IN THE TRIAL CHAMBER
Judge Almiro Rodrigues, Presiding
Judge Fouad Riad
Judge Patricia Wald
Mr. Hans Holthuis
12 March 2001
DECISION ON ZORAN ZIGICS MOTION FOR DELIVERY OF HANDWRITTEN DOCUMENTS
The Office of the Prosecutor:
Ms. Susan Somers
Ms. Kapila Waidyaratne
Mr. Daniel Saxon
Mr. Krstan Simic for Miroslav Kvocka
Mr. Zarko Nikolic for Milojica Kos
Mr. Toma Fila for Mladjo Radic
Mr. Slobodan Stojanovic for Zoran igic
Mr. Jovan Simic for Dragoljub Prcac
TRIAL CHAMBER I ("the Chamber") of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 ("the Tribunal"),
NOTING the "Request for Delivery of Handwritten Documents" ("the Request"), filed by the accused Zoran Zigic ("the accused Zigic") on 13 February 2001, in which the Defence of the accused Zoran Zigic asks the Chamber to issue a binding order upon the Prosecution to produce an example of the handwriting and signature of the witness Husein Ganic in order to have an expert in graphology examine and authenticate his prior statement;
NOTING the "Prosecutions Response to Accused Zoran Zigics Request for Handwritten Documents" ("the Prosecution Response") filed on 23 February 2001, in which the Prosecution states that it has already provided the accused Zigic with all material pertaining to Husein Ganic and that the Defence has no basis for seeking a binding order upon the Prosecution once a witness has testified;
NOTING that the Chamber ruled on 4 July 2000 that prior statements of witnesses are not admissible into evidence, but that prior statements can be used during the testimony of the witness to check a particular point or to check the credibility of the witness;
NOTING that on 26 September 2000, the Prosecution disclosed to the Defence a document consisting of 38 hand-written pages allegedly representing Husein Ganics prior statement ("the handwritten document"); that the document bears on each page the seal of the State Commission for Gathering of facts on War Crimes of the Bosnia and Herzegovina Presidency ("State Commission") and the signature of the witness Husein Ganic; that on 26 September 2000, Husein Ganic gave evidence before the Chamber and said he could not remember having given such a statement to the State Commission and denied that the handwritten document was written and signed by him1;
NOTING that the Defence submits that it prepared the cross-examination of the witness Husein Ganic in view of the handwritten document, and was unable to evaluate his testimony in light of his prior statement because the witness denied the authenticity of the handwritten document;
NOTING that on 27 September 2000, the Chamber rejected the Motion of the Defence of the accused Zigic to tender the handwritten document, into evidence as exhibit D4/4 on the ground that the Prosecution did not authenticate the handwritten document;
CONSIDERING that the question of verifying the authenticity of a prior statement after the witness has testified is of importance because this question impinges upon the ability of a Trial Chamber to ascertain facts and deal with credibility of all evidence brought before it; that accordingly, the Chamber ruled on 27 September 2000 that "the Defence Counsel may always avail themselves of an opportunity to try and authenticate the handwritten document during the presentation of their case"2;
CONSIDERING that original examples of the handwriting and signature of the witness Husein Ganic should be made accessible to an expert in order that the Defence of the accused Zigic may introduce into evidence the report of an expert in graphology to authenticate the handwritten document in order to verify the credibility of the witness Husein Ganic; that for the need of the expertise,;
PURSUANT to Rules 54, 74 bis and 89 of the Rules of Procedure and Evidence;
FOR THE AFOREMENTIONED REASONS,
REJECTS the Motion in so far as it concerns issuing a binding order upon the Prosecution;
ORDERS an examination of the handwriting and signature of the witness Husein Ganic and a comparison with the disputed writing and signature proceed in conformity with the regulations of the profession with the purpose of verifying the authenticity of the handwriting of and or the signature on the handwritten document, allegedly written and signed by the witness Husein Ganic.
REQUESTS the Registrar to assign this task to an expert in graphology and to allow the expert access to original documents bearing the handwriting and signature of the witness Husein Ganic;
DECLARES that a written report of the evaluations, observations and recommendations formulated by the expert shall be transmitted to the Registry no later than 2 April 2001.
Done in English and French, the English version being authoritative.
Dated this twelfth day of March 2001,
At The Hague
[Seal of the Tribunal]
1. T, p 5785-86.
2. T, p 5810.