The Appeals Chamber dismissed Milošević’s previous motion seeking to have the same evidence admitted because he did not identify the manner in which that evidence could have affected the Trial Chamber’s findings referred to in the First Motion “or even which particular portions of the Diary would be relevant to such findings”. However, considering the special circumstances related to disclosure of the evidence by the Prosecution, the Appeals Chamber decided to give Milošević a further opportunity to substantiate his claim (see D. Milošević Decision on First Rule 115 Motion).

In this decision, the Appeals Chamber found

19. […] that the Second Motion also fails to meet the requirements of the specificity recalled above.[1] In particular, instead of “specifying with sufficient clarity the impact the additional evidence could have had upon the Trial Chamber’s decision”, Milošević provides a list of the Diary portions identified by dates, often with no reference to a particular part of the entry, which, in his view, could contradict certain paragraphs of the Trial Judgement. Significantly, he does not specify why the Trial Chamber could have come to a different conclusion despite the existence of the evidence it relied upon in the Trial Judgement. This approach does not meet the requirements for the purposes of a motion filed pursuant to Rule 115 of the Rules. In the instances where Milošević refers to the arguments presented in the Defence Appeal Brief regarding the alleged impact on the civilian status of Sarajevo,[2] the Appeals Chamber finds these references insufficient for the purposes of a motion under Rule 115 of the Rules, given that those paragraphs mainly reiterate his arguments rejected by the Trial Judgement without explaining why the Trial Chamber’s relevant conclusions could be different.[3]

20. Consequently, the Appeals Chamber rejects Milošević’s request to have the portions of the Diary admitted as additional evidence on appeal without further analysis. […]

41. With regard to the issue of whether document 6DA22 could have affected the verdict, the Appeals Chamber recalls that Lukić bears the burden of not only identifying with precision specific finding(s) of fact made by the Trial Chamber to which the additional evidence pertains, but also of specifying with sufficient clarity the impact the additional evidence could or would have had upon the Trial Chamber’s verdict.[1] While the Appeals Chamber is satisfied that Lukić has identified the findings of fact to which the additional evidence pertains, […] he fails to elaborate with sufficient clarity on the impact the proffered material could have had on the verdict had it been admitted at trial. […]