Case No. IT-03-68-T


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

Mr. Hans Holthuis

Decision of:
17 December 2004








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 Urgent "Defence Motion to Exclude Exhibits Pursuant to Rules 89 and 95" filed on 14 December 2004 ("Motion")1 in which the Defence applies to the Trial Chamber, pursuant to Rules 89 and 95 of the Rules of Procedure and Evidence of the Tribunal ("Rules"), to exclude from evidence and/or declare inadmissible the video-tape designated as V000-2554 ("Video") and the English translation of its BCS transcript, both previously admitted as Prosecution Exhibit P98, in the event that the Office of the Prosecutor ("Prosecution") would seek to use or admit them into evidence;2

NOTING that in its Motion, the Defence submits that the prejudicial effect of the use of the Video would outweigh its probative value in so far that its authenticity and reliability may be questioned, that the interviews depicted in the Video may have been obtained under oppression and that the English translation of the BCS transcript of the Video is inaccurate and incomplete;

NOTING that, during the 14 December 2004 hearing ("Hearing"), upon the filing of the Motion, the Trial Chamber instructed the parties to limit their oral submissions to the parts of the Motion relating to the potential use of the Video by the Prosecution during the testimony of the witness about to give evidence, namely Mr. Slavoljub Zikic ("Witness");3

NOTING that the Defence reiterated their written submissions orally during the hearing;

NOTING further that the Prosecution orally responded that, with regard to the Witness, it shall only use the Video for purposes of identifying victims named in the Indictment, that the Video is relevant in so far that it goes directly to proof of the cruel treatment as charged in the Indictment, that the argument that the interviews were conducted under oppression are pure speculation and that the reliability and authenticity of the Video may be questioned during examination and cross-examination of the Witness;

NOTING however that the Prosecution concedes that the English translation of the BCS transcript of the Video is inaccurate but that these inaccuracies may be solved during the examination of the Witness;

RECALLING that after having heard the parties, the Trial Chamber proceeded to render an oral ruling on the potential use of the Video during the testimony of the Witness, as set out in the present decision and that the present decision is pursuant to it as agreed with the parties;

CONSIDERING that the Defence fails to distinguish between the admissibility of the Video and the evaluation of its probative value which is an exercise which necessarily has to be concluded at the end of the proceedings, unless its admission is manifestly inappropriate;4

CONSIDERING further that all the submissions made by the Defence, in its Motion and during the hearing, are relevant only for the stage of evaluating the contents of the Video for the purpose of establishing its probative value or otherwise, but should have absolutely no bearing on the admissibility aspect at this stage of the proceedings;


PURSUANT TO Rules 89 and 95 of the Rules;

HEREBY DISMISSES the Motion in part, in so far that it relates to the use of the Video during the testimony of Slavoljub Zikic and DECIDES THAT:

(i) The use of the Video for the purpose of the testimony of Slavoljub Zikic shall be allowed with the caveat that the probative value and the authenticity of the Video shall be assessed in due course by the Trial Chamber when it comes to evaluate the totality of the evidence provided before the Trial Chamber during the course of the proceedings; and that

(ii) it reserves its position regarding the parts of the Motion not decided upon in this decision until the Prosecution files its written submissions on the matter.


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

Dated this seventeenth day of December 2004,
At The Hague,
The Netherlands.

Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1. As explained orally in court, the Defence intended for the last sentence of the first paragraph of its Motion to read as follows: "The Defence also requests the Trial Chamber to exclude from evidence and/or declare inadmissible the purported transcript of the Video which was tendered as P98, and to whose admission into evidence the Defence objected on 8 October 2004." (emphasis added).
2. On 8 October 2004, the Defence objected to the admission into evidence of Prosecution Exhibit P98, which consisted of the video footage and the attached transcript.
3. During the hearing, the Prosecution stated that it will file a written response regarding the other parts of the Motion.
4. Prosecutor v. Naser Oric, Case No. IT-03-68-T, Order Concerning Guidelines on Evidence and the Conduct of Parties during Trial Proceedings, 21 October 2004, , para. 10.