Case No.: IT-02-60/1-A
Judge Theodor Meron, Presiding
Judge Fausto Pocar
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Inés Mónica Weinberg de Roca
Mr. Hans Holthuis
9 December 2004
DECISION ON MOTION TO ADMIT ADDITIONAL EVIDENCE
Counsel for the Appellant:
Ms. Virginia C. Lindsay
Counsel for the Prosecutor:
Mr. Norman Farrell
1. The Appeals Chamber of the International Criminal 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”) is seised of a confidential “Motion to Admit Additional Evidence” filed under Rule 115 of the Rules of Procedure and Evidence (“Rules”) on 18 June 2004 (“Rule 115 Motion”) and a confidential “Conformed and Supplemented Motion to Admit Additional Evidence” filed on 21 June 2004 (“Supplemental Motion”) by Co-Counsel for Momir Nikolic.
2. On 6 May 2003, Momir Nikolic (“Appellant”) pleaded guilty to one count of persecutions as a crime against humanity1 related to events that took place in Srebrenica, Potocari, and the surrounding area in 1995. On 7 May 2003, Trial Chamber I convicted the Appellant of one count of persecutions as a crime against humanity2 and, on 2 December 2003, sentenced him to 27 years of imprisonment.3
3. Momir Nikolic filed his Notice of Appeal on 30 December 2003.4 While the lead counsel assigned to trial, Mr. Veselin Londrovic, remained lead counsel for the appellate proceedings, a new co-counsel, Ms. Virginia Lindsay (“Co-Counsel ”), was assigned to the case on 19 February 2004. On 24 May 2004, the Appellant filed confidentially “Momir Nikolic’s Opening Brief on Appeal” (“Appellant’s Brief ”), to which the Prosecution responded confidentially on 5 July 2004.5 Subsequently, the Appellant filed his Reply confidentially on 20 August 2004.6
4. Regarding the Appellant’s Brief, the Appeals Chamber in its decision of 1 September 2004 granted in part the Prosecution’s “Motion to Strike Parts of Defence Appeal Brief and Evidence not on Record”.7 As a result, the Appellant removed Appendix E and several paragraphs from his Appellant’s Brief. Following an oral order of the Pre-Appeal Judge to file a public version of the redacted Appellant’s Brief,8 the Appellant filed the “Redacted and Conformed Momir Nikolic’s Opening Brief on Appeal” on 21 September 2004 (“Redacted Appellant’s Brief”).
5. On 18 June 2004, the Appellant filed confidentially the Rule 115 Motion, in which he moves the Appeals Chamber to admit the confidential documents regarding his medical condition contained in Appendix E which had been struck out from the original Appellant’s Brief by the Decision on Motion to Strike [Redacted] (collectively “Medical Records”). In support of his request, the Appellant also relies on the paragraphs in his Appellant’s Brief which refer to the Medical Records previously struck out from the Appellant’s Brief (“Excerpts of the Appellant’s Brief”).9
6. The Appellant submits that the Medical Records were not available during the sentencing hearing due to his trial counsel’s negligence.10 He submits that the Medical Records are highly probative mitigating evidence demonstrating his character and remorse, and argues that, had they been presented at the sentencing hearing, they would have constituted a decisive factor in the sentence imposed by the Trial Chamber.11 The Appellant also requests the Appeals Chamber to provide him with additional resources to enable him to present expert testimony regarding the nature of his trial counsel’s omission.12
7. On 21 June 2004, the Appellant filed confidentially the Supplemental Motion to which he appended the Excerpts of the Appellant’s Brief which were “inadvertently” missing from the original Rule 115 Motion.13 Furthermore, the Appellant enclosed, as an Appendix B, a signed declaration of lead counsel at trial Mr. Londrovic (“Londrovic Statement”), together with an English translation, apparently appended in support of the allegation of trial counsel’s negligence.
8. On 28 June 2004, the Appellant filed a confidential “Correction of Translation of Appendix B to Momir Nikolic’s Motion to Admit Additional Evidence.”
9. On the same day, the Prosecution filed its confidential Response to the Supplemental Motion,14 in which it requests the Appeals Chamber to dismiss the Rule 115 Motion and the Supplemental Motion.
10. On 2 July 2004, the Appellant filed a confidential Reply15 whereby he rejects the Prosecution’s arguments and requests the Appeals Chamber to grant his Rule 115 Motion and to grant him time for additional briefing16 and resources for the presentation of an expert witness regarding the duty of trial counsel to obtain medical records.17 In his Reply, the Appellant also attached an Appendix A containing documents from the Public Defender Service, Washington D.C., entitled “Investigative Checklist” and “Effective Defense Sentencing Planning”. The documents allegedly corroborate the contention that the trial counsel had handled the investigation of the mitigating evidence in a negligent manner. In addition, the Appellant attached an Appendix B, which contains an English translation of a statement of a Bosnian witness (“Witness Statement”), taken by his lead counsel at trial, Mr. Londrovic, and referred to by him in his Londrovic Statement.18 [Redacted] It is unclear whether the Appellant seeks to have the Witness Statement admitted as additional evidence, or whether it was merely submitted in support of the allegation of Mr. Londrovic’s negligence.
11. On 20 August 2004, the Appellant filed an additional appendix in support of his Rule 115 Motion.19 In this new filing, the Appellant seeks to submit two new documents establishing that his medical records were requested by the Defence team of Vidoje Blagojevic on 11 September 2003 and that copies of the records were provided to the team on 15 September 2003.
12. On 21 September 2004, the Appellant filed a “Corrected Conformed and Supplemented Motion to Admit Additional Evidence”, which incorporates the corrections to the translation of Appendix B of the Rule 115 Motion.
13. In a decision of 12 October 2004, the Registry withdrew Mr. Londrovic as lead counsel and assigned Ms. Lindsay, former co-counsel, as lead counsel effective from the date of the Decision.20
14. The Rule 115 Motion was filed on 18 June 2004, nearly four months beyond the time -limit prescribed by Rule 115(A). In the Rule 115 Motion, the Appellant requests the Appeals Chamber to exercise its discretion under Rule 127 of the Rules in order to recognize that it was timely filed on the following grounds: (1) the B/C/S translation of the judgement was only received on 1 April 2004; (2) the delay was caused by the uncertainty as to how to proceed in light of the conflict presented by his lead counsel’s continued representation; (3) the notice of the additional evidence and the grounds for its admission were provided on 24 May 2004, within the seventy-five day limit from the issuance of the B/C/S translation of the judgement; and (4) the Appellant’s Co-Counsel caused the delay unintentionally and in good faith. In its Response, the Prosecution mentions that it does not oppose the Appellant’s request for an extension of time.21
15. Rule 115(A) provides that a motion to present additional evidence must be filed not later than seventy-five days from the date of the judgement, unless good cause is shown for further delay. The Appeals Chamber has therefore to examine if good cause has been shown pursuant to Rule 115(A).
16. The Appeals Chamber rejects the Appellant’s interpretation of Rule 115(A) whereby he claims that the seventy-five day time-limit runs from the day of the rendering of the judgement in B/C/S. The Appeals Chamber notes that the extension of time granted by the Pre-Appeal Judge to file the Appellant’s Brief22 only applied to the filing of the Appellant’s Brief, not to the motions pursuant to Rule 115. Moreover, the Appellant’s notice of intention to file a motion for additional evidence does not constitute good cause, as it was submitted on 24 May 2004, nearly three months after the time so prescribed. Likewise, Co-counsel’s alleged good faith does not constitute good cause either. However, the Appeals Chamber considers that the fact that the Prosecution does not oppose the late filing, the uncertainty related to the conflict caused by lead counsel’s continued representation of the Appellant, and the fact that the Prosecution was not prejudiced by the delay, taken together, constitute good cause within the meaning of Rule 115. Accordingly, the Rule 115 Motion is recognized as validly filed.
17. The Appeals Chamber recalls that the Registrar has the primary responsibility for the determination or allocation of additional funds under the Legal Aid System, in accordance with the relevant provisions of the Rules, and Article 22(A) of the Directive on Assignment of Defence Counsel.23 Thus, the proper procedure requires the Appellant to file his request for the allocation of additional resources with the Registry and not with the Appeals Chamber.24 The Appeals Chamber therefore will not consider the Appellant’s request to be granted resources for the presentation of expert declarations regarding the duty of defence counsel to investigate mitigating evidence.
18. Moreover, the Appeals Chamber considers that the Appellant has already submitted sufficient evidence for the Appeals Chamber’s proper adjudication of his Rule 115 Motion and that there is no need to present further declarations of experts or national authorities regarding the allegation of trial counsel’s negligence. The Appeals Chamber further notes that nearly six months have elapsed between the filing of the Rule 115 Motion and the issuing of this decision, which offered him ample time to conduct further research on this issue. The Appeals Chamber denies the Appellant’s request to be granted additional time.
19. The admission of additional evidence is regulated under Rule 115 of the Rules, which provides as follows:
(A) A party may apply by motion to present additional evidence before the Appeals Chamber. Such motion shall clearly identify with precision the specific finding of fact made by the Trial Chamber to which the additional evidence is directed, and must be served on the other party and filed with the Registrar not later than seventy -five days from the date of the judgement, unless good cause is shown for further delay. Rebuttal material may be presented by any party affected by the motion.
(B) If the Appeals Chamber finds that the additional evidence was not available at trial and is relevant and credible, it will determine if it could have been a decisive factor in reaching the decision at trial. If it could have been such a factor, the Appeals Chamber will consider the additional evidence and any rebuttal material along with that already on the record to arrive at a final judgement in accordance with Rule 117.
(C) The Appeals Chamber may decide the motion prior to the appeal, or at the time of the hearing on appeal. It may decide the motion with or without an oral hearing.
(D) If several defendants are parties to the appeal, the additional evidence admitted on behalf of any one of them will be considered with respect to all of them, where relevant.
20. In order to be admissible pursuant to Rule 115, the evidence put forward must satisfy a number of requirements. These requirements vary depending on the availability of the evidence at trial.
21. As a general point, the applicant must demonstrate that the additional evidence tendered on appeal was not available to him at trial or discoverable through the exercise of due diligence.25 The applicant’s duty to act with reasonable diligence includes making “appropriate 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.”26 Counsel must therefore bring any difficulties in relation to obtaining evidence, including those arising from intimidation or inability to locate witnesses, to the attention of the Trial Chamber.27 The party must also seek relief from the Trial Chamber to compel an uncooperative prospective witness to cooperate.28 A counsel who follows these steps will, in the usual case, be deemed to have acted with due diligence.29
22. However, the Appeals Chamber has recognised an exception to the requirement that the new evidence “was not available”, namely in cases where gross negligence is shown to exist on the part of counsel at trial. 30 Accordingly, a party applying to admit additional evidence can satisfy the first prong of Rule 115 by demonstrating that trial counsel was grossly negligent.31
Admissibility if the evidence was not available at trial
23. Where evidence was not available at trial, the proponent of the evidence must show that the evidence is both relevant to a material issue and credible, and that it could have had an impact on the sentence. In other words, the evidence must be such that, considered in the context of the evidence given at trial, it could show that the sentence was unsafe.32 A party seeking to admit additional evidence bears the burden of specifying with clarity the impact the additional evidence could have upon the Trial Chamber’s decision.33
Admissibility if the evidence was available at trial
24. If the evidence was available at trial, it may still be admissible on appeal if the applicant can meet the burden of establishing that exclusion of the evidence would lead to a miscarriage of justice, in that if it had been available at the trial it would have affected the sentence.34 In the Krstic case, the Appeals Chamber emphasized that “this heightened standard seeks to ensure the finality of judgements and the application of maximum effort by counsel at trial to obtain and present the relevant evidence,” while at the same time, it does not “permit a factually erroneous conviction to stand, thereby safeguarding an equally important interest of accuracy in judgements.”35
25. Whether the evidence was available at trial or not, the Appeals Chamber has repeatedly recognised that the evidence shall not be assessed in isolation, but in the context of the evidence given at the trial.36
26. The Appellant’s request is somewhat unclear and confusing with respect to the documents he seeks to have admitted as additional evidence. Various documents were attached to the numerous filings without specification whether the Appellant sought to have them admitted as additional evidence pursuant to Rule 115. After careful examination of the Rule 115 Motion, the Supplemental Motion and the Reply, the Appeals Chamber understands that the documents sought to be admitted as additional evidence are the following:
(1) the Medical Records; and
(2) the Witness Statement.
27. The remaining documents involved appear to have been included in the submissions for the purpose of corroborating the Appellant’s allegation of his trial counsel’s negligence.
28. With regard to the Witness Statement, the Appeals Chamber notes that this evidence was not mentioned in the Rule 115 Motion but submitted with the Reply. By adopting this procedure, the Appellant deprived the Prosecution of its right to respond. Such filing harms the fairness of the proceedings. Therefore, the Appeals Chamber declines to consider this evidence and will only examine the question of the admissibility of the Medical Records in light of Rule 115.
29. There is no dispute between the parties that the Medical Records were available at trial. Instead, the Appellant contends that his trial counsel, though aware of the existence of the Medical Records, nevertheless failed to obtain them in order to submit them at the sentencing proceedings, due to trial counsel’s misunderstanding of his duty to investigate mitigating evidence.37 The Appellant argues that this failure amounts to gross negligence: “given the serious nature of the charges against Momir Nikolic, the information contained in the Medical Records was absolutely essential in order to be able to make professional decisions and give professional advice concerning the presentation of mitigating evidence.”38 In support of his claim, the Appellant submitted the Londrovic Statement, in which his lead counsel at trial, Mr. Londrovic, explained why he decided not to obtain the Medical Records at trial.
30. The Prosecution denies that the failure to present the Medical Records was due to gross negligence on the part of trial counsel.39 The Prosecution alleges that trial counsel, after undertaking extensive investigation [Redacted], took a tactical decision not to present the evidence before the Trial Chamber, in order to prevent the Prosecution from rebutting the evidence.40 It submits that lead counsel at trial, co-counsel at trial and the Appellant concluded that it would not serve the Appellant’s interests to present evidence about his character in 1992 and 1995.41 The Prosecution adds that lead counsel at trial confirmed in his statement that it is only after the new co-counsel expressed a different opinion on the issue that the Appellant subsequently changed his mind.42
31. The Appellant replies that it is the failure to obtain the Medical Records despite the lead counsel at trial’s awareness of their existence that constitutes gross professional negligence, and not the failure to present the records before the Trial Chamber, as argued by the Prosecution.43 The Appellant submits that, in countries with adversarial systems, a duty exists requiring defence attorneys to obtain reasonably available and relevant medical records in every case. Documents were appended in order to support this argument.44 Having mentioned that both trial counsel were trained in non-adversarial legal systems, he claims that trial counsel’s negligence stems from their non-adversarial legal background and their lack of training in the field of sentencing45 and adds that “an accused person should not have to choose an advocate trained in one of the adversarial systems in order to be sure that the advocate is under a duty to complete a competent investigation into the accused person’s personal circumstances.”46
32. He contends further that the following elements indicate that the trial counsel’s failure to investigate amounts to gross professional negligence:
- the trial counsel’s knowledge of the Medical Records;
- the fact that these records were easily obtainable;
- their relevance to plea negotiations;
- their direct relevance to his credibility and the questions posed by the Trial Chamber ;
- the fact that the lead counsel at trial acknowledges in his Londrovic Statement that if he had known the contents of the Medical Records, he would have presented them as evidence during the sentencing proceedings.
33. In respect of the Prosecution’s claim that the Medical Records were not presented before the Trial Chamber as a result of a strategic decision, the Appellant contends that, “without a competent investigation”, the trial counsel “had no reasonable or competent basis for making strategic decisions as to whether or not those records would be used during plea negotiations or presented as evidence.”47 The Appellant asserts that the Medical Records were obtained by the Defence team of Blagojevic, lead by a U.S.-trained counsel,48 long before he was provided with his own Medical Records.49 Based on all of the above, the Appellant concludes that the failure to obtain his records did not reflect reasonable professional judgement and thus constituted gross professional negligence.50
34. In addition, the Appellant submits that the decision not to present the Medical Records as mitigating evidence cannot be attributed to him.51 It is argued that he never acquiesced in his trial counsel’s exercise of judgement throughout the sentencing hearing: he presented orders and a letter to the Trial Chamber on his own initiative and submitted the evidence from 1992 when his attorneys failed to do so.52 The Appellant submits that “an accused person should not have to tell his advocate how to investigate the case, but should be entitled to rely upon professional advice that was based upon a reasonably diligent investigation into the law and the facts of the case.”53
35. As stated above, an applicant must demonstrate that the additional evidence tendered on appeal was neither available to him at trial nor discoverable through the exercise of due diligence. Due diligence is required of counsel who defend accused or convicted persons before the International Tribunal. However, this standard is subject to an exception for cases where there is evidence of gross negligence.
36. The Appeals Chamber recalls that, in determining whether a prima facie case of gross negligence exists, it considers that there is a strong presumption that counsel at trial acted with due diligence, or in other words, that the performance of counsel fell within the range of reasonable professional assistance.54 In assessing whether trial counsel was “grossly negligent”, the Chamber examining the allegation applies an objective standard of reasonableness. In determining whether the performance of counsel fell below that standard, an assessment of counsel’s conduct in the circumstances as they stood at that time must be made.55
37. Before proceeding to the necessary assessment, the Appeals Chamber wishes to add that counsel have wide discretion as to the manner in which proceedings are conducted, and decisions made by counsel in the exercise of that discretion frequently involve difficult decisions, including a choice as to the best tactics to be adopted.56 A strategic decision cannot constitute gross negligence simply because other counsel might have made different decisions as to the conduct of the trial or even because such decisions made at the trial are seen in retrospect to have been wrong. A mere mistake is not constitutive of gross negligence for the purpose of Rule 115.
38. In the circumstances of this case, the Appeals Chamber agrees that due diligence might have been lacking in respect of the Medical Records which were not obtained by the counsel at trial. As conceded by Mr. Londrovic, having had the opportunity to study the Medical Records, both he and the Appellant would have presented those documents to the Trial Chamber as evidence of mitigating circumstances. Nevertheless, the materials before the Appeals Chamber reveal that lead counsel at trial did investigate Momir Nikolic’s medical history [Redacted]. Even if lead counsel at trial did not try to materially obtain the Medical Records, it can be reasonably inferred from the above that he knew of their general contents. The Appeals Chamber takes note that, given the circumstances as they stood at that time, lead counsel at trial concluded that it would not serve the Appellant’s interests to present evidence about his character in 1992 and 1995. Consequently, he made the strategic decision to focus on other investigations and not to obtain the Medical Records. The Appeals Chamber considers that, at that time and stage of the proceedings, this decision was an objectively reasonable, tactical one, although, with hindsight and in light of the length of the sentence and the conclusions of the Trial Chamber, it could be judged by others to be an incorrect decision.
39. The Appeals Chamber notes further that Mr. Londrovic maintains that: “I opted for this course of action and I continue to believe that it was a good choice at that time and at that phase of the case.”57 In the view of the Appeals Chamber, the lead counsel at trial made a reasonable determination in line with his litigation strategy. Therefore, the Appeals Chamber considers that this tactical decision does not amount to gross negligence.
40. As to the argument that this tactical decision cannot also be attributed to the Appellant, the Appeals Chamber recalls that, in the Tadic Rule 115 Decision, it stated that “the knowledge and due diligence of counsel is generally treated as that of the accused for the purposes of both criteria.”58 As a general rule, an accused person is bound by the way in which the trial is conducted on his behalf. Indeed, “the unity of identity between client and counsel is indispensable to the workings of the International Tribunal. If counsel acted despite the wishes of the Appellant, in the absence of protest at the time, and barring special circumstances which do not appear, the latter must be taken to have acquiesced, even if he did so reluctantly”.59 Having concluded that counsel at trial was not grossly negligent in deciding not to obtain the Medical Records, the Appeals Chamber sees no reason to depart from this finding. For the purpose of Rule 115, the Medical Records must therefore be regarded as having been available at trial.
41. In addition, the Appeals Chamber rejects the erroneous assertion made by Co-Counsel concerning the capabilities of practitioners from so-called non-adversarial systems. Co-Counsel appears to suggest that only lawyers trained in an adversarial system have the necessary competencies to defend the interests of an accused effectively in sentencing proceedings, and to accurately investigate the accused’s personal circumstances. The Appeals Chamber finds this contention to be, at best, devoid of legal merit. In any event, such a misconception might be construed as an ill- informed misapprehension of Co-Counsel’s learned friends from other jurisdictions.
42. Having established that the Medical Records were available at trial and considering them relevant and credible, the Appeals Chamber now turns to examine whether the Appellant has established that the exclusion of the Medical Records would lead to a miscarriage of justice, in that if this evidence had been presented before the Trial Chamber it would have affected the sentence.
43. The Appellant submits that the Medical Records constitute highly mitigating evidence that demonstrate his character and his remorse.60 He argues that this evidence would have answered the questions posed by the Trial Chamber and that, presented at trial, the evidence would have changed the Trial Chamber’s perception of his sincerity and remorse.61 The Appellant contends that a miscarriage of justice occurred in that he received a higher sentence than would have been obtained had the aforementioned records been presented before the Trial Chamber. 62
44. The Prosecution responds that the Appellant has not demonstrated that the additional evidence would have affected the sentence.63 It submits that the Appellant’s character and remorse were fully addressed by both parties at trial and were expressly taken into consideration by the Trial Chamber, while determining the appropriate sentence.64 The Prosecution further submits that, contrary to the Appellant’s assertion, the Medical Records provide no answers to any of the Trial Chamber’s questions.65
45. In the Reply, the Appellant emphasises the mitigating weight of the information contained in the Medical Records.66 The Appellant argues that it can be inferred from the questions posed by the Judges of the Trial Chamber and the sentence imposed, which was well above the range recommended by the Prosecutor, that the Trial Chamber had serious reservations concerning his character and remorse.67
47. [Redacted] The Appeals Chamber also underlines that the Appellant’s remorse and character were examined by the Trial Chamber which considered them as mitigating factors.68
48. The Appeals Chamber therefore concludes that the Appellant has failed to show that the exclusion of the Medical Records would lead to a miscarriage of justice. The Appeals Chamber considers that had the Medical Records been presented at trial, they would not have affected the sentence.
49. On the basis of the foregoing, the Appeals Chamber finds that the additional evidence submitted by the Appellant on appeal does not meet the requirements of Rule 115 of the Rules for admission and, as a consequence, dismisses the Rule 115 Motion and the Supplemental Motion.
Done in English and French, the English text being authoritative.
Done this 9th day of December 2004,
At The Hague,
[Seal of the Tribunal]