Case No. IT-98-30/1-A

IN THE APPEALS CHAMBER

Registrar:
Mr. Hans Holthuis

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"),

NOTING that, at the end of the appeal hearing on 27 March 2004, Zoran Zigic ("Appellant") attempted to tender a new document during his personal intervention to the Appeals Chamber but that his request was refused by the Appeals Chamber at that time ("Decision of 26 March 2004");¹

BEING SEIZED OF the "Notice of Internal Memorandum about Behaviour of the Accused Zoran Zigic" ("Defence Motion") filed confidentially on 29 March 2004, in which Zoran Zigic wishes the Appeals Chamber to take notice of his behaviour report produced by the chief of detention of the UN Detention Unit ("Report");

NOTING the "Prosecution’s Response to Zoran Zigic’s Notice of Internal Memorandum about the Behaviour of Zoran Zigic" filed on 8 April 2004, in which the Prosecution submits that:

1. it opposes reconsideration of this issue, as Zoran Zigic has put forward no new argument to show why the Appeals Chamber should reconsider its position,
2. if the issue is to be reconsidered, the Prosecution opposes the admission of Zoran Zigic’s behaviour report since it does not demonstrate error by the Trial Chamber,
3. if the Appeals Chamber were to decide to overturn one or more convictions and to re-sentence Zoran Zigic for the remaining convictions, the document could conceivably be admitted in the exercise of the Appeals Chamber’s discretion,
4. however, if the Appeals Chamber were to admit it, it should be given minimal or no weight by the Appeals Chamber;

NOTING "Zoran Zigic’s Reply to Prosecution’s Response to Zoran Zigic’s Notice of Internal Memorandum about the behaviour of Zoran Zigic" filed on 13 April 2004, in which the Appellant submits that his behaviour report "may be of some significance during re-sentencing phase, if it occurs";

CONSIDERING that, in the view of the Appeals Chamber, the Report is only admissible if it can be regarded as additional evidence within the meaning of Rule 115 of the Rules of Procedure and Evidence ("Rules") and that therefore the Appeals Chamber will consider the Defence Motion under that Rule;

CONSIDERING that evidence that was unavailable at trial and could not have been discovered through the exercise of due diligence is admissible under Rule 115 of the Rules, if it is relevant to a material issue and credible and if it could have had an impact on the verdict, i.e., if it could have shown, in the case of a request by a defendant, that a conviction was unsafe;²

CONSIDERING that evidence that was available at trial or could have been discovered through the exercise of due diligence is not admissible unless the moving party shows that its exclusion would lead to a miscarriage of justice, in that, if it had been available at trial it would have affected the verdict;³

CONSIDERING that the Report pertains to the Appellant’s behaviour before and after the written Judgment and sentence handed down therein;

CONSIDERING that those aspects of the Report which concern the Appellant’s pre-sentence behaviour were available at the time of trial, that the Appellant is not submitting that they were brought to the attention of the Trial Chamber during the trial and that, therefore, such parts of the Report are inadmissible unless the Appellant shows that its exclusion would lead to a miscarriage of justice;

CONSIDERING that the Trial Chamber did not address the pre-sentence behaviour of the Appellant in detention in the Trial Judgment and that the Appellant is not alleging in his appeal that the Trial Chamber erred in not taking that factor into account as a mitigating factor in sentencing;

FINDING therefore that these parts of the Report cannot show that their exclusion would lead to a miscarriage of justice;

CONSIDERING that those aspects of the Report which concern the Appellant’s post-sentence behaviour were unavailable at the time of trial, and that it is therefore necessary to establish whether those parts of the Report are relevant to a material issue and credible and whether they could have had an impact on the verdict;

CONSIDERING that the Appeals Chamber already held that "evidence of post-sentence behaviour is irrelevant to whether the Trial Chamber erred in the exercise of its sentencing discretion" and that it is only where the Appellant succeeds in demonstrating that the Trial Chamber made an error in relation to the sentence imposed that it will be within the discretion of the Appeals Chamber to admit further evidence;⁴

CONSIDERING that the Appellant’s post-sentence behaviour could be neither relevant to any issue before that Trial Chamber nor capable of being considered by it, and therefore cannot show that the Trial Chamber committed any error in the exercise of its discretion;⁵

FINDING therefore that it has not been shown that the Appellant’s post-sentence behaviour could have had an impact on the verdict;

HEREBY DISMISSES the Defence Motion.

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

_____________________
|Mohamed Shahabuddeen
Presiding Judge

Dated this seventh of May 2004,
At The Hague,
The Netherlands.