"Decision on the Motions of Drago Josipovic, Zoran Kupreskic and Vlatko Kupreskic to Admit Additional Evidence pursuant to Rule 115 and for Judicial Notice to be taken pursuant to Rule 94(B)"

8 May 2001
Judges Wald [Presiding], Vohrah, Nieto-Navia, Pocar and Liu)

Procedural Background

• On 21 March and 6 April 2001, Drago Josipovic, Zoran Kupreskic and Vlatko Kupreskic filed three Motions in which pursuant to Rules 94(B)1 and 1152 a request was made for the admission into the appeal proceedings of the Judgement of Trial Chamber III on 26 February 2001 in the case The Prosecutor v. Dario Kordic and Mario Cerkez3.

• The Prosecution responded on 2 and 12 April 2001, and Zoran and Vlatko Kupreskic replied to the responses on 9 and 23 April 2001 respectively.

The Decision

The Appeals Chamber dismissed the Motions of the three co-accused.

The Reasoning

The Appeals Chamber first pointed out that "while the right to a full appeal process is of the utmost importance, this right must be carefully balanced against the equally important requirement that an appeal be dealt with expeditiously; it is patently contrary to the interests of justice for the appeals process to become overly-long and protracted or to deteriorate into a second trial in which the old strategies and omissions can be revisited." It emphasised that only the gravest of circumstances would "justify further motions to admit additional evidence". The Appeals Chamber informed the parties that it would "deal with them in a summary fashion […] unless such motions make out a strong case that the 'interests of justice' require admission".

It further defined the purpose of Rule 115, "which deals with the situation where a party is in possession of material that was not before the court of first instance and which is additional evidence of a fact or issue litigated at trial" and stated that "[t]he Rule does not permit a party to simply request that a particular person be summoned to give evidence at the appellate stage."

The Appeals Chamber noted that the Rules are silent on the point of "whether a judgement of a Trial Chamber can amount to either 'adjudicated facts' or 'documentary evidence' within the province of Rule 94(B)4." It also noted that both parties filed notices of appeal against the above-mentioned Judgement and emphasised that the Appeals Chamber may revise the findings of the Trial Chamber. It therefore considered that the facts contained in the Judgement were not "adjudicated". The Appeals Chamber pointed out that "[o]nly facts in a judgement, from which there has been no appeal, or as to which any appellate proceedings have concluded, can truly be deemed 'adjudicated facts' within the meaning of Rule 94(B)." It interpreted the latter's reference to "documentary evidence" in a different set of proceedings as "permitting a Chamber to take judicial notice of discrete items of evidence such as the testimony of a witness or a trial exhibit, not an entire judgement."

The Appeals Chamber further considered "that a vague and generalised request to take notice of an entire judgement is insufficient to invoke Rule 94(B)" and that "[a] request must specifically point out the paragraph(s) or parts of the judgement of which it wishes judicial notice to be taken, and refer to facts5, as found by the Trial Chamber. Equally, […] an entire judgement may not be the object of judicial notice."

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1. "At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings."
2. "(A) A party may apply by motion to present before the Appeals Chamber additional evidence which was not available to it at the trial. Such motion must be served on the other party and filed with the Registrar not less than fifteen days before the date of the hearing. (B) The Appeals Chamber shall authorise the presentation of such evidence if it considers that the interests of justice so require."
3. The Prosecutor v. Dario Kordic and Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-T, Trial Chamber III, Judgement, 26 February 2001 (summarised and analysed in Judicial Supplement No. 23).
4. "At the request of a party or proprio motu, a Trial Chamber, after hearing the parties, may decide to take judicial notice of adjudicated facts or documentary evidence from other proceedings of the Tribunal relating to matters at issue in the current proceedings."
5. See The Prosecutor v. Blagoje Simic et al. ("Bosanski Samac"), Case No. IT-95-09-PT, Trial Chamber III, Decision on the Pre-Trial Motion by the Prosecution Requesting that the Trial Chamber Take Judicial Notice of the International Character of the Conflict in Bosnia-Herzegovina, 25 March 1999 (summarised in Judicial Supplement No. 3); see also The Prosecutor v. Miroslav Kvocka et al. ("Omarska & Keraterm Camps"), Case No. IT-98-30/1, Trial Chamber I, Decision on Judicial Notice, 8 June 2000 (summarised and analysed in Judicial Supplement No. 16).