Judicial Supplement 1 - The Prosecutor v. Dusko Tadic

The Prosecutor v. Dusko Tadic - Case No. IT-94-1-A

"Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence"

15 October 1998
Appeals Chamber (Judges Shahabuddeen [Presiding], Cassese, Wang, Nieto-Navia and Mumba)

Decision not to allow additional evidence in appeal, distinguishing between, on the one hand, Article 25 and Rule 115, and, on the other, Article 26 and Rule 119; and discussing the requirements of Rule 115.

Introduction

The Appellant has appealed his conviction by Trial Chamber II on 7 May 1997 for offences covered by the Tribunal’s Statute. Pursuant to Rule 115, the Appellant has filed a motion to the Appeals Chamber, requesting that he be permitted to present additional evidence (documentary material and more than 80 witnesses) during the appellate proceedings. In addition, or in the alternative, the Appellant has requested that the motion be considered as a motion for review, pursuant to Article 26 of the Statute and Rule 119. Further to the filing of the motion and the response of the Prosecutor, a hearing was held on 22 January 1998. In its decision of 15 October 1998, the Appeals Chamber unanimously dismissed the motion based on all the provisions invoked.

New evidence v. new fact

While proceedings under Article 25 (Appellate proceedings) and Rule 115 (Additional evidence) deal with the presentation of additional evidence of a fact discussed at trial, pursuant to Article 26 (Review proceedings) and Rule 119 (Request for review) review proceedings deal with the discovery of new facts not known at that stage. The Appeals Chamber was not satisfied that a new fact had been raised. If it had been, pursuant to Rule 122, it would have referred the matter back to the Trial Chamber.

The tests of admissibility of new evidence under Rule 115

The requirements of Rule 115 are twofold: (A) the evidence must not have been available at the trial and (B) presentation of the additional evidence in appeal must be required by the interests of justice.

(A) Unavailability of evidence at trial

The Appeals Chamber first considered that only an error of fact, i.e., that the relevant material incorrectly disclosed the fact, could constitute grounds for the admission of additional evidence in the appellate proceedings. Thus, the appeal should be based on Article 25(1)(b), alleging the occasioning of a miscarriage of justice, rather than Article 25(1)(a). An appeal based on the latter ground, which alleges an error of law invalidating the decision, would not require presentation of additional evidence. In this case, the appeal would relate strictly to a (technical) error committed by the Trial Chamber.

The Chamber noted the wide range of statutory rights available to the accused to ensure the presentation of all evidence at the trial. Such rights are, inter alia, embodied in Article 22, according to which the accused is entitled to examine Prosecution witnesses and to obtain the attendance of witnesses on his behalf under the same conditions. Furthermore, pursuant to Article 29, States are obliged to cooperate with the Tribunal, also in the case of the production of evidence for the Defence. Likewise, both Prosecution and Defence witnesses may be granted protection. Any difficulties in this regard should be raised before the Trial Chamber.

The Chamber also noted that freely allowing the presentation of new evidence during the appellate proceedings would in fact result in a new trial (a trial de novo), which is not foreseen in the Tribunal’s Statute. Moreover, in the case of an appeal by the Prosecutor against an acquittal, the principle of non bis in idem (enshrined in Article 10) would be violated.

Consequently, contrary to the Appellant’s contention, the Appeals Chamber held that the Appellant must have exercised due diligence in attempting to secure evidence for presentation at trial, using all appropriate measures of protection and compulsion legally available. Furthermore, the Chamber held that it is for the Appellant to prove the unavailability of the evidence at the trial and the exercise of due diligence.

Appellant had argued that the unavailability of some evidence at the trial was due to the lack of due diligence on the part of his then Counsel. However, the Appeals Chamber held that, unless gross negligence is proved, due diligence, a matter of professional conduct, must be presumed on the part of Counsel. The Chamber added that a professional decision not to present available evidence is, in principle, no proof of the lack of due diligence.

Application of the test of unavailability

In the absence of an explanation by the Appellant for the unavailability of certain items, the Appeals Chamber first held that the burden of proof had not been discharged. The items were ruled inadmissible.

Next, the remaining additional evidence proposed was divided into three categories. In the first category, material not in existence at the time of the trial, only one document was found to stand the test of unavailability; the second category, all the material existing at the time of the trial but then unknown to the defence was found to pass this first test. Finally, as to the third category, material that the Applicant was unable to adduce at trial, only the testimonies of an unidentified witness and of witnesses who could not be located at the time were considered suitable for further consideration.

As to the former Counsel of the Appellant, the Appeals Chamber was not satisfied that gross negligence had occurred. Consequently, the material available to but not called by the Defence at the trial was dismissed.

Likewise, one Prosecution witness whose evidence was discredited during the trial was available to the Appellant at that stage and cannot be called again before the Appeals Chamber.

B) The interests of justice

For the purpose of the case the Appeals Chamber considered that "the interests of justice" require admission of evidence in appeal if the evidence is relevant to the material issue, the evidence is credible and the evidence is such that it would probably show that the conviction was unsafe. The Chamber furthermore took into consideration the principle of finality of decisions and the principle that doubt should be resolved in favour of the Appellant.

Applying this second requirement to the remaining potential evidence, the Appeals Chamber denied, without further specification, the admissibility of these materials.