Case No. IT-04-84-AR65.2

IN THE APPEALS CHAMBER

Before:
Judge Liu Daqun, Presiding
Judge Mohamed Shahabuddeen
Judge Andrésia Vaz
Judge Theodor Meron
Judge Wolfgang Schomburg

Registrar:
Mr. Hans Holthuis

Decision of:
3 March 2006

The Office of the Prosecutor:

Mr. Stephan Waespi
Mr. Gilles Dutertre
Mr. Phillippe Vallieres-Roland

Counsel for the Accused:

Mr. Ben Emmerson Q.C., Mr. Rodney Dixon, Mr. Conor Gearty and Mr. Michael O’ Reilly for Ramush Haradinaj
Mr. Gregor Guy-Smith for Idriz Balaj
Mr. Richard Harvey for Lahi Brahimaj

1. 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 (“Appeals Chamber” and “International Tribunal” respectively) is seized of the “Defence Application Under Rule 115 to Present Additional Evidence on Appeal Against the Trial Chamber’s Decision of 3 November 2005 Denying Provisional Release to the Accused Lahi Brahimaj” filed confidentially on 15 November 2005 (“Rule 115 Motion”), by Lahi Brahimaj (“Appellant”), in which he seeks the admission of additional evidence in his interlocutory appeal.
   PROCEDURAL BACKGROUND

2. The “Prosecution’s Response to Defence Application Under Rule 115 to Present Additional Evidence on Appeal Against the Trial Chamber’s Decision of 3 November 2005 Denying Provisional Release the Accused Lahi Brahimaj [sic] and Prosecution Application to Present Rebuttal Material Under Rule 115 With Annexes A-C” was filed confidentially on 25 November 2005 (“Response”). The Prosecution submits that were the Appeals Chamber to grant the Rule 115 Motion and admit the three pieces of proposed evidence, in particular Exhibit 1 and Exhibit 2, the Prosecution will seek, by way of rebuttal under Rule 115(A) of the Rules of Procedure and Evidence of the International Tribunal (“Rules”),¹ to apply for the admission of rebuttal material.² The Prosecution also requests leave to exceed the word limit for the Response by 866 words, on the basis that this submission is not only a response to the Appellant’s Rule 115 motion, but also contains an application for leave to present rebuttal material.³

3. The “Reply by Defence of Lahi Brahimaj to Prosecution’s Response to Defence Application Under Rule 115 to Present Additional Evidence on Appeal Against the Decision by the Trial Chamber of 3 November 2005 Denying Provisional Release to the Accused Lahi Brahiamj and Opposition to Prosecution Application to Present Rule 115 Rebuttal Material Under Annex A” was filed confidentially on 2 December 2005 (“Reply”).

4. On 16 September 2005, the Appellant filed confidentially, the “Defence Motion on Behalf of Lahi Brahimaj for Provisional Release” (“Initial Motion”) requesting the Appellant’s provisional release pending his trial. The Appellant submitted, along with the Initial Motion, a personal statement in which he proposed to resume previously-initiated university studies if granted provisional release.⁴ Moreover, in connection with this “Initial Motion”, on 11 October 2005, UMNIK official Søren Jessen-Petersen submitted to the Registrar of the International Tribunal a letter which promised that UNMIK “would be able to monitor Mr. Brahimaj’s movements and activities” should the Trial Chamber grant provisional release, which also explained that UNMIK “would arrest him for breaching the terms and conditions” of his provisional release, and which did not object to the Appellant’s request for provisional release.

5. In response to the Initial Motion, on 17 October 2005, the Prosecution filed confidentially the “Réponse du Procureur à la Demande de mise en liberté provisoire déposée par Monsieur Brahimaj le 16 septembre 2005 avec les annexes A-R”, in which it opposed the Appellant’s request for provisional release (“Initial Response”).⁵ In the Initial Response the Prosecution argued, inter alia, that “the Accused provid[ed] no information on” the feasibility of his proposed university studies, and that he had to provide proof of earlier enrollment or proof that that it was still possible to enroll for the coming year.⁶ The Prosecution also said that it would file a letter in which UNMIK, referring to certain documents that it had provided to the Prosecution, explained that it could not assent to the Prosecution’s request to file the documents with the Trial Chamber.⁷ The Prosecution then asserted: a) that the documents at issue “alleg[ed] that the Accused intimidated some witnesses”, b) that UNMIK would not permit the documents to be filed because some victims of threats and intimidation might be identifiable,⁸ and that c) UNMIK’s concern “illustrate[s] the danger posed by the Accused.”⁹ In the Initial Reply, the Appellant urged the Trial Chamber not to infer from UNMIK’s concerns about document disclosure that he might endanger witnesses.¹⁰ The Appellant also told the Trial Chamber that “the Defence is making efforts to obtain assurances from the University of Pristina of its willingness to readmit him as a student.”¹¹

6. On 3 November 2005, Trial Chamber II (“Trial Chamber”) rendered the “Decision on Lahi Brahimaj’s Motion for Provisional Release” (“Impugned Decision”), in which it denied the Initial Motion, finding that the Appellant had not discharged his burden of proving that if released, he would appear for trial and would not pose a danger to any victim, witness or other person.¹² Denying the Initial Motion, the Trial Chamber considered, inter alia, “the vagueness of the accused’s plans”.¹³ The Trial Chamber also explained that it could not “completely disregard” the Prosecution’s allegation “that the Accused threatened or exercised pressure on victims or potential witnesses”.¹⁴

7. The Appellant has filed an interlocutory appeal against the Impugned Decision.¹⁵ The Rule 115 Motion seeks the admission of additional evidence which is intended to challenge the findings in the Impugned Decision, support the Appeal and supplement the evidence annexed therein.
   REQUEST FOR EXTENSION OF PAGE LIMIT

8. The Appeals Chamber notes the Prosecution’s request for leave to exceed the word limit for the Response by 866 words, on the basis that this submission is not only a response to the Appellant’s Rule 115 motion, but also contains an application for the presentation of rebuttal of material.¹⁶ The Appeals Chamber reminds the Prosecution that, in accordance with paragraph seven of the Practice Direction on the Length of Briefs and Motions,¹⁷ a party must seek authorization in advance from the Appeals Chamber to exceed the prescribed word limits.¹⁸ That being said, paragraph five of the Practice Direction IT/184/Rev.2 provides that motions and responses related to Rule 115 proceedings will not exceed 9000 words and motions related to Rule 115 rebuttal material will not exceed 3000 words. Considering that the Response consists of a total of 3866 words, the Appeals Chamber finds that the Prosecution is well within the page limit and as such, the request for an increase in the word limit is moot.
   APPLICABLE LAW

9. A party seeking to have additional evidence considered in the determination of a provisional release interlocutory appeal, should do so by way of a motion requesting the admission of additional evidence pursuant to Rule 115 of the Rules.¹⁹ While Rule 115 speaks in terms of appeals from judgment, it applies equally to appeals from Trial Chamber decisions on provisional release.²⁰ Therefore the Appeals Chamber considers that the Rule 115 Motion is properly filed by the Appellant in support of his Appeal under Rule 65 of the Rules.

10. Pursuant to Rule 115 of the Rules and in accordance with the jurisprudence of the Appeals Chamber, the party submitting additional evidence on appeal ordinarily must demonstrate that such evidence, was not available at trial in any form,²¹ and that it could not have been discovered through the exercise of due diligence.²² In this respect, the moving party must provide a reasonable explanation as to why the evidence submitted was not available at trial²³ and must demonstrate that due diligence had been exercised at trial.²⁴ A party seeking to show that evidence could not have been discovered through the exercise of due diligence 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”.²⁵

11. Whether evidence was available during proceedings before the Trial Chamber is of importance because it affects the standard for the admissibility of evidence proffered pursuant to Rule 115.²⁶ Evidence which was not available during proceedings before the Trial Chamber and could not have been discovered through the exercise of due diligence must be relevant to a material issue, credible (i.e. capable of belief or reliance) and such that it could have had an impact on the verdict.²⁷ Where the moving party cannot establish that the proffered evidence was unavailable during proceedings before the Trial Chamber and could not have been discovered through the exercise of due diligence, it 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.²⁸
    SUBMISSIONS OF THE PARTIES AND DISCUSSION
    Material Submitted Pursuant to Rule 115

12. The Appellant seeks the admission of three documents attached to the Rule 115 Motion. Exhibit 1 is an affirmation of Mr. Richard Harvey, lead counsel for the Appellant dated 15 November 2005.²⁹ It details the events relating to a recent trip to Kosovo that he undertook in order to investigate matters relating to the Rule 115 Motion. Exhibit 2 is a letter dated 9 November 2005, signed by Mr. Richard Harvey and addressed to Mr. Søren Jessen- Petersen, the Special Representative of the Secretary General (“SRSG”) and Head of the United Nations Interim Administration Mission in Kosovo (“UNMIK”) requesting a meeting with him to clarify alleged contradictions relating to the Appellant’s provisional release.³⁰ Exhibit 3 is a letter dated 10 November 2005, signed by Professor Dr. Selim Daci, Dean of the Faculty of Philosophy at the University of Pristina confirming that the Appellant is a student at the University of Pristina.³¹
    Availability of the material

13. The Appellant submits that the three documents are new in that they were not available to the counsel for the Appellant (“Defence”) at the time of filing the Initial Motion and could not have been obtained through the exercise of due diligence before the Trial Chamber issued the Impugned Decision.³² The Appellant submits that the Defence was unable to provide documentary proof of his academic status without first visiting Pristina and making contact with the appropriate academic officials, but that this was not possible prior to the week beginning on 7 November 2005 due to other professional commitments.³³ He further submits that both categories of proposed evidence are relevant to a material issue and credible.³⁴

14. The Prosecution argues that the Appellant has not demonstrated that it exercised due diligence during the proceedings before the Trial Chamber in collecting the evidence and that the proposed evidence lacks probative value.³⁵ More specifically, the Prosecution does not dispute that Exhibit 1 was not available during the proceedings before the Trial Chamber, but argues that it does not meet the requirements of Rule 115 since its probative value is minimal and only confuses the issue.³⁶ It also submits that the Appellant has not shown that he exercised due diligence in relation to Exhibit 3 and Exhibit 1.³⁷ The Prosecution submits that the Appellant’s recent efforts resulting in the proposed Defence exhibits, appear to indicate that it would have been easy for the Appellant to acquire the necessary information at the time of the filing of the Initial Motion.³⁸ The Prosecution further submits that nothing prevented the Appellant from first collecting all the necessary information and only then, filing his Initial Motion.³⁹

15. In reply, the Appellant submits that he was not privy to the UNMIK documents referred to by the Prosecution in its Initial Response, and that he had no reason at that stage to impugn the credibility of the Prosecution’s claims, made in the Initial Response, to the effect that UNMIK believed he was involved in witness intimidation.⁴⁰ Further, the Appellant submits that he was not in a position to obtain clarification of UNMIK’s position before the Impugned Decision was issued, and that he expected the Trial Chamber to hold a hearing which would address UNMIK’s views about the Appellant’s alleged involvement in witness intimidation.⁴¹ The Appellant also submits that contrary to the Prosecution’s assertion, it was not easy for the Defence to acquire the information contained in Exhibit 3 at the time of filing the Initial Motion, and he further contends that the Appeals Chamber should take into account the stage of the proceedings during which the Trial Chamber made its ruling as well as the resources available to the Defence.⁴²

16. The Appeals Chamber is aware that none of the three exhibits existed at the time the Impugned Decision was rendered, so they were obviously not “available” in a literal sense. The question for the Appeals Chamber is, however, whether the Appellant could, by exercising due diligence, have obtained the information contained in them at an earlier date. Exhibit 1 recounts information received in a meeting held after the Impugned Decision was issued, and was filed 12 days after the latter was rendered.⁴³ Thus, this information was not available for presentation to the Trial Chamber. As to whether the information contained in Exhibit 1 could have been discovered through the exercise of due diligence, the Appeals Chamber notes the Appellant’s argument that the Defence was not privy to the contents of the UNMIK documents referred to.⁴⁴ Exhibit 1 recounts information received in a meeting held in Pristina after the Impugned Decision was rendered, and which could not reasonably have been held between the time the Initial Response made the Appellant aware of the documents discussed at the meeting and the time that the Impugned Decision was rendered. Considering the particular circumstances of this case and considering further that Exhibit 1 relates to allegations made by the Prosecution⁴⁵ contained in documents that are, to date, still not publicly available⁴⁶ and therefore not available to the Defence and which could not reasonably and with due diligence have been obtained before the Impugned Decision was issued, taking into account the traveling involved, the Appeals Chamber finds that the information in this exhibit regarding the meeting with UNMIK officials was unavailable for presentation to the Trial Chamber.⁴⁷

17. The Appeals Chamber notes the Appellant’s submission that Exhibit 2 is new and was therefore unavailable.⁴⁸ As previously noted, Exhibit 2 is a letter attempting to schedule the meeting at issue in Exhibit 1.⁴⁹ Even though the Appeals Chamber has accepted that the said meeting could not reasonably have been held earlier, it considers that the letter requesting the meeting could have been written as soon as the Defence became aware that it was necessary to clarify UNMIK’s position on whether the Appellant would endanger witnesses if released, that is, following receipt of the Prosecution’s Initial Response and before the filing of the Initial Reply. Since the Defence has failed to demonstrate that Exhibit 2 could not have been obtained through the exercise of due diligence the Appeals Chamber is not satisfied that Exhibit 2 was unavailable at the time of the proceedings before the Trial Chamber.

18. Regarding Exhibit 3, the Appeals Chamber notes that the Appellant indicated that he had difficulty giving precise information concerning the dates of the courses for which he proposed to enrol since he did not have a clear indication of the date at which he might be able to resume his studies.⁵⁰ He further explained that the Defence was nevertheless making efforts to obtain assurances from the University of Pristina of its willingness to readmit him as a student.⁵¹ Recalling that in the exercise of due diligence counsel must bring any difficulties in relation to obtaining evidence, to the attention of the Trial Chamber,⁵² the Appeals Chamber finds that this was done by the Defence and therefore concludes that Exhibit 3 was unavailable during the proceedings before the Trial Chamber.

19. Having found that Exhibit 1 and Exhibit 3 were unavailable, and Exhibit 2 was available at the time of the proceedings before the Trial Chamber the Appeals Chamber turns now to the arguments raised by the parties in light of the applicable law relating to each of the exhibits in question.
    i. Exhibit 1

20. Exhibit 1 is an affirmation by the Appellant’s lead counsel, dated 15 November 2005, providing details concerning a meeting with Mr. Thomas Monaghan, Director of the UNMIK Department of Justice and author of the letter submitted by the Prosecution as Annex H to the Initial Response, together with three other UNMIK officials held on 11 November 2005, in Pristina, in which Mr. Monaghan stated to him that the UNMIK documents referred to at paragraph 44 of the Initial Response did not refer in any way to the Appellant.⁵³ He asserts that Mr. Monaghan further confirmed that he knew of no information that would detract in any way from the assurances given to the International Tribunal by the SRSG.⁵⁴ Exhibit 1 also makes submissions relating to the Appellant’s plans if granted provisional release; it describes the assurances made by the Appellant’s brother to Defence Counsel, to the effect that the Appellant’s family would support the Appellant as necessary to enable him to study if granted provisional release.⁵⁵

21. The Appellant submits that the SRSG provided the International Tribunal with his assurance that, in the event of the Appellant being granted provisional release, UNMIK would be able to ensure that he complied fully with all terms and conditions imposed upon him by the Trial Chamber.⁵⁶ He submits that one such condition would inevitably be that he should not in any way seek to contact, influence or intimidate victims, witnesses or other persons.⁵⁷ He submits that it therefore appeared that there was a direct contradiction between the two letters sent by UNMIK in October 2005, one from the SRSG and the other from the Director of the Department of Justice, Mr. Thomas Monaghan, submitted by the Prosecution, which letter refused to lift the confidentiality measures and to authorise the disclosure of the documents which, the Prosecution claims, establish the Appellant’s involvement in acts of intimidation.⁵⁸

22. The Appellant further submits that the Trial Chamber was clearly concerned by such allegations and therefore found that “[a]lthough it has not been verified that the [Appellant] threatened or exercised pressure on victims or potential witnesses, these allegations made by the Prosecution are very serious and the Trial Chamber cannot completely disregard them”.⁵⁹ He refers to the Trial Chamber’s finding that “in the absence of any other significant factor indicating that he will not pose a danger to any victim, witness or other person, the [Appellant] ha[d] not discharged his burden of proof to satisfy the Trial Chamber that the second requirement of Rule 65(B) of the Rules ha[d] been met.”⁶⁰

23. The Appellant submits that in order to resolve this apparent conflict, the Defence wrote and hand-delivered a letter requesting clarification and indicating his availability to meet with the SRSG or his representative, which letter is attached to the Rule 115 Motion.⁶¹ The Appellant argues that UNMIK assured the Defence that it had not provided the Prosecution with any documentation implicating the Appellant in such a way, and as such the Trial Chamber reached its decision to deny the Appellant provisional release, relying in whole or in part on the Prosecution’s representation which it had no means of verifying.⁶² The Appellant also submits that the Defence was not privy to the contents of the UNMIK documents referred to by the Prosecution in its Initial Response and had no reason at that stage of proceedings to impugn the credibility of the Prosecution’s claims.⁶³

24. In response, the Prosecution submits that Annex H attached to its Initial Response is in essence the UNMIK response to an Office of the Prosecutor (“OTP”) request of 5 October 2005, to have the confidentiality restrictions of five UNMIK generated documents released for the purposes of disclosure to the Defence and the Trial Chamber and use in the Appellant’s provisional release proceedings.⁶⁴ The Prosecution submits that Annex H in effect prevented the OTP from using the said five documents even in redacted format, but the Prosecution used Annex H to show that UNMIK, at the very least, acknowledged the OTP’s concerns in relation to the witnesses, and specifically, vis-à-vis the Appellant.⁶⁵

25. The Prosecution argues that Exhibit 1 does not meet the requirements of Rule 115.⁶⁶ It argues that while the proposed evidence was not available in the proceedings before the Trial Chamber, its probative value is minimal and only confuses the issue.⁶⁷ It adds that Exhibit 1 is in essence a hearsay declaration by the Defence of a meeting with what appears to be a group of UNMIK officials.⁶⁸ The Prosecution submits that Exhibits 1 and 2, attempt to cast doubt on the reliability of Annex H, based on a meeting that the Defence had at UNMIK Headquarters with Mr. Monaghan and three other persons whose identity and functions are not clarified. The Prosecution argues that the Appellant states that Mr. Monaghan stated “clearly and unequivocally” that the documents referred to in paragraph 44 of the Initial Response did not refer to the Appellant, however, nowhere in Exhibit 1 is there a direct and verbatim quote attributed to Mr. Monaghan or another UNMIK participant at the meeting.⁶⁹ It also adds that it is further not clear at all whether Mr. Monaghan had seen the five UNMIK documents in order to allow him to comment on their contents in relation to the Appellant.⁷⁰ The Prosecution adds that the proper thing to do would have been to take a signed witness statement from Mr. Monaghan or any other person who has in fact seen the five documents, just as the Prosecution has, and have their comments recorded in a way that would guarantee a sufficient degree of reliability as required by Rule 115.⁷¹ Lastly, the Prosecution submits that Annex H and the five underlying documents were not a decisive factor for the Trial Chamber in reaching its decision, but rather the two statements directly linking the Appellant to witness threats.⁷²

26. Turning to the issue of whether Exhibit 1’s description of the meeting with UNMIK officials is relevant to a material issue, the Appeals Chamber recalls that in order to satisfy this requirement the new evidence should relate to findings material to the Impugned Decision, in the sense that those findings were crucial or instrumental to the decision.⁷³ The Appeals Chamber notes that Exhibit 1 is material to the specific finding of fact in relation to the intimidation of witnesses in the Impugned Decision since it claims that Mr. Monaghan stated that the UNMIK documents referred to by the Prosecution in its Initial Response did not refer in any way to the Appellant.⁷⁴ The Appeals Chamber therefore finds that Exhibit 1’s description of the meeting with UNMIK officials is relevant to the Appeal. Concerning the credibility requirement, what is important in deciding if a piece of evidence is credible is to ascertain whether it appears to be reasonably capable of belief or reliance.⁷⁵ The Prosecution submits that Exhibit 1 does not meet the requirements of Rule 115, because, inter alia, (a) it is essentially a report of statements made by persons other than the signatory, thus constituting hearsay evidence, and (b) its probative value is minimal. First, the Appeals Chamber notes that hearsay evidence is admissible,⁷⁶ and emphasises that it need not at this stage make a finding on the evidentiary value of this exhibit. The Appeals Chamber recalls that what is important at this stage is to ascertain whether Exhibit 1 is reasonably capable of belief or reliance. The Appeals Chamber further notes that the affirmation is made by counsel admitted to appear before this International Tribunal, and that, as such, he is bound by the ethical rules in force.⁷⁷ In light of the foregoing, the Appeals Chamber finds that Exhibit 1 is capable of belief or reliance.

27. Before determining whether Exhibit 1 could have had an impact upon the Impugned Decision, the Appeals Chamber notes the Prosecution’s argument that Annex H and the five UNMIK documents submitted by the Prosecution were not a decisive factor considered by the Trial Chamber in reaching the Impugned Decision and that it had submitted two statements directly linking Appellant to witness threats.⁷⁸ The Appeals Chamber is not persuaded by this argument. Although the Trial Chamber found that it had “not been verified that the [Appellant] threatened or exercised pressure on victims or potential witnesses”,⁷⁹ it also concluded that it was not satisfied that the second requirement set out in Rule 65(B) had been met. The Appeals Chamber is of the view that in reaching the latter conclusion the Trial Chamber also considered the allegations made by the Prosecution concerning the five UNMIK documents.

28. Regarding the determination as to whether Exhibit 1 could have had an impact upon the Impugned Decision, the Appeals Chamber notes that the Prosecution had argued that UNMIK or more specifically, Mr. Monaghan, had refused to allow disclosure of documents allegedly showing the implication of the Appellant in acts of intimidation.⁸⁰ The Trial Chamber then found that although it had not been verified that the Appellant threatened or exercised pressure on victims or potential witnesses, these allegations were very serious and the Trial Chamber could not completely disregard them.⁸¹ Considering that Exhibit 1 could have satisfied the Trial Chamber that insofar as UNMIK is concerned the Appellant did not pose a danger to witnesses, the Appeals Chamber finds that Exhibit 1 could have had an impact on the Impugned Decision, and accordingly admits Exhibit 1 as additional evidence on appeal.
    ii. Exhibit 2

29. Exhibit 2 is a letter from the Defence and addressed to the SRSG requesting a meeting with him to clarify apparent contradictions relating to the Appellant’s provisional release. The letter indicates that although the SRSG had provided his assurance in a letter dated 11 October 2005⁸² that UNMIK would ensure the Appellant’s compliance with all the conditions set by the Trial Chamber in the event that he was provisionally released, on 7 October 2005, Mr. Monaghan wrote to the Deputy Prosecutor of the International Tribunal in response to the latter’s previous request for lifting the confidentiality measures concerning the UNMIK documents which the Prosecution claims allege that the Appellant intimidated some witnesses, denying the Deputy Prosecutor’s request on the basis of security concerns. The letter states that the Trial Chamber may have found Mr. Monaghan’s letter to be somewhat contradictory to the SRSG letter dated 11 October 2005, and explains that in light of the fact that the Defence has not seen any of these documents provided to the OTP he cannot help the Trial Chamber to reconcile the matter, and finally, requests a meeting to discuss these issues.

30. Having found that the Appellant has failed to show that Exhibit 2 could not have been obtained through the exercise of due diligence during proceedings before the Trial Chamber, the question that remains, therefore, is whether the Appellant has shown that Exhibit 2 is relevant, credible and has discharged the additional burden of establishing that the exclusion of Exhibit 2 would lead to a miscarriage of justice, in that if it had been available in the proceedings before the Trial Chamber it would have affected the verdict. The Appeals Chamber notes that Exhibit 2, like Exhibit 1, is material to the specific finding of fact in relation to witness intimidation. The Appeals Chamber therefore finds that Exhibit 2 is relevant to the interlocutory appeal. Concerning the credibility requirement, the Appeals Chamber finds that Exhibit 2 is reasonably capable of belief or reliance.

31. Since the Appeals Chamber has found that Exhibit 2 was available during the proceedings before the Trial Chamber, in that the Defence could have obtained it through the exercise of due diligence, the question that remains, therefore, is whether the Appellant has discharged the additional burden of establishing that the exclusion of Exhibit 2 would lead to a miscarriage of justice. The Appellant has not expressly made any arguments relying on the miscarriage of justice exception in relation to Exhibit 2 and in failing to do so, has not provided any meaningful guidance for its assessment. The Appellant simply states that “in relation to the totality of the new evidence (the latter ( would have been capable of having a material impact on the (Impugned( Decision and that it would result in a miscarriage of justice not to admit this new evidence.”⁸³ The Appeals Chamber is therefore not satisfied that the Appellant has discharged the additional burden of establishing that the exclusion of Exhibit 2 would lead to a miscarriage of justice, in that if it had been presented before the Trial Chamber prior to the delivery of the Impugned Decision, the latter would have been different. However, in the interests of justice the Appeals Chamber will exercise its discretion to consider whether the exclusion of this evidence would lead to a miscarriage of justice. The Appeals Chamber considers that Exhibit 2 merely states the point of view of the Defence on the underlying issues and is not evidence that is particularly probative of those issues. Considered in the context of the evidence which was given during proceedings before the Trial Chamber and of that which has been admitted on appeal,⁸⁴ there is no realistic possibility that the finding that the second requirement of Rule 65(B) of the Rules had not been met, would have been different if Exhibit 2 had been before the Trial Chamber. The Appellant’s request for the admission of Exhibit 2 therefore fails to meet the standards of Rule 115 and is accordingly dismissed.
    iii. Exhibit 3

32. Exhibit 3, as stated above, is a letter from the Dean of the Faculty of Philosophy at the University of Pristina confirming that the Appellant is a student at the University of Pristina.⁸⁵ The Appellant submits that the Prosecution had argued that he “must also provide proof of his earlier enrolment at the faculty and that he has a student card for the year 2005 -2006 or that enrolment for his academic year is still open.”⁸⁶ Citing the Prosecution’s Initial Response, the Rule 115 Motion states that, “ this information is prerequisite to […] a proper assessment of the conditions of release of the accused.”⁸⁷ The Appellant contends that this document proves that:

    a. The Appellant was enrolled as a student in the Faculty of Philosophy, Department of History prior to his indictment;

    b. The History Department is ready to enable him to resume his studies as soon as he may be granted provisional release;

    c. The History Department and its teaching staff are willing to provide supervision, additional lectures and courses to enable him to make up for time he has missed during his pre-trial detention;

    d. The Appellant will be required to participate in classes for a minimum of four days a week, leading up to his Diploma Thesis for the degree of Bachelor of Arts;

    e. The fee for the academic year is one hundred and thirty Euros;

    f. University accommodation is available to him.⁸⁸

33. The Appellant reiterates that his family have undertaken to underwrite the cost of his studies as well as his living expenses and that he intends to repay his family and to contribute to the collective support and well being of the extended family by working on the family farm when the terms and conditions of his provisional release so permit.⁸⁹

34. Lastly, the Appellant submits that when the significant number of factors weighing in favour of granting his provisional release, are considered in combination with the additional evidence proffered in his Rule 115 Motion, the said additional evidence - had it been available at the time the Trial Chamber rendered the Impugned Decision - would unquestionably have been capable of affecting the Impugned Decision.⁹⁰

35. Apart from arguments as to the availability of Exhibit 3, the Prosecution submits that the admission of the additional exhibits would not have changed the Trial Chamber’s decision which is clearly based on both prongs of Rule 65(A) of the Rules: that the Appellant has failed to convince the Trial Chamber that he will appear for trial and not pose any danger to victims and witnesses.⁹¹

36. Having found that Exhibit 3 was not available at the time of the proceedings before the Trial Chamber, the Appeals Chamber has to determine whether Exhibit 3 is relevant to a material issue, credible, and such that it could have had an impact on the Impugned Decision. The Appeals Chamber considers that Exhibit 3 is material to the specific finding that the Trial Chamber was not satisfied that the Appellant would appear for trial if released. The Appeals Chamber further notes that the credibility of Exhibit 3 is not disputed. Therefore, it finds that Exhibit 3 is reasonably capable of belief or reliance.

37. During the proceedings before the Trial Chamber, the Prosecution argued that the Appellant had failed to provide information on his sources of income and how he intends to support himself as a student which, in the Prosecution’s view, is necessary in order to provide a proper assessment of the conditions of his release.⁹² The Prosecution also argued before the Trial Chamber, that the Appellant had not provided any information concerning his intended activities, or place of residence and that the Appellant should provide proof that he was indeed registered at the faculty.⁹³ The Prosecution concluded that “this information is a pre-requisite to […] a proper assessment of the conditions of release of the (Appellant(.”⁹⁴ The Appeals Chamber notes that the Trial Chamber having taken the Prosecution’s argument into account, then considered the vagueness of the Appellant’s plans and the uncertainty of his ability to earn a livelihood prior to finding that the Appellant had not discharged his burden of proof to satisfy the Trial Chamber that the first requirement of Rule 65(B) of the Rules had been met.⁹⁵

38. Bearing in mind the above finding, the Appeals Chamber finds that Exhibit 3 could have had an impact upon the Impugned Decision. In light of the above findings relating to the admission of Exhibit 1 which could have had an impact upon the Trial Chamber’s finding regarding the second requirement of Rule 65(B), the Appeals Chamber finds that Exhibit 3 which is relevant to the first requirement of Rule 65(B), when considered collectively with and in the context of Exhibit 1, could have had an impact on the Impugned Decision and is accordingly admitted as additional evidence on appeal.

39. The Appeals Chamber stresses that since there has not yet been a determination as to the weight to be afforded to any of the new evidence, Exhibit 1 and Exhibit 3 will therefore be admitted into evidence without prejudice to the determination of the weight to be afforded to the evidence when the Appellant’s provisional release is considered.⁹⁶
    Request for the Admission of Rebuttal Material

40. The Prosecution submits that, were the Appeals Chamber to decide to grant the Rule 115 Motion, it will seek the introduction of the following three pieces of additional evidence as rebuttal material since they directly affect the substance of the additional evidence offered by the Appellant and thus meet the requirements set out in Rule 115:⁹⁷

    a. A declaration of OTP Investigator Thomans Obruca, dated 24 November 2005;⁹⁸

    b. A request for assistance in the form of a letter from the OTP to UNMIK, dated 21 November 2005;⁹⁹

    c. And a letter from UNMIK’s Director of the Department of Justice, dated 23 November 2005.¹⁰⁰

41. The Prosecution argues that in particular Exhibit 1 would appear to contradict Annex H which was submitted by the Prosecution with its Initial Response, thus it should be permitted to rebut the allegations contained in the Defence exhibits, and adds in support that the Appellant requests the Prosecution to articulate clearly the basis upon which it made its representation at paragraphs 44 and 45 of its Initial Response.¹⁰¹

42. The Prosecution submits that Prosecution Rebuttal Exhibit A would be highly probative to the issues raised in paragraphs 11 to 18 of the Rule 115 Motion, especially Exhibit 1 proffered with the Rule 115 Motion and the Appellant’s contention that Annex H “did not refer in any way to the [Appellant]”.¹⁰² The Prosecution submits that Investigator Obruca, the author of Prosecution Rebuttal Exhibit A, has reviewed the documents referred to in Annex H and comments on whether there is any reference to the Appellant in these documents. According to the Prosecution, “[t]he investigator comes to the conclusion that the five UNMIK documents indeed contain a number of references to the [Appellant].”¹⁰³ The Prosecution submits that the other two proposed pieces of rebuttal material offered by the Prosecution, that is, Prosecution Rebuttal Exhibits B and C, equally and directly address the issue raised by the proposed Defence exhibits.¹⁰⁴

43. The Prosecution submits that in the request signed by the Deputy Prosecutor and dated 21 November 2005, it put to Mr. Monaghan the parts of the Rule 115 Motion that were related to Mr. Monaghan’s meeting with the Appellant’s lead counsel on 11 November 2005 in Pristina.¹⁰⁵ The request concluded that, “[i]n light of the above and in order to provide the Appeals Chamber with the opportunity to verify the OTP’s claims and to reach its decision with all the necessary information, the OTP is of the view that the investigation case files that you released solely for the use of the OTP should be submitted (in redacted form) to the Appeals Chamber (and the Defence). The investigation[] files now appear like a crucial document in the Appeals Chamber deliberations on the Accused Brahimaj’s appeal and Rule 115 Motion.”¹⁰⁶ Prosecution Rebuttal Exhibit C is a letter dated 23 November 2005 from Mr. Monaghan, UNMIK’s Director of the Department of Justice, denying the OTP’s request of 21 November 2005. The Prosecution submits that what is particularly noteworthy in Prosecution Rebuttal Exhibit C is the striking absence of any substantive reference to the concrete issues that Mr. Monaghan was asked to comment upon by the OTP and that there isn’t the slightest hint as to his meeting with the Appellant’s lead counsel, despite the fact that his letter post-dates the meeting.¹⁰⁷ In Reply, the Appellant submits that Prosecution Rebuttal Exhibit C is consistent with Exhibit 1 because nowhere in Prosecution Rebuttal Exhibit C does Mr. Monaghan contradict the Defence’s version of the verbal assurances given on 11 November 2005 despite the fact that his attention was drawn to the assertions made by the Defence and contained in Exhibit 1.¹⁰⁸

44. The Appeals Chamber recalls that “rebuttal material is admissible if it directly affects the substance of the additional evidence admitted by the Appeals Chamber”¹⁰⁹ and as such, has a different test of admissibility from additional evidence under Rule 115 of the Rules.¹¹⁰ The Appeals Chamber notes the Prosecution’s submission that Prosecution Rebuttal Exhibits A-C directly affect the substance of the additional evidence offered by the Defence and thus meet the requirements set out in Rule 115.¹¹¹ The Appeals Chamber further notes that the Appellant does not oppose the admission of Prosecution Rebuttal Exhibits B and C as rebuttal material,¹¹² but that he opposes the admission of Prosecution Rebuttal Exhibit A as an inappropriate and disingenuous attempt to impugn Exhibit 1 and to mislead the Appeals Chamber.¹¹³ Considering that the evidence contained in the three documents attached to the Response is admissible as rebuttal material under Rule 115 of the Rules, as it directly affects the substance of the additional evidence admitted by the Appeals Chamber in this decision, Prosecution Rebuttal Exhibits A, B, and C are admitted as rebuttal material pursuant to Rule 115 of the Rules.
    Disposition

    For the foregoing reasons, the Appeals Chamber,

    GRANTS the Appellant’s request for admission into evidence of Exhibits 1 and 3;

    DISMISSES the request for admission into evidence of Exhibit 2;

    AND ALLOWS the Prosecution’s request for the admission of rebuttal material relating to Prosecution Rebuttal Exhibits A-C.

Done this 3rd day of March 2006
At The Hague,
The Netherlands.

_____________________
Judge Liu Daqun
Presiding Judge

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