Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Thursday, 22nd January, 1998

2 (2.00 pm)

3 JUDGE SHAHABUDDEEN: I make sure first that

4 I am being heard by everyone, the appellant included,

5 in his own language? Thank you. Will the Registrar

6 call the case?

7 THE REGISTRAR: Case number IT 94-1-A, the

8 Prosecutor versus Dusko Tadic.

9 JUDGE SHAHABUDDEEN: May the Chamber have the

10 appearances?

11 MR KEEGAN: Yes, thank you. Good afternoon,

12 your Honours. For the Prosecution I am Michael Keegan,

13 I am assisted this afternoon by my colleagues Miss Ann

14 Sutherland and Mr Payam Akhavan.

15 JUDGE SHAHABUDDEEN: And for the appellant?

16 MR VUJIN: Good afternoon, your Honours.

17 I am Milan Vujin and with me today is Mr John

18 Livingston on behalf of the accused.

19 JUDGE SHAHABUDDEEN: The court is sitting

20 today pursuant to an order which the Chamber made on

21 24th November 1997 by which it appointed today as a day

22 on which we would hear the appellant's motion of

23 6th October for leave to produce additional evidence.

24 I would skip much of the procedural history of the

25 matter, this being well known to the parties. I would

Page 2

1 merely say that it appears to us there are three

2 appeals, two concerning the conviction of the appellant

3 and one concerning the sentence passed on him.

4 The appeal briefs in all three matters have

5 been filed on 12th of this month, subject to a question

6 which the Prosecution may wish urgently to consider, as

7 to whether their brief includes the list of authorities

8 visualised by the Rules.

9 Today's proceedings do not concern the appeal

10 relating to sentence. They concern only the

11 outstanding motion relating to the admission of

12 additional evidence. A motion for extension of time to

13 file the appeal briefs may, I think, be considered as

14 spent.

15 The Tribunal then has before it the

16 appellant's motion on 6th October 1997, the

17 Prosecution's response of 20th October, and we have

18 also seen the Prosecution's memorandum on law dated

19 21st of this month.

20 We appreciate how disorienting it can be to a

21 member of the bar to come to the bar table with a

22 structured presentation in his mind and then to

23 discover that the court would wish him to proceed along

24 some other lines, so that is not our disposition this

25 afternoon. You will be free to present your cases as

Page 3

1 you see fit, but it may be helpful to you in helping

2 the bench if you would bear in mind some of the issues

3 thrown up by what I may call, roughly, the pleadings;

4 that is to say the appellant's motion and the

5 Prosecution's response, coupled with the proceedings of

6 the Status Conference which was held on 19th September.

7 We think that it would help us if the parties

8 would address some of those issues, and they are as

9 follows in my mind: the question of the meaning of the

10 words "not available" in Rule 115(A), and in particular

11 where the material is not available, where it was in

12 fact available but due diligence may not have been

13 exercised. Again, is material not available where the

14 failure to present it to the lower court was due to a

15 mistake on the part of counsel. Again, does the Rule

16 visualise that the bench should have before it full

17 copies of the proposed additional evidence so as to be

18 able to assess it and to determine whether it meets the

19 criteria which the bench may extrapolate from the law

20 with your assistance. Is it credible, does it touch

21 any of the issues raised in the court below? Does it

22 establish the innocence of the appellant, or does it go

23 towards showing that there is substantial doubt on the

24 findings of the lower court?

25 Those are by no means exhaustively stated

Page 4

1 items. My colleagues will be throwing in their bit as

2 we go along, they will be asking questions quite

3 freely, and we would therefore welcome your assistance

4 in the resolution of these and other problems.

5 Now a housekeeping matter concerns the

6 availability of time. We have read the documentation

7 which you have so thoughtfully laid before us. We

8 suppose, of course, that each side would wish to add or

9 to explain something in the material which it has laid

10 over with the court, and we are in your hands, except

11 that I would propose this for your consideration.

12 Would it be all right, do you think, if we allocated

13 one hour to each side to make its presentation, and

14 then there could be a second round with ten minutes or

15 fifteen minutes on each side; allowing, of course, for

16 interchanges between bench and bar in the usual way.

17 MR KEEGAN: That is acceptable to us.

18 JUDGE SHAHABUDDEEN: That is acceptable to

19 the Prosecution; and the Defence?

20 MR VUJIN: It is acceptable for the Defence

21 too, thank you.

22 JUDGE SHAHABUDDEEN: We hope to terminate, if

23 I may put this to you as an outside mark, by 6.00 pm,

24 when some of the members of the bench have another

25 official occasion to attend within the precincts of the

Page 5

1 Tribunal. So now, may I invite the appellant or his

2 counsel to elaborate and to address the court as he

3 sees fit?

4 MR VUJIN: Thank you, your Honours. We are,

5 of course, quite prepared to discuss all these points

6 that you as the President of the Trial Chamber have

7 indicated, but we have to say that we have requested

8 with our motion, dated 22nd November, leave for

9 additional time to collect evidence. You have said

10 that we would skip this, so I will not dwell on it too

11 much, but I need to say that this motion of ours

12 referred precisely to the submission of reasons why we

13 need the time we have requested.

14 We do not consider this motion to be our

15 definitive request for the presentation of additional

16 evidence pursuant to Rule 115 of the Rules of

17 Procedure, because reading those Rules and the time

18 limit envisaged in that provision, we feel that we

19 still have the right to amend that request with

20 additional evidence that we managed, in the later time

21 period which was given to us as an extension, that we

22 were able to collect in that period.

23 Therefore, this time allotted to us up to the

24 moment when we had to submit our motion we spent in the

25 field seeking additional evidence which would verify

Page 6

1 and confirm the defence of the accused, Dusko Tadic.

2 All right, in our first motion for the

3 extension of the time limit for the submission of the

4 appeal, we indicated that we have found traces of

5 additional evidence which call in question the

6 conclusions of the first level Trial Chamber regarding

7 the establishment of facts relating to the activities

8 of the accused, his presence at various events and his

9 participations in the acts for which the judgement has

10 found him guilty.

11 I must point out at the outset that with

12 respect to the words and meaning of the words

13 "unavailable" that you are very well aware that during

14 the beginning and the duration of the trial of the

15 accused, Dusko Tadic, the region in which a part of the

16 events that were discussed in this Trial Chamber took

17 place was still in an extraordinary situation in view

18 of the conflict among the ethnic groups in that area,

19 that afterwards there were political disagreements in

20 that same region, and all this contributed to the

21 inability of the Defence to gain possession of certain

22 documents or of information regarding certain witnesses

23 who could appear before this court.

24 Therefore this word "unavailable" is quite

25 certainly adequate in relation to all the evidence that

Page 7

1 we have mentioned in our motion for the extension of

2 the time limit, and for all the evidence that we are

3 ready to offer this Trial Chamber today, and if

4 agreement is reached, and I think that there is no

5 doubt that the Rules are not sufficiently precise as to

6 the final limit, time limit for the submission of

7 further additional evidence, in the sense of what your

8 Honour mentioned today, that you need to have full

9 information that we are calling.

10 The question of the validity of those

11 statements will have to be discussed, and we are ready

12 to present them to you even today, because those

13 statements were taken by Defence counsel or their

14 associates. Those statements may be lacking because

15 they were not made under oath as envisaged under the

16 Rules of Procedure. In the oral argument before the

17 President of the then Trial Chamber, Judge Cassese, we

18 had offered already then, together with a

19 representative of the Tribunal and the Prosecution,

20 that we go together to collect testimony from a certain

21 number of witnesses. We stand by that proposal today,

22 pursuant to the provisions of Rule 71.

23 However, as Rule 71 provides that this be

24 done in written form, we have agreed or rather reached

25 agreement with Judge Cassese, he being the presiding

Page 8

1 judge, that in order to gain time, the Defence should

2 present what it has already at this stage, and that is

3 what we have done in our motion.

4 We are prepared to present today a list of

5 witnesses, which is again not final, bearing in mind

6 the promise made by Mrs Plavsic, the President of

7 Republika Serbska, that she will continue to co-operate

8 with us and help us find additional information and

9 believing that we have a time limit of 15 days prior to

10 the hearing in the Appellate Chamber, we are continuing

11 our work in the field and we continue to keep touch

12 with possible witnesses who were earlier unaccessible

13 and whom we would like to bring to the Tribunal or to

14 take a statement from them in lines with the Rules of

15 Procedure. We hope that the latest political

16 developments will contribute to this end positively.

17 I must also say that this word "unavailable"

18 should also be interpreted bearing in mind that the

19 former police forces in the municipality of Prijedor

20 were those that prohibited contact with certain

21 witnesses whose names we managed to obtain during our

22 investigations in the field. That is one other

23 additional reason why we believe that all evidence was

24 not presented to the Trial Chamber that would be

25 relevant for passing a fair judgement; therefore all the

Page 9

1 evidence was not presented that would guarantee a fair

2 trial for the accused Dusko Tadic.

3 The Defence in its appeal has also drawn

4 attention to not a mistake of the previous Defence

5 counsel, because we wish to avoid passing any judgement

6 on the work of our colleagues, but at the request of

7 our client, it seems to us that in a part of the

8 proceedings, the accused did not have adequate legal

9 protection, because of the position of the Defence that

10 no Defence should be made for what was related to

11 count 1 of the indictment, that is the act of

12 persecution, because the principle that one witness is

13 not a witness was applied, and that he could therefore

14 not be found guilty of those charges.

15 Having seen a film that was shown on Dutch

16 television on the work of the previous Defence team,

17 and having learnt of certain names that were mentioned

18 as potential witnesses, and which were not available at

19 the time because of the prohibition on the part of

20 Mr Sima Drljaca, chief of police, and partly also

21 because other witnesses were not available because

22 their residence was unknown, we immediately started our

23 investigations and we used to a very extensive extent

24 the data that we were able to collect from the

25 proceedings in the military Tribunal in Banja Luka

Page 10

1 against the accused Dusko Tadic for the criminal

2 offence of desertion.

3 We were present as Defence counsel at those

4 hearings to the testimony of a number of witnesses and

5 we learnt that a large number of those witnesses in the

6 investigative procedure before the military court have

7 direct knowledge, either as direct participants in the

8 events or as persons who eyewitnessed certain events,

9 about what was happening in Kosarac, Omarska, Keratem,

10 Trnopolje, as to whether the accused was there at all

11 or not, what his views are regarding nationality

12 problems and so on. All these problems were reviewed

13 in the military court and a large number of witnesses

14 were heard and we used a part of those statements, we

15 have collected them, and we are ready to present them

16 to the Chamber in the form in which we receive them, as

17 well as a part of the statements that we received

18 talking to witnesses, and we have those statements in

19 writing, signed by them.

20 Therefore, we managed to discover certain

21 names of witnesses only by attending the proceedings in

22 the military court in Banja Luka. That is also an

23 explanation why we were unable to get the names of

24 those witnesses before because those proceedings were

25 not underway as they are now.

Page 11

1 As regards the question of the credibility of

2 that evidence, the Defence, together with its appeal,

3 and in addition to indicating the names of witnesses --

4 for some we used a pseudonym because we feel they need

5 to be given protection -- we have also submitted a

6 large number of written documents that we managed to

7 obtain after hearing these proceedings in the military

8 court, and those documents that have been attached and

9 provided are photocopies of original documents which

10 are at the disposal of this Chamber when they are

11 reviewed and therefore the Defence counsel has nothing

12 against an order by the Chamber for the credibility of

13 these documents to be verified, for these documents to

14 be authenticated.

15 A large number of those documents have to do

16 with medical reports regarding the accused, as well as

17 some witnesses. These are original medical documents

18 of which we have provided the photocopies, and on the

19 basis of which it is possible to link certain

20 allegations of witnesses who are familiar with the

21 facts.

22 Therefore, the position of the Defence is

23 that all the documents submitted are fully credible and

24 authentic and that any rejection of that written

25 evidence would put us in a position not to be able to

Page 12

1 establish the truth, because a part of them corroborate

2 the alibi used by him in his defence, whereas some of

3 the documents also negate some other facts established

4 by the Trial Chamber.

5 For this reason, the Defence is requesting

6 from the Appeals Chamber leave to give instructions so

7 that a representative of the Tribunal and a

8 representative of the Prosecution and the Defence

9 should jointly interview some witnesses, a list of whom

10 we have today and are ready to provide it to

11 your Honours; however, a part of those statements are

12 in the form I have already described, they are either

13 records taken from the military court in Banja Luka, or

14 a record that we kept, minutes that we kept as Defence

15 counsel, and we are ready to offer them to you now so

16 that these witnesses should be interviewed. We feel

17 that in so doing we would be saving time and resources,

18 because in that case these witnesses would not have to

19 be brought before the Appeals Chamber, since the

20 procedure in the Appeals Chamber applies mutatis

21 mutandis, the same procedure applies as in the Trial

22 Chamber.

23 Mr Livingston -- we will speak in greater

24 detail about this, but we would like to request the

25 assistance of the court should our attempt, our

Page 13

1 proposal for us to interview these witnesses that we

2 have mentioned jointly, and should that fail, that an

3 order be given to Republika Serbska or some other

4 state, Yugoslavia if any of those witnesses are there,

5 that they have to appear before this Appeals Chamber.

6 What we have offered as additional evidence

7 are statements by witnesses for several of the main

8 events for which the accused has been sentenced by the

9 Trial Chamber. Those are events that took place in

10 Kosarac for which we are offering a series of witnesses

11 who claim opposite to what was alleged by some

12 witnesses during the hearings; that is that Dusko Tadic

13 was present. They are denying that, and we feel that

14 as a Chamber, somehow not hearing the witnesses who

15 have allegations opposite to those made early on, it

16 will not be possible for you to establish whether the

17 Trial Chamber established the truth or not.

18 Let me just give you a small example. The

19 statement of a witness who testified before the Trial

20 Chamber regarding the presence of the accused in

21 Kosarac during the events of 24th to 27th May and she

22 claimed that she had seen the accused Dusko Tadic in a

23 certain situation and from a certain position. That

24 witness also appeared as a witness before a military

25 Tribunal in Lausanne, France, where the accused was

Page 14

1 Goran Grabez and where that witness claimed that she

2 had seen Goran Grabez in the same period, in Kosarac,

3 whereas the military court in Lausanne established that

4 at that time Grabez was in Austria and Germany, so he

5 could not be there; he had an absolute alibi and Grabez

6 was released.

7 We have offered a photocopy of that judgement

8 of the court in Lausanne and the record, the transcript

9 from the main hearing of that witness, and she claimed

10 there that she saw someone and it was established that

11 she did not, and in this case too, she claims that she

12 saw the accused, then one must call in question her

13 testimony here, the more so as we have offered the

14 names of witnesses who claim that Dusko Tadic at that

15 time was elsewhere and this is corroborated with

16 certain documents and there is no secret in it, we can

17 mention it, that we also have medical documents for his

18 mother, whom he took for check-ups in that period, so

19 these documents corroborate this.

20 I am mentioning this only to illustrate the

21 importance of these elements. If we want the fair

22 trial and if we want to establish the truth, then we

23 need to hear the witnesses that we have now found and

24 any other witnesses that we may discover, taking into

25 account the time that we still have at our disposal

Page 15

1 prior to the hearing.

2 Those would be our introductory arguments and

3 pleadings why we believe it is absolutely essential

4 that, pursuant to the provisions of Rule 115, you

5 accept our motion, because we consider that this

6 additional evidence is of such probative value that it

7 is absolutely essential that it be admitted. Thank

8 you, your Honours.

9 THE INTERPRETER: Microphone, your Honour,

10 please.

11 JUDGE SHAHABUDDEEN: Let me ascertain from

12 the bench whether we have any questions which we may

13 wish to put to you at this time, or whether we would

14 hold our questions until we shall have heard

15 Mr Livingston. Mr Livingston.

16 MR LIVINGSTON: May it please your Honours.

17 I would like to try and get to the core of the

18 situation which we are in today, and, putting it

19 shortly, although I say this with some regret, I am not

20 sure that your Honours are in a position to deal with

21 the motion to admit the additional evidence today.

22 I say that for this reason: there was I believe a

23 hearing at which I was not present on 19th September,

24 I think before his Honour Judge Cassese alone, where he

25 was faced with an application which was essentially to

Page 16

1 extend time for filing the appellant's brief. His

2 Honour, and I say quite rightly, pointed out that a

3 good reason had to be provided for granting that

4 extension. There were in fact numerous reasons which

5 could have been given for asking for that extension, a

6 number of which I set out myself in a letter to his

7 Honour Judge Cassese of 7th November, but the

8 particular one that Mr Vujin latched on to on

9 19th September related to the calling of new or

10 additional evidence in this case.

11 As a result, his Honour Judge Cassese, as

12 I understand it, and I am open to be corrected, because

13 I think Mr Keegan was there that day as well, I am open

14 to be corrected if I am wrong, ordered that some idea

15 be given by the Defence of what that additional

16 evidence was so that some evaluation could be given as

17 to whether it was worthwhile giving an extension of

18 time.

19 Had I been there on 19th September, I would

20 have straight away pointed out that the Defence were

21 not in a position at that time, nor within the time

22 limit allowed for filing of the motion, we were not

23 ready and would not be ready to put in the new evidence

24 in the appropriate form. However, the order having

25 been made, I particularly did my best to comply with

Page 17

1 it, and hence you have before you what is labelled

2 "motion for the extension of the time limit", and what

3 in essence it does is to try and summarise in as much

4 detail, and I say this because I was primarily

5 responsible for drafting it, as much detail as

6 possible, the essence of the evidence which we

7 anticipated that we would be asking the Trial Chamber

8 to allow the witnesses to give.

9 I should point out immediately that a number

10 of those witnesses had not been properly seen, they had

11 not been properly interviewed at the time, and I would

12 resist any attempt to hold Mr Tadic or his Defence team

13 to any particular statement in that motion. It was

14 stated to be provisional because it could not have been

15 in its final form, and unfortunately, that is the

16 only -- it has been termed hereafter unfortunately as

17 the Rule 115 motion to admit new evidence, but that is

18 the only motion of that sort which you have, and it is

19 specifically stated to be provisional.

20 When Mr Keegan and his colleagues came to

21 reply to that motion, it was not a great surprise to

22 see that he was asking for the evidence to be put in a

23 rather different form. That is something which

24 Mr Vujin and I have been attending to and we now do

25 have -- although these documents, as I understand it,

Page 18

1 have not yet been submitted to the Prosecution or to

2 the Tribunal -- we now do have proper detailed

3 statements from most of the witnesses who are referred

4 to in that motion of 6th October, and I think I am

5 right in saying, I am sure Mr Vujin will correct me if

6 I am wrong, that we are in a position today to

7 file those statements.

8 I remember, it is not very long ago, so my

9 memory does not have to be that good, but Judge

10 Shahabuddeen did say in opening the proceedings this

11 afternoon that the Tribunal would want to see exactly

12 what the new evidence was going to be. I do not think

13 you can do that, with respect, simply by looking at our

14 motion of 6th October. You would need to be able to

15 look at --

16 JUDGE SHAHABUDDEEN: Just a moment. I do not

17 have the perfect power of recall, but I doubt if

18 I ruled on the point. I threw it out as an item for

19 consideration, on which counsel for both sides might

20 wish to address the court.

21 MR LIVINGSTON: I am grateful for that and

22 I am sorry if I misrepresented your Honour's position,

23 but I think the reality is, any court, any responsible

24 court which is faced with an application to admit new

25 or additional evidence must have that new evidence

Page 19

1 before it in a proper accurate form, in as detailed a

2 form as the party applying to call it would wish it to

3 be in. Otherwise, I do not think it is possible -- in

4 my submission it is not possible to judge whether it is

5 admissible within the Rules or not. This is why I come

6 back to the point that I opened with, that at the

7 moment, the Tribunal, the Appeals Chamber, does not

8 have that evidence in that form before you.

9 Can I also say this? Although I have

10 indicated that we would be in a position, should the

11 Appeals Chamber, should your Honours order it this

12 afternoon, although we would be in a position to

13 file numerous of those statements, a great many of them

14 are actually still in the Serbo-Croat language, and do

15 need to be translated. It was necessary for the

16 statements to be made in Serbo-Croat I think for the

17 obvious reason that it was important that the witnesses

18 should be able to read them themselves and feel

19 confident about signing them at the end, but many of

20 them have not been translated and they plainly would

21 need to be translated.

22 My submission is that until those statements

23 have been filed, until Mr Keegan and his team have had

24 a chance to look at them, after, of course, they have

25 been translated, we cannot actually take this question

Page 20

1 of the motion to admit the new evidence any further at

2 the moment.

3 Can I also say this? This question of the

4 new or additional evidence is related to certain other

5 matters which are before the Appeals Chamber. Notably,

6 it is related very much to the request for binding

7 orders which your Honours will be aware were filed back

8 in November, because one of the reasons why we have not

9 filed what I would call a proper motion to admit new

10 evidence or additional evidence is because that might

11 have been rather subsumed by what happened to our

12 request for binding orders, because if those are

13 acceded to, there could well be quite a bit of extra

14 additional evidence that we would be applying to put

15 in, and in my submission, it did not make a lot of

16 sense to finalise our position until we knew where the

17 land lay in relation to our request for binding

18 orders.

19 I hope that this Appeals Chamber will deal

20 with that request relating to the binding orders this

21 afternoon, because if they are to be granted, then more

22 work is required and we would like to be able to get on

23 with it, of course, as soon as is possible, but that is

24 clearly a matter which is heavily related to the

25 application for new evidence.

Page 21

1 Your Honour, what I would ask is that the

2 Appeals Chamber give us some guidance this afternoon,

3 because this is, of course, the first appeal against

4 conviction to come to this Tribunal, as to the future

5 progress of this motion; in other words, setting dates

6 for filing any new statements that the Defence propose

7 to rely on, including translation, for consideration of

8 them by the Prosecution; also to deal with the binding

9 order request, to deal with the matter about which

10 Mr Vujin mentioned, about the Prosecution and the

11 Defence jointly going to Republika Serbska to interview

12 some of the witnesses who are mentioned on the second

13 of the binding order requests.

14 Your Honour, can I say this? I do not

15 particularly want in open session to mention the names,

16 but an indication has certainly been passed to me by

17 all sections of those who are in power in Republika

18 Serbska, and I use that because it may be thought that

19 there are different political factions there, and at

20 times it may be said that it is not clear precisely who

21 is in control of what, but the information has been

22 passed to me from all sides that the granting

23 particularly of the second binding order request which

24 relates to Republika Serbska would be welcomed, and it

25 certainly, as I think I have indicated before in the

Page 22

1 documentation, there has been a complete absence of

2 voluntary assistance whatsoever, but it is thought that

3 if the court were to make appropriate orders that that

4 co-operation might well be forthcoming.

5 I think I should stress that so that the

6 limitations which the Defence now and even more I think

7 at trial, the limitations which they had to work under

8 I think could now be alleviated if the requests were

9 granted, particularly the second one, accordingly.

10 I do not want to do the binding order matters in open

11 session, I think for reasons which your Honours will be

12 aware of.

13 JUDGE SHAHABUDDEEN: It is ex parte at the

14 moment.

15 MR LIVINGSTON: Yes. I just thought it was

16 only right to mention it, because it does relate to

17 this whole motion concerning new evidence and what the

18 appropriate time would be to consider it. Can I also

19 say this, that the Prosecution have recently filed a

20 motion which I only saw yesterday relating to the large

21 number of exhibits which are annexed to the appellant's

22 brief. They are, of course, new or additional evidence

23 in the very limited sense that none of them were before

24 the Trial Chamber. I do not think anybody would

25 disagree with that, but I think the Prosecution cannot

Page 23

1 have it every way here, because initially their

2 complaint was that the Defence had not put in full

3 enough details of the additional evidence that they

4 wanted, that was the response to 6th October motion.

5 Now that we have put in much fuller information,

6 including the annexes to the appellant's brief, it is

7 really a matter now, whatever the procedural situation,

8 it is really a matter now of evaluating that

9 information to see whether it complies with the

10 requirements of Rule 115 or not. I hope that the

11 Appeals Chamber will cut through the technical

12 arguments, whether the Defence may technically be in

13 breach of orders concerning the filing of appellant's

14 briefs; what matters is, what is the evidence that the

15 Defence asks to call and does it comply with Rule 115?

16 The sooner that evidence is before the Appeals Chamber,

17 the better.

18 In my submission, the Defence should not be

19 castigated for lodging that with the appellant's

20 brief. At least it is now with the Prosecution, they

21 are now in a position to look at it and assess it and,

22 of course, it does very much form part of the Rule 115

23 application, and if the Prosecution and anybody else

24 has not looked at the annexes and considered them, then

25 I do not think again we are in a position to deal with

Page 24

1 the matter today.

2 There is one final point I would like to

3 make. Served on me this morning, of course, is the

4 memorandum produced by the Prosecution, the legal

5 memorandum about the meaning of Rule 115. I have read

6 it, but I have to say that I have not really had an

7 opportunity to consider it in any great detail, and

8 frankly, I would be rather loath to embark on an

9 argument relating to a very important motion on such

10 very short notice.

11 So your Honours, what I would invite you to

12 do is to give directions today as to the future conduct

13 of a motion to call additional evidence, and that would

14 include, if you see fit, the filing of a proper motion

15 relating to the calling of that new evidence, which in

16 my submission has not actually been done, although

17 various parties seem to be under the impression that it

18 has been.

19 Your Honour, unless there are any other

20 matters which you wish to ask me about at this stage,

21 those are my submissions.


23 Mr Livingston. Let me enquire from colleagues whether

24 they would wish to put any questions now or after the

25 Prosecution has replied. Thank you, Mr Livingston.

Page 25

1 May I invite the Prosecution to address the Chamber?

2 MR KEEGAN: Thank you, your Honour. Good

3 afternoon. May it please the court.

4 To address just a couple of the housekeeping

5 matters, to inform you, your Honour, the book of

6 authorities was filed at 2.00 this afternoon, so as we

7 were coming into the courtroom.

8 JUDGE SHAHABUDDEEN: Mr Keegan, since it has

9 been filed this afternoon, and since the interval

10 between the filing of the appeal briefs and the filing

11 of the list of authorities is relatively modest, may I,

12 however, enquire from the Defence whether they have a

13 position on that?

14 MR VUJIN: No, the Defence has had no time to

15 take a position on this.

16 JUDGE SHAHABUDDEEN: Very good. The court

17 will determine its position.

18 MR KEEGAN: Thank you, your Honour. Moving

19 on now, your Honour, to the issues of the day, noting

20 your opening remarks, we believe that our memorandum of

21 law which was served on the lead Defence counsel

22 yesterday afternoon addresses the particular questions,

23 our interpretation of international standards on the

24 particular questions you asked.

25 I would simply indicate that the

Page 26

1 international standards are clear. The two basic

2 requirements for the introduction of new evidence would

3 indicate that first there is in fact a due diligence

4 standard incorporated in the international standards,

5 and the standards incorporated by the majority of

6 states; and that is set out, forth in the international

7 documents by indicating that the unavailability of the

8 evidence at trial cannot be attributed in whole or part

9 to the accused and the defendants, and that the

10 question of the evidence itself, before it could be

11 admitted, it must be of such a nature that it would

12 conclusively show that there has been a miscarriage of

13 justice.

14 I think that those two standards generally

15 address the particular issues that you raised, the four

16 questions about the evidence itself and the question of

17 whether a due diligence standard exists.

18 Further, we would submit that the

19 jurisprudence of this Chamber itself has indicated that

20 that international standard has been in fact adopted

21 already by this Tribunal, in particular obviously in

22 the Erdemovic case as we cited in our brief. The

23 unanimous holding of the Appeals Chamber in that

24 decision clearly indicates that the due diligence

25 standard has been adopted and as well the issue of the

Page 27

1 material nature of the evidence, put in terms of

2 relevance in that particular judgement, and also, as

3 reflected in the statements, the comments of Judge

4 Cassese to the parties in this particular case during

5 that Status Conference which has been referred to.

6 Moving on now in fact to the Defence's

7 request in this particular case, I note on the one hand

8 that the general content of the Defence's submission

9 here today is that they have been unable to comply with

10 the order of the Appeals Chamber to submit its brief on

11 this question because of an inability to collect the

12 evidence which they would then want to submit with that

13 brief.

14 On the other hand, in the final submissions

15 of Mr Livingston, he indicates that in fact much of

16 that evidence has been included in the appeals brief.

17 We might say that in fact in reading the appeals brief

18 you find that it is in fact the motion for the

19 consideration of new evidence itself as opposed to a

20 brief that addresses the particular issues on appeal

21 that were raised by the Defence in their Notice of

22 Appeal. That is what prompted our motion for a

23 clarification.

24 So the Prosecution is now prepared today to

25 deal with the state of the Defence's request for new

Page 28

1 evidence as it stands now, and that includes an

2 incorporation to a degree of the material submitted

3 with the appeals brief. If we use the submission in

4 October, filed in accordance with the instructions of

5 Judge Cassese as the framework, we are prepared to

6 address each of the sections and compare them against

7 the standards which would be required for a

8 consideration of that material as appropriate to be

9 submitted as new evidence.

10 If we start then with paragraph A of the

11 Defence brief, where they contend that there is an

12 issue of mistaken identity, of confusion with respect

13 to the appellant for the crimes for which he was

14 convicted. The Defence contends that there is a

15 confusion by the witnesses in the identity and state

16 that one Miso Danicic in fact made a voluntary

17 confession to a -- this Miso Danicic made a voluntary

18 confession to a Serbian journalist in August 1995 that

19 he in fact had committed the crimes and that the

20 Defence were unaware of this until Lubimir Tadic was

21 approached by the journalist, allegedly in March 1995.

22 In fact, we submit this evidence was well

23 known to the Defence at the trial, and I would briefly

24 cite to the following extracts of evidence which are

25 part of the appellate record. 19th June 1996,

Page 29

1 Mr Wladimiroff cross-examines a witness, asking him:

2 "Do you know Mr Danicic, or a person called

3 Mr Danicic?"

4 On 17th July, another witness again asked

5 whether he knows Miso Danicic. On 18th July in

6 cross-examination, Mr Kay, in questioning a witness,

7 indicates to the witness, makes the suggestion that she

8 in fact was mistaken when she says she identified Dusko

9 Tadic in Omarska and then Mr Kay then puts to her:

10 "What I would like to put to you is this, do

11 you know a man called Miso Danicic?"

12 Again on 19th July, a witness is asked the

13 same question, 24th July --

14 MR VUJIN: Your Honour, I do apologise for

15 the interruption, but if I may make an objection?

16 Mr Keegan has entered into a deliberation of evidence

17 which may be presented. I thought that we had agreed

18 that in our statements, we present our general

19 positions regarding Rule 115. We have stated loud and

20 clear that we do not still consider having made a

21 motion for the presentation of new evidence, bearing in

22 mind the time limit for that, according to Rule 115.

23 It is not correct to say that Judge Cassese had given

24 us an order to submit a brief with additional

25 evidence. We were given instructions to submit a

Page 30

1 motion for the extension of the time limit and to

2 illustrate in it what we had done and what we intend to

3 do. So our objection would be that we do not dwell on

4 individual aspects of that motion, but only when we

5 hear when you will consider the date for our submission

6 of the request for additional evidence.

7 JUDGE SHAHABUDDEEN: I need to intervene

8 here, for purposes of clarification. I do have to

9 confess to you that my own understanding of the status

10 of our proceedings today, and I believe I reflect the

11 views of colleagues, was that we were going to listen

12 to a motion for leave to admit additional evidence

13 under Rule 115. Now, if there is no such motion before

14 the Appeals Chamber today, then what is the nature of

15 the motion that we are debating? Does it come under

16 any Rule which makes the hearing a cognisable hearing,

17 a competent hearing?

18 MR LIVINGSTON: Perhaps I can answer that.

19 Your Honour. The position I think is this, and

20 I accept it is perhaps a confusing one, but the motion

21 that was filed on 6th October is quite clearly headed,

22 and I was not responsible for heading it, Mr Vujin did

23 that and Mr Vujin was here in September before his

24 Honour Judge Cassese, but it is clearly headed, "Notice

25 for extension of time", words to that effect. There is

Page 31

1 actually no motion before the court at all headed

2 "motion for the adduction of additional new evidence

3 on appeal". There is no motion which is headed like

4 that whatsoever. What has happened, it seems to me, is

5 that because the reason for extending time to file the

6 appellant's brief that was given in September was the

7 need to obtain and put in proper form new evidence to

8 call on the appeal, and because we were ordered to give

9 an indication of what that evidence might be, that what

10 has been interpreted as a Rule 115 motion was

11 incorporated in that motion to extend time.

12 I do not pretend that there is not an attempt

13 there to deal, for example, with the questions of

14 unavailability to a party at trial and whether the

15 calling of evidence is in the interests of justice, but

16 I do stress that that motion was provisional, and there

17 is certainly no motion in a perfected or final form.

18 Indeed, that remains the case even today, but having

19 said that, I think it is abundantly clear, or it must

20 be abundantly clear to anybody who has read the

21 appellant's brief, that it is a central plank of the

22 appellant's position that he does wish to call further

23 evidence, new evidence on appeal which was unavailable

24 at trial and which it is in the interests of justice

25 that this Appeals Chamber should admit.

Page 32

1 That is a central plank; the problem is that

2 at the moment, although it seems that the Appeals

3 Chamber has regarded it differently, there is actually

4 no final motion before you. You may say to us, "go

5 away and formulate your final motion". I tried to

6 explain earlier that the reason why it has not been put

7 in a final form is because we took the view, rightly or

8 wrongly, that the Appeals Chamber should deal with the

9 binding order requests before a final motion concerning

10 new evidence was filed, because the answer to the

11 binding order motions might well affect the contents of

12 that motion, and the documents which were submitted

13 with it, for example witness statements.

14 It did not seem to us, and if we were wrong

15 then I am sure you will indicate that, but it did not

16 seem to us that it was particularly helpful to submit a

17 motion for new evidence with documentation which might

18 not end up being complete, and then have to ask again

19 after the binding order matter has been dealt with to

20 call further new evidence or make a new application.

21 So that is the reason why there has been no

22 final motion put before you, but I do not want you to

23 be under any misapprehension. There is no other motion

24 before you within the Rules. It will be, and I do not

25 pretend that it is not, a Rule 115 motion, but it is

Page 33

1 just that it is not in its proper form at the moment,

2 for reasons which I hope I have managed to explain. If

3 I have not, then perhaps you would care to ask me any

4 further matters which I can then clarify.

5 JUDGE SHAHABUDDEEN: Please would you help

6 the bench to follow what is being said. I understand

7 you to be saying that there has been an evolution in

8 some of the juridical factors which compose the

9 situation. Originally, so I understand you, the

10 question of your being able to produce additional

11 evidence was intended to be the foundation for your

12 request for extension of time to file your appeals

13 briefs.

14 MR LIVINGSTON: Absolutely.

15 JUDGE SHAHABUDDEEN: So far as we can see,

16 the appeal briefs have been filed.


18 JUDGE SHAHABUDDEEN: So that rationale has

19 terminated its life.


21 JUDGE SHAHABUDDEEN: Is there any motion now

22 before the court under Rule 115, or was there ever any

23 motion before the court under Rule 115?

24 MR LIVINGSTON: It appears to me that there

25 is not, but, of course, it is the appellant's position

Page 34

1 that such a motion should be considered, and indeed we

2 have gone a long way down that track already. I say

3 that simply because the motion which was filed and it

4 was not titled by me, it was titled, "Notice of motion

5 to extend time", and that is plainly not a motion under

6 Rule 115, although the justification given for the

7 application to extend time was that there was a desire

8 to invoke Rule 115, but it does not actually appear to

9 me, although I appreciate it has been assumed by many

10 people that there is a Rule 115 motion in existence at

11 the moment, though as I hope I have made clear there is

12 a wish to make such an application, and it may be that

13 it can all be short circuited, since a number of the

14 matters are raised in the earlier motion of

15 6th October.

16 JUDGE SHAHABUDDEEN: Should the bench

17 understand you -- Mr Vujin, yes?

18 MR VUJIN: Your Honour, I should like to

19 present my understanding of this discussion that we are

20 having today, namely when we discussed the matter with

21 Judge Cassese, we came to the conclusion that there was

22 some imprecision in Rule 115, and that is why some

23 preliminary steps need to be taken, which means if the

24 Defence, pursuant to provision 115(A), is able to

25 submit a motion for the introduction of new evidence,

Page 35

1 and if such a motion has to be submitted to the court

2 and the other parties 15 days before the hearing in the

3 Appeals Chamber, then we believe that we still have

4 some time available, and it cannot be otherwise, but

5 what we would like is to assist the bench and all of us

6 here in promoting the efficiency of the proceedings by

7 reaching agreement as to the form in which that

8 evidence needs to be presented to this court, so that

9 it might decide whether that evidence can significantly

10 affect the judgement of the Trial Chamber.

11 We believe, because at this stage it is only

12 us that -- only we are familiar with the contents of

13 the witnesses' statements, we believe that those

14 statements absolutely call in question the conclusions

15 reached by the Trial Chamber, so that brings us to the

16 question of whether this Appeals Chamber will accept as

17 relevant evidence what we are offering straight away

18 now, and those are the statements of witnesses, some of

19 which have been translated, others are still in

20 Serbian, and we wish to present them to you and the

21 Prosecution.

22 This is only a part of the witnesses'

23 testimony that we have in our possession, but it is up

24 to you to tell us "we accept that as evidence", that is

25 all. Or we have to find a form together, some way in

Page 36

1 which that evidence can become relevant, and it can be

2 relevant only if the witness makes that statement under

3 oath. For that, we have two possibilities; either to

4 use the provisions of Article 71 to interview the

5 witness out of court, in the presence of the

6 Prosecution and the Defence, to make that evidence

7 relevant; or it can be by video conferencing or by his

8 actual presence in court, so we have those three

9 possibilities. We have the statements here; if you

10 wish, we wish to give them to you straight away through

11 the Registry, with the help of the usher -- will you

12 please be kind enough, Mr Usher, to accept these

13 exhibits.

14 JUDGE SHAHABUDDEEN: My colleague Judge

15 Cassese will pose a question.

16 JUDGE CASSESE: Thank you, Mr President.

17 Actually, since my name has been mentioned many times,

18 I would like to clarify what I think to be best of my

19 recollection I stated in the Status Conference, in the

20 closed session. I do not have the transcript of our

21 hearing close at hand, so I am quoting from memory. We

22 can check up afterwards.

23 What I intended to say, and I think I did say

24 on that occasion, was that -- I tried to draw the

25 attention of both parties, in particular the appellant,

Page 37

1 to the distinction between Rule 115 and 116. At that

2 stage, counsel for the appellant was insisting on an

3 extension of a time limit, and I said, "look, under

4 Rule 116 you have, if you want to get an extension of a

5 time limit, you have to show a good cause", and I said,

6 "in practice, I see from what you are saying that

7 actually your good cause would be the need to produce

8 new evidence", so therefore we move from 116 to 115.

9 In any case, to be on the safe side, we

10 decided, I think the Appeals Chamber decided to grant

11 the extension of time limits. However, I made it very

12 clear that you had to put in a motion under Rule 115

13 requesting leave to produce additional evidence, so

14 I am afraid you were under a misunderstanding or

15 confusion between these two different Rules which were

16 applicable, but I think I made it very clear and

17 actually, although the motion submitted on 6th October

18 1997 is titled, "Motion for the extension of the time

19 limit", it is very clear if you read from the first

20 line that this is a motion under Rule 115, so the title

21 is a sort of misnomer. I do not know whether it can be

22 called a misnomer. It is mistitled. The substance of

23 the motion is a motion relating to a request for the

24 production of additional evidence.

25 I think this is important, and I think that

Page 38

1 since we have to stick to the general principle of

2 international law relating to international

3 proceedings, international trials, whereby no formalism

4 must be banned from international proceedings, I think

5 we should consider, this is my humble view, the Appeals

6 Chamber should consider the substance of this motion

7 filed on 6th October and consider it as a motion under

8 Rule 115, as is clearly stated on page 1 of your

9 motion.

10 The question therefore now arises of whether

11 or not we have to go through this motion, hear both

12 parties and then decide on the substance of the motion

13 and the arguments, oral arguments made by both parties

14 before the bench today, or whether we may decide that

15 we need further documents, for instance the witness

16 statements and so on. But let us -- to my mind,

17 Mr President, I think we should be clear about this

18 particular problem. The motion is before the bench,

19 and is as a motion based, I am sorry to repeat it

20 again, based on Rule 115.

21 MR LIVINGSTON: Your Honour, can I just deal

22 with that? I am quite happy that that, of course,

23 should be the case, and since I drafted most of that

24 particular motion, I am well aware of its contents and

25 I am well aware that it was geared up to dealing with

Page 39

1 compliance with Rule 115. I think what your Honour has

2 to understand though -- this is why I stressed it was a

3 great pity that I was not here in September, because it

4 was impossible for us to draft at that time a proper

5 Rule 115 notice.

6 I do stress that we did our best in the

7 circumstances to comply with your Honour's order and

8 all you have is a summary of what we anticipated the

9 witnesses would say. Things have moved on since then,

10 and Mr Vujin has handed in a bundle of statements today

11 which are statements by a number of the witnesses who

12 are referred to in what we will now call the Rule 115

13 motion.

14 Mr Keegan is starting off to try to pick us

15 off point by point according to the motion of

16 6th October. The fact of the matter is that there are

17 a number of points which are contained in the

18 6th October motion which we no longer pursue, because

19 the witnesses have actually told us something different

20 from what we expected, and that was the problem, that

21 was always the problem about having to file the motion

22 at what was really too early a stage for us to do it

23 properly, and I am concerned about argument taking

24 place on the basis of statements in the 6th October

25 motion which have now been superseded by what is in the

Page 40

1 statements which Mr Vujin has handed in a short time

2 ago.

3 It seems to me that if the motion is to be

4 considered properly, it must be done on the basis of

5 the evidence which we actually wish to call, not

6 summaries which are to some extent -- they were the

7 best we could do at the time, but were based on either

8 inadequate interviews or telephone conversations or

9 whatever with witnesses and which were not the subject

10 of full instructions. That is why it was expressly

11 said to be provisional, and that is why, even if one

12 does regard that as a proper Rule 115 motion, one

13 should not simply look at the new evidence in terms of

14 what is set out in each of the paragraphs of the

15 motion, because it is simply not the appellant's

16 position today. Things have moved on, the statements

17 are there and that is what we are actually asking the

18 Appeals Chamber for leave to admit; not the matters

19 which are summarised in that motion of 6th October.

20 JUDGE SHAHABUDDEEN: Mr Livingston --

21 MR VUJIN: Your Honours, I do apologise, but

22 it is very important for us to know what the position

23 of the Chamber is, what is evidence? If these written

24 statements are acceptable as evidence, we can give them

25 today and we can discuss them pursuant to Rule 115.

Page 41

1 That is what we need to know first. Otherwise we

2 cannot talk about Rule 115 because you do not have the

3 contents of the new evidence, and then how will you be

4 able to assess whether that evidence is relevant in

5 terms of justice. That is the main problem, and it is

6 not true that we agreed to prepare it as a motion under

7 Rule 115, but this was rather an illustration of our

8 request for the extension of the time limit; but if you

9 accept this evidence, then everything is fine and we

10 can continue the discussion.

11 If you say that this is not evidence, that

12 you need to study it, then please let us determine how

13 we should deal with these witnesses, so that their

14 statements and their testimonies should be relevant and

15 only then you can discuss; of course, accompanied with

16 our oral arguments, we would need another public

17 hearing in that case. Thank you.

18 JUDGE SHAHABUDDEEN: Well, Mr Vujin, Judge

19 Cassese confirms the impression which I conveyed to

20 you, that the understanding of members of the Chamber

21 was that we were coming to sit here today on a motion

22 for leave to admit additional evidence. That was

23 indeed our understanding, as Judge Cassese confirms.

24 But we have received a contrary impression from counsel

25 for the appellant, which is to the effect that the

Page 42

1 present motion is not a Rule 115 motion. My question

2 to you was that if you confirm that, then it would

3 appear to me that since you are master of your own

4 motion, that you yourself consider there is no motion

5 before the court.

6 MR LIVINGSTON: Your Honour, can I simply say

7 this? I am quite content to adopt Judge Cassese's

8 reasoning and accept that there is a Rule 115 motion in

9 front of the court. I am quite happy to do that. All

10 I want to make clear is the limits of the motion that

11 was filed. That is my point, that it is a Rule 115

12 motion wrapped up in a Rule 116 motion, if you want to

13 call it that, and one has to understand the limitations

14 of that. The purpose of the contents were to try and

15 get an extension of time, not as much geared up to a

16 final concluded hearing on a motion to admit new

17 evidence. That is the point.

18 JUDGE SHAHABUDDEEN: All right. Well, I will

19 not pretend to be able at this moment to fathom all the

20 niceties concerning the provisional character of the

21 motion. I am content with your acceptance of this

22 motion as a Rule 115 motion and I would at that point

23 therefore turn the matter back to the Prosecution.

24 MR LIVINGSTON: But your Honour, before

25 Mr Keegan resumes I do want to point out that although

Page 43

1 you can treat it as a Rule 115 motion, you should not

2 be holding the Defence to the details of it, which is

3 what, of course, Mr Keegan was starting to go through

4 and that is the problem, because the evidence which we

5 actually rely on is evidence that he has not seen.

6 That is the point.

7 JUDGE SHAHABUDDEEN: I see. Let us see how

8 far he goes.

9 MR KEEGAN: Thank you, your Honour. I must

10 confess that the assertions of counsel catch me a bit

11 by surprise. We see that there are perhaps only a

12 couple of ways to proceed today, given their many

13 qualifications on where we are with this proceeding.

14 The first would be, of course, the scheduling

15 order of 24th November is quite clear as to what we

16 were going to do here today, and that was to deal with

17 the motion under Rule 115, so the fact that there was

18 no communication, at least as far as we are aware, that

19 the Defence did not find that that was the status of

20 their motion sort of indicates to us that they believed

21 at least or should have understood that this was a 115

22 motion that we would consider today.

23 If the Defence is now submitting that the

24 state of the evidence as it existed in their October

25 filing has changed, we could perhaps then consider that

Page 44

1 the appeals brief is, if you will, a de facto

2 submission on the 115 motion, since it certainly does

3 not address the points of appeal. Rather it seems to

4 be totally consumed with the issue of new evidence;

5 some 600 pages, plus 230 pages of assertions by

6 counsel.

7 The Prosecution would be prepared to proceed

8 with arguments relative to whether or not the Defence

9 has met their burden on this issue by simply asking the

10 Defence to affirm if the categories to which -- or

11 should I say the issues that this evidence is intended

12 to address remain the same as identified in their

13 6th October motion. If that in fact is the case,

14 mistaken identity and so forth, the Prosecution

15 believes in fact that it does not matter under the

16 standards for admission of new evidence quite frankly

17 what the state of their new evidence is, since they

18 cannot even meet the minimum standards contained within

19 the availability issue, and that is that these matters

20 were fully addressed at trial and therefore additional

21 evidence at this point would not be acceptable in any

22 event. So if that is the case, we are prepared to

23 proceed in that fashion, your Honour.

24 The converse of that, your Honour, I am

25 sorry, is if the Defence are now indicating that they

Page 45

1 have additional areas, it seems to me that the best the

2 Prosecution can do to assist this Chamber would be to

3 address the areas which they do admit their evidence is

4 relevant to, and then we would somehow need additional

5 time to respond to the other areas they now indicate,

6 so if the Defence could at least indicate if their

7 evidence is addressed on the same areas raised in the

8 6th October filing, we are prepared to continue with

9 our submissions indicating why that any additional

10 evidence at this point would not satisfy the burden.

11 JUDGE SHAHABUDDEEN: Let me understand you,

12 Mr Keegan. You are inviting your colleagues on the

13 other side of the bar to indicate to you whether the

14 additional material they have concerns the particular

15 issues raised in their motion of 6th October?

16 MR KEEGAN: Correct, your Honour.

17 JUDGE SHAHABUDDEEN: And if they did that,

18 you would be prepared to receive the additional

19 material, to seek the leave of the court for further

20 time, to respond to that material and then what the

21 court should resume thereafter?

22 MR KEEGAN: No, sir, not quite. What I am

23 suggesting is if the issues they prepare to address

24 with respect to the judgement remain exactly the same,

25 it is the Prosecution's submission it does not matter

Page 46

1 what their new evidence is, it would not satisfy the

2 criteria to be admitted as additional evidence because

3 all of those areas were completely addressed at the

4 trial phase and therefore under international standards

5 additional evidence would not be acceptable at this

6 stage, period. We do not even need to concern

7 ourselves with what their supposed new evidence is.

8 JUDGE SHAHABUDDEEN: All right. Additional

9 evidence would in your view be not legally acceptable

10 at this stage, but the Prosecution offers no objection

11 to the proposed statements being submitted by counsel

12 for the appellant, is that it?

13 MR KEEGAN: In fact we do, your Honour, in

14 this sense. One, we find that these submissions are

15 entirely untimely and there is absolutely no

16 justification for the actions here today in this

17 submission.

18 Second, we would object if they are now

19 attempting to raise additional issues with respect to

20 the judgement which they want to bring forward evidence

21 under 115, again because it is entirely untimely, the

22 Defence being certainly on ample notification that the

23 issue had been joined and that the Appeals Chamber

24 expected to hear argument on this issue, so what I am

25 suggesting is that if the Defence agrees or will

Page 47

1 substantiate that the sole grounds for the admission of

2 new evidence are the grounds which are listed in

3 6th October, the Prosecution is prepared to proceed

4 with its argument to assist this court in reaching a

5 determination that this Chamber does not need to see

6 any additional material because the matters are not

7 such for which additional evidence would be acceptable

8 at this stage, because all of the matters raised in

9 their 6th October brief were clearly adjudicated at the

10 trial level.

11 JUDGE SHAHABUDDEEN: You want your colleagues

12 to respond to you as to whether the additional material

13 about which they have been speaking expands on or is

14 restricted to the points of law which were raised in

15 their original motion.

16 MR KEEGAN: That is correct, your Honour.

17 Thank you.

18 MR VUJIN: Your Honours, to say I am

19 surprised by the position of the Prosecution, it is to

20 put it mildly. It is unacceptable to such a degree

21 that I think it does not even deserve any comment. We

22 have stated loud and clear in our motion of October

23 6th that it was a motion for the extension of the time

24 limit for our appeals brief, because we are on the

25 trace of new evidence. At the time, we explained what

Page 48

1 kind of new evidence and why we needed additional

2 time. That time was granted to us. What does the

3 Prosecutor think? What were we supposed to do in that

4 additional time for collecting new evidence, except to

5 collect such new evidence.

6 Does the Prosecutor think that before such a

7 Tribunal a proceeding which wants to be fair should end

8 with only the evidence presented by the Prosecution,

9 because there are 50 or 100 employees, investigators,

10 with the possibility to travel wherever they wish,

11 whereas the Defence has been working with two attorneys

12 and two investigators who are not even able to gain

13 possession of all the documents in Republika Serbska

14 because of the state of war first and later because of

15 the political situation there.

16 Of course, in our appeals brief we clearly

17 indicated our intention to introduce new evidence, that

18 is our right, we are entitled to that, if the Chamber

19 considers this motion to satisfy the requirements of a

20 motion 115. But we still think that according to the

21 Rule we have time up to 15 days prior to the beginning

22 of the hearing to submit all our evidence. This is a

23 right that no one can deprive us of, because it is

24 prescribed, but we were ready to shorten the time. Our

25 client has been in detention for a long time, and we

Page 49

1 wish to gather more high quality evidence and we claim

2 that we have found such evidence. If we cannot give

3 you today a part of those statements which we have

4 prepared for you, then you will not have any insight as

5 to what we are talking about.

6 If we need to discuss new additional

7 evidence, and to try and show you that this evidence is

8 relevant for a proper judgement, then we have to start

9 straight away, one by one, and that is why I wanted to

10 give you this evidence and to hear your response,

11 whether you will accept this as evidence, because if

12 you are, then we are ready to submit all the witness

13 statements within the time limit envisaged by Rule 115.

14 If this is not the proper evidence, then may

15 the Trial Chamber instruct us how to present that

16 evidence.

17 JUDGE SHAHABUDDEEN: Do I understand you to

18 be saying, Mr Vujin, that although you now accept the

19 motion as a Rule 115 motion, it was not intended

20 originally to file it as such, and consequently the

21 points at issue stated in the original motion were not

22 necessarily exhaustive of all the points you would now

23 like to lay before the Chamber; consequently you cannot

24 give to the Prosecution the undertaking which the

25 Prosecution is seeking, and at this point I would

Page 50

1 invite my colleague Judge Cassese, who presided over

2 matters previously, to say something.

3 JUDGE CASSESE: Thank you, Mr President.

4 First of all, just for the record, let me start with a

5 very minor point. I have now the transcript of the

6 closed session and there I, turning to Mr Vujin,

7 I said:

8 "I would like to call on you to file a motion

9 on the Rule 115 where you show good reasons for the

10 necessity to produce new evidence."

11 So it is very clear. Let us leave aside this

12 point. I think now, to save time, I would like to

13 suggest, Mr President, that we should now, this

14 afternoon, in this hearing, try to address some general

15 legal points which in a way are preliminary to the

16 question of whether or not we should then look into the

17 evidence the Defence counsel would like to produce.

18 As was rightly pointed out by the Prosecutor,

19 Rule 115 lays down two tests. One, the additional

20 evidence was not available to the party at the trial,

21 and two, the Appeal Chamber must regard the production

22 of that evidence to be in the interests of justice.

23 I wonder whether we could, this afternoon,

24 discuss these two tests in a way in general terms, with

25 particular reference, however, with the case at hand.

Page 51

1 For instance, as for the first test, the

2 evidence was not available to the party at the trial.

3 I wonder whether the parties could address the

4 following points: is it possible to say that evidence

5 can be regarded as unavailable if the appellant was

6 unaware of its existence at the time of trial, or if

7 the appellant's lawyers failed to seek out or obtain

8 that evidence. Three, if the appellant's lawyers

9 failed to call witnesses otherwise than with the

10 agreement of the appellant, and four, if the

11 appellant's lawyers were unable to adduce the evidence

12 because the witnesses refused to testify. So at least

13 we could discuss the general legal categories, as it

14 were, so the way the various technical criteria for

15 applying the first test, to see whether there is

16 agreement between the two parties on these particular

17 criteria.

18 These are general criteria, because then if

19 the -- I humbly submit to Mr President, if then the

20 Appeal Chamber eventually decides to request the party

21 or to allow the party to submit this new evidence, then

22 we will at least have a general legal framework to

23 decide upon that issue.

24 As for the second test, in the interests of

25 justice, one criterion for applying this test has been

Page 52

1 referred to a few minutes ago I think quite properly by

2 the Prosecutor, when he said, "it is important to see

3 whether or not the appellant is raising issues that

4 were adjudicated by the Trial Chamber", whether these

5 are new issues. This is one of the criteria of

6 applying the test of the interests of justice, so

7 therefore we could probably thrash out these various

8 criteria for the application of Rule 115 and in a way

9 we would comply with the request put at the outset by

10 our presiding judge when he said, "let us this

11 afternoon try to discuss the basic criteria for

12 applying Rule 115", and in the light of the various

13 arguments by the parties, we could probably come to

14 some sort of conclusions, at least this would be

15 particularly useful to the bench for making a future

16 decision on the witness statements you intend to

17 produce.

18 JUDGE SHAHABUDDEEN: Good. May I suggest

19 that this might be a convenient point to take our usual

20 break. I would suggest 20 minutes.

21 MR LIVINGSTON: Can I just ask before the

22 court rises, is it still the court's intention to sit

23 until about 6.00?

24 JUDGE SHAHABUDDEEN: Say that again for me.

25 MR LIVINGSTON: Is it still the Chamber's

Page 53

1 intention to sit until about 6.00?


3 MR LIVINGSTON: And not after that.

4 JUDGE SHAHABUDDEEN: If there is a need, we

5 will have to consider it.

6 MR LIVINGSTON: It is simply a matter of my

7 travel arrangements which the Registry downstairs are

8 waiting to hear about, in terms of train times.

9 JUDGE SHAHABUDDEEN: We do not propose to go

10 up to 6.00. That is a cut-off point beyond which we

11 will not go.

12 MR LIVINGSTON: What I am anxious about is

13 that if the Chamber is going to sit until 7.00, I would

14 like to have that in my mind.

15 JUDGE SHAHABUDDEEN: We do not have it in our

16 power to sit until 7.00. Normally we would.

17 (3.40 pm)

18 (A short break)

19 (4.00 pm)

20 JUDGE SHAHABUDDEEN: Yes, the sitting is

21 resumed, and we would invite the Prosecution to proceed

22 with its arguments about the elements of the conceptual

23 framework of the matter, and later on we shall return

24 to the question of the statements. Yes.

25 MR KEEGAN: Thank you, your Honour. I would

Page 54

1 then pick up with the questions posed by Judge Cassese

2 with respect to the standards which are incorporated

3 within Rule 115. I note that the categories raised by

4 Judge Cassese match the standards raised in the Defence

5 brief which the Prosecution objected to in our original

6 submission in October. I would suggest that as

7 indicated in our memorandum of law, and in our original

8 response and as I have already reiterated today, the

9 international standards are fairly clear.

10 The standards raised by the Defence on the

11 other hand find no support in large measure in

12 international law or in the law of states. The

13 question of the first criteria was: is the evidence

14 unavailable if the accused and/or Defence were unaware

15 of that evidence? That is in fact part of the issue or

16 questions raised by the standard of due diligence, and

17 that is exactly what that standard is designed to

18 address; that is a question, of course, of fact for the

19 Chamber to determine in deciding that matter.

20 The same for the second criteria, which was

21 if the Defence failed to obtain the evidence, again the

22 question would be: did they exercise due diligence in

23 their investigations and preparation of the case?

24 That, of course, would be determined by the facts

25 presented by the Defence or the moving party, since the

Page 55

1 burden rests on that party to indicate why their

2 request is in accord with the necessary standards.

3 The third criteria is in fact rather

4 interesting. I think it presents other issues: that is

5 in fact the criteria of when the Defence counsel fail

6 to call evidence without the consent of the accused.

7 That, of course, presumes that there was some

8 discussion about the evidence and there was

9 disagreement. That criteria would seem to us to raise

10 an issue in addition to this question of whether the

11 evidence was unavailable; it raises the other issue of

12 the competency of the counsel in the effect of

13 representation of the accused. That is a second

14 question which would perhaps have to be joined, and in

15 any event it seems that would require first off the

16 accused to establish there had been some knowledge

17 concerning the evidence, and then a decision absent his

18 or her consent not to call that evidence.

19 That burden would seem to have to be overcome

20 first, or establishment of that fact, and then

21 presumably what consequences flow from that

22 determination, if that determination was made by the

23 Chamber, it may affect things other than this issue of

24 new evidence. But it seems that would have to be

25 overcome first before we even got to the question of

Page 56

1 whether the evidence would be acceptable in any event,

2 because it may get to the issue which we have addressed

3 already, which is that the matter may have been

4 litigated in any event before the chamber in some other

5 fashion, such that this new evidence would not be

6 relevant.

7 The final criteria was if the evidence is in

8 fact known but the witnesses refuse to co-operate. We

9 believe the citations in our memorandum of law address

10 in fact that issue. Certainly national states seem to

11 be in accord that that would not qualify as a category;

12 nor would it generally qualify, we believe, under

13 international standards, because, of course, nowhere in

14 any situation is it a rule or mandate that justice will

15 be perfect, only that justice will be fair, and there

16 are matters that are beyond the boundaries of any of

17 the parties and sometimes even the chambers or the

18 courts involved, so we believe that that, of course, is

19 again another factual matter and it would be up to the

20 moving party to establish the circumstances of that

21 refusal such that it would satisfy the Chamber that it

22 was beyond the normal course of a witness simply not

23 wanting to co-operate, that there was some other

24 extenuating circumstances which made that evidence now

25 warrant, or worthy of being heard as additional

Page 57

1 evidence.

2 We believe, then, that in fact, rolling those

3 criteria together, they still in essence fall within

4 what we have stated to be the general standards of

5 international law and in fact the standards that have

6 already been applied by this Tribunal. In relation to

7 this particular case, I return to the main issue that

8 we see in the Defence submission of October which is in

9 virtually every case the issues they are attempting to

10 raise as new evidence were issues which were well

11 within the knowledge of the Defence and in fact in

12 virtually every case were raised in trial and dealt

13 with in trial, and so as I indicated earlier, we do not

14 believe that even -- I should say regardless of the

15 nature of their evidence which they purport to have at

16 this stage, it would not matter because they cannot

17 meet that very basic test that it is a matter that was

18 not litigated at the trial level. So we would like to

19 return to that focus and again determine if that is the

20 Defence submission, in which case we are prepared to

21 address that issue.

22 Again, I have tried not to refer directly to

23 the appeals brief, because we, of course, have

24 submitted this other motion to the Chamber with respect

25 to the nature of the appeals brief as it currently

Page 58

1 stands, but it does bear, I think, comment that there

2 is a substantial amount of new evidence submitted with

3 that appeals brief, and it begs the question of why we

4 are talking about even further additional evidence

5 today; why was it not submitted with the appeals brief;

6 why was that not in fact submitted in total as a

7 submission under 115, which it is in fact at some time

8 by the Defence; why are we now addressing these issues,

9 and we would submit that it now falls on to Defence to

10 indicate why the information in the appeals brief, if

11 it is considered a de facto request to consider new

12 evidence, and this material that they have today, how

13 it meets the standard for admission of new evidence,

14 irregardless of the actual nature of the evidence. Why

15 would it fall within the acceptable standards as they

16 are? Thank you, your Honour.

17 JUDGE SHAHABUDDEEN: Let me see if my

18 colleagues would wish your assistance on any particular

19 points. Judge Mumba will ask you some questions.

20 JUDGE MUMBA: Thank you, Mr President.

21 In addition to the points that you have made,

22 I would also like to know whether the fact that

23 witnesses who were known by the appellant and who were

24 available, had refused to co-operate or to come forward

25 and give evidence, will be important in a situation

Page 59

1 where the Defence counsel did not bring that fact to

2 the attention of the Trial Chamber, because we are

3 aware under the Rules that we can have video

4 conferencing, we can have a deposition and things like

5 that. Thank you.

6 MR KEEGAN: Thank you, your Honour. Yes, we

7 believe that that would be one of the main criteria or

8 facts that would have to be established if the Defence

9 was now attempting to put forward evidence on the basis

10 that it was unavailable based on witness

11 non-co-operation. Certainly one of the initial

12 responses of the Prosecution, and we would assume

13 questions from the Chamber would be, what attempts were

14 made to compel the testimony of that witness, or bring

15 the testimony forward in some other form, whether it be

16 by admissions entered into between the parties, for

17 example, or depositions, or any other method to bring

18 forward that evidence. That would be certainly the

19 test or the standard applied to such a request by the

20 Defence. We think that it is a matter of fact that

21 would have to be weighed.

22 JUDGE SHAHABUDDEEN: Let me ask you one

23 little question.

24 I would wish the Defence to understand that

25 when its turn comes, its assistance on these points

Page 60

1 would be gratefully appreciated, without my having the

2 necessity of repeating them.

3 Under the Statute, Article 25(1)(a) and (b),

4 there are two grounds of appeal; (a) an error on a

5 question of law and (b) an error of fact. Would I be

6 right in saying that a rule-making power cannot be

7 employed so as to modify or expand those two grounds of

8 appeal as set out in the Statute?

9 MR KEEGAN: Yes, your Honour.

10 JUDGE SHAHABUDDEEN: I would like your

11 assistance on this question. What is the meaning of an

12 error of fact in relation to the proposed additional

13 evidence? Does an error of fact necessarily imply that

14 the lower court fell into error in its assessment of

15 the facts then before it, or does it mean that

16 objectively an error of fact has occurred viewing the

17 additional material, irrespective of whether or not the

18 trial court itself made that error? I wonder if my

19 contorted question is somehow clear to you.

20 MR KEEGAN: Yes, your Honour, it is clear.

21 I would submit that reading the Article on its face, it

22 would appear to only until the former, and that is in

23 fact a basis of appeal recognised in most states, and

24 that is that it is actually the conclusions of fact

25 that are incorrect and it is based on the trial record,

Page 61

1 and that it falls actually under (b), where most states

2 would incorporate this issue of new evidence. That,

3 however, is not universal and it is recognised by some

4 states that when there is a fact which unknown at trial

5 which is so meritorious, or as it is put in the

6 international standard, that it is directly or would

7 show conclusively that there had been a miscarriage of

8 justice, that is sometimes incorporated to address this

9 question of an error of fact, but certainly this

10 article on its face, with the lack of prior

11 jurisprudence to interpret it, would seem to indicate

12 it would be indicated to errors based on the trial

13 record, and that is, if you will, the conclusion of

14 fact.

15 JUDGE SHAHABUDDEEN: So your position would

16 be that additional evidence is not cognisable by the

17 Appeals Chamber.

18 MR KEEGAN: No, your Honour, that is not

19 exactly what I am saying. What I am saying is that it

20 certainly could be a question particularly indicating

21 that there is a question of law invalidating a

22 decision. That is again a legal conclusion, for

23 example, as to the guilt of an accused on a particular

24 issue and a particular crime or matter.

25 JUDGE SHAHABUDDEEN: Is any question of law

Page 62

1 raised by a proposal to provide additional evidence,

2 which I take it is additional evidence of fact, going

3 to the question whether an accused person had an

4 alibi? That is a question of fact.

5 MR KEEGAN: Yes, but the issue of the alibi

6 results in a legal determination as to responsibility,

7 so I am simply saying if you read it on its face it

8 would seem to indicate that errors of fact are limited

9 to conclusions based on the record.

10 JUDGE SHAHABUDDEEN: All right. I have no

11 position on that, I just thought I would benefit from

12 your thinking, as I would from the thinking of Defence

13 counsel.

14 Now the second question I have, I am sorry

15 that you have to be disturbed a second time. Mr Vujin

16 has raised a nice question of law, and that is whether

17 under Rule 115 he is entitled to bring a motion for

18 leave to admit additional evidence up to 15 days before

19 the trial. How should I understand your position?

20 Should I understand it to mean this, that according to

21 you, Mr Vujin may indeed wait until 15 days before

22 trial, but that the Rule provides for one and only one

23 exercise of that right, so that if he exercises it now

24 he may not exercise it later; or should I understand it

25 to mean this, he may exercise it now and he may

Page 63

1 exercise it later, but if he exercises it later, the

2 bench may take account of the fact that he did exercise

3 it on a prior occasion, or maybe you have another

4 interpretation.

5 MR KEEGAN: No, your Honour, I think that

6 covers the possible courses or interpretations which

7 could be given to that provision. We would think as a

8 general rule in procedural matters before a Chamber,

9 once an issue is joined, that ends, if you will, the

10 right of the party to just open-endedly address that

11 issue. There has to be some conclusion. We would read

12 the Rule to indicate, recognising the unique nature of

13 this jurisdiction, that up to and including 15 days

14 before an issue on appeal is set for hearing, a party

15 has the right to bring in or raise a request to bring

16 forth additional evidence which they have become aware

17 of.

18 We would not read that Rule as an open-ended

19 right to continue to investigate a case, because as was

20 made quite clear we believe in Erdemovic and certainly

21 by Judge Cassese in his comments to the parties here,

22 this Rule in no way envisages trial de novo on appeal.

23 JUDGE SHAHABUDDEEN: Let me put this to you.

24 Suppose Mr Vujin was in this position: he makes this

25 motion today, seeking leave of the court to admit

Page 64

1 additional evidence, the nature of which he discloses

2 both to you and to the bench, and then on the 16th day

3 before trial he finds he has additional material which

4 he did not know of before, and he then comes a second

5 time; what will be your position?

6 MR KEEGAN: I think at that point, your

7 Honour, that would be when the sub-paragraph (b) would

8 control the issue and that would be a determination by

9 the Chamber that the consideration of the evidence

10 would be required in the interests of justice. We

11 would certainly not indicate that a party should be cut

12 off by any certain date, but it would certainly be a

13 significant factor in determining of whether the

14 interests of justice require consideration of that new

15 evidence or additional evidence.

16 JUDGE SHAHABUDDEEN: One last question.

17 Mr Livingston has referred more than once to the

18 question of binding orders being issued by the Appeals

19 Chamber. In your view, is there any provision in the

20 Statute or in the Rules which confers a competence on

21 the Appeals Chamber to issue instruments in the nature

22 of binding orders to assist an appellant in

23 investigating whether he could have evidence which

24 would meet the requirements of Rule 115? Is there any

25 provision which empowers the Appeals Chamber to do

Page 65

1 that.

2 MR KEEGAN: Yes, your Honour. On this

3 particular issue, I believe as raised by the Defence

4 both in the Status Conference and I think they have

5 made mention of it here today, Rule 107, which

6 indicates that the Rules of Procedure and Evidence

7 apply mutatis mutandis to issues on appeal, certainly

8 because in a trial level there would be authority --

9 actually under a number of Rules, but certainly Rule 54

10 would authorise the issue of a binding order in certain

11 circumstances to assist the Defence in obtaining

12 evidence. We think that under Rule 107 that would also

13 authorise this Chamber to issue the same type of order.

14 JUDGE SHAHABUDDEEN: So you would support the

15 Defence on that point?

16 MR KEEGAN: That the authority exists.

17 Whether it is justified in this case we would not

18 agree.

19 JUDGE SHAHABUDDEEN: Would you care to

20 consider a proposition like this: that those wide

21 powers under Rule 54 et cetera which apply mutatis

22 mutandis in relation to the Appeals Chamber only apply

23 insofar as it could be demonstrated that the Appeals

24 Chamber has a particular competence, so the question

25 could be this: has the Appeals Chamber a competence to

Page 66

1 engage in the investigation of an issue as to whether

2 an appellant could possess himself of evidential

3 material which satisfies the requirements of Article

4 115? Has the Appeals Chamber that investigative

5 competence?

6 MR KEEGAN: Yes, sir, I think that under

7 Articles 25 and 26, and their complementary Rules, 115,

8 and for Article 26, 119 and the following Rules --

9 JUDGE SHAHABUDDEEN: You are going very fast

10 for me. 25 and 26, yes.

11 MR KEEGAN: Both of which give the rights to

12 parties to raise issues on appeal. 115 indicates that

13 the judges of the Tribunal believe that Article 25

14 incorporates within it the right to bring forward new

15 evidence. If that is the case, then it must be the

16 case that the Appeals Chamber would have the competence

17 to assist the parties in obtaining that evidence when

18 necessary under Rule 107.

19 JUDGE SHAHABUDDEEN: Very good. I thank you,

20 Mr Keegan. I would ask the Defence to bear in mind the

21 questions which I have put to the Prosecution and no

22 doubt to take advantage of the support which counsel

23 for the Prosecution has offered to the Defence on the

24 point last discussed.

25 MR VUJIN: Your Honour, bearing in mind what

Page 67

1 you told the Defence now, in terms of this same

2 question, we have been asked to state our views on it.

3 With regard to this last issue that was put to the

4 Prosecutor and where the Prosecutor supported what the

5 Defence said, we absolutely accept what the presiding

6 judge of the Chamber said and what the Prosecutor said,

7 namely that in terms of 107, you do have the right to

8 give binding orders and you also have the right to see

9 whether it would be in the interests of justice to

10 present certain additional evidence before this

11 Chamber.

12 However, as regards to the answer to the

13 first two questions that you put, your Honour, I think

14 that these are issues to which the Defence sought

15 answers at this point in time, and I think that the

16 Prosecutor is quite wrong in the presentation of his


18 First and foremost, the Prosecutor believes

19 that errors of fact can be established only on the

20 basis of what is written down in the transcript of the

21 trial before the Trial Chamber. Such a standpoint is

22 quite unacceptable and it is not applicable in a single

23 system of law. Your Honours, I must say one thing.

24 This is an international court, and we must certainly

25 bear in mind international law, but first and foremost,

Page 68

1 this is a criminal court, and we have to bear in mind

2 the rules of criminal procedure and criminal law as

3 such, which is not that highly developed in the

4 international sense, but it is certain that the basic

5 postulates are valid, and that is that the right of the

6 defendant to appeal is precisely the right which

7 entitles him to investigate further, after he was

8 pronounced guilty during the trial, and to try to find

9 new evidence which was not available during the first

10 trial.

11 The errors of the Trial Chamber that we

12 pointed out in our appeal, basing our motion on

13 Article 25 of the Statute, that is errors of fact and

14 errors in law, and we are not interested in the

15 application of law in this particular case, but we are

16 interested in errors of fact.

17 I do apologise, I do not want to plead on

18 that and I said we would not, but if the defendant has

19 been pronounced guilty of having slaughtered two

20 policemen, you read that, and the Trial Chamber

21 established that and he was not even charged with that,

22 then that has to be a miscarriage of justice, because

23 he cannot be pronounced guilty of something he was not

24 even charged with in the indictment.

25 However, at this point of law what we are

Page 69

1 interested in is that a fact was established only on

2 the basis of the statement of one witness that the

3 defendant did that. There is the statement of another

4 witness in the files, who claimed that these people

5 were not killed in the way in which the first witness

6 had said, but that they were killed in a quite

7 different way, by a different person and in a different

8 place.

9 The Defence -- after the proceedings started

10 before the military court in Banja Luka against Dusko

11 Tadic came to new witnesses, three new witnesses

12 corroborate the statement made by the second witness,

13 namely that these policemen were not slaughtered but

14 that these two policemen were killed by firearms. That

15 is the essence of all our proposals in order to

16 introduce new evidence, because all our proposals and

17 new evidence show that there is error of fact, that it

18 was wrongly established, because the court had only one

19 single piece of evidence or only part of the evidence,

20 and now we wish to oppose new evidence to that which is

21 of a far better quality and which entitle you as the

22 Chamber of Appeals, when you are weighing what is the

23 truth, is he himself saying the truth or five other

24 people, that you can then decide whether the Trial

25 Chamber made a mistake or not.

Page 70

1 Our intention is, in the interests of

2 justice, and that is then in the interests of justice,

3 to present this evidence before you so that you can

4 rule on that. All our proposals for new witnesses that

5 have been just mentioned in our motion are aimed at

6 that, so may I reiterate this? The errors made by the

7 Trial Chamber are based on the wrong validation of

8 facts and based on the evidence that was presented and

9 that is why the Trial Chamber was misled.

10 In the interests of justice, one should hear

11 all the people who were eyewitnesses, who saw for

12 themselves what had happened. All our witnesses are

13 such witnesses, they all say, "we were there and we saw

14 such and such a thing".

15 As regards the second question, relating to

16 what I have been insisting on time and again, and that

17 is that neither you, your Honour, or Judge Cassese as

18 the presiding judge that time, cannot change Rule 115

19 by your orders. Rule 115 is understood by the Defence

20 in the following way. Until the deadline is reached,

21 we have the right to present motions. As we present

22 one motion, we should not be denied our right to

23 file our motions, and more motions until this 15 day

24 deadline, because that is the rule, and that cannot be

25 changed, even by you, the judges, who had adopted these

Page 71

1 Rules originally, so we can not change it now.

2 That means that when we filed our motion in

3 October and related this to 115, we only illustrated

4 this with our efforts to show already at that point

5 that we have some new evidence, but it would be absurd

6 to say that at that time we had exhausted our right,

7 even if this is taken as a motion to introduce new

8 evidence, because we get additional time for

9 investigation, for exploration, so how have we thus

10 taken advantage of our full time? We gathered a great

11 deal of evidence which is such that it brings into

12 question the ruling of the Trial Chamber. Therefore,

13 as I said, we are prepared to offer this into evidence

14 but I do not know, and that is why we did not

15 officially file a motion related to Rule 115, because

16 I do not know what your standpoint is, what is evidence

17 in terms of new witnesses? Is what we have in our

18 possession sufficient, or will it be necessary to

19 present this in keeping with the Rules? So that is the

20 basic question, and these are our answers to your

21 questions.

22 JUDGE SHAHABUDDEEN: Thank you, Mr Vujin.

23 I just wish to reassure you that I did not intend to

24 rule on the question as to whether you would have a

25 second or a third right to bring a motion seeking leave

Page 72

1 to admit additional evidence. It was a question which

2 I raised to seek the benefit of the advice of

3 Prosecution counsel and of yourself.

4 Now should I understand you this way, that an

5 error of fact in Article 25 of the Statute includes not

6 merely an error of fact committed by the trial court on

7 the material which it then had, but it includes any

8 error of fact which objectively exists, viewing the

9 totality of the evidence including the additional

10 evidence; in other words, does it include a factual

11 inaccuracy, whether or not the trial court was guilty

12 of committing an error?

13 MR VUJIN: I am waiting for the translation.

14 Your Honour, you are quite right and that is

15 exactly my point of view. So it is not only an error

16 of fact that the Trial Chamber should have made when

17 assessing the presented evidence, and also there are

18 such errors in the ruling. There is also a factual

19 existence of errors, of inaccuracies, and that is to

20 say that the Trial Chamber ascertained a fact and that

21 it objectively was not such. In order to establish

22 that, one has to present further evidence.

23 Your Honour, had there been evidence of the

24 event that I spoke of, that this was corroborated by

25 ten or fifteen or three witnesses, perhaps the Defence

Page 73

1 would not have had a chance to deny this. However, if

2 this is based on the statement by one witness and the

3 Defence has statements by four witnesses who

4 objectively present this fact in a different way, then

5 you cannot check this fact, whether it was objectively

6 ascertained or not, without having heard these four

7 witnesses.

8 JUDGE SHAHABUDDEEN: May I just conclude by

9 asking, if I may, Mr Livingston a question which may be

10 pertinent to the jurisdiction from which he comes.

11 Mr Livingston, my mind is open, quite open,

12 on the question as to whether the Appeals Chamber has a

13 competence to engage in the investigative phase of an

14 exercise leading up to a motion seeking leave to admit

15 additional evidence, quite open. The question I want

16 to ask you, and it is a matter of comparative law, is

17 whether in your jurisdiction the Court of Appeal,

18 criminal division, would engage in the investigative

19 aspect of an exercise, leading up to a motion seeking

20 leave to admit additional evidence, or would it confine

21 itself to looking at the motion itself, if and when it

22 has been presented, and ruling on it. I really do not

23 know.

24 MR LIVINGSTON: I am not sure I can give you

25 a concluded answer to that question, being fired at me

Page 74

1 at very short notice like that, but I think the reality

2 is that in the United Kingdom, just as I would imagine

3 in most national jurisdictions, the question of

4 applying for subpoenas or binding orders on appeal does

5 not really ever arise. I have to say that I cannot

6 recall a case where anybody in my country has actually

7 asked the Court of Appeal to issue any kind of subpoena

8 for a witness, so the question of whether they could or

9 not is perhaps a moot point.

10 The issue is here, it may not have escaped

11 the Appeals Chamber that tucked away in the appellant's

12 brief, starting I think at page 102, there is a section

13 on abuse of process, which in my submission raises some

14 extremely important issues for this case and for

15 doubtless many other cases in the future. The point,

16 put very shortly for the moment, because I do not want

17 to argue it now, is that there are quite extraordinary

18 difficulties facing Defence teams trying to accumulate

19 evidence in Republika Serbska. This is something which

20 sometimes I find frustrating, but I have been there for

21 about a week every month since August, and it is

22 incredibly difficult gathering evidence there. If you

23 went there, you would realise it pretty quickly, and

24 you would realise what a frustrating experience it is.

25 Let me say this: the conviction of Dusko

Page 75

1 Tadic by the Trial Chamber has actually made things

2 even more difficult, because I get faced with a man who

3 could help, who, for example, worked on the water pump

4 system in the Omarska camp, who says, "I did not do

5 anything wrong, but I am afraid, what happens if

6 Mr Niemann and his colleagues issue an indictment

7 against me. I am innocent, but so was Dusko Tadic and

8 look what happened to him". This is the sort of

9 situation which one faces.

10 JUDGE SHAHABUDDEEN: Is all of that relevant

11 to my question?

12 MR LIVINGSTON: I think it is, with respect,

13 because if there are problems in getting evidence which

14 the Trial Chamber or indeed the Appeals Chamber, for

15 the reasons Mr Keegan I think has already given you, if

16 the Appeals Chamber can assist, then in the interests

17 of justice it must assist, because in my submission the

18 primary criterion for any court considering the

19 admission of new evidence must be the interests of

20 justice, because no responsible court wants a situation

21 to arise whereby it refuses to allow new evidence and

22 then five years later important new material comes to

23 light which shows that the man is innocent.

24 The real question is, is it in the interests

25 of justice and if the Appeals Chamber can assist in

Page 76

1 obtaining evidence which may well assist an appellant

2 who is in a very difficult position as regards getting

3 his evidence, if they can assist, and in my submission

4 they should, and the English Court of Appeal is simply

5 not faced with that sort of situation, with the fear,

6 the distrust, the lack of co-operation which sadly

7 exists in Bosnia these days, and it is not just in

8 Republika Serbska it is also, in my own personal

9 experience, it is in the federation territory as well

10 and if anybody questions my view, I hope I have made it

11 clear that I am in a position to call evidence to prove

12 everything that I say.

13 I hope that perhaps does answer your

14 question. As far as I am aware, the English Court of

15 Appeal has not been put in that position, but I can

16 certainly check that, given a little bit more time.

17 JUDGE SHAHABUDDEEN: That is your answer,

18 that to the best of your knowledge, the English Court

19 of Appeal has never had to face this situation. It is

20 a very short answer and I appreciate that indeed.

21 For the rest, I think I should assure you

22 that you are in good ground in appealing to this bench,

23 as a responsible bench which has uppermost in its mind

24 the interests of justice.

25 MR LIVINGSTON: I am glad to hear it. Can

Page 77

1 I just add one other point? His Honour Judge Cassese

2 raised certain points before the break which plainly

3 relate to the various criteria for the admission of new

4 evidence raised in paragraph 2 of what we are calling

5 the Rule 115 motion. I am not sure that Mr Vujin dealt

6 with those, I do not know whether you would wish him to

7 deal with those points or not, or whether he would wish

8 me to deal with them.

9 JUDGE SHAHABUDDEEN: I may explain, in my

10 mind and the minds of my colleagues, you are now in the

11 first part of the second round, you can speak now and

12 then your colleagues can reply to you.

13 MR LIVINGSTON: Yes. Would your Honour just

14 give me one moment. Your Honour, it seems there is a

15 consensus I should deal with those points, so if I may.

16 Looking at paragraph 2 of the new evidence

17 motion, setting out what "unavailable" means, can

18 I start by referring you to Mr Keegan's memorandum on

19 the admission of new evidence?

20 JUDGE SHAHABUDDEEN: Perhaps, Mr Livingston,

21 I may say that while, of course, the bench will be

22 grateful to you for your views, you are now replying to

23 the Prosecution, and we will make an effort to keep

24 within the limits of their own presentation, please.

25 MR LIVINGSTON: I think implicit in

Page 78

1 Mr Keegan's presentation is his written document which

2 he puts in. I do not think he would wish you to

3 confine yourself to his oral arguments, I think he

4 would wish you to pay attention to what he has put in

5 writing.

6 He does, for example, quote at page 7 one or

7 two cases, for example, S v De Jager, which without

8 reading he quotes as saying that it requires that the

9 Defence demonstrate some reasonably sufficient

10 explanation why the evidence was not led at trial; 2)

11 that there is a prima facie likelihood of the truth of

12 the evidence; and 3), that the evidence is materially

13 relevant to the outcome of the trial.

14 Then McIntee which follows. Appellate courts

15 will always -- I am being told to slow down, I am

16 sorry. Appellate courts will always receive fresh

17 evidence if it can clearly be shown that failure to

18 receive such evidence might have the result that an

19 unjust conviction or unjust sentence is permitted to

20 stand, and then buckle, which follows that, if in a

21 criminal case the new evidence does not exert such a

22 compelling influence but is, however, of sufficient

23 strength that it might reasonably affect the verdict of

24 a jury, then in my opinion the court may admit that

25 evidence and direct a new trial so that such evidence

Page 79

1 might be added to the scale and weighed by the trial

2 Tribunal in the light of all the facts.

3 What I submit really emerges from those sort

4 of authorities is that one is looking for a reasonably

5 sufficient explanation, and the primacy should be given

6 to the interests of justice. One should not exclude a

7 piece of evidence which might conclusively prove a

8 defendant's innocence simply because it could be said

9 that it might have been obtained at some earlier

10 point. In my submission, that would be to cause a

11 gross situation where a man would stand convicted and

12 it was not able to be put right because of a

13 technicality.

14 What I would submit is that one must

15 interpret this phrase or this word "unavailable" in a

16 fairly unrestricted way, and I add to that that in this

17 particular situation which one is dealing with in

18 Bosnia, where there are such immense difficulties in

19 gathering evidence, one should not adopt the

20 restrictive criteria which are so often adopted in

21 national courts.

22 Your Honours, in particular his Honour Judge

23 Cassese, who was certainly part of the Appeals Chamber

24 in the Blaskic case when the binding orders decision

25 was made, emphasised in a very different context the

Page 80

1 very great difference between national law and

2 international law before a Tribunal like this, and

3 I would submit that very much the same applies when it

4 comes to interpreting a phrase like "unavailable to a

5 party at trial".

6 Mr Keegan has set out a number of

7 authorities, most of which are American. These are

8 decisions of national courts, where the difficulties,

9 as I have already said, the difficulties about

10 obtaining and gathering new evidence simply do not

11 exist, so the standards of due diligence are very

12 different, and one should not forget that.

13 Going back to paragraph 2 of the motion

14 relating to new evidence, in my submission there cannot

15 be any problem about (b)(i), 2(b)(i). It was not in

16 existence at the time of trial. (ii) the appellant was

17 unaware of his existence. In my submission, there

18 cannot be a problem about that either, because if the

19 appellant was not aware of the existence of a piece of

20 evidence, for example supposing he had an alibi

21 defence, and there was a witness who could testify as

22 to where he was, but for some reason or other he was

23 wholly unaware of that person's presence at the time of

24 his trial, that person's presence and what that person

25 saw subsequently comes to his attention, in my

Page 81

1 submission a defendant should not be shut out from

2 calling that evidence if it is viewed as being

3 probative and credible simply because he was unaware of

4 its existence prior to his trial and at his trial.

5 So in my submission, there cannot be any

6 inherent objection to an appellant being able to say

7 that evidence of the existence of which he was unaware

8 was unavailable. In my submission, that is quite

9 proper, a quite proper stance for him to take. If he

10 does not know of its existence, certainly in the

11 context of affairs in Bosnia in 1992, it is very

12 unlikely that his lawyers are going to be aware of it

13 or know where to look for it.

14 Your Honours, the most important category

15 I think, frankly, for the purposes of this appeal is

16 likely to be paragraph 2(b)(iii), which is the question

17 of the appellant's lawyers being unable to adduce the

18 evidence because witnesses felt intimidated. This

19 again is a situation which has not come across in

20 national courts. I think it is quite evident from the

21 documentation that you have that the death of Simo

22 Drljaca in Gradina, which is near Prijedor, in the

23 summer this year, had a very major impact on the minds

24 of witnesses relevant to this case. I make no bones

25 about the fact, and there is reference in the documents

Page 82

1 before the court to the fact that he and others

2 deliberately intimidated witnesses and threatened to

3 kill them if they made any moves to assist the lawyers

4 or give evidence for Mr Tadic in this case.

5 I should point out that Mr Tadic is in an

6 unique position, I do not think there is any other

7 defendant I am aware of who has been indicted who is in

8 this position. Mr Tadic is a deserter, can I make this

9 clear? He is a deserter from the Bosnian Serb Army.

10 For that reason, he attracts a good deal of odium from

11 his own side, and there are many people who I have

12 tried to talk to -- and again I can call evidence if

13 you require about it -- who I have tried to talk to who

14 say, "why should we help a man who is a traitor to our

15 state, who has let down our country? Why should we put

16 our heads above the parapet and assist such a man?".

17 That is again a problem which any lawyer for Mr Tadic

18 is going to face.

19 If his present legal team -- with colossal

20 effort, may I add -- have managed to obtain evidence

21 which his previous lawyers were unable to obtain, then

22 in my submission he should not be shut out from calling

23 it, provided it is credible on its face and likely to

24 be of sufficient probative value. It is the

25 credibility and the probative value of it at the end of

Page 83

1 the day which in my submission should govern it. If it

2 is, then granted the very difficult circumstances which

3 face lawyers in these cases, one should not interpret

4 the unavailability criterion against an appellant.

5 So in my submission, (iii) is a category

6 where in the specific circumstances of Bosnia, and I am

7 not wishing to make any submissions on any wider

8 situation than that, and in this appellant's particular

9 situation, bearing in mind that he is treated as a

10 deserter, that there are very big difficulties.

11 As far as (iv) is concerned, again in my

12 submission the crucial point is, if new evidence is

13 obtained which is of sufficient probative value that it

14 throws in doubt the validity of the conclusion, one

15 should not shut it out simply because the previous

16 lawyers failed to seek out that evidence. If they

17 failed to seek it out, the reality was that the

18 appellant could not call it at the trial. If they

19 failed to seek it out but again it is evidence which

20 might show that he was innocent, one should not, in my

21 submission, cut him off and say, "you cannot call that

22 off".

23 Your Honour, again let me take the example of

24 the alibi witness. Supposing there was a failure to

25 find that witness. Previous lawyers failed to take

Page 84

1 full steps to find that witness, so he was unavailable,

2 he did not give evidence. Supposing he then becomes

3 available, he is discovered when new lawyers, new

4 solicitors, new counsel take over? Is one really to

5 say, particularly in this sort of context, that one

6 should not allow such a witness to give evidence? In

7 my submission, it could create a travesty of justice,

8 and result in an innocent man being convicted. That is

9 plainly the view which is very widely held in Bosnia

10 these days.

11 Paragraph (v) is, as Mr Keegan has I think

12 accepted, an interesting proposition; the appellant's

13 lawyers fail to call the evidence otherwise than with

14 the agreement of the appellant. Again, in my

15 submission one then has to look very carefully at the

16 phrasing of Rule 115, "unavailable to the party". That

17 must in my submission refer to the accused or the

18 defendant himself. There is nothing that Mr Tadic or

19 any other defendant can do to get the evidence. He

20 relies on his lawyers, or investigators in the context

21 of this court, to go out and get the evidence for him,

22 to interview the witnesses. If there was a

23 disagreement and his lawyers did not call that

24 evidence, then in my submission again it is going to be

25 a very harsh court which says that that evidence cannot

Page 85

1 be called on appeal, because an appellant is faced with

2 a very stark choice.

3 Does he sack his lawyers because he has a

4 disagreement with them, or does he continue because

5 there are many good reasons why he ought to? If he

6 decides to continue then he is stuck with the situation

7 which his lawyers have put him in, so again, what one

8 has to do, in my submission, is to say, in principle,

9 where the facts are supported, that proposition too is

10 an acceptable one and can lead to the conclusion that

11 the evidence was unavailable. It depends on a proper

12 examination of all the circumstances relating to the

13 witness in question, and you cannot do that, in my

14 submission, without looking at the evidence, of course,

15 to see whether it is prima facie credible, whether it

16 is of probative value, and seeing what evidence would

17 be available to suggest that the appellant's lawyers

18 failed to call it. All these matters have to be looked

19 at. You cannot make a decision, in my submission, in a

20 vacuum, without looking at the detailed evidence.

21 All I am submitting is that within all those

22 four categories, the evidence is potentially

23 unavailable to an appellant or to a party at a trial.

24 I do not want to repeat it ad nauseam, but if it has

25 the appropriate probative value and it is prima facie

Page 86

1 credible then in the interests of avoiding miscarriages

2 of justice, there must be an overwhelming case, in my

3 submission, for allowing that evidence to be

4 considered.

5 It may be -- I am not suggesting it is the

6 case with this particular appeal -- it may be, of

7 course, that it results in a decision that a case has

8 to be remitted back for retrial; that, of course,

9 happens in a number of cases. I am not suggesting that

10 should be the case here, but all options are open. The

11 question is, should one shut out the possibility of

12 that evidence being called? In my submission, where

13 any of those five categories apply, one should not shut

14 out the evidence and one should have one's eye very

15 much on what is the evidence going to prove. If it is

16 true, does it in fact show that this appellant, or shed

17 serious doubt on whether the appellant is really guilty

18 or not?

19 As regards the Article 25 point, my

20 submission would be that either proposition is a

21 correct one, that if the Trial Chamber has made an

22 error in its reasoning, for example made two and two

23 make five within the reasoning, then that would be an

24 error on the facts within the judgement itself.

25 Equally, if it has reached a conclusion which

Page 87

1 in the light of new evidence is shown to be wrong, that

2 again is an error of fact. One should not simply

3 confine errors of fact to internal errors within the

4 judgement, because otherwise that would make a nonsense

5 of the provisions which are in the Statute and the

6 Rules, as in so many national jurisdictions, allowing

7 appellants to call new evidence. If appellants are to

8 be allowed to call new evidence at all, then in my

9 submission one must take account of the new facts, and

10 if those new facts suggest that a wrong conclusion was

11 reached by the Trial Chamber then that conclusion

12 should be altered, and it should be treated as an error

13 which the Appeals Chamber can deal with and reach a

14 different conclusion upon.

15 Your Honour, unless there are any other

16 particular matters that you would wish me to deal with,

17 those are my submissions.

18 JUDGE SHAHABUDDEEN: Thank you very much.

19 That ends the second round for the Defence. I would

20 put one little question to you. How do you react to a

21 question like this, that in a system in which the

22 appellant has a right to challenge the conviction on

23 the ground that the conviction was not safe, that

24 arrangement is more open to the view that the Appeal

25 Court could take cognisance of an error of fact

Page 88

1 revealed by the additional evidence, even though there

2 was no error of fact committed by the lower court; in

3 other words, is a formula structured in terms of a

4 right to challenge a conviction on the ground that it

5 is not safe wider than a formula which is crafted in

6 terms of a right of appeal on the specific grounds of

7 error of law and error of fact.

8 MR LIVINGSTON: My submission would be that

9 in practice -- I take your Honour's point, that in

10 theory, since there is different terminology, it may be

11 possible to envisage cases where a verdict would be

12 regarded as unsafe, where there was not any error of

13 fact or law, but in my submission, in reality, and in

14 practice, it is very difficult to see how a verdict

15 could be -- it is very difficult to see how, if there

16 was an error of fact or an error of law, how it could

17 be safe and in a sense vice versa. If it was regarded

18 as being unsafe, in practice there would in my

19 submission always be an error of fact or law which one

20 could find which would make one think that it was

21 unsafe. Perhaps it is a conclusion which the Trial

22 Chamber makes on the evidence which would point to an

23 unsafe conclusion having been drawn.

24 JUDGE SHAHABUDDEEN: One last question before

25 I turn the matter over to Judge Cassese. He had asked

Page 89

1 you a question about a mistake being committed by the

2 trial lawyer, who failed erroneously to call evidence

3 of which he was aware. Now I understand your stand to

4 be this, that the determinative criterion is simply

5 whether the additional evidence discloses either that

6 the man is innocent or casts substantial doubt on his

7 conviction; is that your position? If so, are there

8 any limits to that proposition?

9 MR LIVINGSTON: I think there are. What

10 I have in mind is the sort of proposition which

11 I mentioned much earlier in, for example, the McIntee

12 case, appellate courts will always receive fresh

13 evidence if it can clearly be shown that failure to

14 receive such evidence might have the result that an

15 unsafe conviction may be allowed to stand. Sorry, I am

16 being asked to slow down again.

17 JUDGE SHAHABUDDEEN: Could I ask you whether

18 there is a qualification to that which says something

19 to the effect that the Court of Appeal may interfere if

20 it has a lurking doubt that injustice had been caused

21 by flagrantly incompetent advocacies; is that an

22 admissible test, would you say?

23 MR LIVINGSTON: I think it is. I would also

24 with respect emphasise again words which I think I did

25 mention earlier in the De Jager defence, about the

Page 90

1 Defence having to show there is some reasonably

2 sufficient explanation as to why the evidence was not

3 led. That is the phrase that I think one should be

4 concentrating on as well in terms of a qualification, a

5 break on the interests of justice criterion,

6 particularly in the context of a case in Bosnia. I do

7 stress that in my submission it is wholly unlike any

8 case in any national court.

9 JUDGE SHAHABUDDEEN: We take your point.

10 Would you answer a question from Judge Cassese?

11 MR LIVINGSTON: Of course, if I can.

12 JUDGE CASSESE: Thank you, Mr President.

13 I will address the issue of witnesses who

14 allegedly have been intimidated. You allege that some

15 witnesses refused to testify because they were

16 intimidated, testify at trial, before the trial court.

17 They were intimidated by or feared a local chief of

18 police, because this man used to interfere with any

19 potential witness. So I have one question which you

20 could probably answer right away, which is: how many

21 witnesses do you intend to call who were so

22 intimidated? These are two questions which you could

23 answer, probably, if you are granted leave by the

24 Appeals Chamber to submit a brief on this matter, on

25 the matter of additional evidence. These two questions

Page 91

1 would be: what evidence do you adduce that they were

2 intimidated, and in what respect would their testimony

3 serve the interests of justice by casting serious

4 doubts on the findings of the Trial Chamber.

5 Then a final question. I wonder whether you

6 could answer to my mind a very important question asked

7 by Judge Mumba to the Prosecutor some time ago, namely,

8 if I recall correctly what Judge Mumba said: if a

9 witness was being intimidated at the trial stage,

10 should Defence counsel have drawn the attention of the

11 court to this particular circumstance, attention of the

12 Trial Chamber to that particular circumstance? Thank

13 you.

14 MR LIVINGSTON: There are a lot of questions

15 there. As far as the first question, which was,

16 I think, how many witnesses, I think Mr Vujin may be

17 able to answer that question better than me, because he

18 has a list in front of him and perhaps he can look at

19 that list now. Can I deal with the last question

20 first, which was also one that her Honour Judge Mumba

21 raised. I would accept that in many national courts it

22 could be said that if a witness has been intimidated,

23 it should be raised with the court. Indeed it might be

24 regarded in certain circumstances as a contempt of

25 court not to do that. The problem is here, which

Page 92

1 lawyers face in a trial like this, is that if you do

2 that, it gets you as lawyers into even deeper water,

3 because if it is known at all that you have been saying

4 that people have been intimidated, then people become

5 even more reluctant to talk to you, and indeed it is

6 not beyond the realms of fancy, and I have been warned

7 personally that my own personal safety would be in

8 danger if certain courses were adopted.

9 I cannot stress too strongly, it may seem --

10 people may think this is fanciful, but there are a

11 number, I am not saying this should apply to this whole

12 part of Bosnia, but there are a number of very

13 dangerous people there who are ruthless and who wish to

14 protect their own positions for whatever reason,

15 perhaps they fear prosecution, whatever it is. There

16 are a number of very ruthless people there and one has

17 to be very chary about what steps one takes which might

18 actually increase difficulties in the longer run. It

19 may perhaps deal with the question of intimidation in

20 the immediate context, but it may cause difficulties

21 later on, and I do not think it is as easy as saying,

22 "you should have raised it, you failed to do so and

23 therefore because a witness was intimidated that is not

24 a good reason for saying that the evidence was

25 unavailable". There is no question in this case that a

Page 93

1 number of these witnesses were intimidated.

2 You ask what evidence that we would wish to

3 call. The reality is that if one looks at the

4 statements, the witnesses whose statements have been

5 handed in today explain that they have been the subject

6 of intimidation, and that that is the reason why they

7 were unwilling to assist the Defence at trial; even

8 some who initially did assist. I do not think it would

9 be right for me perhaps in open court at the risk of

10 endangering such a person, but when it has become

11 publicly known that a person has assisted, there is

12 evidence that pressure has been brought to bear on

13 those individuals and those individuals can give

14 evidence about that, and I would like to think that the

15 Appeals Chamber would accept the evidence that those

16 witnesses would give that they have been intimidated,

17 that they were genuinely in fear, and they have to live

18 in many instances in the communities where the people

19 who are putting them under pressure live.

20 For example, in the villages round about

21 where any of the camps are, in this case, there are

22 villages there, there are witnesses who might give

23 evidence; there are also other people who wish to

24 protect themselves living in those very same villages.

25 It is a very, very difficult problem, and it is one

Page 94

1 where one must be very, very careful about prejudicing

2 a man like Mr Tadic.

3 Your Honour, I think there may have been

4 other points but I did not manage to get them all down.

5 JUDGE CASSESE: There were two points which

6 you might address maybe in a legal brief, if you are

7 going to submit a legal brief, namely what evidence do

8 you adduce that they were intimidated -- you say you

9 can produce evidence to the effect that some

10 witnesses --

11 MR LIVINGSTON: I hope I had answered that

12 question.

13 JUDGE CASSESE: And also in what respect

14 would their testimony serve the interests of justice?

15 MR LIVINGSTON: Your Honour, before Mr Vujin

16 makes the comments that he wants to make, I do not

17 think that you can judge that question without seeing

18 what their evidence is. But I can give you one

19 example. There is evidence in this case, given by some

20 witnesses, about being beaten up in a small room at the

21 end of the corridor in what was called the White

22 House. We have evidence which, if it is accepted,

23 would indicate that nobody was beaten up in that

24 particular room. If that evidence, having looked at it

25 in its totality, is found to be credible for the

Page 95

1 reasons given by the witness, then in my submission it

2 points quite clearly to there being doubt about whether

3 the witnesses who said they were beaten up and others

4 were beaten up in that room is truthful. If that is

5 right, that should result in an end to the convictions

6 on those particular matters. So the evidence must be

7 judged by looking at the statements and evaluating

8 them, in my submission.

9 MR VUJIN: Your Honours, if I may I should

10 like to answer directly the questions put by Judge

11 Cassese. The list of witnesses that the Defence

12 intends to call or to interview or to give a binding

13 order for them to come to be heard, we have 40

14 witnesses. Out of that, eight of them in contact with

15 us stated that they were intimidated and that they did

16 not dare speak to the previous Defence counsel. Then

17 there are 24 witnesses whose addresses were not known

18 to the previous Defence counsel, and we found this out

19 when bodies of the military court looked for certain

20 witnesses, and I must tell you that I come from a

21 system where the court summons the witnesses to appear

22 in court, and when they received those summonses, those

23 subpoenas, they were obliged to come and that is how we

24 learnt about what they knew, who they are, where they

25 lived and so on. The previous Defence counsel could

Page 96

1 not find them, they did not know where they resided.

2 Among others, we have two witnesses of Muslim

3 ethnic origin who are not living in the territory of

4 Republika Serbska and we have only now discovered where

5 they are and where they live so that we now have the

6 evidence which is in the brief and we can also submit

7 it, because Mr Wladimiroff, as Defence counsel of the

8 accused, referred to this intimidation by Drljaca and

9 we have a report by the investigator, Mr Kostic, and

10 Mr Drazic, who drew up a report saying they were

11 prevented from talking to the witnesses by Simo Drljaca

12 and others said they could not speak because they

13 feared Simo Drljaca. Some other witnesses worked for

14 the police, they were police officers and as such

15 obviously could not speak.

16 We have also spoken to and we are still

17 interviewing people in the field, witnesses who held

18 certain positions in Omarska and Keratem and according

19 to the present chief of police, Dusan Jankovic, they

20 are not prepared to testify, they are afraid for their

21 safety, the safety of their families if they appear in

22 the Tribunal, et cetera. But the witnesses we have

23 offered are ready to testify or have already given us

24 written statements.

25 JUDGE SHAHABUDDEEN: Thank you. Before

Page 97

1 I turn the matter over to the Prosecution for the last

2 leg of our procedures, let me turn to my colleagues and

3 see if there are any other questions.

4 Then I invite the Prosecution to make its

5 final reply.

6 MR KEEGAN: Thank you, your Honour. I would

7 like to respond to the last series of comments. Of

8 course, the interest of all parties concerning at this

9 Tribunal is that justice be done, for all parties who

10 are concerned.

11 That does not, however, give any party to the

12 proceedings the right to cavil early violate rules and

13 standards of a court, and in particular this court.

14 The Defence so far today has very skilfully avoided

15 the essential issue here, which is their burden to

16 establish that this evidence should be considered by

17 this Tribunal. They have talked about the type of

18 evidence and we have had counsel's submission about

19 difficulties. We have yet to have anything that would

20 qualify as evidence that could be used to satisfy a

21 burden.

22 There are numerous points, but if we are

23 going to talk about the record which they have referred

24 to here, let us make it entirely clear. This issue of

25 intimidation of witnesses was raised in the submission

Page 98

1 of October 6th, where the Defence asserted that there

2 was evidence of a conversation between Simo Drljaca, a

3 Serbian judge and a journalist, and they give the names

4 of those two individuals. There it is alleged that

5 Simo Drljaca indicated that he intended to stop anyone

6 giving evidence, and if necessary by killing them,

7 because he regarded the defendant as a traitor.

8 In point of fact, these individuals who the

9 Defence identifies as a Serbian judge and journalist

10 were the Defence investigators who were there

11 investigating the case. On the record, as a matter of

12 the record in a report dated 6th February 1996, which

13 was submitted to the Trial Chamber by Mr Orie, a member

14 of the Defence team, they indicated that since

15 1st February, Mr Drljaca had informed the Defence team,

16 1st February 1996, that he had had a telephone call

17 from Dr Karadzic, Radovan Karadzic, the then President

18 of Republika Serbska, who had given him permission for

19 the Defence discovery activities. Mr Orie discussed

20 this a bit further and then stated on the record that

21 Defence counsel had come to the conclusion that major

22 obstacles to proceed with their discovery activities

23 have been taken away since February 2nd 1996.

24 Then in the course of the case, the Defence

25 did call some 35 witnesses from the territory of

Page 99

1 Republika Serbska. The Defence utilised measures of

2 witness protection more frequently than the Prosecution

3 did. In calling these witnesses they made great use of

4 videolink testimony from the territory of Republika

5 Serbska and they in fact called policemen as witnesses

6 from Prijedor, and they produced police records from

7 Prijedor given to them by Mr Drljaca, and had in their

8 possession two letters signed by Mr Drljaca indicating

9 his co-operation.

10 It also raises the issue, without wishing to

11 sound cavalier about it, but if Mr Drljaca seems to be

12 the focus of the Defence issue here, with respect to

13 co-operation, he of course was killed in July 1997. We

14 are now in January 1998. It is unclear to the

15 Prosecution why the Defence in those intervening months

16 has not been able to prepare a comprehensive brief

17 indicating exactly what the nature of evidence is and

18 why it would meet the international standard for

19 consideration by this Tribunal. It is far too late in

20 the game to now try and delay the processes of justice

21 further by this continual reference to evidence which

22 is nothing more than cumulative and which is why the

23 Prosecution would wish to address the issue based on

24 the areas of the judgement which this evidence is

25 supposed to relate to, because if they have been

Page 100

1 litigated fully, the evidence would not be admissible.

2 The use of national law in the brief, of

3 course, was only meant to indicate that it in fact

4 fully supports the international standards set out in

5 the International Covenant and the European Convention

6 on Human Rights. In the case cited most frequently by

7 the Defence, McIntee, they overlook the most obvious

8 point of the case, which is that the evidence will be

9 received:

10 "... if it can clearly be shown that failure

11 to receive such evidence might ..." result in an unjust

12 conviction.

13 It is the burden of the party to make that

14 clear, which they have failed to do, and we are far too

15 late in the game for them to try and claim that there

16 have been procedural difficulties or practical

17 difficulties to obtain evidence.

18 We believe that the type of submissions the

19 Defence are making is in fact not a request under 115,

20 but a request for a trial de novo, which would in fact

21 under the Rules here amount to more of a request for

22 review under 116 -- excuse me, 119, Article 26, than

23 the question of an appeal under Article 25 and Rule

24 115. Therein lies my interpretation of Article 25 as

25 raised by your Honour, because Article 25 has to be

Page 101

1 considered in the context of Article 26 and 119. If

2 the Appeal Chamber is going to accept evidence of fact

3 relative to the issue of the findings, the question of

4 whether it is a safe verdict as raised by your Honour,

5 we think that that would require, in essence, the

6 Appeals Chamber to subsume the standards of Rule 119

7 into 115 and into Article 25, because that is the

8 standard applied in the international law for that kind

9 of broad-based question of the validity of the judgement

10 as opposed to particular issues of appeal on errors of

11 law or errors of fact. Thank you, your Honour.

12 JUDGE SHAHABUDDEEN: We are moving on to 6.00

13 and we shall presently relieve Mr Livingston to catch

14 his aircraft. We hope that his schedule will not be

15 unduly disturbed if we announce this time that we will

16 take exactly five minutes by way of a pause and then we

17 shall return.

18 MR VUJIN: Your Honour, I do apologise, but

19 in view of the fact that we have gone on to the third

20 round, or that is my understanding, could I respond

21 briefly to the Prosecutor's comment and then afterwards

22 we hear your final word.

23 JUDGE SHAHABUDDEEN: Perhaps we understand it

24 differently. I understood a while ago that you and

25 Mr Livingston were on the second round, and that

Page 102

1 I stated, admittedly while you were in train, and

2 therefore when the Prosecution spoke a moment ago, they

3 were speaking for the second time in the second round.

4 But if you would like to have another brief word,

5 certainly, go ahead.

6 MR VUJIN: Thank you, your Honours.

7 Precisely when you asked the Prosecutor to make its

8 final remarks, I would like to ask leave to make our

9 final remarks, because we consider what they said was

10 quite unacceptable. Our intention is not to manoeuvre,

11 because the Prosecution keeps changing its thesis.

12 I think that it is incorrect on the part of the

13 Prosecutor to say that we are asking for a retrial and

14 this is closer to the provisions of Rule 119 of the

15 Rules, which is quite clear. If new evidence appears

16 which was not known at the time of the trial during

17 the Trial Chamber and the Appeals Chamber, then that

18 Rule comes into effect. We have not even reached the

19 Appeals Chamber, so 119 is out of the question, because

20 that has to do with retrial and not the appeals trial.

21 The second position is that we are referring

22 to certain procedural difficulties and that Drljaca had

23 informed the previous Defence team about its position.

24 We are not using those difficulties as an excuse, those

25 difficulties exist and we have found evidence which

Page 103

1 disproves the positions and the judgements of the Trial

2 Chamber. We have just said that a certain number of

3 witnesses were not available to the previous Defence

4 team due to difficulties that are well known to

5 everyone; because there was a war, afterwards the

6 political disputes and the lack of knowledge of the

7 addresses of the witnesses.

8 Therefore, it is the submission of the

9 Defence that the evidence offered which we wish to

10 present to this Chamber calls in doubt the factual

11 conclusions of the Trial Chamber as well as the legal

12 conclusions, and we would like to request that could

13 you, as an Appeals Chamber, tell us whether we will

14 have your permission to submit the written evidence to

15 you and to set a time limit for us to do so, taking

16 into account Rule 115, which says that we have to

17 submit it not later than 15 days prior to the beginning

18 of hearings of the Appeal, and secondly, could the

19 Defence counsel be told that if you will not accept

20 this as evidence, what is it that you would accept as

21 evidence, whether it would be taking depositions with

22 representatives of the Prosecution, through video

23 conferencing or testimony of witnesses here in court,

24 because without your instructions in that direction, we

25 are unable to finalise our brief. Thank you.

Page 104

1 JUDGE SHAHABUDDEEN: I think we may

2 understand the position to be this, that the Defence

3 has made its final statement in response to the final

4 statement of the Prosecution. On that basis, we would

5 pause for exactly five minutes.

6 MR LIVINGSTON: Your Honour, just before you

7 rise, can I just ask one question? Is the Appeals

8 Chamber proposing to deal this afternoon with the

9 binding orders issue or not?

10 JUDGE SHAHABUDDEEN: We shall give you a

11 reply on our return.

12 (5.45 pm)

13 (A short break)

14 (6.00 pm)

15 JUDGE SHAHABUDDEEN: The court would thank

16 both sides and we would announce these decisions now.

17 First, the Defence will submit to the

18 Prosecution and to the court through the usual

19 machinery a copy of the additional statements which it

20 has in mind, in English or in French, within two weeks.

21 Second, within the same time the Defence will

22 submit to the Prosecution and to the court a legal

23 explanatory memorandum.

24 Third, the Prosecution will have two weeks

25 thereafter to respond.

Page 105

1 Fourth, following on the Prosecution's

2 response, the Defence will have two weeks to reply.

3 Fifth, thereafter, there will be no further

4 oral hearing, the court will issue an order setting out

5 its decision on the motion by the Defence for leave to

6 admit additional evidence.

7 Sixth, as to the requests by the Defence for

8 binding orders, this matter will be dealt with by a

9 separate order to be made by the Appeals Chamber

10 shortly.

11 Seventh, the normal appeal sequences are

12 suspended as from now until the making of the order

13 relating to the request by the Defence for leave to

14 admit additional evidence.

15 At the same time, this is the eighth point,

16 at the same time when that order issues on the matter

17 of additional evidence, the Chamber will also issue a

18 scheduling order as to the further steps which need to

19 be taken inclusive of the resumption of the operation

20 of the normal appeal sequences.

21 Ninth, these announcements will form part of

22 the record of the court and will not be the subject of

23 a separate order.

24 Tenth, if I may add this, so far as the delay

25 on the part of the Prosecution to submit its lists of

Page 106

1 authorities is concerned, as the bench has heard no

2 complaint on this score, that matter is overlooked and

3 indeed there will be time enough.

4 MR LIVINGSTON: Your Honour, might I just,

5 without being impertinent, ask one further question?

6 As regards number five, the further oral hearing, do

7 you envisage hearing further argument at such an oral

8 hearing, or is it simply an oral hearing to announce a

9 decision.

10 JUDGE SHAHABUDDEEN: I think there was a

11 misunderstanding, for which I apologise.

12 MR LIVINGSTON: It was probably my fault.

13 JUDGE SHAHABUDDEEN: The bench does not

14 anticipate that there will be a further oral hearing.

15 The bench will issue a written order in a manner to

16 which Mr Vujin is probably accustomed.

17 MR LIVINGSTON: It is just what I had in

18 mind, I hear what Mr Vujin says, just what I had in

19 mind was if any argument was required, for example,

20 about issues to which the evidence goes or anything

21 like that before any decision was taken, the court

22 might wish assistance on that.

23 JUDGE SHAHABUDDEEN: Put it this way, nothing

24 that I have said exhausts or denudes the normal

25 competence of the bench to vary these orders as now

Page 107

1 announced, if and when it sees fit, and to invite

2 further assistance from counsel if that turns out to be

3 appropriate.

4 MR VUJIN: Your Honours, may I clear up just

5 one point and that is point seven, that the normal

6 appeals procedure is suspended until we exchange our

7 briefs? Does that mean that the time period we have to

8 respond to the appeals of the Prosecution will not run,

9 which for us is 30 days, nor will theirs run, their

10 time period that they have?

11 JUDGE SHAHABUDDEEN: Time is suspended, the

12 running of time is suspended. The running of time will

13 only resume when that order is made.

14 MR VUJIN: Thank you.

15 MR KEEGAN: Sorry, if I may beg the Chamber's

16 indulgence, and only because we see it as a directly

17 related issue on new evidence, and that again is the

18 current content of the appellant's brief, in particular

19 the appendices thereto, which amount, in effect, to

20 submissions of new evidence. Could we -- would it be

21 appropriate to consider that material as part of the

22 material we will be addressing during this current time

23 period, to address the question of new evidence in its

24 entirety; in other words, that the Defence should

25 provide a brief just to find a consideration of the

Page 108

1 evidence submitted with its appellant brief, as well as

2 the material they are submitting today, we would then

3 respond to that total package as a question relating to

4 new evidence, since we see that in fact as what it is.

5 JUDGE SHAHABUDDEEN: Thank you, Mr Keegan.

6 I see Mr Vujin on the floor.

7 MR VUJIN: Your Honour, I just wanted to say

8 that in view of the contents of our appeals brief and

9 what we have annexed to it, I think it is not necessary

10 for us to annex the supplements annexed to that brief

11 on this occasion, when submitting our motion. I am

12 thinking of the written evidence that we have enclosed

13 with our appeals brief, so I think it is not necessary

14 for us to repeat that same evidence. We will just say

15 in this new motion that this evidence be presented as

16 contained in annexes 1 to 35. I think that would be

17 more practical, do you not agree?


19 I understand the position, after a little wrestle with

20 myself and a little huddle with my colleague who knows

21 more of this than I do, I would now proceed to announce

22 that we agree with both sides on the positions which

23 they have taken.

24 I understand also, however, that some of the

25 material which you have submitted is not in any of the

Page 109

1 two court languages; could this deficiency be remedied,

2 do you think? Within what time?

3 MR LIVINGSTON: I would think the two weeks

4 you have allowed is sufficient for that.

5 MR KEEGAN: Yes, your Honour. I am sorry if

6 I was not clear. I, of course, intended not that they

7 would resubmit but include the justification for those

8 annexes in this current motion. That, of course, would

9 then leave the remainder of our motion concerning

10 defects in the brief. If those annexes are removed and

11 we have this issue of the suspension of the response,

12 of course, our response, as we indicated in that

13 motion, would obviously change if those defects as we

14 classified them are clarified by the Defence, so if at

15 all possible if we could also roll in this request for

16 the clarification of the appellant's brief to

17 correspond with the six stated bases for appeal in

18 their Notice of Appeal, then once this issue of new

19 evidence is resolved we will be in a position to

20 address the response to a revised brief. Thank you.

21 JUDGE SHAHABUDDEEN: Does the Defence agree

22 to that? It seems not unreasonable to me.

23 MR VUJIN: As far as these proposals are

24 concerned, regarding the translations we will submit

25 the translations within the two weeks as we have said,

Page 110

1 and we will also abide to what we said were our

2 intentions, so all these are just technical matters as

3 far as I understand them.

4 JUDGE SHAHABUDDEEN: Both parties are content

5 at this stage? Then we would announce the adjournment

6 of the proceedings and you will hear from us in due

7 course.

8 MR LIVINGSTON: Your Honour, can I just

9 again, before we all go, can I ask one further

10 question, relating to number six, the binding orders

11 which I am particularly concerned about. How shortly

12 is "shortly"? I had thought, bearing in mind they are

13 ex parte motions, initially that you might be going to

14 do it this afternoon. Could I ask for a little bit of

15 clarification about that?

16 JUDGE SHAHABUDDEEN: Mr Livingston, I am

17 sorry to disappoint you. The word "shortly" was used

18 advisably. It was meant to encompass a situation in

19 which the bench at this time does not itself know

20 exactly what time it will need for the purpose, bearing

21 in mind the various other commitments which its members

22 have within this very Tribunal, of which you may be

23 aware. But maybe in two weeks time?

24 MR LIVINGSTON: What I had in mind was

25 plainly if your decision was in favour of the

Page 111

1 appellant, then it does affect your general scheduling

2 order, as you laid it out this afternoon.

3 JUDGE SHAHABUDDEEN: Yes. We understand

4 that, and we will make as much haste as is humanly

5 possible.

6 MR LIVINGSTON: I am grateful.

7 JUDGE SHAHABUDDEEN: So the Appeals Chamber

8 stands adjourned at this time. Thank you very much.

9 (6.15 pm)

10 (Hearing adjourned)