Case No. IT-95-14/2-A


Judge Wolfgang Schomburg, Presiding
Judge Fausto Pocar
Judge Florence Ndepele Mwachande Mumba
Judge Mehmet Güney
Judge Inés Mónica Weinberg de Roca

Mr. Hans Holthuis

26 March 2004









The Office of the Prosecutor:

Mr. Norman Farrell

Counsel for the Accused:

For Dario Kordic

Mr. Mitko Naumovski
Mr. Turner T. Smith Jr
Mr. Stephen M. Sayers

For Mario Cerkez

Mr. Bozidar Kovacic
Mr. Goran Mikulicic


THE APPEALS 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,

BEING SEISED OF “Mario Cerkez’s Motion to Admit Additional Evidence on Appeal Pursuant to Rule 115” filed on 7 April 2003 by Mario Cerkez (“Motion”), and a supplemental motion entitled “Mario Cerkez’s Supplemental Application for Admittance of One Document as Additional Evidence on Appeal” filed on 9 April 2003 (“Supplemental Motion”);

NOTING that, on 12 May 2003 the Prosecution filed confidentially “Prosecution’s Response to the Motions to Admit Additional Evidence Filed by Mario Cerkez on 7  April 2003 and 9 April 2003”;

NOTING that “Cerkez’s Reply in Support of his Motions to Admit Additional Evidence Pursuant to Rule 115” was filed confidentially on 6 June 2003;

NOTING that, on 17 April 2003 Kordic filed a brief “Dario Kordic’s Submissions in Relation to Motions Filed by Co-Accused, Mario Cerkez, For Admission of ‘Additional Evidence’ under Rule 115”, and on 18 April 2003 Kordic filed an “Amended Response to Cerkez’s Motions for the Admission of ‘Additional Evidence’ under Rule 115”, whereby Kordic seeks to object to a number of documents attached to the Motion and the Supplemental Motion;

NOTING that on 24 April 2003, Cerkez filed “Mario Cerkez’s Reply to Kordic’s Amended Response to Cerkez’s Motions for the Admission of Additional Evidence under Rule 115”;

NOTING that the part of the Motion filed ex parte is dealt with in a separate decision;

CONSIDERING that, in order to have additional evidence admitted on appeal , the party submitting such evidence is required primarily to establish that the evidence itself “was not available at trial” in any form1 and that it could not have been discovered through the exercise of due diligence ,2 which means that the party seeking its admission must demonstrate (inter alia) that it made 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;”3

CONSIDERING that counsel must 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;4

CONSIDERING that this obligation to report to the Trial Chamber is intended not only as a first step in exercising due diligence but also as a means of self -protection, in that a contemporaneous record then exists that the cooperation of the prospective witness had not been obtained;5

CONSIDERING that such a report to the Trial Chamber does not by itself satisfy the obligation of due diligence as the party must also seek relief from the Trial Chamber by which the uncooperative prospective witness may be compelled to cooperate;6

CONSIDERING that, to be admissible pursuant to Rule 115, evidence which was not available at trial and could not have been discovered through the exercise of due diligence must be relevant to a material issue and credible and such that it could have had an impact on the verdict i.e., could have demonstrated , in the case of a request by a defendant, that a conviction was unsafe;7

CONSIDERING that, if the evidence was available at trial or could have been discovered through the exercise of due diligence, the moving party will be required to undertake the additional burden of establishing that the exclusion of the additional evidence would lead to a miscarriage of justice, in that if it had been available at the trial it would have affected the verdict;8

CONSIDERING that the significance of the additional evidence must be considered in the context of the evidence which was given at the trial and not in isolation ;9

NOTING that it is important for the parties to be informed as early as possible of the Appeals Chamber’s decision in order to prepare their oral arguments;

HEREBY DECIDES that the evidence put forward in the Motion and the Supplemental Motion do not meet the requirements of Rule 115 and therefore will not be admitted as additional evidence on appeal;

NOTES finally that further reasons for the present decision will be given in due course before the hearing.


Done in both English and French, the English text being authoritative.

Judge Wolfgang Schomburg

Dated this twenty-sixth day of March 2004,
At The Hague,
The Netherlands.

[Seal of the Tribunal]

1 - Rule 115(B). See also Prosecutor v Krstic, IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (“Subpoenas Decision”), para. 4.
2 - Prosecutor v Tadic, IT-94-1-A, Decision on Appellant’s Motion for the Extension of the Time Limit and Admission of Additional Evidence, 15 October 1998 (“Tadic Rule 115 Decision”), paras 35-45; Prosecutor v Kupreskic et al, IT-95-16-A, Appeal Judgement, 23 October 2001 (“Kupreskic Conviction Appeal Judgment”), para. 50; Prosecutor v Delic, IT-96-21-R-R119, Decision on Motion for Review, 25 April 2002 (“Delic Review Decision”), para. 10.
3 - Tadic Rule 115 Decision, paras 40, 44-45, 47; Kupreskic Conviction Appeal Judgment, para. 50.
4 - Prosecutor v Krstic, Decision on Application for Subpoenas, 1 July 2003 (“Krstic Subpoenas Decision”), para. 5; Tadic Rule 115 Decision, para. 40; Kupreskic Conviction Appeal Judgment, para. 50.
5 - Krstic Subpoenas Decision, para. 14.
6 - Krstic Subpoenas Decision, para. 15.
7 - Kupreskic Conviction Appeal Judgment, para. 68.
8 - Krstic Subpoenas Decision, para. 16; Delic Review Decision, para. 15.
9 - Prosecutor v Kupreskic et al, Decision on the Motions of Appellants Vlatko Kupreskic, Drago Josipovic, Zoran Kupreskic and Mirjan Kupreskic to Admit Additional Evidence, 26 February 2001, para. 12; Prosecutor v Kupreskic et al, Decision on the Admission of Additional Evidence Following Hearing of 30 March 2001, 11 April 2001, para. 8; Kupreskic Conviction Appeal Judgment, paras 66, 75.