THE HAGUE | 20.03.2014.

TOMASICA EVIDENCE ‘NOT IN THE INTEREST OF JUSTICE’

The Trial Chamber has concluded that to call evidence on the Tomasica mass grave near Prijedor at this late stage of the trial ‘is not in the interest of justice’. The new evidence could cause the trial to drag on, and its evidentiary value at this time ‘is speculative at best’. The trial of Ratko Mladic thus remains the last opportunity for the Tomasica evidence to be heard at the Tribunal

Judge Kwon’s Trial Chamber rejected the prosecution’s motion for the re-opening of its case at Radovan Karadzic’s trial; the prosecution wanted to call the evidence on the mass grave discovered near the Tomasica mine near Prijedor. As the decision notes, 56 bodies were recovered at the location until 2006. In September 2013, another 275 complete and 118 incomplete bodies of the victims were exhumed from the grave.

The Trial Chamber accepted that the findings of the September 2013 exhumations were new evidence unknown to the prosecution at the time when it rested its case. The judges nevertheless rejected the motion in which the prosecution sought leave to present the evidence at a later stage. According to the judges, at the late stage of the trial, the additional prosecution evidence ‘would not be in the interests of justice’.

As the judges explained, when they assessed the impact of the possible presentation of new evidence, they were mindful of the violation of the right of the accused to fair trial. In other cases the prosecution called additional evidence before or during the defense case, while here the prosecution wants to do it at the very end of the trial. This, the judges noted, couldn’t be called ‘an early request’ as the prosecution put it. Furthermore, Karadzic has already filed a motion asking the judges to order that the first Tomasica witness be called at least 30 days after the prosecution has disclosed all the materials to him. It must be assumed that Karadzic would want an opportunity to challenge the new evidence called by the prosecution.

In addition, it will take some time to gather all the Tomasica evidence, the Trial Chamber concluded that the trial would not be extended just by ‘a minimal period of time’ as the prosecution argued, but for much longer. The judges also found that the evidentiary value of the existing Tomasica evidence and its link with the indictment against Karadzic was ‘speculative at best’.

The last opportunity to call the evidence on the mass grave before the Tribunal will be at the trial of Ratko Mladic. The prosecution has indicated it will seek leave to re-open its case as soon as the exhumation and identification reports are completed.