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The Prosecutor v. Dario Kordic and Mario Cerkez - Case No. IT-95-14/2-T |
"Decision on Prosecutor's Submissions Concerning 'Zagreb Exhibits' and Presidential Transcripts"
1 December 2000
Trial Chamber III (Judges
May [Presiding], Bennouna and Robinson)
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Rule 89 of the Rules of Procedure and Evidence - Relevant test to be applied for the admission of new evidence. Where the Prosecution has not formally closed its case and the Defence has, the relevant test to be applied by the Trial Chamber for the admission of new evidence is the following: first, the material must be new in the sense of not having been available to the Prosecution with due diligence before the end of its case; second, the material must not be cumulative, that is a repetition of evidence already given and must be of significant relevance to the core issues in the case; third, the admission of the evidence must be in the interests of justice, i.e. in the interests of assisting the Court in determining the guilt or innocence of the accused and not be contrary to Rule 89(D) of the Rules of Procedure and Evidence. |
Procedural Background
On 10 March 2000, the Prosecution finished its case. The Trial Chamber subsequently permitted the Prosecution not to close its case but to leave open the possibility of introducing documents obtained at a later stage due to the outstanding binding Orders addressed to the Republic of Croatia for production of documentary evidence from archives in Zagreb (hereinafter the "Zagreb material").
On 20 July and 16 October 2000 respectively, Defence Counsel for Dario Kordic and Mario Cerkez finished presenting their cases.
On 30 October 2000, the Office of the Prosecutor sought the admission of the Zagreb material and documents obtained from the Republic of Croatia in the form of transcripts said to be of meetings held in the Office of the President of the Republic of Croatia in Zagreb while Franjo Tujman was President and alleged to have been recorded on his instructions.
On 21, 22 and 23 November 2000, the Trial Chamber heard the oral arguments of the parties.
On 27 November 2000, Trial Chamber II issued its oral ruling.
The Decision
Pursuant to Rule 89 of the Rules of Procedure and Evidence1, the Trial Chamber granted the application in part and admitted some of the above-mentioned documents.
The Reasoning
Trial Chamber III ruled on the relevant test to be applied for the admission of evidence at this stage of the proceedings:
(1) The material must be new in the sense of not having been available to the Prosecution with due diligence before the end of its case;
(2) The material must not be cumulative, that is a repetition of evidence already given and must be of significant relevance to the core issues in the case such as those relating to the conduct of the accused;
(3) The admission of the evidence must be in the interests of justice, i.e. in the interests of assisting the Court in determining the guilt or innocence of the accused and not be contrary to Rule 89(D) of the Rules of Procedure and Evidence.
Trial Chamber III subsequently considered the different categories of exhibits tendered by the Prosecution, examined the issue of whether they satisfied the test and reached its Decision.
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1. "(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."