Case No. IT-98-29-A

IN THE APPEALS CHAMBER

Before:
Judge Theodor Meron, Presiding

Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Florence Ndepele Mwachande Mumba
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision:
21 March 2005

PROSECUTOR

v.

STANISLAV GALIC

______________________________________________

DECISION ON DEFENCE SECOND MOTION FOR ADDITIONAL EVIDENCE PURSUANT TO RULE 115

_____________________________________________

The Office of the Prosecutor:

Mr. Norman Farrell
Mr. Mathias Marcussen

Counsel for Stanislav Galic:

Ms. Mara Pilipovic
Mr. Stéphane Piletta-Zanin

 

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 (“Tribunal”), is seised of an application (“Second Motion”) by the Appellant Stanislav Galic (“Appellant”) for the admission as additional evidence on appeal of a letter (“Appellant’s Letter ”) dated 29 August 2003 and addressed to his counsel by the International Committee of the Red Cross (“ICRC”).1

  1. As a preliminary matter, it is necessary to set out the context in which the Second Motion was filed. On 5 December 2003, the Trial Chamber rendered its Judgement in the case of the Appellant.2 He was convicted of crimes against humanity (murder and inhumane acts) pursuant to Article 5 of the Statute and of violations of the laws or customs of war (acts of violence the primary purpose of which is to spread terror among the civilian population, as set forth in Article 51 of Additional Protocol I to the Geneva Conventions of 1949) pursuant to Article 3 of the Statute. He was sentenced to a single sentence of twenty years’ imprisonment.3

  2. The Trial Chamber found that provisions of Additional Protocol I were applicable to the case before it, and, as shown, convicted the Appellant on this basis. The Trial Chamber reasoned that the parties to the conflict, by virtue of an agreement entered into under the auspices of the ICRC (“22 May 1992 Agreement”, “Agreement ”), had agreed to bring into force, inter alia, Articles 35 to 42 and 48 to 58 of Additional Protocol I.4 The Trial Chamber then went on to find that the 22 May 1992 Agreement had been validly concluded:

    [t]he Trial Chamber, being obliged ex officio to satisfy itself of the validity of this agreement as a source of applicable law, takes account of the fact that, in its letter dated 12 June 1995 addressed to the then Prosecutor of the Tribunal, Richard Goldstone, the ICRC confirmed that the formal conditions required for the entry into force of this agreement had been fulfilled.5

    The accompanying footnote referred to that letter with the following words: “Letter dated 12 June 1995, para. A (DDM/JUR 95/931 MSS/RBR). Copy available at ICTY Library ”.6 The present decision will refer to this letter as “Goldstone’s Letter”, in order to distinguish it from the Appellant’s Letter.

  3. The Appellant is now applying to have the Appellant’s Letter admitted as additional evidence on appeal. The ICRC sought in it to answer the following enquiries that had been formulated by counsel for the Appellant: (i) whether the parties to the 22 May 1992 Agreement had, in accordance with the Agreement’s provisions for coming into force, formally transmitted their acceptance to the ICRC and (ii) if so, when. It appears from the Appellant’s Letter that the ICRC enclosed with it copies of two letters of acceptance received from the Presidency of the Republic of Bosnia and Herzegovina and from the Serbian Republic of Bosnia and Herzegovina. The ICRC also stated that (i) this was all the information it could provide in conformity with its confidential working method and (ii) in any event the ICRC expressed no legal opinion as to whether or not the Agreement of 22 May 1992 did or did not enter into force.

  4. The procedural background to the Second Motion is as follows. The Prosecution had earlier applied to have passages from the Appellant’s submissions on appeal struck off on the ground that they delved into the Appellant’s Letter for the purposes of refuting a finding of fact made by the Trial Chamber.7 The Appellant’s Letter was not part of the trial record in this case. In its Decision to Strike, the Appeals Chamber ruled that if the Appellant wanted to make use of the Appellant’s Letter on appeal, he must apply to have it admitted pursuant to Rule 115 of the Rules of Procedure and Evidence.8 In so doing, it also instructed the Appellant to show good cause for filing a Rule  115 application outside the prescribed time-limit.9 Rule 115 establishes that an application for the admission of additional evidence on appeal shall be “filed with the Registrar not later than seventy-five days from the date of the StrialC judgement unless good cause is shown for further delay”. The practice in this case is that those seventy-five days are counted from the date that the French translation of the Trial Judgement was filed.10

  5. According to the established jurisprudence of the Appeals Chamber, “the good cause requirement ?in Rule 115g 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.”11 In the Second Motion, the Appellant seeks to explain the reasons for the delay in making his application pursuant to Rule 115. The Appeals Chamber has had difficulty in understanding his submissions in this regard.12 The Appellant submits that, given that he received the Appellant’s Letter on 3 September 2003, he was not able to file the Second Motion within seventy-five days from 5  April 2004, the date he purportedly received the French translation of the Trial Judgement.13 This argument is evidently inapposite. It is apparent from his submissions that the Appellant’s Letter was available to the Appellant even prior to the rendering of the Trial Judgement. The arguments advanced by the Appellant do not demonstrate good cause.14

  6. The Prosecution, however, does not object to the late filing of the Second Motion on account of the fact that the Appellant filed it promptly after he received the Decision to Strike, which disproved his misconception that the Appellant’s Letter need not be treated in accordance with the procedure on admission of additional evidence.15 In its Decision to Strike, the Appeals Chamber ruled that “the ?Appellant’sg Letter is intended to refute a finding of fact made by the Trial Chamber and is additional evidence intended to prove a fact not proved at trial, ?andg it is therefore subject to admission pursuant to Rule 115”.16

  7. The Appeals Chamber considers that (i) the fact that the Prosecution does not oppose the late filing, (ii) the Appellant’s apparently genuine misunderstanding regarding whether the Appellant’s Letter was subject to Rule 115, and (iii) the fact that the Prosecution was not prejudiced by the delay, taken together, constitute good cause within the meaning of Rule 115.17 Accordingly, the Second Motion is recognised as validly filed. Nevertheless, the decision on this point is a very narrow one, and does not go to say that an applicant can seek to circumvent the time-limit prescribed by Rule 115 by adducing misunderstanding of the law.

  8. In its Response to the Second Motion, the Prosecution maintains that the Appellant’s  Letter is inadmissible pursuant to Rule 115, among other reasons, because he has not established that it was unavailable to him at trial with the exercise of due diligence.18 Although the Appellant sought to reply, he did not do so within the time-limit prescribed in the relevant Practice Direction and, furthermore, neither requested an extension of time to file his reply nor was given leave to file his request outside the time-limit.19 Accordingly, his reply was not validly filed and the Appeals Chamber has not taken it into consideration.

  9. In accordance with Rule 115 and with the jurisprudence of the Appeals Chamber, in order to have additional evidence admitted on appeal, the party submitting such evidence is required to establish that the evidence itself was not available at trial in any form,20 and that it could not have been discovered through the exercise of due diligence, which means that the party seeking its admission must show, inter alia, that it made 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”.21

  10. The Appellant does not dispute that the Appellant’s Letter was available to him at trial.22 Instead, he submits that there are reasons why he did not tender it into evidence. These reasons can be briefly set out as follows. The Appellant submits that the validity of the 22  May 1992 Agreement was not an issue raised during the trial.23 With the exception of the Agreement itself, no other evidence going to establish its validity was submitted at trial.24 The issue of the Agreement’s validity was only raised at the rendering of the Trial  Judgement, in which the Trial Chamber, ex officio, established the validity of the Agreement on the basis of Goldstone’s Letter, which was not itself part of the trial record.25

  11. These submissions can be answered briefly. The Appeals Chamber cannot agree that the validity of the 22 May 1992 Agreement was not an issue raised during the trial. After closing arguments, on 9 May 2003, the Trial Chamber questioned the Prosecution and the Appellant as to whether the parties to the conflict had transmitted their formal acceptance of the Agreement to the ICRC, in accordance with the Agreement’s provisions for coming into force. The Prosecution answered as follows:

    Mr. President, we have no evidence of the transmittal of formal acceptance to the ICRC. We do of course have evidence based on this document that the parties agreed to these terms but we simply do not at this point have evidence before this Trial Chamber that in fact this purely technical issue of transmitting the agreement to the ICRC by the 26th of May actually happened.26

    All this time, however, there was Goldstone’s Letter, which is dated 12 June 1995 and which was addressed to the first Prosecutor of the Tribunal, but which the Prosecution did not tender into evidence for reasons unknown.

  12. The Appellant for his part stated:

    Mr. President, the Defence has some doubt [...] So it is an open question and it is not for the Defence to respond to it. Thank you.27

    The Appellant addressed his letter to the ICRC enquiring about these matters shortly after this exchange.28 He received the Appellant’s Letter on 3 September 2003, three months in advance of the Trial Judgement being issued, but he did not tender it into evidence.

  13. To the Appellant’s concession that the Appellant’s Letter was available to him at trial, the Prosecution responds that “[a] party to the proceedings is not entitled to simply await the trial judgement and then, if dissatisfied with the result, seek to file additional evidence on appeal that was in his or her possession prior to the pronouncement of the verdict”.29

  14. The Appeals Chamber is aware that whether evidence was available or not during trial is of importance because it affects the standard for admissibility of evidence proffered pursuant to Rule 115. Evidence which was not available at trial and could not have been discovered through the exercise of due diligence must be relevant to a material issue, credible and such that it could have had an impact on the verdict.30 Where the moving party cannot establish that the proffered evidence was unavailable at trial and could not have been discovered through the exercise of due diligence, the moving party is required to undertake the additional burden of establishing that the exclusion of the additional evidence would lead to a miscarriage of justice, in that if it had been available at the trial it would have affected the verdict.31

  15. The Appeals Chamber is satisfied that the information contained in the Appellant’s Letter was available to the Appellant at trial. It is also aware that the “appeal process is not designed for the purpose of allowing parties to remedy their own failings or oversights during trial”.32 Still, the Appeals Chamber considers that it is necessary to distinguish this case from cases where the moving party did not put evidence before the Trial Chamber through lack of due diligence.33 As will become apparent, what distinguishes this case is that the Trial Chamber relied, ex officio and for the purposes of determining the applicable law, on a document that had not been admitted in evidence and was therefore not part of the trial record.

  16. An accused is entitled by Article 21(3) of the Statute to a presumption of innocence. This presumption places the burden of establishing the guilt of the accused upon the Prosecution. In accordance with Rule 87(A), the Prosecution must establish the accused’s guilt beyond reasonable doubt.34 An accused and his counsel cannot be faulted for having held the Prosecution to its burden at trial. In this case, Goldstone’s Letter had not been introduced in evidence. Even if the Appellant was in possession of the Appellant’s Letter prior to the rendering of the Trial Judgement, he cannot be faulted for holding the Prosecution to its burden by choosing not to introduce it into evidence, because the absence of Goldstone’s Letter from the trial record meant that there was on this point no Prosecution evidence for him to rebut. To require him to do so would have the perverse effect of reversing the burden of proof at trial.

  17. Nonetheless, the unavoidable conclusion is that in this case the evidence in question was available at trial. The prohibition imposed on a party by Rule 115( A) to adduce “evidence that was available to it at trial means that the party must put forward its best possible case at trial and cannot hold back evidence in reserve until the appeal”.35 The application of the higher threshold (that the exclusion of the additional evidence would lead to a miscarriage of justice) to evidence that was available at trial is warranted by the interest in the finality of decisions.

  18. The question that remains, therefore, is whether the Appellant has discharged the additional burden of establishing that the exclusion of the additional evidence would lead to a miscarriage of justice, in that if it had been available at the trial it would have affected the verdict. The Appellant has not expressly relied on the miscarriage of justice exception. He submits that the Appellant’s Letter should be admitted as additional evidence because it concerns whether the 22 May 1992 Agreement was ratified and therefore whether it was valid, which was determinative for the Trial Chamber’s finding that Additional Protocol I constituted the applicable law.36 In his view, the statement in the Appellant’s Letter that “the ICRC expresses no legal opinion as to whether or not the Agreement […] did or did not enter into force” directly contradicts what is stated in Goldstone’s Letter. The latter contains the following statement: “[y]ou can be assured that wherever such an agreement states that for it to enter into force it needs a subsequent act of ‘ratification’ or formal acceptance by the parties, the ICRC was later informed of the necessary acceptance and the agreement therefore entered into force”. According to the Appellant, the Appellant’s Letter demonstrates that the ICRC is not competent to express an opinion on whether the Agreement entered into force, and therefore that as a result Goldstone’s Letter should not have been the basis for the Trial Chamber’s finding that the Agreement was valid.37 The Appellant also submits that, since Goldstone’s Letter was not part of the trial record but was instead relied on ex officio by the Trial Chamber, he did not have the opportunity to challenge its content at trial.38

  19. The Prosecution responds that the Appellant has not shown that an exclusion of the proffered evidence would lead to a miscarriage of justice, because the refusal in 2003 of the ICRC to express an opinion about the validity of the Agreement does not establish that the opinion it expressed on this issue in 1995 and which is contained in Goldstone’s Letter was incorrect, nor does it undermine the documentation subsequent to the Agreement relied on by the Trial Chamber that suggests that the parties considered they were bound by the Agreement.39

  20. The Appeals Chamber has examined the additional evidence proffered in the context of the evidence that was presented at trial and not in isolation.40 It has also considered that the Appellant’s Letter states that the ICRC expresses no legal opinion as to whether or not the Agreement entered into force,41 and that it highlights that this information is being provided at the discretion of the ICRC.42 The Appeals Chamber is satisfied that, for the reasons outlined by the Prosecution and referred to above, the Appellant’s Letter is not evidence which would have affected the verdict, and its exclusion would not lead to a miscarriage of justice. The Appeals Chamber finds therefore that the evidence put forward by the Appellant in the Second Motion does not meet the requirements of Rule 115.

    FOR THE FOREGOING REASONS, HEREBY DISMISSES the Second Motion.

 

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

__________________
Judge Theodor Meron
Presiding Judge

Dated this 21st day of March 2005,
At the Hague,
The Netherlands

[Seal of the Tribunal]


1 - Defence Request for Admission of Further Additional Evidence on Appeal, 7 December 2004.
2 - Prosecutor v Galic, Case IT-98-29-T, Judgement and Opinion, 5 December 2003 (“Trial Judgement”).
3 - Trial Judgement, para. 769.
4 - Trial Judgement, para. 22.
5 - Trial Judgement, para. 23.
6 - Trial Judgement, footnote 31.
7 - See Prosecution Motion to Strike Portions of Appellant’s Appeal Brief, Book of Authorities and Reply Brief, 29 October 2004, p. 3.
8 - Decision on Prosecution’s Motion to Strike Portions of Appellant’s Appeal Brief, Book of Authorities and Reply Brief, 3 December 2004 (“Decision to Strike”), page 4; see also Rule 127.
9 - Decision to Strike, disposition.
10 - See Decision on Request for Extension of Time to file Notice of Appeal, 22 December 2003; see also Order on Appellant’s Confidential Motion to Present Additional Evidence before the Appeals Chamber under Rule 115, 2 February 2005, p. 3. The Appeals Chamber has verified that the French translation of the Trial Judgement was filed on 7 April 2004. The Appellant submits at para. 10 of the Second Motion that he received it on 5 April 2004. Notwithstanding this submission, the time-limit for the filing of the Second Motion will be calculated from the official date of filing of the French translation of the Trial Judgement, i.e.: 7 April 2004.
11 - Prosecutor v Kordic and Cerkez, Case No. IT-95-14/2-A, Decision on Prosecution’s Motion to Admit Additional Evidence in Relation to Dario Kordic and Mario Cerkez, 17 December 2004, p. 2.
12 - See Second Motion, paras 10-12.
13 - Second Motion, para. 10.
14 - Considering that 7 April 2004 was the date of filing of the French translation of the Trial Judgement, the Second Motion should have been filed no later than 21 June 2004. It was instead filed on 7 December 2004, rendering it 169 days late.
15 - Response to Defence Request for Admission of Further Additional Evidence on Appeal, 17 December 2004 (“Response”), paras 10-13.
16 - Decision to Strike, p. 3.
17 - See Prosecutor v Momir Nikolic, Case IT-02-60/1-A, Public Redacted Version of the Decision on Motion to Admit Additional Evidence, 9 December 2004, para. 16
18 - Response, para. 17.
19 - See Reply to Prosecution’s Response dated 17 December 2004, 23 December 2004; see also Practice Direction on Procedure for the filing of Written Submissions in Appeal Proceedings before the International Tribunal, IT/155 Rev.1, 7 March 2002, para. 12. In the meantime and since the filing of the Second Motion, this Practice Direction has been revised: see further Practice Direction on Procedure for the filing of Written Submissions in Appeal Proceedings before the International Tribunal, IT/155 Rev.2, 21 February 2005, para.14. The time-limit for filing a reply remains the same, i.e.: 4 days.
20 - See Rule 115(B); see also Prosecutor v Krstic, Case IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (“Krstic Subpoenas Decision”), para. 4.
21 - Prosecutor v Tadic, Case IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, paras 40, 44-45, 47; Prosecutor v Kupreskic et al, Case IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic Appeal Judgement”), para. 50.
22 - Indeed, he concedes that he received the Appellant’s Letter on 3 September 2003, i.e.: prior to the rendering of the Trial Judgement. See Second Motion, para. 10.
23 - Second Motion, para. 13.
24 - Second Motion, para. 15.
25 - Second Motion, para. 16.
26 - Transcript of hearing of 9 May 2003, T 21971.
27 - Transcript of hearing of 9 May 2003, T 21967, 21972.
28 - This letter, signed by counsel for the Appellant, was filed with the Appeals Chamber on 22 December 2004. It is dated 5 June 2003.
29 - Response, para. 20.
30 - Kupreskic Appeal Judgement, para. 68; Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003, (“Blaskic Evidence Decision”), p. 3; Prosecutor v. Dario Kordic and Mario Cerkez, Case No. IT-95-14/2-A, Decision On Appellant Mario Cerkez’s Rule 115 Application For Admission Of Transcript Of Witness Ba2, 16 April 2004, (“Kordic Additional Evidence Decision”), para. 4.
31 - See Prosecutor v Stanisic and Simatovic, Cases IT-03-69-AR65.1, IT-03-69-AR65.2, Decision on Prosecution’s Application Under Rule 115 to Present Additional Evidence in its Appeal Against Provisional Release, 11 November 2004, para. 8; Krstic Subpoenas Decision, para. 16; Prosecutor v Delic, Case IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002, (“Delic Review Decision”), para. 15 (although the decision specifically dealt with the review procedure pursuant to Rule 119, the Appeals Chamber noted its similarity with the procedure for admissibility of evidence pursuant to Rule 115 at para. 10); Blaskic Evidence Decision, p. 3; Kordic Additional Evidence Decision, para. 4.
32 - Delic Review Decision, para. 15 (referring to Prosecutor v Kupreskic et al, Case IT-95-16-A, Redacted Version of Decision on Motions of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran Kupreskic and Mirjan Kupreskic to Admit Additional Evidence, 30 May 2001 (“Kupreskic et al Rule 115 Decision”), para. 15).
33 - See Delic Review Decision, para. 15, and accompanying footnote 36: “the Appeals Chamber has stated that, where there has been gross negligence on the part of counsel in relation to the conduct of the trial, an accused will be permitted to raise the consequences of that conduct on appeal, but these statements should not be interpreted as restricting the power of the Appeals Chamber to take account of the conduct of counsel to instances of gross negligence. Current international humanitarian jurisprudence appears to support an appellate interference wherever either the new fact (for Rule 119) or the additional evidence (for Rule 115) is of such nature that its exclusion would lead to a miscarriage of justice, without any limitation to the situation where counsel has been grossly negligent.”
34 - Prosecutor v Vasiljevic, Case IT-98-32-T, Judgement, 29 November 2002, para. 12.
35 - Kupreskic et al Rule 115 Decision, para. 15; see also Delic Review Decision, para. 15 (where it was held at para. 10 that the requirements of due diligence applicable to the admissibility of evidence pursuant to Rule 115 and to the review procedure pursuant to Rule 119 are the same): “[a] party is required to put forward his best possible case at the trial, and he is not permitted to hold back evidence in reserve for use in an appeal is he is unsuccessful at the trial”.
36 - Second Motion, paras 12, 13.
37 - Second Motion, paras 23-26.
38 - Second Motion, para. 22.
39 - Response, para. 28.
40 - See Prosecutor v Kupreskic et al., Redacted Version of the Decision on the Admission of Additional Evidence following Hearing of 30 March 2001, 11 April 2001, para. 8; Momir Nikolic v Prosecutor, IT-02-60/1-A, Public Redacted Version of Decision on Motion to Admit Additional Evidence, 9 December 2004, para. 25.
41 - Appellant’s Letter, p.1.
42 - Appellant’s Letter, p. 2.