Case No. IT-98-32-A

Before:
Judge Theodor Meron, Presiding
Judge Mohamed Shahabuddeen
Judge Mehmet Güney
Judge Wolfgang Schomburg
Judge Inés Mónica Weinberg de Roca

Registrar:
Mr. Hans Holthuis

Decision of:
21 October 2003

PROSECUTOR

_____________________________

_____________________________

The Office of the Prosecutor:

Mr. Norman Farrell

Counsel for the Accused:

Mr. Vladimir Domazet
Mr. Gerardus Godefridus Johannes Knoops

THE APPEALS CHAMBER of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991,

NOTING the "Defence Motion for Additional Evidence" filed on 24 June 2003 and the "Addendum to Defence Additional Evidence Motion" filed on 11 July 2003 (together "Defence Motion"), whereby an extension of time is requested and five documents from the municipality of Visegrad, a videotape and a transcript of a statement made to the Defence by Stojan Kosoric are submitted for admission as additional evidence pursuant to Rule 115 of the Rules of Procedure and Evidence ("Rules");

NOTING the "Response to Defence Motion for Additional Evidence" filed by the Prosecution on 17 July 2003, in which it argues that none of the evidence submitted in the Defence Motion is admissible pursuant to Rule 115 of the Rules;

NOTING the "Defence Response to Prosecution Motion dated 17 July 2003" filed on 22 July 2003;

NOTING that the Defence Motion was filed outside of the 75-day limit prescribed by Rule 115(A) of the Rules;¹

CONSIDERING that good cause has not been shown for granting an extension of time and that the Defence Motion is liable to dismissal on this ground alone, but that in any event the motion must be dismissed for the following reasons;

CONSIDERING that, in order to have additional evidence admitted on appeal, the party submitting such evidence is required primarily to establish that the evidence itself "was not available at trial" in any form² and could not have been discovered through the exercise of due diligence,³ which means that the party seeking admission must show (inter alia) that it made use of "all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of the Accused before the Trial Chamber";⁴

CONSIDERING that the additional evidence must be considered in the context of the evidence that was presented at trial and not in isolation;

CONSIDERING that the documents (D-51, D-52, D-53, D-54, D-55) presented for admission as additional evidence were available at the municipality of Visegrad before the beginning of the trial and that the individual whose statement the Defence seeks to admit, Stojan Kosoric (D-56, D-57), was known to Defence counsel for Mitar Vasiljevic during trial;

CONSIDERING that the Defence provided no explanation as to why it could not have obtained this evidence during the course of the trial;

CONSIDERING that, during the course of the trial, the Defence counsel did not alert the Trial Chamber to any difficulties it had in obtaining evidence, including those arising from intimidation or inability to locate witnesses;⁵

CONCLUDING that the additional evidence in question was available to the Defence at trial;

CONSIDERING that, where the evidence was available at trial or could have been discovered through the exercise of due diligence, to have that evidence admitted on appeal, the moving party is required to establish that the exclusion of the additional evidence would lead to a miscarriage of justice, in that if it had been presented at trial it would have affected the verdict;⁶

CONSIDERING that the additional evidence submitted for admission relates only to the testimony of witness VG-14 that, on the day of the Drina River incident, Vasiljevic pointed out a nearby house and told the accompanying leader of a Serb paramilitary group, Milan Lukic, that the house belonged to a Muslim family;

CONSIDERING that the above testimony was a factor on which the Trial Chamber relied in finding Vasiljevic to be an informant to the Lukic group;

CONSIDERING however, that, even if the proposed additional evidence could establish that the house in question belonged to a Serb and not to a Muslim, the evidence would not establish that Vasiljevic did not in fact make the statement to which witness VG-14 testified;

CONCLUDING that, in the circumstances, the proposed additional evidence would not have affected the Trial Chamber’s verdict, and so its exclusion would not lead to a miscarriage of justice;

FINDS that the proposed additional evidence inadmissible, and

DISMISSES the Defence Motion.

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

_________________
Judge Theodor Meron
Presiding

Dated this 21^st October 2003
At The Hague,
The Netherlands.