Case No. IT-03-68-T

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Hans Henrik Brydensholt
Judge Albin Eser

Registrar:
Mr. Hans Holthuis

Decision of:
21 February 2005

PROSECUTOR

v.

NASER ORIC

______________________________________________

DECISION ON PROSECUTIONíS MOTION TO FILE AN EXPERT STATEMENT PURSUANT TO RULE 94bis

______________________________________________

The Office of the Prosecutor:

Mr. Jan Wubben

Counsel for the Accused:

Ms. Vasvija Vidovic
Mr. John Jones

 

TRIAL CHAMBER II ("Trial 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 ("Tribunal"):

BEING SEISED OF the "Prosecutionís Motion to File an Expert Statement Pursuant to Rule 94bis" filed confidentially in part on 17 January 2005 ("Motion"), by the Office of the Prosecutor ("Prosecution") requesting that the Trial Chamber grant leave to file the annexed expert statement and attendant reports of Dr. Zoran Stankovic ("Expert Statement" and "Motion" respectively);

NOTING the "Response to Prosecutionís Motion to File an Expert Statement Pursuant to Rule 94bis" filed by the Defence for the Accused Naser Oric ("Defence") on 28 January 2005 ("First Response");

NOTING that on 8 February 2005 the Parties informed the Trial Chamber that they had reached an agreement with regard to the Expert Statement, according to which the Defence would accept the Expert Statement, with certain caveats, and the Prosecution would refrain from calling Dr. Stankovic to give oral evidence1;

NOTING that following this agreement between the Parties, the Trial Chamber granted the Defence leave to withdraw the First Response and to file a new response2;

NOTING the "Second Response to Prosecutionís Motion to File an Expert Statement Pursuant to Rule 94bis" filed by the Defence on 15 February 2005 ("Second Response") in which the Defence accepts the Expert Statement on the understanding that Dr. Zoran Stankovic does not give evidence orally and subject to certain caveats;

NOTING that the caveats are as follows: "The Defence does, however, reserve the right to take any forensic points regarding Dr. Zoran Stankovicís Expert Statement and autopsy report, including but not limited to the following:

(1) The Defence is not in a position to admit that the body which is the subject of the report and autopsy is in fact that of Kostadin Popovic, as that is a matter beyond its knowledge (and since there has been no DNA identification);

(2) The Defence is not in a position to admit that the purported piece of paper with the victimís name on it exists, since the statement in the Expert Report that the paper was retained by the authorities of the Zvornik Court is contradicted by the evidence of Nikola Popovic, who repeatedly said that he was given the paper by Dr. Stankovic, and the Defence has never seen the paper;

(3) Since the conclusion that a certain cerebral injury "was occasioned a short time before his [the deceasedís] reported death on the 6th February 1993" is premised on the date of death being reported as 6th February 1993 on the piece of paper discussed in (2) above, the Defence is not in a position to accept that the deceased suffered cerebral injury shortly before 6th February 1993.

(4) The Defence is also not able to accept that the body of Kostadin Popovic was identified by a family member, since Nikola Popovic testified that he was first informed that the body had been identified as his fatherís before he carried out any identification, so it was not an identification by a family member as such, but at best identification following suggestion." 3

CONSIDERING the qualifications of Dr. Stankovic as an expert witness and the agreement reached between the Parties;

FOR THE FOREGOING REASONS

PURSUANT TO Rules 54, 89(C) and 94bis of the Rules of Procedure and Evidence;

HEREBY GRANTS the Motion by admitting in evidence the Expert Statement, subject to the aforementioned caveats stated by the Defence.

 

Done in French and English, the English version being authoritative.

Dated this 21st day of February 2005,
At The Hague,
The Netherlands

__________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1. Prosecution v. Naser Oric, Case No. IT-03-68-T ("Oric Case"), 8 February 2005, Transcript page ("T"). 4720.
2. Oric Case, 8 February 2005, T. 4721.
3. Oric Case, Second Response, 15 February 2005, para. 5.