IT-95-5/18-T 92782 D92782-D92657 30 March 2015 AJ Motion to Reopen Defence Case.pdf3. This is in...

THE INTERNA TlONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

CASE No. IT-95-5/18-T

IN TRIAL CHAMBER No.3

Before: Judge O-Gon K won, Presiding Judge Howard Morrison Judge Melville Baird Judge Flavia Lattanzi, Reserve Judge

Registrar: Mr. John Hocking

Date: 30 March 2015

THE PROSECUTOR

v.

RADOV AN KARADZIC

Public

SEVENTH MOTION TO RE-OPEN DEFENCE CASE: MLADEN BLAGOJEVIC

The Office of the Prosecutor: Mr. Alan Tieger Ms. Hildegard Uertz-Retzlaff

The Accused: Radovan Karadzic

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92782IT-95-5/18-TD92782-D9265730 March 2015 AJ

1. Dr. Radovan Karadzic respectfully moves the Trial Chamber for leave to re­

open his case in order to call former Bratunac Brigade Military Policeman Mladen

Blagojevic as a defence witness. He contends that Mr. Blagojevic has important evidence

that contradicts the testimony of Prosecution Witness Momir Nikolic and that, although

aware of this information since 2004, the prosecution failed to disclose it until after the

defence case had closed.

2. Specifically, Mr. Blagojevic told OTP investigator Alistair Graham in an

interview on 15 October 2004 that on 14 July 1995, Momir Nikolic had told his

subordinates that the prisoners being transported to Zvornik would be exchanged. 1

3. This is in direct contradiction to Mr. Nikolic's evidence as a prosecution

witness in which he claimed he had been informed on the morning of 12 July 1995 by

Vujadin Popovic and Svetozar Kosoric that the prisoners would be executed, that he had

conveyed the information to Vidoje Blagojevic and Drago Nikolic on 12 and 13 July that

the prisoners would be killed, and that he had been present on 13 July when Colonel

Beara informed Miroslav Deronj ic that the prisoners were to be executed.2

Legal Considerations

4. This Chamber has already set forth the requirements for re-opening a party's

case in its Decision on Prosecution Motion to Re-Open Its Case (20 March 2014). The

Chamber held that:

(A) A party may seek leave to re-open its case to present "fresh" evidence, that is, evidence that could not be obtained by the moving party by the conclusion of its case-in-chief despite exercising all reasonable diligence to do so.

(B) The primary consideration in determining an application for reopening a case to allow for the admission offresh 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.

(C) The Chamber has the discretion, pursuant to Rule 89(D) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial. The following factors are relevant to the exercise of the Chamber's discretion: (i) the advanced stage of the trial; (ii) the delay

1 Transcript of interview attached as Annex "A", pp. 105-06 2 T24623, T24647, T24669, T24679,T24820

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likely to be caused by the proposed re-opening and the suitabi Iity of an adjournment in the overall context of the trial; as well as (iii) the probative value of the evidence to be presented.

Timeliness

5. Mladen Blagojevic testified as a witness for General Mladic's defence on 4 and

5 March 2015. The transcripts of his testimony were posted on the Tribunal's website on

13 March 2015.

6. Dr. Karadzic's legal advisor Peter Robinson read the transcripts that same day

and noticed that during the prosecution's cross examination of Mr. Blagojevic, it referred

to a transcript of an interview that had been conducted with Mr. Blagojevic in 2004.

7. On that same day, Mr. Robinson requested a copy of the interview transcript in

an e-mail to the prosecution. The interview transcript was provided on 16 March 2015

and contained the information described above.

8. Dr. Karadzic believes that the prosecution's failure to disclose the information

provided to Alistair Graham in 2004 violated its obligations under Rule 68 to disclose, as

soon as practicable, information that contradicts the prosecution's case.3 The information

contradicts Mr. Nikolic's statements in his 2003 plea agreement.4 In fact, during the

interview, Mr. Graham specifically called to Mr. Blagojevic's attention the fact that his

information contradicted that provided by Momir Nikolic when he pled guilty.5

9. The prosecution is a unitary body for purposes of its Rule 68 obligations and

once Mr. Graham came into possession ofthat information, the duty ofdisclosure was

triggered.6 Mr. Graham had duty to ensure that an ICTY record of these inconsistencies

3 Prosecutor v Krstic, No. 1T-98-33-A, Judgement (19 April 2004) at para. 178; Prosecutor v Gotovina et aI, No. IT-06-90-T, Decision on Ivan Cermak's Motion Requesting the Trial Chamber to Order the Prosecution to Disclose Rule 68 Material to the Defence (7 August 2009) at para. 6; Prosecutor v Oric, No. 03-68-T, Decision on A lIeged Prosecution Non-Compliance With Disclosure Obligations Under Rule 66(B) and 68(i) (29 September 2005) 4 D2081 5 Annex A, p. 106 6 Prosecutor v Karemera et al. No. ICTR-98-44-T, Decision on Joseph Nzirorera 's Notices ofRule 68 Violation and Motionsfor Remedial and Punitive Measures (25 October 2007) at para. 15; Prosecutor v Karemera et aI, No. 1CTR-98-44-T, Decision on Joseph Nzirorera 's Sixth. Seventh, and Eighth Notices of Disclosure Violations and Motions for Remedial. Punitive. and Other Measures (29 November 2007) at para, 8; Prosecutor v Ndindiliyimana et ai, No. 1CTR-00-76-T, Decision on Bizimungu 's Motion for Reparation Following the Prosecution's Failure to Disclose Documents Affecting the Credibility of Prosecution Witness AOE (18 February 2009) at para. 7

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was made and the prosecution as an institution had an obligation to disclose that

information to the defence.7

10. Owing to the prosecution's disclosure violation, the information from Mr.

Blagojevic could not be presented by the time Dr. Karadzic's case-in-chief closed in May

2014.

11. Therefore, the motion to re-open the defence case to hear the evidence of Mr.

Blagojevic is timely.

Probative Value of the Document

12. The probative value ofMr. Blagojevic's testimony is extremely high as it goes

to a highly contested and pivotal issue in the case. Proof that Mr. Nikolic's testimony that

a plan existed to execute the prisoners from 12 July was false was a central feature of Dr.

Karadzic's defence to Count Two. 52 paragraphs in his final brief were devoted to this

issue.8

13. While Mr. Blagojevic's credibil ity can be attacked by his subsequent

convictions and contradictions between his prior statement and his Mladic trial testimony,

those are matters which go to the weight and not the admissibility or probative value of

his evidence at this stage. The fact that Mr. Blagojevic contended in his very first

interview that Mr. Nikolic said on 14 July 1995 that the prisoners were to be exchanged,

and stuck to his statement after being confronted that Mr. Nikolic maintained otherwise,

provides sufficient indicia ofprobative value to warrant calling him as a witness so that

the Trial Chamber can make its own credibility assessment.

The Need to Ensure a Fair Trial

14. The probative value of the document is not outweighed by the need to ensure

a fair trial. Mr. Blagojevic would have been called as a witness in Dr. Karadzic's case-in­

chief were it not for the fact that the prosecution violated its disclosure obligation by

failing to disclose the exculpatory information until after the defence case had closed.

Therefore, the fact that re-opening of the case is required to hear his testimony at this

stage cannot be held against Dr. Karadzic.

7 Prosecutor v Haradinaj et aI, No. IT -04-84bis-T, Decision onHaradinaj Motion for Disclosure of Exculpatory Materials in Relation to Witness 81 (18 November 201 1) at para. 37 8 Defonce Final Trial Brief(29 August 2014) paras. 2452-2503

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15. Despite the Trial Chamber's holding to the contrary,9 Dr. Karadzic strongly

maintains that it is error to reward the prosecution for violating its disclosure obligations.

The Chamber does so by applying the standard of "whether exceptional circumstances

exist which would warrant the Chamber to exercise its discretion to re-open the case in

the interests ofjustice" instead of applying the standard for admissibility of evidence

during the defence case. It is a pity that the Trial Chamber refused to grant leave to

appeal is earlier decision on this point lO, as the issue has, as Dr. Karadzic predicted,

recurred. 11

16. In any event, re-opening the defence case to admit the testimony would not

cause significant delay, Mr. BJagojevic's testimony took less than two days in the Mladie

trial and can be considerably shortened in this trial. Since he has recently traveled to The

Hague, Mr. Blagojevic's travel can be organized on short notice without the need for him

to obtain new travel documents.

17. While Dr. Karadzic prefers that Mr. Blagojevic testify orally, and that his

credibility be fully tested, he would request that the transcript of his interview be

admitted pursuant to Rule 92 his if the delay in obtaining Mr. Blagojevic's oral testimony

is of concern to the Trial Chamber. The prosecution can hardly be in a position to

complain about the loss of opportunity to cross examine Mr. Blagojevic when the

transcript is of its own questioning and the delay is of its own making.

18. Therefore, the discretionary factors weigh in favor of allowing Dr. Karadzic to

re-open his defence case and present the evidence of Mladen Blagojevic.

Word count: 1569

Respectfully submitted,

Radovan Karadzic

9 See Decision on the Accused's Third Motion to Re-open Defence Case (17 December 2014) at para. 13 )0 Decision on Applicationfor Cert!fication to Appeal Denial o.fThird Motion to Re-Open Defence Case (15 January 2015) ) 1 Applicationfor Cert!fication to Appeal Denial o.fThird Motion 10 Re-Open Defence Case (19 December 2014) at para. 7

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