Case No.: IT-95-14/2-A

IN THE APPEALS CHAMBER

Before:
Judge Wolfgang Schomburg, Presiding
Judge Fausto Pocar
Judge Florence Ndepele Mwachande Mumba
Judge Mehmet Güney
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision of:
17 December 2004

PROSECUTOR

v.

DARIO KORDIC AND MARIO CERKEZ

___________________________________________________________

DECISION ON PROSECUTIONíS MOTION TO ADMIT ADDITIONAL EVIDENCE IN RELATION TO DARIO KORDIC AND MARIO CERKEZ

_________________________________________________________

Counsel for the Prosecutor:

Mr. Norman Farrell
Ms. Helen Brady

Counsel for Dario Kordic:

Mr. Mitko Naumovski
Mr. Turner T. Smith, Jr.
Mr. Stephen M. Sayers

Counsel for Mario Cerkez:

Mr. Boěidar Kovacic
Mr. Goran Mikulicic

 

THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("International Tribunal");

BEING SEIZED OF the "Prosecutionís Motion to Admit Additional Evidence in Relation to Dario Kordic and Mario Cerkez", filed confidentially by the Office of the Prosecutor ("Prosecution") on 3 December 2004 ("Motion"), in which the Prosecution seeks the admission of various documents and two witness statements as additional evidence on appeal pursuant to Rule 115 of the Rules of Procedure and Evidence ("Rules");

NOTING "Dario Kordicís Brief in Opposition to Prosecutionís Motion to Admit Additional Evidence" (ďKordic ResponseĒ) and ďMario Cerkezís Response to Prosecutionís Motion to Admit Additional Evidence in Relation to Dario Kordic and Mario Cerkez" (ďCerkez ResponseĒ), filed confidentially on 7 December 2004;

NOTING the Prosecutionís "Reply to Responses of Dario Kordic and Mario Cerkez to Prosecutionís Additional Evidence Motion" filed confidentially on 8 December 2004;

NOTING Rule 115 of the Rules1 and Practice Direction IT/201 of 7 March 2002;

NOTING that all the parties seek leave, in their filings, to exceed the page limit applicable to their respective filings;2

CONSIDERING, however, that the Prosecution seeks to admit additional evidence at a highly advanced stage of the proceedings in this appeal, and well outside the time frame set out in Rule 115 of the Rules;

EMPHASIZING that a party which brings a Rule 115 motion after the conclusion of the appeals hearing must be aware that good cause for this exceptional relief must be demonstrated;

CONSIDERING that the good cause requirement 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;

NOTING however that one of the documents, Exhibit P4, is, along with other documents sought to be admitted, part of what the Prosecution submits is a "new collection of documents"3, but that this exhibit was already available to the Prosecution in July 2004;

NOTING that Exhibits P5 and P6 are witness statements taken on 29 and 30 November 2004, respectively;

CONSIDERING, however, that the relevant time is not when a witness statement was in fact taken, but rather when the witness became available to give evidence to the moving party, and that diligent and continuous efforts must be made in relation to obtaining that evidence;

CONSIDERING that in light of the arguments advanced by the Prosecution on the issue of good cause, and the explanation contained in the declaration attached as Annex 12 to the Motion, good cause has not been shown;

CONSIDERING further that none of the evidence sought to be admitted relates to the Prosecutionís grounds of appeal,4 and that in principle, the Prosecution in such circumstances cannot seek to admit evidence pursuant to Rule 115 of the Rules to bolster a finding of conviction;5

CONSIDERING that the Decision of 30 May 2002 of Appeals Chamber of the International Criminal Tribunal for Rwanda in the Bagilishema case6 does not warrant a different conclusion, in that the situation and interests of a defendant facing a Prosecution appeal from an acquittal are distinct from that of the Prosecution facing a defendantís appeal from a conviction;

NOTING in any event that, had the Motion been filed in accordance with the Rules, the Appeals Chamberís analysis of the arguments and evidence contained therein would lead it to the conclusion that none of the evidence sought to be admitted, even if deemed unavailable at trial, could have affected the verdict, pursuant to Rule 115 of the Rules;7

FOR THE FOREGOING REASONS,

GRANTS the partiesí requests to extend the page limit applicable to their respective filings, and

REJECTS the Motion.

 

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

Dated this 17th day of December 2004,
At The Hague,
The Netherlands.

__________________________
Wolfgang Schomburg, Presiding Judge

Judge Weinberg de Roca appends a Separate Opinion to this Decision.

[Seal of the International Tribunal]


SEPARATE OPINION OF JUDGE WEINBERG DE ROCA

I agree with the Disposition because no good cause has been shown.

 

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

Dated this 17th day of December 2004,
At The Hague,
The Netherlands.

_________________________
Judge Weinberg de Roca

[Seal of the International Tribunal]


1. That is, Rule 115 as it appeared prior to its amendment on 29 July 2002. See also Rule 6(D), which states that an amendment "shall not operate to prejudice the rights of the accused or of a convicted or acquitted person in any pending case."
2. See Practice Direction IT/184 Rev. 1, 5 March 2002, p. 3.
3. Motion, para. 92.
4. See Practice Direction IT/201, para. 11.
5. Cf. Prosecutor v. Blaskic, Case No. IT-95-14-A, Decision on Evidence, 31 October 2003, p. 5. In Blaskic, the Prosecution did not appeal the Trial Judgement. However, it sought to admit rebuttal material in relation to the Appellantís additional evidence submitted on appeal. In its decision, the Appeals Chamber stated that "rebuttal material is admissible if it directly affects the substance of the additional evidence admitted by the Appeals Chamber." Ibid., p. 5. Hence, "rebuttal material" that only goes to bolster a factual finding made by the Trial Chamber is inadmissible.
6. Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Decision on Motions Raised Under Rule 115, 30 May 2002.
7. The requirements of Rule 115 have been set out in numerous decisions of the Appeals Chamber. See, e.g., Prosecutor v. Blaskic, Case No. IT-95-14-A, Decision on Evidence, 31 Oct. 2003, p. 3; Prosecutor v. Krstic, Case No. IT-98-33-A, Decision on Applications for Admission of Additional Evidence on Appeal, 5 Aug. 2003, pp. 3-4; Prosecutor v. Naletilic and Martinovic, Case No. IT-98-34-A, Decision on the Request for Presentation of Additional Evidence, 18 Nov. 2003.