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:
12 October 2005

PROSECUTOR

v.

NASER ORIC

___________________________________________

DECISION ON MOTION TO ENABLE DOCUMENT EXAMINATION BY THE DEFENCE FORENSIC DOCUMENT EXAMINER

___________________________________________

The Office of the Prosecutor:

Mr. Jan Wubben
Ms. Patricia Sellers Viseur
Mr. Gramsci di Fazio
Ms. JoAnne Richardson

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 to Enable Document Examination by the Defence Forensic Document Examiner" filed by the Defence on 5 October 2005 ("Motion"), in which the Defence seeks leave from the Trial Chamber to have its ex parte forensic document examiner, Professor Esad Bilic of Sarajevo, Bosnia and Herzegovina, ("Defence expert")¹ conduct an examination of thirty-two documents ("questioned documents") which are in the custody of the Office of the Prosecutor ("Prosecution"), twenty-six of which have been tendered into evidence by the Prosecution in the form of copies with the originals remaining in the possession of the Prosecution and the remaining six of which have not been tendered into evidence²;

NOTING the "Prosecution’s Response to the Defence Motion to Enable Document Examination by the Defence Forensic Examiner" filed on 7 October 2005 ("Response’), in which the Prosecution does not object to the Motion, provided that i) a Prosecution investigator or a Registry representative, knowledgeable of forensic examination procedures, observes all procedures and examinations conducted by the expert; and that ii) the Prosecution receives advanced notice of all examinations and procedures intended to be carried out by the Defence expert and has the possibility to object to any procedures and examinations accordingly;

NOTING further the Defence’s additional submissions³ that the Defence expert’s examination procedures would not affect the physical integrity of the questioned documents, that the Defence expert would undertake to examine the documents entirely by non-destructive and non-damaging means, that the presence of the Prosecution at the examination would violate the confidentiality of the examination, and that the presence of a representative of the Registry is not objectionable, provided that the role of such representative is limited to ensuring the physical integrity, safety and security of the questioned documents, and does not jeopardise the confidential nature of the examination.

NOTING further the Prosecution’s oral additional submissions⁴ to the effect that it not does object to the Motion provided that the Defence expert identifies beforehand the exact nature of the examination test procedures to be used in order to satisfy the Prosecution that the Defence expert’s examination would not affect the physical integrity of the questioned documents, and that it does not object to a representative of the Registry acting in lieu of a Prosecution investigator so long as that representative undertakes to fulfil the responsibility of the Prosecution with respect to preservation of the questioned documents;

NOTING further the final submissions of the Defence regarding the nature of the examination test procedures,⁵ that it will involve the use of standard instrumental and visual methods of examination that will not affect the documents in any way, including spectrometry, infrared and ultraviolet lighting and photography, and that the length of time needed by the Defence expert for conducting the forensic examination will be two weeks from the time the documents are received, followed by an additional two weeks to write the report;

NOTING Rule 66(B) of the Rules of Procedure and Evidence ("Rules") which provides that “[t]he Prosecutor shall, on request, permit the defence to inspect any books, documents, photographs and tangible objects in the Prosecutor’s custody or control, which are material to the preparation of the defence, or are intended for use by the Prosecutor as evidence at trial or were obtained from or belonged to the accused";

NOTING Rule 41 of the Rules, pursuant to which, and subject to Rule 81 of the Rules, the Prosecution shall be responsible for the retention, storage and security of information and physical material obtained in the course of the Prosecutor’s investigation until formally tendered into evidence;

NOTING further Rule 81(C) of the Rules, pursuant to which the Registrar shall retain and preserve all physical evidence offered during the proceedings subject to any Practice Direction or any order which a Chamber may at any time make with respect to the control or disposition of physical evidence offered during proceedings before that Chamber;

CONSIDERING that the Prosecution does not contend that the questioned documents for which forensic examination is requested by the Defence are immaterial to the preparation of the defence in this case or that the Defence should be precluded from obtaining access to the questioned documents for purposes of forensic examination;

CONSIDERING that twenty-five of the twenty-six questioned documents which have been tendered into evidence in this case have been the object of authenticity challenges by the Defence in this case;

CONSIDERING that the responsibility for retention, storage and security of documents obtained by the Prosecution in the course of the investigation remains with the Prosecution until such documents leave the custody and control of the Prosecution and are formally tendered into evidence;

CONSIDERING that the responsibility of the Registrar with regard to the retention and preservation of documents applies only to those documents which have been tendered into evidence;

CONSIDERING that the thirty-two questioned documents are in the custody and control of the Prosecution;

CONSIDERING that in the circumstances, the Prosecution’s concerns about its responsibilities under Rule 41 of the Rules are sufficiently addressed by the appointment by the Trial Chamber of a special representative of the Registry tasked with the terms of reference infra;

FOR THE FOREGOING REASONS,

PURSUANT TO Rules 41, 54 and 66(B) of the Rules;

HEREBY GRANTS the Motion;

INSTRUCTS the Registry to specially appoint a representative from within its staff who shall fulfil the responsibilities of the Prosecution pursuant to Rule 41 of the Rules and with respect to the subject matter of this Decision; and

ORDERS that

1. the Registry shall communicate in writing the name of the specially appointed representative from within its staff, within 48 hours of the filing of this Decision, to the Trial Chamber, the Prosecution and to the Defence;

2. the appointed Registry representative shall be responsible for receiving from the custody and control of the Prosecution, for retaining, storing and securing the questioned documents, for the purpose of consigning them to the Defence expert, Professor Esad Bilic, upon satisfactory proof of identification, for informing the Trial Chamber when consignment of the questioned documents to the Defence expert has occurred, for retrieving the questioned documents from the Defence expert upon completion of the forensic examination, and for returning them to the custody and control of the Prosecution;

3. the said Defence expert will inform the appointed Registry representative when he does not require the questioned documents any further, and if such information is not provided by the Defence expert within 14 days from the day the questioned documents were consigned to him, the appointed Registry representative is to inform the Trial Chamber forthwith;
4. prior to consignment of the questioned documents to the Defence expert, Professor Esad Bilic, for forensic examination, the Defence expert shall submit to the Trial Chamber or to the appointed representative of the Registry a written and signed declaration undertaking to examine the documents entirely by non-destructive and non-damaging means, to protect the physical integrity of the questioned documents and ensure that they are returned as soon as the examination is completed to the appointed representative of the Registry in a condition suitable for further examination should it ever be required;

5. the Defence expert shall complete the forensic examination and file a written report to the Defence on the results of the examination no later than four weeks after receipt of the documents.

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

Dated this twelfth day of October 2005,
At The Hague
The Netherlands

________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]