 2002, par 10.
14 - Supplementary Response, par 19.
15 - Response, pars 6-8, and in the previous filings incorporated there by reference.
16 - Supplementary Response, par 20.
17 - Although one of the grounds of appeal filed by Zigic (that numbered 39) refers in general terms to “disclosure obligations was [sic] not fulfilled”, there is no reference that I can see anywhere to the documents in question here.
18 - Although the prosecution does not in its Response to the Rule 115 Motion identify the authoritative source for the phrases which it quoted, the first appears to have been taken from par 76 of the Kupreskic Appeal Judgment, and the second from the terms of Rule 115(B) itself.
19 - Second Rule 115 Motion, par 6.1.
20 - Ibid, par 6.1.
21 - Response, par 15.
22 - Supplementary Response, par 21.
23 - The prosecution purports to deal with the argument of Zigic at par 21 of the Supplementary Response, but there is no reference to it.