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:
15 September 2005

PROSECUTOR

v.

NASER ORIC

_____________________________________________

DECISION ON DEFENCE MOTION FOR THE ADMISSION OF THE WITNESS STATEMENT OF AVDO HUSEJNOVIC PURSUANT TO RULE 92bis

_____________________________________________

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 Defence Motion for the Admission of the Witness Statement of Avdo Husejnovic Pursuant to Rule 92bis (“Motion”), to which is attached Annex A containing the statement of Avdo Husejnovic dated 24 June 2005 ("Statement ");1

NOTING that the Defence seeks to submit the Statement in reliance upon Rule 92bis(A) of the Rules of Procedure and Evidence (“Rules”);

NOTING that pursuant to Rule 92bis of the Rules a Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement in lieu of oral testimony which goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment;

NOTING the Defence submissions that the Statement (i) does not go to the acts and conduct of the accused Naser Oric (“Accused”), and (ii) is reliable;2

NOTING also the other submissions raised by the Defence in support of admission of the Statement;3

NOTING the Prosecution’s Response to the Defence Motion for the Admission of the Witness Statement of Avdo Husejnovic Pursuant to Rule 92bis (“Response ”), to which is attached Annex A containing the statement of Avdo Husejnovic dated 24 June 2005, and Annex B containing a prior statement of Avdo Husejnovic dated 12 May 2005 (“Prior Statement”);4

NOTING that the Prosecution opposes the admission of the Statement in its entirety on the basis of Rule 92bis(E) of the Rules;

NOTING the Prosecution submissions that the Statement (i) goes to the acts and conduct of the Accused, (ii) concerns an important issue in the case for determining the alleged responsibility of the Accused, and (iii) is unreliable;5

NOTING also the other submissions raised by the Prosecution against the admission of the Statement;6

RECOGNISING this Tribunal’s jurisprudence confirming that the phrase “acts and conduct of the accused as charged in the indictment” in Rule 92bis(A) of the Rules is a plain expression and should be given its ordinary meaning, that is, deeds and behaviour of the accused;7

RECOGNISING also that according to the jurisprudence of this Tribunal the phrase “acts and conduct of the accused as charged in the indictment” should be interpreted to include any act or conduct of the accused upon which the Prosecution relies to establish that the accused was a superior to those who actually did commit the crimes, or that he knew or had reason to know that those crimes were about to be or had been committed by his subordinates, or that he failed to take reasonable steps to prevent such acts or to punish those who carried out those acts;8

CONSIDERING that the Accused is charged with direct individual criminal responsibility under Article 7(1), and with superior responsibility under Article 7(3), of the Statute of the Tribunal (“Statute”);9

CONSIDERING that the alleged responsibility of the Accused under Article 7(3) of the Statute is, inter alia, for murder and cruel treatment of Serb detainees by members of the Military Police;10

CONSIDERING that the Statement refers to a diary submitted by the Prosecution as exhibit P561, and alleged by the Prosecution to have been written by the Bosnian Military Police of Srebrenica (“Diary”);11

CONSIDERING that the Diary is relevant to the question of whether or not, and to what extent, there was in existence a functioning Military Police in Srebrenica in the time period relevant to the Indictment;12

CONSIDERING that paragraphs 10-13 of the Statement could provide information on the military command structure and composition in the area and time period relevant to the Indictment, but that neither these paragraphs, nor any other parts of the Statement, contain evidence that goes to the proof of acts and conduct of the Accused as charged in the Indictment;

CONSIDERING that pursuant to Rule 92bis(A) of the Rules a Trial Chamber has discretion whether or not to admit a written statement, in whole or in part, even if the statement meets the admissibility threshold under Rule 92bis( A);

NOTING that Rule 92bis(A) of the Rules includes a non-exhaustive list of factors in favour of admitting evidence in the form of a written statement, and that the Defence admits that none of those factors are apposite to the issue at stake;13

NOTING that Rule 92bis(A) of the Rules also includes a non-exhaustive list of factors against admitting evidence in the form of a written statement. Among these factors are the following:

“…whether:

(a) …

(b) a party objecting can demonstrate that its nature and source renders it unreliable , or that its prejudicial effect outweighs its probative value; or

(c) there are any other factors which make it appropriate for the witness to attend for cross-examination.”;

CONSIDERING that the Statement does contain information relevant to the question of the authenticity and reliability of the Diary, and that paragraphs 10-13 of the Statement might provide information on the military command structure and composition in the area and time period relevant to the indictment;14

CONSIDERING that the Statement touches upon a live and important issue between the parties, as opposed to a peripheral or marginally relevant issue;15

CONSIDERING that the authenticity and reliability of the Diary, which is alleged to have been written by the Bosnian Military Police of Srebrenica, and to contain information on Bosnian Serb detainees, could possibly become a pivotal issue in this case,16 especially since it appears that Avdo Husejnovic gave a Prior Statement to the Prosecution, which the Prosecution contends is in contradiction to the Statement that the Defence seeks to submit under Rule 92bis,17 and that the Defence does not seek to submit the Prior Statement under Rule 92bis ;

CONSIDERING that it is not in the interest of justice that evidence which may rebut the authenticity and reliability of the Diary be given in a written form ;

FOR THE FOR GOING REASONS

PURSUANT TO Rule 92bis of the Rules,

HERBY DENIES the Motion.

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

Dated this fifteenth day of September 2005,
At The Hague,
The Netherlands.

____________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]


1 - Prosecutor v. Naser Oric, Case No. IT-03-68-T, Defence Motion for the Admission of the Witness Statement of Avdo Husejnovic Pursuant to Rule 92bis, 29 August 2005.
2 - Motion, paras 7 and 11-14.
3 - Motion, paras 5-6, 9-10 and 15.
4 - Prosecutor v. Naser Oric, Case No. IT-03-68-T, Prosecution’s Response to the Defence Motion for the Admission of the Witness Statement of Avdo Husejnovic Pursuant to Rule 92bis, 5 September 2005.
5 - Response, paras 4, 6 and 9.
6 - Response, paras 7-8 and 10-13.
7 - Prosecutor v. Slobodan Milosevic, Case No. IT-02-54-T, Decision on Prosecution’s Request to Have Written Statements Admitted under Rule 92bis, 21 March 2002, para.22.
8 - Prosecutor v. Stanislav Galic, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002, paras10-11.
9 - Prosecutor v. Naser Oric, Case No. IT-03-68-T, Third Amended Indictment, 30 June 2005, paras 22-26.
10 - Third Amended Indictment, paras 22-26.
11 - A copy of the diary was tendered by the Prosecution as exhibit P458. Nikola Popovic, T. 2805-2811, 9 December 2004.
12 - Motion, para.5.
13 - Motion, para.8.
14 - Prosecutor v. Stanislav Galic, Case No. IT-98-29-AR73.2, Decision on Interlocutory Appeal Concerning Rule 92bis(C), 7 June 2002, paras 10-11 and 14-16, Prosecutor v. Fatmir Limaj, Case No. IT-03-66-T, Public Version of “Decision on Prosecution’s Motion for Provisional Admission of Witness Statements under Rule 92bis” Dated 13 October 2004, 15 December 2004, paras 5 and 15, and Prosecutor v. Sefer Halilovic, Case No. IT-01-48-T, Decision on Motion for Admission of Written Statement of Deceased Witness Pursuant to Rule 92bis(C), 25 July 2005, pp 3-4.
15 - The Prosecution v. Slobodan Milosevic, Case No. IT-02-54-T, Decision on Prosecution’s Request To Have Written Statements Admitted Under Rule 92bis, 21 March 2002, paras 24-25. The Tribunal’s case-law has held that if a statement touches upon a live and important issue between the parties, cross-examination should be granted.
16 - Nikola Popovic, T. 2805-2811, 9 December 2004. The testimony of Nikola Popovic includes references to names of Serbs that were held as prisoners and are mentioned in the Diary.
17 - Response, para.9.