The Chamber found that “in this exceptional context” it was in the interests of justice to convene an oral hearing of the Appeals Chamber to examine legal and evidentiary aspects of the accused's contentions, namely: (1) the evidentiary value and relevance, if any, of the witness's testimony; and (2) whether the witness's testimony constitutes a "new fact".
Šljivančanin, Scheduling Order for Hearing Regarding Veselin Šljivančanin’s Application for Review, Case No. IT-95-13/1-R.1, App. Ch., 30 April 2010.
In his Dissenting Opinion, judge Pocar disagreed with the majority’s decision and opined that there was no legal basis for ordering a hearing which falls outside the scope of a review proceeding as governed by the Stature and the Rules, and is in contradiction with well-established jurisprudence of the Tribunal.
According to the judge, the majority decision to schedule an oral hearing which is, in the circumstances of the case, outside the scope of the review proceeding as envisaged by the Statute and Rules 119 and 120, since it is aimed at assessing “the evidentiary value and relevance” of the testimony of a witness, through the examination of the witness. Consequently, the witness is called to testify on an alleged “new fact”, before a decision on the existence of such a new fact has been made by the Appeals Chamber.
The judge noted that pursuant to Article 26 of the Statute and Rules 119 and 120, the existence of a new fact is the first step of the review proceeding. Thus, hearing and assessing evidence is only permitted after the existence of a new fact has been established. He also expressed concern that the majority decision may lead to a flood of unjustified requests for review aimed at conducting a “fishing expedition” to try to find new facts.
It will be hard for the Appeals Chamber, in the judge’s view, to justify the denial of such future requests for review since it convenes the scheduled hearing in the “interests of justice”. Should the Appeals Chamber decide to dismiss such motions it would appear to adopt a double-standard, particularly in the absence of a clearly defined “exceptional context”.
Šljivančanin, Scheduling Order for Hearing Regarding Veselin Šljivančanin’s Application for Review, Dissenting Opinion of Judge Pocar, Case No. IT-95-13/1-R.1, App. Ch., 30 April 2010.