IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 19 August 1998
ZDRAVKO MUCIC also known as "PAVO"
ESAD LANDZO also known as "ZENGA"
DECISION ON THE PROSECUTIONS ALTERNATIVE REQUEST TO REOPEN THE PROSECUTIONS CASE
The Office of the Prosecutor:
Mr. Grant Niemann
Ms. Teresa McHenry
Mr. Giuliano Turone
Counsel for the Accused:
Ms. Edina Residovic, Mr. Eugene OSullivan, for Zejnil Delalic
Ms. Nihada Butorovic, Mr. Tomislav Kuzmanovic, for Zdravko Mucic
Mr. Salih Karabdic, Mr. Thomas Moran, for Hazim Delic
Ms. Cynthia McMurrey, Ms. Nancy Boler for Esad Landzo
I. INTRODUCTION AND PROCEDURAL BACKGROUND
1. On 30 July 1998 the Office of the Prosecutor ("Prosecution") presented for determination by 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 ("International Tribunal) a "Prosecutions Alternative Request to Reopen the Prosecutions Case" (Official Record at Registry Page ("RP") D7364 D7381) ("Motion"). The background to the Motion is the following.
2. On 16 February 1998 the Prosecution closed its case against the four accused. This was followed in due course by the presentation of the defence case for, in turn, the accused Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo. The presentation of the case for the fourth and last accused commenced on 13 July 1998 and was closed on 29 July 1998.
3. On 22 July 1998 the Prosecution filed a "Prosecutions Notification of Witnesses Anticipated to Testify in Rebuttal" (RP D7280 - D7328) in which it proposed to call four witnesses in rebuttal of the Defence case. In a response filed on the following day ("Motion by the Defendant Delalic Opposing the Prosecutions Notification of Witnesses Anticipated to Testify In Rebuttal", RP D7333 D7337) the Defence for the accused Zejnil Delalic opposed the calling of two of the proposed witnesses. Following a hearing on the matter on 24 July 1998, the Trial Chamber in an oral ruling on that day held that only Dr Larry Sparr, an expert witness to be heard in relation to the medical evidence presented by the Defence for Esad Landzo, could be called as a rebuttal witness. The Trial Chamber held the view that the testimony of the remaining witnesses, namely Rajko Dordic, Sr., Stephen Chambers, and Professor Andreja Stegnar, did not constitute true rebuttal evidence but might only be regarded as fresh evidence. A written order granting the Prosecution leave to call Dr. Landy Sparr as a rebuttal witness was subsequently issued ("Order on the Prosecutions Notification of Witnesses Anticipated to Testify in Rebuttal", RP D7497 D 7499, filed on 30 July 1998).
4. On 28 July 1998 the Trial Chamber answered affirmatively to an oral enquiry of the Prosecution whether it could file an application to re-open its case in order to enable it to call the three witnesses whom the Trial Chamber held did not fall within the parameters of rebuttal evidence. On 30 July 1998 the Prosecution, through the Motion, submitted such an application to the Trial Chamber. The application was made in the alternative and it was stated that the Prosecution still maintained that all of the witnesses proposed and documents sought to be admitted through them were within the permissible ambit of rebuttal evidence. A response opposing the Motion was filed by the Defence for the accused Zejnil Delalic on 31 July 1998 ("Response of the Defendant Delalic Opposing the Prosecutions Alternative Request to Open the Prosecutions Case", RP D7513 D7543).
5. The Trial Chamber heard oral arguments on the Motion on 3 August 1998, whereafter the Prosecution the same day filed a "Prosecution Supplemental Response to Motion Hearing of 3 August 1998" (RP D7548 D7551). On 4 August 1998 the Trial Chamber delivered an oral ruling denying the Motion. It reserved its written decision to a later date.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and oral arguments of the parties,
HEREBY ISSUES ITS WRITTEN DECISION.
It is appropriate to set out the provisions of the Statute of the International Tribunal ("Statute") and its Rules of Procedure and Evidence ("Rules") pleaded before the Trial Chamber and relied upon for the determination of the issues before us.
After reviewing the amendments recently made to the relevant Rules, the Trial Chamber finds that these do not operate to prejudice the rights of the accused in the present case. In accordance with Sub-rule 6(C) of the Rules, therefore, the relevant provisions are here considered in the form that they appear in the Rules as amended on 9 and 10 July 1998.
Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
2. A person against whom an indictment has been confirmed shall, pursuant to an order or an arrest warrant of the International Tribunal, be taken into custody, immediately informed of the charges against him and transferred to the International Tribunal.
3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused are respected, confirm that the accused understands the indictment, and instruct the accused to enter a plea. The Trial Chamber shall then set the date for trial.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings in accordance with its rules of procedure and evidence.
Rights of the accused
1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt.
Presentation of Evidence
(A) Each party is entitled to call witnesses and present evidence. Unless otherwise directed by the Trial Chamber in the interest of justice, evidence at the trial shall be presented in the following sequence:
- evidence for the prosecution;
- evidence for the defence
- prosecution evidence in rebuttal;
- defence evidence in rejoinder;
- evidence ordered by the Trial Chamber pursuant to Rule 98; and
- 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.
(B) Examination-in-chief, cross-examination and re-examination shall be allowed in each case. It shall be for the party calling a witness to examine such witness in chief, but a Judge may at any stage put any question to the witness.
(C) If the accused so desires, the accused may appear as a witness in his or her own defence.
(A) The rules of evidence set forth in this Section shall govern the proceedings before the Chambers. The Chambers shall not be bound by national rules of evidence.
(B) In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.
(C) A Chamber may admit any relevant evidence which it deems to have probative value.
(D) A Chamber may exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.
(E) A Chamber may request verification of the authenticity of evidence obtained out of court.
Testimony of Witnesses
(A) Witnesses shall, in principle, be heard directly by the Chambers unless a Chamber has ordered that the witness be heard by means of a deposition as provided for in Rule 71 or where, in exceptional circumstances and in the interests of justice, a Chamber has authorized the receipt of testimony via video-conference link.
(B) Every witness shall, before giving evidence, make the following solemn declaration: "I solemnly declare that I will speak the truth, the whole truth and nothing but the truth".
(C) A child who, in the opinion of the Chamber, does not understand the nature of a solemn declaration, may be permitted to testify without that formality, if the Chamber is of the opinion that the child is sufficiently mature to be able to report the facts of which the child had knowledge and understands the duty to tell the truth. A judgement, however, cannot be based on such testimony alone.
(D) A witness, other than an expert, who has not yet testified shall not be present when the testimony of another witness is given. However, a witness who has heard the testimony of another witness shall not for that reason alone be disqualified from testifying.
(E) Notwithstanding Sub-rule (D), upon order of the Chamber, an investigator in charge of a partys investigation shall not be precluded from being called as a witness on the ground that he or she has been present in the courtroom during the proceedings.
(F) A witness may object to making any statement which might tend to incriminate the witness. The Chamber may, however, compel the witness to answer the question. Testimony compelled in this way shall not be used as evidence in a subsequent prosecution against the witness for any offence other than perjury.
(G) The Trial Chamber shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to
(i) make the interrogation and presentation effective for the ascertainment of the truth; and
(ii) avoid needless consumption of time.
(H) Cross-examination shall be limited to the subject-matter of the direct examination and matters affecting the credibility of the witness. The Trial Chamber may, in the exercise of its discretion, permit enquiry into additional matters as if on direct examination.
Power of Chambers to Order Production of Additional Evidence
A Trial Chamber may order either party to produce additional evidence. It may proprio motu summon witnesses and order their attendance.
7. The Prosecution relies for the application on the argument that (i) the evidence sought to be adduced is subject matter for rebuttal, or (ii) in the alternative, that the proposed evidence is new evidence which was only available after the close of the Prosecution case and (iii) that the proposed evidence will not prejudice the position of the Defendants.
8. The Prosecution contends that the trial practice of the International Tribunal is designed to facilitate the admissibility of all relevant evidence and to enhance the search for the truth. It is submitted that the Trial Chamber is empowered under Rule 89 to admit any evidence that has probative value and that Rule 90 authorises the Trial Chamber to control the questioning of witnesses for the ascertainment of the truth. Rule 89 also permits the Trial Chamber to request verification of the authenticity of evidence. It is further pointed out that Rule 98 enables the Trial Chamber at the end of the case for the Defence to order either party to produce additional evidence or proprio motu to summon witnesses and order their attendance.
9. Thus asserting that the emphasis of the procedure of the International Tribunal is on a full introduction and exposition of the relevant evidence, the Prosecution further submits that the Rules discourage the importation of technical procedural rules from national systems. It is argued that there is danger in relying on particular national systems as the sole guide as to how to proceed in trials before the International Tribunal. In this context reliance is placed upon the Separate Opinion of Judge Shahabuddeen in a recent Appeals Chamber decision in The Prosecutor v. Milan Kovacevic in which he expressed the need for "judicial flexibility" resulting from the "peculiarities and difficulties of unearthing and assembling material for war crimes prosecutions conducted in relation to the territories of the former Yugoslavia"1. The decision to reopen the proceedings in The Prosecutor v. Anto Furundzija2 is cited as a demonstration of such flexibility by a Trial Chamber of the International Tribunal.
10. In order to explain why the evidence now sought to be presented was not previously tendered, the Prosecution further provides a comprehensive account of the efforts made by it to secure the relevant evidence in this case. Noting that even in domestic jurisdictions the execution of a search is an extraordinary measure, fraught with danger, it is submitted that such searches are even more difficult for the investigators of the International Tribunal who are unarmed and must rely on others for their security. More generally, it is asserted that so long as the fundamental rights of suspects and accused are not compromised, the timing and modalities of such investigative efforts must be left to the discretion of the Prosecution. With reference to the "myriad of difficulties" said to have been encountered by the Prosecution in its investigation in the instant case, it is submitted that for the Trial Chamber now to suggest that the Prosecution should have pursued any one aspect of its investigation more expeditiously than another belies the complexity and difficulty of conducting war crimes investigations in a territory over which you have limited control. As to the specific question why search warrants were not obtained and searches at the relevant locations carried out at an earlier stage in the proceedings, it is declared that it was not until March 1998, when the Prosecution obtained official documentary evidence that Jasminka Dzumhur had withheld government documents, that the Prosecution Investigator believed that he had a specific reasonable belief sufficient to request and obtain a search warrant. It is thus submitted that the Prosecution has demonstrated all requisite diligence in pursuing the evidence against the four accused.
11. Arguing that the evidence sought to be adduced is both relevant and of probative value and therefore admissible, the Prosecution further submits that re-opening the Prosecution case would not prejudice the defence of the four accused. It is asserted that the combined estimated length of testimony on direct examination is less than five hours and it is submitted that the few additional days which are said to be required for bringing the trial to an appropriate and thorough conclusion do not constitute a delay which can be characterised as a fundamental breach of fairness or a violation of international norms. Pointing out that the Prosecution has fulfilled its obligations of disclosure in relation to the new evidence it is argued that the Defence can respond to the Prosecutions reopening as if it were part of the rebuttal portion of the case, and submitted that any prejudice claimed by the accused can be properly remedied by allowing the Defence to cross-examine the new Prosecution witnesses and to re-call witnesses, or call new witnesses, to address matters arising out of the new material. It is declared that the Prosecution in such a situation would seek leave to call witnesses to rebut the testimony of those witnesses brought by the Defence. It is asserted that in this way any possible injustice or unfairness would be alleviated.
12. In opposing the Motion Ms. Residovic, Counsel for the accused Zejnil Delalic, submits that there is no basis for calling rebuttal evidence since the subject matter of such evidence is res judicata. In relation to Professor Stegnar, it is asserted that by virtue of the Trial Chambers oral decision of 3 December 19973, upheld by a Bench of the Appeals Chamber on 16 December 19974, this witness is barred from giving testimony in relation to any of the so called "Vienna Documents" or on the basis of an opinion based on them. It is further argued that there exists no basis for calling rebuttal evidence in relation to the testimony of the witness Sefkija Kevric in connection with Exhibit 119. This witness stated that he could not identify the handwriting on that document and there is therefore no evidence to rebut. In his testimony Mr. Kevric further stated that the signature of the accused Delalic appears on Prosecution Exhibit 119. It is submitted that this is affirmative of the signature, and that there accordingly is no basis for calling rebuttal evidence in relation to this matter.
13. Commenting on the legal standard to be applied by the Trial Chamber in deciding whether to exercise its discretion in favour of allowing the Prosecution to reopen its case, the defence for Zejnil Delalic further submits that the Prosecution must demonstrate that all reasonable measures were undertaken by it prior to the conclusion of its case to obtain the evidence now sought to be adduced. Submitting inter alia that the Prosecution has not provided any adequate explanation for why it did not seek search warrants at an earlier date, thus failing to show that the evidence in question by the exercise of due diligence could not have been found prior to 16 February 1998, it is asserted that the Prosecution has failed to meet this burden.
14. Counsel for Mr. Delalic also relies on Articles 20 and 21 of the Statute and contends that a reopening of the case would be unfair to the Defence and would render the trial unduly protracted. It is asserted that this kind of re-opening would require proceedings which would last several weeks and maybe even months in order to review any possible new evidence.
15. In her oral submissions, Ms. Residovic dwelt essentially on answering Part IV of the Motion which seeks to establish the relevance of the documents sought to be introduced through the new witnesses. It is her contention that the question of relevance at this stage of the proceedings is to be interpreted very restrictively. It is submitted that for the introduction of new evidence at this stage, it must be required that the evidence in question has such probative value that it can result in a completely different view of the already established facts. It is thus said that it is only if the evidence can result in a substantive change in the position of the accused that it can be considered acceptable. Speaking more specifically to the merits of the Motion, it is contended that the documents now sought to be presented by the Prosecution are without relevance to the determination of the charges against the accused.
16. Counsel for the other three accused all associated themselves with the submissions of Ms. Residovic.
17. The provisions of the law regulating the presentation of evidence during trial are to be found in Rule 85 of the Rules. The next procedure provided for is closing arguments under Rule 86. Accordingly, a party seeking to adduce any evidence after exhausting the rights vested in Rule 85, namely giving evidence, exercising the right to cross-examine, giving evidence in rebuttal or rejoinder as the case may be, can only resort to the discretionary powers of the Trial Chamber to admit any relevant evidence which it deems has probative value within the provisions of Sub-rule 89(C).
18. While it seems clear to us from Sub-rule 89 (C) that evidence subsequently available to the Prosecution could be introduced at a later stage of the proceedings at the discretion of the Trial Chamber, any further consideration of the limits to the exercise of this discretion must take as its starting point the well settled rule of practice that evidence should be called at the proper time. Again, this principle finds its clear expression in Rule 85 of our Rules. As a corollary to this general rule, there is the principle that matters probative of the Defendants guilt should be adduced as part of the case of the Prosecution. While the Prosecution in certain circumstances may be allowed to call further evidence at a later stage, this is exceptional and cannot be done merely in order to reinforce evidence already brought or to call evidence previously deemed unnecessary. This is why it is essential to the Prosecution that it should adduce all evidence critical to the guilt of the accused so as to establish his guilt at the close of its case. The Prosecution may also elicit such evidence through the cross-examination of the accused. These considerations enable the Prosecution to discharge the onus upon it, at the close of the case of the parties, to prove the guilt of the accused beyond a reasonable doubt.
19. In the Motion, the Prosecution cites the observations of Judge Shahabuddeen in his separate opinion to the Appeals Chamber decision of 29 May 1998 in The Prosecutor v. Milan Kovacevic and cautions the Trial Chamber of the dangers of relying on particular national systems as the "exclusive touchstone" for evaluating how our trials should be conducted. This is a caveat which our Judges scrupulously observe. But, of course, our Rules amply recognise its limitations, and hence we constantly rely on appropriate applicable systems which will best favour a fair determination of the matter before us and which are consonant with the spirit of the Statute and the general principles of law (see Article 20(1)).
20. In fact, there is little difficulty in observing the predominating features of the common law system in our Rules relating to the presentation of evidence, without ignoring the inquisitorial features. The order for presentation of evidence and the closing arguments clearly portray the philosophy of the total. It can be said to be implicit in these Rules that there should be a point where accusation ends and answering the allegations begins. It must be appreciated that the onus of proof of the guilt of the accused rests on the Prosecution throughout the case. This is exemplified in the presumption of innocence which the accused enjoy by virtue of Article 21(3) of the Statute. It is, therefore, consistent with justice not to interfere with the Defendant answering the allegations made by continuing with further accusations.
21. The principle that the Prosecution cannot re-open its case once it has closed, however, is not without exception. While the limits of the Trial Chambers discretion to grant leave to the Prosecution to call additional evidence cannot be precisely defined, a number of circumstances can be identified in which the Trial Chamber may admit further evidence after the close of the Prosecution case.
22. The most significant of these, which is expressly provided for in Rule 85, is the calling of evidence in rebuttal. This exception is of limited scope, and must not be construed as a carte blanche for the Prosecution to adduce evidence at a later stage in the proceedings which should properly have been presented as part of its original case.
23. The essence of the presentation of evidence in rebuttal is to call evidence to refute a particular piece of evidence which has been adduced by the defence. Such evidence is therefore limited to matters that arise directly and specifically out of defence evidence. Where the evidence sought to be introduced in rebuttal is itself evidence probative of the guilt of the accused, and where it is reasonably foreseeable by the Prosecution that some gap in the proof of guilt needs to be filled by the evidence called by it, then generally speaking the Trial Chamber will be reluctant to exercise its discretion to grant leave to adduce such evidence. The Prosecution thus, cannot call additional evidence merely because its case has been met by certain evidence to contradict it. However, if any matter arises ex improviso and unforeseen, the Trial Chamber will exercise its discretion and will allow such evidence to be adduced. On the other hand, evidence available to the Prosecution ab initio, the relevance of which does not arise ex improviso, and which remedies a defect in the case of the Prosecution, is generally not admissible.
24. In this context it may be noted that if new points are brought out by the Prosecutions evidence in rebuttal, the accused may respond by presenting evidence in rejoinder. The considerations applying to evidence in rebuttal apply mutatis mutandis to this situation, and the accused is thus not entitled at this stage to revisit the defence case as a whole, but is confined to presenting evidence which is directed to contradicting matters arising out of the evidence brought in rebuttal.
25. The Trial Chamber may further exercise its discretion to enable a party to adduce evidence of a purely formal and non-contentious nature after the close of the case of the parties. This may be the case, for example, where the Prosecution has omitted to tender a material statutory instrument in evidence. In such circumstances, no prejudice is caused to the accused by allowing the Prosecution to re-open its case, and the Trial Chamber will therefore admit such evidence. As against such situations, evidence establishing identity, which is a matter of substance and invariably a most material step in establishing the case against the accused, is not admissible following the close of the Prosecution case. This is because such evidence goes to the root of the allegation and it would be unjust to call upon the accused to answer it at this stage.
26. The Prosecution may further be granted leave to re-open its case in order to present new evidence not previously available to it. Such fresh evidence is properly defined not merely as evidence that was not in fact in the possession of the Prosecution at the time of the conclusion of its case, but as evidence which by the exercise of all reasonable diligence could not have been obtained by the Prosecution at that time. The burden of establishing that the evidence sought to be adduced is of this character rests squarely on the Prosecution.
27. When the Trial Chamber is deciding how to exercise its discretion in this situation, the advanced stage of the trial must be a relevant consideration. As a general rule, it may be considered that where the Prosecution seeks to adduce further evidence, the later in the trial that the application is made the less likely the Trial Chamber is to accede to the request. The Trial Chamber must also consider the delay likely to be caused by a re-opening of the Prosecution case, and the suitability of a possible adjournment in the overall context of the trial. It must further take into account the nature of the evidence sought to be presented. While it is axiomatic that all evidence must fulfil the requirements of admissibility, for the Trial Chamber to grant the Prosecution permission to re-open its case, the probative value of the proposed evidence must be such that it outweighs any prejudice caused to the accused. 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.
28. The present application was made by the Prosecution after the close of the case of both parties. With this fact in mind, the Trial Chamber has carefully studied the comprehensive account of the Prosecution's efforts at retrieving evidence in the possession of Jasminka Dzumhur between late 1996 and early 1997. It is clear from this account that it was not until 10 June 1998, well after the Prosecution and the first Defendant had closed their cases, that the Prosecution applied for a search warrant for the home address of Jasminka Dzumhur. On 17 June 1998, another search warrant was applied for by the Prosecution for the office of Jasminka Dzumhur. The warrants were executed on 19 June 1998 and various documents were seized. On 1, 2 and 3 July 1998, additional documents were seized from the offices of the State Commission for Gathering Facts on War Crimes in Sarajevo.
29. The Prosecution has given reasons why the timing of the question of investigative efforts should be left to the discretion of the Prosecution. Whilst the Trial Chamber concedes that the utmost caution is required in delicate issues of this nature at this time, we find it difficult to agree that the best time to pursue such evidence vigorously is after the close of the case for the Defence.
30. The Trial Chamber is unable to comprehend the wisdom of excluding Jasminka Dzumhur as a witness in these proceedings. Had it been otherwise, it may well be that the myriad of difficulties encountered by the Prosecution in obtaining the evidence so highly prized by the Prosecution might have been reduced. The Trial Chamber therefore concludes that the Prosecution has not met its burden of demonstrating that with reasonable diligence the proposed evidence could not have been previously obtained and presented as part of the Prosecution case.
31. Paragraphs 45-56 of the Motion contain a list of documents considered relevant by the Prosecution and sought to be admitted on that basis. We do not agree with this assessment.
32. Documents (a) (g) which are listed in paragraphs 45-47 may be relevant but contain nothing probative. The document to which reference is made in paragraph 48 (document (h)) is a letter (hand-written) signed "Z", which the Prosecution claims was written by the accused Zejnil Delalic. The documents listed as (i) (o) and (t) - (w), which are claimed to constitute direct and circumstantial evidence of the responsibilities and authority of the accused, are mere inferences. Documents (p) (r) are documents relating to the circumstances of the death of certain prisoners. Finally, document (s) is a report on the handing over of the duties of Prison Warden, signed by Zdravko Mucic, Hazim Delic and Zejnil Delalic. None of these documents represent what the Prosecution claims for them. They refer to the persons named therein, but cannot be probative of the charges against them. The documents listed in the said paragraphs 45-47 demonstrate a hastily assembled evidence without analysis of their probative value. The most that can be credited to them, singly or associated with other evidence, is that they contain circumstantial evidence of doubtful validity. The Trial Chamber is not satisfied that the Prosecution has established circumstances exceptional to justify the admission of this evidence at this stage.
33. For instance, the evidence in document (s) demonstrating the fact that the accused Mucic, Delic and Delalic jointly signed a report on the handing over of the duties of Prison Warden does not by itself disclose their positions of authority at the Celebici prison. Rather it supports a suggestion of their association with the handing over. Obviously, there is nothing in the document ascribing any authority to them. The relative position of each of them involved in the handing over is not disclosed. There has been earlier evidence of the accused Mucic as Warden of the Celebici prison. There has been no evidence, documentary or oral, defining the scope and limit of the powers of such a Warden. The Trial Chamber accepts the submission of Ms. Residovic on these documents.
34. The documents and evidence sought to be adduced after the close of the case of the parties belong to a category of evidence which existed ab initio, the relevance of which did not arise ex improviso. In addition, the nature of the documents relied upon are essentially circumstantial to the proof required of the Prosecution. For evidence of this nature to be admissible, the injustice of rejecting it should be irresistible. We have not come to such a conclusion in this case.
35. The Prosecution has submitted that adducing the evidence will by itself not render the case protracted. We do not agree. Apart from the number of witnesses slated for oral testimony on the part of the Prosecution, there are undoubtedly other persons whose testimony will be required to authenticate the several documents sought to be tendered. Besides, the value of the undated and unsigned documents relied upon amount to a waste of the Trial Chambers time.
36. It is interesting to observe what the Prosecution proposes in paragraph 70 of the Motion, after appreciating that the Defence will cross-examine the new Prosecution witnesses and recall witnesses or bring new witnesses to address issues arising from the new material, that "....the Prosecution would seek leave to call witnesses to rebut the testimony of those brought by the Defence. [ C". On this showing alone there can be no doubt that the trial, which has lasted for more than 18 months with the Prosecution claiming more than 12 months of that period, is likely to continue for the next three months. This is clearly undesirable and in clear contradiction of Article 20 of the Statute. It is the more reprehensible because of the nature of the evidence relied upon to re-open the trial after the closing of the case of the Prosecution and the Defence.
37. In sum, the evidence suggested as rebuttal evidence does not come within the purview of such evidence as discussed in this decision. The new evidence put forward is evidence which existed ab initio and the relevance of which did not arise ex improviso. The failure to obtain it during the presentation of the case of the Prosecution has not been satisfactorily explained. On the representation of the Prosecution, the Trial Chamber has no doubt that the trial would be further protracted by the admission of the evidence. In any event, the evidence is founded on inference and cannot be said to point unequivocally at the establishing of the case of the Prosecution. In our view the justice of the case and the fair and expeditious conduct of the proceedings enjoins a rejection of the application.
For the foregoing reasons, THE TRIAL CHAMBER
HEREBY DENIES the Motion.
Done in both English and French, the English version being authoritative.
Adolphus G. Karibi-Whyte
Dated this nineteenth day of August 1998
At The Hague,
[Seal of the Tribunal]
1. The Prosecutor v. Milan Kovacevic, Case No. IT-97-24, Decision stating Reasons For Appeal Chambers Order of 29 May 1998, Separate Opinion of Judge Mohamed Shahabuddeen, 2 July 1998, RP A118 A144, at pp. 4-5.
2. The Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Decision, 16 July 1998, RP D1668 D1675.
3. Transcript page 9601.
4. Case No. IT-96-21-AR73, Decision on Prosecutions Application for Leave to Appeal Pursuant to Rule 73, 16 December 1997.