Case No. IT-03-68-T

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

Registrar:
Mr. Hans Holthuis

Decision of:
6 December 2005

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 “Defence Motion to Admit the Evidence of a Witness in the Form of a Written Statement Pursuant to Rule 92bis” filed by Counsel for Naser Oric (respectively “Defence” and “Accused”) on 17 November 2005 (“Motion ”), in which the Defence seeks the admission of the written statement of Warrant Officer Donald Paris¹ (“Statement”) pursuant to Rule 92bis of the Rules of Procedure and Evidence of the Tribunal (“Rules”) on the grounds that the Statement goes to proof of matters other than the acts and conduct of the Accused² and is cumulative in nature³ and that none of the factors against admitting evidence in the form of a written statement set out in Rule 92bis(A)(ii) of the Rules apply to the Statement;⁴

NOTING the “Prosecution’s Response to Defence Motion to Admit the Evidence of a Witness in the Form of a Written Statement Pursuant to Rule 92bis” filed by the Office of the Prosecutor (“Prosecution”) on 25 November 2005 (“Response”), in which the Prosecution opposes the admission of the Statement pursuant to Rule 92bis on the grounds that the statement (i) goes to proof of the acts and conduct of the Accused, (ii) touches upon live and important issues between the parties as opposed to peripheral or marginally relevant issues, (iii) rebuts the credibility of a Prosecution witness, and (iv) is not cumulative in nature⁵ and additionally submits that the Statement fulfils the criteria for granting cross -examination of the maker of the Statement;⁶

NOTING further the “Reply to Prosecution’s Response to Defence Motion to Admit the Evidence of a Witness in the Form of a Written Statement Pursuant to Rule 92bis” filed by the Defence on 2 December 2005 (“Reply”) in which the Defence reiterates its contentions that the Statement does not go to proof of acts and conduct of the Accused⁷ and that the evidence contained in the Statement is cumulative in nature⁸ and further argues that the criteria for granting that the maker of the Statement be called for cross-examination are not met as the Statement does not touch upon live and important issues between the parties, to the extent that the Statement does not cover the notion of command and control in Srebrenica stricto sensu and does not necessarily impeach the credibility of Prosecution witnesses;⁹

NOTING Rule 89(C) of the Rules pursuant to which the Chamber has discretion to admit any relevant evidence with probative value;

NOTING further Rule 92bis(B) of the Rules which lays down the form pursuant to which a written statement shall be admissible;

NOTING further Rule 92bis(A) of the Rules pursuant to which “a Trial Chamber may admit, in whole or in part, the evidence of a witness in form of a written statement in lieu of oral testimony which goes to proof of a matter other the act and conduct of the accused as charged in the indictment”, taking into account such factors in favour of and against admitting evidence in the form of a written statement as set out in Rule 92bis(A)(i) and (ii) of the Rules;

RECOGNISING the Tribunal’s jurisprudence pertaining to Rule 92bis( A) of the Rules according to which the phrase “acts and conduct of the accused” should be given its ordinary meaning, namely “deeds and behaviour of the accused ” stricto sensu¹⁰ and not extended to acts and conduct of subordinates or co-perpetrators, the latter only being relevant to the question as to whether cross-examination of the maker of a statement should be allowed and not whether a statement should be admitted;¹¹

CONSIDERING that although the Statement contains information relevant to issues of command and control of Bosnian Muslim forces in the Srebrenica area at the time relevant to the Indictment,¹² there is nothing in the Statement which goes to proof of the acts and conduct of the Accused;

CONSIDERING furthermore that the Statement, in most parts, is cumulative in nature and relevant to the military and humanitarian background in Srebrenica at the time relevant to the Indictment;¹³

NOTING Rule 92bis(E) of the Rules which states, inter alia, that the Trial Chamber shall decide whether the witness should appear for cross- examination;

RECOGNISING further the Tribunal’s jurisprudence regarding Rule 92bis (E), according to which the question as to whether the witness should be available for cross-examination is subject to the information contained in the written statement being related to a critical and live issue between the parties as opposed to a peripheral or marginally important issue;¹⁴

RECOGNISING that in this regard, the question as to whether the written statement, or parts of it, goes to proof of a critical element of the Prosecution case¹⁵ and the proximity to the Accused of the material described in the written statement are relevant factors in deciding whether the maker of the written statement should appear for cross-examination;¹⁶

CONSIDERING that parts of the Statement contain information which is relevant to the authenticity and credibility of a Prosecution and a Defence witness,¹⁷ and which goes to a critical element of the Prosecution case and touches upon material issues between the Parties, namely, command and control in the Srebrenica area, or lack thereof, and that it is therefore appropriate for the witness to appear for cross-examination;

CONSIDERING that the subject-matter of the Statement is relevant pursuant to Rule 89(C) of the Rules;

CONSIDERING finally that the Statement complies with the formal requirements set out in Rule 92bis(B) of the Rules;

FOR THE FOREGOING REASONS,

PURSUANT TO Rule 92bis(A) of the Rules

HEREBY GRANTS the Motion and ORDERS that

(i) the Statement shall be admitted into evidence pursuant to Rule 92bis( A) of the Rules and

(ii) the maker of the Statement, Warrant Officer Donald Paris, shall be made available for cross-examination by the Prosecution, in particular with regard to the information contained in paragraphs 6, 7, 8, 11, 12 and 14 of the Statement, which contain information relevant to issues of command and control of Bosnian Muslim forces, or lack thereof, in the Srebrenica area at the time relevant to the Indictment.

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

Dated this sixth day of December 2005,
At The Hague
The Netherlands

_________________________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]