Case No. IT-02-54-T
Judge Patrick Robinson, Presiding
Judge O-Gon Kwon
Judge Iain Bonomy
Mr. Hans Holthuis
13 December 2005
DECISION ON APPLICATION FOR A LIMITED RE-OPENING OF THE BOSNIA AND KOSOVO COMPONENTS OF THE PROSECUTION CASE WITH CONFIDENTIAL ANNEX
Office of the Prosecutor
Ms. Carla Del Ponte
Mr. Geoffrey Nice
Mr. Slobodan Milosevic
Court Assigned Counsel
Mr. Steven Kay, QC
Ms. Gillian Higgins
Prof. Timothy McCormack
THIS TRIAL 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 (“Tribunal”), is seized of an “Application for Limited Re-Opening of the Bosnia and Kosovo Components of the Prosecution Case” (“Application”), and hereby renders its decision thereon.
1. On 25 February 2004, the Office of the Prosecutor (“Prosecution”) brought its case in chief against Slobodan Milosevic (“Accused”) to a close.1
2. On 12 July 2004, the Prosecution filed a confidential and ex parte “Prosecution Notice of Potential Forthcoming Request to Re-Open its Case in relation to Srebrenica Allegations” (“Notice”), in which it indicated that “there is a possibility that the Prosecution will ask to re-open its case at some stage in relation to certain evidence pertaining to the charges in the Bosnia component of the indictment against the Accused, particularly those charges relating to Srebrenica.”2 The Notice concluded with the statement that “SsChould the Prosecution seek to re -open its case, such an application will be filed as soon as possible.”3
3. On 18 July 2005, the Prosecution filed an “Application for Limited Re-Opening of the Bosnia and Kosovo Components of the Prosecution Case” (“Application”), with a confidential Annex A entitled “Items for which the Prosecution Seeks a Limited Re-Opening of the Bosnia and Kosovo Components of the Prosecution Case” (“Application Annex”). An “Addendum and Clarification” to the Application was filed on 26 July 2005 (“Addendum”), in which the Prosecution presents additional information with regard to one of the documents listed in the Application Annex, corrects an error in the Application Annex, and requests that a document inadvertently omitted from its earlier filings be incorporated into the Application Annex and included in the Chamber’s consideration of the Application. The Application included a request that the Chamber order that the Notice be made inter partes, but ostensibly retain its confidential status. The Chamber will grant this request.
4. On 31 August 2005, Assigned Counsel filed their “Submissions in Response” to the Application (“Response”), along with a confidential Annex A (“Response Annex”) setting forth their detailed objections to the items for which the Prosecution seeks re- opening. The Assigned Counsel also request leave to file a response in excess of the page limits, noting that such length is necessary “in order to deal comprehensively with the issues raised and the extensive materials relied upon by the Prosecution ”.4 A Corrigendum to the Response was filed on 6 September 2005, and consisted of a single paragraph that is intended to correct assertions made in paragraphs 8 and 17 of the Response.
5. The Prosecution filed a Reply to the Response on 7 September 2005 (“Reply”), in which it also seeks leave to reply under Rule 126 bis. An addendum to the Reply was filed by the Prosecution on 9 September 2005 (“Reply Addendum”), but included no separate request for leave to file.
6. The Trial Chamber believes that its decision is aided by consideration of all the arguments raised and information provided by the parties. The Prosecution is therefore granted leave to file the Reply and the Reply Addendum, and the Chamber accepts the filing of the over-sized Response by the Defence.
7. Rule 85 of the Rules of Procedure and Evidence of the International Tribunal (“Rules ”), which governs the order of presentation of evidence in trial proceedings, provides in relevant part:
(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interests of justice, evidence at the trial shall be presented in the following sequence:
(i) evidence for the prosecution;
(ii) evidence for the defence;
(iii) prosecution evidence in rebuttal;
(iv) defence evidence in rejoinder;
(v) evidence ordered by the Trial Chamber pursuant to Rule 98; and
(vi) any relevant information that may assist the Trial Chamber in determining an appropriate sentence if the accused is found guilty on one or more of the charges in the indictment.
8. Although the Rules do not specifically so provide, the jurisprudence of the Tribunal recognises that a Trial Chamber may grant leave to the Prosecution to re-open its case “in order to present new evidence not previously available to it.”5
9. There are therefore two separate circumstances in which the Prosecution may seek to introduce further evidence after the close of its case in chief: it may seek to introduce evidence to rebut the defence case, and it may seek to introduce new evidence by re-opening its case in chief. Two different legal standards apply,6 and both the timing of the request and the substantive content of the evidence are factors in deciding whether the relevant standard is satisfied. Although the Application seeks only the re-opening of the Prosecution’s case in chief, and does not request rebuttal as an alternative form of relief, the Chamber considers that a brief discussion of both legal standards will clarify the issues for determination with regard to disposition of the Application and serve as guidance to the parties.
10. The Celebici Appeals Chamber formulated the standards that apply for each as follows. “Rebuttal evidence must relate to a significant issue arising directly out of defence evidence which could not reasonably have been anticipated”;7 where evidence is intended to establish a matter which is “a fundamental part of the case the Prosecution was required to prove”, however, “SsCuch evidence should be brought as part of the Prosecution case in chief and not in rebuttal.”8 Moreover, even if the evidence could not have been adduced earlier because it was not in the Prosecution’s possession during its case in chief, its character as newly obtained evidence does not render it admissible in rebuttal if it does not meet this standard. In the words of the Appeal Judgement, that character “merely puts it into the category of fresh evidence, to which a different basis of admissibility applies.”9
11. Elaborating on the basis applicable to such newly obtained evidence, the Appeals Chamber stated that “the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identified and presented in the case in chief of the party making the application.”10 By noting that “the burden of proving that reasonable diligence was exercised in obtaining the evidence lies on the Prosecution,”11 the Appeals Chamber affirmed the Celebici Trial Chamber, which had held that this burden “rests squarely” on the party seeking to adduce the evidence.12
12. Even if the reasonable diligence standard is satisfied, however, Trial Chambers retain a general discretion under Rule 89(D) to deny re-opening if the probative value of the proposed evidence is substantially outweighed by the need to ensure a fair trial.13 With respect to this weighing exercise, the Tribunal’s jurisprudence clearly establishes that “it is only in exceptional circumstances where the justice of the case so demands” that a Trial Chamber should exercise its discretion to allow the Prosecution to adduce ‘fresh’ evidence after the parties to a criminal trial have closed their case.14
13. Three factors have been identified in the jurisprudence as being “highly relevant to the fairness to the accused of admission of fresh evidence”,15 of which only the first two are applicable to this single-defendant case: (1) the stage of the trial at which the evidence is sought to be adduced; (2) the potential delay in the trial that admission of the evidence could cause, including the appropriateness of a possible adjournment in the overall context of the trial; and (3) the effect of bringing new evidence against one accused in a multi-defendant case.16 With regard to the first factor, following the Celebici Trial Chamber’s lead, subsequent decisions on motions to re-open have paraphrased or clarified “the advanced stage of the trial” as meaning “the later in the trial that the application is made the less likely the Trial Chamber is to accede to the request”.17
14. When assessing the current Application, therefore, the Trial Chamber has considered the following questions:
i. Was the evidence obtained after the close of the Prosecution’s case in chief (“newly obtained”)? If not, then the test for re-opening is inapplicable, and the evidence is inadmissible for the purpose of a re-opened case in chief. The Chamber’s conclusions with respect to this question are discussed below in Section IV of this Decision.
ii. If the evidence was newly obtained, could this evidence have been identified and presented, through the exercise of reasonable diligence, during the Prosecution’s case in chief? If so, then the evidence cannot be the basis for re-opening. The Chamber’s conclusions with respect to this question are discussed below in Section V of this Decision.
iii. If the evidence could not have been identified and presented through the exercise of reasonable diligence, should the Trial Chamber nevertheless exercise its discretion under Rule 89(D) to deny re-opening? The Chamber’s conclusions with respect to this question are discussed below in Section VI of this Decision.
15. For those items of evidence that were newly obtained, the Chamber has engaged in the two-stage inquiry required by the test for re-opening. First, the Prosecution’s submissions with regard to all the proposed items of evidence, which include the statements of those persons identified as prospective witnesses, were examined to determine whether the reasonable diligence standard had been satisfied. Any item that the Chamber determined could have been identified and presented during the Prosecution’s case in chief, through the exercise of reasonable diligence, was deemed to have failed this stage of the re-opening test. Second, the Chamber then considered the items for which the reasonable diligence standard had been satisfied, and weighed each item’s probative value against the potential detrimental effect that its admission as evidence in chief would have on the fairness of the trial. The Chamber’s conclusions with regard to all items discussed in Section IV of this Decision are unanimous. In Section V, the conclusions with regard to items 15, 27, 35, 37, 42, 46, 47, 48, 49, 50, 51, 52, 54, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 76, 77, 78, 82, 85, 86, and 87, and proposed witnesses B-345 and TA-378 are also unanimous ; the conclusions with regard to items 13 and 21 are reached by a majority of Judges Kwon and Bonomy; and the conclusions with regard to the other items in this Section are reached by a majority of Judges Robinson and Bonomy. The conclusions with regard to the items discussed in Section VI are unanimous.18 The interpretation of the legal standard of reasonable diligence in the context of this case that is included in Sections V represents the conclusions of a majority of the Chamber, Judges Robinson and Bonomy. Judge Kwon’s views on the reasonable diligence standard are set forth in a partial dissenting opinion appended to this Decision.
16. The Prosecution seeks the re-opening of its case in chief in order to present six new witnesses and fifty new documents.19 These witnesses and documents fall into five categories, which the Application asserts “relate to key issues in the Prosecution’s case”:20 a plan to ethnically cleanse Bosnia of its Muslim population dating from at least 1992; VJ involvement in the war in Bosnia between 1992 and 1995; MUP Serbia involvement in the Bosnia war between 1992 and 1995, including in the Srebrenica massacre; VJ personnel files of high ranking military officials involved in the wars in Bosnia ; and VJ involvement in the Racak massacre in 1999.
17. In the Application, The Prosecution describes its proposed witnesses and their expected testimony as follows:
One of these witnesses is B-235, a former VJ member who was on the witness list when the tragic circumstances of the ill-health of the Presiding Judge led to the Prosecution’s early completion of its case. The second witness, B-345, is a new witness who can explain the content of the Scorpions videotape, the purpose of the Scorpions unit in the area, and introduce all the videotape-related exhibits. The third witness, Slobodan Stojkovic, is the Scorpion unit member who filmed the Scorpions videotape. He can authenticate the content of the videotape and identify the perpetrators of the killings with absolute certainty. The fourth witness, Goran Stoparic, was denied permission to testify days before the Prosecution completed its case. … The fifth witness Sknown by the pseudonym TA-378C is a man who heard the killings of the Muslim prisoners as shown on the Scorpions videotape and participated in the removal of their bodies. The sixth witness is TA-377, the former commander of a VJ T55 tank platoon based in Urosevac/Ferizaj Kosovo. TA-377 has told members of the Prosecution that on 15 January 1999, his tank platoon took up a position on a hill overlooking the village of Racak, firing at the village.21
18. Witness statements for five of the six proposed witnesses are included as proposed items of evidence in the Application. For proposed witness TA-377, however, the only item of evidence offered by the Prosecution is the redacted notes of the investigator who interviewed TA-377, labelled in the Application as item 90. Moreover, the Application indicates that the Prosecution has not obtained TA-377’s agreement to testify in this case.22 In the view of the Chamber, item 90 is not an acceptable alternative to a formal witness statement, and is not susceptible to admission as evidence; furthermore, TA-377 cannot be treated as a possible witness in the context of an application to re-open in the absence of an express agreement to testify. For these reasons, the Chamber cannot apply the test for re-opening to this document and this proposed witness, and the Application is denied with regard to item 90 and proposed witness TA-377.
19. The documentary evidence can be sorted into the afore-mentioned five categories identified by the Prosecution as follows. The sole document in the first category,23 that of an alleged plan to ethnically cleanse Bosnia of its Muslim population, is part of a document collection obtained as part of the VRS Drina Corps Archive. The second category, that of alleged VJ involvement in the war in Bosnia, contains the remaining items from this document collection, as well as two citizenship certificates, an identity card, a certificate of promotion, a cable, and a document listing officers in the VRS and VJ.24 The third category, that of alleged MUP Serbia involvement in the war in Bosnia, includes three reports relating to MUP Serbia support to forces of the Autonomous Prosecution of Western Bosnia and Herzegovina (APWB) in the Bihac pocket, and two documents relating to the presence of Serbian MUP personnel in Trnovo.25 This category also includes the full length video recording of the Scorpions unit from which excerpts were played in court on 1 June 200526 and several related documents, including ten documents in a collection of forensic evidence related to the killings depicted in that video, four documents from a document collection relating to a domestic war crimes prosecution, and four items of evidence relating to the identification of victims depicted in the video by their relatives.27 The fourth category is limited to the VJ personnel files of high-ranking military officials.28 Item 90, with regard to which the Chamber has already denied the Application,29 was the only document contained in the fifth category.
20. The primary and logically first issue to be decided is whether the proposed evidence was newly obtained, and therefore susceptible to being the basis for a successful application to re-open. As noted above, under the Celebici test for re-opening, “the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identified and presented in the case in chief of the party making the application.”30 Both the Prosecution’s Notice of July 2004 and the introduction to the Application, however, concede that some of the material was obtained before the close of the Prosecution’s case in chief,31 a situation which would generally preclude re-opening.32 The Prosecution nonetheless argues that “the exclusion of some of the material could lead to a miscarriage of justice” and urges the Chamber to adopt some version of the standard for admitting evidence on appeal.33 The Prosecution reprises this argument in its Reply, when it notes that “StChe Trial Chamber’s discretion to admit evidence under the test set out by the Celebici Appeals Chamber falls within a wider discretion to admit evidence under Rule 89 (B), (C) and (D).”34 Ignoring both the language in the Celebici Appeals Judgement and the manner in which Chambers have applied the narrow test for re-opening, the Prosecution again urges the Chamber to adopt a ‘miscarriage of justice’ standard, ostensibly based on its “wider discretion”:
Within that wider discretion, the Trial Chamber could admit evidence which, with reasonable diligence, could have been discovered and/or presented during a party’s case in chief. Logically, a higher standard for admissibility should be set, namely exclusion of the evidence would lead to a miscarriage of justice.35
21. Although the Prosecution is correct in the sense that there are some circumstances in which Trial Chambers may admit evidence that could have been presented during a party’s case in chief, its assertion is incorrect in the context of a party’s application to re-open its case. Under the Celebici test, satisfaction of the reasonable diligence standard is a necessary—but not on its own sufficient—step for a successful re-opening application.36 As such, it may not be replaced by the “residual discretion” that the Prosecution mistakenly asserts as a standard directly applicable to its Application.37
22. The Prosecution’s attempt to confuse the applicable legal standards is inconsistent with both the jurisprudence and practice of the Tribunal. No other Trial Chamber has accepted a “miscarriage of justice” standard as a replacement for, or an alternative to, the well-established “reasonable diligence” standard for re-opening a case at trial, and the Trial Chamber notes that the Appeals Chamber specifically endorsed the latter standard for use at the trial level at the same time that it was developing its own jurisprudence on the applicable standard on appeal.38 Moreover, although analysis of the probative value of the proposed evidence is a factor in the test for re-opening, it is clearly distinguishable from the certainty that the evidence in question “would have” an effect on the verdict—the standard applicable on appeal39—because a probative value analysis neither invites nor requires an opinion on the ultimate question of an accused’s responsibility for the crimes charged. Finally, in the test for re-opening, reasonable diligence is a threshold inquiry: if a party cannot establish that the evidence could not have been obtained and presented during its case in chief, the application fails, and the Trial Chamber need not consider the probative value of the evidence.40
23. The Trial Chamber therefore holds that any proposed item of evidence that was in the Prosecution’s possession before the end of its case in chief, and which was therefore not newly obtained, cannot constitute a basis for re-opening. This conclusion applies not only to items that were not identified or presented because of some inadvertence or administrative oversight on the part of the Prosecution, but also to those items for which the Chamber specifically denied admission during the Prosecution’s case in chief. As a matter of law, despite the argument of the Prosecution to the contrary,41 it is irrelevant that the reason this latter category of evidence was not presented could be viewed as being beyond the control of the Prosecution. Application of the reasonable diligence standard—indeed, the entire exercise of re-opening a party’s case—is reserved for ‘fresh’ evidence, which by definition excludes any evidence already in the possession of the moving party during its case in chief. Such evidence is inappropriate as a basis for re-opening. Accordingly, the Application is denied with regard to the following items and witnesses: items 26, 31, 32, 69, 70, 71, 73, 74, and the unnumbered document discussed in the Addendum; and proposed witnesses B-235 and Goran Stoparic. In addition, as discussed below, much of item 64 is not appropriate for re-opening because it is not actually newly discovered evidence.42 A detailed discussion of the Chamber’s decision with regard to these items, as well as those discussed below in the context of the two stages of the test for re-opening, is set forth in the Confidential Annex to this Decision.
24. The next issue to be determined is whether the reasonable diligence standard has been met for the remaining prospective exhibits and witnesses. Only if it has, do probative value and the fairness of the trial fall to be considered. The Tribunal’s case law makes clear that the burden of proving that reasonable diligence was exercised is placed upon the party seeking to re-open its case.43 As the moving party, the Prosecution had two opportunities—the initial Application and the Reply—to provide information on its efforts to identify, locate, and obtain the items in question.44 In this regard, the Chamber notes that in responding to objections raised by Assigned Counsel, the Prosecution used its Reply to supplement its submissions on its efforts to obtain some of the proposed items of evidence.45
25. For several documents in the Application, the Prosecution reports no attempt to identify, locate, or obtain them until well after the start of its case on the relevant indictment, or close to the end of its case in chief. While the Chamber is cognisant of the difficulties that parties before the Tribunal face in investigating and preparing cases of such scope and complexity, it considers that a party seeking evidence intended for use in its case in chief should not wait until several months after the commencement of its case to begin the process of obtaining it. Such a delay, particularly if the party in question anticipates difficulty in securing the evidence,46 is inconsistent with the exercise of reasonable diligence.47 The Application is therefore denied with regard to items 30, 79, 80, 81, 83, 84, 88, and 89. The Chamber notes that the Prosecution’s submissions, though elliptical, indicate that it is possible that items 54, 56, 59, and 60 were not part of a document collection that was in the possession of the Prosecution before the end of its case in chief.48 Even if these documents were not in the hands of the Prosecution before 25 February 2004, however, it is clear that the category of documents to which they belong was not requested until December 2003. For the reasons set forth thus far in this paragraph, therefore, the Application is denied with regard to those items regardless of the date on which they were actually received by the Prosecution.
26. It is even clearer that the reasonable diligence standard is not satisfied where no attempt to locate or obtain the evidence in question was made until after the close of the party’s case, and no explanation for such delay is provided. Accordingly, the Application is denied with regard to items 15, 78, 82, 85, 86, and 87.
27. In contrast to those situations, however, where the party seeking re-opening was ignorant of the very existence of a proposed item of evidence until well into its case or after the close of its case, as long as such ignorance is reasonable under the circumstances, the party’s delay in commencing its efforts to obtain the evidence should not necessarily lead to the conclusion that it was not reasonably diligent. Similarly, in the unique circumstance where the proposed item of evidence is in the exclusive possession of an at-large accused, the Prosecution’s failure to make a separate or independent effort to secure the item does not mean that it was not reasonably diligent, particularly in light of its continued efforts to ensure that the accused is taken into custody. For these reasons, the Chamber is satisfied that items 13, 21, 37, 46, 47, 48, 49, 50, 51, 52, 57, 58, 61, 62, 63, 65, 66, 67, 68, 76, and 77, and proposed witnesses B-345 and TA-378 could not, with reasonable diligence, have been identified and presented during the Prosecution’s case in chief. With regard to item 64, the Chamber considers that only part of this witness statement is potential evidence that could not have been presented in the Prosecution’s case in chief. To the extent that the contents of this statement cover the same topics and present the same information as the first statement of Goran Stoparic, that proposed evidence is not newly discovered, and is inappropriate for re-opening. The second stage of the test for re-opening will therefore be applied only to the information in this statement that is actually newly obtained evidence.49 With regard to item 27, however, the Chamber concludes that the Prosecution’s professed ignorance of its existence was not reasonable under the circumstances, because the category within which the evidence falls by virtue of its source, its content, and its location is such that a reasonably diligent party would have discovered the item in time to present it during its case in chief. The Application is therefore denied with regard to this item.
28. In relation to a number of items, the Prosecution provides no information at all about its efforts to identify, locate, or obtain the proposed evidence, other than the date on which the item was eventually received. In the absence of such information, particularly the date on which the Prosecution first learned of the item’s existence or first requested its provision, the Chamber is unable to evaluate whether the Prosecution exercised reasonable diligence. Since the onus of demonstrating that this first stage of the re-opening test has been satisfied rests firmly on the moving party, where that party fails to provide sufficient information to permit a thorough evaluation of its application, the Chamber can only conclude that it has not discharged its burden. For these reasons, the Chamber denies the Prosecution’s request to re-open its case with regard to items 35, 42, and 75, and proposed witness Slobodan Stojkovic.
29. The last set of items consists of the documents that were obtained by the Prosecution as part of the VRS Drina Corps archive. In essence, the Prosecution’s argument that it had exercised due diligence with regard to these documents hinges upon the fact that it was dealing with recalcitrant government authorities, whose lack of co-operation during the case in chief hindered its ability to obtain documents.50 As the Prosecution itself points out, however, it has made extensive use of Rule 54 bis to compel the production of relevant information for this trial, and has also used requests for assistance both before and during the course of its case in chief.51 It does not appear, however, that any of these documents was ever the subject of Rule 54 bis litigation, and the Prosecution fails to explain why it did not resort to this procedural mechanism when confronted with a continued lack of co-operation. The Application is therefore denied with respect to items 1, 4, 16, 17, 18, 19, and 23, because the Prosecution has not met its burden of demonstrating that the reasonable diligence standard has been satisfied.
30. Similarly, for item 6, the Reply explains that the Prosecution made repeated Requests for Assistance for this item, but makes no mention of any attempt to compel production of the document through Rule 54 bis litigation. The Chamber notes the considerable gap between the two earliest requests for item 6 and the remaining requests that eventually led to the document’s provision to the Prosecution, and the lack of any explanation for the Prosecution’s apparent resignation to the authorities’ refusal to provide the document. If the reason for this gap was the Prosecution’s belief that such requests were futile because the authorities concerned would not answer them, it should have included this document among the material for which it sought compelled production under Rule 54 bis, or at very least explained in the Application why it made no resort to this mechanism.52 Although the Chamber recognises that Rule 54 bis should not be the first or only method relied upon by parties seeking evidence from states, it nevertheless concludes that, in the circumstances of this case, the Prosecution’s failure to take advantage of all the means available to it to obtain evidence, especially when confronted with what it viewed as the consistently obstructive behaviour of the authorities in question, cannot be considered the exercise of reasonable diligence.53 Accordingly, the Chamber denies the Application with regard to item 6.
31. After considering the Prosecution’s submissions in relation to the first stage of the re-opening test, the Chamber therefore concludes that the reasonable diligence standard has been satisfied for only 21 documents and one proposed witness: items 13, 21, 37, 46, 47, 48, 49, 50, 51, 52, 57, 58, 61, 62, 63, 65, 66, 67, 68, and 77, part of item 64, and proposed witness B-345.54
32. The Chamber need not, however, actually subject item 77 to the balancing test in the second stage of the re-opening analysis. When the Prosecution submitted the Application in mid-July 2005, no translations of any of the thirteen extensive personnel files were provided, so the Chamber would not have been able to conduct the analysis of that material’s probative value that is required by the second stage of the test for re-opening. Since that date, however, portions of several of the personnel files, along with the corresponding translations of the excerpts, have been tendered and admitted as Prosecution exhibits used in the cross-examination of a Defence witness.55 Since item 77 is among the limited group of personnel files from which translated excerpts have already been admitted, the Prosecution’s request to have it admitted as the basis for a re-opened case in chief is denied as moot.56
33. The Trial Chamber must now exercise its general discretion under Rule 89(D) to grant or deny the Application with respect to the remaining items for which the Prosecution demonstrated that the reasonable diligence standard has been satisfied: items 13, 21, 37, 46, 47, 48, 49, 50, 51, 52, 57, 58, 61, 62, 63, 65, 66, 67, and 68, part of item 64, and proposed witness B-345. In exercising that discretion, which requires weighing the probative value of the evidence against the need to ensure a fair trial, the Trial Chamber is mindful that “it is only in exceptional circumstances where the justice of the case so demands” that a party should be permitted to re-open its case to present new evidence.57
34. As Assigned Counsel note in their Response, “[t]he Prosecution’s application to re-open was filed on 18 July 2005, more than half-way through the Accused’s presentation of his case.”58 Assigned Counsel argue that granting the Application would breach the Accused’s fundamental fair trial rights in at least two respects. First, admitting a large amount of Prosecution evidence at an advanced stage of the trial would prejudice the Accused in the presentation of his case, because, “had the proposed documents and witness testimony been admitted prior to the start of the defence case, the Accused would have used his allotment of time differently”.59 Second, Assigned Counsel contend that the Prosecution’s submissions, and its estimate of how much additional time would be required to deal with the evidence if it were admitted, are “disingenuous and fail to take into account the fair trial rights of the Accused.”60 In their submission, delay would be caused not only by the fact that many more witnesses would be necessary to provide a sufficient basis for the admission of the items that are the subject of the Application,61 but also by the requirements of Article 21(4)(b) of the Statute, pursuant to which “the re-opening of the Prosecution’s case would inevitably necessitate an adjournment of the proceedings in order to allow the Accused time to investigate and prepare his case in relation to the new evidence presented.”62 Contrary to the Prosecution’s estimate of six days,63 Assigned Counsel submit that “SaC delay in the conclusion of the trial proceedings of at least three months is a realistic prospect.”64
35. The Prosecution’s arguments for the balancing test stage of the inquiry are limited to the submissions presented in the original Application; nothing in the Reply directly answers Assigned Counsel’s arguments in the Response. With regard to the advanced stage of the trial, the Application concedes that it was at a “relatively advanced stage” even in mid-July 2005, but merely notes that as the Accused had not yet completed the Kosovo portion of his case, “the evidence could be presented before the close of the Kosovo phase of the Defence case and before the Accused presents his first Bosnia-specific witness, thereby preserving his fair trial rights.”65 The Prosecution’s submissions with regard to delay and possible prejudice to the Accused are premised on the assumption that the Chamber would have issued a decision on the Application, which was filed on 18 July 2005, in time for the Accused and his legal team to “consider the material contained in this Application over the summer recess and adjust the presentation of his Defence case accordingly.”66 Although conceding that “[t]he Accused and Assigned Counsel should … be allowed to present their objections to the proposed documents”,67 the Application appears to envision that such objections would have been prepared in time for the Chamber to consider in the course of issuing its decision no later than four days after receiving the Application,68 or that the Chamber would have issued a decision granting the Application without waiting for the preparation and submission of responses from the Accused or Assigned Counsel.69 In sum, these arguments misapprehend the significance of the factors applied in the test for re-opening.
36. In light of the factors identified in the jurisprudence on re-opening and the submissions of the parties, the Chamber has weighed the following considerations against the probative value of each item for which the reasonable diligence standard is satisfied : the advanced stage of trial proceedings; the certainty that a delay, of whatever length, would be caused by the admission of the proposed evidence; and the probable extent of such a delay. In particular, the Chamber accepts neither the Prosecution’s estimate that only six additional hearing days would be necessary if the Application were granted with respect to all the items therein, nor its submission that no delay or adjournment would be caused by the admission of new documents. In the view of the Chamber, significantly longer would be required. With the possible exception of the witness statements for proposed witnesses, the Prosecution identifies no procedural basis for the admission of the numerous documents for which it also seeks re-opening. While the Trial Chamber has admitted documents that were not adduced through witnesses, it is not clear that the documents presented by the Prosecution would be admissible under the principles identified by the Trial Chamber in its earlier decisions,70 so it is possible that additional witnesses would be needed to authenticate these documents. Moreover, the Accused would need additional time to prepare a defence with regard to the new evidence, and would have the right not only to cross-examine Prosecution witnesses, but also to lead evidence in response to any evidence admitted as part of a re -opened case in chief.
37. In its seminal decision on the legal test for re-opening, the Celebici Trial Chamber held:
Great caution must be exercised by the Trial Chamber lest injustice be done to the accused, and it is therefore only in exceptional circumstances where the justice of the case so demands that the Trial Chamber will exercise its discretion to allow the Prosecution to adduce new evidence after the parties to a criminal trial have closed their case.71
Even though a showing of ‘exceptional circumstances’ is not a separate burden imposed upon the moving party,72 the term is a clear description of the context in which an application to re-open would be successful, and is intended to guide Trial Chambers’ exercise of their discretion. As such, this general principle is particularly relevant to the evaluation of probative value in the second stage of the re-opening test. Given the concern expressed in the Statute, the Rules, and the jurisprudence of the Tribunal for the Accused’s right to a fair and expeditious trial,73 the Chamber considers that the exceptional measure of re-opening the Prosecution’s case in chief for the admission of evidence that is certain to cause delay, at a late stage of a trial that began three and a half years before the Application was submitted, is warranted only where the probative value of the proposed evidence is particularly high. In the particular circumstances of this case, including the forms of responsibility alleged in the indictments74 and the extensive evidence relating to underlying offences already adduced during the Prosecution’s case in chief, the Trial Chamber is of the opinion that, in order to have sufficient probative value to be accepted as an appropriate basis for re -opening, the evidence proposed should have significant bearing on the individual criminal responsibility of the Accused. In addition, since this assessment of probative value occurs in the context of an application to admit new evidence, proposed evidence that is substantially similar in all important respects to evidence already admitted during the Prosecution’s case in chief will not warrant re-opening; the delay occasioned by its admission could not be substantially outweighed by whatever probative value such cumulative evidence could present.
38. For the reasons set forth in detail in the Confidential Annex, the Chamber concludes that none of the items for which reasonable diligence was established has sufficient probative value to warrant admission as the basis of a re-opened case in chief. Although most of the items have some probative value in relation to the underlying offences charged in the indictments, none is of significance for the ultimate legal question of whether the Accused is responsible for the crimes alleged in the indictments. None of the material proposed would add significantly to the existing evidence relating to the Accused’s individual criminal responsibility. The Prosecution’s request to re-open its case with regard to these items is therefore denied.
39. Pursuant to Rules 54 and 126 bis of the Rules of Procedure and Evidence of the International Tribunal (“Rules”), the Trial Chamber hereby unanimously ORDERS as follows:
i. The status of the Notice shall be changed from confidential and ex parte to confidential and inter partes;
ii. Assigned Counsel are granted leave to file the oversized Response; and
iii. The Prosecution is granted leave to file the Reply; and
iv. The Application is denied.
40. A separate opinion by Judge Kwon is attached to this Decision.
Done in English and French, the English text being authoritative.
Judge Patrick Robinson
Dated this thirteenth day of December 2005
At The Hague
[Seal of the Tribunal]