Reopening a party's case

Notion(s) Filing Case
Appeal Judgement - 20.02.2001 DELALIĆ et al. (Čelebići)
(IT-96-21-A)

283.    The Appeals Chamber agrees that the primary consideration in determining an application for reopening a case to allow for the admission of fresh evidence is the question of whether, with reasonable diligence, the evidence could have been identified and presented in the case in chief of the party making the application.  If it is shown that the evidence could not have been found with the exercise of reasonable diligence before the close of the case, the Trial Chamber should exercise its discretion as to whether to admit the evidence by reference to the probative value of the evidence and the fairness to the accused of admitting it late in the proceedings.  These latter factors can be regarded as falling under the general discretion, reflected in Rule 89 (D) of the Rules, to exclude evidence where its probative value is substantially outweighed by the need to ensure a fair trial.  […]

Download full document
Notion(s) Filing Case
Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

23. Relying upon the Appeals Chamber’s holding in the Čelebići Appeal Judgement, the Trial Chamber stated the law applicable to a request for reopening a party’s case as follows:

[W]hen considering an application for reopening a case to allow for the admission of fresh evidence, a Trial Chamber should first determine whether the evidence could, with reasonable diligence, have been identified and presented in the case-in-chief of the party making the application. If not, the Trial Chamber has the discretion to admit it, and should consider whether its probative value is substantially outweighed by the need to ensure a fair trial. When making this determination, the Trial Chamber should consider the stage in the trial at which the evidence is sought to be adduced and the potential delay that would be caused to the trial.[1]

24. The Appeals Chamber finds that the Trial Chamber correctly articulated the applicable legal standard. […] [T]he Appeals Chamber notes that an evaluation of what constitutes fresh evidence and whether the Prosecution has met its obligation of reasonable diligence is highly contextual, depending on the factual circumstances of each case. Thus, any assessment in this respect should be carried out on a case-by-case basis.[2]

[…]

35. [T]he Appeals Chamber recalls that in a case where the evidence is sought to be presented at a very advanced stage of the proceedings, the Prosecution should establish that the evidence could not have been obtained, even if after the close of its case, at an earlier stage in the trial.[3] […]

[1] Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-T, Decision on Prosecution’s Motion to Reopen its Case, 21 April 2010 (confidential)], para. 10 (footnotes omitted).

[2] Popović Decision of 24 September 2008 [Prosecutor v. Vujadin Popović et al., Case No. IT-05-88-AR73.5, Decision on Vujadin Popović’s Interlocutory Appeal Against the Decision on the Prosecution’s Motion to Reopen its Case-in-Chief, 24 September 2008], para. 10.

[3] Čelebići Appeal Judgement [Prosecutor v. Zejnil Delalić, et al., Case No. IT-96-21-A, Judgement, 20 February 2001], para. 286.

Download full document
Notion(s) Filing Case
Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

25. As to the standard applied by the Trial Chamber with respect to what constitutes fresh evidence, Čermak and Markač seem to argue that because the Prosecution had evidence in its possession showing that Bilobrk was a forensic technician involved in the work of the sanitation teams at Knin, his testimony could not constitute fresh evidence for the purposes of reopening the Prosecution’s case-in-chief.[1] The Appeals Chamber does not agree with this interpretation. The evidence that the Prosecution seeks to introduce is Bilobrk’s specific testimony concerning Čermak’s or someone else’s alleged suggestion to plant weapons by the bodies of the victims in Grubori. In this respect, the fact that the Prosecution was unaware of this part of Bilobrk’s testimony until the results of the investigation conducted by the Croatian authorities became known, is uncontested by the parties.[2] Accordingly, the Trial Chamber correctly focused its assessment on whether the specific testimony of Bilobrk may constitute fresh evidence for the purposes of reopening the Prosecution’s case-in-chief. […]

[1] Čermak Appeal [Ivan Čermak’s Interlocutory Appeal Against the Decision on Prosecution’s Motion to Reopen its Case, 17 May 2010 (confidential)], paras 11, 18; Markač Appeal [Defendant Mladen Markač’s Appeal of the Trial Chamber’s 21 April 2010 Decision on Prosecution’s Motion to Re-Open its Case, 17 May 2010 (confidential)], para. 27.

[2] The Appeals Chamber further notes that the category of fresh evidence could include evidence in a party’s possession, which becomes significant only in the light of other fresh evidence (Popović Decision of 24 September 2008, para. 11).

Download full document
Notion(s) Filing Case
Decision on Reopening Prosecution Case - 01.07.2010 GOTOVINA et al.
(IT-06-90-AR73.6)

34. […] [T]he Appeals Chamber is not persuaded that Markač’s right to a fair trial would be adversely affected merely as a result of the reopening of the Prosecution’s case.[1] What is important for the Trial Chamber is to ascertain that following the reopening of the Prosecution’s case, the proceedings are indeed conducted with full respect for the principle of equality of arms. […]

[1] Markač Appeal, para. 29.

Download full document