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:
2 November 2004

PROSECUTOR

v.

NASER ORIC

___________________________________

DECISION ON PROSECUTION’S MOTION FOR THE ADMISSION OF WRITTEN STATEMENTS OF WITNESSES VESELJKO BOGICEVIC, NOVKA BOZIC AND MILADIN BOGDANOVIC PURSUANT TO RULE 92 BIS (C)

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 Motion for the Admission of Written Statements of Witnesses Veseljko Bogicevic, Novka Bozic and Miladin Bogdanovic pursuant to Rule 92 bis (C) filed confidentially by the Office of the Prosecutor ("Prosecution") on 27 September 2004 ("Motion") on the basis that the first two are deceased and that the latter has been incapacitated by a stroke,

NOTING the "Response to Prosecution’s Motion for the Admission of Written Statements of Witnesses Veseljko Bogicevic, Novka Božic and Miladin Bogdanovic pursuant to Rule 92 bis (C)" filed confidentially by the Defence on 30 September 2004 ("Response") in which the Defence contests the admission of the three written statements pursuant to Rule 92 bis (C) of the Rules of Procedure and Evidence of the Tribunal ("Rules") on the basis that the requirements set out in Rule 92bis have not been fulfilled for any of the three witnesses,

NOTING the Reply filed by the Prosecution on 6 October 2004 ("Reply") in which the Prosecution reiterates its submissions concerning Veseljko Bogicevic and Miladin Bogdanovic but withdraws its request to admit the written statement of Novka Bozic pursuant to Rule 92 bis (C) and informs the Trial Chamber that it wishes to call her to testify viva voce on the basis that this witness is in fact alive,¹

NOTING that the Trial Chamber announced in court on 1 November 2004 that it shall delay its pronouncement on the admission of the statement of Miladin Bogdanovic until the medical examination conducted by a doctor agreed upon by the Prosecution and the Defence is completed,

NOTING that the Addendum to the Motion filed by the Prosecution on 19 October 2004 provides additional information regarding the death of Veseljko Bogicevic ("Addendum"),

NOTING further the "Response to Addendum to Prosecution’s Rule 92 bis (C) Motion" filed confidentially by the Defence on 21 October 2004 ("Response to the Addendum"),

NOTING additionally the "Reply to Defence’s Response to Addendum to Prosecution’s Rule 92 bis (C)" filed confidentially by the Prosecution on 29 October 2004 ("Reply to the Response to the Addendum"),

NOTING that, pursuant to Rule 92 bis (C), the Trial Chamber must be satisfied on a balance of probabilities that the person giving the statement has subsequently died or is unable to testify orally by reason of bodily or mental condition,

CONSIDERING that the Addendum provides sufficient evidence for the Trial Chamber to be satisfied on a balance of probabilities that Veseljko Bogicevic is deceased,

NOTING further that, pursuant to Rule 92 bis (C), the Trial Chamber must also find from the circumstances in which the statement was made and recorded that there are satisfactory indicia of its reliability,

CONSIDERING that the witness statement contains satisfactory indicia of its reliability in light of the fact that it was taken by an interpreter qualified and approved by the Registry of the Tribunal, that each page of the statement was signed by the witness and the interpreter and that the statement contains a declaration by the witness that his statement was given voluntarily,

NOTING Rule 92 bis (A) of the Rules, which also applies to the admission of written statements pursuant to Rule 92 bis (C), which provides that the Trial Chamber may admit, in whole or in part, the evidence of a witness in the form of a written statement if it goes to proof of a matter other than the acts and conduct of the accused as charged in the indictment,

RECOGNISING the Tribunal’s jurisprudence pursuant to which Rule 92 bis (A) is to be interpreted restrictively to exclude only written statements that go to proof of the acts and conduct of the accused himself and which establish his responsibility for the acts and conduct of others, and not the acts and conduct of those over whom the accused is alleged to have superior authority,²

CONSIDERING that the statement of Veseljko Bogicevic goes to proof of a matter other than the acts and conduct of the Accused as charged in the Indictment,

NOTING additionally that, in admitting a written statement into evidence pursuant to Rule 92 bis (C), the Trial Chamber may consider, inter alia, the cumulative nature of the written statement and its proximity to the Prosecution’s case,

CONSIDERING that the ultimate probative value of the statement of Veseljko Bogicevic shall be assessed in light of any existing evidence of cumulative nature and with due consideration of the fact that the Defence cannot cross-examine the evidence contained in the witness statement,

CONSIDERING further that, as submitted by the Prosecution in its Motion³ and reiterated in its Reply to the Response to the Addendum⁴, the statement of Veseljko Bogicevic shall only be considered by the Trial Chamber to go to proof of the existence of an armed conflict, as a chapeau requirement of Article 3 of the Statute of the Tribunal ("Statute"),

CONSIDERING finally that the subject-matter of the statement of Veseljko Bogicevic is relevant pursuant to Rule 89 (C),

FOR THE FOREGOING REASONS

PURSUANT TO Rules 89 and 92 bis of the Rules;

HEREBY GRANTS the Motion and ADMITS the written statement of Veseljko Bogicevic into evidence pursuant to Rule 92 bis (C).

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

Dated this second day of November 2004,
At The Hague,
The Netherlands.

_______________________
Carmel Agius
Presiding Judge