41. The Appeals Chamber considers that counsel representing an accused acts on behalf of the accused. Unless it is shown that Praljak’s counsel acted beyond their mandate or in contravention of Praljak’s instructions, submissions made by his counsel are attributable to Praljak.[1] . […].

18. The Appeals Chamber recalls however that an appellant should not be held responsible for the negligence of his counsel. The Appeals Chamber further recalls that it invited the parties to elaborate during the Appeals Hearing on the issue of Milošević’s temporary replacement.[2] Considering that the tendered material appears relevant to this issue and that the trial record does not contain a similar source, the Appeals Chamber finds that in order to avoid a possible miscarriage of justice, it should examine whether, if the Order had been before the Trial Chamber, it would have affected the verdict.

23. The Appeals Chamber interprets the Tadić standard for admission of additional evidence based on unavailability at trial due to gross negligence to require that gross negligence must be shown to justify the unavailability that the first prong of Rule 115 requires and that in addition the Chamber must decide if that gross negligence resulted in the omission of evidence that meets the “interests of justice” test of Rule 115, i.e. that it would probably have changed the outcome of the trial. This is definitely not the same standard Vlatko Kupreškić advances in that he would allow the evidence to be admitted if it were shown to be “in the interests of justice” under Rule 115(B) and only a prima facie case made out that it was unavailable because of gross negligence. The Appeals Chamber thinks both the Tadić test and Rule 115 envisages a more stringent one: gross negligence must be proven in fact and its prejudice to the “interests of justice” shown. And unavailability – whether from justifiable lack of knowledge or ability to obtain new evidence earlier or, as in Vlatko Kupreškić’s case an alleged gross negligence on the part of his former counsel – is a factual matter unlike the judgmental inquiry involved in a decision on the “interests of justice”. Thus if the key components of unavailability are disputed, there may need to be a factual inquiry, otherwise parties would be invited to submit all kinds of dubious material to show unavailability, in safe knowledge that it would not be probed. Accordingly, troublesome as it may be to the expedition of trial, if unavailability is contested and the Appeals Chamber initially finds that a prima facie case has been made out, but the opposition presents persuasive material to counter the factual basis for unavailability, the Appeals Chamber will conduct a specific hearing on that issue.

24. In determining whether a prima facie case of gross negligence exists the Appeals Chamber considers that there is a strong presumption that counsel at trial acted with due diligence, or putting it another way, that the performance of counsel fell within the range of reasonable professional assistance. In assessing whether trial counsel were “grossly negligent”, the Chamber examining the allegation applies an objective standard of reasonableness. In determining whether the performance of counsel actually fell below that standard, an assessment must be made of counsel’s conduct in the circumstances as they stood at that time. The Prosecution is correct when it argues that hindsight has no role to play in this assessment.

With respect to the exercise of the applicant’s and counsel’s duty to act with due diligence in relation to the availability of evidence at trial, the Appeals Chamber recalled:

 5. For additional evidence to be admissible under Rule 115 of the Rules it must satisfy the following requirements. The applicant must first demonstrate that the additional evidence tendered on appeal was not available to him at trial in any form, or discoverable through the exercise of due diligence.[1] The applicant’s duty to act with reasonable diligence includes making “appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.”[2] With respect to the exercise of counsel’s due diligence during trial the Appeals Chamber recalls its finding in Tadić that

[c]ounsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence. The determination which the Chamber has to make, except in cases where there is evidence of gross negligence, is whether the evidence was available at the time of trial. Subject to that exception, counsel’s decision not to call evidence at trial does not serve to make it unavailable.[3]

The Applicant argued that a number of documents he sought to be admitted on appeal were not tendered into evidence at trial due to oversight by his former Counsel. When considering whether these documents were unavailable to the Applicant at trial, the Appeals Chamber first analysed documents which could demonstrate Counsel’s incompetence to conduct the defence:

12. With respect to the alleged unavailability at trial of the statements in document 69-K-0005, the Appeals Chamber recalls that a defence counsel has the duty to act with reasonable diligence to bring evidence on behalf of an accused before the Trial Chamber.[4] The information contained in the four statements could be considered as having been available at trial, because it could have been gathered with reasonable diligence.[5] However, failure of Counsel to exercise due diligence in order to obtain documents which could demonstrate his own incompetence to conduct the defence should not be to the detriment of the Appellant.[6] Moreover, whether or not the Appellant himself had a duty to act with reasonable diligence to make the Trial Chamber aware of the information contained in the four statements, the Appeals Chamber considers that in his oral request for self-representation at trial, the Appellant stated that his Defence team was unable to assist him because of the conditions prevailing at the time, adding that if the Trial Chamber wished that he provide more detailed explanations, he would gladly do so.[7] However, he was never requested to do so. In light of these circumstances, the Appeals Chamber finds that the information contained in the four statements was unavailable to the Appellant at trial. Consequently, they can be admitted if they are relevant, credible and could have had an impact on the verdict had they been considered at trial.

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18. In addition, it appears that the Trial Chamber was never fully informed of the Appellant’s complaints regarding his former Counsel. […]

19. The Appeals Chamber considers that, as a general principle, an accused’s right to a fair trial is infringed when counsel admittedly does not understand the case of his client and fails to prepare a proper defence strategy. […]

 The Appeals Chamber then analysed the documents which were not aimed at proving the alleged incompetence of Counsel to conduct the defence:

21. As previously noted, the Appellant argues in relation to a number of documents that his former Counsel failed to tender them as evidence at trial, although for many of them the Appellant told him to do so.[8] The Appeals Chamber will only consider these documents as being unavailable at trial where the Appellant can show gross negligence of Counsel.[9]

22. The Appeals Chamber considers that […].it does not necessarily follow that former Counsel acted with gross negligence in all the respects now alleged. Indeed, “[c]ounsel may have chosen not to present the evidence at trial because of his litigation strategy or because of the view taken by him of the probative value of the evidence”.[10] Moreover, the Appellant does not substantiate his assertion that the documents at issue were unavailable at trial beyond bare assertions that former Counsel failed to tender them. Therefore, he fails to sufficiently demonstrate that these documents were unavailable at trial. As such, the other admissibility criteria being met, they will only be admitted if the Appellant can show that they would have affected the verdict.