Šljivančanin Files Application for Review of the ICTY’s Controversial Appeals Judgment
Guest Post by Alex Fielding:
Novak Lukic, counsel for Veselin Šljivančanin, held a press conference today in The Hague to announce that he and co-counsel Stephane Bourgon had filed an “Application on Behalf of Veselin Sljivancanin for Review of the Appeals Chamber Judgment of 5 May 2009”. As reported by the ICLB blog here, this application follows Šljivančanin’s Motion for Reconsideration, which was denied on 8 December 2009.
Šljivančanin was acquitted at trial on the count of aiding and abetting by omission the murder of prisoners at Ovcara in 1991. Without hearing new evidence, the Appeals Chamber reversed this acquittal and increased his sentence from 5 to 17 years.
Key to the Appeals Chamber Judgment (Judges Pocar and Vaz dissenting) was the inference that on 20 November 1991, Sljivancanin was told by his commander Mile Mrksic of an order to withdraw JNA (Yugoslav People’s Army) troops protecting prisoners of war at Ovčara.
The basis of the Application for Review filed today is a new fact brought forward by Miodrag Panic, Šljivančanin’s Unit Commander. If he is given the opportunity, Panic will testify that he was present during the conversation between Mrksic and Sljivancanin on 20 November 1991, and that Mrksic did not tell Šljivančanin about any order to withdraw the JNA protection for the prisoners of war at Ovčara.
While Panic did testify for the Defence, the Application for Review states that his knowledge of whether Mrksic told Šljivančanin of the order was not at issue since the Prosecution’s case was that Šljivančanin was involved in the transmission of the withdrawal order, not the knowledge of its existence. As such, the Prosecution, Defence and Trial Chamber did not question Panic on that particular issue. The Trial Judgment made no findings as to whether Panic heard the conversation in question, and rejected the Prosecution’s argument that Šljivančanin was involved in the transmission of the withdrawal order.
According to the Barayagwiza Review Decision of the ICTR Appeals Chamber, a review application must satisfy four conditions:
- There must be a new fact;
- This new fact must not have been known by the moving party at the time of the original proceedings;
- The lack of discovery of the new fact must not have been through the lack of due diligence on the part of the moving party; and
- It must be shown that the new fact could have been a decisive factor in reaching the original decision.
Notably, the Barayagwiza Review Decision granted the Prosecutor’s Application for Review even though the facts “could have been discovered”, thus failing the due diligence condition, The Appeals Chamber cited the decisive nature of the new fact and the “possible miscarriage of justice”, stating at para. 69 that “[t]o reject the facts presented by the Prosecutor, in the light of their impact on the Decision, would indeed be to close ones eyes to reality.”
Lukic vowed to continue to fight for Šljivančanin’s fundamental rights at the local, national and international level, not ruling out an eventual appeal to the European Court of Human Rights in Strasbourg. If so, the ICTY Appeals Chamber would, for the first time, face judicial scrutiny of one of its decisions. A decision, in this case, that effectively entered a conviction on first instance, without recourse to appeal.
The Application for Review will be attached as it becomes available, and the ICTY Appeal Chamber decision can be found here.
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